301
Hong Kong University PressThe University of Hong KongPokfulam Road, Hong Kong
© Hong Kong University Pressand The University of Hong Kong 1996
ISBN 962 209 379 5
All rights reserved. No portion of this publication maybe reproduced or transmitted in any form or by anymeans, electronic or mechanical, including photocopy,recording, or any information storage or retrievalsystem, without permission in writing from thepublisher.
Printed in Hong Kong by Prosperous Printing Co., Ltd.
Contents
Cases Reported in Volume 4 Parts 1 to 4 v
Cases and Other Materials Considered in Volume 4 Parts 1 to 4 xv
Cases xv
Hong Kong Legislation xxxvi
United Kingdom Legislation xliv
Foreign Legislation xlv
International Treaties and Other International Sources xlvi
Other Sources xlvii
Hong Kong Public Law Reports 727
Cumulative Subject Index to Volume 4 Parts 1 to 4 925
Words and Phrases 973
Cases Reported in Volume 4 Parts 1 to 4*
Anastasius Chiu, R v (CA) 457
Apollonia Liu, ex parte Lau San-ching; R v (HCt) 400
Apollonia Liu, ex parte Lau San-ching; R v (CA) 415
Attorney General v Bui Thi Ngoan and others(No 1) (HCt) 824
Attorney General v Bui Thi Ngoan and others(No 2)(HCt) 832
Attorney General v Bui Thi Ngoan and others(No 3) (HCt) 837
Attorney General v Cho Shu-wah (HCt) 514
Attorney General v Fong Chin-yue (CA) 430
Attorney General v Pham Si Dung (No 1) (HCt) 799
Attorney General v Pham Si Dung (No 2) (HCt) 813
Re a Minor (HCt) 667
Attorney General, ex parte Tsei Kwei-king and another,R v (HCt) 686
Auburntown Ltd; R v Town Planning Board, ex parte(HCt) 194
Banks, ex parte Lai Shu-wing and others, R v HerMajesty’s Coroner of Hong Kong W B G (HCt) 782
Bui Thi Ngoan and others (No 1), Attorney Generalv (HCt) 824
Bui Thi Ngoan and others (No 2), Attorney Generalv (HCt) 832
* Cases whose names appear in bold are reported in this issue.
v i Cases Considered (1994) 4
Bui Thi Ngoan and others (No 3), Attorney Generalv (HCt) 837
Building Authority, Business Rights Ltd v (CA) 43
Business Rights Ltd v Building Authority (CA) 43
C, (A Minor), Re (HCt) 793
C, L v (HCt) 388
Chan Chak-fan, R v (CA) 285
Chan Po-ming, Eric; R v Thomas Chow Tat-ming,ex parte (HCt) 400
Chan Po-ming, Eric; R v Thomas Chow Tat-ming,ex parte (CA) 415
Chan Yat-fai and others, Re (HCt) 481
Cheng Kai-man, William (No 1); R v Panel on Takeoversand Mergers and another, ex parte (HCt) 274
Cheng Kai-man, William (No 2); R v Panel on Takeoversand Mergers and another, ex parte (HCt) 285
Cheng Kai-man, William (No 2); R v Panel on Takeoversand Mergers and another, ex parte (CA) 298
Cheung Kukching; R v Director of Immigration, ex parte(HCt) 542
China State Construction Engineering Corporation, R v(Mag) 716
Cho Shu-wah, Attorney General v (HCt) 514
Choi Kai-on, R v (CA) 105
Chong Ah-choi and others, R v (CA) 375
Chow Chai-sang and others, R v (DCt) 592
Chow Tat-ming, Thomas, ex parte Chan Po-ming, Eric;R v (HCt) 400
v i Cases Reported in Volume 4 Parts 1 to 4 (1994) 4
HKPLR Cases Considered v i iCases Reported
Chow Tat-ming, Thomas, ex parte Chan Po-ming, Eric;R v (CA) 415
Chow Tat-ming, Thomas, ex parte Fung Chan-ki, Rich-ard; R v (HCt) 400
Chow Tat-ming, Thomas, ex parte Fung Chan-ki, Rich-ard; R v (CA) 415
Chiu, Anastasius; R v (CA) 457
Chu Cheuk-hong, R v (CA) 651
Chu Kam-to and another, R v (HCt) 472
Chua, Anthony; Hong Kong Bar Association v (BarristersDiscip Trib) 637
Commissioner of Correctional Services, ex parteNgai Fook-lam, R v (HCt) 854
Crawley, R v (HCt) 62
Crown Solicitor v Datuk Jeffrey Kitingan, The(HCt) 860
Director of Immigration, ex parte Cheung Kukching, R v(HCt) 542
Director of Immigration, ex parte Du Gui-fang; R v (HCt) 562
Director of Immigration, ex parte Hai Ho-tak; R v (CA) 324
Director of Immigration, ex parte Le Tu Phuong andanother; R v (CA) 430
Director of Immigration, ex parte Yin Xiang-jiang; R v(CA) 265
Disciplinary Committee of the Stock Exchange of HongKong Limited, ex parte Onshine Securities Limited, R v(HCt) 523
Dragages et Travaux, R v (Mag) 601
Du Gui-fang; R v Director of Immigration, ex parte (HCt) 562
HKPLR Cases Reported in Volume 4 Parts 1 to 4 v i i
viii Cases Considered (1994) 4viii Cases Reported in Volume 4 Parts 1 to 4 (1994) 4
Fong Chin-yue, Attorney General v (CA) 430
Fung Chan-ki, Richard; R v Thomas Chow Tat-ming,ex parte (HCt) 400
Fung Chan-ki, Richard; R v Thomas Chow Tat-ming,ex parte (CA) 15
Governor [Christopher Patten] and others, YungTak-lam, Philip v (HCt) 885
Governor, ex parte Reid; R v (CA) 18
Hai Ho-tak; R v Director of Immigration, ex parte (CA) 324
Hong Kong Bar Association v Anthony Chua (BarristersDiscip Trib) 637
Hui Kin-hong, Harry R v (DCt) 581
Hui Siu-yan and others, R v Obscene ArticlesTribunal, ex parte (HCt) 901
Human Rights Committee, General Comment24(52) (reservations) (H R Ctee) 727
Immigration Tribunal, ex parte Tsang Yau-chiu andothers, R v (HCt) 500
International Confederation of Free Trade Unionsv China (ILO) 736
Kitingan, The Crown Solicitor v Datuk Jeffrey(HCt) 860
Ko Chi-yuen, R v (CA) 152
Kwok Hing-man, R v (CA) 186
L v C (HCt) 388
Lai Shu-wing and others, R v Her Majesty’sCoroner of Hong Kong W B G Banks, ex parte (HCt) 782
Lai Yiu-pui, R v (CA) 115
HKPLR Cases Considered i x
Lau San-ching; R v Apollonia Liu, ex parte (HCt) 400
Lau San-ching; R v Apollonia Liu, ex parte (CA) 415
Le Tu Phuong and another, Re (CA) 159
Le Tu Phuong and another; R v Director of Immigration,ex parte (CA) 337
Leung Kit-chun, R v (CA) 38
Lift Contractors Disciplinary Board, ex parte OtisElevator Company (HK) Ltd; R v (HCt) 168
Li Sum-Wo; R v Medical Council of Hong Kong, ex parte(HCt) 548
Lo Chak-man (No 2), R v (HCt) 466
Loui Wai-po and Ming Pao Holdings Ltd; R v ObsceneArticles Tribunal, ex parte (HCt) 5
Lum Wai-ming, R v (CA) 497
Medical Council of Hong Kong, ex parte Li Sum-Wo, R v(HCt) 548
Ming Pao Newspapers Ltd and others, R v (Mag) 621
Ming Pao Holdings Ltd; R v Obscene Articles Tribunal,ex parte Loui Wai-po and (HCt) 5
Nattrass, Re (Mag) 234
Ng Kit-yuen, R v (CA) 33
Ng Ming, R v (HCt) 908
Ngai Fook-lam, R v Commissioner of CorrectionalServices, ex parte (HCt) 854
Obscene Articles Tribunal, ex parte Hui Siu-yanand others, R v (HCt) 901
Obscene Articles Tribunal, ex parte Loui Wai-po andMing Pao Holdings Ltd; R v (HCt) 5
Cases ReportedHKPLR Cases Reported in Volume 4 Parts 1 to 4 i x
x Cases Considered (1994) 4x Cases Reported in Volume 4 Parts 1 to 4 (1994) 4
Obscene Articles Tribunal, ex parte Sum Mui-tai andanother, R v (HCt) 711
Onshine Securities Limited; R v Disciplinary Committeeof the Stock Exchange of Hong Kong Limited, ex parte(HCt) 523
Otis Elevator Company (HK) Ltd; R v Lift ContractorsDisciplinary Board, ex parte (HCt) 168
Panel on Takeovers and Mergers and another, ex parteCheng Kai-man, William (No 1); R v (HCt) 274
Panel on Takeovers and Mergers and another, ex parteCheng Kai-man, William (No 2); R v (HCt) 285
Panel on Takeovers and Mergers and another, ex parteCheng Kai-man, William (No 2); R v (CA) 298
Pham Si Dung (No 1), Attorney General v (HCt) 799
Pham Si Dung (No 2), Attorney General v (HCt) 813
R v Anastasius Chiu (CA) 475
R v Apollonia Liu, ex parte Lau San-ching (HCt) 400
R v Apollonia Liu, ex parte Lau San-ching (CA) 415
R v Attorney General, ex parte Tsei Kwei-king andanother (HCt) 686 R v Chan Chak-fan (CA) 115
R v China State Construction Engineering Corporation(Mag) 716
R v Choi Kai-on (CA) 105
R v Chong Ah-choi and others (CA) 375
R v Chow Chai-sang and others (DCt) 592
R v Chow Tat-ming, Thomas, ex parte Chan Po-ming,Eric (HCt) 400
R v Chow Tat-ming, Thomas, ex parte Chan Po-ming,Eric (CA) 415
HKPLR Cases Considered x i
R v Chow Tat-ming, Thomas, ex parte Fung Chan-ki,Richard (HCt) 400
R v Chow Tat-ming, Thomas, ex parte Fung Chan-ki,Richard (CA) 415
R v Chu Cheuk-hong (CA) 651
R v Chu Kam-to and another (HCt) 472
R v Commissioner of Correctional Services,ex parte Ngai Fook-lam (HCt) 854
R v Crawley (HCt) 62
R v Disciplinary Committee of the Stock Exchange ofHong Kong Limited, ex parte Onshine Securities Limited(HCt) 523
R v Director of Immigration, ex parte Cheung Kukching(HCt) 542
R v Director of Immigration, ex parte Du Gui-fang (HCt) 562
R v Director of Immigration, ex parte Hai Ho-tak (CA) 324
R v Director of Immigration, ex parte Le Tu Phuong andanother (CA) 337
R v Director of Immigration, ex parte Yin Xiang-jiang(CA) 265
R v Dragages et Travaux (Mag) 601
R v Governor, ex parte Reid (CA) 18
R v Her Majesty’s Coroner of Hong Kong W B GBanks, ex parte Lai Shu-wing and others (HCt) 782
R v Hui Kin-hong, Harry (DCt) 581
R v Immigration Tribunal, ex parte Tsang Yau-chiu andothers (HCt) 500
R v Ko Chi-yuen (CA) 152
Cases ReportedHKPLR Cases Reported in Volume 4 Parts 1 to 4 x i
x i i Cases Considered (1994) 4
R v Kwok Hing-man (CA) 186
R v Lai Yiu-pui (CA) 115
R v Leung Kit-chun (CA) 38
R v Lift Contractors Disciplinary Board, ex parte OtisElevator Company (HK) Ltd (HCt) 168
R v Lo Chak-man (No 2) (HCt) 466
R v Lum Wai-ming (CA) 497
R v Medical Council of Hong Kong, ex parte Li Sum-Wo(HCt) 548
R v Ming Pao Newspapers Ltd and others (Mag) 621
R v Ng Kit-yuen (CA) 33
R v Ng Ming (HCt) 908
R v Obscene Articles Tribunal, ex parte Loui Wai-poand Ming Pao Holdings Ltd (HCt) 5
R v Obscene Articles Tribunal, ex parte Sum Mui-tai andanother (HCt) 711
R v Panel on Takeovers and Mergers and another,ex parte Cheng Kai-man, William (No 1) (HCt) 274
R v Panel on Takeovers and Mergers and another,ex parte Cheng Kai-man, William (No 2) (HCt) 285
R v Panel on Takeovers and Mergers and another,ex parte Cheng Kai-man, William (No 2) (CA) 298
R v So Mun-fung (CA) 318
R v Tai Yiu-wah (CA) 56
R v To Kwan-hang (CA) 356
R v Town Planning Board, ex parte Auburntown Ltd(HCt) 194 R v Tsoi Yiu-cheong (CA) 356
x i i Cases Reported in Volume 4 Parts 1 to 4 (1994) 4
HKPLR Cases Considered xiii
R v Wang Shih-hung (CA) 430
R v Wong Sau-chuen (CA) 129
R v Wong Sik-ming (DCt) 488
R v Wong Wai (Mag) 245
R v Yau Chi-keung (CA) 453
R v Yeung Chi-chiu and Fu Kam-wing (DCt) 677
R v Yu Yem-kin (HCt) 75
Reid; R v Governor, ex parte (CA) 18
Sanguandikul and the Government of the UnitedStates of America and another (No 2), Re Thongchai(CA) 768
So Mun-fung, R v (CA) 318
Sum Mui-tai and another; R v Obscene Articles Tribunal,ex parte (HCt) 711
Tai Yiu-wah, R v (CA) 56
Thanat Phaktiphat and the Government of the UnitedStates of America, Re (HCt) 652
Tin Sau Kwong, Re (Mag) 917
To Kwan-hang, R v (CA) 356
Town Planning Board, ex parte Auburntown Ltd; R v(HCt) 194
Tsang Yau-chiu and others; R v Immigration Tribunal,ex parte (HCt) 500
Tsei Kwei-king and another; R v Attorney General, exparte (HCt) 686
Tsoi Yiu-cheong, R v (CA) 356
Cases ReportedHKPLR Cases Reported in Volume 4 Parts 1 to 4 xiii
x iv Cases Considered (1994) 4
United States of America, Re; Thanat Phaktiphat andthe Government of the (HCt) 652
United States of America and another (No 2), ReThongchai Sanguandikul and the Governmentof the (CA) 768
Wang Shih-hung, R v (CA) 430
Wong Sau-chuen, R v (CA) 129
Wong Sik-ming, R v (DCt) 488
Wong Wai, R v (Mag) 245
Yau Chi-keung, R v (CA) 453
Yeung Chi-chiu and Fu Kam-wing, R v (DCt) 667
Yin Xiang-jiang; R v Director of Immigration, ex parte(CA) 265
Yu Yem-kin, R v (HCt) 75
Yung Tak-lam, Philip v Governor [ChristopherPatten] and others (HCt) 885
x iv Cases Reported in Volume 4 Parts 1 to 4 (1994) 4
HKPLR Cases Considered x v
Cases and Other Materials Considered in
Volume 4 Parts 1 to 4
Cases
Albert and Le Compte v Belgium, European Court of Hu-man Rights, Judgment of 10 February 1983, Series A,No 58, 5 EHRR 533
Alexander Machinery (Dudley) Ltd v Crabtree [1974]ICR120
American Cyanamid Co v Ethicon Ltd [1975] AC396
Amin; R v Immigration Appeal Tribunal, ex parte Mohd[1992] Imm AR 367
Anisminic v Foreign Compensation Commission [1969] 2AC 147ARC Properties Ltd; R v Secretary of State forthe Environment, ex parte, CO/1837/89, Times Law Re-ports, 5 December 1991
Arthur Yates & Co v The Vegetable Seeds Committee(1946) 72 CLR 37
Asghar; R v Governor of Richmond Remand Centre, ex p[1971] 1 WLR 129
Ashingdale v United Kingdom, European Court of Hu-man Rights, Judgment of 28 May 1985, Series A, No93, 7 EHRR 528
Asia Dyeing Co Ltd and others v The Authority (appointedunder the Air Pollution Control Ordinance, Cap 311)[1990] HKLR 263
Associated Provincial Picture Houses Ltd v WednesburyCorporation [1948] 1 KB 223
Attorney General of the Gambia v Jobe [1984] AC 689Attorney General v Bui Thi Ngoan and others (No 1)
(1993) 4 HKPLR 824Attorney General v C C Tse (Estate) Ltd [1982] HKLR
7Attorney General v Charles Cheung Wai-bun (1993) 3
HKPLRAttorney General v Fong Chin-yue (1994) 4 HKPLR 430,
[1995] 1 HKC 21Attorney General v Lee Kwong-kut (1991) 1 HKPLR 337
(Mag)
168
500
274
500
400,768
562
194
908
917
472562
601
832
194
466
186
xv i Cases Considered (1994) 4
Attorney General v Lee Kwong-kut (1992) 2 HKPLR 94,[1992] 2 HKCLR 76 (CA)
Attorney General v Lee Kwong-kut (1993) 3HKPLR 72, [1993] 2 HKCLR 186, [1993]AC 951
Attorney General v Leung Hung-hang (1984) CA, No 19of 1983, 12 March 1983
Attorney General v Lo Chak-man (1993) 3HKPLR 72, [1993] 2 HKCLR 186, [1993]AC 951
Attorney General v Lo Man-cheuk [1980] HKLR 687Attorney General v Ma Chiu-keung [1988] 2 HKLR 64Attorney General v Pham Si Dung (No 1) (1993) 4 HKPLR
799Attorney General v Pham Si Dung (No 2) (1993) 4 HKPLR
813Attorney General, Cho Shu-wah v (1994) 4 HKPLR
514Attorney General, Lai Man-yau v (No 2) [1978] HKLR 546Attorney General, Lam Yuk-ming and others v [1980]
HKLR 815Attorney General; R v Evening Standard Company Lim-
ited, ex parte, The Times, 3 November 1976Attorney-General and Puttick, Puttick v [1979] 3 All ER 463Attorney-General of Hong Kong, Gammon (Hong Kong)
Ltd v [1985] AC 1Attorney-General v Guardian Newspapers [1992] 3 All
ER 38, [1992] 1 WLR 874Attorney-General v Melhado Investment Ltd [1983] HKLR
327
B (A Minor) (Wardship: Medical Treatment); Re [1981] 1WLR 1421
Balint, United States v, 258 US 250, 66 L Ed 604 (1922)Barnet London Borough Council, ex parte Nilish Shah; R
v [1983] 2 AC 309Barnsley and District Licensed Victuallers’ Association
and another; R v Barnsley Licensing Justices, ex parte[1960] 2 QB 161
Bartlam, Evans v [1937] AC 473Beatty v Gillbanks (1882) 9 QBD 308Belfast Corporation v O D Cars Ltd [1960] AC 490Belgian Linguistic Case (No 2), European Court of Hu-
man Rights, Judgment of 23 July 1968, Series A, No6, 1 EHRR 252
186
75,115,186,356,375,581,592,601,621,650,716,813
621
75,115,186,356,375, 581,592,601,621,650,716,813581677
824,837
824,837,908
514686
854
488481
430,601,621
466
686
793430
400
298860356194
601
HKPLR Cases Considered xvii
Belilos v Switzerland, European Court of Human Rights,Judgment of 22 April 1988, Series A, No 132, 10 EHRR466
Bennett v Thatcher; R v Returning Officer for the Parlia-mentary Constituency of Barnet and Finchley, ex parte,1983 Court of Appeal Transcript 237, 3 June 1983,unreported
Bhatia; R v Immigration Appeal Tribunal, ex parte [1985]Imm AR 50
Bodén v Sweden, European Court of Human Rights, Judg-ment of 27 October 1987, Series A, No 125, 10 EHRR 367
Borneman, Wiseman v [1971] AC 297Bostock v Kay (1989) 87 LGR 583Bradshar, Re CO/301/83, 28 February 1984 (unreported)Brauchhausen, In re, 18 March 1986, Queen’s Bench Di-
vision, unreportedBrind; R v Home Secretary, ex parte [1991] 1 AC 696Bui Thi Ngoan and others (No 1), Attorney General v
(1993) 4 HKPLR 824Bukhari; R v Horsham Justices, ex parte (1981) 74 Cr
App R 291Burgess, Butcher and, R v (1991) 7 CRNZ 407Burt v Governor-General [1992] 3 NZLR 672Burton, ex parte Young; R v [1897] 2 QB 468Bushell v Secretary of State for the Environment [1981]
AC 75Butcher and Burgess, R v (1991) 7 CRNZ 407
C (A Minor) (Wardship: Medical Treatment), Re [1989] 3WLR 240
Caldwell, R v [1982] AC 341Calveley; R v Chief Constable of the Merseyside Police, ex
parte [1986] 1 QB 424Calvin v Brownlow Carr [1980] AC 574Camborne Justices and another, ex parte Pearce; R v
[1955] 1 QBCampbell and Fell v United Kingdom, European Court
of Human Rights, Judgment of 28 June 1984, SeriesA, No 80, 7 EHRR 165
Carbolic Smoke Ball Company Limited, The; Carlill v[1892] 1 QB 484
Carlill v The Carbolic Smoke Ball Company Limited[1892] 1 QB 484
Carltona Ltd v Commissioner of Works and others [1943]2 All ER 560
43
400
562
194562
285,298514
860265
832
514652
18285
562652
793782
523,548523
274,285,298
43,168
885
885
129
xviii Cases Considered (1994) 4
Carr, Brownlow; Calvin v [1980] AC 574Carwardine, William v (1833) 5 C & P 566Case No 1500 v China, 270th Report of the Committee on
Freedom of Association, ILO Doc GB.245/5/8 (1990)paras 287–334; 275th Report of the Committee on Free-dom of Association, ILO Doc. GB.248/7/11 (1990), paras323–363; 279th Report of the Committee on Freedom ofAssociation, para. 635)
Case No 1599 v China, 268th Report of the ILO Commit-tee on Freedom of Association, para 691
Cavanagh, R v [1972] 1 WLR 676Chan Chun-ming, R v [1980] HKLR 785Chan Heung-mui and others; R v Director of Immigra-
tion, ex parte (1993) 3 HKPLR 533Charles v Secretary of State for the Home Department
[1992] Imm AR 416Chaulk, R v [1990] 3 SCR 1303, 62 CCC (3d) 193Cheng Kin-ping, R v [1982] HKLR 308Cheung Siu-yu, R v [1991] 2 HKLR 142Cheung Wai-bun, Charles, Attorney General v (1993) 3
HKPLR 62Chicago, Gregory v, 394 US 111, 22 L Ed 2d 134 (1969)Chief Constable of the Merseyside Police, ex parte Calveley;
R v [1986] 1 QB 424China, Case No 1500 v 270th Report of the Committee on
Freedom of Association, ILO Doc GB.245/5/8 (1990)paras 287–334; 275th Report of the Committee on Free-dom of Association, ILO Doc. GB.248/7/11 (1990), paras323–363; 279th Report of the Committee on Freedom ofAssociation, para. 635
China, Case No 1599 v, 268th Report of the ILO Commit-tee on Freedom of Association
Cho Shu-wah v Attorney General (1994) 4 HKPLR 514Cholodniuk, R v (1991) 14 WCB (2d) 628Chong Ah-choi, R v (1994) 4 HKPLR 375Chorley; R v Hendon RDC, ex parte [1933] 2 KB 696City of Sault Ste Marie, R v (1978) 85 DLR (3d) 161Civil Service Appeal Board, ex parte Cunningham; R v
[1991] 4 All ER310Collins v R [1987] 1 SCR 265, 33 CCC (3d) 1Commissioner of Crown Lands v Page [1960] 2 QB 274Commissioner of Inland Revenue and Commissioner of
Police, Lee Ma-loi v [1992] 1 HKLR 200Commissioner of Inland Revenue v Lee Lai-ping (1993) 3
HKPLR 141
523885
736
736677592
324
159601621430
466356
523,548
736
736514592
581,621285430
50075
194
562
194,234
HKPLR Cases Considered x ix
Conway, John Patrick; Re (1990) 91 Cr App R 143Cooper; R v Derry Produces Quota Tribunal and Minister
of Agriculture, Fisheries and Food, ex parte [1993] COD276
Council of Civil Service Unions v Minister for the CivilService [1985] AC 374
Crabtree, Alexander Machinery (Dudley) Ltd v [1974]ICR120
CREEDNZ Inc v Governor-General [1981] 1 NZLR 172Cunningham; R v Civil Service Appeal Board, ex parte
[1991] 4 All ER310
Daganayasi v Minister of Immigration [1980] 2 NZLR130
Daily Mirror, ex parte Smith; R v [1927] 1 KB 845Dallaglio and another; R v Inner West London Coroner,
ex parte [1994] 4 All ER 139Datafin Plc and another; R v Panel on Take-overs and
Mergers, ex parte [1987] QB 815Davis, R v (1992) 13 CRR (2d) 101Dayman, Proudman v (1941) 67 CLR 536De Cubber v Belgium, European Court of Human Rights,
Judgment of 26 October 1984, Series A, No 86, 7 EHRR236
Dempsey, Lee Fan v (1907) 5 CLR 310Derry Produces Quota Tribunal and Minister of Agricul-
ture, Fisheries and Food, ex parte Cooper; R v [1993]COD 276
Dimes v Proprietors of Grand Junction Canal (1852) 3HL Cas 759
Director of Immigration and the Refugee Status ReviewBoard, ex parte Do Giau and others; R v [1992] 1 HKLR287
Director of Immigration v Ho Ming-sai and others, R v(1993) 3 HKPLR 157
Director of Immigration, ex parte Chan Heung-mui andothers; R v (1993) 3 HKPLR 533
Director of Immigration, ex parte Ho Ming-sai and oth-ers; R v (1993) 3 HKPLR 157
Director of Immigration, ex parte Le Tu Phuong; R v(1993) 3 HKPLR 641, [1993] 2 HKLR 303 (HCt)
Director of Immigration, ex parte Pan Ze-yan; R v (1993)3 HKPLR 522 (HCt)
Director of Immigration, ex parte Pan Ze-yan; R v (1993)3 HKPLR 565 (CA)
514
500
562
500194
500
562488
298
274472430
168581
500
285,298
337
542
324
274
337
265
265
x x Cases Considered (1994) 4
Director of Immigration, ex parte So Kam-cheung andothers; R v (1993) 3 HKPLR 253
Director of Public Prosecutions, Gold Star PublicationsLtd v [1981] 2 All ER 257
Director of Public Prosecutions, Myers v [1965] AC 1001Director of Public Prosecutions, Taylor v (1973) 57 Cr
App R 915Director of Public Prosecutions, Woolmington v [1935]
AC 462District Judge Lugar-Mawson, ex parte Tse Sun-mui; R v
(1993) 3 HKPLR 358Do Giau and others; Director of Immigration and the Refu-
gee Status Review Board, ex parte [1992] 1 HKLR 287Dotterweich, United States of America v 320 US 277, 88
L Ed 48 (1943)
East Berkshire Health Authority, ex parte Walsh; R v[1984] 3 WLR 818
Edwards, R v [1975] QB 27Egan, R v (1993) 3 HKPLR 277, [1993] 1 HKCLR 284Esso Petroleum Co Ltd v Mardon [1975] QB 819Ethicon Ltd, American Cyanamid Co v [1975] AC 396Evans v Bartlam [1937] AC 473Evening Standard Company Limited, ex parte The Attor-
ney General; R v, The Times, 3 November 1976Ex parte Sanders, The Times, 30 May 1994Extradition Act 1870, In re; ex parte Treasury Solicitor
[1969] 1 WLR 12
F Hoffman-La Roche & Co and others v Secretary of Statefor Trade and Industry [1975] AC 295
Factortame Ltd and others; R v Secretary of State forTransport, ex parte (No 2) [1991] 1 AC 603
Fong Chin-yue, Attorney General v (1994) 4 HKPLR 430,[1995] 1 HKC 21
Foreign Compensation Commission, Anisminic v [1969] 2AC 147
Fox, Campbell and Hartley v United Kingdom, EuropeanCourt of Human Rights, Judgment of 30 August 1990,Series A, No 182, 13 EHRR 157
France, Salabiaku v, European Court of Human Rights,Judgment of 7 October 1988, Series A, No 141-A, 13EHRR 379
Fung Chuen-kan v Government of the United States [1994]1 HKLR 163
324
901592
356
581,601,716
318
337
430
854581,601
677885274860
488400,415
860
194,274
274
716
400,768
234,621
601
514
HKPLR Cases Considered xx i
Furnell v Whangarei High Schools Board [1973] AC 660
Gaisford, R v [1892] 1 QB 381Gammon (Hong Kong) Ltd v Attorney General of Hong
Kong [1985] AC1Gibbons v Proctor (1891) 64 LT 594Gill v Carson and Nield [1917] 2 KB 674Gillbanks, Beatty v (1882) 9 QBD 308Ginesi v Ginesi [1948] 1 All ER 373Gold Star Publications Ltd v DPP [1981] 2 All ER 257Golder v United Kingdom, European Court of Human
Rights, Judgment of 21 February 1975, Series A, No18, 57 ILR 200, 1 EHRR 524
Gough, R v [1993] AC 646Gould, Le Lievre v [1893] 1 QB 491Government of Israel and others, Schtraks v [1964] AC
556Governor of Brixton Prison, ex parte Kolczynski and oth-
ers; R v [1955] 1 QB 540Governor of Brixton Prison, ex parte Schtraks; R v [1964]
AC 556Governor of Holloway Prison, ex parte Siletti; R v (1902)
20 Cox CC 353Governor of Pentonville Prison and another, ex parte Lee;
R v [1993] 3 All ER 504Governor of Pentonville Prison, ex parte Voets; R v [1986]
1 WLR 470Governor of Richmond Remand Centre, ex p Asghar; R v
[1971] 1 WLR 129Governor of Winson Green Prison, Birmingham, ex parte
Littlejohn; R v [1975] 3 All ER 208Governor, ex parte Reid; R v (1993) 3 HKPLR 430 (HCt)Governor, ex parte Reid; R v (1994) 4 HKPLR 18 (CA)Governor-in-Council, Liew Kar-seng v [1989] 1 HKC 215,
[1989] 1 HKLR 607Gray and others; R v West London Coroner, ex parte [1987]
2 All ER 129Greece, Philis v, European Court of Human Rights, Judg-
ment of 27 August 1991, Series A, No 209, 13 EHRR741
Gregory v Chicago, 394 US 111, 22 L Ed 2d 134 (1969)Guardian Newspapers, Attorney General v [1992] 3 All
ER 38, [1992] 1 WLR 874Guinness Plc; R v Panel on Take-overs and Mergers, ex
parte [1990] 1 QB 146
562
285,298
430,601,62188562
356562901
917274,285,298
885
514,768,860
860
514,768,860
514
652
514
908
860581581
908
782
917356
466
274,523,562
xxii Cases Considered (1994) 4
H v O (Issue of Paternity) [1992] 1 FLR 282Handyside v The United Kingdom (1976) 1 EHRR 737Harrer, R v (1994) 89 CCC (3d) 276Harrow School, Pearlman v [1978] 3 WLR 736Hart, Pepper v [1993] AC 593, [1992] 3 WLR 1032Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]
AC 465Heller & Partners Ltd, Hedley Byrne & Co Ltd v [1964]
AC 465Hendon RDC, ex parte Chorley; R v [1933] 2 KB 696Hill, Robert F; USA vHo Ming-sai and others; R v Director of Immigration, ex
parte (1993) 3 HKPLR 157, [1993] 2 HKLR 29Ho Siu-fei and others, R v [1976] HKLR 190Holyhead General Commissioners, ex parte Roberts; R v
(1982) 56 TC 127Hopkins, In the matter of Hopkins (1858) El Bl & El 101Horsham Justices, ex parte Bukhari; R v (1981) 74 Cr
App R 291Hunt, R v [1974] HKLR 31Hunter v Southam [1984] 2 SCR 145, 11 DLR (4th) 641
Immigration Appeal Tribunal, ex parte Bhatia; R v [1985]Imm AR 50
Immigration Appeal Tribunal, ex parte Khan (Mahmud);R v [1983] 1 QB 790
Immigration Appeal Tribunal, ex parte Kumar; R v [1987]1 FLR 444
Immigration Appeal Tribunal, ex parte Mohd Amin; R v[1992] Imm AR 367
Immigration Appeal Tribunal, Nadeem Tahir v [1989]Imm AR 98
Immigration Tribunal, Lau Tak-pui and others v [1992]1 HKLR 374
Imperial Tobacco Ltd v Attorney General [1981] AC 718Independent Television Commission, ex parte TSW Broad-
casting Ltd; R v, House of Lords, 26 March 1992Inland Revenue Commissioners, ex parte Preston; R v
[1985] 1 AC 835Inner London Education Authority, ex parte Westminster
City Council; R v [1986] 1 WLR 28Inner London Education Authority, Smith and others v
[1978] 1 All ER 411Inner West London Coroner, ex parte Dallaglio and an-
other; R v [1994] 4 All ER 139
388621652400
601,813
885
885265768
274,542,562652
285285
51458175
562
500,562
562
500
562
500,548,5625
562
523,548
837
274
298
HKPLR Cases Considered xxiii
Ireland, Purcell v (1991) 12 HRLJ 254
J L Hamman, R v (1863) N R 140Jeffs v New Zealand Dairy Production & Marketing Board
[1967] 1 AC 551Jobe, Attorney General of the Gambia v [1984] AC 689John Patrick Conway, Re (1990) 91 Cr App R 143Judge of the City of London Court, The; R v [1892] 1 QB 273
Kaplan v United Kingdom, European Commission of Hu-man Rights, Report of 17 July 1980, Application No7598/76, 21 D & R 5, 4 EHRR 64
Katz v United States, 389 US 347, 19 L Ed 2d 576 (1967)Kay, Bostock v (1989) 87 LGR 583Khan; R v Immigration Appeal Tribunal, ex parte
(Mahmud) [1983] 1 QB 790Khawaja v Secretary of State for the Home Department
[1984] AC 74Khuc The Loc, In re Tran Quoc Cuong and [1991] 2 HKLR
312Kioa v Minister for Immigration and Ethnic Affairs (1985)
159 CLR 550Kolczynski and others; R v Governor of Brixton Prison, ex
parte [1955] 1 QB 540Kong Cheuk Kwan, R v (1986) 82 Crim App R 18Kumar; R v Immigration Appeal Tribunal, ex parte [1987]
1 FLR 444Kuruma v R [1955] 1 All ER 236
Ladd v Marshall [1954] 1 WLR 1489Lai Man-yau v Attorney General (No 2) [1978] HKLR
546Lam Yuk-ming and others v Attorney General [1980]
HKLR 815Lambeth Metropolitan Stipendiary Magistrate, ex parte
McComb; R v [1983] 1 QB 551Lancashire County Council, ex parte Huddleston, R v
[1986] 2 All ER941Langborger v Sweden, European Court of Human Rights,
Judgment of 22 June 1989, Series A, No 155, 22 June1989, 12 EHRR 416
Lannon and others, Metropolitan Properties Co (FGC)Ltd v [1969] 1 QB 577
Lau Shiu-wah, R v (1991) 1 HKPLR 202, [1992] HKDCLR11
621
285
194601514601
5,194,91775
285,298
500,562
562
337
562
860782
56275
768
686
854
472
500
43
285,298
457
xxiv Cases Considered (1994) 4
Lau Tak-pui and others v Immigration Tribunal [1992] 1HKLR 374
Lawrence, R v (1981) 73 Crim App R 1Le Lievre v Gould [1893] 1 QB 491Le Tu Phuong; R v Director of Immigration, ex parte
(1993) 3 HKPLR 641, [1993] 2 HKLR 303 (HCt)Leary v United States, 395 US 6, 23 L Ed 2d 57 (1969)Lee Fan v Dempsey (1907) 5 CLR 310Lee Kwong-kut, Attorney General v (1993) 3
HKPLR 72, [1993] 2 HKCLR 186, [1993]AC 951
Lee Ma-loi v Commissioner of Inland Revenue and Com-missioner of Police [1992] 1 HKLR 200
Lee; R v Governor of Pentonville Prison and another, exparte [1993] 3 All ER 504
Leeson v General Council of Medical Education and Reg-istration (1889) 43 Ch 366
Leigh v Cole (1853) 6 Cox CC 329Leung Hung-hang, Attorney General v (1984) CA, No 19
of 1983, 12 March 1983Li Wing-tat and others, R v [1991] 1 HKLR 731Liangsiriprasert v Government of the United States of
America and Another [1990] 3 WLR 606Liew Kar-seng v Governor-in-Council [1989] 1 HKC 215,
[1989] 1 HKLR 607Linskey, Harford v [1899] 1 QB 852Littlejohn; R v Governor of Winson Green Prison, Bir-
mingham, ex parte [1975] 3 All ER 208Lloyd and others v McMahon [1987] AC625Lo Chak-man , Attorney General v; (1993) 3
HKPLR 72, [1993] 2 HKCLR 186, [1993]AC 951
Lo Chak-man, R v (1992) 2 HKPLR 220 (HCt)Lo Man-cheuk, Attorney General v [1980] HKLR 687Lonrho Plc; R v Secretary of State for Trade and Indus-
try, ex parte [1989] 1 WLR525Luff, R v (1992) 11 CRR (2d) 356
Ma Chiu-keung, Attorney General v [1988] 2 HKLR 64Machiya, Takeshi; R v [1990] 1 HKC 73Mackman, O’Reilly v [1983] 2 AC 237Mahadervan v Mahadervan [1963] 2 WLR 271Maher v Musson (1934) 52 CLR 100Man Wai-keung (No 2), R v (1992) 2 HKPLR 164, [1992]
1 HKCLR 89
500,548,562782885
337115,375
581
75,115,186,356,375,581,592,601,621,650,716,813
562
652
16875
621677
652
908400
860500,562
75,115,186,356,375,581,592,601,621,650,716,813466581
500472
677677768562430
917
HKPLR Cases Considered xxv
Manchanda v Medical Eye Centre Assn (1986) 131 Sol J47
Mardon, Esso Petroleum Co Ltd v [1975] QB 819Marshall, Ladd v [1954] 1 WLR 1489Martin v Watson [1994] 2 All ER 606McCarthy & Stone (Developments) Ltd; R v Richmond
Upon Thames London Borough Council, ex parte [1991]3 WLR 941
McCarthy; R v Sussex Justices, ex parte [1924] 1 KB 256McComb; R v Lambeth Metropolitan Stipendiary Magis-
trate, ex parte [1983] 1 QB 551McMahon, Lloyd and others v [1987] AC625Medical Eye Centre Assn, Manchanda v (1986) 131 Sol J 47Melhado Investment Ltd, Attorney-General v [1983] HKLR
327Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1
QB 577Millar v Ministry of Transport (1986) 2 CRNZ 216Minister for Immigration and Ethnic Affairs, Kioa v (1985)
159 CLR 550Minister for the Civil Service, Council of Civil Service
Unions v [1985] AC 374Minister of Agriculture, Fisheries and Food and others,
Padfield and others v [1968] AC997Minister of Home Affairs v Fisher [1980] AC 319Minister of Immigration, Daganayasi v [1980] 2 NZLR
130Minister of Immigration, Tavita v [1994] NZAR 116Ministry of Transport, Millar v (1986) 2 CRNZ 216Mirror Group Newspapers, Rantzen v [1993] 3 WLR 953Mok Wei-tak, R v [1990] 2 AC 333Motor Vehicle Act, Reference re Section 94(2) of the
[1985] 2 SCR 486, (1985) 24 DLR (4th) 536, 23 CCC(3d) 289
Mughal; R v Secretary of State for the Home Department,ex parte [1974] 1 QB 313
Musson, Maher v (1934) 52 CLR 100Myers v Director of Public Prosecutions [1965] AC 1001
Nadeem Tahir v Immigration Appeal Tribunal [1989]Imm AR 98
Nagy v Weston [1965] 1 WLR 280Nattrass, Re (1994) 4 HKPLR 234Ng Kam-fuk, R v (1992) 2 HKPLR 456, [1993] HKDCLR
29
523885768
285,298
548298
472500,562
523
686
168,285,298430
562
562
500194
562265430265581
430
562430592
56262
917
677
xxvi Cases Considered (1994) 4
Ng Wai-chung, Re (1983) HCt, MP 2155 of 1983, 12 Oc-tober 1983, Rhind J
Ngan Kai-shui, R v [1973] HKLR 161Nilish Shah; R v Barnet London Borough Council, ex
parte [1983] 2 AC 309Norton Tool Co Ltd v Tewson [1973] 1 WLR45Number 1 Poultry Ltd and others, Save Britain’s Herit-
age v [1991] 1 WLR153
O’Reilly v Mackman [1983] 2 AC 237O, H v (Issue of Paternity) [1992] 1 FLR 282Oakes, R v [1959] 2 QB 350Oakes, R v [1986] 1 SCR 103, 24 CCC (3d) 321, 26 DLR
(4th) 200Oldroyd, Rands v [1959] 1 QB 204Open Door Counselling and Dublin Well Woman v Ire-
land, European Court of Human Rights, Judgment of29 October 1992, Series A, No 246, 15 EHRR 244
Osmond, Public Service Board of New South Wales v(1985) 159 CLR 656
Padfield and others v Minister of Agriculture, Fisheriesand Food and others [1968] AC997
Pan Ze-yan; R v Director of Immigration, ex parte (1993)3 HKPLR 522 (HCt)
Pan Ze-yan; R v Director of Immigration, ex parte (1993)3 HKPLR 565 (CA)
Panel on Take-overs and Mergers, ex parte Datafin Plcand another; R v [1987] QB 815
Panel on Take-overs and Mergers, ex parte Guinness Plc;R v [1990] 1 QB 146, [1989] 1 All ER 509
Parsley, Sweet v [1970] AC 132Pearce; R v Camborne Justices and another, ex parte
[1955] 1 QBPepper v Hart [1993] AC 593, [1992] 3 WLR 1032Pham Si Dung (No 1), Attorney General v (1993) 4 HKPLR
799Pham Si Dung (No 2), Attorney General v (1993) 4 HKPLR
813Philis v Greece, European Court of Human Rights, Judg-
ment of 27 August 1991, Series A, No 209, 13 EHRR741
Piersack v Belgium, European Court of Human RightsJudgment of 1 October 1982, Series A, No 53, 5 EHRR169
234621
400500
500
768388601
601285
5
500,548,562
129,500
265
265
274
274,523,562430,621
274,285,298194,601,813
824,837
824,837,908
917
168
HKPLR Cases Considered xxvii
Preston-Jones v Preston-Jones [1951] AC 391Preston; R v Inland Revenue Commissioners, ex parte
[1985] 1 AC 835Price v Humphries [1958] 2 QB 353Proctor, Gibbons v (1891) 64 LT 594Proprietors of Grand Junction Canal, Dimes v (1852) 3
HL Cas 759Proudman v Dayman (1941) 67 CLR 536Public Service Board of New South Wales v Osmond (1985)
159 CLR 656Purcell v Ireland (1991) 12 HRLJ 254Puttick v Attorney-General and Puttick [1979] 3 All ER
463
R v Angel (1968) 52 Cr App R 280R v Barnet London Borough Council, ex parte Nilish Shah
[1983] 2 AC 309R v Barnsley Licensing Justices, ex parte Barnsley and
District Licensed Victuallers’ Association and another[1960] 2 QB 167
R v Broadhurst (1918) 13 Cr App R 125R v Burgess, Butcher and (1991) 7 CRNZ 407R v Burton, ex parte Young [1897] 2 QB 468R v Butcher and Burgess (1991) 7 CRNZ 407R v Caldwell [1982] AC 341R v Camborne Justices, ex parte Pearce [1955] 1 QB 41R v Cavanagh [1972] 1 WLR 676R v Chan Chun-ming [1980] HKLR 785R v Chan Fu-kui [1986] HKLR 967R v Chan Kein-wing(1993) 3 HKPLR 598, [1994] 1
HKLR41R v Chaulk [1990] 3 SCR 1303, 62 CCC (3d) 193R v Cheng Kin-ping [1982] HKLR 308R v Cheung Siu-yu [1991] 2 HKLR 142R v Chief Constable of the Merseyside Police, ex parte
Calveley [1986] 1 QB 424R v Chief Constable, ex parte Calveley [1986] 1 QB 424R v Chief Immigration Officer, Heathrow Airport, ex parte
Suresh Kumar, The Times, 22 April 1986R v Cholodniuk (1991) 14 WCB 2d 628R v Chong Ah-choi (1994) 4 HKPLR 375R v City of Sault Ste Marie (1978) 85 DLR (3d) 161R v Civil Service Appeal Board, ex parte Cunningham
[1991] 4 All ER310R v Collins [1987] 1 SCR 265, 33 CCC (3d) 1
562
523,54833
885
285,298430
500,548,562621
481
33
400
168,29838
652285652782
274,285,29867759218
56105,601
621430
548523
159592
581,621430
50075
xxviii Cases Considered (1994) 4
R v Currency Brokers (HongKong) Ltd [1987] HKLR 1136R v Daily Mirror, ex parte Smith [1927] 1 KB 845R v Davis (1992) 13 CRR (2d) 101R v Derry Produces Quota Tribunal and Minister of Agri-
culture, Fisheries and Food, ex parte Cooper [1993]COD 276
R v Director of Immigration and the Refugee Status ReviewBoard, ex parte Do Giau and others [1992] 1 HKLR 287
R v Director of Immigration, ex parte Chan Heung-muiand others (1993) 3 HKPLR 533
R v Director of Immigration, ex parte Ho Ming-sai andothers (1993) 3 HKPLR 157
R v Director of Immigration, ex parte Le Tu Phuong (1993)3 HKPLR 641, [1993] 2 HKLR 303 (HCt)
R v Director of Immigration, ex parte Pan Ze-yan (1993)3 HKPLR 522 (HCt)
R v Director of Immigration, ex parte Pan Ze-yan (1993)3 HKPLR 565 (CA)
R v Director of Immigration, ex parte So Kam-cheungand others (1993) 3 HKPLR 253
R v District Judge Lugar-Mawson, ex parte Tse Sun-mui(1993) 3 HKPLR 358
R v East Berkshire Health Authority, ex parte Walsh[1984] 3 WLR 818
R v Edwards [1975] QB 27R v Egan (1993) 3 HKPLR 277, [1993] 1 HKCLR 284R v Evening Standard Company Limited, ex parte The
Attorney General, The Times, 3 November 1976R v Faisal (1993) 3 HKPLR 220R v Gaisford [1892] 1 QB 381R v Gough [1993] AC 646R v Governor of Brixton Prison, ex parte Kolczynski and
others [1955] 1 QB 540R v Governor of Brixton Prison, ex parte Schtraks [1964]
AC 556R v Governor of Holloway Prison, ex parte Siletti (1902)
20 Cox CC 353R v Governor of Pentonville Prison and another, ex parte
Lee [1993] 3 All ER 504R v Governor of Pentonville Prison, ex parte Voets [1986]
1 WLR 470R v Governor of Richmond Remand Centre, ex p Asghar
[1971] 1 WLR 129R v Governor of Winson Green Prison, Birmingham, ex
parte Littlejohn [1975] 3 All ER 208
186488472
500
337
324
274,542,562
159,337
265
265
324
318
854581,601
677
48856
285,29843,168,274,285,298
860
514,768,824
514
652
514
908
860
HKPLR Cases Considered xxix
