For discussion EC(97-98)14
on 28 May 1997
ITEM FOR ESTABLISHMENT SUBCOMMITTEE OF FINANCE COMMITTEE
HEAD 92 - LEGAL DEPARTMENT
Subhead 243 - Hire of Legal services and related professional fees
Members are invited to recommend to Finance Committee the retention of the following consultancy position for the period from 28 December 1997 to 27 September 1998 in the Civil Division of the Legal Department -
1 Consultant (at Principal Crown Counsel (DL3))
($119,650 - $126,800)
PROBLEM
The Legal Department lacks the expertise and capacity at the Principal Crown Counsel (PCC) level to provide legal advice and to conduct litigation in relation to Vietnamese asylum seekers and illegal immigrants when the existing consultancy position at PCC level lapses on 28 December 1997.
PROPOSAL
2. Having regard to the anticipated work relating to legal proceedings concerning Vietnamese Migrants (VMs) and illegal immigrants, and in order to be able to advise client departments and represent the Government in such proceedings, the Attorney General (AG) proposes to retain the existing consultancy position for nine months from 28 December 1997 to 27 September 1998.
JUSTIFICATION
3. As at 1 May 1997, there were about 2 600 Comprehensive Plan of Action asylum seekers1 in Hong Kong. A very large proportion of them are involved in legal proceedings. There are at the moment 23 outstanding proceedings involving VMs, with action at various levels of the judicial system. This compares with one such case when the consultancy was first approved in May 1994 and 14 cases when extension of the consultancy was last considered in November 1996. Despite the fall in the VM population, the number of court cases involving VMs has not dropped but increased. Their legal representatives are continually seeking to challenge the screening decisions of the Immigration Department and the Refugee Status Review Board through the three tier judicial system. As it takes about 18 months to two years for a case to go through all three tiers, it would not be possible to complete the process within the existing consultancy period. It is not unusual for cases to go through the entire hierarchy ending up in the Privy Council or in future, the Court of Final Appeal. Cases involving claims for damages for unlawful detention will, by their nature, involve a lot of legal arguments and will take a long time to resolve. A list of the legal proceedings relating to the status, detention and removal of VMs is at Enclosure 1. We anticipate that the screening of Ex-China Vietnamese Illegal Immigrants and claims of right of abode under Article 24(2) of the Basic Law will be other sources of litigation in the near future. The Administration requires legal advice and representation from counsel with experience in this area.
1 VMs who arrived in Hong Kong before 16 June 1995 and who have been refused refugee status
4. The present VM situation is such that both the Secretary for Security and AG consider it necessary to provide continued legal support to deal with the VM-related legal proceedings specifically. The incumbent of the consultancy post is responsible to the Crown Solicitor for providing legal advice, conducting litigation and appearing on behalf of the Government in connection with VM matters. The organisation chart of the Civil Division and the duty list of the Consultant are at Enclosures 2 and 3 respectively. The other PCCs in the Civil Division do not have the spare capacity to absorb the work which now engages the Consultant full time; nor are any of them specialist advocates. Given the sensitive, complicated and intricate nature of the work involved, the specialist experience of the present incumbent of the consultancy position is invaluable. The incumbent has been involved in matters relating to immigration generally and VMs in particular since 1980. Since 1987, he has conducted the majority of immigration and VM cases on behalf of the Government with considerable success. He has been Leading Counsel in the High Court and Court of Appeal and has also appeared in the Privy Council.
5. AG has considered the alternative of briefing out the work. However, this option would be very expensive. From 1 November 1996 to 30 April 1997, the Consultant has appeared as Leading Counsel in 25 cases (13 in the Court of Appeal and the rest in the High Court) on a total of 40 days. Assuming an average brief fee to cover preparation and the first day of hearing of $150,000 and a refresher rate of $40,000 for the second and subsequent days, the cost of briefing out the cases would have been about $4.35 million.
6. Besides advocacy, the Consultant also advises the Administration on written challenges to the VM policy and its implementation, and undertakes many of the functions of a solicitor in the conduct of litigation. From November 1996 to April 1997, he has given 110 pieces of advice. Assuming that each piece of advice would take an outside counsel an average of two hours to research and write and that Counsel charged $4,500 per hour, the cost of briefing out the work would have been about $1 million. In practice, unless private counsel had the same degree of knowledge of the issues as the Consultant, the average time required to advise would likely be very much longer. Having regard to the full cost of a consultant at PCC level, which is slightly above $2.6 million per annum, AG considers it good value for money to retain the consultancy position.
7. If the consultancy is extended to the end of September 1998, with past accumulated leave to be taken within the period of consultancy, the Consultant will be available until the end of June 1998. We anticipate that the majority of the current court proceedings will have concluded at least their first instance hearings by then. If for any reason the bulk of the work is completed earlier than June 1998 we shall delete the post and terminate the Consultants contract under the provision referred to in paragraph 12 below.
