Minutes of Meeting of the LegCo Panel on Security

The Chairman stated that the purpose of the meeting was to discuss the Administration's proposal to complete the three readings of the Immigration (A) Bill at the LegCo sitting on 24 April 1996 with a view to reporting at the House Committee meeting on 19 April 1996 on the Panel's recommendation.

Action

2. The following papers were tabled at the meeting:

(a) A joint letter from Messrs LAU Chin-shek, LEE Cheuk-yan and LEUNG Yiu-chung objecting the Administration's proposal to complete the three readings of the Bill at one LegCo sitting;

(b) A submission from Refugee Concern Hong Kong; and

(c) A submission from the Hong Kong Human Rights Monitor.

3. Mr Peter LAI briefly stated that the background to and the details of the Bill were set out in the LegCo brief. The Executive Council approved the introduction of the Bill into LegCo on 24 April 1996. The Administration hoped that the three readings of the Bill could be completed at one sitting but would respect LegCo's view on the legislative timetable.

4. Ms Emily LAU was concerned about the compatibility of the Bill with the Bill of Rights Ordinance (BOR). She enquired whether the urgency of the Bill justified the one-sitting procedures and was comparable with the circumstances relevant to any precedent cases.

5. LA advised that before studying the submissions it would be difficult to give conclusive advice on the question of compatibility with the ICCPR. As a preliminary view, the Bill might have more far-reaching effects than Government suggested. Indeed Refugee Concern Hong Kong argued in its submission that the Bill would have extensive effects on the ability of the court to do justice. LA would offer his written advice on the matter before the coming House Committee meeting. [Post-meeting note: LA's note to the House Committee was at LP No. LS 120/95-96]

6. Regarding the circumstances which warranted the one-sitting procedures in the past, LA said that the circumstances in question were usually fast moving, such as the collapse of banks or matters relating to the stock exchange. Whether the Bill was so urgent as to justify the one-sitting procedure would hinge on the question as to whether the Administration was on the brink of release of a large number of Vietnamese migrants (VMs).

7. Mr Peter LAI said that any VMs who fell within the terms of the Privy Council judgment had to be released. Rather than reacting after the VMs applied for habeas corpus, the Administration had taken the initiative to examine VM cases. Pursuant to the Privy Council decision , the Administration had released 207 VMs on 3 April, and 47 VMs would be released on 17 April. (Post-meeting note: another 21 were released on 26 April.) Whilst it was impossible for the Administration to examine all 7,000 to-be-cleared cases, the Administration, based on known information, had completed checking of several hundred cases. The Administration could not guesstimate the number of VMs likely to be released because if the Administration was aware of any VMs who fell within the Privy Council judgment, the Administration should have released them. All the Administration could say was that of the 7,000 VMs to-be-cleared for return, a significant number of them were ethnic Chinese. So long as the Ordinance was not amended, there remained a risk that more releases might be necessary.

8. Mr Howard YOUNG stated that he had no argument on the purpose of the Bill. However, without knowing the approximate number of VMs who might be released, it would be difficult for members to arrive at a decision on the Administration's proposed legislative procedures.

9. Mrs Elizabeth WONG stated that she considered it an indecent haste to rush through the Bill which involved personal liberty. She opined that the normal legislative procedures should be followed to allow time to scrutinize the scope of the Bill carefully. Mrs WONG opposed to the one-sitting procedures.

10. Mr Peter LAI disagreed with Mrs WONG's view that it was an indecent haste to complete the three readings of the Bill at one sitting. Mr LAI said that the Administration remained of the view that the Bill should be dealt with as expeditiously as possible. Nevertheless, it was a matter for the Legislature to decide on the legislative time-table.

