2. The Chairman said that as the Administration had not been able to provide draft Committee stage amendments (CSAs) to the Committee for consideration, the meeting today could only confine its discussion on policy issues. As Deputy Director of Administration (DDA) indicated that the draft CSAs would be ready in about a weeks time, and allowing one week for the Bar Association and the Law Society to consider the Administrations proposals, the next meeting of the Committee was scheduled for 15 May 1997 at 10:30 am.

Adm

III. Continued discussion on the Bill

(LegCo Paper No. CB(2) 1816/96-97(01))

Removal after commencement of habeas corpus proceeding (proposed section 22A(11)

3. Senior Assistant Solicitor General (SASG) briefed members on the Administrations response to the issues raised by members at the previous meeting as contained in LegCo Paper No. CB(2) 1816/96-97 (01). On removal after commencement of habeas corpus proceedings, SASG said that this had been done, and the practice accepted and endorsed by the Court. Two cases involving Vietnamese migrants were cited. In response to the Chairmans question. SASG confirmed that the law as drafted was not confined to Vietnamese migrants although in practice this was where removal after commencement of habeas corpus proceedings had hitherto been applied.

4. Mr Martin LEE was concerned that whilst the objective of habeas corpus proceedings was to enable a person to be released from custody in Hong Kong, the removal might result in his being re-detained, for example, in China, as in the case of a dissident. Mr Bill MARSHALL said that the court had developed effectively a system of injunctions against the Crown when it was thought that a matter should be further looked into before a final adjudication was given. SASG stressed that the Administration exercised the power of removal not on a whim but under the authority of an enactment.

5. Mr Gerald McCoy pointed out that the Administration should not remove people once habeas corpus proceedings were underway. Any removal should not be done without notice being given to the court which had the jurisdiction over the detainee. If the court was engaged at the start, it should be involved at the end. At present, the Director of Immigration removed failed refugee applicants at very short notice with the result that people had to apply to the High Court for an injunction to prevent removal. A judicial review had to be sought before an injunction could be granted. These separate legal proceedings were unnecessary and undermined the precedence of habeas corpus. Mrs Elizabeth WONG said that she fully agreed with the Bar Associations views and stressed that there should be mechanism for setting free a person and that the process involved should be within the jurisdiction of the court and be as open as possible.

6. Mr Bill MARSHALL stated that the habeas corpus cases cited were most carefully deliberated cases. They were not cases where the Vietnamese concerned were resisting removal. They were challenging the length of their detention. The law allowed them to go back to Vietnam voluntarily rather than by forced removal if they were cleared for return. In the mass influx case, it had been a fully considered judgment on the basis of legality of detention in Hong Kong. The injunction cases quoted had all been framed without habeas corpus and in judicial review. They were Vietnamese concerned to stay in Hong Kong until their legal proceedings related to refugee status were concluded. The need for pleading had been removed as a matter of present substantive Hong Kong law by the recent decision of Mr Justice KEITH. It was part of the legal set-up in Hong Kong and it would require a change of the Common Law for that to disappear. Therefore in the dissident case without pleading, if the judge wished to have time, he could issue an interim injunction preventing the Administration from doing anything until a further hearing. This would apply in habeas corpus as well.

7. Ms Emily LAU asked whether the Administration would resort to removing people from detention in a normal situation as against the case of mass influx of Vietnamese migrants. Mr Bill MARSHALL said that the Administration required a framework which could deal with both mass influx and individual cases. In so far as the latter was concerned, the injunction process which was currently part of the Hong Kong law, was more than adequate to protect a person. The purpose of the Bill was to preserve the established and recognized procedure of habeas corpus. It was a proceeding to test present legality. The answer to stopping people going out of the jurisdiction was by proceeding through an injunction. At this juncture, the Chairman pointed out that the Administrations view on the present law was not conceded to by the Bar Association.

8. Mr Bill MARSHALL stated that if the 5,000 people involved in the case of Chieng A Lac had been locked into staying in Hong Kong the moment a writ for habeas corpus was issued, both the Administration and the courts would have faced an impossible burden. Mr Gerald McCoy stressed that the Bar Association was of the view that people who had no right to stay in Hong Kong should be removed. However, that should not be done without the courts permission. The Administration was a party before the court and one party could not remove a subject matter without the courts ruling. The grant of habeas corpus which commenced the proceedings was the injunction and the court must be involved if that was taken away at the end. Moreover, people might not want to go where the Administration wanted them to. A signed consent document should therefore be produced.

9. Mr Patrick MOSS stated that the Law Society was in total agreement with the views of the Bar Association. If the Administration continued its policy of removing people notwithstanding an application for habeas corpus had been made, this would be a future threat to the well-being of the people of Hong Kong, whether it was one person or a thousand persons. It was absurd for the Executive to be able to frustrate the proceedings of the court by removing people out of its jurisdiction. There was a real danger that the people involved might be removed to a country against their wishes and very often a detainee had disappeared before an application for an injunction could be made.