R v Governor, ex parte Reid (1993) 3 HKPLR 430 (HCt)R v Governor, ex parte Reid (1994) 4 HKPLR 18 (CA)R v Harrer (1994) 89 CCC (3d) 276R v Hendon RDC, ex parte Chorley [1933] 2 KB 696R v Ho Siu-fei and others [1976] HKLR 190R v Holyhead General Commissioners, ex parte Roberts
(1982) 56 TC 127R v Horsham Justices, ex parte Bukhari (1981) 74 Cr
App R 291R v Hui Lan-chak; R v Leung Kwok-sing (1993) 3 HKPLR
184R v Hunt [1974] HKLR 31R v Immigration Appeal Tribunal, ex parte Bhatia [1985]
Imm AR 50R v Immigration Appeal Tribunal, ex parte Khan
(Mahmud) [1983] 1 QB790R v Immigration Appeal Tribunal, ex parte Kumar [1987]
1 FLR 444R v Immigration Appeal Tribunal, ex parte Mohd Amin
[1992] Imm AR 367R v Independent Television Commission, ex parte TSW
Broadcasting Ltd, House of Lords, 26 March 1992R v Inland Revenue Commissioners, ex parte Preston
[1985] 1 AC 835R v Inner London Education Authority, ex parte West-
minster City Council [1986] 1 WLR 28R v Inner West London Coroner, ex parte Dallaglio and
another [1994] 4 All ER 139R v J L Hamman (1863) N R 140R v Judge of the City of London Court, The [1892] 1 QB 273R v Keyn (1876) 2 Ex D 63R v Ko Chi-yuen (1992) 2 HKPLR 311, [1993] 2 HKCLR
101 (HCt)R v Kong Cheuk Kwan (1986) 82 Crim App R 18R v Kuruma [1955] All ER 236R v Lam Chi-ming [1991] 2 HKLR 191R v Lam Shui-kam [1968] HKLR 25R v Lambeth Metropolitan Stipendiary Magistrate, ex
parte McComb [1983] 1 QB 551R v Lancashire County Council, ex parte Huddleston
[1986] 2 All ER941R v Lau Shiu-wah (1991) 1 HKPLR 202, [1992] HKDCLR
11R v Law Society, ex parte Curtin, The Times, 3 December
1993
581581652285652
285
514
33,129581
562
500,562
562
500
562
523,548
837
298285601129
152782757533
472
500
457
129
xxx Cases Considered (1994) 4
R v Lawrence (1981) 73 Crim App R 1R v Leatham (1861) 8 Cox C C 198R v Li Wing-tat and others [1991] 1 HKLR 731R v Lo Chak-man(1992) 2 HKPLR 220R v Luff (1992) 11 CRR (2d) 356R v Man Bing-chou (1993) CA, Crim App No 383 of 1990,
30 March 1993R v Man Wai-keung (No 2) (1992) 2 HKPLR 164, [1992]
2 HKCLR 207R v Marsh and others (1935) 25 Cr App R 1949R v Mitchell[1977] 1 WLR753R v Mok Wei-tak [1990] 2 AC 333R v Ng Hon-kit and another [1991] 1 HKLR 56R v Ng Kam-fuk (1992) 2 HKPLR 456, [1993] HKDCLR
29R v Ng Wai-ming [1980] HKLR 228R v Ngan Kai-shui [1973] HKLR 161R v Noble (1984) 14 DLR (4th) 216, 16 CCC (3d) 146R v Oakes [1959] 2 QB 350R v Oakes [1986] 1 SCR 103, 24 CCC (3d) 321, 26 DLR
(4th) 200R v Obscene Articles Tribunal, ex parte Freeman Hold-
ings Ltd (1993) 3 HKPLR 604R v Panel on Take-overs and Mergers, ex parte Datafin
Plc and another [1987] QB 815R v Panel on Take-overs and Mergers, ex parte Guinness
Plc [1990] 1 QB 146R v Pearce (1981) 72 Cr App R 295R v Quinn [1990] Crim LR 581R v Racette (1988) 48 DLR (4th) 412, 39 CCC (3d) 289R v Ramsden [1972] Crim LR 547R v Rand and others (1866) LR 1 QB 229R v Returning Officer for the Parliamentary Constituency
of Barnet and Finchley, ex parte Bennett v Thatcher,unreported, 1983 Court of Appeal Transcript 237, 3June 1983
R v Richmond Upon Thames London Borough Council,ex parte McCarthy & Stone (Developments) Ltd [1991]3 WLR 941
R v Robinson (No 2) (1991) 65 ALJR 644, 55 A Crim R 318R v Secretary of State for the Environment, ex parte ARC
Properties Ltd, CO/1837/89, Times Law Reports, 5 De-cember 1991
R v Secretary of State for the Home Department, ex parteBrind [1991] 1 AC 696
78275
677466472
38
62,91718618658118
67775
62175
601
601
5
274
274,523,5621157575
186285,298
400
54838
562
265
HKPLR Cases Considered xxxi
R v Secretary of State for the Home Department, ex parteMughal [1974] 1 QB 313
R v Secretary of State for the Home Department, ex parteOladehinde [1991] 1 AC 254
R v Secretary of State for the Home Department, ex parteSivakumaran [1988] 1 AC 958
R v Secretary of State for the Home Department, ex parteTurkoglu [1988] QB 398
R v Secretary of State for Trade and Industry, ex parteLonrho Plc [1989] 1 WLR525
R v Secretary of State for Transport, ex parte FactortameLtd and others (No 2) [1991] 1 AC 603
R v Securities and Futures Commission, ex parte LeeKwok-hung (1993) 3 HKPLR 39, [1993] 2 HKLR51
R v Shun Shing Construction & Engineering Co Ltd [1993]1 HKCLR 69
R v Sin Yau-ming (1991) 1 HKPLR 88, [1992] 1 HKCLR127
R v So Man-king [1989] 1 HKLR 142R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256R v Sykes (1875) 1 QBD52R v Sze Tak-hung [1991] 1 HKLR 109R v Takeshi Machiya [1990] 1 HKC 73R v The Cheltenham Commissioners (1841) 1 QB 467R v The Manchester, Sheffield and Lincolnshire Railway
Company (1867) LR 2 QB 336R v Thomas [1990] 1 SCR 713, (1990) 75 CR (3d) 352R v Tolson (1889) 23 QBD 168R v Town Planning Board, ex parte Auburntown Ltd
(1994) 4 HKPLR 194R v Tran Viet Van (1992) 2 HKPLR 237, [1992] 2 HKCLR
184R v Wan Siu-kei (1993) 3 HKPLR 228R v Watson [1980] 2 All ER 293R v West London Coroner, ex parte Gray and others [1987]
2 All ER 129R v Whyte [1988] 2 SCR 3, 51 DLR (4th) 481, 42 CCC
(3d) 97R v Wigman [1987] 1 SCR 246, 33 CCC (3d) 97R v William Hung (1993) 3 HKPLR 328R v Wong Hiu-chor (1992) 2 HKPLR 288, [1993] 1 HKCLR
107R v Wong Yan-fuk (1993) 3 HKPLR 341R v Wyatt (1992) 12 CRR (2d) 328
562
129
337
159
500
274
75
601
75,105,194,356,457,581,621,917245
168,29850018
677285
285186430
43
49756
592
782
601186466
105152472
xxxii Cases Considered (1994) 4
R v Yu Wai-wut(1994) HCt, Mag App 1012 of 1993, 22March 1994, Jones J
Rand and others, R v (1866) LR 1 QB 230Rands v Oldroyd [1959] 1 QB 204Rantzen v Mirror Group Newspapers [1993] 3 WLR 953Re B (A Minor) (Wardship: Medical Treatment) [1981] 1
WLR 1421Re C (A Minor) (Wardship: Medical Treatment) [1989] 3
WLR 240Reference re Section 94(2) of the Motor Vehicle Act
[1985] 2 SCR 486, (1985) 24 DLR (4th) 536, 23 CCC(3d) 289
Reid, Re (1991) 1 HKPLR 275Reid; R v Governor, ex parte (1993) 3 HKPLR 430 (HCt)Reid; R v Governor, ex parte (1994) 4 HKPLR 18 (CA)Returning Officer for the Parliamentary Constituency of
Barnet and Finchley, ex parte Bennett v Thatcher; R v,unreported, 1983 Court of Appeal Transcript 237, 3June 1983
Richmond Upon Thames London Borough Council, exparte McCarthy & Stone (Developments) Ltd; R v [1991]3 WLR 941
Rio Tinto Zinc Corporation and others v WestinghouseElectric Corporation [1978] AC 547
Roberts; R v Holyhead General Commissioners, ex parte(1982) 56 TC 127
S, In re (A Barrister) [1981] 1 QB 683Salabiaku v France, European Court of Human Rights,
Judgment of 7 October 1988, Series A, No 141-A, 13EHRR 379
Sanders, Ex parte, The Times, 30 May 1994Sanguandikul, Re (1992) 2 HKPLR 619, [1994] 1 HKCLR
1Save Britain’s Heritage v Number 1 Poultry Ltd and oth-
ers [1991] 1 WLR153Schtraks v Government of Israel and others [1964] AC
556Schtraks; R v Governor of Brixton Prison, ex parte [1964]
AC 556Secretary of State for the Environment, Bushell v [1981]
AC 75Secretary of State for the Environment, ex parte ARC
Properties Ltd; R v, CO/1837/89, Times Law Reports,5 December 1991
186285,298
285265
793
793
430581581581
400
548
860
285
523
601400,415
652
500
514,768,860
514,768,860
562
562
HKPLR Cases Considered xxxiii
562
562
265
337
500
274
274
430
601
514
75,105,194,356,457,581,621,917194
337
274488
652
324
194
621298
652430,621
500
637
Secretary of State for the Home Department, ex parteMughal; R v [1974] 1 QB 313
Secretary of State for the Home Department, Khawaja v[1984] AC 74
Secretary of State for the Home Department, ex parteBrind; R v [1991] 1 AC 696
Secretary of State for the Home Department, ex parteSivakumaran; R v [1988] 1 AC 958
Secretary of State for Trade and Industry, ex parte LonrhoPlc; R v [1989] 1 WLR525
Secretary of State for Trade and Industry, F Hoffman-LaRoche & Co AG and others v [1975] AC 295
Secretary of State for Transport, ex parte Factortame Ltdand others (No 2); R v [1991] 1 AC 603
Section 94(2) of the Motor Vehicle Act, Reference re[1985] 2 SCR 486, (1985) 24 DLR (4th) 536, 23 CCC(3d) 289
Shun Shing Construction & Engineering Co Ltd, R v[1993] 1 HKCLR 69
Siletti; R v Governor of Holloway Prison, ex parte (1902)20 Cox CC 353
Sin Yau-ming, R v (1991) 1 HKPLR 88, [1992] 1 HKCLR127
Singway Co Ltd v Attorney General [1974] HKLR 275Sivakumaran; R v Home Secretary, ex parte [1988] 1 AC
958Smith and others v Inner London Education Authority
[1978] 1 All ER 411Smith; R v Daily Mirror, ex parte [1927] 1 KB 845Smittachartch, Suthipong and the United States of
America, Re (1992) 2 HKPLR 249, [1993] 1 HKLR 93So Kam-cheung and others; Director of Immigration, ex
parte (1993) 3 HKPLR 253Southend-On-Sea Corporation v Hodgson [1962] 1 QB
416Sunday Times v The United Kingdom (1979) 2 EHRR
245Sussex Justices, ex parte McCarthy; R v [1924] 1 KB 256Suthipong Smittachartch and the United States of
America, Re (1992) 2 HKPLR 249, [1993] 1 HKLR 93Sweet v Parsley [1970] AC 132Sykes, R v (1875) 1 QBD525
Tam Hing-yee v Wu Tai-wai (1991) 1 HKPLR 261, [1992]1 HKLR 185
xxxiv Cases Considered (1994) 4
Tavita v Minister of Immigration [1994] NZAR 116Taylor v DPP (1973) 57 Cr App R 915Tewson, Norton Tool Co Ltd v [1973] 1 WLR45Thatcher v, Bennett; R v Returning Officer for the Parlia-
mentary Constituency of Barnet and Finchley, ex parte,unreported, 1983 Court of Appeal Transcript 237, 3June 1983
The Authority (appointed under the Air Pollution ControlOrdinance, Cap 311), Asia Dyeing Co Ltd and others v[1990] HKLR 263
The Cheltenham Commissioners, R v (1841) 1 QB 467The Manchester, Sheffield and Lincolnshire Railway Com-
pany, R v (1867) LR 2 QB 336Thomson Newspapers v Director of Investigation [1990] 1
SCR 425, 67 DLR (4th) 161Tolson, R v (1889) 23 QBD 168Tran Quoc Cuong and Khuc The Loc, In re [1991] 2 HKLR
312Tran Viet Van, R v (1992) 2 HKPLR 237, [1992] 2 HKCLR
184Tre Traktörer Aktiebolag v Sweden, European Court of
Human Rights, Judgment of 7 July 1989, Series A, No159, 13 EHRR 309
Treasury Solicitor; In re Extradition Act 1870, ex parte[1969] 1 WLR 12
Tse Sun-mui; R v District Judge Lugar-Mawson, ex parte(1993) 3 HKPLR 358
TSW Broadcasting Ltd; R v Independent Television Com-mission, ex parte, House of Lords, 26 March 1992
Turkoglu; R v Secretary of State for the Home Depart-ment, ex parte [1988] QB 398
United Kingdom, Ashingdale v, European Court of Hu-man Rights, Judgment of 28 May 1985, Series A, No93, 7 EHRR 528
United Kingdom; Fox, Campbell and Hartley v (1990) 13EHRR 157
United Kingdom, Golder v, European Court of HumanRights, Judgment of 21 February 1975, Series A, No18, 57 ILR 200, 1 EHRR 524
United Kingdom, Handyside v (1976) 1 EHRR 737United Kingdom, Kaplan v, European Commission of Hu-
man Rights, Report of 17 July 1980, Application No7598/76, 21 D & R 5, 4 EHRR 64
United Kingdom, Sunday Times v (1979) 2 EHRR 245
265256500
400
472285
285
75430
159,337
497
194
860
129,318
562
159
917
621
917621
917621
HKPLR Cases Considered xxxv
United States v Balint, 258 US 250, 66 L Ed 604 (1922)United States v Dotterweich, 320 US 277, 88 L Ed 48
(1943)United States, Government of; Fung Chuen-kan v [1994]
1 HKLR 163United States v Gainey, 380 US 63, 13 L Ed 2d 658
(1965)United States v Robert F HillUnited States, Leary v, 395 US 6, 23 L Ed 2d 57 (1969)United States, Government of the, and another;
Liangsiriprasert v [1990] 3 WLR 606United States of America, Suthipong Smittachartch and
the; Re (1992) 2 HKPLR 249, [1993] 1 HKLR 93652
Voets; R v Governor of Pentonville Prison, ex parte [1986]1 WLR 470
Walsh; R v East Berkshire Health Authority, ex parte[1984] 3 WLR 818
Watson, Martin v [1994] 2 All ER 606Watson, R v [1980] 2 All ER 293Wednesbury Corporation, Associated Provincial Picture
Houses Ltd v [1948] 1 KB 223West London Coroner, ex parte Gray and others; R v [1987]
2 All ER 129Westinghouse Electric Corporation, Rio Tinto Zinc Cor-
poration and others v [1978] AC 547Westminster City Council; R v Inner London Education
Authority, ex parte [1986] 1 WLR 28Whangarei High Schools Board, Furnell v [1973] AC 660Whyte, R v [1988] 2 SCR 3, 51 DLR (4th) 481, 42 CCC
(3d) 97William Hung, R v (1993) 3 HKPLR 328Williams v Carwardine (1883) 5 C & P 566Wiseman v Borneman [1971] AC 297Wong Pun-cheuk v Medical Council of Hong Kong and
the Attorney General [1964] HKLR 47Woolmington v DPP [1935] AC 462Wright v Nicholson [1970] 1 WLR 142Wu Tai-wai, Tam Hing-yee v (1991) 1 HKPLR 261, [1992]
1 HKLR 185Wyatt, R v (1992) 12 CRR (2d) 328
430
430
514
105768375
652
652
514
854285,298
592
562
782
860
837562
601466885562
168581,601,716
115
637472
xxxvi Cases Considered (1994) 4
Hong Kong Legislation
Affiliation Proceedings Ordinance (Cap 183)s 4 388s 5 388
Air Pollution Control Ordinance (Cap 311)s 9 472
Boundary and Election Commission Ordinance (Cap 432)s 7 400s 7(1)(b) 415s 7(1)(j) 415s 24(1) 415
Boundary and Election Commission (Electoral Procedure)(Geographical Constituencies) Regulations (Cap 432, sub leg)reg 9(3)(c) 415reg 9(7) 400,415
Buildings Ordinance (Cap 123)s 14(1) 43s 16 194s 21(1) 43s 24(1) 43s 26 43s 26A 43s 27(1) 43s 27(2) 43s 27A 43s 40(1) 43s 43(2) 43s 44 43s 45 43First Schedule, r 1 43First Schedule, r 2 43
Civil Service Regulations, reg 1291 854Control of Obscene and Indecent Articles Ordinance (Cap 390)
s 2 5s 10(1) 5s 15(1) 5s 15(5) 5s 18 5s 19(2) 5s.21(1)(b) 901s 22 5s 24 5
xxxvi Hong Kong Legislation Considered (1994) 4
HKPLR Cases Considered xxxvii
s 27 5s.29(1) 901s 29(2) 5s.30 901s 33 5
Control of Obscene and Indecent Articles Rules (Cap 390 sub leg)r 7(2) 5
Crimes (Amendment) Ordinance 1992 (No 49 of 1992) 453Crimes Ordinance (Cap 200)
s 23(c) 318s 23A 33s 23B 33s 23C 33,115s 23C(2) 129s 75 56s 76(1) 56,453s 76(2) 56,453s 76A(1) 453s 100 56
Criminal Law (Amendment) Ordinance 1990 (No 89 of 1990) 33s 5 129
Criminal Procedure Ordinance (Cap 221)s 37 813s 51(2) 115s 63 245s 65B 245s 65C 245s 65D 813s 81B 33s 82 318s 83A 115s 83E 318s 83E(1) 318s 90 621s 91 621s 122 488s 123 488
Dangerous Drug (Amendment) (No 2) Ordinance (No 52 of 1992)s 8 497
Dangerous Drugs Ordinance (Cap 134)s 6(1)(a) 152s 7 497s 7(1) 581s 47(1) 497
HKPLR Hong Kong Legislation Considered xxxvii
xxxviii Cases Considered (1994) 4
s 47(2) 497s 52 75
Dangerous Drugs Regulations (Cap 134 sub leg)reg 15 168
Dental Registration Ordinance (Cap 156) 43District Court Ordinance (Cap 336)
s 20 488s 60(1) 500s 83 115
Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405)s 3(6) 152s 4(2) 152s 4(3) 152s 25 466
Dutiable Commodities Ordinance (Cap 109) 716s 2(1) 430s 3 430s 17(1) 430s 17(2) 430s 17(6) 430s 17(8) 430s 40 430s 46 430
Electoral Provisions (Procedure) Regulations (Cap 367, sub leg)reg 3 415reg 6 415
Electoral Provisions Ordinance (Cap 367)s 18(2) 400,415s 24 415s 30 400,415s 30(1)(a)(iii) 415s 30(2) 415s 31 400,415s 37 400s 37(1) 415s 37(1)(a) 400s 37(1)(b) 400s 37(1)(c) 415
Evidence Ordinance (Cap 8)s 22A(1) 592s 22A(2) 592s 22A(3) 592s 22A(7) 592s 37 768
xxxviii Hong Kong Legislation Considered (1994) 4
HKPLR Cases Considered xxxix
s 74 860s 77B(3) 860s 81(1) 837
Fixed Penalty (Criminal Proceedings) Ordinance (Cap 240)s 3A(4) 62s 3B(4) 62
Fixed Penalty (Traffic Contraventions) Ordinance (Cap 237)s 3(2) 62s 4 62s 7(1) 62s 14(1) 62s 14(2) 62s 20(1) 62s 23(1) 62s 24 62
Gambling Ordinance (Cap 148)s 2 105s 19 105s 23 105
Guardianship of Minors Ordinance (Cap 13)s 10 388s 21 388
Hong Kong Bill of Rights Ordinance (Cap 383) 415,400s 2(3) 592s 3 621s 3(1) 592,917s 3(2) 43,168, 186, 243,375,430,457,581,601,650,917s 6 466,488s 6(1) 75s 7 481,637s 7(1) 637s 8 (Hong Kong Bill of Rights) 481
art 1 324art 3 854art 5 18,75art 5(1) 234,430,813art 5(3) 234art 8 234,917art 10 5,18,43,62,168,194,234,400,466,472,488,581,637,677,917art 11 234,601art 11(1) 18,62,105,115,186, 245,375,430,457,466,472,581,716
HKPLR Hong Kong Legislation Considered xxxix
x l Cases Considered (1994) 4
art 11(2)(b) 472art 11(2)(e) 245,813,592,677,908art 11(2)(g) 581art 12(1) 56,453art 14 43,75,324,481,562art 14(1) 324art 15 75art 15(4) 324art 16 5,324,637art 16(2) 621art 16(3) 621art 17 356art 19 481,542,562art 20 388,542art 20(1) 324art 21 415art 22 62,75,234,324,388,400,430,481,601art 23 481
s 11 324,542,562Hong Kong Bar Association, By-laws, art 2 637Hong Kong Bar Association, Code of Conduct, paras 10(a), 101 637Hong Kong Code on Takeovers and Mergers (Hong Kong:
Securities Commission, rev’d ed, 1981) 298Hong Kong Letters Patent 1917–1993 art XV 18Hong Kong Letters Patent 1991 (No 2) 324
Immigration (Unauthorized Entrants) Order (Cap 115 sub leg)para 2(1)(aa) 115
Immigration (Vietnamese Migrants)(Detention Centres) Rules(Cap 115 sub leg)r 28(1) 159r 28(2) 159
Immigration Amendment (No 2) Bill 1979 813Immigration Ordinance (Cap 115)
Part IIIA 337s 4(1)(a) 159,337s 7(2) 481s 13 324,481,562,908s 13A(1) 337s 13D 667s 13D(1) 159,337,799,813, 832,837s 13D(1) 159s 13D(1) 337s 13E 799,813,824s 13E(1) 832,837
x l Hong Kong Legislation Considered (1994) 4
HKPLR Cases Considered x l i
s 13F 337s 13F(1) 159,337s 13F(5) 337s 13F(8) 337s 19 324,481s 19(1)(b) 667s 32(4) 908s 32(4)(a) 799,813,824,832,837s 32(4)(b) 799,813,824,832,837s 35(1) 837s 36 908s 36(1) 481,824,837s 37(1)(a) 129s 37A 115s 37B 115s 37C(1) 33s 37D 115s 37K(1) 115s 37L 33,115,129s 38(1)(b) 245,908s 38A 716s 38A(2) 601s 38A(3) 601,716s 42(2)(a) 453s 53(a) 324s.53A-53G 500
Import and Export Ordinance (Cap 60)s 18A 105s 35A 105
Independent Commission Against Corruption Ordinance (Cap 204)s 12(b)(i) 621
Inland Revenue Ordinance (Cap 112) 234Interpretation and General Clauses Ordinance (Cap 1)
s 2(1) 129s 3 115s 3(1)(b) 194s 19 194,813s 34(1) 194s 34(2) 194s 39(1) 356s 63 129Schedule 2 115
Legal Practitioners Ordinance (Cap 159) 43s 35A(3) 637
HKPLR Hong Kong Legislation Considered x l i
xlii Cases Considered (1994) 4
Lifts and Escalators (Safety) Ordinance (Cap 327)s 8A 168s 9 168s 11E(1) 168s 11E(2) 168s 11E(3) 168s 11F 168s 11G 168s 11I 168
Magistrates Ordinance (Cap 227)s 68 62s.85(2) 768s 86(4) 472s 118(1)(d) 105,186,356,375,601
Marriage Ordinance (Cap 181)s 6 481s 7 481s 27 481
Medical Practitioners (Registration and Disciplinary Procedure)Regulations (Cap 161 sub leg),regs 11, 12, 16, 22 548
Medical Registration Ordinance (Cap 161) 548s 3 168
Parent and Child Ordinance (Cap 429)s 6 388s 13 388
Police Force Ordinance (Cap 232)s 10 356s 50(7) 75s 63 908
Prevention of Bribery Ordinance (Cap 201)s 3 621s 4 621s 4(2)(a) 677s 7 621s 10(1)(a) 581s 10(1)(b) 18,686s 13 621s 17A 234,917s 17B 234,917s 30 621s 33 621
xlii Hong Kong Legislation Considered (1994) 4
HKPLR Cases Considered xliii
Prison Rules (Cap 234 sub leg)r 69 18
Public Order Ordinance (Cap 245)s 2 375s 8 356s 13 356s 18 356s 33 375,908
Road Traffic (Parking) Regulationsreg 2(1) 62
Road Traffic Ordinance (Cap 374)s 12 62
Rules of the Supreme Court (Cap 4 sub leg)O 3, r 5 562O 8, r 3(6) 837O 15, r 16 885O 42, r 5B(1) 500O 42, r 5B 686O 52 488O 53 337O 53, r 3(2)(b) 562O 53, r 6(2) 562O 53, r 6(4) 562O 54, r 2 768O 54, r 8 768O 55, r 3 168
Securities and Futures Commission Ordinance (Cap 24)s 33(4) 75s 33(6) 75s 36 75
Summary Offences Ordinance (Cap 228)s 3 716s 13(2)(a) 159s 13(4)(a) 115s 17 375,581,716s 30 186,581,650
Supreme Court Ordinance (Cap 4) 186s 23(1) 768
Theft Ordinance (Cap 210)s 17(1) 457s 18B(1) 457s 29(6)(a)(i) 457
HKPLR Hong Kong Legislation Considered xliii
xliv Cases Considered (1994) 4
Town Planning (Amendment and Validation) Ordinance 1974(No 59 of 1974) 194
Town Planning (Amendment) Ordinance (Ordinance No 4 of 1991) 194s 1(2) 686s 6(b) 686s 6(g) 686s 6(h) 686s 6(i) 686
Town Planning Amendment Bill 1990 686Town Planning Ordinance (Cap 131)
s 1A 194s 3 194,686s 4 194s 4A 194s 5 194s 6 194s 8 194s 9 194s 13 194s 14 194s 16 194,686s 17 194,686s 17A 194,686s 17B 194,686s 20 194,686s 21 194s 23(1) 686s 23(4) 686s 23(4)(b) 686s 26 194,686
United Kingdom Legislation
Administration of Justice Act 1960 (UK), s 14(2) 768Affiliation Proceedings Act 1957 (UK) 388British Nationality Act 1981 (UK)
s 15(3) 481s 50(9)(b) 481
Children Act 1989 (UK) 388Contempt of Court Act 1981 (UK)
s 4(2) 488Drug Trafficking Offences Act 1986 (UK)
s 28 75
xliv Hong Kong/United Kingdom Legislation Considered (1994) 4
HKPLR Cases Considered x lv
Extradition Act 1989 (UK)First Schedule, clauses 1(2)(b), 7(1), 8(1) 768First Schedule, clause 6(1) 652,768
Family Law Reform Act 1987 (UK) 388Guardianship of Minors Act 1971 (UK)
s 11B 388Hong Kong (Legislative Powers) Order 1986 129Hong Kong Act 1985 (UK)
Schedule, s 3(1)(b) 129Hong Kong Letters Patent 1917–1993 art XV 18Hong Kong Letters Patent 1991 (No 2) 324Immigration Act 1971 (UK)
s 13(3) 337Immigration Appeals (Procedure) Rules 1984 (UK)
r 14(2)(a) 500Magna Carta 1215 62Police and Criminal Evidence Act 1984 (UK)
s 78 652Prevention of Crime Act 1953 (UK)
s 1(4) 375Representation of the People Act 1983 (UK) 415Sexual Offences Act 1967 (UK) 33Supreme Court Act 1981 (UK)
s 16(1) 159Territorial Waters Jurisdiction Act 1878 (UK)
s 2 129s 3 33,129s 4 33s 5 129
United States of America (Extradition) Order 1976, Schedule 1 768
Foreign Legislation
CANADACanadian Charter of Rights and Freedoms 1982
s 7 592s 8 75s 11(d) 592s 24(2) 75
Narcotics Control Act, RSC 1970, c N-1 (Canada)s 10(1) 75
HKPLR United Kingdom/Foreign Legislation Considered x lv
xlvi Cases Considered (1994) 4
MALAYSIABankers Books (Evidence) Act 1949 (Malaysia) 860Criminal Procedure Code (FMS Cap 6) (Malaysia) 860Internal Security Act 1960 (Malaysia) s 8(1) 860
s 11 860s 12 860s 13 860s 73 860
Prevention of Corruption Act 1961 (Malaysia) 860
NEW ZEALANDNew Zealand Bill of Rights Act 1990
s 3(b) 637
PEOPLE’S REPUBLIC OF CHINAConstitution of the People’s Republic of China 736Trade Union Act of April 1992 736Provisional Regulations of 1987 on labour dispute settlement
in state enterprises 736Regulations of 1 August 1993 on the labour dispute settlement
in enterprises in the People’s Republic of China 736
USAConstitution of the United States of America,
Fourth Amendment 75Sixth Amendment 592
International Treaties and Other International Sources
Convention Relating to the Status of Refugees 1951, 189UNTS 137 337
Convention Relating to the Status of Stateless Persons1954, 360 UNTS 117 265
European Convention for the Protection of Human Rightsand Fundamental Freedoms 1950, 213 UNTS 221art 6(1) 194art 6(3)(d) 592art 8 75
Extradition Treaty between the United Kingdom and theUnited States of America 1972, art VI 768
Freedom of Association and Protection of the Right toOrganize Convention 1948 (ILO No 87), 68 UNTS 17 736
xlvi Foreign Legislation/International Treaties Considered (1994) 4
HKPLR Cases Considered xlviiHKPLR International Treaties/Other Sources Considered xlvii
Human Rights Committee, General comment 18 (37), UNDoc CCPR/C/21/Rev 1/Add 1 (1989), paras 4, 6, 7, 8,13 601
International Covenant on Civil and Political Rights 1966art 2(2) 1art 14(1) 324art 14(3)e 592art 26 1art 27 1
International Covenant on Economic Social and CulturalRights 1966, 999 UNTS 3art 10 542
Protocol to the Convention Relating to the Status of Refu-gees 1967, 606 UNTS 267 337
Right to Organise And Collective Bargaining Convention1949 (ILO No 98), 96 UNTS 257 736
Statement of an Understanding reached between theHong Kong Government and UNHCR concerning theTreatment of Asylum Seekers arriving from Vietnamin Hong Kong (1988) 337
Vienna Convention on the Law of Treaties 1969art 33 194
Other Sources
Archbold: Criminal Pleading Evidence and Practice (1982)(2nd Supp 41st ed), paragraph 20.49
Archbold:Criminal Pleading, Evidence and Practice(London: Sweet & Maxwell, 1993 edition), vol 1, para4–398
Archbold: Criminal Pleading, Evidence and Practice(London: Sweet & Maxwell, 1994), vol 2, para 28–122
Archbold Criminal Pleading, Evidence and Practice(London: Sweet & Maxwell, 1994), vol 2, chap 33
Aronson, M and N Franklin, Review of AdministrativeAction (Sydney: Law Book Co, 1987), p 102
782
581
488
621
562
xlviii Cases Considered (1994) 4
Beloff, M, “Natural Justice (The Audi Alteram PartemRule) and Fairness” in M Supperstone and J Goudie(eds) Judicial Review (London: Butterworths, 1992),p152
Bossuyt, M J, Guide to the “Travaux Préparatoires” ofthe International Covenant on Civil and Political Rights(Dordrecht: Martinus Nijhoff, 1987)
Bridge, J W, “The Duty to Give Reasons for Decisions asan Aspect of Natural Justice” in D Lasok (ed) Funda-mental Duties (Oxford: Pergamon Press, 1980)
Byrnes A, Chan J and Edwards G (eds), Hong Kong Pub-lic Law Reports, (Hong Kong: Hong Kong UniversityPress, 1993), vol 1
Byrnes, A, “The Impact of the Bill of Rights on Litiga-tion”, in J Sihombing (ed), Law Lectures for Practi-tioners 1992 (Hong Kong: Hong Kong Law JournalLtd, 1992), pp 223–224
Clark, D and McCoy,G, Hong Kong Administrative Law(Singapore: Butterworths Asia, 2nd ed 1993), p 480
Code on Takeovers and Mergers (Hong Kong: Securities& Futures Commission, 1992)
Cruden, G N, Land Compensation and Valuation Law inHong Kong (Singapore: Butterworths, 1986), p 380
deSmith, S A, Judicial Review of Administrative Action(London: Stevens & Sons Ltd, 4th ed 1980)
Digest of decisions and principles of the Freedom of Asso-ciation Committee, Geneva: ILO, 3rd ed 1985), paras133 and 134
Explanatory Memorandum to the Criminal Law (Amend-ment) Bill 1990, Hong Kong Government Gazette, Le-gal Supplement No 3, 25 October 1990
Gazette Notice 2334, No 28 of 1991, Hong Kong Govern-ment Gazette, Supplement No 6, vol 133, 12 July 1991,p 3209
Gazette Notice 436 of 1993, Hong Kong Government Ga-zette, Supplement No 6, vol 135, 12 February 1993, p590
Halsbury’s Laws of England (London: Butterworths, 4thed 1986), v 34, para 1433
Halsbury’s Laws of England (London: Butterworths, 4thed 1986), v 44, para 982
xlviii Other Sources Considered (1994) 4
500
75
500
457
194
194
274,298
194
285,500
736
129
194
129
194
194
HKPLR Cases Considered xlix
Henkin, L (ed), The International Bill of Rights: The Cov-enant on Civil and Political Rights (New York: Colum-bia University Press, 1981)
Herberg, J, “The Right to Reasons: Palm Trees in Re-treat?” [1991] Public Law 340
Hong Kong Bar Association, By-laws, art 2Hong Kong Bar Association, Code of Conduct, paras 10(a),
101Hong Kong Code on Takeovers and Mergers (Hong Kong:
Securities Commission, rev’d ed, 1981)
Jacob, J I H, The Supreme Court Practice 1993 (London:Sweet & Maxwell, 1992), vol 1, p 862, ref 53/1–14/39
Justice — All Souls Committee on the Review of Admin-istrative Law in the United Kingdom, AdministrativeJustice: Some necessary reforms (Oxford UniversityPress, 1988)
Kitingan, J (ed), Sabah 25 Years Later 1963–1988 (KotaKinabalu, Sabah: Institute for Development Studies(Sabah), 1989)
Law Reform Commission of Hong Kong, Report on Ille-gitimacy, Topic 28, (Hong Kong Government, Decem-ber 1991)
Lewis, C, “The Exhaustion of Alternative Remedies inAdministrative Law” (1992) 51 CLJ 138
New Shorter Oxford English Dictionary, The (Oxford:Clarendon, 1993)
Nowak, M, UN Covenant on Civil and Political Rights:CCPR Commentary (Kehl, Strasbourg, Arlington: N PEngel, 1993)
Office of the United Nations High Commissioner for Refu-gees, Handbook on Procedure and Criteria for Deter-mining Refugee Status (Geneva: UNHCR, 1979), paras199, 203, 204, 205(b)
Official Record of Proceedings of the Hong Kong Legisla-tive Council 1970–1971, 21 October 1970
Official Record of Proceedings of the Hong Kong Legisla-tive Council, 24 June 1992, pp 3645–3646
Official Record of Proceedings of the Hong Kong Legisla-tive Council, 10 March 1993, pp 2413–241
621
500637
637
298
562
500
860
388
562
75
356
337
621
388
388
HKPLR Other Sources Considered xlix
l Cases Considered (1994) 4
Official Record of Proceedings of the Hong Kong Legisla-tive Council: Session 1990/91, at 65–67, 328–330, 333
Osborne, C, “Hearsay and the European Court of HumanRights” [1993] Crim LR 255
Report of a Commission on Inquiry appointed by the ILOGoverning Body, Official Bulletin, special supplement,Vol. LXVII, 1984, series B, para. 466.
Report of the ICAC Review Committee (December 1994)Report of the Sittings of the Legislative Council of Hong
Kong, Session 1978/79, pp 931–932 (20 June 1979)Richardson, G, “The Duty to Give Reasons: Potential and
Practice” [1986] Public Law 437
Shorter Oxford English Dictionary, The (Oxford:Clarendon Press, 3rd ed 1994).
Sihombing, J and Wilkinson, M, Hong Kong Conveyancing(Singapore: Butterworths Asia, 1993), para 77
Siracusa Principles on the Limitation and DerogationProvisions in the ICCPR, (1985) 7 Human RightsQuarterly
Sopiee, M N, From Malayan Union to SingaporeSeparation: political unification in the Malaysia region,1945–65 (Kuala Lumpur: Penerbit Universiti Malaya,1974)
Supperstone, M and Goudie, J, Judicial Review (London:Butterworths, 1992),
Supreme Court Practice 1993 (London: Sweet andMaxwell, 1993), v 1, para 53/1–14/29
Supreme Court Practice 1993 (London: Sweet andMaxwell, 1993), v 1, para 10/1/15
Wade, H W R, Administrative Law (Oxford: ClarendonPress, 6th ed, 1988), pp 223, 533
Wade, H W R, Administrative Law (Oxford: Clarendon,6th ed 1988), p 477
Wade H W R, Constitutional and Administrative Law(Harlow: Longman, 10th ed 1985), p 610
l Other Sources Considered (1994) 4
601
592
736621
813
500
129
194
324
860
285,500,562
274
837
500,562
285,400
194
Hong Kong Public Law Reports
5
10
15
20
25
30
35
40
45
HKPLR General Comment No 24 (52) 727
Human Rights Committee, General Comment
Adopted Under Article 40, Paragraph 4, of the
International Covenant on Civil and Political
Rights
International law — Treaties — Reservations — Test of Compat-ibility — Object and purpose of treaty — Non-derogable rights —Jus cogens — Role of treaty body in determining compatibility —Effect of incompatibility — ICCPR — First Optional Protocol —Second Optional Protocol
General Comment No 24 (52)*
Reservations made upon ratification or accession to the Covenantor the Optional Protocols thereto, or in relation to declarationsunder article 41 of the Covenant
1. As of 1 November 1994, 46 of the 127 States parties to the Interna-tional Covenant on Civil and Political Rights had, between them, entered150 reservations of varying significance to their acceptance of the obliga-tions of the Covenant. Some of these reservations exclude the duty toprovide and guarantee particular rights in the Covenant. Others arecouched in more general terms, often directed to ensuring the continuedparamountcy of certain domestic legal provisions. Still others are di-rected at the competence of the Committee. The number of reservations,their content and their scope may undermine the effective implementa-tion of the Covenant and tend to weaken respect for the obligations ofStates parties. Is it important for States parties to know exactly whatobligations they, and other States parties, have in fact undertaken. Andthe Committee, in the performance of its duties under either Article 40of the Covenant or under the Optional Protocols, must know whether aState is bound by a particular obligation or to what extent. This willrequire a determination as to whether a unilateral statement is a reser-vation or an interpretative declaration and a determination of itsacceptability and effects.
* UN Doc CCPR/C/21/Rev.1/Add. 6 (1994). Adopted by the Committee at its 1382ndmeeting (fifty-second session) on 2 November 1994.
5
10
15
20
25
30
35
40
45
728 Human Rights Committee (1994) 4
2. For these reasons the Committee has deemed it useful to address ina General Comment the issues of international law and human rightspolicy that arise. The General Comment identifies the principles of in-ternational law that apply to the making of reservations and by referenceto which their acceptability is to be tested and their purport to be inter-preted. It addresses the role of States parties in relation to thereservations of others. It further addresses the role of the Committeeitself in relation to reservations. And it makes certain recommendationsto present States parties for a reviewing of reservations and to thoseStates that are not yet parties about legal and human rights policyconsiderations to be borne in mind should they consider ratifying oracceding with particular reservations.
3. It is not always easy to distinguish a reservation from a declarationas to a States understanding of the interpretation of a provision, or froma statement of policy. Regard will be had to the intention of the State,rather than the form of the instrument. If a statement, irrespective ofits name or title, purports to exclude or modify the legal effect of atreaty in its application to the State, it constitutes a reservation.* Con-versely, if a so-called reservation merely offers a State’s understandingof a provision but does not exclude or modify that provision in its appli-cation to that State, it is, in reality, not a reservation.
4. The possibility of entering reservations may encourage States whichconsider that they have difficulties in guaranteeing all the rights in theCovenant nonetheless to accept the generality of obligations in thatinstrument. Reservations may serve a useful function to enable Statesto adapt specific elements in their laws to the inherent rights of eachperson as articulated in the Covenant. However, it is desirable in princi-ple that States accept the full range of obligations, because the humanrights norms are the legal expression of the essential rights that everyperson is entitled to as a human being.
5. The Covenant neither prohibits reservations nor mentions any typeof permitted reservation. The same is true of the first Optional Protocol.The Second Optional Protocol provides, in article 2, paragraph 1, that“No reservation is admissible to the present Protocol, except for a reser-vation made at the time of ratification or accession that provides for theapplication of the death penalty in time of war pursuant to a convictionfor a most serious crime of a military nature committed during war-time”. Paragraphs 2 and 3 provide for certain procedural obligations.
* Article 2(1) (d), Vienna Convention on the Law of Treaties 1969.
5
10
15
20
25
30
35
40
45
HKPLR General Comment No 24 (52) 729
6. The absence of a prohibition on reservations does not mean that anyreservation is permitted. The matter of reservations under the Covenantand the first Optional Protocol is governed by international law. Article19(3) of the Vienna Convention on the Law of Treaties provides relevantguidance.* It stipulates that where a reservation is not prohibited by thetreaty or falls within the specified permitted categories, a State maymake a reservation provided it is not incompatible with the object andpurpose of the treaty. Even though, unlike some other human rightstreaties, the Covenant does not incorporate a specific reference to theobject and purpose test, that test governs the matter of interpretationand acceptability of reservations.
7. In an instrument which articulates very many civil and politicalrights, each of the many articles, and indeed their interplay, secures theobjectives of the Covenant. The object and purpose of the Covenant is tocreate legally binding standards for human rights by defining certaincivil and political rights and placing them in a framework of obligationswhich are legally binding for those States which ratify; and to providean efficacious supervisory machinery for the obligations undertaken.
8. Reservations that offend peremptory norms would not be compatiblewith the object and purpose of the Covenant. Although treaties that aremere exchanges of obligations between States allow them to reserveinter se application of rules of general international law, it is otherwisein human rights treaties, which are for the benefit of persons withintheir jurisdiction. Accordingly, provisions in the Covenant that repre-sent customary international law (and a fortiori when they have thecharacter of peremptory norms) may not be the subject of reservations.Accordingly, a State may not reserve the right to engage in slavery, totorture, to subject persons to cruel, inhuman or degrading treatment orpunishment, to arbitrarily deprive persons of their lives, to arbitrarilyarrest and detain persons, to deny freedom of thought, conscience andreligion, to presume a person guilty unless he proves his innocence, toexecute pregnant women or children, to permit the advocacy of national,racial or religious hatred, to deny to persons of marriageable age theright to marry, or to deny to minorities the right to enjoy their ownculture, profess their own religion, or use their own language. And whilereservations to particular clauses of article 14 may be acceptable, ageneral reservation to the right to a fair trial would not be.
* Although the Vienna Convention on the Law of Treaties was concluded in 1969 andentered into force in 1980 — ie after the entry into force of the Covenant — its termsreflect the general international law on this matter as had already been affirmed by theInternational Court of Justice in the Reservations to the Genocide Convention Case of1951.
