EC(97-98)87
For discussion
on 25 March 1998
ITEM FOR ESTABLISHMENT SUBCOMMITTEE OF
FINANCE COMMITTEE
HEAD 92 - DEPARTMENT OF JUSTICE
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 September 1998 to 27 September 1999 in the Civil Division of the Department of Justice -
1 Consultant
(at Principal Government Counsel (DL3))
($127,900 - $135,550)
PROBLEM
The Department of Justice (D of J) lacks the expertise and capacity at the Principal Government Counsel (PGC) level to provide legal advice and to conduct litigation in relation to Vietnamese asylum seekers and illegal immigrants when the existing consultancy position at PGC level lapses on 28 September 1998.
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 Secretary for Justice (SJ) proposes to retain the existing consultancy position for 12 months from 28 September 1998 to
27 September 1999.
JUSTIFICATION
3. As at 20 March 1998, there were about 3 140 Vietnamese refugees, migrants and illegal immigrants (including about 300 Ex-China Vietnamese illegal immigrants (ECVIIs)) in Hong Kong. About a third of them are still involved in legal proceedings. There are at the moment 14 outstanding proceedings relating to the detention or removal of former residents of Vietnam, 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 23 cases when the extension of the consultancy was last considered in May 1997. Since then, there has been little fall in the Vietnamese population and, although the number of court cases involving them has dropped, the total number of hearings has remained the same. Their legal representatives are continually seeking to challenge, through the three-tier judicial system, the screening decisions of the Immigration Department and the Refugee Status Review Board as well as the decisions of the Director of Immigration to remove them to either Vietnam or China. As it takes about eighteen 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. Most of the past cases have gone through the entire hierarchy ending up in the Privy Council previously and now 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 former residents of Vietnam is at Enclosure 1. We anticipate that the status of persons rejected by the Vietnamese Government as non-nationals will be a source of litigation in the near future. The Administration requires legal advice and representation from counsel with experience in this area.
4. .The present situation involving former residents of Vietnam is such that both the Secretary for Security and the SJ consider it necessary to provide continued legal support to deal with legal proceedings related to them. The incumbent of the consultancy post is responsible to the Law Officer (Civil Law) for providing legal advice, conducting litigation and appearing on behalf of the Government in connection with former residents of Vietnam. The organisation chart of the Civil Division and the duty list of the Consultant are at Enclosures 2 and 3 respectively. The other existing PGCs 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 Court of First Instance (High Court before 1 July 1997) and the Court of Appeal and has also appeared in the Privy Council.
5. The SJ has considered the alternative of briefing out the work. However, this option would be very expensive. In the period of the consultancy from 1 May 1997 to date, the Consultant has appeared as Leading Counsel in 23 cases (10 in the Court of Appeal and the rest in the Court of First Instance (High Court before 1 July 1997)) on a total of 37 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 million.
6. Besides advocacy, the Consultant also advises the Administration on written challenges to the policy relating to former residents of Vietnam and its implementation, and undertakes many of the functions of a solicitor in the conduct of litigation. From 1 May 1997 to 20 March 1998, he has given 174 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 $1.6 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 PGC level, which is less than $3 million per annum, the SJ considers it good value for money to retain the consultancy position.
7. If the consultancy is extended to the end of September 1999, with past accumulated leave to be taken within the period of consultancy, the Consultant will be available until the end of June 1999. We anticipate that the majority of the current court proceedings will have concluded by then. If for any reason the bulk of the work is completed earlier than June 1999 we shall delete the consultancy position and terminate the Consultant's contract under the provision referred to in paragraph 13 below.
8. When the consultancy was last extended, we anticipated that the relevant court proceedings would have concluded at least their first instance hearings by June 1998. However, for reasons beyond the D of J's control, this has not proved to be the case. For instance, the important case relating to the Director of Immigration's decision to remove ECVIIs back to China has still not been heard at first instance. It is likely that the decision at first instance will be appealed by the losing party and it is probable therefore that the litigation will continue well into 1999.
FINANCIAL IMPLICATIONS
9. The additional notional annual salary cost of this proposal at
MID-POINT is $1,580,400.
10. The full annual average staff cost of the proposal, including salaries and staff on-costs, is $2,782,572.
11. Since creation of this consultancy position, we have created one Personal Secretary I post (with a notional annual mid-point salary cost of $275,880 and a full annual average staff cost of $429,396) to provide secretarial support to the Consultant. Should Members approve this proposal, we shall retain the Personal Secretary I post until 27 September 1999.
12. We have included sufficient provision in the 1998-99 Estimates to meet the cost of this proposal.
BACKGROUND INFORMATION
13. We first created the consultancy post on 21 May 1994 to provide the then Attorney General with directorate support in VM matters. Given the continuing need for the consultancy position, we have sought and the Finance Committee has agreed to the retention of the consultancy position in December 1995, November 1996 and May 1997 respectively [EC(95-96)67, EC(96-97)48 and EC(97-98)14]. The last retention was up to 27 September 1998. This was inclusive of the leave period of the Consultant which is due to start from 15 July 1998. 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 month's 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 BUREAU COMMENTS
14. Having regard to the complexity and workload of legal matters relating to VMs, the Civil Service Bureau considers that there is an operational need to retain the consultancy position. The grading and ranking of the consultancy position are appropriate.