10. In reply to the Chairmans question on whether there was any practical problem for the Administration to notify the court before it removed people out of Hong Kong, Mr Bill MARSHALL said that the Administration and the courts would be faced with an impossible task if there was a mass action for habeas corpus or injunction. DDA said that from a policy point of view, insofar as illegal immigrants were concerned, the Bar Associations proposed amendment, if implemented, would convey a wrong message to would-be illegal immigrants who would hope to take advantage of the legal proceedings to stay in Hong Kong for a longer period of time. That would be a burden to the Administration, the courts and tax-payers and was therefore not in the interests of the community. Under existing system, people who considered that they should not be removed could always apply for a judicial review against the removal order. The present Bill was simply to reintroduce existing practice from English laws into local legislation and there was no reason to include any new elements at this stage.

11. Mr James TO emphasized that habeas corpus applied to any individuals, not just Vietnamese migrants. He was perplexed as to why the proposed requirement for the court to be notified of the removal order could convey any wrong message. Members shared Mr TOs points. In response to the Chairmans question as to what notification of the court would entail, Mr Gerald McCoy said that habeas corpus was the supreme public law remedy. If it was taken away by administrative means without the court being engaged, there was not a public finish of the case. The notification would enable both the court and society as a whole knew that the case had been resolved. It would also enable the individual who was the subject matter of the case, to confirm to the court that he voluntarily wished to be removed and to a place he agreed. On the question of conveying the wrong message, he remarked that it would be a matter for debate which was the greater tension: the Administration carrying out administrative responsibilities under the law or the Judiciary with the ultimate writ focusing on liberty.

12. The Chairman stressed that members concerns were not just confined to illegal immigrants but to all kinds of people. Responding to Ms Emily LAUs enquiry, Assistant Legal Adviser 4(ALA4) said that new s. 22A(11)(b) would be operative when, for example, a detained person was removed from Hong Kong by virtue of an enactment, for example, the Immigration Ordinance in respect of illegal immigrants. However, members felt that there might be other enactments existing as well as those which might arise in future. Mr Gerald McCoy cited the extradition law which affected any individuals and added that there were other ordinances which provided for removal by the Administration. The Chairman asked whether the Administration would agree to replacing the words "except under the authority of an enactment" by "except under the authority of the Immigration Ordinance." SASG and Mr Bill MARSHALL said that they had to consider the proposal. Ms Emily LAU requested the Administration to provide a list of enactments under which it could remove people from Hong Kong.

Adm

13. In conclusion the Chairman said that if habeas corpus was considered to be protecting the liberty of an individual, that remedy should not be compromised simply because of the fear that large numbers of Vietnamese migrants might abuse the system. At the end of the day, that was the fundamental protection of the individual. Whilst the Bills Committee had to consider views from both the Administration and the profession, it had to decide eventually what protection should be given by habeas corpus and how far it should protect everyone, not just illegal immigrants.

Re-detention following release an habeas corpus (proposed section 22A(12))

14. Concerning re-detention following release on habeas corpus, Mr Bill MARSHALL and SASG said that under section 5 of the Habeas Corpus Act 1679, no person who was released upon a habeas corpus might be re-detained for the same offence otherwise than by order of a court. Proposed subsection (12) widened this requirement beyond criminal offences but retained the proviso allowing re-detention with the authority of the court. It reflected the similar proviso in section 5 of the Act. The Administration saw no need to change the present law. Mr Gerald McCoy re-iterated the points made at the previous meeting. He stressed that the court had no power to detain people. The court only decided whether or not the detention was lawful. At the request of Ms Emily LAU, ALA4 read out section 5 of the Habeas Corpus Act 1679 and advised that on the basis of what was written therein, the Act gave the court the power to authorize re-detention of a person. However, Mr Gerald McCoy remarked that according to the textbooks, that was not what it meant. The Chairman requested Mr McCoy to provide members with relevant extracts at the next meeting.

Bar Association

(Post-meeting note : A copy of section 5 of the 1679 Act has been circulated to members vide LegCo Paper No.CB(2)2031/96-97)

Impact on the Bill

15. Mr James TO expressed concern about the impact on the Bill of the provisions in the Basic Law, the Laws of Hong Kong and any legislation which might apply to Hong Kong after 30 June 1997, in particular the Acts of State. The Chairman requested the Administration to advise on this issue.

Adm

Writ of habeas corpus

16. Mr Gerald McCoy tabled four forms in relation to the Writ of Habeas Corpus ad subjiciendum. He proposed that, because of the importance of habeas corpus, the four forms, if approved, should become the Second Schedule to the Supreme Court Ordinance. The Chairman asked the Administration to consider and respond to this proposal at the next meeting.

Adm

(Post-meeting note : Documents tabled by Mr McCoy have been circulated to members vide LegCo Paper No. CB(2)2031/96-97)

IV. Close of meeting

17. The meeting ended at 6:00 pm.

LegCo Secretariat
14 May 1997

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