5
10
15
20
25
30
35
40
45
730 Human Rights Committee (1994) 4
9. Applying more generally the object and purpose test to the Cov-enant, the Committee notes that, for example, reservation to article 1denying peoples the right to determine their own political status and topursue their economic, social and cultural development, would be incom-patible with the object and purpose of the Covenant. Equally, areservation to the obligation to respect and ensure the rights, and to doso on a non-discriminatory basis (article 2(1)) would not be acceptable.Nor may a State reserve an entitlement not to take the necessary stepsat the domestic level to give effect to the rights of the Covenant (article2(2)).
10. The Committee has further examined whether categories of reser-vations may offend the “object and purpose” test. In particular, it fallsfor consideration as to whether reservations to the non-derogable provi-sions of the Covenant are compatible with its object and purpose. Whilethere is no hierarchy of importance of rights under the Covenant, theoperation of certain rights may not be suspended, even in times of na-tional emergency. This underlines the great importance of non-derogablerights. But not all rights of profound importance, such as articles 9 and27 of the Covenant, have in fact been made non-derogable. One reasonfor certain rights being made non-derogable is because their suspensionis irrelevant to the legitimate control of the state of national emergency(for example, no imprisonment for debt, in article 11). Another reason isthat derogation may indeed be impossible (as, for example, freedom ofconscience). At the same time, some provisions are non-derogable ex-actly because without them there would be no rule of law. A reservationto the provisions of article 4 itself, which precisely stipulates the balanceto be struck between the interests of the State and the rights of theindividual in times of emergency, would fall in this category. And somenon-derogable rights, which in any event cannot be reserved because oftheir status as peremptory norms, are also of this character — theprohibition of torture and arbitrary deprivation of life are examples.*While there is no automatic correlation between reservations tonon-derogable provisions, and reservations which offend against the ob-ject and purpose of the Covenant, a State has a heavy onus to justifysuch a reservation.
11. The Covenant consists not just of the specified rights, but of impor-tant supportive guarantees. These guarantees provide the necessaryframework for securing the rights in the Covenant and are thus essen-tial to its object and purpose. Some operate at the national level and
* Reservations have been entered to both article 6 and article 7, but not in terms whichreserve a right to torture or to engage in arbitrary deprivation of life.
5
10
15
20
25
30
35
40
45
HKPLR General Comment No 24 (52) 731
some at the international level. Reservations designed to remove theseguarantees are thus not acceptable. Thus, a State could not make areservation to article 2, paragraph 3, of the Covenant, indicating that itintends to provide no remedies for human rights violations. Guaranteessuch as these are an integral part of the structure of the Covenant andunderpin its efficacy. The Covenant also envisages, for the better attain-ment of its stated objectives, a monitoring role for the Committee.Reservations that purport to evade that essential element in the designof the Covenant, which is also directed to securing the enjoyment of therights, are also incompatible with its object and purpose. A State maynot reserve the right not to present a report and have it considered bythe Committee. The Committee’s role under the Covenant, whether un-der article 40 or under the Optional Protocols, necessarily entailsinterpreting the provisions of the Covenant and the development of ajurisprudence. Accordingly, a reservation that rejects the Committee’scompetence to interpret the requirements of any provisions of the Cov-enant would also be contrary to the object and purpose of that treaty.
12. The intention of the Covenant is that the rights contained thereinshould be ensured to all those under a States party’s jurisdiction. To thisend certain attendant requirements are likely to be necessary. Domesticlaws may need to be altered properly to reflect the requirements of theCovenant; and mechanisms at the domestic level will be needed to allowthe Covenant rights to be enforceable at the local level. Reservationsoften reveal a tendency of States not to want to change a particular law.And sometimes that tendency is elevated to a general policy. Of particu-lar concern are widely formulated reservations which essentially renderineffective all Covenant rights which would require any change in na-tional law to ensure compliance with Covenant obligations. No realinternational rights or obligations have thus been accepted. And whenthere is an absence of provisions to ensure that Covenant rights may besued on in domestic courts, and, further, a failure to allow individualcomplaints to be brought to the Committee under the first OptionalProtocol, all the essential elements of the Covenant guarantees havebeen removed.
13. The issue arises as to whether reservations are permissible underthe first Optional Protocol and, if so, whether any such reservationmight be contrary to the object and purpose of the Covenant or of thefirst Optional Protocol itself. It is clear that the first Optional Protocol isitself an international treaty, distinct from the Covenant but closelyrelated to it. Its object and purpose is to recognise the competence of theCommittee to receive and consider communications from individuals whoclaim to be victims of a violation by a State party of any of the rights inthe Covenant. States accept the substantive rights of individuals by
5
10
15
20
25
30
35
40
45
732 Human Rights Committee (1994) 4
reference to the Covenant, and not the first Optional Protocol. The func-tion of the first Optional Protocol is to allow claims in respect of thoserights to be tested before the Committee. Accordingly, a reservation toan obligation of a State to respect and ensure a right contained in theCovenant, made under the first Optional Protocol when it has not previ-ously been made in respect of the same rights under the Covenant, doesnot affect the State’s duty to comply with its substantive obligation. Areservation cannot be made to the Covenant through the vehicle of theOptional Protocol but such a reservation would operate to ensure thatthe State’s compliance with that obligation may not be tested by theCommittee under the first Optional Protocol. And because the object andpurpose of the first Optional Protocol is to allow the rights obligatory fora State under the Covenant to be tested before the Committee, a reser-vation that seeks to preclude this would be contrary to the object andpurpose of the first Optional Protocol, even if not of the Covenant. Areservation to a substantive obligation made for the first time under thefirst Optional Protocol would seem to reflect an intention by the Stateconcerned to prevent the Committee from expressing its views relatingto a particular article of the Covenant in an individual case.
14. The Committee considers that reservations relating to the requiredprocedures under the first Optional Protocol would not be compatiblewith its object and purpose. The Committee must control its own proce-dures as specified by the Optional Protocol and its rules of procedure.Reservations have, however, purported to limit the competence of theCommittee to acts and events occurring after entry into force for theState concerned of the first Optional Protocol. In the view of the Com-mittee this is not a reservation but, most usually, a statement consistentwith its normal competence ratione temporis. At the same time, theCommittee has insisted upon its competence, even in the face of suchstatements or observations, when events or acts occurring before thedate of entry into force of the first Optional Protocol have continued tohave an effect on the rights of a victim subsequent to that date. Reserva-tions have been entered which effectively add an additional ground ofinadmissibility under article 5, paragraph 2, by precluding examinationof a communication when the same matter has already been examinedby another comparable procedure. Insofar as the most basic obligationhas been to secure independent third party review of the human rightsof individuals, the Committee has, where the legal right and the subjectmatter are identical under the Covenant and under another interna-tional instrument, viewed such a reservation as not violating the objectand purpose of the first Optional Protocol.
15. The primary purpose of the Second Optional Protocol is to extendthe scope of the substantive obligations undertaken under the Covenant,
5
10
15
20
25
30
35
40
45
HKPLR General Comment No 24 (52) 733
as they relate to the right to life, by prohibiting execution and abolishingthe death penalty.* It has its own provision concerning reservations,which is determinative of what is permitted. Article 2, paragraph 1,provides that only one category of reservation is permitted, namely onethat reserves the right to apply the death penalty in time of war pursu-ant to a conviction for a most serious crime of a military nature committedduring wartime. Two procedural obligations are incumbent upon Stateparties wishing to avail themselves of such a reservation. Article 2,paragraph 1, obliges such a State to inform the Secretary General, atthe time of ratification or accession, of the relevant provisions of itsnational legislation during wartime. This is clearly directed towards theobjectives of specificity and transparency and in the view of the Commit-tee a purported reservation unaccompanied by such information is withoutlegal effect. Article 2, paragraph 3, requires a State making such areservation to notify the Secretary-General of the beginning or ending ofa state of war applicable to its territory. In the view of the Committee,no State may seek to avail itself of its reservation (that is, have execu-tion in time of war regarded as lawful) unless it has complied with theprocedural requirement of article 2, paragraph 3.
16. The Committee finds it important to address which body has thelegal authority to make determinations as to whether specific reserva-tions are compatible with the object and purpose of the Covenant. As forinternational treaties in general, the International Court of Justice hasindicated in the Reservations to the Genocide Convention Case (1951)that a State which objected to reservation on the grounds of incompat-ibility with the object and purpose of a treaty could, through objecting,regard the treaty as not in effect as between itself and the reservingState. Article 20, paragraph 4, of the Vienna Convention on the Law ofTreaties 1969 contains provisions most relevant to the present case onacceptance of and objection to reservations. This provides for the possi-bility of a State to object to a reservation made by another State. Article21 deals with the legal effects of objections by States to reservationsmade by another State. Essentially, a reservation precludes the opera-tion, as between the reserving and other States, of the provision reserved;and an objection thereto leads to the reservation being in operation asbetween the reserving and objecting State only to the extent that it hasnot been objected to.
* The competence of the Committee in respect of this extended obligation is providedfor under article 5 — which itself is subject to a form of reservation in that the automaticgranting of this competence may be reserved through the mechanism of a statementmade to the contrary at the moment of ratification or accession.
5
10
15
20
25
30
35
40
45
734 Human Rights Committee (1994) 4
17. As indicated above, it is the Vienna Convention on the Law ofTreaties that provides the definition of reservations and also the appli-cation of the object and purpose test in the absence of other specificprovisions. But the Committee believes that its provisions on the role ofState objections in relation to reservations are inappropriate to addressthe problem of reservations to human rights treaties. Such treaties, andthe Covenant specifically, are not a web of inter-State exchanges ofmutual obligations. They concern the endowment of individuals withrights. The principle of inter-State reciprocity has no place, save per-haps in the limited context of reservations to declarations on theCommittee’s competence under article 41. And because the operation ofthe classic rules on reservations is so inadequate for the Covenant,States have often not seen any legal interest in or need to object toreservations. The absence of protest by States cannot imply that a reser-vation is either compatible or incompatible with the object and purposeof the Covenant. Objections have been occasional, made by some Statesbut not others, and on grounds not always specified; when an objectionis made, it often does not specify a legal consequence, or sometimes evenindicates that the objecting party nonetheless does not regard the Cov-enant as not in effect as between the parties concerned. In short, thepattern is so unclear that it is not safe to assume that a non-objectingState thinks that a particular reservation is acceptable. In the view ofthe Committee, because of the special characteristics of the Covenant asa human rights treaty, it is open to question what effect objections havebetween States inter se. However, an objection to a reservation made byStates may provide some guidance to the Committee in its interpreta-tion as to its compatibility with the object and purpose of the Covenant.
18. It necessarily falls to the Committee to determine whether a specificreservation is compatible with the object and purpose of the Covenant.This is in part because, as indicated above, it is an inappropriate task forStates parties in relation to human rights treaties, and in part because itis a task that the Committee cannot avoid in the performance of its func-tions. In order to know the scope of its duty to examine a State’scompliance under article 40 or a communication under the first OptionalProtocol, the Committee has necessarily to take a view on the compatibil-ity of a reservation with the object and purpose of the Covenant and withgeneral international law. Because of the special character of a humanrights treaty, the compatibility of a reservation with the object and pur-pose of the Covenant must be established objectively, by reference to legalprinciples, and the Committee is particularly well placed to perform thistask. The normal consequence of an unacceptable reservation is not thatthe Covenant will not be in effect at all for a reserving party. Rather, sucha reservation will generally be severable, in the sense that the Covenantwill be operative for the reserving party without benefit of the reservation.
5
10
15
20
25
30
35
40
45
HKPLR General Comment No 24 (52) 735
19. Reservations must be specific and transparent, so that the Com-mittee, those under the jurisdiction of the reserving State and otherStates parties may be clear as to what obligations of human rightscompliance have or have not been undertaken. Reservations may thusnot be general, but must refer to a particular provision of the Covenantand indicate in precise terms its scope in relation thereto. When consid-ering the compatibility of possible reservations with the object andpurpose of the Covenant, States should also take into consideration theoverall effect of a group of reservations, as well as the effect of eachreservation on the integrity of the Covenant, which remains an essentialconsideration. States should not enter so many reservations that theyare in effect accepting a limited number of human rights obligations,and not the Covenant as such. So that reservations do not lead to aperpetual non-attainment of international human rights standards, res-ervations should not systematically reduce the obligations undertakenonly to those presently existing in less demanding standards of domesticlaw. Nor should interpretative declarations or reservations seek to re-move an autonomous meaning to Covenant obligations, by pronouncingthem to be identical, or to be accepted only insofar as they are identical,with existing provisions of domestic law. States should not seek throughreservations or interpretative declarations to determine that the mean-ing of a provision of the Covenant is the same as that given by an organof any other international treaty body.
20. States should institute procedures to ensure that each and everyproposed reservation is compatible with the object and purpose of theCovenant. It is desirable for a State entering a reservation to indicate inprecise terms the domestic legislation or practices which it believes to beincompatible with the Covenant obligation reserved; and to explain thetime period it requires to render its own laws and practise compatiblewith the Covenant, or why it is unable to render its own laws andpractises compatible with the Covenant. States should also ensure thatthe necessity for maintaining reservations is periodically reviewed, tak-ing into account any observations and recommendations made by theCommittee during examination of their reports. Reservations should bewithdrawn at the earliest possible moment. Reports to the Committeeshould contain information on what action has been taken to review,reconsider or withdraw reservations.
5
10
15
20
25
30
35
40
45
736 ILO Committee on Freedom of Association (1994) 4
Case No 1652 v China*
Complaint against the Government of China presented by theInternational Confederation of Free Trade Unions (ICFTU)
Committee on Freedom of Association of the Governing Body of theInternational Labour Organisation
Date of reports — February 1993; March 1994
Human rights — Freedom of association — Right to organise andbargain collectively — Trade Union Act (1992) — Unions requiredto further socialist modernisation — Single trade union struc-ture nation-wide — Whether a violation of the right to freedom ofassociation and the right to bargain and organise collectively —Trade Union Act 1992 (PRC)
Human rights — Freedom of association — Right to strike —Whether exclusion of right to strike consistent with guarantees offreedom of association
Human rights — Freedom of association — Civil liberties neces-sary for enjoyment of trade union rights — Expulsion of tradeunionist — Permitting reentry on condition that trade unionistnot exercise rights — Whether consistent with trade union rights
Labour law — Freedom of Association — Right to organise andbargain collectively — Whether a violation of the right to free-dom of association and the right to bargain and organisecollectively
International Law — Human rights — China — Non-interferencein matters essentially within domestic jurisdiction — Domesticjurisdiction — Whether hearing of complaint violation of non-interference principle
The International Confederation of Free Trade Unions (ICFTU) lodged acomplaint against the Government of the People’s Republic of China
* 286th Report of the Committee on Freedom of Association. For an earlier case againstChina, see Case No 1500 v China, 270th Report of the Committee on Freedom of Asso-ciation, ILO Doc GB.245/5/8 (1990), paras 287–334. For further developments, see 275thReport of the Committee on Freedom of Association, ILO Doc GB.248/7/11 (1990), paras323–363.
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 737
alleging that it had violated the trade union rights of a number ofindividuals and groups. The ICTFU alleged that the Government hadviolated the principle of freedom of association by adopting on 3 April 1992the Trade Union Act of 1992. The ICFTU contended that the Act wascontrary to ILO standards and to the recommendations formulated by theFreedom of Association Committee in Case No 1500 v China. They alsocontended that the Act breached the right to organise and bargaincollectively by placing trade union activities under the authority andcontrol of the Chinese Communist Party. The ICTFU further complainedthat the Chinese Government ordered the suppression of independenttrade union activities, and subjected independent trade union activists tophysical and other pressure, job dismissal, arrest and interrogation,conviction of crimes such as subversion, imprisonment and forced labour.
Report of February 1993
Held:
1. The Government’s objection that the Committee’s consideration of thecomplaint amounts to a serious act of interference in the internalaffairs of China had no legal relevance. Matters relating to freedom ofassociation and the improvement of labour conditions no longer fellexclusively within the domestic jurisdiction of States. Action taken bythe ILO in relation to these matters could not be considered undueinterference in the internal affairs of member States (of which Chinawas one), since it fell within the terms of reference the ILO hadreceived from it members. (paras 705–708)
2. The 1992 Trade Union Act breached the right to freedom of associa-tion and the right to organise and bargain collectively in two respects.First, the provisions contained in ss 5 and 8, which obligate tradeunions to further socialist modernisation, limit the right of trade un-ions to organise their activities. It is of the opinion that the obligationsthus defined, which the unions must observe, prevent the establish-ment of trade union organizations that are independent of the publicauthorities and of the ruling party, and whose mission should be todefend and promote the interests of their constituents and not toreinforce the country’s political and economic system. Secondly, theprovisions contained in ss 4, 11 and 13 imposed a single trade unionstructure in China, and thereby constituted major constraints on theright of unions to establish their own constitutions, organize theiractivities and formulate their programs. These constraints may notbe justified by reference to China’s historical and present context.(paras 712–717)
5
10
15
20
25
30
35
40
45
738 ILO Committee on Freedom of Association (1994) 4
3. The provisions contained in ss 20 and 25 of the Trade Union Act 1992did not, in and of themselves, imply that it is illegal to resort to strikeaction. However, if they were so construed in light of the 1987 provi-sional regulations concerning labour disputes in state enterprises,this would be contrary to principles of freedom of association. TheGovernment should provide details on legislation and practice in re-spect of the settlement of collective labour disputes and to specifywhether the provisional regulations of 1987 were still in force. (paras718–720)
4. In relation to allegations concerning Mr Han Dongfang, the Govern-ment should respond to allegations that he had been subjected topressure, including physical beatings. In the case of Messrs TangYangjuan, Liu Wei and Leng Wanbao, who had been sentenced tolong periods of imprisonment and forced labour for alleged acts ofsubversion, the Government should specify precisely what concreteacts they were accused of. The system of “education through labour”constitutes a clear infringement of basic human rights. (para 721)
5. With regard to other persons named in the complaint, the severity ofsanctions imposed by the tribunals was such that might constituterepression of trade union activities. The Government should arrangefor these cases to be re-examined in order to put an end to the deten-tions. (paras 721–725)
6. The Government should answer allegations that a Communist Partydirective had demanded an in-depth investigation of the Free TradeUnion of China. (para 726)
Following the adoption of this report, the International Confederationof Free Trade Unions (ICTFU) made new allegations concerning thecase of Mr Han Dongfang. The ICTFU contended that when Mr Han hadattempted to return to China, he was beaten by the authorities andforcibly expelled.
In its submissions to the Committee, the Government responded tothe points raised in the Committee’s report and to these new allega-tions. The Government provided information on legislation and practiceconcerning labour disputes and argued that the labour dispute settle-ment procedure provides sufficient, effective and fair protection of therights and interests of enterprises and workers. The Government statedthat the Provisional Regulations of 1987 did not apply to matters involv-ing freedom of association and that, in any case, they had been replaced.The Government stated that the Free Trade Union of China had neverexisted and denied ever having ordered an inquiry into the matter.
The Government provided information on the acts committed by Messrs
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 739
Tang Yangjuan, Liu Wei and Leng Wanbao, and stated that the sanc-tions imposed were justified and did not violate basic human rights.Furthermore, the Government argued that the sanctions imposed againstother individuals named in the original complaint had been determinedin strict accordance with the law.
The Government denied allegations made in the original complaintthat Mr Han Donfang had been subjected to pressure and physical beat-ings by government officials, and argued that he had attacked officialsand intentionally injured himself. In response to the new allegations,the Government stated that Mr Han had not been injured when heattempted to return to China, and that he had lawfully been deniedentry on the grounds that he had engaged in anti-government activitiesin the United States and at the 80th Session of the International LabourConference.
Report of March 1994
Held:
1. It was regrettable that the Government failed to provide further in-formation on measures taken to amend the provisions of the TradeUnion Act 1992 which are contrary to the principles of freedom ofassociation. The Government should make the necessary amendmentsto the Act and ensure that the principles of freedom are associationare respected in practice. (paras 387–389)
2. The 1993 Regulations on labour dispute settlement, which replacedthe 1987 Provisional Regulations, exclude recourse to the right tostrike. The Government should take the necessary measures to en-sure the right to strike for workers and organisations. (paras 390–391)
3. The activities which Mr Han Dongfang was accused of having en-gaged in while abroad and on which the Government relied to justifyhis expulsion from China represent the exercise of civil liberties es-sential to normal trade union rights. Not allowing a trade unionist toreturn to his country violates the principles of freedom of association,as does permitting him to do so on condition that he no longer exer-cises the right of assembly, freedom of opinion and freedom ofexpression, which are rights necessary for the normal exercise of tradeunion rights. The Government should cancel the expulsion orderagainst Mr Han and allow him to return to China and exercise histrade union activities in full freedom. (paras 395–397)
4. The information provided by the Government on the cases of Messrs
5
10
15
20
25
30
35
40
45
740 ILO Committee on Freedom of Association (1994) 4
Tang Yangjuan, Liu Wei and Leng Wanbao did not establish in asufficiently exact manner that the sentences imposed were not due totrade union activities alone. (paras 398–399)
5. Although the Government released for good conduct three personsnamed in the original complaint, it failed to give information on itsreview of the sentences of many other persons listed in the report.The Government should take measures necessary to re-examine thecases of all persons mentioned in the original complaint with a viewto their release. (para 400)
The following cases and materials are referred to in the reports:
Case No 1500 v China, 270th Report of the Committee on Freedom ofAssociation, ILO Doc GB.245/5/8 (1990) paras 287–334; 275th Reportof the Committee on Freedom of Association, ILO Doc. GB.248/7/11(1990), paras 323–363; 279th Report of the Committee on Freedom ofAssociation, para. 635)
Case No 1599 v China, 268th Report of the Committee on Freedom ofAssociation, para. 691
Constitution of the People’s Republic of ChinaTrade Union Act of April 1992
Provisional Regulations of 1987 on labour dispute settlement in stateenterprises
Regulations of 1 August 1993 on labour dispute settlement in enter-prises in the People’s Republic of China
Freedom of Association and Protection of the Right to Organize Conven-tion 1948 (ILO No 87), 68 UNTS 17
Right to Organise and Collective Bargaining Convention 1949 (ILO No98), 96 UNTS 257
Report of a Commission on Inquiry appointed by the ILO GoverningBody, Official Bulletin, special supplement, Vol. LXVII, 1984, seriesB, para. 466.
Digest of decisions and principles of the Freedom of Association Commit-tee, (Geneva: ILO, 3rd ed 1985), paras 133 and 134
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 741
The Committee adopted the following report:*
674. In a communication dated 2 June 1992, the International Con-federation of Free Trade Unions (ICFTU) filed a complaint against theGovernment of China for violation of trade union rights. The complain-ant organization made fresh allegations and provided additionalinformation in communications dated 4 June and 24 August 1992.
675. The Government submitted its statements in communicationsdated 19 October 1992 and 13 January 1993.
676. China has ratified neither the Freedom of Association and Pro-tection of the Right to Organize Convention, 1948 (No 87), nor the Rightto Organise and Collective Bargaining Convention, 1949 (No 98).
A. THE COMPLAINANT’S ALLEGATIONS
677. The ICFTU stated in its complaint that, three years after thebrutal suppression of fundamental human rights and trade union rightsin June 1989 the Government of the People’s Republic of China has onceagain demonstrated its utter disregard for the principle of freedom ofassociation.
678. To be more precise, the ICFTU reports that, on 3 April 1992,the National People’s Congress adopted a new Trade Union Act, after aso-called process of discussion that lasted for 14 years. According to theICFTU, the provisions of this Act are contrary to the standards of theILO and to the recommendations formulated by the Freedom of Associa-tion Committee for Case No 1500.
679. According to section 1, the Act has been promulgated to enablethe trade unions to “further socialist modernization”. As one officialcommentary on the Act indicates, “furthering socialist modernization”means acting on the instructions of the Chinese Communist Party andbeing guided by the Marxist-Leninist thought of Mao Zedong; conse-quently, according to the ICFTU, the unions are denied the right toformulate their own programmes, as established in Article 3(1) of Con-vention No 87. By passing this legislation, the public authorities havetherefore committed an act of interference in breach of Article 3(2) andArticle 8(2) of the Convention.
680. Moreover, the ICFTU states that under the provisions of theAct, the local unions are firmly controlled by the Chinese Federation ofTrade Unions, which in its turn, is under the strict control of the Chi-nese Communist Party. While the workers may, in theory, formorganizations on their own initiative, these unions cannot acquire legalpersonality unless they are approved by the Chinese Federation of TradeUnions, in breach of articles 2 and 7 of Convention No 87.
* [Eds] The numbering of the paragraphs is that of the original report.
5
10
15
20
25
30
35
40
45
742 ILO Committee on Freedom of Association (1994) 4
681. According to the ICFTU, other provisions of the Act indicatethat the main reason for its adoption was to establish the unions asintermediaries between workers and employers with a view to protect-ing the latter. Thus, for example, the provisions in respect of workstoppages specify that the unions “shall work with the managements orparties concerned and conduct talks on such reasonable demands of theworkers as can be satisfied, and normalize production as soon as possi-ble”. In respect of health and safety, the unions may only suggest thatmanagement take appropriate measures. The same also applies in re-spect of wages and health and safety in joint venture enterprises.According to the ICFTU, recent reports bear witness to the fact thatsuch enterprises can freely declare redundancies, as happened in thecase of the Shangai-Bell enterprise in 1991.
682. Government action is likewise directed against independenttrade unions militants. Mr Han Dongfang, the leader of the BeijingAutonomous Workers’ Federation, has been forcibly prevented from car-rying out his trade union activities and has been subjected to continualpressure — including physical brutality — with a view to putting a stopto his campaign for free and independent trade unions. On 19 March1992, Han Dongfang was prevented by the police from holding a minordemonstration on Tiananmen Square, during which he intended to de-mand the authorization to form independent trade unions.On 14 May1992, he was beaten unconscious by court officials who had summonedhim to discuss a dispute concerning an apartment. According to theICFTU, Han Dongfang, who was released in April 1991 after two yearsof detention without trial, is being persecuted by his employer, the BeijingRailway Authority. On 30 May 1992, the enterprise refused to issue himwith a document needed when applying for a passport, whereas, underintense international pressure, the authorities had announced that hewould be free to leave the country. The enterprise also told his wife thatit would not pay the bill from the hospital where he had been treatedfollowing the beating he had received in the court. The ICFTU empha-sized the fact that Mr Han Dongfang had stated that he was prepared tocooperate with the Federation of Chinese Trade Unions if the latterbecame democratic and genuinely concerned with the workers’ interests,which it has not done up to the present.
683. On the contrary, the ICFTU continues, the Free Trade Union ofChina, a new independent, clandestine organization which proclaimedits existence on 15 May 1992, maintains that the Federation of ChineseTrade Unions and the Communist Party have formed an alliance with aview to eliminating all independent worker organizations. Thus, in March1992, the Communist Party circulated a directive to all state enter-prises, referring to the unions as “anti-Party” and “anti-socialist”organizations and demanding an in-depth investigation to track downthe Free Trade Union of China.
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 743
684. The ICFTU emphasizes that hundreds of workers are beingdetained for having exercised their trade union rights. It has supplied alist of leading members and advisers from autonomous labour federa-tions detained (see Annex). Administrative detention measures and forcedlabour — which the system calls education through work — are stillbeing applied to workers who are involved in trade union activities. Inthis respect, the ICFTU mentions the case of Tang Yuanjuan, assistantmechanic in the Changchun No 1 automobile factory, who was con-signed with four of his companions to forced labour in the Lingyuancamp in the province of Lianong. They had been sentenced in November1990 to between two and 20 years’ imprisonment for having organizedpeaceful demonstrations and discussions with their colleagues.
685. In its communication of 4 June 1992, the ICFTU alleged thatMr Han Dongfang had been arrested by the Beijing police on 3 Junewith three independent union militants who were not identified at thetime. Han Dongfang and his companions had intended to organize asilent demonstration in Beijing on 4 June to commemorate the thirdanniversary of the Government’s suppression of the democratic move-ment. After spending the night at the police station, Mr Han Dongfangwas taken to his home by the police who ordered him to remain at homeand surrounded his house with vehicles. According to the ICFTU, he isnow under house arrest.
686. In its communication of 24 August 1992, the ICFTU reportedthat the three persons arrested at the same time as Mr Han Dongfangare Messrs Zou Guoqiang, Zhang Jinli and Song Jie. Two other Beijingmilitants, Lee Jingsheng and Wang Guoqi, were arrested on the sameday.
B. THE GOVERNMENT’S REPLY
687. In its communication of 19 October 1992, the Government statedthat the accusations made against it were unfounded. This was a seri-ous case of interference in the internal affairs of a sovereign State. Atotally false connection had been made between a civil dispute concern-ing Han Dongfang’s apartment and the question of freedom of association.The inclusion of this “complaint” in the list of cases submitted to theCommittee on Freedom of Association was thus inappropriate and to-tally unacceptable to the Government.
688. According to the Government, the ICFTU “complaint” at leastdemonstrated that organization’s prejudice against China and its igno-rance of the situation. In fact, the Government had always placed greatimportance on the protection of freedom of association. The Constitutioncontained provisions clearly stating that Chinese citizens enjoyed exten-sive rights, especially in the field of trade unions. According to article 35of the Constitution, citizens of the People’s Republic of China enjoy
5
10
15
20
25
30
35
40
45
744 ILO Committee on Freedom of Association (1994) 4
freedom of speech, of the press, of assembly, of association, of processionand of demonstration.
689. On 3 April 1991, the National People’s Congress adopted a newAct concerning trade unions. In conformity with the Constitution, sec-tion 3 of the Act clearly establishes that “all persons engaged in manualor intellectual work and employed by an enterprise, an institution or anoffice in Chinese territory, and who are primarily wage-earners, havethe right to form and join trade unions, in conformity with the law,regardless of their ethnic status, their race, sex, occupation, religiousbeliefs or level of education”. According to the Government, this provesthat the right of workers to form and join organizations of their choice isguaranteed in full.
690. As regards Mr Han Dongfang, the Government states that, on14 May, this person quarrelled with members of the court personnelover a dispute concerning his apartment. A stop was put to his attacksagainst the court. In August, Han Dongfang withdrew his complaint.This has nothing to do with freedom of association.
691. The Government added that the cases concerning members ofworkers’ autonomous federations, illegal organizations, had been settledin conformity with the judicial procedures in force in China. Explana-tions in this respect had already been provided in the context of Case No1500. Han Dongfang and his wife had recently left China having ob-tained the necessary passes under the normal procedures. They are atpresent in the United States. It is not difficult to deduce, according tothe Government, that the “complaint” of the ICFTU is politically moti-vated. The reputation of the ILO would be called in question if this“complaint” were to be included in the list of cases before the Commit-tee, contrary to the position expressed by the Government.
692. In its communication of 13 January 1993, the Government statedthat the ICFTU accusation that the new Trade Union Act (which stipu-lates that the trade unions should “further socialist modernization”) hasdeprived the workers’ organizations of their freedom to formulate theirprogrammes in conformity with Article 3(1) of Convention No 87, wasindefensible. The Government points out that section 1 of this Act statesthat “it was formulated in accordance with the Constitution of the Peo-ple’s Republic of China and with a view to guaranteeing the position ofthe trade unions in the country’s political, economic and social life, todefine their rights and obligations and to establish their role in thecause of socialist modernization”. The primary objective which guidedthe preparation of the Act was to ensure the place of the trade unions innational life. China’s Constitution proclaims that “China is a socialistState led by the working class”, and the Trade Union Act states that“the trade unions are mass working class organizations formed by theworkers of their own free will”. The Government maintains that allthese provisions clearly demonstrate that the trade unions in China are
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 745
mass organizations formed by the country’s ruling class, which meansthat the important position of the unions in the country’s social life andthe extensive rights that they enjoy are fully guaranteed.
693. The Government goes on to state that the progressive advanceand remarkable achievements of socialist modernization, which havemade the country flourish and its people prosper, have made it possiblefor the workers to improve their living conditions considerably. Thiscause has won the support of the working masses, and the statutes ofthe Chinese trade unions, approved by the National Congress of TradeUnions of China, expressly stipulate that “the principal role of the work-ing class must be brought fully into play in the construction of materialand spiritual socialist civilizations”. It is therefore obvious, according tothe Government, that the new Trade Union Act, by demanding that “theunions should play a role in socialist modernization”, is a response tothe demands and aspirations of the workers and corresponds to thefundamental interests of hundreds of millions of Chinese workers andtheir organizations.
694. The Government also declares that, in their activities, the Chi-nese trade unions have always acted independently, in accordance withChinese law and trade union statutes. Section 4 of the new Act stipu-lates that the unions “shall work independently in conformity with thetrade union statutes”, and that “the National Congress of Trade UnionRepresentatives shall undertake to elaborate or revise the Chinese tradeunion statutes”. The Act further contains provision that “the State shalldefend the legitimate rights and interests of the trade unions against allviolations”. The Government concludes that Chinese law and practiceare in conformity with the right of the trade unions to draw up theirown constitutions and rules, as guaranteed by Convention No 87.
695. In respect of the ICFTU allegation that Articles 2 and 7 of theConvention on freedom of association are being violated in China, sincethe grass-roots unions are placed under the strict control of the NationalFederation of Trade Unions of China, and since the establishment oftrade unions requires the authorization of the Federation, the Govern-ment maintains that it is untenable. The Government quotes from thenew Trade Union Act, which stipulates that “a National Federation ofTrade Unions of China shall be established as the country’s amalga-mated trade union organization” (section 12), and that “the establishmentof grass roots organizations, regional trade union federations, sectoraltrade union organizations at national or local level shall be subject tothe approval of the organization immediately above it” (section 13), andit considers that these articles concern the principle governing the or-ganization and operation of the trade unions, making it possible toincrease the number of trade union members and to gather together theopinions of the trade unions at different levels, so that the workers’rights and interests may be better protected.
5
10
15
20
25
30
35
40
45
746 ILO Committee on Freedom of Association (1994) 4
696. The Government explains that the establishment by law of anamalgamated federation of trade unions at national level was deter-mined by China’s historical and present context and is in keeping withthe aspirations of the vast majority of workers and their unions. Theemergence, during the “Cultural Revolution” of 1966 to 1976, of innu-merable trade union organizations, with the accompanying trade unionpluralism and sectarianism, exacerbated the contradictions among theworkers and gave rise to agitation and instability in the country. Theworkers, who had suffered from this fragmentation, called for tradeunion unity in order to better support the interests of the workers as awhole. The new Trade Union Act clearly states that workers have theright to join trade unions or to organize them in conformity with thelaw, without any distinction whatsoever. Consequently, the Governmentconsiders that the relevant provisions of the Act are entirely compatiblewith Articles 2 and 7 of Convention No 87.
697. As for the allegation by the ICFTU that “the main reason forthe adoption of the new Act concerning the trade unions is to establishthe unions firmly in their role of intermediaries between the workersand the employers with a view to defending the interests of the latter asis borne out by the provisions concerning work stoppages”, the Govern-ment considers this to be an arbitrary judgement and a tactless andabsurd interpretation. It points out that section 6 of the new Act stipu-lates “by defending the global interests of the entire Chinese people, thetrade unions are protecting the legitimate rights and interests of theworkers”, that it has increased the rights of the trade unions and that,at the same time, many other laws also contain concrete provisionsconcerning the trade unions’ defence of the workers’ interests. The Gov-ernment quotes, as examples, the Act concerning industrial enterprisesowned by the entire people and the Act concerning safety in mines,under the terms of which the workers’ assemblies are government bod-ies enabling the workers to engage in democratic management, that “theunion committees at the workplace deal with the day-to-day affairs ofthe workers’ assemblies” and that the workers’ assemblies have theright to examine, approve or veto, as the case may be, a number ofdecisions concerning the enterprises. It is therefore clear, according tothe Government, that the body of relevant laws unequivocally protectsthe trade unions in order to preserve the workers’ interests.
698. In respect of the participation of trade unions in the “amicablesettlement” of such problems as work stoppages or selective strikes, theGovernment specifies that this is also a right designed to ensure thesolution of “problems that have been raised by the employees in a rea-sonable manner and that can be settled”. On this basis, it helps “torestore the normal order of production”. The Government adds thatnegotiated settlement of disputes between employees and employers isan internationally accepted practice.
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 747
699. As to the matter of strikes, the Government states that, whilethe Constitution has not prescribed this right, it has not banned it; norhave the other laws. Such work stoppages and strikes as have occurred(according to the Government, a few dozen in 1990 in the province ofGuangdong occasioned by the violation of statutory provisions and la-bour contracts in foreign-owned enterprises, and a few work stoppagesin unprofitable or loss-making state enterprises) were settled fairly as aresult of consultations between the parties concerned in the spirit of thedefence of the interests of the workers and of the enterprises, and thepreservation of social stability.
700. In respect of the allegation concerning the arbitrary dismissalof 46 workers by the Shanghai-Bell Company in 1991, the Governmentdeclares that this accusation is unfounded and that a Ministry of Labourinvestigation has revealed that only four workers were dismissed forhaving infringed disciplinary regulations, 55 other workers having leftthe enterprise for various reasons (return to the unit of origin afterexpiry of the transfer contract, decision by the workers not to requestextension of contracts that had reached their term, retirement, depar-ture for another country, health reasons). It explains that, in accordancewith the regulations on labour management in joint venture enterprises,these enterprises have the right to dismiss workers who have seriouslyinfringed labour regulations. It is obvious therefore that the above-men-tioned cases are part of the normal movement of labour and not arbitrarydismissals.
701. Returning to the situation of Mr Han Dongfang, the Govern-ment claims to have obtained the following information from thedepartments concerned: Han Dongfang and a few other persons wereprevented, at the beginning of June 1992, from organizing a demonstra-tion in Tiananmen Square because they had not registered in advancewith the competent Beijing local government departments, in violationof local government regulations concerning demonstrations and assem-blies. According to the Government, Zhou Guoqiang, Zhang Yanan, SongJie and other persons who were with Han Dongfang have never beenquestioned, interrogated or detained by the police. Han Dongfang, whowas involved in a property dispute, came into conflict with the tribunalpersonnel and disrupted the proceedings of the court without good rea-son, following which he was arrested. The Government repeats itsstatement that Han Dongfang, having withdrawn from this civil actionof his own accord in August 1992, obtained permission to leave Chinaand is at present living with his wife in the United States.
702. In respect of the “complaint” concerning Tang Yuanjuan, em-ployed at the Changchun No 1 automobile factory, and his accomplices,the Government states that, according to the police authorities in thetown of Changchun, a tiny handful of persons, among them TangYuanjuan, in a vain attempt to overthrow the lawful Government of
5
10
15
20
25
30
35
40
45
748 ILO Committee on Freedom of Association (1994) 4
China by subversion, violated Chinese criminal laws. Tang Yuanjuanand his accomplices, Lin Wei and Leng Wanbao, received prison sen-tences of 10, three and seven years respectively, for the crime ofsubversion.
703. The Government has also supplied information concerning thelist of persons accompanying the ICFTU complaint and states that, hav-ing questioned the police authorities, it has obtained the followinginformation: 13 persons have been released, acquitted of criminal re-sponsibility; 11 persons have received prison sentences of between threeand 15 years for disturbance of public order, the crime of subversionagainst the Government, looting or theft. It adds that a certain Chenhas not been identified as no first name was given, and that the otherpersons on the ICFTU list have never been questioned, interrogated ordetained, either by the state security services or by the police authori-ties (see Annex).
704. The Government concludes by formally stating that, in view ofthe Trade Union Act and bearing in mind the above, the “complaint”filed by the ICFTU against China is totally unfounded.
C. THE COMMITTEE’S CONCLUSIONS
705. Before examining the substance of the case, the Committeeconsiders itself obliged to reply to the objections raised by the Govern-ment in respect of procedure. The Government considers that theaccusations made against it constitute a serious act of interference inthe internal affairs of China and that the inclusion of the complaint onthe list of cases pending before the Committee is both inappropriate andunacceptable.
706. The Committee notes that the Government had already devel-oped this same type of argument on the occasion of an earlier caseconcerning China. [See 268th Report, Case No 1599, para 691.] TheCommittee is obliged to refer to the comments formulated by it on thatoccasion. The Committee is bound to point out that the ILO, by virtue ofits Constitution, was established, in particular, to improve conditions oflabour and to promote freedom of association in the various countries. Itfollows, as emphasized by a Commission on Inquiry appointed by theGoverning Body [see Official Bulletin, special supplement, Vol. LXVII,1984, series B, para 466], that the matters dealt with by the Organiza-tion in this connection no longer fall within the exclusive sphere ofStates and that the action taken by the Organization for the purposecannot be considered to be undue interference in internal affairs, since itfalls within the terms of reference that the ILO has received from itsMembers with a view to attaining the aims assigned to it. The Commit-tee therefore considers the Government’s objection to be devoid of legalrelevance.
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 749
707. In respect of the statement concerning the inappropriateness ofopening a case, the Committee is bound to point out that the complaintfiled is perfectly admissible, since it was submitted by an organizationpossessing general consultative status within the ILO. It was thereforetransmitted to the Government by the ILO which was bound to act thusunder the terms of the procedure.
708. Bearing all these elements in mind, the Committee thereforeconsiders itself obliged to examine the matter in question.
709. The Committee points out that this case concerns questions oflaw and questions of fact. In respect of the first aspect of the case, thecomplainant organization alleges that the new Trade Union Act adoptedin April 1992 is contrary to ILO standards and principles. As for thequestions of fact raised by the ICFTU, they concern pressure — includ-ing physical pressure — brought to bear against independent trade unionmilitants, conviction, detention, and dismissal of workers and measuresto obstruct the functioning of independent unions, in particular the FreeTrade Union of China which announced its existence in May 1992.
710. In respect of the new Trade Union Act, the ICFTU condemns inparticular the obligation on the trade unions to further socialist mod-ernization; the control exercised by the Federation of Chinese TradeUnions on the grass-roots organizations; and the obligation on the un-ions, in cases of work stoppages, to take part in consultations and tonormalize production as soon as possible, and the obligation of tradeunions to follow the instructions of the Communist Party.
711. The Government, for its part, argues that the Act, by demand-ing that socialist modernization be turned to good account, is acting inresponse to the workers’ aspirations as expressed by the National TradeUnion Congress. The unitary nature of the Trade Union Federation islikewise in keeping with the will of the workers and is explained byChina’s historical and present context. Finally, trade union participa-tion in the amicable settlement of problems is intended to ensure theirsolution, in conformity with international custom.
712. The Committee has examined those provisions of the TradeUnion Act referred to in the allegations. It points out that, under theterms of section 1, the Act was adopted in order to guarantee the statusof trade unions in the country’s political, economic and social life, todefine the rights and obligations of trade unions and to enable them totake an active part in socialist modernization. The Committee considersthat this provision is couched in general terms without imposing par-ticular obligations and, for this reason, does not constitute a violation offreedom of association.
713. However, the Committee observes that this provision is supple-mented by other sections that place greater constraints on the tradeunion organizations. Thus, under the terms of section 5 “the trade un-ions shall organize and educate workers and employees ... in order to
5
10
15
20
25
30
35
40
45
750 ILO Committee on Freedom of Association (1994) 4
... defend the power of the socialist State”. In accordance with section 8“the trade unions shall mobilize and educate workers and employees sothat they . . . respect work discipline”. They “shall organize workers andemployees by conducting socialist emulation campaigns at the workplace”.Finally, section a stipulates that “the trade unions shall educate work-ers and employees . . . in order to strengthen their ideological convictions”.
714. The Committee considers that the functions assigned to thetrade unions by this body of provisions must necessarily limit their rightto organize their activities, contrary to the principles of freedom of asso-ciation. It is of the opinion that the obligations thus defined, which theunions must observe, prevent the establishment of trade union organi-zations that are independent of the public authorities and of the rulingparty, and whose mission should be to defend and promote the interestsof their constituents and not to reinforce the country’s political andeconomic system.
715. In respect of the control exercised by the Federation of ChineseTrade Unions over the grass-roots organizations, the Committee pointsout that, by virtue of section 11, “the trade union organizations at thevarious levels shall be formed in accordance with the principle of demo-cratic centralism” and “the trade union organizations at a lower levelare subject to the trade union organizations of the levels immediatelyabove them”. Furthermore, under the terms of section 4, “the NationalCongress of Trade Union Members shall establish and amend the consti-tutions of trade unions in China”. Section 13 specifies that “theestablishment of grass-roots trade unions, local federations and nationalor local branch organizations shall be subject to approval by the unionsat the level immediately above”. Finally, “the Single Federation of TradeUnions of China shall be established for the entire country”.
716. It appears obvious therefore, in the Committee’s view, that thislegislation imposes a single trade union structure in the country. TheCommittee has indeed taken note of the Government’s statements thatthe unitary nature of the Federation is in keeping with the will of theworkers and can be explained by China’s historical and present context.However, the Committee is bound to emphasize that, even in a situationwhere, historically speaking, the trade union movement has been organ-ized on a unitary basis, the law should not institutionalize this situationby referring, for example, to the Single Federation by name, even if it isreferring to the will of an existing trade union organization. In fact, therights of workers who do not wish to join the Federation or the existingtrade unions should be protected, and such workers should have theright to form organizations of their own choosing, which is not the casein a situation where the law has imposed the system of the single tradeunion.