FINANCIAL IMPLICATIONS
8. The additional notional annual salary cost of this proposal at
mid-point is $1,478,400.
9. The full annual average staff cost of the proposal, including salaries and staff on-costs, is $2,646,420.
10. Since creation of this consultancy position, we have created one Personal Secretary I post (with a notional mid-point salary cost of $258,300 and a full average staff cost of $406,344) to provide secretarial support to the Consultant. Should Members approve this proposal, we shall retain the Personal Secretary I post until 27 September 1998.
11. We have included sufficient provision in the 1997-98 Estimates to meet the cost of this proposal.
BACKGROUND INFORMATION
12. We first created the consultancy post on 21 May 1994 to provide AG with directorate support in VM matters. Given the continuing need for the post, we have sought and Finance Committee has agreed to the retention of the post in December 1995 and November 1996 respectively [EC(95-96)67 and EC(96-97)48]. The last retention was up to 27 December 1997. This was inclusive of the leave period of the Consultant which will start from 1 October 1997 onwards. At the ESC Meeting on 27 November 1996, we undertook to review the need for the post in mid-1997 and the review conducted in April 1997 indicated that further retention of the consultancy position is necessary. Members may wish to note that the existing contract has included a provision which enables either party to it to terminate the contract at three months notice in writing or by paying one months fee in lieu of notice. We shall include this provision in the new contract to be concluded with the Consultant should Members support and the Finance Committee approve the present proposal.
CIVIL SERVICE BRANCH COMMENTS
13. Having regard to the complexity and workload arising from the legal proceedings in relation to Vietnamese migrants and illegal immigrants, the Civil Service Branch considers that there is operational need to retain the consultancy position at the existing grading and ranking for nine months. Should the workload situation indicate that the consultancy can be terminated earlier, it could be dealt with in accordance with the relevant provision in the contract.
Legal Department
May 1997
Enclosure 1 to EC(97-98)14
Legal Proceedings relating to Vietnamese Asylum Seekers and Illegal Immigrants
1. Public Law Cases
|
Court Case
Ref.
|
Name of
Applicants
|
Next Hearing Date/
Forum
|
Present Position |
|
1.1
|
HCMP No. 3961 of 1996/
CA 42, 51, 56 & 62 of 1997
|
Chieng A Lac and 1,376 others
|
14, 15, 16 May
1997
Court of Appeal
|
Application for habeas corpus. 12 test cases heard before Keith J. in January 1997. Judgment delivered on 5 February 1997. Of 12 test applicants, 3 removed before judgment; 4 released; 4 applications dismissed; 1 withdrawn.
With regard to other applicants, Keith J. directed their cases be brought up for hearing and ordered discovery on 5 February 1997. We have lodged a Notice of Appeal against that interlocutory order (CA 42/97). On 24 February, Wally Yeung J. granted an order of stay of the execution of the order for discovery pending our appeal. The other side has appealed against this order (CA 56/97).
Our Notice of Appeal against substantive judgment filed, CA 51/97. Other side will cross-appeal.
On 17 March, Keith J ordered Director of Immigration to file 50 affirmations each week in respect of all applicants remaining in HK. We appealed (CA 62/97). That order stayed by Litton JA on 25 March. Litton JA also ordered consolidation of all 4 appeals. Dates fixed for hearing of appeal. |
|
1.2
|
CA No. 196 of 1995
|
Nguyen Tuan Cuong and others
(319 ECVIIs)
|
High Court
|
On 24 March, Court of Appeal directed that case be remitted to High Court for full arguments on damages (for unlawful detention) issue. Hearing dates to be fixed. |
|
1.3
|
HCMP No. 3562 of 1994
|
Tran Dat and others
(14 ECVIIs or ex-ECVII in total)
|
30 May-3 June 1997
High Court
|
Application for habeas corpus. |
|
1.4
|
HCMP No. 4157 of 1996
|
Cong Van Ha & Others
|
29 April 1997
Court of Appeal
8-16 May 1997
High Court
|
Appeal vs. W. Yeung J.s ruling refusing applicants application to amend Grounds for J/R.