11. In reply to Mr Andrew CHENG's question on the number of cases involved in current habeas corpus proceedings, Mr P T CHOY said that a case was scheduled to be heard in the High Court on 1 May 1996. This case initially involved 173 applicants and of which about 150 had been released. In the Administration's view, the remaining applicants did not fall within the Privy Council judgment. At members' request, the Administration would provide information on the number of VMs involved in outstanding habeas corpus actions before the coming House Committee meeting. [Post-meeting note: the information was circulated to members vide LP No. CB(2) 1065/95-96]

12. Miss Christine LOH expressed her grave concern on the Bill which, in her view, sought to detain and redetain VMs who should be released consequent to the Privy Council judgment. Miss LOH considered that the Bill would in effect overturn the Privy Council ruling. It would legalise indefinite detention or at least indeterminate detention. Miss LOH said that not only the legal effects but also the moral dimension of the Bill should be examined. As such, interested organisations should be given an opportunity to express views. Miss LOH objected to the one-sitting procedures.

13. Mr Peter LAI reiterated that the Administration would release any VMs who fell within the terms of the Privy Council judgment. In the Administration's view, the Bill would not breach any international covenants or obligations. Neither was it inconsistent with the spirit of the common law. The Bill certainly did not provide for arbitrary or indefinite detention. Mr I G M WINGFIELD supplemented that the court could order the release of VMs who had been detained for an unreasonable period, hence there was no question of indefinite detention. The detention might be said to be indeterminate in so far as the exact timing for repatriation of VMs was concerned.

14. On the time taken for clearance by the Vietnamese authorities, Mr B J BRESNIHAN said that the biodata of VMs was submitted to the Vietnamese Government in batches who responded over a period of time. Given that two sets of procedures for clearance were in place since 1989, it would be difficult to give the average period for clearance of VMs. Mr Peter LAI added that as the Vietnamese authorities had to clear the biodata of over 100,000 VMs, it was understandable that the clearance process would take time. Admittedly the pace of clearance was slow initially under the simplified procedures. It should be noted that since the latter months of 1995, the pace of clearance had picked up considerably. More than 11,000 VMs had been cleared from the last quarter of 1995 to the first quarter of 1996. The Administration expected that the Vietnamese authorities would respond to the 7,000 to-be-cleared cases in the following two months. At members' request, the Administration would provide a breakdown on the time taken by the Vietnamese authorities to clear VMs for return. [Post-meeting note: the information was circulated to members vide LP No. CB(2) 1065/95-96].

15. Mr Bruce LIU said that in his view, the Bill could achieve the purpose of plugging the loophole in the existing legislation without affecting the operation of section 13D (1A). He considered the Bill acceptable but did not think that the risk of release of VMs was so great as to justify the one-sitting procedures.

16. Mr Peter LAI stated that the Administration believed that the release of VMs was unwelcome to the community. Criticism was laid on the Administration when it released 174 VMs in 1994. At the recent Shatin and Tuen Mun District Boards meetings, DB members did not seem to welcome the release of VMs pursuant to the Privy Council judgment. Mr Peter LAI emphasised that the Administration would go ahead with the one-sitting procedures only with the majority support of members of LegCo.

17. Regarding Ms Emily LAU's question as to whether the proposed section (1AA) would fetter the court's ability to find facts, Mr I G M WINGFIELD said that the legality of detention of VMs was governed by the purpose of detention and the period of detention. The Bill did not intend to deal with the second ground. In this connection, LA advised that albeit it was the Administration's position that the Bill only sought to address the question of the purpose of detention, there were opposing views that the Bill would have more far-reaching effect than its intended legal effects. These views should be considered by members.

18. Mr CHAN Kam-lam said that he considered it appropriate to defer any decision on the proposed one-sitting procedures until after members had received further information to be provided by the Administration.

19. In response to the Chairman, LA said that subject to the House Committee's agreement, it was procedurally in order for the Bill to resume its Second Reading debate at the sitting immediately after its introduction into LegCo. Although a Bills Committee could not be formed prior to the introduction of the Bill into LegCo, the House Committee might set up a subcommittee to start scrutinising the draft Bill. At the Chairman's request, the Clerk, in consultation with LA, would prepare a note on the possible options in examining the Bill.

Clerk

20. The Chairman concluded that on the basis of the information available, the majority of members of the Panel did not support the one-sitting procedure and the Panel recommended priority be accorded to the scrutiny of the Bill.

21. The meeting ended at 7:05 p.m.

LegCo Secretariat
27 May 1996