717. The Committee also takes the view that subjecting grass-rootsorganizations to the control of trade union organizations at a higher
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 751
level, the approval of their establishment by the latter, and the estab-lishment by the National Congress of Trade Union Members of theconstitutions of Chinese trade unions constitute major constraints onthe right of the unions to establish their own constitutions, organizetheir activities and formulate their programmes.
718. As regards labour disputes, the Committee takes note that “theunion shall participate in conciliation procedures in the event of a la-bour dispute within the enterprise. The regional institutions responsiblefor arbitration in cases of labour disputes shall include representativesof the trade unions at the appropriate levels” (section 20 of the TradeUnion Act). Moreover, “in the case of a work stoppage or go-slow in anenterprise, the union, in association with the administrative authoritiesor the parties concerned in the enterprise, shall seek, by means of con-sultation, to satisfy the reasonable requests of the employees and workers,so as to ensure a return to normal production as soon as possible” (sec-tion 25).
719. The Committee takes note of the role that the Act assigns totrade union organizations with a view to settling labour disputes. Theseprovisions, couched in general terms, do not in themselves imply that itis illegal to resort to strike action. The Committee further notes thatneither the Constitution nor the Trade Union Act deal with the right tostrike, either to authorize it or to ban it. However, the Committee isaware of the terms of the provisional regulations concerning labour dis-putes in state enterprises, which were published in the Official Gazetteof 31 August 1987 and came into effect on 15 August 1987. These regu-lations establish conciliation and arbitration procedures to resolvecollective and individual labour disputes. Where the conciliation proce-dure results in an agreement, the two parties are bound to respect andapply the agreement rigorously. Should no agreement be reached, one ofthe two parties may request arbitration (section 14). In the event of anobjection to the arbitral award, one or both parties may appeal to thePeople’s Court of Justice (section 25). Finally, any person involved in alabour dispute who causes a disturbance in the mediation and arbitra-tion proceedings or disrupts normal work or production processes will bepunished in accordance with the provisions of the final regulation con-cerning public safety of the People’s Republic of China (section 28).
720. The Committee observes that these provisions appear to intro-duce a conciliation and arbitration procedure to settle labour disputeswhich allows no possibility of resorting to strike action, as this wouldappear to be liable to sanctions under the terms of section 28. If such isindeed the case, this situation would be contrary to the principles offreedom of association. The Committee therefore requests the Govern-ment to provide details on legislation and practice in respect of thesettlement of collective labour disputes and to specify in particularwhether the provisional regulations of 1987 are still in force.
5
10
15
20
25
30
35
40
45
752 ILO Committee on Freedom of Association (1994) 4
721. As regards the allegations of fact formulated by the ICFTU, theCommittee takes note of the observations submitted by the Governmentconcerning the situation of Mr Han Dongfang, leader of the BeijingAutonomous Workers’ Federation. The Committee, while regretting thefact that he had initially encountered difficulties with regard to leavingthe territory, notes in particular that Mr Han Dongfang was finallyallowed to leave China and that he is at present living in the UnitedStates. Nevertheless, it asks the Government to supply its observationson the allegations according to which Mr Han Dongfang has been sub-jected to pressure, including physical beatings.
722. The Committee notes, on the other hand, that Mr Han Dongfangand several other persons mentioned by the complainant were preventedfrom organizing a demonstration in Tiananmen Square in June 1992,but that they had not been arrested.
723. With regard to the ICFTU allegation that Messrs Tang Yuanjuanand two of his four companions, Liu Wei and Leng Wambao, had beensentenced by the police authorities of the town of Changchun to ten,three and seven years of imprisonment and forced labour, respectively,the Committee notes that, according to the Government, these namedpersons had committed acts of subversion and attempted to overthrowthe Government. The Committee, considering that these comments areof too general a nature to allow it to pronounce an opinion with fullknowledge of the facts requests the Government to specify preciselywhat concrete acts were committed by the persons concerned that theyshould have been convicted of subversion. However, in this respect theCommittee must recall, as it already did in Case No 1500 [see 279thReport, para 637] that the “education through labour” system consti-tutes a clear infringement of basic human rights, the respect of which isessential for the exercise of trade union rights.
724. With regard to the list provided by the ICFTU in the annex toits complaint, containing the names of persons who, according to thatorganization, were arrested and in some cases sentenced, the Committeenotes that the Government has supplied information on all persons ap-pearing on that list. According to this information, 13 persons have beenreleased, acquitted of criminal responsibility, and 11 persons have re-ceived prison sentences ranging from between three and 15 years, inparticular for subversion, disturbance of public order looting or theft.The other persons mentioned on the list have, according to the Govern-ment, never been questioned, interrogated or detained.
725. Although noting that certain persons mentioned in the com-plaint have been released, the Committee is bound to express its acuteconcern at the severity of the sanctions pronounced by the tribunals,very often on grounds of disturbance of public order, charges which, inview of their general character, might make it possible to repress activi-ties of a trade union nature. As it did on the occasion of Case No 1500,
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 753
the Committee requests the Government to arrange for the cases inquestion to be re-examined in order to put an end to these detections.The Committee requests the Government to provide it with informationconcerning further developments in this respect.
726. With regard to the allegations concerning the dismissal of work-ers at the Shanghai-Bell enterprise, the Committee notes that theGovernment has explained that four workers were dismissed for breachof disciplinary regulations. As the communication from the complainantmade no mention of trade union grounds for these dismissals, the Com-mittee is not in a position to pronounce an opinion in this respect.
727. Finally, the Committee points out that the ICFTU had allegedthat a Communist Party directive had demanded an in-depth investiga-tion to track down the Free Trade Union of China, an independentorganization which had announced its existence in May 1992. The Com-mittee requests the Government to submit its comments on thisallegation.
THE COMMITTEE’S RECOMMENDATIONS
728. In the light of its foregoing interim conclusions, the Committeeinvites the Governing Body to approve the following recommendations:(a) Taking note that many provisions of the Trade Union Act adopted in
April 1992 are contrary to the ILO’s fundamental principles con-cerning the right of workers without distinction whatsoever to formand join organizations of their own choosing without previous au-thorization and the right of trade unions to establish theirconstitutions, organize their activities and formulate their pro-grammes, the Committee requests the Government to take thenecessary steps to ensure that the provisions in question, mentionedin the conclusions, are modified.
(b) The Committee requests the Government to provide information onlegislation and practice in respect of collective labour dispute settle-ment and to indicate in particular whether the provisional regulationsof 1987 are still in force.
(c) The Committee asks the Government to supply its observations onthe allegations according to which Mr Han Dongfang has been sub-jected to pressure, including physical beatings.
(d) The Committee requests the Government to state precisely whatconcrete acts were committed by Messrs Tang Yuanjuan, Lin Weiand Leng Wambao that they should have been convicted of subver-sion by the police authorities of Changchun.
(e) Although noting that certain persons mentioned in the complainthave been released, the Committee expresses its serious concern atthe severity of the sanctions pronounced by the tribunals against theworkers who are members or leaders of workers’ autonomous federa-
5
10
15
20
25
30
35
40
45
754 ILO Committee on Freedom of Association (1994) 4
tions; it asks that these cases be re-examined in order to put an endto the detention of these workers mentioned in the Annex. It re-quests the Government to provide it with information on furtherdevelopments in this respect.
(f) The Committee requests the Government to submit its observationson the allegations concerning the demand by the Communist Partythat an in-depth investigation be conducted to track down the FreeTrade Union of China.
Report of the Committee on Freedom of Association of March1994
368. The Committee examined this case at its meeting of February1993 [see 286th Report of the Committee, paras 674–728, approved bythe Governing Body at its 255th Session (March 1993)] when it reachedinterim conclusions.
369. Subsequently, in a communication dated 23 August 1993, theInternational Confederation of Free Trade Unions (ICFTU) submittednew allegations. The Government provided additional replies in a com-munication received on 6 October 1993 and in a letter dated 31 January1994.
370. China has ratified neither the Freedom of Association and Pro-tection of the Right to Organize Convention, 1948 (No 87), nor the Rightto Organize and Collective Bargaining Convention, 1949 (No 98).
A. PREVIOUS EXAMINATION OF THE CASE
371. At its meeting in February 1993, the Committee examined acomplaint made by the International Confederation of Free Trade Un-ions (ICFTU) concerning the Trade Union Act of 3 April 1992 and acts ofpressure — including physical beatings — against independent tradeunion activities, the sentencing, detention and dismissal of workers andobstacles to the functioning of independent trade unions and, in particu-lar, the Free Trade Union of China which announced its establishmentin May 1992.
372. At this meeting, the Committee made the following recommen-dations [see 286th Report of the Committee, para 728):(a) Taking note that many provisions of the Trade Union Act adopted in
April 1992 are contrary to the ILO’s fundamental principles con-cerning the right of workers without distinction whatsoever to formand join organizations of their own choosing without previous au-thorization and the right of trade unions to establish theirconstitutions, organize their activities and formulate their pro-
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 755
grammes, the Committee requests the Government to take the nec-essary steps to ensure that the provisions in question, mentioned inthe conclusions, are modified.
(b) The Committee requests the Government to provide information onlegislation and practice in respect of collective labour dispute settle-ment and to indicate in particular whether the ProvisionalRegulations of 1987 are still in force.
(c) The Committee asks the Government to supply its observations onthe allegations according to which Mr Han Dongfang has been sub-jected to pressure, including physical beatings.
(d) The Committee requests the Government to state precisely whatconcrete acts were committed by Messrs Tang Yaunjuan, Lui Weiand Leng Wambao that they should have been convicted of subver-sion by the police authorities of Changchun.
(e) Although noting that certain persons mentioned in the complainthave been released, the Committee expresses its serious concern atthe severity of the sanctions pronounced by the tribunals against theworkers who are members or leaders of workers’ autonomous federa-tions; it asks that these cases be re-examined in order to put an endto the detention of these workers mentioned in the annex. It re-quests the Government to provide it with information on furtherdevelopments in this respect.
(f) The Committee requests the Government to submit its observationson the allegations concerning the demand by the Communist Partythat an in-depth investigation be conducted to track down the FreeTrade Union of China.
B. NEW ALLEGATIONS OF THE COMPLAINANT ORGANIZATION
373. In a communication dated 23 August 1993, the ICFTU makesnew allegations concerning the situation of Mr Han Dongfang, an offi-cial of the Autonomous Federation of Workers of Beijing. It explainsthat Mr Han Dongfang, after being detained without trial for 22 monthsbecause of his participation in the 1989 demonstrations on TiananmenSquare and his independent trade union activities, was released in No-vember 1991, when the Government withdrew its charges against him.Because of tuberculosis, which he contracted during his detention, theChinese authorities authorized him to travel to the United States wherehe remained from September 1992 to August 1993 to undergo medicaltreatment.
374. However, the complainant organization states that, after par-ticipating in the World Conference on Human Rights in Vienna and theInternational Labour Conference as a member of the ICFTU delegation,Mr Han Dongfang was informed of his dismissal by his employer, theBeijing Railway Authority. The ICFTU states that on 13 August 1993
5
10
15
20
25
30
35
40
45
756 ILO Committee on Freedom of Association (1994) 4
Mr Han Dongfang returned to China, through the city of Huizhou, fromwhere he wished to go on to Beijing. The following day, public securityofficials interrogated him in his hotel room in Guangzhou and forcedhim to leave China. His expulsion from China was against his will andwithout reason and he was beaten and injured.
375. According to the ICFTU, the only justification for this measureso far was given by the New China News press agency in Hong Kongwhich has reported that:
“Han Dongfang was released on probation by the authorities in Septemberto allow him to undergo medical treatment. Before his departure he prom-ised not to take any action against the Chinese Constitution or against thenational interest. However, once he arrived in the United States, HanDongfang did not keep his promise. That is why the competent Chineseauthority decided, in accordance with the law, to prohibit him from return-ing to Chinese territory.
376. The ICFTU alleges that this statement is incorrect. First, MrHan Dongfang was never released on probation; since the court decidednot to uphold the charges against him when he left for the UnitedStates, he could not be considered as a prisoner on probation. Secondly,he was never refused permission to return to China; when he was al-ready on Chinese territory he was expelled after being led to the frontierbetween Hong Kong and China by the security forces.
C. THE GOVERNMENT’S REPLY
377. In its reply received on 6 October 1993, the Government statesthat it has already set out the principles on which its position is basedin this case and that it would now like to clarify and explain certainpoints concerning the conclusions and questions raised by the Commit-tee in its 286th Report.
378. As regards legislation and practice concerning labour disputesettlement, the Government states that the Chinese policy and legisla-tion on this subject have been drawn up in accordance with the reformprocess and current opening up of the country and in the light of experi-ments successfully carried out in other counties and advice provided byILO experts. It explains that labour disputes are dealt with at threelevels: by mediation within the enterprise, by arbitration at the locallevel and by court decisions. Most medium and large enterprise have setup labour dispute mediation committees composed of representatives ofthe workers, management and the trade union. These committees ruleon labour disputes arising in the enterprise and which are submitted ona voluntary basis. Around 90 per cent of labour disputes are settled bythese mediation committees.
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 757
379. The Government goes on to say that there are at present morethan 2,800 local committees (at the level of the countries, towns, dis-tricts, large cities and provinces). They are made up on an equal numberof representatives of the labour administration, trade unions and enter-prises, and are responsible for the arbitration of labour disputes. Around70 per cent of the arbitration awards issued by the local committeesallow the disputes to be settled. When one of the parties to a disputedisagrees with the arbitration award, it may take the case to a people’scourt and, if it also disagrees with the decision made by this court, to theIntermediary Court which will issue a final and executory decision. TheGovernment states that the labour dispute settlement procedure pro-vides sufficient, effective and fair protection of the rights and interestsof enterprises and workers. To illustrate this statement, the Govern-ment gives two examples of labour disputes involving in each case awoman worker and an enterprise which were settled in favour of theworkers by the Intermediary Courts ruling on appeal. The Governmentalso quotes statistics gathered by the labour dispute arbitration institu-tions of Beijing which show that around one-third of more than 700disputes were settled in favour of the management of enterprises, one-third in favour of the workers and one-third after mediation.
380. As regards in particular the penalties contained in the Provi-sional Regulations of 1987, the Government states that these apply tooffences and crimes which are not a matter of freedom of association.Furthermore, it points out that the Provisional Regulations of 1987 onlabour dispute settlement in state enterprises was repealed on 1 August1993 and replaced by the Regulations on the labour dispute settlementin enterprises in the People’s Republic of China. As compared with theProvisional Regulations of 1987, the new Regulations: (i) now apply toall enterprises; (ii) extend arbitration to disputes on the application ofstate regulations on wages, insurance, welfare, training and the protec-tion of labour; and (iii) establish precise rules on arbitrators and thearbitration system by the courts to improve the sense of responsibilityand efficiency of staff in the field. The Government adds that the newRegulations also establish more clearly defined penalties for infringe-ments of the law. Thus section 37 lists a number of acts which areprohibited using the settlement of a labour dispute and for which thearbitration committee may criticize and educate persons having commit-ted these acts, order them to redress the acts and punish them inaccordance with the respective provisions of the “Penal Regulations onpublic safety of the People’s Republic of China”. The perpetration of aserious crime engages the criminal responsibility of the author. TheGovernment concludes that in the light of all these provisions there islittle likelihood of any violation of the principle of freedom of associa-tion.
381. As regards the allegations that Mr Han Dongfang was sub-
5
10
15
20
25
30
35
40
45
758 ILO Committee on Freedom of Association (1994) 4
jected to acts of pressure, including physical beatings, the Governmentreturns to the housing dispute in which this person was involved. Itstates that an inquiry which it carried out in 1983 shows that in 1983Mr Han Dongfang had concluded an agreement with an enterprise thatthe two-roomed apartment which he occupied with his family would betransformed into offices and that a four-roomed apartment would betemporarily provided for him until a three-roomed apartment, whichwas still being constructed, became available. However, on two occa-sions in 1985 and 1992, Mr Han Dongfang and his family once againinstalled themselves in the former two-roomed apartment, despite a newagreement reached with the enterprise in 1987 and the order to evacu-ate the premises given by the people’s court. During a hearing on thiscase, on 14 May 1992, Mr Han Dongfang insulted officials and injuredone of them with a chair. He also intentionally hit his head against atable and injured his own face with a chair in an attempt to intimidatethe court. The officials took steps to defend themselves against the inju-ries which Mr Han Dongfang was inflicting on them and to stop hisillegal action. The Government concluded that it was necessary for thecourt to take these measures which were moreover totally legal and thatMr Han Dongfang alone was responsible for the incident which occurredon 14 May 1992. According to the Government, the allegation that “jus-tice officials hit him with an electric truncheon and beat him unconscious”is totally unfounded.
382. As regards the sentencing on charges of subversion of MessrsTang Yangjuan, Liu Wei and Leng Wambao, the Government statesthat, as it had pointed out earlier, these persons were not sentenced toan “education through labour” system but to punishment ordered by thepeople’s court of the district of Changchun after being found guilty ofconspiracy to set up an illegal organization to overthrow the Govern-ment. In April 1989, these persons, along with others from the sameenterprise, secretly prepared for the establishment of an illegal organi-zation with Mr Tang as its leader. During the month of May, theyinstigated innocent workers to go on strike, to obstruct production andto attack the buildings of the municipal government. During the courseof public demonstrations, they called for the overthrow of the Govern-ment. On 23 May Messrs Tang and Liu, as well as other persons,disrupted public order on the central square of Changchun, which re-sulted in car accidents and the total paralysis of traffic on the squareand public disorder. The Government concludes that it was clear, duringthese events, that Messrs Tang Yangjuan, Liu Wei and Leng Wambaowere not exercising trade union activities or trying to protect the inter-ests of workers but on the contrary were infringing Chinese penal lawby endeavouring to set up an illegal organization to overthrow the Gov-ernment. This was why it was necessary and appropriate for the people’scourt to impose sanctions on them. Thus, according to the Government
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 759
it is incorrect to conclude that they were the victims of “a clear infringe-ment of basic human rights”.
383. As regards the allegation concerning the request of the Com-munist Party to carry out an in-depth inquiry to track down the FreeTrade Union of China, the Government states that, contrary to thestatement of the complainant organization, no trade union organizationcalled the “Free Trade Union of China” was ever set up in May 1992.There has furthermore never existed any directive ordering an inquiryinto this organization. The Government states that the claims concern-ing the Free Trade Union of China and the order to investigate thistrade union are only rumours.
384. As regards the severity of the sentences handed down by thecourts against workers who were members or officials of autonomousworkers’ federations, the Government states that it is well known thatChinese courts issue their verdicts in strict conformity with the actscommitted and in respect of the law. It adds that three other criminalswere released for good conduct. These were Messrs He Zhaohui, Li Jianand Zhang Xudong.
385. In its communication of 31 January 1994, the Government in-dicates that the decision of the competent national authority to declareMr Han Dongfang’s passport as null and void and to forbid him fromentering the country is fully legitimate and constitutes by principle ameasure to protect the security and interests of the Chinese State. Itexplains that prior to his departure to the United States, Mr HanDongfang undertook not to engage in anti-governmental activities abroad.According to the Government, however, once in the United States, hestarted to collaborate with anti-Chinese organizations which allegedlyfinanced him. Thus, as leader of an illegal organization — “The FreeTrade Union of China” — he allegedly published anti-governmental state-ments, carried out activities aimed at harming the interests of the Stateand tried to ruin China’s international prestige. The Government quotessome of the anti-governmental statements made by Mr Han Dongfangduring interviews, seminars and the 80th Session of the InternationalLabour Conference. The Government further states that Mr HanDongfang, having learnt of a false rumour according to which a workstoppage had taken place in a Chinese factory, contacted members of theFree Trade Union of China, provided them with funds and incited themto turn the masses against the Government and to create trouble.
386. According to the Government, Mr Han Dongfang, in carryingout these activities abroad, contravened the provisions of the Constitu-tion, the law governing state security and the law governing the entryand exit of Chinese nationals. The Government also states that duringthe enforcement of the above-mentioned decision, the contacts whichtook place between justice officials and Mr Han Dongfang were of anormal nature and that there was no intention to injure him. It adds
5
10
15
20
25
30
35
40
45
760 ILO Committee on Freedom of Association (1994) 4
that Mr Han Dongfang could still be authorized to return to his countryprovided that he fulfils the conditions fixed on 26 August 1993 by thespokesman of the Ministry of Public Security, namely (i) that he ac-knowledges that his activities abroad were harmful to the interests andprestige of the country and (ii) that he promises never again to carry outsuch activities against the Government and Chinese laws, and providedthat his actions do not diverge from his words after a verification period.
D. THE COMMITTEE’S CONCLUSIONS
387. The Committee must first of all regret that the Governmenthas not provided information on the measures taken to amend the manyprovisions of the Trade Union Act of April 1992 which the Committeeconsiders to be contrary to the principles of the ILO respecting freedomof association [see 286th Report, paras 709–718].
388. As regards the allegations concerning the request by the Com-munist Party for an in-depth investigation to be carried out to trackdown the Free Trade Union of China, the Committee also notes that theGovernment states in its reply of 6 October 1993 that, contrary to whatthe complainant organization has said, no trade union organization withthe name of “Free Trade Union of China” has ever been set up and nodirective has been issued ordering an investigation of this trade union.However, in its communication dated 31 January 1994, the Governmentseems to admit that the said organization exists given that it states thatit is an illegal organization. The Committee notes the contradiction be-tween these two statements.
389. In these circumstances, the Committee is obliged to draw onceagain the attention of the Government to the principles of freedom ofassociation whereby workers without distinction of any kind are entitledto set up without prior authorization organizations of their own choosingand that trade unions should be able to establish their statutes, organ-ize their activities and programmes of action in full freedom. TheCommittee therefore urges the Government to take the necessary meas-ures as soon as possible to amend the Trade Union Act of 1992 so that itgives full recognition to these rights and to guarantee the respect ofthese rights in practice. The Committee requests the Government tokeep it informed of any developments in this respect.
390. However, the Committee notes that the Government has pro-vided detailed information on national law and practice concerning thesettlement of labour disputes. Although it notes this information, theCommittee observes that it concerns essentially individual labour dis-putes and the manner in which these disputes are settled at the differentlevels. As regards in particular the settlement of collective labour dis-putes, the Committee notes that the Provisional Regulations of 1987were replaced on 1 August 1993 by the Regulations on labour dispute
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 761
settlement in enterprises in the People’s Republic of China which: (i)now apply to all enterprises; (ii) extend arbitration to disputes on theapplication of state regulations on wages, insurance, welfare, trainingand the protection of labour; and (iii) establish precise rules on arbitra-tors and the arbitration system by the courts to improve the sense ofresponsibility and efficiency of staff in the field.
391. The Committee notes that the 1993 Regulations no longer con-tain any provisions analogous to those of article 28 of the formerRegulations under which a person involved in a labour dispute, and whodisrupts the normal process of work or production, shall be sanctionedaccording to the provisions of the Penal Regulations on public safety ofthe People’s Republic of China. However, the new Regulations are de-signed in particular to maintain normal production and ordered activities.Sanctions are still applied in the event of interference in the mediationand arbitration procedure by a person involved in a labour dispute aswell as obstruction of the public functions of arbitrators (article 37(1)).In these circumstances, it seems clear that the new provisions continueto exclude recourse to strike as a means of defence of occupational inter-ests. The Committee requests the Government to take the necessarymeasures for workers and organizations to be able to exercise the rightto strike when they believe that this is necessary to support their claims.
392. As regards the other allegations pending from the examinationof this case in February 1993, the Committee notes that the Govern-ment states that Mr Han Dongfang, a leader of the AutonomousFederation of Workers of Beijing, acted in such a way during hearingson a housing dispute in which he was involved and in particular in-sulted and injured officials and, according to the Government, hit hishead intentionally against a table and injured his face with a chair in anattempt to intimidate the court. It was, therefore, necessary for thepeople’s court to take protective measures. The Committee notes thatthe Government adds that the allegation that “justice officials hit himwith an electric truncheon and beat him unconscious” is totally un-founded.
393. As regards the allegation according to which Mr Han Dongfangwas expelled forcibly from his country, the Committee notes the Govern-ment’s reply that the decision of the authorities to forbid him fromentering the country is fully legitimate and constitutes by principle ameasure to protect the security and interests of the Chinese State giventhat, contrary to what he promised prior to his departure to the UnitedStates, Mr Han Dongfang engaged in anti-governmental activities abroad,and incited members of the Free Trade Union of China — an illegalorganization according to the Government — to turn the masses againstthe Government and to create trouble.
394. The Committee observes that the Government also justifies thesaid decision because of the contravention by Mr Han Dongfang of the
5
10
15
20
25
30
35
40
45
762 ILO Committee on Freedom of Association (1994) 4
provisions of the Constitution, the law governing state security and thelaw governing the entry and exit of Chinese nationals, and that Mr HanDongfang could still be authorized to return to his country provided thathe acknowledges that his activities abroad were harmful to the interestsand prestige of the country and that he promises never again to carryout such activities against the Government and Chinese laws.
395. While noting this information, the Committee deplores the meas-ures taken against Mr Han Dongfang. It reminds the Government thatthe exile of trade unionists, which is in violation of human rights, isparticularly grave since it deprives the persons concerned of the possi-bility of working in their country. It is also a violation of freedom ofassociation since it undermines the trade union organizations by depriv-ing them of their leaders. The Committee also recalls that as regardsthe exile, banishment or placing under house arrest of trade unionists,the Committee, while recognizing that this procedure may be occasionedby a crisis in a country, has drawn attention to the appropriateness ofthis procedure being accompanied by all the safeguards necessary toensure that it shall not be utilized for the purpose of impairing the freeexercise of trade union rights. [See Digest of decisions and principles ofthe Freedom of Association Committee, 1985, 3rd edition, paras 133 and134.]
396. Regarding Mr Han Dongfang’s activities abroad which, accord-ing to the Government, justified his expulsion from the country, theCommittee insists on the importance that it attaches to what was pointedout by the International Labour Conference, namely that the right ofassembly, freedom of opinion and expression and, in particular, freedomto hold opinions without interference and to seek, receive and impartinformation and ideas through any media, constitute civil liberties whichare essential for the normal exercise of trade union rights (resolutionconcerning trade union rights and their relation to civil liberties, adoptedat the 54th Session (1970) [see Digest, op cit, para 74]. The Committeefurther considers that allowing a trade unionist to return to his countryon the condition that he no longer exercises the above-mentioned rightsis not compatible with freedom of association principles.
397. In the light of these principles, the Committee urges the Gov-ernment to cancel the expulsion order against Mr Han Dongfang andallow him to return if he wishes and exercise his trade union activitiesin full freedom. It requests the Government to keep it informed of meas-ures taken in this respect.
398. As regards the sentencing of Messrs Tang Yangjuan, Liu Weiand Leng Wambao, on charges of subversion, the Committee notes thatthe Government states that these persons were not sentenced to an“education through labour” system but to punishment ordered by thepeople’s court of the district of Changchun, in particular for havingconspired to create an illegal organization to overthrow the Government
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 763
and instigated innocent workers to go on strike, to obstruct productionand attack government buildings in the city.
399. The Committee is of the view that the observations made bythe Government do not establish in a sufficiently exact and detailedmanner that the heavy sentences against Messrs Tang Yangjuan, LiuWei and Leng Wambao were not due to activities of a trade union kind,but only to acts which went beyond their trade union functions andwhich were either detrimental to public order or of a political kind. TheCommittee recalls furthermore that it has already examined in casesconcerning China allegations on the sentencing of trade unionists tolong periods of imprisonment, very often on grounds of disturbance ofpublic order, charges which in view of their general character mightmake it possible to repress activities of a trade union nature. [See 279thReport, Case No 1500, para 635 and 286th Report, Case No 1652, para725.]
400. The Committee notes that the Government refers in its reply tothe release for good conduct of Messrs He Zhaohui, Li Jian and ZhangXudong. The Committee welcomes their release but regrets that theGovernment does not give any information on the review of the situationof many other persons who have been imprisoned and in some casessentenced, as mentioned by the complainant organization. In these cir-cumstances, recalling the danger to the free exercise of trade unionrights of measures of detention and sentencing against workers’ repre-sentatives for activities related to the defence of the interests of theirconstituents, the Committee once again requests the Government totake the necessary measures for a re-examination of all the cases men-tioned by the complainant organization with a view to the release ofthese persons (see appendix). It requests the Government to keep itinformed of any developments in this respect.
THE COMMITTEE’S RECOMMENDATIONS
401. In the light of its foregoing conclusions, the Committee invitesthe Governing Body to approve the following recommendations:(a) Recalling that workers without distinction of any kind must have
the right to set up without prior authorization organizations of theirown choosing and that trade unions must be able to draw up theirstatutes, organize their activities and formulate their programmesof action in full freedom, the Committee urges the Government totake the necessary measures as soon as possible to amend the TradeUnion Act of April 1992 so that it fully recognizes these rights andto guarantee the respect of these rights in practice. The Committeerequests the Government to keep it informed of any developments inthis respect.
(b) Noting that the provisions of the new Regulations on labour dispute
5
10
15
20
25
30
35
40
45
764 ILO Committee on Freedom of Association (1994) 4
settlement in enterprises in the People’s Republic of China of 1993seem to continue to exclude recourse to strike as a means of defenceof occupational interests, the Committee asks the Government totake the necessary measures to enable workers and their organiza-tions to exercise the right to strike when they believe it necessary tosupport their claims.
(c) The Committee deplores the expulsion order issued against Mr HanDongfang. Reminding the Government that the exile of trade union-ists, which is in violation of human rights, is particularly grave sinceit deprives the persons concerned of the possibility of working intheir country and constitutes a violation of freedom of associationsince it undermines the trade union organizations by depriving themof their leaders, the Committee urges the Government to cancel theexpulsion order against Mr Han Dongfang so that he can return tohis country if he wishes and exercise his trade union activities infull freedom and to keep it informed of measures taken in this re-spect.
(d) Although it welcomes the release for good conduct of Messrs HeZhaohui, Li Jian and Zhang Xudong, the Committee reminds theGovernment of the danger to the free exercise of trade union rightsof measures of detention and sentencing against workers’ representa-tives for activities related to the defence of the interests of theirconstituents. It requests it once more to take the necessary meas-ures to ensure that all the cases mentioned by the complainantorganization are re-examined and that the person concerned arereleased (see appendix). It requests the Government to keep it in-formed of any developments in this respect.
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 765
February 1993 Annex
ANNEX
Workers’ Autonomous Federation (WAF) leaders andmilitants arrested
Name Allegations by the Government replycomplainant
CHANGSHA AWF1. Cai Jinxuan Detained for eight months, Released, acquitted of
now released criminal responsibility2. Chen Bing Still detained, no Never questioned,
information on any trial interrogated or detained3. Chen Shuai Sentenced to two years’ Released, acquitted of
imprisonment, now releasedcriminal responsibility4. Chen Sentenced to death, Unidentifiable, no
executed first name supplied5. He Zhaojui Sentenced to four years’ Sentenced to four years’
imprisonment imprisonment fordisturbance of publicorder
6. Hu Nianyou Sentenced to life Sentenced to ten years’imprisonment imprisonment on charges
of looting7. Li Jian Sentenced to an unknown Sentenced to three
punishment years’ imprisonment fordisturbance of publicorder
8. Li Jie Detained for one year, now Released, acquitted ofreleased criminal responsibility
9. Li Xin Sentenced to three years’ Never questioned,imprisonment interrogated or detained
10. Lee Jianwei Sentenced to three years’ Never questioned,re-education through work interrogated or detained
11. Lee Wei Sentenced to two years’ Sentenced to fivere-education through work, years imprisonment fornow released the crime of subversion
against the Government12. Lee Xingqi Detained for six months, Sentenced to five years
now released imprisonment for theft13. Lee Yi Sentenced to an unknown Released, acquitted of
punishment criminal responsibility
5
10
15
20
25
30
35
40
45
766 ILO Committee on Freedom of Association (1994) 4
14. Lu Zhaixing Sentenced to three years’ Released, acquitted ofimprisonment criminal responsibility
15. Pan Mingdong Sentenced to two years’ Released, acquitted ofre-education through work criminal responsibility
16. Peng Yuzhang Interned in a psychiatric Released, acquitted ofhospital criminal responsibility
17. Tang Yixin Not yet tried Released, acquitted ofcriminal responsibility
18. Wang Sentenced to three years’ Never-questioned,Changhuai imprisonment interrogated or detained
19. Wang Hong Not yet tried Never questioned,interrogated or detained
20. Wu Tongfan Sentenced to an unknown Never questioned,punishment interrogated or detained
21. Yang Hong Not yet tried Released, acquitted ofcriminal responsibility
22. Yao Guisheng Sentenced to 15 years’ Sentenced to 15 years’imprisonment imprisonment for looting
23. Zhang Sentenced to 13 years’ Sentenced to 13 years’Jingsheng imprisonment imprisonment for
subversion against theGovernment
24. Zhang Xiong Sentenced to five years’ Sentenced to five years’imprisonment imprisonment for
looting25. Zhang Xudong Sentenced to four years’ Sentenced to four years’
imprisonment imprisonment fordisturbing public order
26. Zheng Yujua Not yet tried Never questioned,interrogated or detained
27. Zhou Min Sentenced to six years’ Sentenced to six years’imprisonment imprisonment for
subversion against theGovernment
28. Zhou Sentenced to two years’ Released, acquitted ofShuilong re-education through work, criminal responsibility
now released29. Zhou Yong Released Released, acquitted of
criminal responsibility
SHAOYANG AWF1. Li Wangyang Sentenced to 13 years’ Sentenced to 13 years’
imprisonment imprisonment forsubversion against theGovernment
5
10
15
20
25
30
35
40
45
HKPLR Case No 1652 v China 767
2. Li Xiaodong Sentenced to 13 years’ Never questioned,imprisonment interrogated or detained
3. Li Xiaoping Sentenced to six years’ Never questioned,imprisonment interrogated or detained
XIANGTAN AWF1. Wu Changgui Sentenced to three years’ Never questioned
re-education through work interrogated or detained
HENGYANG AWF1. Ding Longhua Sentenced to six years’ Released, acquitted of
imprisonment criminal responsibility2. Zhu Fangming Sentenced to life Released, acquitted of
imprisonment criminal responsibility
5
10
15
20
25
30
35
40
45
768 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
Re Thongchai Sanguandikul and the
Government of the United States of America
and another (No 2)
Court of AppealCiv App No 92 of 1993
Litton JA, Sears and Barnett JJDate of hearing — 26–27 August 1993Date of judgment — 27 August 1993
Extradition — Procedure — Habeas corpus — Grounds on whichcourt hearing habeas corpus application permitted to review thedecision of a magistrate to commit fugitive to await surrender —Whether facts which emerge subsequent to extradition hearingcan be relied on to impugn magistrate’s decision — Supreme CourtOrdinance (Cap 4) s 23(1)
Habeas corpus — Extradition proceedings — Renewed applica-tion — Fresh evidence — Whether evidence available to applicantsince extradition hearing may be relied on to impeach the deci-sion of the magistrate to commit fugitive to await surrender —“fresh evidence” — Supreme Court Ordinance (Cap 4) s 23(1)
On 16 January 1990 the appellant was indicted by a federal grand juryin the United States of America on charges related to conspiracy toimport heroin into the United States. On 2 November 1991 he wasarrested in Hong Kong pursuant to a request made by the Governmentof the United States for his extradition to stand trial on those charges.The matter came before a magistrate pursuant to an order to proceedissued by the Governor. Paragraph 7(1) of the Schedule to the Extradi-tion Act 1989, which applied to the conduct of the proceedings before theHong Kong magistrate, provides that a magistrate may commit a fugi-tive to await surrender to the requesting state if, inter alia, “such evidenceis produced as . . . would, according to the law of [Hong Kong], justifythe committal for trial of the prisoner if the crime of which he is accusedhad been committed in [Hong Kong]”. Following the hearing, the magis-trate ordered that the appellant be committed to await surrender to theUnited States. The magistrate based his decision to commit primarily ontwo affidavits sworn by an accomplice in the conspiracy, who was serv-ing a 5-year sentence in the United States when he swore the affidavits.
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 769
The appellant sought judicial review of the magistrate’s decision, aswell as a writ of habeas corpus. On 26 May 1992 Kaplan J dismissed bothapplications: (1992) 2 HKPLR 619. The appellant’s appeal against thisjudgment was dismissed by the Court of Appeal: (1992) 2 HKPLR 640.
The appellant’s solicitors subsequently obtained fresh material fromthe United States which they claimed impeached the co-conspirator’scredibility such that, if the magistrate had such material before him, hecould not as a matter of law have committed the appellant. The appel-lant applied again for a writ of habeas corpus. The application wasdismissed by Jones J in May 1993: [1993] HKLD E59. The appellantappealed to the Court of Appeal. He argued that the court hearing ahabeas corpus application must consider the position as of the date ofthe habeas corpus application, and that if the applicant could show thatat that date there was no evidence justifying committal, then the appli-cant should be discharged from custody.
To justify his reliance on the newly obtained evidence, the appellantinvoked s 23(1) of the Supreme Court Ordinance, which limits a person’sright to apply to the High Court for habeas corpus in respect of groundswhich have already been the subject of an application, “unless freshevidence is adduced in support of the application.”
Held (dismissing the appeal):
1. Where a fugitive who has been committed by a magistrate to awaitsurrender to a foreign state challenges the lawfulness of his detentionby way of an application for habeas corpus, it is not for the courtentertaining the application to examine all the evidence afresh anddecide whether upon such evidence the applicant should be commit-ted or discharged. The role of the court is supervisory and it may onlyexamine the legality of the order, including whether the magistratelacked jurisdiction to make the order, exceeded his jurisdiction indoing so, or acted in a manner that was Wednesbury unreasonable inmaking the order. (p 779, line 37 to p 780, line 2; p 781, lines 6–10)
R v Governor of Brixton Prison, ex parte Schtraks [1964] AC 556,followed; Anisminic v Foreign Compensation Commission [1969] 2 AC147, considered.
2. The legality of a committal order made by a magistrate in extraditionproceedings is to be determined as of the time the order is made andon the basis of the material before the magistrate at that time. Suchan order cannot be impeached because of a shift in the state of theevidence after the order is made. (p 775, lines 40–45; p 779, line 44 top780, line 2; p 781, lines 3–20)
5
10
15
20
25
30
35
40
45
770 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
3. “Fresh evidence” for the purpose of s 23(1) of the Supreme CourtOrdinance did not include evidence which had been available for sometime and which could have been used at the initial hearing by theexercise of reasonable diligence. While the appellants’ solicitors hadnot received the evidence now relied on until February 1993, it hadbeen publicly available since November 1991, before the first habeascorpus application was heard. In the absence of an explanation as towhy that material had not been obtained earlier, the evidence did notamount to fresh evidence within the meaning of the section. In anyevent, the evidence was neither relevant nor admissible. (p 778, lines5–24)
Ladd v Marshall [1954] 1 WLR 1489, considered.
Per Barnett J
Even assuming the evidence relied on by the appellant was admissi-ble for the purpose of attacking the magistrate’s finding of a primafacie case and that it was fresh evidence within the meaning of s23(1) of the Supreme Court Ordinance, it would not have afforded abasis for undermining the magistrate’s finding. (p 781, lines 28–33)
Per Litton JA
The procedures for extradition were straight-forward and, althoughthe judges involved had acted with admirable expedition, the appel-lant had been in prison for nearly two years. Such a delay couldseriously prejudice the fair trial of the appellant in the United States,and did not enhance Hong Kong’s international reputation for effi-ciency. While there was an understandable tendency for judges to erron the side of freedom where personal liberty was involved, the timehad perhaps come for judges dealing with ex parte applications forhabeas corpus in extradition cases to consider whether such applica-tions should be granted so readily or whether the application shouldbe made with notice to the other side. (p 778, line 27 to p 779, line 1)
G J X McCoy (instructed by Messrs Haldane Midgley & Booth), for theapplicant.
A A Bruce and R G McMeans (of the Attorney General’s Chambers), forthe respondents.
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 771
The following cases and materials are referred to in the judgment:
Anisminic v Foreign Compensation Commission [1969] 2 AC 147Ladd v Marshall [1954] 1 WLR 1489O’Reilly v Mackman [1983] 2 AC 237R v Governor of Brixton Prison, ex parte Schtraks [1964] AC 556USA v Robert F Hill, 20 December 1990
Evidence Ordinance (Cap 8), s 37Magistrates Ordinance (Cap 227), s 85(2)Supreme Court Ordinance (Cap 4), s 23(1)Rules of the Supreme Court (Cap 4, sub leg), O 54, rr 2, 8
Administration of Justice Act 1960 (UK), s 14(2)Extradition Act 1989 (UK), First Schedule, paras 1(2)(b), 6(1), 7(1), 8(1)United States of America (Extradition) Order 1976, Schedule 1
Extradition Treaty between the United Kingdom and the United Statesof America 1972, art VI
The following judgments were delivered.
Litton JA:
A long time ago, on 2November 1991, the appellant was arrested pursu-ant to a request made by the Government of the United States of Americafor his extradition, to stand trial on charges of conspiracy to importlarge quantities of heroin into the United States. Pursuant to an orderto proceed made by the Governor, MrA R Wright, a magistrate sittingat the Eastern Magistracy, heard the case against the appellant.
On 3March 1992, the magistrate made an order of committal underparagraph 7(1) of Schedule 1 to the Extradition Act 1989 (the “Sched-ule”) committing the appellant to prison pending his extradition to theUnited States.
Under paragraph 8(1) of the Schedule, where a magistrate commits aperson to prison, that person has a right to apply for a writ of habeascorpus. Fifteen days are given for this purpose. The Schedule is silent asto the grounds on which an application for a writ of habeas corpus mightbe made, except as to one instance. Paragraph1(2)(b) provides that afugitive shall not be surrendered if he proves, to the satisfaction of thecourt before whom he is brought on habeas corpus, that the requisitionhas in fact been made with a view to trying or punishing him for anoffence of a political character. No such consideration arises in this case.
5
10
15
20
25
30
35
40
45
772 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
The writ of habeas corpus is an ancient common-law remedy. Thebasis of the exercise of jurisdiction is the detention or imprisonment ofthe applicant without legal justification. This is clear from the form ofthe writ itself. When issued pursuant to O 54, r 10 of the Rules of theSupreme Court (Cap 4, sub leg) the writ commands the gaoler — in thiscase the Commissioner of Correctional Services — in the name of HerMajesty the Queen to bring the applicant before the Supreme Court toenable the court “then and there to examine and determine whether thedetention is legal”. Under paragraph 7(1) of the Schedule, a magistrateis empowered to commit a fugitive to prison pending extradition if theevidence produced at the hearing would justify, according to Hong Konglaw, the committal for trial of that person if the crime of which he isaccused had been committed in Hong Kong. The Hong Kong law whichjustifies the committal of an accused person for trial is contained in PartIII of the Magistrates Ordinance (Cap 227) and in particular s 85(2)which reads:
“If in the opinion of the magistrate, after hearing such evidence as afore-said and taking into consideration any statement of the accused, suchevidence is sufficient to put the accused upon his trial for an indictableoffence, or if the evidence given raises a strong or probable presumption ofthe guilt of the accused, then the magistrate shall order that the accusedstand committed for trial at the High Court”.
In this case the appellant was committed by the magistrate as long agoas 3March 1992, because the evidence produced at the hearing was suf-ficient to satisfy the requirement of paragraph7(1). Despite the two setsof habeas corpus proceedings which have been launched by the appellantsince that date — one heard by Kaplan J in May 1992* and the otherheard by Jones J in May 1993** which is the subject-matter of the presentappeal — there has never been any challenge to the basic proposition thaton the evidence before him the magistrate was entitled to commit the ap-pellant to prison pending extradition to the United States.
EVIDENCE AT COMMITTAL
The evidential basis of the magistrate’s order of committal consists oftwo affidavits of Albert Castagnola, an accomplice in the conspiracy toimport heroin from Thailand into the United States. At the timeCastagnola swore his affidavits he was serving a sentence of five years’imprisonment in the United States. The evidence consisted of a first-handaccount of the conspiracy which clearly implicated the appellant.
* [Eds] See (1992) 2 HKPLR 619 (HCt), upheld on appeal (1992) 2 HKPLR 640 (CA).** [Eds] See [1993] HKLD E59.
772 Court of Appeal (Litton JA) (1994) 4
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 773
On what basis then could it be said that the detention of the appel-lant pursuant to the committal order made by the magistrate wasunlawful?
FRESH EVIDENCE
The case as put on behalf of the appellant, on the basis of which LiuJallowed the writ to be issued on 2February 1993, was this: Fresh mate-rial which the solicitors for the appellant had managed to obtain fromthe United States since the making of the committal order demonstrates,as counsel for the appellant MrMcCoy puts it, that Castagnola is a “liarand a perjurer”; material which impeaches Castagnola’s credibility tosuch an extent that if the magistrate had such material at hand duringthe extradition hearing in March 1992, he could not, in law, have com-mitted the appellant; or, to put it in the language of paragraph7(1) ofthe Schedule, the evidence viewed as a whole would not have justifiedthe committal for trial of the appellant if the crime of which he wasaccused had been committed in Hong Kong.
This material comes from the trial of another accused person in USAv Robert F Hill in which Castagnola was a witness. The material issummarised in the solicitors’ supporting affirmation dated 2February1993. Counsel for the respondents does not accept that the material haseither been fairly or accurately summarised in the affirmation. But, asthe judge disposed of the matter and dismissed the appellant’s applica-tion for discharge without looking at the material itself, we are in thiscourt confined to the solicitors’ summary. The supporting documentshave not been included in the appeal bundle placed before us.