Judicial Review - screening decision. Hearing commenced before Wally Yeung J. on 14 March 1997. Applicants application to amend Grounds for JR refused. Case adjourned part heard. |
|
1.5
|
HCMP No. 4280 of 1996
(consolidated with HCMP No. 4308 of 1996 and 16 of 1997)
|
Moc A Pao and family (9 VMs)
|
)
)
)
) High Court
)
)
|
Judicial Review - screening decisions. Hearing before Keith J. finished. Awaiting judgment. |
|
1.6
|
HCMP No. 4308 of 1996
|
Thoong Coc Duong & 33 Others
|
)
)
)
|
|
|
1.7
|
HCMP No. 16 of 1997
|
Diep Hoai Sung & 26 Others
|
High Court
|
Judicial Review - screening decisions. Hearing before Keith J. finished. Awaiting judgment. |
|
1.8
|
HCMP No. 236 of 1997
|
Chu Minh Tien & Others
(22 VMs of 7 families)
|
High Court
|
Judicial Review - screening decisions. Leave granted by Mr. Justice Jerome Chan on 5 February 1997. Dates to be fixed. |
|
1.9
|
HCMP No. 287 of 1997
|
Tran Van Tien and 13 others
|
High Court
|
Judicial Review - screening decisions. Ha Tuyen rescreeners. Hearing before Keith J. finished. Judgment to be handed down on 1 May. |
|
1.10
|
HCMP No. 140 of 1997
|
Duong Quoc Quan
|
29 April 1997
High Court
|
Judicial Review - screening decision. |
|
1.11
|
HCAL No. 2 of 1997
|
Duong Cam Sang
|
26, 27 May 1997
High Court
|
Judicial Review - Screening decision - leave granted by Sears J. on 26.2.97. |
|
1.12
|
CA 24 of 1997
|
Van Can On and 61 others
|
28 April 1997 Court of Appeal
1 & 2 May 1997
Court of Appeal
|
Paper chase case. Judicial Review - disclosure of screening documents to VMs in legal aid appeals. DLA appealing against Keith J.s decisions. Separately, Director of Immigration also lodged Notice of Appeal. We have applied to CA for leave to join as intervener. |
|
1.13
|
IT 63-86/96
(AGC of IDA 2-22/96)
|
Lai A Luc and others
(21 ECVIIs)
|
Immigration Tribunal
|
Appeal against removal order by 21 ECVIIs. Argue that applicants in same position as applicants in Nguyen Tuan Cuong case, should not be removed pending judgment in that case. Case adjourned sine die. Will have to be relisted. |
|
1.14
|
CA No. 187 of 1996
|
Tran Van Tien and others
(115 VMs/
61 families)
|
Privy Council
|
Ha Tuyen cases - Judicial Review of screening decisions.
4 representative cases heard before Keith J. in May 1996. All 4 applicants failed in High Court and in Court of Appeal. Leave to appeal to Privy Council refused by Court of Appeal on 30 January.
Three test applicants petitioned PC for Special Leave to appeal. Refused by Board on 12 March 1997. AGC to take steps to strike out non test cases. |
|
1.15
|
HCAL No. 8 of 1997
|
Bui Van Ao
|
11 & 12 June
High Court
|
Judicial Review - screening decision. |
|
1.16
|
HCAL No. 11 of 1997`
|
Nguyen Phong and others
|
High Court
|
Judicial review - screening decisions. |
|
1.17
|
HCAL No. 15 of 1997
|
Dang Ngoc Kieu
|
5 May 1997
High Court
|
Judicial review - screening decision. Inter partes leave application. |
|
2. Other Cases
|
|
|
|
|
Court Case
Ref.
|
Name of
Applicants
|
Next Hearing Date/
Forum
|
Present Position |
|
2.1
|
MIS No. 87 of 1994
|
116 VMs
|
|
Personal injury claims arising out of Shek Kong fire/riot. |
|
2.2
|
DCCJ No. 17581 of 1994
|
Nguyen Khan Tinh and 14 others
|
District Court
|
Prosecution witnesses in Shek Kong murder trial claiming damages for unlawful detention. |
|
2.3
|
HKPI No. 216 - 219 of 1996,
HKCJ No. 1476 of 1995 &
HKCJ No. 6 of 1995
|
110 VMs
|
High Court
District Court
|
Personal injury and loss of property claims by VMs as a result of transfer operation at Whitehead on 7 April 1994. |
|
2.4
|
HCPI No. 299 of 1996
|
Vien Boi Thi (minor)
|
High Court
|
Directions |
|
2.5
|
HCA No. 11316 of 1996
|
Le Viet Luc and 9 others
|
High Court
|
Damages for unlawful detention. Repeat of Boat 101. |
|
2.6
|
HKCJ No. 16485 of 1996
|
Pham Si Dung and 6 others
|
District Court
|
Defence witnesses in Shek Kong trial claiming damages for unlawful detention. |
Enclosure 3 to EC(97-98)14
Main Duties and Responsibilities of Consultant at Principal Crown Counsel level (DL3) Civil Division
Responsible to the Crown Solicitor for -
1. advising the Secretary for Security and Director of Immigration on matters connected with the continued presence in Hong Kong of Vietnamese migrants and Ex-China Vietnamese illegal immigrants, including -
- claims for refugee status;
- detention, return and resettlement; and
- claims in respect of death, personal injury and loss of property arising out of incidents in the VM camps.
2. conducting litigation and appearing on behalf of the Government in connection with (1); and
3. advising on, and when required, undertaking such duties as may be assigned by the Crown Solicitor.
(E5877/WIN107)
Last Updated on 12 August 1999