URGENCY
15. Members are requested to consider this as an urgent item for the meeting of 25 March 1998 which is the last meeting of the Establishment Subcommittee in the current session in order that the Consultant can continue work after 15 July 1998. We apologise for the inconvenience caused as we were aware only on 20 March 1998 that the hearing date of the case involving the ECVIIs has been re-fixed for eight days beginning 20 July 1998. Unless the consultancy is extended, the Consultant would have departed on final leave on 15 July 1998.
Department of Justice
March 1998
Enclosure 1 to EC(97-98)87
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.
|
AL No. 80 of 1997
|
Tran Thang Lam & 115 others
|
Court of First Instance
|
Judicial review proceedings instituted by 116 ECVII principal applicants challenging the director's decisions to remove them back to China and to detain them pending removal. Substantive hearing fixed for 20-29 July 1998. |
|
2.
|
FACV No. 2 of 1998 (on appeal from CA 198/97 & CA 200/97)
|
Re: CA 198/97 Thang Thieu Quyen & 6 others
Re: CA 200/97 Long Quoc Tuong & 111 others
|
Court of Final Appeal
|
119 ECVII principal applicants' appeal to CFA against the Court of Appeal's judgment of 12 December 1997 in respect of habeas corpus proceedings. (CA 198/97 & CA 200/97). Appellants' Case served on us on 7 March 1998. Respondents' Case filed by 4 April 1998. |
|
3.
|
HCMP No. 1989 of 1995
|
Nguyen Tuan Cuong & others (319 ECVIIs)
|
Court of First Instance
|
Damages claim for unlawful detention. |
|
4.
|
IT63-86/96
(D of J - IDA 2-22/96)
|
Lai A Luc & others (21 ECVIIs)
|
Immigration Tribunal
|
Appeal against removal order by 21 ECVIIs. Case adjourned sine die. Will have to be relisted. |
|
5.
|
HCMP No. 3562 of 1994
|
Tran Dat and family
|
Not yet re-fixed.
|
A habeas corpus action on
30 May 1997. Tran Dat and family were released on court bail. Government has now determined that Tran Dat and family are China recognised refugees and that court bail is no longer applicable. This is disputed and case will be refixed. |
|
6.
|
HCMP No. 89 of 1997 (will be given new number)
|
Huynh Thi Thiep
|
To be arranged.
|
After a judicial review in January 1998 where Government conceded, RSRB has found this applicant not be a refugee. The applicant intends to take further judicial review proceedings. |
|
7.
|
HCMP No. 1597 of 1995
|
Ho Ly Pau and others
|
To be arranged.
|
VM judicial review on the basis that these 11 VMs were never resident in China. Previously adjourned but likely to be revived following AL 80 of 1997. |
|
8.
|
Being considered by Legal Aid (LA/M 276/98)
|
Phung Dao Khang
|
Not yet fixed.
|
This is a judicial review involving about 500 persons where even if legal aid is not granted action will be taken. If it succeeds the 500 or so will be entitled to refugee status. |
|
9.
|
A letter before action
|
Tran Truong Hung and about 20 others
|
Not yet fixed.
|
A judicial review on the basis that ECVIIs who were processed as VMs are entitled to retain that status and to Board rescreening as VMs despite their status as ECVIIs or in some cases their recent admission that they are ECVIIs, and now classified as China recognised refugees who must return to China.
|
|
2. Other Cases
|
|
|
|
|
Court Case
Ref.
|
Name of
Applicants
|
Next
Hearing
Date/
Forum
|
Present Position |
|
1.
|
MIS No. 87 of 1994
|
126 VMs
|
Court of First Instance
|
Personal injury claims arising out of Shek Kong fire/riot. 118 claims settled upon acceptance of $28 m approved by FC. Quantum of 8 outstanding claims under consideration. |
|
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. 40 odd witnesses recently joined as Plaintiffs. Application to join family members adjourned to a date to be fixed for further argument. |
|
3.
|
HKPI No. 216 - 219 of 1996,
HKCJ No. 1476 of 1995 &
HKCJ No. 6 of 1995
HKPI No. 435 of 1997
|
110 VMs
1 VM )
)
1 VM )
)
32 VMs
|
Court of First Instance
District Court
Court of First Instance
|
Personal injury and loss of property claims by VMs as a result of transfer operation at Whitehead on 7 April 1994. Quantum of 32 outstanding claims under consideration. |
|
4.
|
HCA No. 11316 of 1996
|
Le Viet Lui and 9 others (Boat 22)
|
Court of First Instance
|
Damages for unlawful detention. Repeat of Boat 101. Further & better particulars of Defence provided to the Plaintiff. Awaiting Counsel's opinion on liability & evidence. |
|
5.
|
HKCJ 16485 of 1996
|
Pham Si Dung and 6 others
|
District Court
|
Defence witnesses in Shek Kong trial claiming damages for unlawful detention. |
Date: 21.3.98
Enclosure 3 to EC(97-98)87
Main Duties and Responsibilities of Consultant at Principal Government Counsel level (DL3)
Civil Division
Responsible to the Law Officer (Civil Law) for -
- 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 Vietnamese Migrants camps.
- conducting litigation and appearing on behalf of the Government in connection with (1); and
- advising on, and when required, undertaking such duties as may be assigned by the Law Officer (Civil Law).