The material falls broadly into three categories. (1)The fact thatCastagnola is a heavily tainted witness. (2)Expressions of opinion of thepresiding judge, United States District Judge Kosik, concerningCastagnola as a witness in that trial and the judge’s comments on thequality of his testimony. (3)Castagnola’s admissions in the course ofcross-examination which discredited him as a witness in that trial.
I should say right away that as far as (2) above is concerned I cannotconceive of any circumstance whereby an expression of opinion of ajudge on the credibility of a witness in another trial can ever constitute“evidence”, whether adduced in the course of extradition proceedingsunder paragraph7(1) of the Schedule or in the course of committal pro-ceedings under s 85(2) of the Magistrates Ordinance.
As regards (1) above, the fact that Castagnola is a tainted witnesswith motives to implicate others is an accepted fact and nothing isgained by its repetition.
As to (3) above, it is unnecessary to set out all the matters summa-rised in the solicitors’ affirmation. A few samples will give its flavour:That Castagnola had lied repeatedly, claiming he was a decorated Viet-
5
10
15
20
25
30
35
40
45
774 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
nam war hero in order to be seen as a “big man” in the community; thatat the time he was allegedly negotiating drug deals with this appellantCastagnola was under the care of a psychiatrist for memory and atten-tion problems; that he took a Wexler intelligence test under doctor’s careand “scored a 78”, a “borderline deficient range”; that he took a facialmemory test and was able to recognise only four out of fifty faces.
IS THE “EVIDENCE” ADMISSIBLE?
For my part, I totally fail to see how the material was in any wayrelevant or admissible in the habeas corpus proceedings. In what waycould this evidence be admitted to show that the committal order of3March 1992 was unlawful, or, more accurately put, not justified inlaw? MrMcCoy’s answer, when the point was put to him in argumentyesterday, was this: The appellant has a legal right to apply for a writ ofhabeas corpus, exercisable within 15 days of the committal order, seeparagraph8(1) of the Schedule; when he does apply, the court is boundto look at the situation as it stands at the date of the application, and ifit can be shown at that date that there is no evidence capable of justify-ing the committal and detention, then the applicant must be dischargedfrom custody. In my judgment, this argument is fundamentally wrong.
Assume that the appellant is brought before the magistrate, chargedwith an indictable offence committed in Hong Kong, and after a commit-tal hearing under s 85(2) of the Magistrates Ordinance is committed fortrial. Assume further that the principal witness then retracts his evi-dence. Does this render the committal order unlawful? What happens ifthe witness resiles again? In my judgment the legality of an order ofcommittal is not transient and ephemeral. It does not depend on howthe wind blows from time to time.
Paragraph6(1) of the Schedule says that when a fugitive is broughtbefore a magistrate, the magistrate shall hear the case and shall havethe same jurisdiction and powers, as near as may be, as if the prisonerwere brought before him charged with an indictable offence committedin Hong Kong. If the legality of an order for committal for trial in HongKong cannot be impeached because of a shift in the state of the evidenceafter the committal was ordered under s 85 of the Magistrates Ordi-nance, equally it cannot be impeached if the committal is ordered underparagraph7(1) of the Schedule in extradition proceedings.
NATURE OF HABEAS CORPUS PROCEEDINGS
The matter can be further tested by looking at the relief sought in thenotice of appeal. As drafted, it seeks an order from this court that, inallowing the appeal, the appellant be discharged from custody. But asJones J decided the case on a preliminary point, and never weighed the
774 Court of Appeal (Litton JA) (1994) 4
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 775
material in the solicitors’ affirmation against Castagnola’s two affida-vits, and as the material is not before us now in this court, that plainlycannot be an order we can make. Seeing the force of the point, MrMcCoysought in the final moments of the hearing yesterday to amend thenotice of appeal so that, instead of ordering that the appellant be dis-charged from custody, we should make an order in these terms: “That aHigh Court Judge considers the evidence exhibited to the affirmation ofMrPeter Hui, the appellant’s solicitor, together with the evidence beforethe magistrate to determine whether there is a prima facie case forcommittal”. This would mean in effect that the High Court judge, inentertaining an application for habeas corpus, should examine all theevidence afresh and decide for himself whether upon such evidence theappellant should be committed or discharged. How is this a determina-tion of the legality of the detention as ordered by the magistrate, whichis the sole function of the judge in habeas corpus proceedings?
Consider the procedure at the “hearing” before the High Court judge.Order 54, r 8 of the Rules of the Supreme Court says that when theperson restrained is brought up in accordance with the writ his counselshall be heard first. But in committal proceedings the applicant is theforeign government seeking the extradition of the fugitive; for the pur-poses of the hearing which counsel submits we should order, who is theapplicant? What is proposed, as it seems to me, is to turn the habeascorpus process on its head. What MrMcCoy seeks is an order whichwould have the High Court judge usurping the functions of the magis-trate: functions which, as is common ground, the magistrate had lawfullyperformed in this case.
EXTRADITION PROCEEDINGS
The legal position as I see it is straight forward. By Article IX of theExtradition Treaty between the Governments of the United Kingdomand the United States of America, the two sovereign powers agreed thatextradition would be granted only if the evidence be found sufficientaccording to the law of the requested party to justify the committal fortrial of the person sought, if the offence of which he is accused had beencommitted in the territory of the requested party. This treaty has beenextended to Hong Kong by an Order-in-Council made on 15December1976 [United States of America (Extradition) Order 1976, Schedule 1].
Schedule 1 gives effect to the United Kingdom’s treaty obligations,vesting the power of committal in the magistracy. If upon the evidencebefore the magistrate there is a sufficient case for committal that, in myjudgment, is the end of the matter. The death of a vital witness, theretraction of his testimony, the discrediting of his evidence by subse-quent revelations, none of these matters can affect in the least thelegality of the committal order.
5
10
15
20
25
30
35
40
45
776 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
If the magistrate had based his decision to commit on evidence prop-erly tendered, the evidence cannot be subsequently reviewed in habeascorpus proceedings. The position would of course have been different ifafter the committal it was shown that an affidavit used in the proceed-ings was not the affidavit of the purported deponent at all: for instance,that he was dead at the time he had purportedly sworn that the con-tents were true. In such a case the magistrate would not have acted on“evidence” in committing the fugitive to prison pending extradition.Moreover there is no obligation falling upon the requesting governmentto put forward its whole case in seeking a fugitive’s extradition. It mightfor a variety of reasons, including the protection of the identity of sensi-tive witnesses, decide to adduce only such portions of the availableevidence as it considers sufficient to obtain the committal order. If avital witness dies or retracts his evidence, this may cause the caseagainst the fugitive to collapse, but it may not. This has nothing what-ever to do with the legality of the detention and can have no place inhabeas corpus proceedings.
In the court below, the first point taken by MrBruce, counsel for therespondents to the application — he was erroneously identified in thejudgment as counsel for the Crown — was that the evidence summa-rised in MrHui’s affirmation was inadmissible because it did not go tothe jurisdiction of the magistrate to commit. Upon this issue he citedSchtraks v Government of Israel [1964] AC556 and relied in particularupon the proposition as summarised in the headnote of that report (at558–559) to the effect that, in habeas corpus proceedings,
“the court did not rehear the case that was before the magistrate or hearan appeal from his order, but its function, apart from considering anyissue raised as to the offence charged being a political one, was to see thatthe prisoner was lawfully detained by his gaoler.”
In this case, MrMcCoy puts forward an interesting argument to thiseffect: Schtraks was decided in 1962 when the concept of “jurisdiction”was understood in a somewhat narrow sense; it took another six yearsbefore the House of Lords in Anisminic v Foreign Compensation Com-mission [1969] 2 AC 147 liberated the courts from the shackles of thisrestraint and gave the concept of jurisdiction of the inferior tribunalsexercising statutory powers a wider meaning. For this purpose he citedLord Diplock’s opinion in O’Reilly v Mackman [1983] 2 AC 237 at 278where he said:
“The breakthrough that the Anisminic case made was the recognition bythe majority of this House that if a tribunal whose jurisdiction was limitedby statute or subordinate legislation mistook the law applicable to thefacts as it had found them, it must have asked itself the wrong question,
776 Court of Appeal (Litton JA) (1994) 4
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 777
i.e., one into which it was not empowered to inquire and so had no jurisdic-tion to determine. Its purported ‘determination’, not being a ‘determina-tion’ within the meaning of the empowering legislation, was accordingly anullity.”
I fail to see the relevance of this to the circumstances of the presentcase. Plainly, the powers of a magistrate in extradition proceedings arelimited by statute. He cannot hear the application until the Governorhas issued an order to proceed; the offence alleged must be an extradi-tion crime; and the magistrate has no power to commit if the allegedoffence is of a political character.
As to the last two matters, paragraph6(2) of the Schedule requiresthe magistrate to receive evidence when tendered to that effect. I canreadily see therefore that where fresh evidence is tendered, as in Schtraks,which bears upon the magistrate’s jurisdiction, it is both relevant andadmissible; but in my judgment nothing short of that will do. Otherwisethe High Court judge in habeas corpus proceedings would be usurpingthe statutory functions of the magistrate, thereby himself transgressinghis own jurisdiction. The point seems to me to be overwhelming andshould have concluded the matter in the respondent’s favour then andthere.
HEARING BEFORE THE JUDGE
Unfortunately the case was complicated by the fact that the habeascorpus application before Jones J was a second one by this appellant,the first having been disposed of by the judgment of Kaplan J* andconfirmed by this court in Civil Appeal No 123 of 1992.** Thus, inevita-bly, the question arose before Jones J as to whether the evidence soughtto be adduced was “fresh evidence” in terms of s 23(1) of the SupremeCourt Ordinance which reads:
“Notwithstanding anything in any law or rule of court, where a criminal orcivil application for habeas corpus has been made by or in respect of anyperson, no such application shall again be made to the High Court or anyjudge thereof by or in respect of that person on the same grounds, unlessfresh evidence is adduced in support of the application.”
Much interesting argument has been put to us on the concept of“fresh evidence” and whether for its reception in habeas corpus proceed-ings such as these the three requirements in Ladd v Marshall [1954] 1
* [Eds] (1992) 2 HKPLR 619** [Eds] (1992) 2 HKPLR 640
5
10
15
20
25
30
35
40
45
778 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
WLR 1489 at 1491 need be met. I cannot for my part see any reason togo into this question: although I might add, in passing, that the expres-sion “fresh evidence” in s 23(1) is a simple one in the English language. Iwould not have thought it needed citation of copious authority to explainits meaning. “Fresh” is the opposite of “stale”; if the evidence had beenavailable for some time and by the exercise of reasonable diligence couldhave been used at the first hearing then it is not “fresh”.
Here the history was as follows. The case of USA v Robert F Hillended on 20December 1990 when the jury convicted Hill of conspiringto traffick in drugs and conspiring to launder money. This was nearly ayear before the appellant was arrested. The memorandum and order ofJudge Kosik upon which the appellant relies as fresh evidence is dated3September 1991 and became publicly available since that date. Thetranscript of the entire proceedings in USA v Robert F Hill containing,among other things, the evidence of Castagnola, became publicly avail-able since November 1991. The appellant’s solicitors affirm that it wasonly on 1February 1993 that they received “over six inches thick ofdocuments pertaining to Castagnola”. But no explanation is offered as towhy the material was not obtained by their associates in the UnitedStates before then. The hearing before Kaplan J took place in May 1992.On the face of it and in the absence of any explanation the materialseems to me to be stale. I agree with Jones J that the evidence does notamount to fresh evidence within the meaning of s 23(1).
CONCLUSION
In concluding this judgment I wish to make this observation. The proce-dures for extradition laid down in the Schedule are straight-forward.They are there to discharge the United Kingdom government’s interna-tional obligations. The provisions are reciprocal with those of othercontracting states. The courts of this territory are not in any way con-cerned with the guilt or innocence of the alleged fugitive. He hascommitted no wrong against our laws. As MrBruce observed in thecourse of the hearing yesterday, the worst that can happen to the appel-lant is that he is put on trial in the United States. He was indicted by agrand jury in the United States over three and a half years ago, on16January 1990, to stand trial on serious charges. The judges who haveentertained the habeas corpus applications, Kaplan J and Jones J haveacted with admirable expedition; and yet the appellant has been inprison in Hong Kong for nearly two years, since November 1991, whilstthe extradition process grinds on. Such delay can seriously prejudice thefair trial of the appellant in the United States. This does not enhanceour reputation for efficiency internationally. Perhaps the time has comefor judges dealing with ex-parte applications for writs of habeas corpusto take a much harder look at the material put before them and not
778 Court of Appeal (Litton JA) (1994) 4
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 779
grant the applications so readily. For this purpose it may be necessaryfor the listing clerk to reserve more time for the judges to read thepapers. Where personal liberty is involved there is an understandabletendency for judges to err on the side of freedom. But judges shouldremember that O 54, r 2 of the Rules of the Supreme Court gives them anumber of options: Instead of ordering the writ to issue, the judge candirect that the application be made with notice to the other side. It is ofcourse easy to be wise after the event, but the present case does seem tome to be one where the ex-parte application for the writ might well havebeen refused without injustice. The applicant would still have been enti-tled to appeal against such refusal to this court, but a few months’ timewould then have been saved.
For these reasons I would dismiss the appeal, and make an order nisithat the appellant should pay the costs of the appeal.
Sears J:
I agree that this appeal should be dismissed. Although some submis-sions before the judge were made with regard to the effect and meaningof s 23(1) of the Supreme Court Ordinance (Cap 4), the more fundamen-tal matter, which this appeal highlights, is whether any evidence can beadduced in habeas corpus proceedings arising from an extradition com-mittal to impugn the magistrate’s finding of a prima facie case.MrMcCoy’s main submission is that the High Court judge can in someway supervise the extradition order and quash it, if evidence is placedbefore him which demonstrates either (1) that the magistrate on thefacts should have come to a different conclusion or (2) that it is unfair toextradite the fugitive. This appeal is concerned with the first matter. Itis said the evidence with regard to Castagnola demonstrates that he isunreliable and tainted, and as he is the sole and uncorroborated witnessthen no reasonable magistrate could have found the prima facie case. Asfar as the second matter, MrMcCoy postulates the extreme example ofCastagnola having died after the extradition order, and submits that itwould be unfair to continue with the extradition as the United StatesGovernment would have no case.
The underlying fallacy of this submission is that the High Courtjudge in habeas corpus proceedings is only concerned with whether theapplicant is lawfully detained. In order to determine that, his only taskis to examine the legality of the magistrate’s order. The evidence whichtherefore is reviewable by the judge is that placed before the magistrate.If that evidence demonstrates that the decision of the magistrate, onthose facts, was Wednesbury unreasonable then the judge can granthabeas corpus. He is not permitted to consider anything else. The fac-tual decision crystallises at the time when the magistrate makes his
5
10
15
20
25
30
35
40
45
780 Court of Appeal (Litton JA, Sears and Barnett JJ) (1993) 4
order. Any additional matter which goes to his jurisdiction, however,can be placed before the judge.
MrMcCoy’s natural concern about unfairness in the event ofCastagnola’s death can be answered in two ways. First, the UnitedStates government may not continue with the extradition, or they mayhave additional evidence available. Secondly, the Governor has a re-sidual discretion and the fugitive is entitled to petition and rely on anymatter which would persuade the Governor not to extradite.
The principles underlying the decision in Schtraks v Government ofIsrael [1964] AC 556 are founded both on the scheme of extradition andfairness to the applicant. In my judgment, this appeal can be decided ona narrow ground. The evidence which was sought to be adduced is clearlyinadmissible and could not be utilised by the judge to impugn the magis-trate’s decision on the facts. For the reasons given by my Lord I agreethat this appeal must be dismissed.
Barnett J:
For the reasons given by my Lords, I agree this appeal must be dis-missed.
The issue, as I understood it, was whether the words “fresh evidence”contained in s 23(1) of the Supreme Court Ordinance include evidencedesigned to impeach the finding by a magistrate that there was a primafacie case. MrMcCoy asserted that they do. MrMcCoy’s argument wasbased upon the premise that there is some form of continuing supervi-sory role reposed in both the High Court and, if necessary, this court,when hearing an application for habeas corpus, or an appeal therefrom,by a fugitive against whom a warrant of committal has been issued andsigned by a magistrate. The court will, he argued, in an appropriate casebe brought up-to-date on the state of the evidence against the fugitiveand asked to test whether it is still sufficient to justify a finding that aprima facie case exists. In that way, unfairness to the fugitive, whoseliberty is at stake, can be ameliorated. That puts the argument some-what baldly but I believe it to be essentially correct; and thus stated Iventure to suggest that it demonstrates how untenable the argument is.
Extradition procedures are a compromise between the competing in-terests of comity of nations and the fugitive. The procedure which hasbeen devised is of a summary form. The magistrate who hears the caseis concerned with two matters. First, that certain technical require-ments have been met and second, that the evidence produced by theforeign state is sufficient to establish a prima facie case, or prove, ifappropriate, that the fugitive was convicted of a crime as alleged. Themagistrate, being satisfied on these matters, will commit the fugitive.Subject to the exercise of the Governor’s discretion there remains only
780 Court of Appeal (Barnett J) (1994) 4
5
10
15
20
25
30
35
40
45
HKPLR Re Thongchai Sanguandikul and the Government of USA 781
the surrender of, and it must be presumed a fair trial for, the fugitive atwhich his guilt, and I emphasize his guilt, will be determined.
A challenge to the lawfulness of a fugitive’s detention by habeas cor-pus must, I am satisfied, focus upon the state of affairs as at the time ofcommittal. It is the propriety of that committal based on material beforethe magistrate that is in issue. What is open to attack, in my judgment,is the jurisdiction of the magistrate in that he either lacked jurisdictionbecause, for example, the offence was not an extraditable offence, or heexceeded his jurisdiction, for example he misinterpreted the evidence sothat he wrongly found there to be a prima facie case. That latter consid-eration deals, I think at least in part, with MrMcCoy’s Anisminic pointthat jurisdiction is a wider concept than that envisaged by the House ofLords in the Schtraks case.
It is clear to me therefore that there is no room for a rehearing by ajudge on the basis of evidence that was not before the magistrate. What-ever criticism the decision by the House of Lords in Schtraks may haveattracted, in my judgment it was correctly decided and is binding on thiscourt. Fresh evidence going to the question of whether there is now aprima facie case is not admissible. It is not permissible thus to seek toimpeach the magistrate’s decision on the facts which were before him.
I accept of course that in Schtraks the House of Lords was dealingwith a first application for habeas corpus and did not therefore have todeal with s 14(2) of the Administration of Justice Act 1960 which is theequivalent of s 23(1) of the Supreme Court Ordinance. However, noargument has been advanced that convinces me that upon a subsequentapplication for habeas corpus the fugitive should be in any better posi-tion than he was upon his first.
I would add only this. I will assume that the evidence is admissiblefor the purpose of attacking the magistrate’s finding of a prima faciecase; I will assume also that the evidence upon which the appellanthopes to rely was fresh evidence within the meaning of s 23; yet I cannotsee that it was such evidence as would afford a basis for underminingthe magistrate’s finding. Despite the admitted lies and other defectsupon which the appellant pins his hopes, the witness Castagnola wasbelieved by a jury on the real matters in issue before them. If anything,I would have thought this evidence would provide comfort for the magis-trate rather than the reverse.
5
10
15
20
25
30
35
40
45
782 High Court (Mayo J) (1993) 4
R v Her Majesty’s Coroner of Hong Kong
W B G Banks, ex parte Lai Shu-wing and
others
High CourtMP No 3476 of 1992
Mayo JDate of hearing — 2 April 1993Date of judgment — 20 April 1993
Coroner — Inquest — Death by unlawful killing — Recklessness— Unlawful killing — Obvious risk — Serious risk — Whethersubjective or objective test to be applied
Coroner — Inquest — Directions to jury — Verdict
On 1 November 1991, an accident, in which five persons were killed,occurred on board a barge moored at the Hung Hom pier. The applicant,who had no formal engineering qualifications, was in charge of a team ofsix persons. The group had been using conventional means to try tostart the diesel engine of a generator. This did not work, so they appar-ently used oxygen to start the engine. An explosion occurred, killing fivemen and severely injuring a sixth.
An inquest was held. A focal area of inquires at the inquest concernedthe applicant’s knowledge of the use of oxygen and the extent of thehazard arising from this. The coroner directed the jury, which returnedverdicts of death by unlawful killing. The applicant sought an order ofcertiorari to quash those verdicts.
Held (quashing the verdicts):
1. The test to be applied in determining whether there was death byunlawful killing is a subjective test, not an objective one. The firstpart of the test deals with the question of whether there was anobvious risk. The second part of the test deals with the state of mindof the accused. Either he had not given any thought to the possibilityof there being such a risk or he had recognised that there was somerisk involved and had decided to proceed nonetheless. (p 787, lines29–35)
5
10
15
20
25
30
35
40
45
HKPLR R v Her Majesty’s Coroner of Hong Kong W B G Banks 783
R v Caldwell [1982] AC 341, followed.
2. The directions given by the Coroner were fatally flawed, as they pro-ceeded on a basis that the test to be adopted was an objective test andthat, if the applicant should have had a knowledge of the potentialdanger of using oxygen. In such circumstances, it would be appropri-ate to enter a verdict of unlawful killing. (p 788, lines 32–36)
R Tang QC and A Leong (Robert WH Wang & Co), for the applicant.S H Kwok (of the Attorney General’s Chambers), for the respondent.
The following cases and materials are referred to in the ruling:
R v Caldwell [1982] AC 341R v Kong Cheuk Kwan (1986) 82 Crim App R 18R v Lawrence (1981) 73 Crim App R 1R v West London Coroner, ex parte Gray and others [1987] 2 All ER 129
Archbold Archbold’s Criminal Pleading Evidence and Practice (1982)(2nd Supp 41st ed), paragraph 20.49
Mayo J delivered the following ruling:
The applicant is seeking an order of certiorari for each of the verdicts ofdeath by unlawful killing returned in respect of the deaths of 5 co-employees who died in an accident which occurred on 1 November 1991.The coroner’s inquest in question was held on 17, 18 and 19 October1992 and conducted by the respondent. The accident occurred on board abarge moored at the Hung Hom pier. The applicant who has no formalengineering qualifications was in charge of a team of 6 men. They wereattempting to start the diesel engine of a generator. Their efforts to dothis by conventional means were unavailing. There was evidence thatoxygen was then applied for this purpose. Very sadly there was a violentexplosion killing five of the men and severely injuring the sixth man.
One of the important areas for consideration at the inquest was thequestion of the applicant’s knowledge concerning the use of oxygen andthe extent of the hazard arising from this.
The respondent gave directions to the jury and it entered the verdictswhich are complained of. It is the directions which were given by therespondent which give rise to the complaints made in this judicial re-view.
The grounds upon which relief is sought are as follows:
5
10
15
20
25
30
35
40
45
784 High Court (Mayo J) (1993) 4
“(1) The Coroner failed to direct the jury properly on the test to be appliedbefore they could be satisfied that there was manslaughter by grossnegligence or recklessness.
(2) The verdict was irrational in that no reasonable jury, if properly di-rected, could have, upon the evidence, returned a verdict of death byunlawful killing.
(3) The Coroner failed to direct the jury upon Wong’s state of mind whenthe evidence revealed that he was not the one who suggested the useof oxygen to start the internal combustion engine but only not objectedto using the same which said failure constitutes an error in law.
(4) The Coroner failed to direct the jury in accordance with rule 23(c) ofthe Coroners Rules to ascertain the persons, if any, to be charged withmanslaughter should the jury find that the deceased persons came bytheir death by manslaughter.”
No complaint is made concerning the early part of the directionswhich were given. The problems arise from the directions given relatingto the possibility of verdicts of unlawful killing being returned.
I think that it is necessary for me to include in this judgment all ofthe passage of the transcript on this:
“Turning now to the verdict of unlawful killing. If you are satisfied thatthese five deaths occurred due to gross negligence then, it would amountto manslaughter and therefore an unlawful killing. A verdict of unlawfulkilling is appropriate if you are sure, that is, beyond reasonable doubt,that at the time the five deceaseds died, there was something in the cir-cumstances, that is, the use of oxygen, if you find that to be a fact, which,would have drawn the attention of an ordinary prudent individual in theposition of the person or persons who caused the deceaseds’ death. In otherwords, the direction to use oxygen for the purposes of starting the engine.Was there the possibility that this conduct was capable of causing someinjuries even if not necessarily serious to the deceased, but the risk wasnot so slight, that an ordinary prudent individual would feel justified intreating it as negligible before the act or admission. In other words, beforethe oxygen was used which caused the deceaseds’ death, the person whoseconduct caused the deceaseds’ death either failed to give any thought tothe possibility of there being any such risk or, having recognized thatthere was such a risk, nevertheless went on to take the risk. That wouldbe the recklessness on the part of one or more persons on board the KyowaGo No. 3 when it came to deciding to use the oxygen. Bear in mind that MrWong Ku Wai gave evidence that he had worked for Gitanes, a specialistmarine engineering company for six years and that he had had experience
5
10
15
20
25
30
35
40
45
HKPLR R v Her Majesty’s Coroner of Hong Kong W B G Banks 785
in marine engineering. If you then take into consideration the variouscodes and practices set out in appendix C to Mr But’s substantial report, acopy of which you have, all of which refer to the dangers of using oxygen instarting up internal combustion engine, should he as the person in charge,have known that the use of oxygen in attempting to start this engine couldhave led to serious injuries. It is an objective test; was it reasonably fore-seeable for an ordinary prudent person, that the use of this oxygen inattempting to start the engine could have resulted in injury or was capableof causing serious harmful consequences. Nevertheless having foreseenthose consequences or having ought to have foreseen the consequences, didhe nevertheless, carry on, using the oxygen or, authorizing the use of theoxygen or, being a party to the use of the oxygen. If that was so, then thatwould be reckless. If he failed either to give any thought to the possibilityof there being a risk or having recognized that there was such a risk, henevertheless went on using the oxygen to attempt to start the engine. Youhave to accept that he authorized or was party to the use of the oxygen inhis position as the senior man or the boss to find unlawful killing. Thatdeals with the situation of death by unlawful killing.”
It is clear that the respondent used as a model the directions given inpara 20.49(7) of the 42nd edition of Archbold. It is evident from R vKong Cheuk Kwan (1986) 82 Crim App R 18 that the Privy Council hasbeen highly critical of these directions which were then in the secondsupplement of the 41st edition.
Lord Roskill had this to say (at 21–22):
“The evidentiary difficulty which thus faced the Crown was only one of thedifficulties to which the case gave rise at the trial. The very existence ofthe evidentiary difficulty made it even more important than usual that thetrial judge should give to the jury a complete, clear and accurate directionas to the law which they were to apply to the facts as they found them tobe. Their Lordships feel bound respectfully to say that, whilst feeling muchsympathy for the learned judge, the direction which he gave as to therelevant law failed to satisfy those requirements in more ways than one.Their Lordships’ sympathy for the learned judge arises because he wasencouraged by counsel to adopt and did adopt as the basis for his directiona long passage which first made its appearance in paragraph 20.49 of theSecond Supplement to Archbold’s Criminal Pleading Evidence and Prac-tice (1982) 41st Ed. and which purports to reflect the decisions of theHouse of Lords in Caldwell (1981) 73 Crim. App. R. 13; [1982] A.C. 341and Lawrence (1981) 73 Crim. App. R. 1; [1982] A.C. 510. The learnedjudge does not appear to have been invited to consider those two authori-ties in detail nor whether the law, as there clearly declared by the Houseof Lords, was correctly summarised in that paragraph. If that step hadbeen taken, their Lordships do not doubt that the learned judge would
5
10
15
20
25
30
35
40
45
786 High Court (Mayo J) (1993) 4
have appreciated the errors in the offending passage which they regret toobserve still appear in the Eighth Supplement to the 41st edition andwhich they hope will be revised in the near future. Their Lordships weretold by counsel that it was to the Second Supplement that the attention ofthe learned judge was drawn at the trial.
The crucial passage in the learned judge’s direction which, as its textshows, was written out and given to the jury to take with them when theyretired, appears at pages 773/4 of the record. A comparison between itstext and that of paragraph 20.49 in the Second Supplement of the 41stedition of Archbold clearly shows that that latter paragraph, numbered (7)in the supplement, was its source. The learned judge understandably addeda few words by way of oral interposition to the text of that paragraph so asto adapt it to the facts of the instant case.
Their Lordships find it necessary to set out the text of the direction infull. The relevant part appears as one very long single sentence in the tran-script but that very long single sentence requires to be broken down for thepurpose of analysis: ‘The direction I give you, which I have had typed be-cause I think this is not a trial involving test of memories so I am going togive you a copy of this before you retire, but I will read (it) out, this is thedirection on the question of manslaughter by negligence. That is that thedefendant and, of course, each of them considered separately, is guilty ofmanslaughter if the Crown have proved beyond reasonable doubt, firstly,that at the time he caused the deceased’s death and, of course, you mustbe satisfied that each of the accused did cause the deceased’s death, therewas something in the circumstances which would have drawn the attentionof an ordinary prudent individual and in this case you would consider theordinary prudent deck officer or helmsman in the position of the defendant,to the possibility that his conduct was capable of causing some injury al-beit not necessarily serious to the deceased including injury to health, whichdoes not apply here, and that the risk was not so slight that an ordinaryprudent individual would feel justified in treating it as negligible and that,secondly, before the act or omission which caused the deceased’s death, thedefendant either failed to give any thought to the possibility of there beingany such risk or having recognised that there was such a risk he, never-theless, went on to take the risk, or was guilty of such a high degree of neg-ligence in the means that he adopted to avoid the risk as to go beyond amere matter of compensation between subjects and showed in your opinion,such disregard for the life and safety of others as to amount to a crimeagainst the State and conduct deserving punishment.’”
He referred to Lord Diplock’s speech in R v Lawrence (1981) 73 CrimApp R 1 which contained the correct test (at 24):
“Their Lordships now move to LAWRENCE (1981) 73 Crim App R 1;[1982] AC 510. There the House was dealing with death caused by reckless
5
10
15
20
25
30
35
40
45
HKPLR R v Her Majesty’s Coroner of Hong Kong W B G Banks 787
driving. The House unanimously accepted the view of the majority in R. v.CALDWELL (supra) as to the meaning of ‘reckless’ and of ‘recklessness’. Itapplied that ruling to the statutory offence of causing death by recklessdriving and suggested a model direction in such cases.
Lord Diplock, on this occasion speaking for all the noble and learnedLords then present, said, after quoting from his speech in Lawrence, (at pp11 and 526 respectively):
‘In my view, an appropriate instruction to the jury on what is meantby driving recklessly would be that they must be satisfied of twothings: first, that the defendant was in fact driving the vehicle in sucha manner as to create an obvious and serious risk of causing physicalinjury to some other person who might happen to be using the road orof doing substantial damage to property; and second, that in driving inthat manner the defendant did so without having given any thoughtto the possibility of there being any such risk or, having recognisedthat there was some risk involved, had nonetheless gone on to take it.It is for the jury to decide whether the risk created by the manner inwhich the vehicle was being driven was both obvious and serious and,in deciding this, they may apply the standard of the ordinary prudentmotorist as represented by themselves.’
Their Lordships emphasise that in this passage Lord Diplock was speak-ing of an obvious and serious risk of causing physical injury created by thedefendant. He was not there concerned to deal with cases where the con-duct complained of was of a defendant’s reaction or lack of reaction to sucha risk created by another person.”
As can be seen there are two parts in this test. The first deals withthe question whether there is an obvious risk. The second deals with thestate of mind of the accused. Either he has not given any thought to thepossibility of there being such a risk or he has recognised that there wassome risk involved and has decided to go on and do it.
What is very clear from this is that a subjective test is to be appliedand not an objective one. This is borne out of the speech of Lord Diplockin R v Caldwell [1982] AC 341 (at 353):
“My Lords, I see no warrant for making any such assumption in an Act whosedeclared purpose is to revise the then existing law as to offences of damage toproperty, not to perpetuate it. ‘Reckless’ as used in the new statutory defini-tion of the mens rea of these offences is an ordinary English word. It had notby 1971 become a term of legal art with some more limited esoteric meaningthan that which it bore in ordinary speech — a meaning which surely in-cludes not only deciding to ignore a risk of harmful consequences resultingfrom one’s acts that one has recognised as existing, but also failing to give any
5
10
15
20
25
30
35
40
45
788 High Court (Mayo J) (1993) 4
thought to whether or not there is any such risk in circumstances where, ifany thought were given to the matter, it would be obvious that there was.
If one is attaching labels, the latter state of mind is neither more norless ‘subjective’ than the first. But the label solves nothing. It is a state-ment of the obvious; mens rea is, by definition, a state of mind of theaccused himself at the time he did the physical act that constitutes theactus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person.
Nevertheless, to decide whether someone has been ‘reckless’ as towhether harmful consequences of a particular kind will result from his act,as distinguished from his actually intending such harmful consequences tofollow, does call for some consideration of how the mind of the ordinaryprudent individual would have reacted to a similar situation. If there werenothing in the circumstances that ought to have drawn the attention of anordinary prudent individual to the possibility of that kind of harmful con-sequence, the accused would not be described as ‘reckless’ in the naturalmeaning of that word for failing to address his mind to the possibility; nor,if the risk of the harmful consequences was so slight that the ordinaryprudent individual upon due consideration of the risk would not be de-terred from treating it as negligible, could the accused be described as‘reckless’ in its ordinary sense if, having considered the risk, he decided toignore it. (In this connection the gravity of the possible harmful conse-quences would be an important factor. To endanger life must be one of themost grave.) So to this extent, even if one ascribes to ‘reckless’ only therestricted meaning, adopted by the Court of Appeal in Reg. v Stephenson[1979] QB 695 and Reg. v Briggs (Note) [1977] 1 WLR 605, of foreseeingthat a particular kind of harm might happen and yet going on to take therisk of it, it involves a test that would be described in part as ‘objective’ incurrent legal jargon. Questions of criminal liability are seldom solved bysimply asking whether the test is subjective or objective.”
I have no doubt in considering the directions given by the respondentthat they were fatally flawed. They proceeded upon a basis that the testto be adopted was an objective test and that if the applicant should havehad a knowledge of the potential danger of using oxygen in such circum-stances it would be appropriate to enter a verdict of unlawful killing.
The situation is even more serious than that. It is now accepted byMr Kwok for the respondent, although this was not originally apparentfrom the transcript accompanying the papers, that the jury sought furtherdirections from the respondent by way of a question couched in theseterms.
“Foreman:We have some questions: we want to know the definitions of accident andunlawful killing. We know Wong didn’t know danger, but if he was in
5
10
15
20
25
30
35
40
45
HKPLR R v Her Majesty’s Coroner of Hong Kong W B G Banks 789
position of manager, want to know whether he should judge and be heldresponsible for the consequences.”
In response to this the respondent gave the following further direc-tions:
“In respect of accident, a verdict of death by accident, if a person is goingabout day to day business and something quite unforeseen occurs whichleads to death, that is an accident. Thus if somebody is walking along astreet and a piece of a building fell off and hit the person on the heardthereby killing him, that would be an accident because, it is an unforesee-able situation. Misadventure on the other hand is a situation where oneknows of certain risk involved, for example, crossing the road. There is arisk as one knows that there is traffic using the road. Although death isnot expected when one crosses the road, nevertheless, if it occurs by way ofa car running down a pedestrian then that would be misadventure. So ifyou look at it on the basis that accident is where something totally unex-pected occurs, misadventure is a situation where one is aware of some risksuch as the boxer in the boxing ring, the pedestrian in crossing the road,although one does not expect death to occur. Then that is misadventure. Inso far as unlawful killing is concerning unlawful killing of course mayinvolve murder, manslaughter, or infanticide but, in this particular situa-tion we are talking of involuntary manslaughter through gross negligence.The situation is, if you accept Mr Wong was the person in charge as thesuperintendent, then he has under a duty of care to those persons of whombe was in charge or superintended. Next there is clear evidence before youin the form of Mr But, the Safety Officer’s report, that the use of oxygen instarting internal combustion engines a diesel engine being an internalcombustion engine, is dangerous. This is recognized by the Code of SafeWorking Practices for Merchant Seamen under the Department of Tradeof the United Kingdom which are recognized in a number of codes andsafety practices all of which, are contained in the appendices to Mr But’sreport. There is certainly clear evidence before you that the use of oxygenin endeavouring to start a diesel engine is highly dangerous. If you acceptthat evidence the next step is, in the lead up to Mr Wong’s appointment aseither plant operations manager or, marine engineering manager, andthat is a matter for you to decide. He had had according to his own evi-dence six years with Gitanes which, is a specialist marine engineeringcompany. According to his evidence he had had experience with marineengines and other types of diesel engines. If you are going to considerunlawful killing you don’t need to make the distinction as to manslaughteror murder, unlawful killing is sufficient. You have to decide whether in hisposition as plant operations manager or marine engineering manager, ei-ther, that he was aware of the dangers of using oxygen or, you have toconsider should he have been aware of the danger of using oxygen. What is
5
10
15
20
25
30
35
40
45
790 High Court (Mayo J) (1993) 4
important, in your view on an objective test, should marine engineeringmanagers or, plant operations managers, either, be aware of the dangersof using oxygen to start diesel engines or, should they have been aware ofthe danger of using oxygen. That is the first question that you have tosatisfy yourself beyond reasonable doubt. Then you have to decide whetherMr Wong as a supervisor ordered or, approved the use of oxygen for thepurposes of starting the engine. Finally to return a verdict of unlawfulkilling you would have to accept that, either, he failed to give thought tothe danger of using oxygen or, alternatively having given thought to thedanger of using oxygen, nevertheless he carried on allowing or approvingof the use of that oxygen to start the engine.
Summarizing, firstly, was he the person in charge or the superintend-ent? Secondly, did he order or approve the use of oxygen for the purposesof starting the engine? Next in his position, if you so decide, as superin-tendent or, person in charge, either, was he aware of the dangers of usingoxygen or, on an objective test should he as a plant operations or marineengineering manager, have been aware of the dangers of using oxygen? Ifyou find either of those then, did Mr Wong fail to give thought to this, thatis, to the use of oxygen or, having given thought to the dangers of usingoxygen, did he nevertheless proceed to approve or, allow the use of theoxygen? Does that answer your question?”
These further directions did not in any way rectify the flaws in theoriginal directions. Over and above this it is apparent from the questionwhich was posed that the jury had already accepted as a question of factthat the applicant did not know of the dangers involved. Adopting whatamounts to the correct subjective test referred to earlier the respondentshould at that point have directed the jury that it was not then open tothem to enter a finding of unlawful killing so far as the applicant wasconcerned.
Mr Kwok submitted that directions to a jury should not be treated asexercises in jurisprudence and that there was no universal formula whichwould always be satisfactory. He called in aid part of the speech of LordHailsham in R v Lawrence (1981) 73 Crim App R 1 at 5.
“It has been said before, but obviously requires to be said again. Thepurpose of a direction to a jury is not best achieved by a disquisition onjurisprudence or philosophy or a universally applicable circular tour roundthe area of law affected by the case. The search for universally applicabledefinitions is often productive of more obscurity than light. A direction isseldom improved and may be considerably damaged by copious recitationsfrom the total content of a judge’s note book. A direction to a jury shouldbe custom built to make the jury understand their task in relation to aparticular case. Of course it must include references to the burden of proofand the respective roles of jury and judge. But it should also include a
5
10
15
20
25
30
35
40
45
HKPLR R v Her Majesty’s Coroner of Hong Kong W B G Banks 791
succinct but accurate summary of the issues of fact as to which a decisionis required, a correct but concise summary of the evidence and argumentson both sides, and a correct statement of the inferences which the jury areentitled to draw from their particular conclusions about the primary facts.”
While these observations are undoubtedly accurate, I do not thinkthat they have any application to the present case. The misdirectionswhich have been referred to go far beyond the situation envisaged byLord Hailsham.
I am satisfied that this application must succeed and that the jury’sverdicts must be quashed. I order accordingly.
Mr Kwok informed me that coroners have to give directions in anumber of inquests where possible negligence or manslaughter may berelevant. He said that some guidance might be of assistance to coronerson the sort of directions which may be apposite. The following directionsgiven by Watkins LJ in R v West London Coroner, ex parte Gray andothers [1987] 2 All ER 129 at 136 may be found to be helpful.
“I have much sympathy with the coroner, for he was dealing with a kind ofmanslaughter, namely unlawful killing by neglect, which is seldom metwith. Moreover, save in the hands of an experienced judge, it is not asimple matter to direct a jury on. It is not surprising therefore to find thatthe coroner is criticised also for his less than correct and helpful referencesat various times to neglect, giving the impression here and there that justplain neglect would do.
Other criticisms have also been voiced as to this all-important direction,but I have, I think, said enough to indicate that the jury were gravelymisdirected and cannot have been otherwise than confused by what theywere told about this branch of the law and, of course, by what they hadread from the notes which were handed in to them. This by itself must, itseems to me, inevitably cause the jury’s verdict to be quashed. What thejury should have been told was that when considering manslaughter byneglect they would have to be satisfied on the evidence of these four ingre-dients of the offence: (1) that a police officer had the duty of regarding thehealth and welfare of Mikkelsen; (2) that he failed to do what in thecircumstances he ought to have done for the health and welfare ofMikkelsen; (3) that his failure was a substantial cause of Mikkelsen’sdeath; and (4) that in failing to act for the benefit of Mikkelsen’s healthand welfare he acted recklessly. It should be explained that to act reck-lessly means that there was an obvious and serious risk to the health andwelfare of Mikkelsen to which that police officer, having regard to hisduty, was indifferent or that, recognising that risk to be present, he delib-erately chose to run the risk by doing nothing about it. It should be em-phasised, however, that a failure to appreciate that there was such a riskwould not by itself be sufficient to amount to recklessness.
5
10
15
20
25
30
35
40
45
792 High Court (Mayo J) (1993) 4
Further, the jury should have been directed that they could return averdict of unlawful killing only if they could attribute those ingredients toa single police officer, whom they should on no account name or otherwiseidentify. In this context, the jury should consider the position of eachofficer in turn, following Mikkelsen’s arrest, as to his duty, if any, to carefor Mikkelsen’s health and welfare and the opportunity given to him, hav-ing regard to the length of time he was with Mikkelsen and other relevantcircumstances, to discharge it.”
The applicant will have his costs.
5
10
15
20
25
30
35
40
45
HKPLR Re C (A Minor) 793
Re C (A Minor)
High CourtCase No 1218 of 1993
Kaplan JDate of hearing — 14 May 1993Date of handing down reasons for judgment — 28 May 1993
Wardship — Best interests of the child — Whether court can over-rule parent’s refusal to consent to an operation on a 15-day oldbaby who would die without the operation
C was born on 30 April 1993. Shortly after birth, she suffered an attackof cyanosis whilst feeding. She was admitted to hospital, and was foundto have an extra pair of rudimentary lungs attached to her oesophagus.She also had other congenital abnormalities, and suffered further com-plications.
The matter came before the court on the application of the Director ofSocial Welfare to have C made a ward of the court and to make an orderauthorising an emergency operation on the child The medical evidencebefore the court was that without any surgical intervention the childwould die in a short time. There was a 50 per cent chance that the childwould survive with an operation, though the child would be left withnon-life-threatening spinal problems. Neither the child’s father (who didnot appear in court) nor her mother was prepared to consent to theoperation.
Held (making the child a ward of the court and authorising theoperation):
1. The duty of the court was to consider what was in the best interest ofthe child. (p 796, lines 18–20)
Re B (A Minor) (Wardship-Medical Treatment) [1981] 1 WLR 1421,followed.
2. The medical evidence was that without surgical intervention the babywould die and that while with surgical intervention she might alsodie, there was an even chance that the operation would succeed. If itdid succeed, the child would likely live a relatively healthy and nor-mal life. (p 795, lines 30–33; p 797, lines 4–7)
5
10
15
20
25
30
35
40
45
794 High Court (Kaplan J) (1993) 4
3. While it was a very serious matter to overrule the wishes of caringparents who had carefully weighed up all the factors before refusingto consent to an operation, there was no doubt that it was in thechild’s best interests to undergo the operation and an angiogram priorto it. (p 797, lines 17–20, 35–36)
Mr Bradley (of the Attorney General’s Chambers), for the Director ofSocial Welfare.
The following cases are referred to in the judgment:
Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421Re C (A Minor) (Wardship: Medical Treatment) [1989] 3 WLR 240
Kaplan J delivered the following judgment:
At about 3:30 pm on Friday, 14 May 1993, on the application of theDirector of Social Welfare, I made an order making an, as yet, unnamed15-day old baby girl, a ward of this court. I committed the care andcontrol of the ward to its parents and I authorised doctors at the Princeof Wales Hospital to perform an immediate emergency operation uponthe ward. Because of certain observations of Lord Donaldson in Re C (Aminor) (Wardship: Medical Treatment) [1989] 3 WLR 240, I said that Iwould reduce my reasons into writing and deliver this judgment in opencourt. I have ordered that this case be referred to only as Re C and thatthe identity of the parents and child be not made public. I know I canrely upon the Hong Kong press to respect the obvious good sense ofanonymity in relation to the unfortunate parties to this matter.
The parents are lawfully married and the mother is 33 and the fatheris 35. They have two other children, namely 2 girls aged 6 and 4 respec-tively.
The third child was born on 30 April 1993. Shortly after birth shesuffered an attack of cyanosis (turning blue due to lack of oxygen) whilstfeeding. She was admitted to the Neonatal Unit of the Prince of WalesHospital where after investigation she was found to have bilateralbroncho-pulmonary foregut malformation or sequestrations with oesopha-geal connection. This means that the child has an extra pair ofrudimentary lungs which are attached to the oesophagus. She was alsofound to have other congenital abnormalities, namely patent ductus ar-teriosus (PDA), bifid vertebrae at T7 and T8 and hemi-vertebra at L2level. Fetus ductus arteriosus is a connection whereby some bloodby-passes the lungs and flows straight into the main artery which car-
5
10
15
20
25
30
35
40
45
HKPLR Re C (A Minor) 795
ried blood from the heart to the rest of the body. PDA occurs when thisconnection, which should seal up naturally after birth, fails to do so. Theeffect of the alternative blood flow may place additional strain on theheart and the lung. The other matters relate to the vertebrae and indi-cate that three are abnormal. Two are butterfly vertebrae and one is ahemi-vertebra. In a hemi-vertebra there is a missing vertebra and in thebifid vertebra there is a gap.
As a complication of the foregut abnormality, the child developedsepticaemia which was treated with antibiotics, ventilation, and exchangetransfusion. The child’s treatment was stabilised and the sepsis wasbrought under control although it is still in the body.
Imaging studies by the Department of Diagnostic Radiology and Or-gan Imaging revealed the extra lungs and it seems likely that the extralungs are the likely source of sepsis. Further, because the abnormality isconnected to the oesophagus, there exists a point of entry for gut organ-ism.
Dr Kelvin Liu told me quite frankly that without any surgical inter-vention the ward will die in a short time. He told me that this was avery rare case and the operation that he would like to carry out has notbeen performed before in Hong Kong. He believes that there is a 50/50chance that the operation would be successful, in which case the wardwill only be left with her spinal problems, which are in no way life-threatening and can be dealt with later by the orthopaedic team. Thelonger the delay before surgical intervention, the more chance there is ofdamage to her main lungs. In addition to the operation suggested, DrLiu told me that he would also require to carry out an angiogram whichhad only a very small risk attached to it.
The child has no chance of survival unless the infected lungs aresurgically removed.
The position is therefore quite stark. Without the operation the wardwill certainly die. She may well die during the operation. However,there is an even chance that the operation will be a success and, if so,she will be able to lead a relatively normal and healthy life thereafter.
Both the doctors and the social workers have explained the position tothe parents on several occasions and nevertheless they have refused togive their consent to this operation.
The father, who I was not able to hear because he was travelling inChina, had told the social worker, Miss Chan, that he would prefer toallow the child to die from natural causes than risk surgery with possi-ble complications and further suffering thereafter. This decision wasapparently arrived at after consultation with members of his extendedfamily.
The mother was able to attend court and gave evidence before me andtold me quite frankly that she understood the medical position but, inany event, I explained it to her yet again. She told me that the doctors
5
10
15
20
25
30
35
40
45
796 High Court (Kaplan J) (1993) 4
could not guarantee success which is, of course, quite correct. She wasvery worried as to whether, if the child survived the operation she wouldbe able to live a normal life. She was very worried that if the operationwas not a complete success, but the ward lived, she might be veryhandicapped. She asked me on several occasions what help she would begiven if the child was handicapped and, of course, I could not give herany assurances on that score. She was obviously unhappy at the pros-pect of the child being handicapped and suffering therefrom. She wasnot prepared to run the risk of the operation. She told me that herhusband agreed with her position. I allowed her to discuss matters againwith her family who were present in court and also with the socialworkers who were also good enough to be present. However, she wasadamant that she would not consent.
I have no doubt that the decision which the parents have come to wasa painful and sincere one. Their views on the matter are worthy of thegreatest respect by this court and I thought long and hard before decid-ing to overrule them.
It is clear on the authorities that the question I have to ask myself iswhat is in the best interest of this child. This is clear from the EnglishCourt of Appeal decision in Re B (A minor; Wardship: Medical Treat-ment) [1981] 1 WLR 1421. In that case, a Down’s Syndrome (Mongolism)child suffered an internal blockage and required an urgent operationwithout which she would die. If the operation was performed the childmight have lived a short time but her life expectancy was more likely tobe in the region of 20/30 years. Her parents decided that it was kinder toallow her to die. The judge respected the parent’s wishes but the Courtof Appeal made an order authorising the operation.
The evidence in that case was that the child would have been veryhandicapped both physically and mentally. Templeman LJ put the issuethus in the light of the parent’s submission that “nature had made itsown arrangements to terminate a life which would not be fruitful andnature should not be interfered with”:
“The question which this Court has to determine is whether it is in theinterest of this child to be allowed to die within the next week or to havethe operation in which case, if she lives, she will be a mongoloid child, butno one can say to what extent her mental or physical defects will beapparent. No one can say whether she will suffer or whether she will behappy in part. On the one hand, the probability is that she will not be acabbage as it is called when people’s faculties are entirely destroyed. Onthe other hand, it is certain that she will be very severely mentally andphysically handicapped.”
He held, and Dunn LJ agreed with him, that the child should have achance of life and be able to live the normal life span of a mongoloid
5
10
15
20
25
30
35
40
45
HKPLR Re C (A Minor) 797
child with the handicaps and defects and life of a mongoloid child. It wasnot for the court to say that life of that description ought to be extin-guished.
That case was a very different case from the one before me because Iam told that if the operation is successful, the ward will enjoy a rela-tively normal life and will only be left with her spinal problems whichare not uncommon and certainly not life-threatening.
Mr Bradley, for the Director, who handled this matter with consum-mate tact and understanding, also referred me to Re C, a reference towhich I made at the outset of this judgment. In that case, the medicalevidence indicated that there was no hope for the child and the judgeand the Court of Appeal agreed that the child should be left to die withdignity and be treated only to the extent of easing her suffering untildeath. That case was on the facts a clear one as nothing could detractfrom the plain, simple and said fact that, despite the wonders of modernmedicine, nothing could be done to save that child.
Although as I have said, it is a very serious matter to overrule thewishes of caring parents who have carefully weighed up all the factorsbefore refusing to consent to an operation, nevertheless, it is the duty ofthis court to consider what is in the child’s best interests. With nosurgical intervention she will die. With surgical intervention, she mayalso die. However, there is an even chance that this rare operation willbe a success and, if so, the evidence I have suggests the child will be ableto lead a relatively healthy and normal life. Nothing is certain in thislife and I can give the parents no more guarantee than could the doc-tors. Neither can I assure the parents as to the level of support theymay receive if the child is handicapped. However, the evidence is that ifthe operation is successful, she will not be handicapped as a result ofany condition which gives rise to this operation. I have a feeling that theparents have also taken into account spinal problems about which noevidence was placed before the court although the doctors agreed thatthere was a range of procedures available which could help. It is toosoon for orthopaedic specialists to consider the matter because this childhas got a rather large hurdle to overcome before that becomes relevant.
I have no doubt at all that it is in the best interests of the child toundergo this operation and prior thereto to undergo the angiogram. Thisis a real chance she may survive and enjoy a normal life and I am notprepared to condemn her to a certain death without giving the doctorsthe chance to correct nature’s imperfections. If she does not survive,then everyone concerned will know that everything possible was done togive this poor baby a chance of a relatively normal life.
Those then were the reasons which led me to make the child a wardof court and permit the doctors to carry out the surgical procedureswhich I have mentioned. As soon as I had announced my decision, Iphoned Dr Lui and informed him personally that the operation could go
5
10
15
20
25
30
35
40
45
798 High Court (Kaplan J) (1993) 4
ahead and that he need not wait for the sealed order which was, bythen, on its way to Shatin.
Naturally I make no order as to costs.
Postscript
I have received the following information from Mr Bradley.The operation, which lasted 6 hours, was carried out by 3 surgeons.
The parents were present throughout and expressed great concern fortheir daughter. The operation appeared to be successful and on 18 Maythe baby was taken out of intensive care and returned to the NurseryWard.
As at 20 May progress is still satisfactory. The baby has mild pneu-monia which is being treated by antibiotics and physiotherapy. Hercondition is regarded as stable and progress continues.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 799
Attorney General v Pham Si Dung (No 1)
High CourtMP No 3111 of 1993
Kaplan JDate of hearing — 22–23 July 1993Date of judgment — 5 August 1993
Criminal procedure — Witnesses — Detention of witnesses to en-sure availability at trial — Conditions precedent to exercise ofpower by court — Vietnamese boat people detained in order togive evidence for the Crown — Immigration Ordinance (Cap 115),ss 13 E, 32(4)
Human rights — Right to liberty and security of the person —Detention of witnesses in order to give evidence for prosecution attrial — Whether pre-conditions for making of order by court hadbeen satisfied — Vietnamese boat people — Immigration Ordi-nance (Cap 115), ss 13E, 32(4)(a), (b)
Immigration — Power to detain person in Hong Kong in order togive evidence — Existence of order of Director of Immigrationpre-condition to making of detention order by Secretary for Secu-rity and subsequent order by court — Immigration Ordinance —Immigration Ordinance (Cap 115), ss 13E, 32(4), 36(1)
Immigration — Power to require a person liable to be detained toenter into a recognizance — Power enjoyed only by immigrationand police officers — No power of the court to make such anorder — Immigration Ordinance (Cap 115), s 36(1)
The respondent was a Vietnamese who had arrived in Hong Kong inJuly 1992 after having left Vietnam by sea. He was detained pendingconsideration of his claim for refugee status. In February 1992, while hewas detained in Sek Kong detention centre, a fire broke out in the campand a number of people were killed. Subsequently, criminal proceedingsfor murder and riot were commenced against thirteen accused. One ofthe accused, Pham Hoa, shared a bedspace with the respondent. InSeptember 1992, respondent gave a statement to solicitors for anotheraccused. That statement was inconsistent with evidence that was subse-quently given at the trial that Pham Hoa had been involved in themurder. In February 1993, before his application for refugee status had
5
10
15
20
25
30
35
40
45
800 High Court (Kaplan J) (1993) 4
been heard and determined, the respondent applied to return voluntar-ily to Vietnam.
The respondent had been detained pursuant to an order dated 26July 1991, made under s 13D(1) of the Immigration Ordinance, detain-ing him pending a decision on his application for refugee status. On 25February 1993, the Secretary for Security made an order purportedlyunder s 32(4)(a) of the Ordinance detaining the respondent for 28 days;this order expired on 25 March 1993. On 25 June 1993, an AssistantDirector of Immigration made an order under s 13E(1) of the Ordinanceordering the removal from Hong Kong of three persons (including therespondent), “which removal will be effected after the conclusion of theirtestimony in [the criminal proceedings]”.
On 23 April 1993 Gall J made an order purportedly under s 32(4)(a)of the Immigration Ordinance ordering the detention of the respondentfor 21 days for the purpose of giving evidence at the trial. He madefurther orders in similar terms on 13 May 1993, 2 June 1993, 23 June1993, and 12 July 1993. On 14 July 1993, the Attorney General appliedfor a further order under s 32(4)(a).
The respondent argued, among other matters, that the making of anorder under s 13E(1) was a condition precedent to the making of anorder by the Secretary for Security under s 32(4)(a), and that a validorder under s 32(4)(a) was necessary for the court to make an orderunder s 32(4)(b). He maintained that when the Secretary made his orderunder s 32(4) on 25 February 1993, there was a s 13E order in existencein relation to him, this being made on 25 June 1993, some four monthslater, and that accordingly the Secretary’s order was a nullity. As aresult the court had no jurisdiction to order his further detention.
Section 32(4) provides:
“(4) Notwithstanding subsections (1), (1A), (2), (2A), (3) and (3A), a personwho is to be removed from Hong Kong under section 18 or 13E or inrespect of whom a removal order or deportation order is in force maybe detained—(a) under the authority of the Secretary for Security for not more
than 28 days; and (Amended 15 of 1980 s.4)(b) by order of a court on the application of the Attorney General for
further periods, not exceeding 21 days upon any one application,for the purpose of giving evidence at the trial of any offence or of facilitat-ing inquiries into any offence or suspected offence.”
Held (refusing the application):
1. A valid order made by the Director under s 13E(1) was a necessarypre-condition to the making of a valid order by the Secretary for
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 801
Security under s 32(4)(a) of the Ordinance. (p 810, lines 42 –45)
2. The court can only make an order under s 32(4)(b) if, prior to themaking of the order, the Secretary for Security has validly authorisedthe detention of the respondents under s 32(4)(a). (p811, lines 17–19)
3. Accordingly, as there had been no valid s 13E order in existence inrespect of the respondent at the time the Secretary for Security pur-ported to exercise his power under s 32(4)(a), that order was a nullity.In the absence of a valid order under s 32(4)(a), the court had nojurisdiction to order the further detention of the respondent under s32(4)(b). (p 811, lines 19–24)
Per curiam
It should not be beyond the wit of man to devise some arrangementswhich would enable the respondent not to be detained any longer in aclosed camp but to be granted some form of limited visa until suchtime as he concludes his evidence. No doubt, this would involverecognizances and possibly very stringent reporting restrictions. With-out giving any consideration to the legal arguments raised about thelawfulness of his present detention, the simple fact of the matter isthat, in a civilized society, every effort should be made to ensure thatinnocent people are not detained in closed camps any longer than ishumanly necessary. (p 811, line 45 to p 812, line 8)
SR Bailey (of the Attorney General’s Chambers), for the applicant.R Walters (Messrs Ada YM Chan & Co), for the twelfth defendant in
Crim Case No 201 of 1992.P Dykes (instructed by the Director of Legal Aid), for the respondent.
The following materials are referred to in the judgment:
Immigration Ordinance (Cap 115), ss 13D(1), 13E, 32(4)(a), (b)
Kaplan J delivered the following judgment:
When this case was opened it appeared to raise an exquisite tension be-tween the right of an accused person charged with murder to be able to callall relevant evidence in his favour and the right of a defence witness in thetrial to go back to Vietnam, from whence he came, without being requiredto be detained any further until it was time for him to give evidence.
5
10
15
20
25
30
35
40
45
802 High Court (Kaplan J) (1993) 4
By the time the argument was concluded, the case had taken on anadditional dimension because it was contended that there were defectsin the way the matter came before me and these raised substantialjurisdictional questions.
The story begins when Pham Si Dung (the respondent), no doubt withothers, took this life in his hands and made the dangerous sea voyagefrom Vietnam to Hong Kong. He arrived in Hong Kong on 25 July 1991.He asked to be screened with a view to seeing whether he established aclaim for refugee status. Pending screening, he was detained at SekKong Detention Centre. Thereafter he was moved to Chi Ma Wan De-tention Centre but he is now detained at the Island Detention Centre.
On 3 February 1992, he shared a bed space with Pham Hoa (thetwelfth defendant) at Sek Kong. During the night of 3–4 February 1992,there was a most serious incident at the camp. A fire was started and anumber of people were killed. Subsequently, 13 people, including PhamHoa, were indicted for murder and riot.
The respondent was interviewed on 23 September 1992 at Chi MaWan Detention Centre and he gave a signed statement to a solicitoracting for the twelfth defendant. The effect of the statement was to placethe twelfth defendant in the bed space at the time the commotion com-menced and thereafter and thus is inconsistent with the evidence, alreadygiven at trial, that the twelfth defendant was involved in the murder.
On 25 September 1992, solicitors acting for the twelfth defendantserved upon the Crown an alibi notice based upon the respondent’sstatement.
The trial of the 13 accused of murder and riot commenced on 1 No-vember 1992 before Gall J and a jury. As at 22 July 1993, there are still18 further Vietnamese identification witnesses to give evidence togetherwith a further 20 more formal witnesses. I have been told that submis-sions at the close of the Crown case are likely. The trial restarts after ashort recess on 9 August 1993 and continues until Christmas whenthere will be a 3-week vacation. The judge sits from 9:00 am to 1:30 pmwith 2 breaks totalling about 45 minutes. Due to the usual problemsconnected with long trials (including in this case a recent witness strike)approximately 75% of available sitting time has been utilised.
The Crown estimate that the case will end by Chinese New Year1994. The defence, through Mr Walters, who appears for the twelfthdefendant and whom I heard as amicus curiae, are of the view thatEaster 1994 is a more likely conclusion date. I propose to assume thatthe trial will end sometime between Chinese New Year and Easter 1994.
Before the respondent’s application for refugee status was heard anddetermined, the respondent applied, in February 1993, to return to Viet-nam voluntarily. It is the nature of his detention since that time whichis in issue in this case.
In his affirmation dated 16 July 1993, the respondent states that he
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 803
left behind in Vietnam his mother, who is now very ill, his wife, 2children and his sister. All these relatives live together in Da Nang. Hestates that the reason why he gave up his claim to refugee status wasbecause he had been informed by his sister that his mother was very illand may be dying. He concludes his affirmation by saying that he doesnot now wish to give evidence and he wishes to return to Vietnam. Hedoes raise an issue in his affirmation to the effect that he had been toldby the twelfth defendant’s solicitor that he could go back at any timeand it was on this basis that he gave the statement. I have not investi-gated this matter. The simple fact is that he did give a statement andthat has never been retracted.
Before explaining how this matter comes before me, it is, I fear, nec-essary to have regard to a number of sections in the ImmigrationOrdinance (Cap 115), which deal with Vietnamese refugees.
SECTION 13D
This section makes provision for the detention of residents or formerresidents of Vietnam who arrive in Hong Kong without a valid visa. Thisdetention is stated to be:
“pending a decision to grant or refuse him permission to remain in HongKong as a refugee or, after a decision to refuse him permission to remainin Hong Kong, pending his removal from Hong Kong”.
SECTION 13E
“(1) The Director may at any time order any Vietnamese refugee or per-son detained in Hong Kong under section 13D to be removed fromHong Kong.
(2) An immigration officer or a chief immigration assistant may removefrom Hong Kong in accordance with section 24 any person ordered tobe removed from Hong Kong under subsection (1).” [Section 24 dealswith directions to owners of ships or aircraft.]
I now turn to deal with the crucial s 32. I set out the whole sectionalthough only sub-section (4) is relevant to the issues raised before me.
“32. Detention pending removal or deportation
(l) A person who is to be removed from Hong Kong under section 18 or13E— (Amended 42 of 1982 s.8)(a) may be detained until he is so removed, and may be so detained
for not more than 48 hours under the authority of an immigration
5
10
15
20
25
30
35
40
45
804 High Court (Kaplan J) (1993) 4
officer and thereafter under the authority of the Director, and(b) may, if he is on board a ship or aircraft, be removed therefrom
under the authority of an immigration officer for detention un-der this subsection.
(1A) Where consideration is being given to applying for or making a re-moval order in respect of a person, that person may be detained asprovided for in subsection (2) or (2A), whichever is appropriate in theparticular case. (Added 62 of 1980 s.6)
(2) A person may be detained under the authority of the Secretary forSecurity—(a) for not more than 14 days pending the making of an application
to the Governor for a removal order under section 19(1)(a) inrespect of that person; and
(b) for not more than a further 14 days pending the decision of theGovernor as to whether or not a removal order should be madeunder section 19(1)(a) in respect of that person. (Replaced 62 of1980 s.6)
(2A) A person may be detained pending the decision of the Director ofImmigration or Deputy Director of Immigration as to whether or nota removal order should be made under section 19(1)(b) in respect ofthat person—(a) for not more than 7 days under the authority of the Director of
Immigration or Deputy Director of Immigration;(b) for not more than a further 21 days under the authority of the
Secretary for Security; and(c) where inquiries for the purpose of such decision have not been
completed, for a further period of 21 days under the authority ofthe Secretary for Security, in addition to the periods providedunder paragraphs (a) and (b). (Added 62 of 1980 s.6)
(3) A person in respect of whom a removal order under section 19(1)(a)or a deportation order is in force may be detained under the author-ity of the Secretary for Security pending his removal from HongKong under section 25. (Amended 15 of 1990 s. 4; 62 of 1980 s.6)
(3A) A person in respect of whom a removal order under section 19(1)(b)is in force may be detained under the authority of the Director ofImmigration or Deputy Director of Immigration pending his removalfrom Hong Kong under section 25. (Added 62 of 1980 s.6)
(4) Notwithstanding subsections (1), (1A), (2), (2A), (3) and (3A), a per-son who is to be removed from Hong Kong under section 18 or 13E or
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 805
in respect of whom a removal order or deportation order is in forcemay be detained— (Amended 62 of 1980 s.6; 42 of 1982 s.8)(a) under the authority of the Secretary for Security for not more
than 28 days; and (Amended 15 of 1980 s.4)(b) by order of a court on the application of the Attorney General for
further periods, not exceeding 21 days upon any one application,
for the purpose of giving evidence at the trial of any offence or of facilitat-ing inquiries into any offence or suspected offence. (Added 42 of 1979 s.3)
(5) In subsection (4), ‘court’ includes the District Court and a magis-trate. (Added 42 of 1979 s.3)”
SECTION 36
This enables an immigration officer or a police officer to require anyperson detained under, inter alia, s 32 to enter into recognizance in suchamount and with such number of sureties as the Director or such policeofficer may reasonably require. This section is stated to be an alterna-tive to detention.
THE RESPONDENT’S DETENTION
In the light of the above statutory provisions, it is now necessary to haveregard to the actual orders made in the case of the respondent. I willdeal with them in chronological order.
(1) On 26 July 1991 an order was made pursuant to s 13D(1) detainingthe respondent pending a decision to grant or refuse him permissionto remain in Hong Kong as a refugee. This order was handed in byMr Bailey, who appeared for the Attorney General. It had not previ-ously been exhibited.
(2) On 25 February 1993, the Secretary for Security made an order inthe following terms:
“whereas Pham Si Dung is a person who is to be removed from Hong Kongunder s. 13E of the Immigration Ordinance; and
UPON consideration of the matter set out in the letter dated 25thFebruary 1993 from the Ada Y.M. Chan & Co., I hereby exercise the powervested in me by s.32(4)(a) of the Immigration Ordinance, Cap. 115 andauthorize the detention of the said
Pham Si Dungfor the purpose of section 32(4)(a) for a period of not more than 28 dayscommencing on the date of this authorization.”
5
10
15
20
25
30
35
40
45
806 High Court (Kaplan J) (1993) 4
(3) On 25 June 1993, Mr Choy, an Assistant Director of Immigration,made 2 orders in the following terms.
“ IMMIGRATION ORDINANCE(Chapter 115)Section 13E
ORDER OF REMOVAL
I, CHOY Ping-tai, Assistant Director of Immigration in exercise of thepower conferred on me under section 13E of the Immigration Ordinance,Cap. 115, Laws of Hong Kong, hereby order the removal from Hong Kongto Vietnam of three (3) Vietnamese as per attached list who are detainedunder section 13D of the Ordinance, which removal will be effected afterthe conclusion of their testimony in Hong Kong High Court Case No. 201 of1992, and pursuant to s 32(1)(a) of the Ordinance I authorize their deten-tion until they are so removed.Dated 25th June 1993
Sgd.
––––––––––––––––––––––––––––(CHOY Ping-tai)Assistant Director of Immigration ”
“ IMMIGRATION ORDINANCE(Chapter 115)Section 13E
ORDER OF REMOVAL
To: Mr PHAM SI DUNG detained in Hong Kong under Section 13D ofthe OrdinanceTAKE NOTICE that pursuant to Section 13E of the Immigration Ordi-nance, an Assistant Director of Immigration has ordered your removalfrom Hong Kong to Vietnam, which removal will be effected after theconclusion of your testimony in Hong Kong High Court. Case No. 201 of1992.Dated 26th June 1993
Sgd.
––––––––––––––––––––––––––––For Director of Immigration ”
(4) On 23 April, 13 May, 2 June, 23 June and 12 July 1993, Gall J madeidentical orders in relation to the respondent in the following terms:
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 807
“ IN THE HIGH COURT OF HONG KONGIN THE MATTER of High Court Case No.201 of 1992
andIN THE MATTER of an application underSection 32(4) of the Immigration Ordinance,Chapter 115
andIN THE MATTER of Pham Si Dung(VRD 459/27/91, Dn 131564)
ORDER
Upon reading the Application of the Hon. Attorney General and the affida-vit of Ada Y.M. Chan, Solicitor of Messrs. Ada Y.M. Chan & Co. in supportthereof, it is ordered that the said Pham Si Dung be detained until theconclusion of the proceedings or for a period of not more than 21 days,whichever is the earlier, commencing on the 23rd day of April, 1993 for thepurpose of giving evidence in the trial of Pham Hoa (“the 12th Accused”)for offences of Murder contrary to Common Law and Riot contrary toSections 19(1) and (2) of the Public Order Ordinance, Cap. 245, Laws ofHong Kong.”
The 28 days order of detention made by the Secretary for Securityexpired on 25 March 1993, but the first order made by Gall J was notuntil 23 April 1993. Mr Bailey quite properly pointed out this gap to me.I do not think that this period between the two orders affects the mat-ters with which I have to deal, but no doubt this has been noted by thoserepresenting the respondent and they will consider what, if any, theycan get out of it.
THE PRESENT APPLICATION
The latest order of Gall J expires on 5 August 1993. On 14 July 1993,the Attorney General made application for an order in precisely thesame terms as had been granted previously by Gall J.
When Mr Bailey opened this matter on behalf of the Attorney Gen-eral, there were only 2 affirmations before me. The first was from AdaYM Chan. The Attorney General relied upon that affirmation in supportof his application. The second affirmation was that of the respondent.During the course of the hearing, effectively at the invitation of Mr Dykes,who appeared for the respondent, Mr Bailey put in two further affida-vits. The first was from Miss Crabtree, who is the officer authorized bythe Attorney General to exercise and discharge his duties under s 32(4)of the Immigration Ordinance. The second was from Mr Power who is
5
10
15
20
25
30
35
40
45
808 High Court (Kaplan J) (1993) 4
one of the prosecuting counsel in the murder trial. (Mr Power’s affidavitwas in a somewhat unusual form but no point was taken about it).
At the outset of his submissions, Mr Dykes made a complaint that allof the relevant orders had not been exhibited. To remedy this, Mr Baileyhanded in copies of the original order dated 26th July 1991 and the s13E order dated 25 June 1993. Mr Dykes had not previously had sight ofthese orders.
During the course of the first day of argument, Mr Dykes made anumber of submissions which I summarise as follows:
(1) The power exercisable by the Attorney General under s 32(4)(b) canonly be exercised where the detained is to be called as a prosecutionwitness;
(2) Alternatively, if the basis of the application is that the AttorneyGeneral believes the respondent is a witness capable of belief, theapplication sought should only be allowed so as to enable the re-spondent to be called as a Crown witness at the earliest opportunity;
(3) Because the liberty of the subject is involved, the Attorney Generalshould be required to prove every jurisdictional fact necessary toground the application and he should further be required to satisfythe court of the necessity for the order as opposed to its convenience;
(4) The legislative history of s 32(4) makes clear that the section wasintroduced solely for the purpose of keeping illegal immigrants inHong Kong long enough to give evidence against those responsiblefor aiding and abetting them. Under the decision of Pepper v Hart[1992] 3 WLR 1032, Mr Dykes invited me to look at the speech of theSecretary for Security when introducing the Bill which containedwhat is now s 32(4);
(5) In making this application, the Attorney General is bound to advancehis own grounds for seeking the order and he cannot rely upon thereasons advanced by a third party unless he expressly adopts them,
(6) It would be wrong to make a detention order under s 32(4) if there isno prospect of the detainee being able to give evidence within areasonable time. Lawful detention can become unlawful with theeffluxion of time.
DISCRETION
Mr Dykes submitted that I should not exercise my discretion for thefollowing reasons:
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 809
(a) Had it not been for the trial, the respondent would have been re-turned to Vietnam shortly after his decision in February 1993 toabandon his claim to refugee status;
(b) It is unlikely that he will be required to give evidence until nextyear and this will have involved approximately 12 months’ deten-tion. Even from today’s date, he will need to be detained for a further7 months;
(c) The respondent has committed no criminal offence. He certainly hasnot been charged with any. If his detention lasts 12 months, thiswould be equivalent to an 18 months prison sentence after remission;
(d) The respondent wishes to return to Vietnam for strong and powerfulpersonal reasons;
(e) The respondent does not wish to give evidence.
THE JURISDICTIONAL POINT
At the beginning of the second day of argument, Mr Dykes told me thathe had had an opportunity to consider overnight the two orders handedin the day before by Mr Bailey and that in the light of his considerationof those documents, he felt obliged to raise an important point which, hesubmitted, went to my jurisdiction to make the order sought. He madethe submission and Mr Bailey responded. Mr Dykes told me that he haddiscussed the point with the respondent who gave him firm instructionsto take the point even if the result of taking it successfully might post-pone a decision in the respondent’s favour.
Mr Dykes’ submission runs as follows. The Secretary for Security canonly make his order for detention for 28 days under s 32(4)(a) in caseswhere an order has been made (for present purposes) under s 13E.When the Secretary for Security made his order on 25 February 1993,there was not in existence any order under s 13E relating to the re-spondent. The one and only order made under s 13E was made by MrChoy on 25 June 1993, some 4 months after the Secretary for Security’sorder. The making of an order under s 13E is, Mr Dykes submitted, acondition precedent to the exercise of the Secretary’s power to detain forup to 28 days. It must follow, therefore, that the Secretary’s order was anullity.
If the Secretary’s order was a nullity, then there can be no jurisdic-tion in the court to make an order under s 32(4)(b) at the request of theAttorney General for further periods of detention of up to 21 days. TheAttorney General’s application is only for “further periods”, ie periodsadditional to the period already ordered by the Secretary. This conclu-sion, it is submitted, follows inexorably from the plain words of s 32(4)(b).On this contention, it would not be permissible for the Attorney Generalto make application unless there had previously been a valid order madeby the Secretary.
5
10
15
20
25
30
35
40
45
810 High Court (Kaplan J) (1993) 4
On the basis of these submissions, Mr Dykes submitted that Gall Jhad no jurisdiction to make any of the orders that he did and conse-quently neither have I. He submitted therefore that this application ismisconceived.
I hasten to add that Gall J was never shown the s 13E order dated 25June 1993 as it was produced for the first time before me. I think thatthis is regrettable. When the liberty of the subject is involved (even if anillegal immigrant), it is incumbent upon those seeking further detentionto place all relevant material before the court charged with deciding thequestion of further detention. I am sure that if the order dated 25 June1993 had been placed before Gall J, together with the Secretary’s earlierorder, this jurisdictional point would have become apparent and wouldhave been ruled upon some time ago.
The various orders made by Gall J under s 32(4)(b) have never beenappealed and thus are on their face lawful. Orders made by a HighCourt judge are not amenable to an application for judicial review andthere appears to be some doubt as to whether there was, in any event,any route for appeal against an order of a High Court judge made unders 32(4)(b). I do not think I have to decide whether or not Gall J’s ordersare technically valid or invalid. The simple point is that apart from thelast, each one has expired, and I am being faced with a fresh applicationwhere I am free to consider this jurisdictional point. It may well be thatthe order made by the Secretary for Security is amenable to an applica-tion for judicial review, but again that is not a matter which is presentlybefore me.
I have to decide whether there is any force in Mr Dykes’ jurisdictionalargument because, if there is, clearly I cannot make the order sought.How then does Mr Bailey for the Attorney General attempt to overcomethis jurisdictional argument? Mr Bailey conceded that when the Secre-tary made his order, there was not in force any written order under s13E relating to the respondent. However, he submitted that this did notmatter because the respondent was “a person who is to be removed fromHong Kong under section . . . 13E”. He points out the different languageused in the section. On the one hand, there is a phrase “is to be removedfrom Hong Kong” under ss 18 or 13E and this has to be contrasted withthe next part of the sentence which refers to removal orders or deporta-tion orders in force. He submits that this language is some support forhis submission, that it is not necessary for there to have been an orderunder s 13E but only that the respondent came within that category ofpersons who, as night follows day, were to be removed from Hong Kongat some stage in the future under s 13E.
I cannot accept this argument. It seems to me that the only properway to read subsection (4), so far as it is relevant to this case, is that itrefers to a person in respect of whom an order under s 13E has beenmade. To read these words in the literal sense for which Mr Bailey
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 1) 811
contended would be to create a most uncertain position. It must not beforgotten that we are here dealing with the liberty of all individuals. Itis essential when dealing with such matters that the authorities shouldact clearly in accordance with the law and that the person affectedshould know precisely under which section of the Ordinance he is beingdetained or removed. If one takes Mr Bailey’s argument to its ultimatelogical conclusion, it would not strictly be necessary for the Director everto make an order under s 13E because he would be able to rely upon hisintention or practice to remove this respondent under that section with-out expressly making such an order. Clearly, that is not the positionbecause an order was in due course made under this section. I find itimpossible to conclude that at the date when the Secretary made hisorder for detention of this defendant for 28 days, there was in force anorder under s 13E or that subsection (4) of s 32 had, in any other way,been complied with and therefore the Secretary’s order would appear tobe invalid as a necessary condition precedent to the exercise of thatpower had not been met. I believe that it follows that if the Secretary’sorder is not valid, then there can be no jurisdiction in this court to makeany further orders for detention as sought by the Attorney General. Iam quite satisfied that it is a condition precedent to the making of anyorder by the court that there had previously been a valid order by theSecretary for Security under s 32(4)(a). As there was no such ordervalidly made, I do not believe that I have jurisdiction to deal with thisapplication.
I have considered very carefully whether I should go on and indicatemy views as to the substantive arguments raised by both sides. Havinggiven the matter very careful consideration, I think it would be unwiseto do so because it may well be that the Director and the Secretary willregularise the position, and a renewed application to another judge foran extension for 21 days may be made. It would, in those circumstances,be wrong for me to attempt, in any way, to bind the free exercise of thediscretion which that other judge would have to make. He will have toconsider all the arguments which were addressed to me and rule uponthem in the light of the legal submissions and the facts then existingwhen the matter is before him.
I propose only to say this. I have considerable sympathy for the posi-tion of this respondent. Whether he should be detained in Hong Konguntil he can give evidence is a matter which, as I have said, will have tobe considered by another judge when the position has been regularized.An order may or may not be made under s 32(4)(b). However, I find itdifficult to see why this respondent, who has for some months now beenkept in Hong Kong against his will, should be further detained in aclosed camp. I have no jurisdiction to grant him bail. That can only bedone by the Director or by a police officer under s 36 of the ImmigrationOrdinance. However, I would have thought that it is not beyond the wit
5
10
15
20
25
30
35
40
45
812 High Court (Kaplan J) (1993) 4
of man to devise some arrangements which would enable this respond-ent to be granted some form of limited visa until such time as he concludeshis evidence. No doubt, this will involve recognizances and possibly verystringent reporting restrictions. Without giving any consideration to thelegal arguments raised about the lawfulness of his present detention,the simple fact of the matter is that, in a civilized society, every effortshould be made to ensure that innocent people are not detained inclosed camps any longer than is humanly necessary. I hope that carefulconsideration will be given to the observations which I have just made. Iam also aware of the fact that the continued detention of this respond-ent has caused Gall J considerable anxiety and that is why the matterwas placed before me so that the legal position could be tested. It is, ofcourse, unfortunate that I have not been able to rule on that matterbecause of the lack of jurisdiction to make the order which I have foundto exist.
I should add that an affidavit of Mr Power, Crown Counsel, prosecut-ing before Gall J, was placed before me and this set out the variouspossibilities which have been examined in relation to this respondent’sevidence. Suffice it to say at this stage, that there has not been anyagreement between the prosecution and the defence as to how this re-spondent’s evidence can be given in any other way or at any other time,save as part of the defence case in Hong Kong at the appropriate time.As this matter may take sometime to resolve, I earnestly hope that allconcerned will try once again to see if there is any solution to thisproblem so that the respondent can give his evidence in some otheracceptable way which will enable him to return to Vietnam before thespring of 1994.
In all the circumstances, therefore, I decline to make the order soughtin the summons before me. I will hear the parties on any consequentialdirections which might be required.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 2) 813
Attorney General v Pham Si Dung (No 2)
High CourtMP No 3111 of 1993
Deputy Judge YeungDate of hearing — 3 September 1993Date of judgment — 6 September 1993
Criminal procedure — Witnesses — Detention of witnesses to en-sure availability at trial — Whether power available to detainwitnesses for the defence — Immigration Ordinance (Cap 115), ss13 E, 32(4)
Human rights — Right to liberty and security of the person —Detention of witnesses in order to give evidence for defence attrial — Whether statutory power extended to defence witnesses —Vietnamese boat people — Hong Kong Bill of Rights, arts 5(1),11(2)(e) — Immigration Ordinance (Cap 115), ss 13E, 32(4)(a), (b)
Immigration — Power to detain person in Hong Kong in order togive evidence — Immigration Ordinance (Cap 115), ss 13E, 32(4),36(1)
The respondent had arrived in Hong Kong in July 1992 after having leftVietnam by sea. In February 1992, while he was detained in Sek Kongdetention centre pending consideration of his claim for refugee status, afire broke out in the camp and a number of people were killed. Subse-quently, criminal proceedings for murder and riot were commencedagainst thirteen accused. The respondent had given a statement to so-licitors for one accused (Pham Hoa), which was inconsistent with evidencethat was subsequently given at trial (which began on 1 November 1992).that Pham Hoa had been involved in the murder. In February 1993,before his application for refugee status had been heard and determined,the respondent applied to return voluntarily to Vietnam. The respond-ent was not expected to give his evidence until Easter 1994.
The respondent had been detained pursuant to an order dated 26July 1991, made under s 13D(1) of the Immigration Ordinance, detain-ing him pending a decision on his application for refugee status. On 25February 1993 the Secretary for Security made an order, purportedlyunder s 32(4)(a) of the Ordinance, detaining the respondent for 28 days;this order expired on 25 March 1993. On 25 June 1993, an AssistantDirector of Immigration made an order under s 13E(1) of the Ordinance
5
10
15
20
25
30
35
40
45
814 High Court (Deputy Judge Yeung) (1993) 4
ordering the removal from Hong Kong of three persons (including therespondent), “which removal will be effected after the conclusion of theirtestimony in [the criminal proceedings]”.
On 23 April 1993, Gall J made an order purportedly under s 32(4)(a)of the Immigration Ordinance ordering the detention of the respondentfor 21 days for the purpose of giving evidence at the trial. He madefurther orders in similar terms 13 May 1993, 2 June 1993, 23 June1993, and 12 July 1993. On 14 July 1993, the Attorney General appliedfor a further order under s 32(4)(a). Kaplan J refused the application,holding that the exercise of the court’s power under s 32(4)(b) dependedon the existence of a valid order made by the Secretary for Securityunder s 32(4)(a), which in turn depended on the existence of an ordermade under s 13E of the Ordinance: see (1993) 4 HKPLR 799.
On 9 August 1993, the Secretary for Security made an order under s32(4)(a) of the Ordinance authorising the detention of the respondent for28 days from the date of the order. On 26 August 1993, the AttorneyGeneral’s Chambers received a request from solicitors for Pham Hoathat an order be made under s 32(4)(b) of the Ordinance to detain therespondent for a further period of 21 days so that he could give evidencefor Pham Hoa. The Attorney General considered that it was appropriateto apply for such an order, and granted the request for the order. Thetwelfth defendant argued that article 11 of the Bill of Rights guaranteedhim the right “to obtain the attendance and examination of witnesses onhis behalf under the same conditions as witnesses against him”, andthat s 32(4)(b) applied whether the person detained was giving evidencefor the prosecution or for the defence.
Held:
1. The language of s 32(4)(b) was ambiguous or obscure as to whether anapplication for the detention of a defence witness could be made un-der the section. It was accordingly permissible to refer to the debatesin the Legislative Council in order to determine the legislature’s in-tention. (p 821, lines 15–20)
Pepper v Hart [1992] 3 WLR 1032, applied.
2. The Legislative Council proceedings showed that the intention of thelegislature in enacting s 32(4)(b) was to enable the Attorney Generalto apply to the court for the further detention of a person subject to aremoval order only where the person was a potential prosecutionwitness. (p 821, lines 36–40)
3. Insofar as the present application was for the purpose of detaining
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 2) 815
the respondent to give evidence for the defendant, it was miscon-ceived. (p 822, lines 36–39)
N Bradley (Senior Crown Counsel), for the applicant.R Walters (Messrs Ada YM Chan & Co), for the twelfth defendant in MP
201 of 1992.P Dykes (instructed by the Director of Legal Aid), for the respondent.
The following cases and materials are referred to in the judgment:
Attorney General v Lee Kwong-kut and Attorney General v Lo Chak-man(1993) 3 HKPLR 72
Pepper v Hart [1992] 3 WLR 1032
Criminal Procedure Ordinance (Cap 221), ss 37, 65DHong Kong Bill of Rights, arts 5(1), 11(2)(e)Immigration Amendment (No 2) Bill 1979Immigration Ordinance (Cap 115), ss 13D(1), 13E, 32(4)(a), (b)Interpretation and General Clauses Ordinance (Cap 1), s 19
Report of the Sittings of the Legislative Council of Hong Kong, Session1978/79, pp 931–932 (20 June 1979)
Deputy Judge Yeung delivered the following judgment:
By this originating motion, the Attorney General applied to this courtunder s 32(4)(b) of the Immigration Ordinance for an order that therespondent Pham Si Dung be detained for a further period of 21 days forthe purpose of giving evidence for one of the defendants Pham Hoa (thedefendant) in High Court Criminal Case No 201 of 1992.
The defendant together with 12 others was jointly charged with theoffences of murder and riot which offences arose out of a tragic incidenton 3 February 1992 at the Sek Kong Detention Centre, a detentioncentre specified in the Schedule of the Immigration (Vietnamese Mi-grants) (Detention Centres) Rules.
During the night of 3 February and the early morning of 4 February1992, there was a serious commotion at the Sek Kong Detention Centredue to the conflict between rival groups of detainees as a result of whicha number of men, women and children perished in the fire and thedefendant was subsequently indicted for murder and riot together with12 others. The defendant’s case was that at the material time, he wassleeping in his bed space and the respondent was there with him.
5
10
15
20
25
30
35
40
45
816 High Court (Deputy Judge Yeung) (1993) 4
The respondent was interviewed by the defendant’s legal representa-tive on 23 September 1992 and he gave a statement which supportedthe defendant’s contention that he was not at the scene of the crime atthe material time.
On 25 September 1992 the defendant’s legal representative servedupon the Crown an alibi notice under s 65D of the Criminal ProcedureOrdinance.
The murder and riot trial against the defendant and 12 others com-menced on 17 December 1992 before Mr Justice Gall and a jury and iscurrently in progress. The case involved 13 defendants and many victimsand the Crown expected to call no less than 120 witnesses. These appearto be further difficulties amongst others arising out of the unwillingnesson the part of some of the prosecution witnesses to give evidence. The up-shot was that the respondent was not expected to be able to give his alibievidence for the defendant until some time around Easter of 1994.
In February 1993, the respondent gave up his right to be screened todetermine his claim for refugee status and applied to return voluntarilyto Vietnam. But for the murder and riot trial in which the respondentwas required as a defence witness, he would have been sent back toVietnam shortly thereafter. Since February 1993, the respondent hasbeen detained against his will in Hong Kong.
On 25 June 1993, a Mr Choy Ping Tai, an Assistant Director of Immi-gration in exercise of the power under s 13E of the ImmigrationOrdinance, ordered the removal of the respondent who had been de-tained under s 13D of the Ordinance, which removal would be effectedafter the conclusion of his testimony in the murder and riot trial. MrChoy further authorised his detention until he was so removed pursuantto s 32(1)(a) of the Ordinance.
On 9 August 1993 Mr AP Asprey, the Secretary for Security, made adetention order against the respondent in the following terms:
“Immigration OrdinanceChapter 115
Authorization for Detention under Section 32(4)(a)
Whereas Pham Si Dung is a person who is to be removed from HongKong under Section 13E of the Immigration Ordinance and upon consid-eration of the matters set and in the letter dated 6 August 1993 from theAda Y.M. Chan & Company, I hereby exercise the powers vested in me bysection 32(4)(a) of the Immigration Ordinance Cap. 115 and authorise thedetention of the said
Pham Si Dungfor the purpose of section 32(4)(a) for a period of not more than 28 dayscommencing in the date of this authorization.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 2) 817
Dated this 9th day of August 1993.
SignedA.P. AspreySecretary for Security”
The 28 days period expires on 6 September 1993.On 26 August 1993, the Attorney General’s Chambers received a
request, in the form of an affirmation by Ada Y.C. Chan, the solicitoracting for the defendant that an order be made under s 32(4)(b) of theImmigration Ordinance to detain the respondent for a further period of21 days so that he may give evidence for the defendant.
The Attorney General having given the request detailed and carefulconsideration, and having had regard to all relevant matters (includingthe fact that a successful application would lead to the continuing deten-tion or the respondent), reached the conclusion that it was an appropriatecase in which to make an application for detention and hence the presentapplication under s 32(4)(b) of the Immigration Ordinance to detain therespondent for a further period of 21 days commencing on 7 September1993.
It appeared that there had been a similar earlier application beforeKaplan J which application was heard on 22 and 23 July 1993 and thejudgment was delivered on 5 August 1993: Attorney General v Pham SiDung (No 1) (1994) 4 HKPLR 799.
At (HKPLR) 805–806 Kaplan J set out in chronological order theactual orders made in connection with the detention of the respondent.
It appears that there had been orders relating to the detention of therespondent made prior to the order of Mr Choy Ping Tai dated 25 June1993.
On 26 July 1991, an order was made pursuant to s 13D(1) detainingthe respondent pending a decision to grant or refuse him permission toremain in Hong Kong as a refugee.
On 25 February 1993 the Secretary for Security made an order, pur-portedly under s 32(4)(a) of the Immigration Ordinance, detaining therespondent for a period of 28 days which period expired on 25 March1993.
On 23 April 1993, 13 May 1993, 2 June 1993, 23 June 1993 and 12July 1993 Gall J made identical orders, purportedly under s 32(4) of theImmigration Ordinance, detaining the respondent for further periods of21 days for the purpose of giving evidence at the trial in question.
Kaplan J accepted the submission on behalf of the respondent thatthe making of an order under s 13E of the Immigration Ordinance is acondition precedent to the exercise of the power of the Secretary forSecurity under s 32(4)(a) to detain him for up to 28 days. As the onlyorder made under s 13E was made on 25 June 1993, some 4 months
5
10
15
20
25
30
35
40
45
818 High Court (Deputy Judge Yeung) (1993) 4
after the order made by the Secretary for Security, the order by theSecretary for Security dated 25 February 1993 was a nullity and therecould be no jurisdiction for the court to make an order under s 32(4)(b)at the request of the Attorney General for further periods of detention ofup to 21 days.
On the jurisdictional point, Kaplan J refused the application by theAttorney General and declined to make any ruling as to the substantialarguments raised by both sides. Kaplan J took the view that the Direc-tor of Immigration and the Secretary for Security may wish to regularizethe position and make a renewed application to another judge for exten-sion of 21 days and the judge will then consider the submission and ruleon them in the light of the facts then existing.
It is clear that the authorization for detention under s 32(4)(a) by theSecretary for Security dated 9 August 1993 was an attempt on the partof the Secretary for Security to regularize the position to support thepresent application by the Attorney General.
Mr Bradley in his submission emphasized that the Attorney Generalas a Minister of Justice has the duty to represent the interest of thepublic which interest requires that a defendant charged with any of-fence would be given a fair trial.
To ensure that the defendant would be given a fair trial, it is impor-tant that material witnesses favourable to the defendant should be madeavailable to give evidence for the defendant.
To support his argument, Mr Bradley on behalf of the Attorney Gen-eral referred to article 11 of the Hong Kong Bill of Rights which provides:
“11.(l) Everyone charged with a criminal offence shall have the right to bepresumed innocent until proved guilty according to law.
(2) In the determination of any criminal charge against him, everyoneshall be entitled to the following minimum guarantees in fully equal-ity —
(e) to examine, or have examined, the witnesses against him and toobtain the attendance and examination of witnesses on his behalfunder the same condition as witness against him”.
It was argued that the present application by the Attorney Generalwas made as an objective attempt to ensure the availability of the re-spondent to give alibi evidence for the defendant so that article 11 of theHong Kong Bill of Rights was observed. So that the defendant would begiven a fair trial.
Mr Bradley further submitted that although there are provisions inthe Criminal Procedure Ordinance to ensure the attendance of a wit-ness, the court should nevertheless consider primarily the provisions
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 2) 819
under the Immigration Ordinance as the situation relating to the re-spondent was an unique one and the provisions of the ImmigrationOrdinance were enacted to deal with such unique situation and he ar-gued that the plain wording of s 32(4)(b) of the Immigration Ordinanceclearly entitles the Attorney General to make an application and for thecourt to order the detention of the respondent for further periods, notexceeding 21 days upon any one application for the purpose of givingevidence at the trial of any offence, whether it was giving evidence forthe prosecution or for the defence.
To urge the court to exercise its discretion in favour of the AttorneyGeneral Mr Bradley referred to the affirmation of Mr Peter John Power,one of the prosecuting counsel prosecuting the defendant and 12 othersbefore Gall J and a jury, and pointed out the difficulties and problemsassociated with the various alternatives of receiving the evidence of therespondent without the necessity of further detaining him for consider-able period of time and it appeared none of the alternatives was viable.
Mr Bradley also pointed out that in the light of the current set-uprelating to the detention and/or housing for migrants from Vietnam,there was no other feasible way of handling the respondent other thanto continue detaining him in accordance with the provision of the Immi-gration Ordinance.
At the outset, I must say I have considerable sympathy for the ratherunenviable situation of the Attorney General. A witness for a defendantin a murder trial is in the custody of the Crown. He is someone who hadentered Hong Kong without permission and had volunteered to returnto Vietnam and in the normal course of event would be repatriated toVietnam within a short period of time in accordance with establishedgovernment policy.
Unless a valid order for his further detention is obtained, there is noassurance that the government policy would not be adhered to, in whichevent the Crown could be accused of being part of a conscious effort todeprive of or handicap the defendant the chance to call a favourable andmaterial witness and thus deprive him of a fair trial. The Crown mayhave to resist an application to stay the proceedings. I accept for thepurpose of the present proceedings that there is no practical and viablealternative to receive the respondent’s evidence properly.
Indeed as I had indicated in the course of counsel’s submission that Ihave the greatest doubt whether our present system of the administra-tion of justice is adequate to deal with the situation as revealed in thepresent proceedings, a situation which is unprecedented and probablybeyond the contemplation of our system of justice.
I also accept Mr Bradley’s submission that it would be difficult if notimpossible to devise a means to allow the respondent to remain in HongKong until his turn to give evidence without having to detain him.
But these reasons are not sufficient reasons to deprive a person of his
5
10
15
20
25
30
35
40
45
820 High Court (Deputy Judge Yeung) (1993) 4
liberty, be it the liberty of someone who had entered Hong Kong withoutpermission. After all, article 5 of the Hong Kong Bill of Rights guaran-tees that:
“5. (1) Everyone has the right to liberty and security of person. No oneshall be subjected to arbitrary arrest or detention. No one shall bedeprived of his liberty except on such grounds and in accordancewith such procedure as are established by law.”
My primary task is therefore to decide whether there is ground estab-lished by law to order the detention of the respondent and I hasten toadd that the burden is on the Attorney General to satisfy me beyond areasonable doubt that s 32(4)(b) of the Immigration Ordinance providesa valid ground for such purpose.
One of Mr Dykes’ thorough and able submission was that the powergiven to the Attorney General to seek an order under s 32(4)(b) of theImmigration Ordinance is exercisable only where the detainee is to becalled as a prosecution witness. It has no application where the detaineeis to be called as a witness for the defence.
I find considerable force in such argument.Section 32(4)(b) of the Immigration Ordinance only entitles the Attor-
ney General to make an application to detain a person against whom aremoval order is in force for the purpose of giving evidence at the trial ofany offence, it gives no right to a defendant in the trial to make anysuch application. Indeed, the section does not even provide for the at-tendance of a defendant at the hearing of an application made by theAttorney General.
Mr Walters who represented the defendant in the present proceedingrequested to be heard which request was objected to by Mr Dykes exceptthat Mr Dykes was prepared to allow Mr Walters the right to relate tothe court factual matters pertaining to the trial currently before Gall Jand a jury.
The court came to the conclusion that the person most affected by thedecision of the court would be the defendant and decided to grant MrWalters the right to be heard generally.
In the earlier application before Kaplan J, Mr Walters was heard asamicus curiae.
Although Mr Walters was allowed to be heard his status was notentirely clear.
Such matters perhaps were significant in determining the intentionof the legislation in enacting s 32(4) of the Immigration Ordinance.
If the intention of the legislation was to enable a defence witness tobe detained, would it have failed to accord the right to a defendant tomake such an application? Would it have failed to at least make provi-sion to enable a defendant to be present and to be heard?
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 2) 821
The answer seems to be clear bearing in mind s 19 of the Interpreta-tion and General Clauses Ordinance that an Ordinance shall be deemedto be remedial and shall receive such fair, large and liberal constructionand interpretation as will best ensure the attainment of the object of theOrdinance according to its true content, meaning and spirit.
The fact that only the Attorney General is entitled to make an appli-cation under s 32(4)(b) of the Immigration Ordinance and that therelevant section has not specified whether the detainee is to be detainedfor the purpose of giving evidence at the trial of any offence for theprosecution or for the defence does give rise to ambiguity and/or obscu-rity. It is also absurd that if a detainee is to be detained for the purposeof giving evidence as a defence witness that the defence is not entitled tomake such an application and no provision is made for the defence to bepresent.
In the circumstances I am of the view that the requirement for therelaxation of the rule which excludes reference to Parliamentary mate-rial as an aid to statutory construction as laid down in Pepper v Hart[1992] 3 WLR 1032 have been met and that the court could and shouldhave regard to the Hansard in determining the intention of the legisla-tion.
The then Secretary for Security, moving the second reading of therelevant bill to amend the Immigration Ordinance [the ImmigrationAmendment (No 2) Bill 1979], had the following to say:
“Under the existing law, illegal immigrants can only properly be detainedfor such minimum time as is necessary to effect their removal to China orelsewhere. This usually means that it is very difficult to secure sufficientevidence to prosecute those who may have assisted in their entry to HongKong. And I should add there is increasing information that a number ofpeople are engaged in aiding and abetting illegal immigration. So theamendment proposed in clause 3 of the Bill will allow illegal immigrantsto be detained for sufficient time to give evidence in the prosecution ofaiders and abetters in appropriate cases.” (Reports of the Sittings of theLegislative Council of Hong Kong, Session 1978/79, pp 931–932.)
It is therefore clear that the intention of the legislation in enacting s32(4)(b) of the Immigration Ordinance was to enable the Attorney Gen-eral to apply to the court for the further detention of a person subject toa removal order so that he could give evidence as a prosecution witnessonly.
There are in my view good reasons for limiting the witnesses to bedetained under s 32(4)(b) to prosecution witnesses as the Attorney Gen-eral will have control as to how long such witnesses need to be detainedwhereas when it comes to defence witnesses, as demonstrated in thepresent case, the period or detention depends on a variety or factors
5
10
15
20
25
30
35
40
45
822 High Court (Deputy Judge Yeung) (1993) 4
some of which are completely beyond the control of the Attorney Gen-eral. Hence the respondent has been detained for almost 7 months so farand it will be at least another 7 months before he will be required togive evidence as a defence witness.
There is no provision as to the maximum number of the 21-day peri-ods permitted under s 32(4)(b), but it is difficult to imagine that thelegislation would be contemplating period of many months or even years.
The Attorney General may be anxious to ensure that the defendantwould have a fair trial by making the respondent available to give evi-dence for him. But there must be valid ground established by law thatcan be relied on to achieve such purpose.
The defendant under article 11 of the Hong Kong Bill of Rights shallbe entitled to the guarantees to obtain the attendance and examinationor witnesses on his behalf. Such guarantees are not absolute.
As Lord Woolf observed in Attorney General v Lee Kwong-kut andAttorney General v Lo Chak-man (1993) 3 HKPLR 72 at 100:
“While the Hong Kong judiciary should be zealous in upholding an indi-vidual’s rights under the Hong Kong Bill, it is also necessary to ensurethat disputes as to the effect of the Bill are not allowed to get out of hand.The issues involving the Hong Kong Bill should be approached with real-ism and good sense, and kept in proportion. If this is not done the Bill willbecome a source of injustice rather than justice and it will be debased inthe eyes of the public. In order to maintain the balance between the indi-vidual and the society as a whole, rigid and inflexible standards should notbe imposed on the legislature’s attempts to resolve the difficult and intran-sigent problems with which society is faced when seeking to deal withserious crime.”
In any event, the defendant can try to secure the attendance of therespondent as his witness by relying on s 37 of the Criminal ProceduresOrdinance.
Whether the defendant can successfully rely on it can only be prop-erly answered when the defendant does make an application and it willbe undesirable for me to express any view on it at this stage.
Suffice for me to hold that in so far as the present application by theAttorney General to further detain the respondent so that he can giveevidence for the defendant in the murder and riot trial before Gall J anda jury the application is misconceived and must be rejected.
Such decision will of course dispose of the matters before me.I have considered whether I should deal with the question of discre-
tion in case my ruling on the interpretation of s 32(4)(b) of theImmigration Ordinance is incorrect and I have come to the conclusionthat it will be undesirable to do so.
Mr Walters had indicated that, should the present application by the
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Pham Si Dung (No 2) 823
Attorney General be refused, immediate application will be made underthe Criminal Procedure Ordinance so as to ensure the attendance of therespondent as a witness for the defendant.
Any judge dealing with such an application, in the exercise of hisdiscretion, will have to consider the entire background of the case and tobalance the respective interests of the defendant and the respondentwhich exercise may overlap the exercise of the discretion under s 32(4)(b)of the Immigration Ordinance.
It is in my opinion more desirable that whoever hears such an appli-cation should be allowed to consider the matter afresh and it would bewrong for me to do anything which may affect the free exercise of thediscretion by the other judge.
The application by the Attorney General is therefore dismissed and Ishall hear parties as to any consequential directions or orders whichmight be required.
[Eds: On 13 September 1993 Deputy Judge Yam issued a warrant pur-suant to s 37 of the Criminal Procedure Ordinance (Cap 221) for thearrest of Pham Si Dung and two other witnesses, in order to ensuretheir availability as witnesses at the trial. The question whether theywere to be released on bail or held in custody until the trial was to beconsidered later. The Director of Immigration indicated his preliminaryview at the hearing that, if the judge ordered the witnesses to be kept incustody, he would consider this as overriding any removal order, butthat if the witnesses were released on bail, he would consider it appro-priate to carry out the removal of the witnesses.]
5
10
15
20
25
30
35
40
45
824 High Court (Keith J) (1993) 4
Attorney General v Bui Thi Ngoan and others
(No 1)
High CourtMP Nos 3311–16 of 1993 and 3366–91 of 1993
Keith JDate of hearing — 7 October 1993Date of judgment — 7 October 1993
Criminal procedure — Witnesses — Detention of witnesses to en-sure availability at trial — Principles to be applied by court indeciding on application — Vietnamese boat people detained inorder to give evidence for the Crown — Immigration Ordinance(Cap 115), ss 13 E, 32(4)
Human rights — Right to liberty and security of the person — De-tention of witnesses in order to give evidence for prosecution attrial — Whether detention order could be made by consent if wit-nesses willing to testify — Vietnamese boat people —Vietnamesemigrants — Immigration Ordinance (Cap 115), ss 13E, 32(4)(a), (b)
Immigration — Power to detain person in Hong Kong in order togive evidence — Immigration Ordinance (Cap 115), ss 13E, 32(4),36(1)
Immigration — Power to require a person liable to be detained toenter into a recognizance — Power enjoyed only by immigrationand police officers — No power of the court to make such anorder — Immigration Ordinance (Cap 115), s 36(1)
The respondents were 32 Vietnamese who had come to Hong Kong be-tween 18 May 1991 and 1 October 1991. They had applied for voluntaryrepatriation on various dates in late 1991 and early 1992. However,following a fire at Sek Kong Detention Centre in February 1992 whichresulted in the death of a number of inmates, charges of murder and riotwere brought against thirteen accused. The prosecution believed thatthe respondents could give material evidence on its behalf at the trial.Accordingly, they were detained pursuant to various orders made by theSecretary for Security under s 32(4)(a) of the Immigration Ordinance(Cap 115) and orders made by the High Court on the application of theAttorney General under s 32(4)(b) of the Ordinance. Four of the re-
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 1) 825
spondents had indicated their willingness to testify on behalf of theprosecution; the remainder had not. The trial began on 17 December1992, and it was expected that the Crown would conclude its case byDecember 1993.
The Attorney General applied to the High Court for an order under s32(4)(b) detaining the respondents for a further 21 days from 8 October1993. At the hearing he proceeded with only 20 of the applications, theprosecution having decided it did not wish to call the other respondentsas witnesses.
Held (granting the applications and ordering the detention ofthe respondents for 21 days):
1. Any power of detention conferred upon the executive or the courtsmust be impliedly limited to the period which is reasonably necessaryto achieve the purpose for which the detention is sought. This wasdifferent from the proposition that, if the purpose for which the deten-tion is sought cannot be achieved within a reasonable time, thedetention becomes unlawful. However, the court would consider theapplications on the assumption most favourable to the respondents,namely that: (a) if there was no prospect of the respondents beingable to give evidence within a reasonable time, the detention orderssought should not be granted; and (b) in determining whether therewas any prospect of their being able to give evidence within a reason-able time, a factor to be taken into account was the length of timewhich had elapsed since the date when they would otherwise havebeen repatriated to Vietnam. (p 829, lines 7–24)
2. The respondents enjoyed a fundamental human right not to be de-tained against their will in a foreign country when they had not beenfound guilty of any conduct justifying their detention. This right,their likely detention for 18 months beyond when they could havebeen expected to have been repatriated to Vietnam, and the practicaland personal impact of the continued detention were important fac-tors in considering whether to order the detention of the respondents.(p 829, line 38 to p 830, line 12)
3. Nevertheless, there was a powerful and compelling public interest inensuring the proper administration of justice by avoiding the possibil-ity that a long criminal trial would be aborted after an enormousamount of time and expense had been incurred. That public interestalso required the court, if it could, to take such lawful steps as werewithin its power to ensure that at an important criminal trial inwhich defendants faced charges of the utmost gravity all relevant and
5
10
15
20
25
30
35
40
45
826 High Court (Keith J) (1993) 4
admissible evidence was available for consideration by the jury. (p830,lines 15–22)
4. The overall balance weighed heavily in favour of granting the orderssought. Although the respondents had not been found guilty of anyconduct justifying the postponement of their return to Vietnam, theyhad chosen to leave Vietnam in the first place. Furthermore, therewas every prospect that the respondents would be able to give theirevidence within a reasonable time in light of the length of time whichhad elapsed since they would otherwise have been repatriated to Vi-etnam. (p 830, lines 23–34)
BF Moorfoot and P Wong (of the Attorney General’s Chambers), for theCrown/applicant.
Respondents, in person.A Chung, for the Director of Legal Aid, as amicus.
The following cases and materials are referred to in the judgment:
Attorney General v Pham Si Dung (No 1) (1993) 4 HKPLR 799Attorney General v Pham Si Dung (No 2) (1993) 4 HKPLR 813
Immigration Ordinance (Cap 115), ss 13E, 32(4)(a), (b), 36(1)
Keith J delivered the following judgment:
This case highlights the tension which arises between the right of theCrown to be able to call all relevant evidence at the trial of personscharged with serious offences, and the right of a prosecution witness ina criminal trial to return to Vietnam without being detained any longeruntil it is time for him or her to give evidence. Kaplan J and DeputyJudge Yeung dealt with a similar problem in relation to a defence wit-ness in the same trial in Attorney General v Pham Si Dung (No 1)(1993)4 HKPLR 799 and (No 2) (1993) 4 HKPLR 813. However,(i) the jurisdictional problems which caused Kaplan J to decline to make
the order sought do not apply to this case because in this case orders forremoval by the Director of Immigration under s 13E of the ImmigrationOrdinance (Cap 115) (“the Ordinance”) preceded orders for detention bythe Secretary for Security under s 32(4)(a) of the Ordinance; and
(ii) Deputy Judge Yeung’s finding that s 32(4)(b) of the Ordinance didnot give him the power to order the witness’ detention in that caseapplied only to defence witnesses.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 1) 827
Since the jurisdictional problems do not apply to this case, the onlyquestion which arises relates to the exercise of my discretion.
The relevant facts are these. During the night of 3–4 February 1992,a fire broke out at the Sek Kong Detention Centre for Vietnamese Mi-grants. Many people died. Subsequently, a prosecution arising out of theincident was commenced, and 13 people were indicted on charges ofmurder and riot. The trial is an important one for Hong Kong, and is themost important trial in a series of trials arising out of the incident, theother two being trials in the District Court. The respondents to whomthe 32 applications before me today relate are all Vietnamese migrants.Until today, they were all believed to be capable of giving materialevidence at the trial on behalf of the Crown. They have all been namedon the back of the indictment.
The trial began on 17 December 1992 before Gall J and a jury. For atrial of its magnitude, it got under way commendably quickly. That, nodoubt, was in part to accommodate the desire of many of the witnessesto return to Vietnam as soon as possible. As it is, the Crown’s case isexpected to be concluded by December 1993, though it has to be recog-nised that that expectation might not be realised.
The 32 respondents arrived in Hong Kong on various dates between18 May 1991 and 1 October 1991. They all applied, on various dates atthe end of 1991 or the beginning of 1992, for voluntary repatriation toVietnam. However, they have all been detained, and continue to bedetained, in various detention centres for Vietnamese migrants pursu-ant to:(a) various authorizations of the Secretary for Security purportedly given
under s 32(4)(a) of the Ordinance, and(b) various orders of the court purportedly made pursuant to s 32(4)(b)
of the Ordinance.The reasoning behind Kaplan J’s ruling rendered those authorizationsand orders invalid. However, since his ruling, valid authorizations of theSecretary for Security for the detention of the first 6 respondents for aperiod of 28 days from 27 August 1993 have been given, and valid orderswere made by Woo J for the further detention of the first 6 respondentsup to today. Moreover, valid authorizations of the Secretary for Securityfor the detention of the other 26 respondents for a period of 28 daysexpiring today have been given. It is in these circumstances that theAttorney General now seeks orders for the detention of 20 of the 32respondents for a further period not exceeding 21 days pursuant to s32(4)(b) of the Ordinance.
The applications relating to the other 12 respondents have today beenwithdrawn because it is no longer proposed to call them to give evidenceat the trial. Those 12 applications are MP No 368 of 1993, MP No 369 of1993, MP No 370 of 1993, MP No 372 of 1993, MP No 373 of 1993, MPNo 377 of 1993, MP No 379 of 1993, MP No 381 of 1993, MP No 383 of
5
10
15
20
25
30
35
40
45
828 High Court (Keith J) (1993) 4
1993, MP No 384 of 1993, MP No 387 of 1993 and MP No 388 of 1993. Inrelation to the remaining 20 applications, I give the Attorney Generalleave to amend the notices of originating motion to substitute, for thedates contained in the notices, 8 October 1993.
There is, regrettably, no half-way house in this case. That is becausethe Director of Immigration has decided that there is no possibility ofthe respondents being accommodated in Hong Kong outside the deten-tion centre system. That is a matter for him and not for the courts. Thepower accorded by s 36(l) of the Ordinance to require a person (who,though being liable to be detained under s 32 of the Ordinance, is notbeing so detained for the time being) to enter into a recognizance isgiven only to immigration and police officers. The consequence is that iforders are not made pursuant to s 32(4)(b) the respondents will berepatriated to Vietnam as soon as it is reasonably practicable to effecttheir removal.
The respondents are not represented today. That is because theirapplications for legal aid have been refused. However, Miss Chung hasbeen instructed by the Director of Legal Aid to appear today before meto provide me with any assistance I may require. She has told me thatthe Director of Legal Aid is prepared to offer legal aid to those of therespondents who are unwilling to remain in Hong Kong until they givetheir evidence. Four of the respondents, that is, those in MP No 376 of1993, MP No 380 of 1993, MP No 389 of 1993 and MP No 390 of 1993,have told me today that they are willing to remain in Hong Kong untilthey give their evidence, and that they do not oppose the applicationsbeing made today by the Attorney General.
In my view, there are potential difficulties about making the orderssought by the Attorney General by consent, though the fact that the fourrespondents are willing to remain in Hong Kong until they give theirevidence is, of course, a powerful and compelling factor to be taken intoaccount. As for the remaining sixteen respondents who have told methat they are unwilling to remain in Hong Kong until they give theirevidence and to whom, therefore, the Director of Legal Aid is preparedto offer legal aid, they have told me that even though they may berepresented on any future application, they still wish to oppose theapplications before me today. I have therefore taken it upon myself toconsider what points can be made on the respondents’ behalf.
In that connection, I have read the skeleton argument of the respond-ent in Pham Si Dung, prepared by his counsel, Mr Philip Dykes. Animportant point is taken in paragraph 35 of the skeleton:
“It is wrong to make a detention [order] under section 32(4) of the Immi-gration Ordinance if there is no prospect of the detainee being able to giveevidence within a reasonable time. Detention should not become indefiniteby virtue of the incremental effect of successive orders of detention. Lawful
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 1) 829
detention may become unlawful simply with the effluxion of time: R. v.Governor of Durham Prison ex p. Singh [1984] l WLR 704 at 706 D - F:Liew Kar-seng v. Governor-in-Council [1989] l HKLR 607 at 609 E - J: R. v.Governor of Richmond Remand Centre ex p. Ashgar [1971] l WLR 129 at132H, 133 A-B, E.”
I have read the passages in those cases. In my view, the principlewhich can be extracted from them is a relatively narrow one, namely,that any power of detention conferred upon the executive or the courtsmust be impliedly limited to the period which is reasonably necessary toachieve the purpose for which the detention is sought. That is a verydifferent principle from the one for which Mr. Dykes contended, whichwas that if the purpose for which the detention is sought cannot beachieved within a reasonable time, the detention becomes unlawful. How-ever, without deciding what the correct principle is, I propose to proceedtoday on the assumption most favourable to the respondents, namely:(i) that if there is at present no prospect of the respondents being able
to give evidence within a reasonable time, the detention orders soughtshould not be granted;
(ii) that in determining whether there is, at present, any prospect ofthem being able to give evidence within a reasonable time, a factorto be taken into account is the length of time which has elapsedsince the date when they would otherwise have been repatriated toVietnam.
Mr Moorfoot for the Attorney General has told me that that wouldhave been a few months after they had applied for voluntary repatria-tion. However, they would not all have been repatriated at the sametime. Repatriations are staggered to take account of the availability oftransport, but I think I ought to assume, for the purpose of these appli-cations, that the respondents would have been repatriated by June 1992.Moreover, since the order in which the Crown proposes to call the re-spondents as witnesses is described as “fluid”, each of the respondentscould be the last of the witnesses to be called. I have therefore assumed,for the purpose of these applications, that there is no prospect of any ofthe respondents being able to give evidence significantly before the endof December, but that there is every prospect of them having given theirevidence by then.
I bear in mind in the respondents’ favour that the time which haselapsed since the date when they would otherwise have been repatriatedto Vietnam is considerable. I bear in mind also the strong and powerfulpersonal reasons which the respondents have told me make them wantto return to Vietnam as soon as possible. They include the harsh condi-tions of life in a closed camp, the fear of reprisals which may be takenagainst them because they are potential witnesses for the Crown, thelack of schooling for their children, and their natural desire to return to
5
10
15
20
25
30
35
40
45
830 High Court (Keith J) (1993) 4
their families in Vietnam. I bear in mind that they have not been chargedwith any criminal offences, and that if their detention continues untilthe end of December, their detention since the time they would other-wise have been repatriated to Vietnam will be about 18 months, whichis equivalent to a prison sentence of 27 months after remission. I alsobear in mind, in relation to the 16 respondents who are unwilling toremain in Hong Kong to give evidence, that they are unwilling wit-nesses for the Crown, and given the choice would prefer not to giveevidence at all. Finally, I bear in mind the fundamental human right ina civilized society of any person not to be detained in a foreign countryagainst his will when he has not been found guilty of any conduct justi-fying his detention.
However, in the balancing exercise which I have to conduct, the scales,in my view, weigh heavily in favour of granting the detention orderssought. There is a powerful and compelling public interest in ensuringthe proper administration of justice by avoiding the possibility of a longcriminal trial being aborted after an enormous amount of time andexpense has been incurred. That public interest also requires the court,if it can, to take such lawful steps as are within its power to ensure thatat an important criminal trial in which defendants face charges of theutmost gravity all relevant and admissible evidence is available for con-sideration by the jury.
In my view, these factors outweigh the respondents’ desire to returnto Vietnam as soon as possible. It is true that they have not been foundguilty of any conduct justifying the postponement of their return toVietnam. But it must be remembered that they chose to leave Vietnamin the first place. There is every prospect of the respondents being ableto give their evidence within the next 12 weeks, and I regard that as areasonable time when I take into account the length of time which haselapsed since they would otherwise have been repatriated to Vietnam.The amount of time for which the respondents have had to be detainedis not because of delay on the part of those responsible for the prosecu-tion, but because our system of criminal justice causes trials of this kindto take a considerable time.
For these reasons, I propose to grant these applications. I order thatthe 20 respondents in those applications which have not been with-drawn be detained, pursuant to s 32(4)(b) of the Ordinance, for a periodnot exceeding 21 days from 8 October 1993.
As a matter of form, the orders I make today govern the next 21 daysonly. However, the factors which I have taken into account today are thefactors which would have to be taken into account in 21 days’ time whenthe Attorney General makes further application under s 32(4)(b) in rela-tion to those of the 20 respondents whose evidence by then has not beencompleted. The exercise of the court’s discretion will then have to beconsidered afresh, assisted by such further representations as counsel
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 1) 831
instructed on behalf of the respondents may choose to make. I do notformally reserve any further applications under s 32(4)(b) in relation tothese respondents to myself, but I recommend to the Clerk of Court thatit is desirable, if the lists can be juggled properly, for there to be conti-nuity in these cases. That would best be served by the same judgehearing all future applications.
5
10
15
20
25
30
35
40
45
832 High Court (Keith J) (1993) 4
Attorney General v Bui Thi Ngoan and others
(No 2)
High CourtMP Nos 3311–16, 3366–67, 3371, 3374–76, 3378, 3380, 3382, 3385–86and 3389–91 of 1993
Keith JDate of hearing — 27 October 1993Date of judgment — 27 October 1993
Criminal procedure — Witnesses — Detention of witnesses to en-sure availability at trial — Principles to be applied by court indeciding on application — Vietnamese boat people detained inorder to give evidence for the Crown — Immigration Ordinance(Cap 115), ss 13 E, 32(4)
Human rights — Right to liberty and security of the person — De-tention of witnesses in order to give evidence for prosecution attrial — Whether detention order could be made by consent if wit-nesses willing to testify — Vietnamese boatpeople — Vietnamesemigrants — Immigration Ordinance (Cap 115), ss 13E, 32(4)(a), (b)
Immigration — Power to detain person in Hong Kong in order togive evidence — Immigration Ordinance (Cap 115), ss 13E, 32(4),36(1)
The respondents were 20 Vietnamese who had come to Hong Kong in1991 and who had applied for voluntary repatriation in late 1991 andearly 1992. However, following a fire at Sek Kong Detention Centre inFebruary 1992 which resulted in the bringing of criminal charges againstother detainees, the respondents (who the prosecution believed couldgive material evidence on its behalf at the trial) were detained pursuantto various orders made by the Secretary for Security under s 32(4)(a) ofthe Immigration Ordinance (Cap 115) and orders made by the HighCourt on the application of the Attorney General under s 32(4)(b) of theOrdinance.
On 7 October 1993, Keith J ordered the further detention of therespondents for 21 days from 8 October 1996. The Attorney Generalapplied to the High Court for an order under s 32(4)(b) detaining therespondents for a further 21 days from 28 October 1993. At the hearinghe proceeded with 19 of the applications, the prosecution having decided
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 2) 833
it did not wish to call one of the respondents as witnesses. Although therespondents had been granted legal aid, this was subsequently with-drawn after counsel gave an opinion on the merits that was unfavourableto the respondents.
Held:
Since none of the respondents had added anything new to the reasonswhy they should be permitted to return to Vietnam and it was likelythat they would give their evidence by early 1994, the reasons givenfor granting the earlier orders applied with equal force and it wastherefore appropriate to order their detention for a further 21 days.(p835, lines 5–7)
BF Moorfoot and P Wong, (of the Attorney General’s Chambers), for theCrown/applicant.
Respondents, in person.A Chung, for the Director of Legal Aid, as amicus.
The following case and materials are referred to in the judgments:
Attorney General v Bui Thi Ngoan and others (No 1) (1993) 4 HKPLR824
Immigration Ordinance (Cap 115), ss 13D(1), 13E(1), 32(4)(a), 32(4)(b)
Keith J delivered the following judgment:
On 7 October 1993, I ordered the detention of 20 Vietnamese migrantsfor a period of not more than 21 days from 8 October pursuant to s32(4)(b) of the Immigration Ordinance (Cap 115) (the “Ordinance”). Thecase highlighted the tension which arises between the right of the Crownto be able to call all relevant evidence at the trial of persons chargedwith serious offences, and the right of a prosecution witness in a crimi-nal trial to return to Vietnam without being detained any longer until itis time for him or her to give evidence. The reasons for the detentionorders I made on 7 October are set out in the judgment I delivered onthat date [see (1993) 4 HKPLR 824]. The Attorney General now seeksorders for the detention of 19 of the 20 respondents for a further periodof not more than 21 days from tomorrow pursuant to the same statutoryprovision. One of the respondents is no longer required to give evidence,
5
10
15
20
25
30
35
40
45
834 High Court (Keith J) (1993) 4
and I therefore make no order in his case, which is MP No 3367 of 1993.None of the respondents were represented on 7 October. However, I
have been informed in a note sent to me by Ms Chung, who has beeninstructed by the Director of Legal Aid to appear before me today toprovide me with any assistance I may require, that since the last hear-ing the Director of Legal Aid on 13 October granted legal aid to the 16respondents who had told me on 7 October that they were unwilling toremain in Hong Kong until they gave their evidence. Mr Philip Dykes ofcounsel was instructed to advise on the merits of the respondents’ oppo-sition to the detention orders sought by the Attorney General today. Hisadvice was unfavourable to the respondents, and as a result the legalaid certificates granted in their favour have been discharged. In conse-quence, none of the respondents were represented before me today.
Because they are unrepresented, I have again thought it right to takeit upon myself to consider what points can be made on the respondents’behalf. I have also asked Mr Moorfoot, who appears for the AttorneyGeneral, to treat himself as under a duty of candour to tell the courtanything which he thinks may help the respondents. In that connection,I have read Mr Dykes’ advice, though I have ignored entirely his view asto what my likely approach to these applications would be.
In relation to the points raised by Mr Dykes in his advice, and to theextent that they were not dealt with by me in the judgment I deliveredon 7 October, my views are as follows:(i) I have no reason to doubt that the respondents were, following their
arrival in Hong Kong, detained under the authority of the Directorof Immigration pursuant to s 13D(1) of the Ordinance.
(ii) I have no reason to doubt that the Director of Immigration orderedthe removal of the respondents from Hong Kong pursuant to s 13E(1)of the Ordinance.
(iii) In consequence, the recent authorizations of the Secretary for Secu-rity for the detention of the respondents for a period of 28 dayspursuant to s 32(4)(a) of the Ordinance were valid.
(iv) Hence, the court has power to make orders for the detention of therespondents for further periods of 21 days pursuant to s 32(4)(b) ofthe Ordinance.
(v) Even if the detention of any of the respondents prior to the recentauthorizations of the Secretary for Security was unlawful for anyperiod of time, that would not render any further period of detentionnow unlawful, nor do I regard any prior unlawfulness as a signifi-cant factor in the exercise of my discretion.
None of the respondents have today added anything new to the rea-sons why they should be permitted to return to Vietnam now, thoughtwo of them have told me today that they are willing to remain in HongKong to give evidence, over and above the four who told me that on 7
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 2) 835
October. There is still every prospect of the respondents being able togive their evidence in the not too distant future, though it is now esti-mated that the respondents will have given their evidence by the end ofJanuary or early February 1994.
The reasons which I gave for granting the orders on 7 October applytoday with equal force, but so that the respondents continue to have aclear idea of why I have decided to detain all of them further, I proposeto read part of the judgment I gave on 7 October (Attorney General v BuiThi Ngoan and others (No 1) (1994) 4 HKPLR 824 at 829–830):
“I bear in mind in the respondents’ favour that the time which has elapsedsince the date when they would otherwise have been repatriated to Viet-nam is considerable. I bear in mind also the strong and powerful personalreasons which the respondents have told me make them want to return toVietnam as soon as possible. They include the harsh conditions of life in aclosed camp, the fear of reprisals which may be taken against them be-cause they are potential witnesses for the Crown, the lack of schooling fortheir children, and their natural desire to return to their families in Viet-nam. I bear in mind that they have not been charged with any criminaloffences, and that if their detention continues until the end of December,their detention since the time they would otherwise have been repatriatedto Vietnam will be about 18 months, which is equivalent to a prison sen-tence of 27 months after remission. I also bear in mind, in relation to the16 respondents who are unwilling to remain in Hong Kong to give evi-dence, that they are unwilling witnesses for the Crown, and given thechoice would prefer not to give evidence at all. Finally, I bear in mind thefundamental human right in a civilized society of any person not to bedetained in a foreign country against his will when he has not been foundguilty of any conduct justifying his detention.
However, in the balancing exercise which I have to conduct, the scales,in my view, weigh heavily in favour of granting the detention orders sought.There is a powerful and compelling public interest in ensuring the properadministration of justice by avoiding the possibility of a long criminal trialbeing aborted after an enormous amount of time and expense has beenincurred. That public interest also requires the Court, if it can, to takesuch lawful steps as are within its power to ensure that at an importantcriminal trial in which defendants face charges of the utmost gravity allrelevant and admissible evidence is available for consideration by the jury.
In my view, these factors outweigh the respondents’ desire to return toVietnam as soon as possible. It is true that they have not been found guiltyof any conduct justifying the postponement of their return to Vietnam. Butit must be remembered that they chose to leave Vietnam in the first place.There is every prospect of the respondents being able to give their evidencewithin the next 12 weeks, and I regard that as a reasonable time when Itake into account the length of time which has elapsed since they would
5
10
15
20
25
30
35
40
45
836 High Court (Keith J) (1993) 4
otherwise have been repatriated to Vietnam. The amount of time for whichthe respondents have had to be detained is not because of delay on thepart of those responsible for the prosecution, but because our system ofcriminal justice causes trials of this kind to take a considerable time.”
Apart from the slightly different time estimate for the giving of therespondents’ evidence, those words apply equally today. Accordingly, inthe exercise of my discretion, I order that the 19 respondents be de-tained pursuant to s 32(4)(b) of the Ordinance for a period of 21 daysfrom 28 October 1993.
Finally, in view of what the respondents told me both today and on 7October, I should make four final comments. First, I have no power toorder the manner or place of their detention. That is a matter for theDirector of Immigration and the Department of Correctional Services.Secondly, I have no power on this application to order that they be paidcompensation for what they allege to be their unlawful detention. Thatquestion is for another judge on another occasion. Thirdly, I have nopower over the course of the criminal trial at which they are beingrequired to give evidence, nor can I make any comments on their claimsthat the wrong people are being prosecuted or that they have beensubjected to ill-treatment at the hands of the police or officers from theDepartment of Correctional Services. Fourthly, one of the respondentstold me today that the Government of Vietnam was prepared to co-operate with the Government of Hong Kong in returning witnesses toHong Kong to give evidence. I was told the very opposite by Mr Moorfootat the last hearing, but even if such co-operation exists, I do not regardit as practicable for any of the respondents to be allowed to return toVietnam, where they could well disappear and not be found by theVietnamese authorities in sufficient time for them to be returned toHong Kong to give evidence.
[Eds: The Attorney General sought a further order for the detention ofthe respondents and the matter was considered by Keith J on 17 No-vember 1993. The judge considered that the circumstances were basicallyunchanged (although the estimate of when the respondents would havegiven their evidence was now the end of January or early February1994) and that the further orders should be made. However, one of therespondents was now represented and his counsel indicated that hewished to argue that there was a reasonable practical alternative todetention which would keep that respondent in Hong Kong and ensurehis availability as a witness at the trial. In order to permit the questionto be argued as soon as practicable, Keith J renewed the orders until 26November 1993. Keith J subsequently considered this and other argu-ments: see (1993) 4 HKPLR 837.]
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 837
Attorney General v Bui Thi Ngoan and others
(No 3)
High CourtMP Nos 3311–l6, 3366, 3371, 3374–76, 3378, 3380, 3382, 3385–86 and3389–91 of 1993
Keith JDate of hearing — 24–25 November 1993Date of judgment — 29 November 1993
Criminal procedure — Witnesses — Detention of witnesses to en-sure availability at trial — Principles to be applied by court indeciding on application — Vietnamese migrants — Vietnameseboat people detained in order to give evidence for the Crown —Immigration Ordinance (Cap 115), ss 13 E, 32(4)
Human rights — Right to liberty and security of the person —Detention of witnesses in order to give evidence for prosecution attrial — Whether reasonable — Immigration Ordinance (Cap 115),ss 13E, 32(4)(a), (b)
Immigration — Power to detain person in Hong Kong in order togive evidence — Immigration Ordinance (Cap 115), ss 13E, 32(4),36(1)
Practice and procedure — Originating summons — Seal — Effectof failure to seal originating notice of motion — RSC, O 8, r 3(6)
Practice and procedure — Contempt of court — Refusal by wit-ness to answer questions — Body order — Order that person bebrought before court at end of trial to be dealt with — Whetherorder of custody — Evidence Ordinance (Cap 8), s 81(1)
Practice and procedure — Provision of information in court incamera and in the presence of the respondents’ counsel but in theabsence of the respondents
The respondents were 19 Vietnamese boat people who had come to HongKong in 1991 and who had applied for voluntary repatriation in late1991 and early 1992. However, following a fire at Sek Kong DetentionCentre in February 1992 which resulted in the bringing of criminal
5
10
15
20
25
30
35
40
45
838 High Court (Keith J) (1993) 4
charges against other detainees, the respondents (who the prosecutionbelieved could give material evidence on its behalf at the trial) weredetained pursuant to various orders made by the Secretary for Securityunder s 32(4)(a) of the Immigration Ordinance (Cap 115) and ordersmade by the High Court on the application of the Attorney Generalunder s 32(4)(b) of the Ordinance.
On 7 October 1993, Keith J ordered the further detention of therespondents for 21 days from 8 October 1993 (see (1993) 4 HKPLR 824),an order he renewed on 27 October 1993 and again on 17 November1993 (see (1993) 4 HKPLR 832). In this application, the Attorney Gen-eral applied for the renewal of the detention orders for a further period.Prior to the hearing on 17 November 1993 (at which one respondent wasrepresented), none of the respondents had been represented. By thetime the application came before the court, all but three of the respond-ents were represented by counsel. Among the respondents were twopersons who were to be called to give evidence relating only to theidentification of two of the victims, and another whom the Crown hadbeen prepared to allow to return to Vietnam if the defence did not wishto cross-examine her, but whom the Crown subsequently decided to callalthough the defence had decided that it did not wish to cross-examineher.
The respondents argued that the orders made by the Director of Im-migration under s 13E(1) of the Immigration Ordinance were unlawfuland that, accordingly, the orders made by the Secretary for Security andthe court (for which a valid s 13E order was a prerequisite) were bad.They claimed that the Director had made the orders for an unauthorisedpurpose, namely not to secure the removal of the respondents fromHong Kong but to make it possible for the Secretary for Security toexercise his power under s 32(4)(a) and the court to exercise its powerunder s 32(4)(b). In support of this contention, the respondents pointedto the terms of the orders, which stated that “removal will be effectedafter the conclusion of their testimony”, and to the timing of those or-ders (these having been made only after Kaplan J had ruled that s13E(1) orders were a necessary pre-condition of the exercise of the pow-ers conferred by s 32(4): see Attorney General v Pham Si Dung (No 1)(1993) 4 HKPLR 799).
The respondents also argued that in view of the terms of the ordersmade by the Director, which indicated his intention to remove them onlyonce they had given their testimony, it was not necessary for the courtto order their detention, since they were in lawful detention under s32(1) of the Ordinance. In relation to the three respondents who hadbeen held in contempt by the judge presiding over the criminal prosecu-tion because of their refusal to answer questions and whom the judgehad ordered to be brought before him at the end of the trial to be dealtwith for their contempt, it was argued that they were already subject to
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 839
a lawful custody order and thus it was not necessary for the court to actunder s 32(4).
In the alternative the respondents argued that, if they were to bedetained until after they had given their evidence, they should be de-tained outside the detention centre system or in a detention centre whereconditions were better than their current place of detention.
The argument was also advanced on behalf of some respondents thatthe notices of motion commencing the proceedings had not been sealedin accordance with O 8, r 3(6) and that therefore the proceedings werenot properly before the court and no orders could be made by the court.
In view of the time available to hear argument, the additional argu-ments and material that were placed before him at short notice and thedesirability of permitting the Director to put forward evidence, Keith Jruled that, in considering the present application, he would not hearargument on the issue of the validity of the orders made under s 13E(1),but would assume that the orders made under s 13E(1) were valid andthat, in the absence of an order under s 32(4)(b), the respondents couldbe repatriated to Vietnam before they gave evidence.
Held:
1. On the basis of the information put before the court in camera as tothe relevance of the respondents’ evidence to the conduct of the crimi-nal proceedings, the evidence of the respondents (save for those whofell into two distinct categories) was sufficiently important to justifythe postponement of their return to Vietnam. The order in which theprosecution witnesses were called was both rationally based and tookinto account the respondents’ express wish to be repatriated to Viet-nam as soon as possible. (p 847, lines 5–15)
2. Any power of detention conferred upon the executive or the courtsmust be impliedly limited to the period which is reasonably necessaryto achieve the purpose for which the detention is sought. This wasdifferent from the proposition that, if the purpose for which the deten-tion is sought cannot be achieved within a reasonable time, thedetention becomes unlawful. However, the court would consider theapplications on the assumption most favourable to the respondents,namely that: (a) if there was no prospect of the respondents beingable to give evidence within a reasonable time, the detention orderssought should not be granted; and (b) in determining whether therewas any prospect of their being able to give evidence within a reason-able time, a factor to be taken into account was the length of timewhich had elapsed since the date when they would otherwise havebeen repatriated to Vietnam. (p 849, line 23 to p 850, line 20)
5
10
15
20
25
30
35
40
45
840 High Court (Keith J) (1993) 4
3. The needs of the criminal trial outweighed the respondents’ right toliberty and their desire to return to Vietnam as soon as possible. Thelength of time for which their detention had been prolonged was rea-sonable and in any event the period of further detention was notbecause of delay on the part of the prosecution but because our crimi-nal justice system causes trials of this kind to take a considerabletime. (p 850, lines 29–40)
4. However, the court should not make further detention orders in respectof the two respondents who were to be called at the trial to give evi-dence relating only to their identification of the bodies of two of thevictims, since the Crown’s case would not be harmed by the absence ofthose witnesses. Nor was it appropriate to order the further detentionof the respondent whom the Crown had been willing to permit to returnto Vietnam if not required by the defence to be tendered for cross-ex-amination but whom it now wished to call (despite the fact that thedefence did not wish to cross-examine her). (p 847, lines 15–40)
5. The fact that three respondents had refused to answer any or furtherquestions in the criminal proceedings (and thereby committed con-tempt of court) did not mean that they could not be detained under s32(4)(b) “for the purpose of giving evidence”. The respondents mightyet decide to answer questions or to continue to do so. Their detentionaccordingly fell within the scope of s 32(4)(b). (p 848, lines 5–14)
6. The order made by the judge presiding over the criminal proceedingsthat the respondents who had committed contempt of court be broughtbefore him at the end of the trial was not an order for their detention,but rather assumed that they were in lawful custody already. Accord-ingly, this did not render the making of an order under s 32(4)(a)unnecessary if the respondents were to continue to be lawfully de-tained. (p 848, lines 30–45)
7. Although the notices of motion had not been sealed in accordancewith the rules, this did not nullify the proceedings. (p 853, lines 13–16)
8. The question of where the respondents should be detained was en-tirely a matter for the Secretary for Security, and the question ofwhether they should be allowed to enter into a recognizance to permittheir release was a matter entirely for a police or immigration officer.(p 852, lines 4–9)
T Casewell & J Cheung (of the Attorney General’s Chambers), for theAttorney General.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 841
J Thomson (instructed by Messrs Hampton, Winter & Glynn), for therespondents in MP Nos 3311–3313.
GJX McCoy (instructed by Messrs Hampton, Winter & Glynn), for therespondents in MP Nos 3314–3316.
M Darwyne (instructed by Messrs Hampton, Winter & Glynn), for therespondents in MP Nos 3378, MP No 3386, MP No 3390 & MP No3391.
P Y Lo (instructed by Messrs Hampton, Winter & Glynn), for the re-spondents in MP Nos 3375, MP No 3382 & MP No 3385.
S Chui (instructed by Messrs Hampton, Winter & Glynn), for the re-spondents in MP No 3366, MP No 3371 & MP No 3374.
Respondents in MP No 3376, MP No 3380 & MP No 3389, in person.
The following cases and materials are referred to in the judgment:
Attorney General v Pham Si Dung (No 1) (1993) 4 HKPLR 799 (MP 2626of 1993)
Attorney General v Pham Si Dung (No 2) (1993) 4 HKPLR 813 (MP No3111 of 1993)
R v Inner London Education Authority, ex parte Westminster City Coun-cil [1986] 1 WLR 28
Evidence Ordinance (Cap 8), s 81(1)Immigration Ordinance Cap 115), 13D(1), 13E(1), 32(1), 32(4)(a), 32(4)(b),
35(1), 36(1)Rules of the Supreme Court (Cap 4 sub leg), O 8, r 3(6)Supreme Court Practice 1993, v 1, para 10/1/15.
Keith J delivered the following judgment:
THE CRIMINAL TRIAL
During the night of 3 and 4 February 1992, a fire broke out at the SekKong Detention Centre for Vietnamese migrants. A number of men,women and children perished. Subsequently, a prosecution arising outof the incident was commenced, and 13 people were indicted on chargesof murder and riot. Not surprisingly, the trial has become a notoriousone. The tragic events which gave rise to the prosecution made thatinevitable. More significantly, it is now the longest murder case to havebeen tried in Hong Kong, even though the Crown’s case is still manymonths away from being completed. It is common knowledge that thathas resulted in a considerable burden on the Legal Aid Fund, and a
5
10
15
20
25
30
35
40
45
842 High Court (Keith J) (1993) 4
drain on the resources of both the Judiciary and the Attorney General’sChambers.
The trial began on 17 December 1992 before Gall J and a jury. For atrial of its magnitude, it got under way commendably quickly. At anearlier hearing, I was told that that was in part to accommodate thedesire of the many Vietnamese witnesses to return to Vietnam as soonas possible. However, the trial has regrettably lasted far longer thanwas ever anticipated. I do not propose to repeat the estimates which Ihave been given at earlier hearings. It is sufficient for me to say that thecurrent estimate, which I was given from the bar table by Mr Power, amember of the prosecuting team, is that the Crown’s case will not beconcluded before the end of April 1994. That estimate was based on anumber of assumptions. From my limited knowledge of the trial, I re-gard those assumptions as realistic. However, the estimate made noallowance for those unforeseen contingencies which could delay the trial.The absence through illness, for example, on any day of any one of about40 people involved in the trial, whether defendant, counsel, witness,juror or judge, means that the trial cannot proceed on that day. In myview, an additional two weeks should be added to the estimate to caterfor the unexpected.
THE RESPONDENTS
The 19 respondents are all Vietnamese migrants. They arrived in HongKong on various dates between 24 May 1991 and 30 September 1991.They all applied on various dates at the end of 1991 or the beginning of1992 for voluntary repatriation to Vietnam. However, they were all de-tainees in Sek Kong on the night of the fire, and they are all believed tobe capable of giving material evidence at the trial on behalf of theCrown. They have all been named on the back of the indictment.
Since the fire, the respondents have continued to be detained in vari-ous detention centres for Vietnamese migrants. I am unclear what thebasis of their original detention was, but the basis of their detention inrecent months has not been in doubt. The applications now before meare applications by the Attorney General for further orders for theirdetention. However, in order to appreciate the basis of their currentdetention, and the context in which I am being asked to make furtherorders for their detention, an understanding of the statutory frameworkis necessary. All references in what follows to sections of an Ordinanceare references to sections of the Immigration Ordinance (Cap 115), andall references to the “Director” are references to the Director of Immi-gration.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 843
THE STATUTORY FRAMEWORK
The sequence of events which the statutory framework envisages willhappen to an asylum seeker from Vietnam who arrives in Hong Kongwithout valid travel documents is as follows:(i) The Director may authorise his detention pending a decision to grant
or refuse him permission to remain in Hong Kong: s 13D(1).(ii) If the Director has authorized his detention under s 13D(1), the
Director may order his removal from Hong Kong: s 13E(1).(iii) If the Director has ordered his removal from Hong Kong under
s13E(1), the Director may authorise his detention pending his re-moval: s 32(1).
(iv) Once the Director has ordered his removal from Hong Kong, he willbe repatriated to Vietnam, subject to any review of his claim forasylum by the Refugee Status Review Board, as soon as it is reason-ably practicable to effect his removal.
(v) However, there is one situation relevant to this case in which theDirector’s order for his removal from Hong Kong under s 13E(1) canbe postponed beyond the time when the migrant would otherwisehave been repatriated to Vietnam. That situation is where he is tobe detained “for the purpose of giving evidence at the trial of anyoffence”: s 32(4). In that situation, the court is given the power tomake successive orders for his detention for not more than 21 daysat a time: s 32(4)(b). Those are the orders which the Attorney Gen-eral is asking me to make in respect of these 19 respondents.
I have three comments to make on the court’s power under s 32(4)(b):(i) Valid orders by the Director under s 13E(1) are a necessary pre-
condition of the exercise of the court’s power under s 32(4)(b). Thatis what Kaplan J decided in Attorney General v Pham Si Dung(No1) (1993) 4 HKPLR 799 (MP 2626 of 1993). In this case, s 13E(1)orders dated 27 August 1993 were made in relation to the first sixrespondents, and s 13E(1) orders dated 4 September 1993 were madein relation to the other respondents.
(ii) The court can only make orders under s 32(4)(b) if, prior to thoseorders, the Secretary for Security has validly authorised the deten-tion of the respondents under s 32(4)(a). In this case, s 32(4)(a)authorizations were made in respect of the first six respondents on27 August 1993, and in respect of the other respondents on 10 Sep-tember 1993.
(iii) The court’s powers under s 32(4)(b) do not apply to defence wit-nesses. That is what Deputy Judge Yeung decided in Attorney Generalv Pham Si Dung (No 2) (1993) 4 HKPLR 813 (MP No 3111 of 1993).This case, though, concerns witnesses proposed to be called by theCrown.
5
10
15
20
25
30
35
40
45
844 High Court (Keith J) (1993) 4
THE ARGUMENTS RELATING TO THE S 13E(1) ORDERS
What counsel for the respondents wish to argue is that the s 13E(1)orders made by the Director were invalid, and that the court has there-fore no jurisdiction to make orders under s 32(4)(b), because the powerto make those orders has not been triggered. In a nutshell, the argu-ment is that the Director did not make the s 13E(1) orders in order tosecure the removal of the respondents from Hong Kong as soon as it wasreasonably practicable to effect their removal. What is suggested is thatthe true reason why the Director made the orders was to trigger thepowers given by s 32(4) to the Secretary for Security and the court tosecure their continued detention in Hong Kong for as long as they areneeded to give evidence at the trial. That is said to be borne out by (a)the language of the s 13E(1) orders, which refer to the fact that therespondents’ “removal will be effected after the conclusion of their testi-mony”, and (b) the timing of the s 13E(1) orders which were only madeafter Kaplan J had ruled that s 13E(1) orders were a necessary pre-condition of the exercise of the powers conferred by s 32(4). Accordingly,it is said, relying on R v Inner London Education Authority, ex parteWestminster City Council [1986] 1 WLR 28, that since the Director exer-cised his power to make the s 13E(1) orders for an unauthorised purpose,those orders are invalid.
The language of the s 13E(1) orders is relevant not only to the juris-dictional question. It is also argued that by adding the rider that therespondents’ “removal will be effected after the conclusion of their testi-mony”, the Director has indicated his intention not to remove them untilthen. Accordingly, it is argued that the court does not have to makefurther orders for their detention under s 32(4)(b) in order to ensurethat they are available in Hong Kong to give evidence: since the Directordoes not intend to effect their removal during that time, they may bedetained by the Director under s 32(1) for the time being.
THE HISTORY OF THE PROCEEDINGS
On the face of it, those arguments are powerful ones. But I cannotdecide them now. To explain why, I have to rehearse the history of theseproceedings. On 7 and 28 October, I made detention orders in respect ofthe respondents under s 32(4)(b). The respondents were not representedon either of those occasions. On 17 November, the Attorney Generalapplied to me for further detention orders in respect of the respondents.On that occasion, one of the respondents was represented by counsel, MrJames Thomson, appearing on a pro bono basis. The argument which hewished to develop was that there was a legal practical alternative todetention, which would still keep the respondents in Hong Kong andmake them available to give evidence at the trial. However, Mr Thomson
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 845
was not in a position to develop that argument then. He recognized that,in view of my earlier judgments, his inability to develop that argumentthen meant that I had no alternative but to make further detentionorders for the time being. However, I limited those detention orders tothe period up to 26 November, so that the argument could be developedat a hearing which I fixed for 24 November because of its urgency.
It so happened that I was available on both 24 and 25 November,because the trial which I was presiding over had had to be adjourneduntil 26 November. I therefore had two days free (but no more than twodays) which would have been ample to consider the argument which MrThomson had wanted to develop. However, by 24 November, the repre-sentation of the respondents had expanded to five counsel (all appearing,be it noted, on a pro bono basis), I was supplied with a formidable list ofauthorities, there were a total of 17 new affidavits or affirmations toconsider, and the respondents’ counsel wished to develop the new argu-ments relating to the validity and language of the s 13E(1) orders and tomy alleged lack of jurisdiction to make the orders sought. There wasplainly insufficient time for all the arguments which the respondents’counsel wished to develop. Moreover, MrCasewell for the Attorney Gen-eral had not been given advance notice of the new points which were tobe taken, and he was only ready to deal with the argument which hadbeen outlined on 17 November. Accordingly, I ruled, with the concur-rence of some counsel, that I would not hear argument on thejurisdictional issue or the issue relating to the Director’s intentions, andthat for the time being only I would assume, for the purpose of theexercise of my discretion, that (a) the s 13E(1) orders had been validlymade, and (b) in the absence of orders under s 32(4)(b), the respondentscould be repatriated to Vietnam before they gave their evidence. If Idecided that, in the exercise of my discretion, I should make furtherdetention orders, I would make them, and leave the other arguments tobe argued on a subsequent application by the Attorney General for fur-ther detention orders.
With the advantage of hindsight, I have no doubt whatever that thatwas the correct approach. Since the jurisdictional argument, and theargument based on the language of the s 13E(1) orders, depend onquestions of fact, namely the reason for the making of the s 13E(1)orders and when the Director intends to effect the respondents’ removalfrom Hong Kong, the Director must have the opportunity of laying be-fore me such evidence as he wishes on those issues.
In the event, despite dispensing with morning breaks and shorteningour breaks for lunch, the hearing did not finish until 5:20 pm on 25November. For the reasons which I shall come to later, I had by thendecided not to make further detention orders in respect of three of therespondents. I announced that decision at the end of the hearing. Ireserved my judgment in respect of the other respondents. However,
5
10
15
20
25
30
35
40
45
846 High Court (Keith J) (1993) 4
since the current detention orders were due to expire the following day,I told counsel that I proposed to grant further detention orders in re-spect of the other respondents expiring on 3 December, by which time Iexpected to have been able to give judgment. In other words, by grantingfurther detention orders for 7 days only, I was intending to preserve thestatus quo pending the delivery of my judgment. With a pragmatismwhich did them credit, all counsel agreed with that approach.
THE NEEDS OF THE TRIAL
In my judgment of 7 October, I said ((1993) 4 HKPLR 824 at 830):
“There is a powerful and compelling public interest in ensuring the properadministration of justice by avoiding the possibility of a long criminal trialbeing aborted after an enormous amount of time and expense has beenincurred. That public interest also requires the court, if it can, to take suchlawful steps as are within its power to ensure that at an important crimi-nal trial in which defendants face charges of the utmost gravity all rel-evant and admissible evidence is available for consideration by the jury.”
None of the respondents’ counsel argued with that proposition. Whatthey queried was whether the respondents’ evidence was sufficientlyimportant to justify the postponement of their return to Vietnam, andwhether the prosecution had paid sufficient attention to the respond-ents’ desire to return to Vietnam when drawing up the order of witnesses.Mr Casewell for his part acknowledged the relevance of those considera-tions.
It was agreed that the best way for me to be provided with the rel-evant information relating to those considerations was for me to heardirectly from a member of the prosecution team. It was not thoughtnecessary for him to go into the witness box and to be cross-examined onhis evidence. Everyone regarded it as sufficient if he addressed me fromthe bar table. However, if the information was to be worth anything atall, it had to be frank, and it had to descend to particulars. That couldnot be done in open court. The press would be entitled to report whatwas said and the jury might read it. Nor could it be done in the presenceof the respondents. If they heard what I was to be told, it might affecttheir evidence. Accordingly, with the agreement of counsel, I took thewholly exceptional cause of (a) going into camera when this informationwas to be given to me, (b) ordering the respondents and their families toleave court while it was being given to me, and (c) extracting undertak-ings from counsel and solicitors for the respondents that they would notdisclose to the respondents and their families what I was told in camera.Courts are always loath to go into camera. Justice unseen is justicedenied. But the exceptional circumstances of this case justify excep-
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 847
tional measures, and I could not think of any alternative method ofbeing given the information in the presence of the respondents’ counselbut in the absence of the respondents and the public.
For obvious reasons, I shall not identify in this judgment what I wastold by Mr Power in camera. What I can say is that although some of therespondents have already given evidence, the course which the trial hastaken means that they are likely to be required to give evidence again.What I can also say is that, save for those respondents who fell into twodistinct categories, I am entirely satisfied that their evidence is suffi-ciently important to justify the postponement of their return to Vietnam,and that the order in which prosecution witnesses have been and will becalled was both rationally based and took into account as far as possiblethe witnesses’ express wish to be repatriated to Vietnam as soon asreasonably practicable.
I turn to the two distinct categories which I regard as exceptional:(i) Two of the respondents (the respondents in MP No 3375 of 1993 and
MP No 3376 of 1993) are to be called at the trial to give evidencerelating only to their identification of the bodies of two of the victimsin the fire. Attempts have been made to agree that evidence, butthey have as yet proved unfruitful. However, it was conceded thatthe Crown’s case against the defendants would not be harmed by theabsence of those witnesses. The worst that can happen is that theindictment will have to be amended to allege the murder of personsunknown.
(ii) The Crown was, at an earlier stage in the trial, willing to permit oneof the respondents (the respondent in MP No 3314 of 1993) to returnto Vietnam unless the defence required her to be tendered for cross-examination. The defence did not require her to be tendered, and theCrown decided to permit her to return to Vietnam. She is the onlyone of the respondents with both a spouse and child in Vietnam.Through what may have been an oversight, that decision was eithernot conveyed by the Crown to those responsible for arranging herrepatriation or not acted upon. Mr Power’s position was that sinceshe was still in Hong Kong, and since she was able to give relevantevidence, the Crown now wished to call her, though he accepted thatthis constituted a change of position on the part of the Crown.
When I told MrCasewell that my provisional view was that furtherdetention orders should not be made in respect of these three respond-ents, Mr. Casewell did not feel able to argue otherwise.
There is one other category of respondent which it is necessary for meto address specifically. Three of the respondents (the respondents in MPNo 3311 of 1993, MP No 3371 of 1993 and MP No 3380 of 1993) havebeen held by Gall J to be in contempt for refusing to answer, or tocontinue to answer, questions once they had been called as witnesses.
5
10
15
20
25
30
35
40
45
848 High Court (Keith J) (1993) 4
Their counsel argued that since they have refused to answer questionsor to continue to answer questions, they will no longer be giving evi-dence at the trial. Accordingly, orders for their detention under s 32(4)cannot be made, because they may only be detained under s 32(4) “forthe purpose of giving evidence”. I reject that argument. The fact that thethree respondents have refused to answer questions or to continue toanswer questions does not mean that they will no longer be giving evi-dence at the trial. All contemners are free to purge their contempt.Indeed, they are encouraged to. There may come a time when thesethree respondents decide to answer questions or to continue to answerquestions. If that is what they decide, all they have to do is to let theCrown know that. Since the Crown still wants them to give evidence,and since they will give evidence if they agree to answer questions, theirdetention, in my view, comes within the rubric of s 32(4).
Counsel for the three respondents take another point. They maintainthat Gall J has already made orders for the respondents’ detention untilthe end of the trial when they will be brought before him to be dealtwith for their contempt. Accordingly, Gall J’s order for their detentionuntil the conclusion of the trial means that further orders for theirdetention under s 32(4)(b) are superfluous, and for that reason shouldnot be made. I reject that argument as well. With the agreement of allcounsel, I spoke to GallJ to find out precisely what he ordered. He toldme that he had made no order for the detention of any witness found tohave been in contempt. He merely ordered that they be brought beforehim at the end of the Crown’s case to be dealt with for their contempt.In other words, he made a “body order” to be put into effect when theCrown’s case was over.
I relayed this information to counsel. It resulted in the further sub-mission that Gall J’s “body order” amounted to an order for theirdetention. I reject that submission as well. A “body order” does notamount to an order for the detention of the person to whom it is ad-dressed. On the contrary, a “body order” assumes that the person isbeing detained lawfully. Once the person ceases to be in lawful custody,the “body order” lapses. I have no doubt that that is the true effect of s81(1) of the Evidence Ordinance (Cap 8), under which I imagine Gall Jwas purporting to act. It provides:
“Any judge of the High Court may . . . issue a[n] . . . order for bringing upany person in lawful custody before any court . . . to enable such person to... defend . . . any proceedings . . . before such court.” (My emphasis).
In purporting to exercise his powers under s 81(1), Gall J must haveassumed that the contemners were in lawful custody, having been de-tained pursuant to s 32(1), s 32(4)(a) or s 32(4)(b) depending upon whenthe “body orders” were made.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 849
THE INTERESTS OF THE RESPONDENTS: THE RESPONDENTS’ PRIMARYCASE
The needs of the trial have to be balanced against the interests of therespondents. Their primary wish is to be allowed to return to Vietnamas soon as possible. They have not been found guilty of any conductjustifying the postponement of their return to Vietnam. They have nowbeen separated from members of their families in Vietnam for a consid-erable time. Leaving aside the respondent in MP No 3314 of 1993, threeof the respondents have spouses in Vietnam, and the child of one ofthem (the respondent in MP No 3378 of 1993) died in a tragic accidentlong after the respondent had left Vietnam. It is true that the respond-ents all chose to leave Vietnam in the first place, but I must not overlookthe fundamental human right in a civilized society of any person not tobe held in a foreign country against his will when he has not been foundguilty of any conduct justifying his detention.
It was against that background that Mr Thomson submitted that therespondents had been kept in Hong Kong against their will for so longthat it would now be unlawful to order their further detention under s32(4)(b). That was an argument which I considered in my judgment of 7October. I did so because, as the respondents were not represented, Ihad taken it upon myself to consider what points could be made on theirbehalf. I quote from my judgment (4 HKPLR at 828–829):
“I have read the skeleton argument of the respondent in Pham Si Dung,prepared by his counsel, Mr. Philip Dykes. An important point is taken inpara 35 of the skeleton:
‘It is wrong to make a detention [order] under s 32(4) of the Immigra-tion Ordinance if there is no prospect of the detainee being able to giveevidence within a reasonable time. Detention should not become in-definite by virtue of the incremental effect of successive orders ofdetention. Lawful detention may become unlawful simply with theeffluxion of time: R. v. Governor of Durham Prison ex p. Singh [1984] lWLR 704 at 706 D - F ; Liew Kar-seng v. Governor-in-Council [1989] lHKLR 607 at 609 E - J ; R. v. Governor of Richmond Remand Centreex p. Ashgar [1971] l WLR 129 at 132H, 133 A-B, E.’
I have read the passages in those cases. In my view, the principle whichcan be extracted from them is a relatively narrow one, namely, that anypower of detention conferred upon the executive or the Courts must beimpliedly limited to the period which is reasonably necessary to achieve thepurpose for which the detention is sought. That is a very different princi-ple from the one for which Mr Dykes [and now MrThomson] contended,which was that if the purpose for which the detention is sought cannot be
5
10
15
20
25
30
35
40
45
850 High Court (Keith J) (1993) 4
achieved within a reasonable time, the detention becomes unlawful. How-ever, without deciding what the correct principle is, I propose to proceedtoday on the assumption most favourable to the respondents, namely,
(i) that if there is at present no prospect of the respondents being able togive evidence within a reasonable time, the detention orders soughtshould not be granted;
(ii) that in determining whether there is, at present, any prospect of thembeing able to give evidence within a reasonable time, a factor to betaken into account is the length of time which has elapsed since thedate when they would otherwise have been repatriated to Vietnam.
Mr Moorfoot for the Attorney General has told me that that would havebeen a few months after they had applied for voluntary repatriation. How-ever, they would not all have been repatriated at the same time.Repatriations are staggered to take account of the availability of trans-port, but I think I ought to assume, for the purpose of these applications,that the respondents would have been repatriated by June 1992.”
I stand by those words today, and I make the same assumptions.I have hitherto assumed that the consequence of my refusal to make
detention orders under s 32(4)(b) was that the respondents would bereturned to Vietnam as soon as it was reasonably practicable to repatri-ate them, and that that could well be before they gave or completedtheir evidence in the trial. Upon that assumption, I concluded in myearlier judgments that the needs of the trial nevertheless outweighedthe respondents’ desire to return to Vietnam as soon as possible. Exceptfor the respondents in MP No 3314 of 1993, MP No 3375 of 1993 and MPNo 3376 of 1993, I remain of that view today. Mr Power estimated thatthe respondents would have completed their evidence by the middle ofMarch 1994. Even if I add an additional two weeks to cater for theunexpected, the position today is that there is every prospect of therespondents being able to give their evidence within the next 18 weeks.I regard that still as a reasonable time for them to be kept in Hong Kongwhen I take account of the length of the time which has elapsed sincethey would otherwise have been repatriated to Vietnam. As I have saidon an earlier occasion, the amount of time for which the respondentshave had to be detained is not because of delay on the part of thoseresponsible for the prosecution, but because our system of criminal jus-tice causes trials of this kind to take a considerable time.
THE INTERESTS OF THE RESPONDENTS: THE RESPONDENTS’ ALTERNA-TIVE CASE
I turn to the respondents’ alternative case which was principally argued
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 851
by Mr Michael Darwyne. If their return to Vietnam has to be deferreduntil after they have given their evidence, they wish their stay in HongKong to be either outside the detention centre system altogether, or indetention centres where their life would be easier than it is now. Four-teen of the respondents are currently being detained in Section 9 of theWhitehead Detention Centre. I do not know where the respondents inMP Nos 3366 of 1993, MP No 3376 of 1993, MPNo 3380 of 1993, MP No3385 of 1993 and MP No 3389 of 1993 are being detained, but I shallassume that they are being detained there also. The conditions there aredescribed by Nguyen Thi Hoan, the respondent in MPNo 3378 of 1993,in paragraph 19 of the affirmation she made on 24 November. TheSection is used for detaining people who have volunteered to return toVietnam. The huts in which the respondents live are overcrowded anduncomfortable. Their tiered bunks are separated by curtains, but thereis no privacy to speak of. However, the physical conditions in which theylive is nothing, so it is claimed, when compared with the pressures ofcamp life. Money, valuables and food are extorted by intimidation. Drunk-enness is prevalent because of the proliferation of illicit stills, and thatcreates an atmosphere of violence. These conditions are said to havecaused the respondents anxiety, fear, depression and disorientation, whoseimpact is claimed to go well beyond their own peace of mind, because itcould affect both their willingness to give evidence and their ability torecall the events to which their evidence relates.
Moreover, they claim that they live in constant fear for their safetyand for that of their children because it is known that they are willing togive evidence. I confess to being sceptical about the truth of that asser-tion. At earlier hearings, the majority of the respondents told me thatthey were not willing to give evidence. Mr Darwyne asked me to acceptthat that did not represent their true state of mind. It was, he said, anill-considered but natural product of their resentment over their treat-ment. Moreover, I have not been told why other detainees would want todeter them from giving evidence. The respondents are all from NorthVietnam, as are the other detainees in Section 9 of Whitehead, whereasthe defendants in the trial are from South Vietnam. However, I havelaid my scepticism to one side, and I have been prepared to assume forthe purposes of these applications that the respondents’ claims are cor-rect.
If they are not to be detained in Section 9 of Whitehead, where arethey to be held while they wait to give evidence? The respondents pointto the New Horizons Vietnamese Refugee Departure Centre, the PillarPoint Vietnamese Refugee Centre and the Kai Tak Transit Centre. In-deed, it has been suggested that resources can be tapped to findaccommodation for them outside the detention centre system altogether.For example, I have been told that the Catholic Diocese of Hong Konghas assisted in making available board and lodging for persons involved
5
10
15
20
25
30
35
40
45
852 High Court (Keith J) (1993) 4
in litigation, and there have apparently been other instances in whichasylum seekers have been housed with their families outside detentioncentres.
However, the problem for the respondents is that the question wherethey should be detained is a matter entirely for the Secretary for Secu-rity: s 35(1). Similarly, the question whether they should be allowed toenter into a recognizance to permit their release is a matter entirely foran immigration or police officer: s 36(1). The correctness of those deci-sions is not a matter for me. If I were to permit these applications todevelop into a challenge to those decisions, I would be permitting acollateral challenge to them by a side-wind. Mr Darwyne was realisticenough to see the force of that point. What he eventually argued, there-fore, was that in the balancing exercise I should take account of thefacts that the Secretary for Security has considered it inappropriate forthe respondents to be detained at present anywhere other than White-head, and that the Director of Immigration is not willing to allow themto enter into a recognizance to permit their release. The fact and miseryof their continued detention in Section 9 of Whitehead, coupled withtheir wish to return to Vietnam as soon as possible, outweighs, it is said,the admitted needs of the trial. I sympathize with the respondents intheir plight, but having given the issue anxious consideration, and hav-ing balanced in my mind once again the needs of the trial against theconditions of the respondents’ current detention, I have reached theconclusion that the scales still weigh in favour of granting the orderssought.
THE NOTICES OF ORIGINATING MOTION
There is one further issue I must address. MrGerardMcCoy on behalfof some of the respondents took a technical point on the issue of thenotices of originating motion. Those notices are the formal documents bywhich the Attorney General invokes the court’s powers to make theorders sought. Order 8 r 3(6) of the Rules of the Supreme Court pro-vides:
“Issue of the notice of an originating motion takes place upon its beingsealed by an officer of the Registry.”
None of the notices of originating motion has been sealed. Accordingly,the notices have not been issued, says Mr McCoy, they are not properlybefore the court, and no orders can be made in respect of them.
The importance of the seal is obvious. “The seal is intended to give aclear message to the [respondent] that he is being served with [an origi-nating motion] by authority of the Supreme Court and not being sentsome informal demand”: Supreme Court Practice 1993, v 1, para 10/1/15.
5
10
15
20
25
30
35
40
45
HKPLR Attorney General v Bui Thi Ngoan and others (No 3) 853
However, I do not suppose for a moment that when the respondents andtheir legal advisors saw the notices of originating motion for the firsttime, the absence of a seal made them doubt the true provenance of thenotices, or caused them to speculate whether the notices had been prop-erly issued. Mr McCoy did not suggest otherwise.
The days when form was treated as more important than substancehave long gone. Hence, O 2, r 1(1) of the Rules of the Supreme Courtprovides that the failure to comply with a requirement of rules of courtshould not nullify the proceedings. Mr McCoy along with other counselexhorted me throughout the hearing to “live in the real world”. I wouldbe doing the very opposite if I ruled that the merits of the AttorneyGeneral’s applications could not be adjudicated upon or given effect tomerely because of a clerical error which no-one but Mr McCoy noticed. Itherefore decline MrMcCoy’s invitation to me to dismiss the AttorneyGeneral’s applications on the ground that the notices in which they aremade were not properly issued.
CONCLUSION
For these reasons, I propose to order that all the respondents, with theexception of those three respondents in MP No 3314 of 1993, MPNo3375 of 1993 and MPNo 3376 of 1993, be detained pursuant to s 32(4)(b)for a period of 14 days from 3 December when the current detentionorders in respect of them expire. I assume that the Attorney Generalwill be applying for further detention orders in the future. If he does, hemust expect to deal with the arguments which could not be developedthrough lack of time to argue them.
Finally, I wish to express my personal thanks to counsel and solici-tors who have selflessly undertaken the representation of the respondentson a pro bono basis. I have found their assistance invaluable. In sayingthat, I intend no criticism of the Director of Legal Aid for dischargingthe legal aid certificates which she had at one time granted to a numberof the respondents. In view of the unfavourable advice as to the respond-ents’ chances of successfully opposing these applications for detentionorders which the Director of Legal Aid received from experienced coun-sel instructed by her, her decision to discharge the certificates wasunderstandable.
5
10
15
20
25
30
35
40
45
854 High Court (Mayo J) (1993) 4
R v Commissioner of Correctional Services,
ex parte Ngai Fook-lam
High CourtMP No 2815 of 1993
Mayo JDate of hearing — 26 November 1993Date of judgment — 26 November 1993
Administrative law — Judicial review — When a decision of apublic authority is amenable to judicial review — Public law andprivate law — Distinction between public act and private act —Disputes under contract of employment between government serv-ant and government a matter of private law
Bill of Rights — Right not to be subjected without one’s free consentto medical or scientific experimentation — Bill of Rights, art 3
Employment — Contract of service of civil servant — Whether anemployment relationship and governed by private law or a mat-ter of public law
Administrative law — Judicial review — Certiorari — Decision ofCommissioner of Correctional Services Department requiring em-ployee to obtain medical certificate from designated clinic if sickleave is to be granted — Abuse of sick leave
Administrative law — Judicial review — Delay — Application forleave made out of time — Failure to provide any explanation
The applicant was an officer in the Correctional Services Department.The Commissioner of Correctional Services informed him that, becausethe circumstances indicated that he was abusing the privilege of obtain-ing sick leave, pursuant to Civil Service Regulation 1291 he would berequired to report to a government medical facility in future if he wishedto report sick, and that sick leave certificates issued by private medicalpractitioners would not be accepted.
The applicant sought an order of certiorari quashing the decision ofthe Commissioner.
5
10
15
20
25
30
35
40
45
HKPLR R v Commissioner of Correctional Services 855
Held (dismissing the application):
1. A contract of employment exists between a government servant andthe government and disputes about the rights of the parties to thatcontract were a matter of private law, not public law, and were there-fore not amenable to judicial review. (p 856, lines 24–28)
Lam Yuk-ming v Attorney General [1980] HKLR 815, followed; R vEast Berkshire Health Authority, ex parte Walsh [1984] 3 WLR 818,followed.
2. In any event the application was out of time, and in the absence ofany explanation, the court was not prepared to judicially review thedecision of the Commissioner. (p 859, lines 8–10)
3. Even if the application had been timely filed, it would have failed onthe merits. The Department had had valid grounds for taking actionunder the regulations and had acted in accordance with them. (p 859,lines 11–13)
4. The Department had not breached the rules of natural justice andthere was no infringement of article 3 of the Bill of Rights. (p 859,lines 8–9)
Ngai Fook Lam, applicant in person.NJ Cooney (of the Attorney General’s Chambers), for the respondent.
The following cases and materials are referred to in the judgment:
Lam Yuk-ming and others v Attorney General [1980] HKLR 815R v East Berkshire Health Authority, ex parte Walsh [1984] 3 WLR 818
Civil Service Regulations, reg 1291Hong Kong Bill of Rights, art 3
Mayo J delivered the following judgment:
This is an application for judicial review. The applicant who is an officerin the Correctional Services Department seeks an order of certiorariquashing the decision of the Commissioner of Correctional Services re-quiring him to obtain medical certificates from designated clinics if sickleave is to be granted to him.
5
10
15
20
25
30
35
40
45
856 High Court (Mayo J) (1993) 4
The Civil Service Regulation governing this situation is CSR 1291:
“Withholding the grant of sick leave
1291. If a Head of Department considers that an officer is abusing the privi-lege of obtaining sick leave on the basis of certificates issued by pri-vate medical practitioners, he may, subject to quarterly review, re-quire the officer to attend before a Government or Hospital Authoritymedical officer, or a particular Government or Hospital Authoritymedical officer, or to attend a particular Government or Hospital Au-thority clinic, on each occasion the officer wishes to take certificatedsick leave. If necessary, he may also require the officer to be exam-ined by a Medical Board under CSR 940. In these circumstances, pri-vate medical practitioners’ certificates may no longer be acceptedfrom the officer concerned, and if one is produced to support an ab-sence from duty, the grant of sick leave will be withheld. (Such dis-cretion should be exercised by an officer of a rank not lower than As-sistant Head of Department, or by a Departmental/Office Secretary ofa rank not lower than Senior Executive Officer, who should also be atleast two ranks above the officer whose sick leave is in question).”
The first issue which has to be considered is whether the complaintwhich is made by the applicant is amenable to judicial review.
The applicant is a government servant and on the authority of LamYuk-ming v Attorney General [1980] HKLR 815, a contract of employ-ment exists between the government and the applicant. The mattercomplained of is undoubtedly a private issue between the applicant andthe government and is not amenable to judicial review.
The remarks of Lord Donaldson MR in R v East Berkshire HealthAuthority, ex parte Walsh [1984] 3 WLR 818 at 824 establish this:
“The remedy of judicial review is only available where an issue of ‘publiclaw’ is involved, but, as Lord Wilberforce pointed out in Davy v. SpelthorneBorough Council [1984] A.C. 262, 276, the expressions ‘public law’ and‘private law’ are recent immigrants and, whilst convenient for descriptivepurposes, must be used with caution, since English law traditionally fas-tens not so much upon principles as upon remedies. On the other hand, toconcentrate on remedies would in the present context involve a degree ofcircularity or levitation by traction applied to shoe-strings, since the rem-edy of certiorari might well be available if the health authority is in breachof a ‘public law’ obligation, but would not be if it is only in breach of a‘private law’ obligation.”
Even if I am wrong in this I have no doubt that this application hasno prospect whatever of success.
5
10
15
20
25
30
35
40
45
HKPLR R v Commissioner of Correctional Services 857
The decision which is complained of is contained in the letter of 18June 1993:
“By Registered Post
Our Ref. : (71) in VU/T1636/90EYour Ref. : CORRECTIONAL SERVICES DEPARTMENTTel. : 582 5137 HONG KONG HEADQUARTERS
23rd FloorWanchai Tower12 Harbour RoadWanchaiHong Kong
18 June 1993
Dear Sir,
It has been reported that you claimed to have been recommended sickleave since 7 June 1993, but you have so far failed to produce the sickleave certificates.
As the circumstances strongly indicate that you are abusing the privilegesof obtaining sick leave, you have already been directed vide my [memo](62) in this series to attend either (i) Sai Ying Pun Jockey Club Polyclinicor (ii) Whitehead Detention Centre Hospital on each occasion when youwish to report sick or consult a doctor. Sick leave certificates issued byprivate medical practitioners during this period of curtailment will not beaccepted. However, in cases of emergency you may attend the Accidentand Emergency Department of any Hospital for treatment.
In this connection, you are required to return all the sick leave certificatesto your institution or to send it by registered post if you are certified to beunfit for travel by the medical officer, or to give a satisfactory explanationof your absence, or elect to resign by the payment of one month’s salary inlieu of notice under Civil Service Regulation 320, within 14 days of thisletter, failing which your absence since 7 June 1993 will be treated asunauthorized. You are further [reminded] that Prison Rule 255AA will beinvoked to summarily dismiss you from the service for unauthorized ab-sence from duty exceeding 21 days.
Pending your explanation and the outcome of any disciplinary action aris-ing from your absence, all sums payable to you by the Government arebeing withheld.
5
10
15
20
25
30
35
40
45
858 High Court (Mayo J) (1993) 4
Yours faithfully,
Signed
(YU Siu-lam)for Commissioner of Correctional Services”
It is apparent that this letter did not evidence the decision which theapplicant appears to be complaining of. It is a letter written consequen-tial upon it. The original decision was communicated to the applicant bya letter dated 24 June 1992.
“Ref. : (35) in VU/T1636/90E CORRECTIONAL SERVICES Tel.: 5825233DEPARTMENTHEADQUARTERS23 & 24 Floors,Wanchai Tower I,12 Harbour Road,Wanchai,Hong Kong.
Mr. NGAI Fook-lam 24 June 1992 Officer T1636
c/o Sr. Supt., WHDC
Dear Sir,
It is noted with some concern that you have frequently obtained sick leavefrom private medical practitioners.
In accordance with C.S.R. 1291, you are required to attend either (i) TangShiu Kin Hospital or (ii) Whitehead Detention Centre Hospital on eachoccasion when you wish to report sick or consult a doctor if you feel youmay need to take sick leave.
Sick leave certificates issued by private medical practitioners during thisperiod of curtailment will not be accepted. However, in cases of emergencythis does not prevent you from attending the Accident and EmergencyDepartment of any Hospital for treatment. You should bring along thisletter for identification before request for consultation in the clinic.
Failure to comply with this instruction will render you liable to discipli-nary proceedings.
5
10
15
20
25
30
35
40
45
HKPLR R v Commissioner of Correctional Services 859
Yours faithfully,
Signed
(H.W. CHUNG)for Commissioner of Correctional Services”
This being the case, the applicant is long out of time and in theabsence of any explanation being forthcoming the court would not beprepared to judicially review the decision.
So far as the merits of the application are concerned, I have no doubtthat even if properly founded and within the requisite time limits itwould be doomed to failure.
It is strongly my impression that the applicant has misconceived thetrue construction of CSR 1291.
The applicant is not precluded from obtaining any medical advice ortreatment. All that CSR 1291 is providing for is that if the applicantwishes to obtain sick leave from his Department he must produce acertificate from a medical officer at one of the clinics referred to in thecorrespondence.
Having regard to the uncontested evidence of Mr Yu for the Commis-sioner of Correctional Services it is clear that the Department had validgrounds for taking action under the regulations and has complied withall of the requirements which have been laid down.
Sick leave has been granted pursuant to certificates issued by medi-cal officers in the designated clinics and the applicant’s situation hasbeen the subject of quarterly reviews.
There has been no breach at all of the rules of natural justice andcertainly no infringement of article 3 of the Bill of Rights.
For the reasons I have given I dismiss this application and I will hearthe parties on costs.
5
10
15
20
25
30
35
40
45
860 High Court (Jones J in chambers) (1994) 4
The Crown Solicitor v Datuk Jeffrey Kitingan
High CourtMP No 1193 of 1990
Jones J in chambersDates of hearing — 20–22 December 1993Date of judgment — 20 January 1994
Evidence — Letters of request — Whether proceedings are of apolitical character — Whether test applicable in extradition pro-ceedings should apply to letters of request — Whether foreignproceedings of a political character — Expert evidence — Weightto be given to evidence as to historical and political backgroundof the requesting country — “political character” — “proceeding”— “criminal matter” — “criminal proceedings of a political char-acter” — Evidence Ordinance (Cap 8), s 77B (3)
The Malaysian Government issued a letter of request to the Hong Konggovernment requesting the evidence of five witnesses resident in HongKong be taken in respect of seven corruption charges pending againstthe respondent in the High Court of Malaysia. The matter came before amaster who granted the order. This order was subsequently set aside onan application by the respondent under s 77B(3) of the Hong KongEvidence Ordinance (Cap 8). The respondent contended that the pro-ceedings in Malaysia were political in character and an abuse of theprocess of the court, and that the form in which the evidence had beenrequested could not be used in a criminal trial in Malaysia.
The respondent argued that the charges had been brought againsthim by the federal government in response to his political activitiesasserting the interests of the state of Sabah as against the federal gov-ernment’s interest. He also submitted expert evidence to the effect thatthe evidence required could not be given in a criminal trial in Malaysiaif given in the forum in which it was requested and that to grant therequest would be an abuse of process.
The Crown appealed, on behalf of the Malaysian Government, againstthe decision setting aside the original order.
Held (dismissing the appeal):
1. Section 77B of the Evidence Ordinance (Cap 8) requires the court inHong Kong to assist an overseas court in obtaining evidence required
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 861
in criminal proceedings except where the proceedings are of a politi-cal character. The person who claims that the foreign proceedings areof a political character bears the burden of proof in establishing thison the balance of probabilities. (p 863, lines 20–24; p 864, lines 34–36)
2. The evidence of an historian with expert knowledge of the politicalsituation in Malaysia was relevant and admissible as to the historicaland political background to the criminal proceedings, so long as thecourt would bear in mind that the expert had not been cross-exam-ined and that caution would be exercised in regard to matters ofopinion. However, the expert was not entitled to comment on whetherthe offences concerned were politically motivated. (p 865, lines 32–38)
3. No distinction should be drawn between requests for extradition andletters of request in determining whether the foreign proceedings areof a political character. An offence may be of a political character,either because the accused had some direct ulterior motive of a politi-cal kind when he committed the offence, or because the requestingstate is anxious to obtain possession of the accused’s person in orderto punish him for his politics rather than for the simple criminaloffences. The court should look behind the criminal charge and shouldconsider all the surrounding circumstances as a whole and not inisolation in order to decide whether there has been any political moti-vation behind the offence. It is important to consider the attitude ofthe requesting authority as well as that of the accused, who must beat odds with the state. (p 878, line 5 to p 880, line 15)
R v Governor of Brixton Prison, ex parte Kolczynski and others [1955]1 QB 540; Schtraks v Government of Israel and others [1964] AC556;and R v Governor of Winson Green Prison, Birmingham, ex parteLittlejohn [1975] 3 All ER 208, followed.
4. Notwithstanding the affirmations filed on behalf of the MalaysianGovernment that the charges upon the evidence are requested are notpolitically motivated, the irresistible inference to be drawn when allthe surrounding circumstances have been considered is that the chargesare of a political character. These charges were part and parcel of apolitical campaign directed against the Sabah state leadership and itssupporters to undermine their political power and credibility in Sabah,and part of a sustained campaign to victimise the respondent for hispolitical activities and beliefs. The allegations were clearly politicallymotivated and inextricably linked with politics. (p882, lines 26–36)
5. In the absence of evidence to the contrary the court should be pre-pared to accept the statement by the requesting state that the evidence
5
10
15
20
25
30
35
40
45
862 High Court (Jones J in chambers) (1994) 4
is required for the purpose of foreign proceedings. However, the un-contradicted evidence of an expert in Malaysian law revealed that theform in which the evidence of the witnesses is requested could not beused in a Malaysian court. Accordingly, to make an order under thesecircumstances would be an abuse of the process of the court. (p 883,line 20 to p 884, line 21)
Rio Tinto Zinc Corporation and others v Westinghouse Electric Corpo-ration [1978] AC547, discussed.
C Grossman QC, R Gunasekera and A Wu (of the Attorney General’sChambers), for the appellant.
M Thomas QC and P Shieh (instructed by Johnson, Stokes & Master),for the respondent.
The following cases and materials are referred to in the ruling:
Evans v Bartlam [1937] AC 473In re Brauchhausen, 18 March 1986, Queen’s Bench Division, unre-
portedIn re Extradition Act 1870, ex parte Treasury Solicitor [1969] 1 WLR 12R v Governor of Brixton Prison, ex parte Kolczynski and others [1955] 1
QB 540R v Governor of Winson Green Prison, Birmingham, ex parte Littlejohn
[1975] 3 All ER 208Rio Tinto Zinc Corporation and others v Westinghouse Electric Corpora-
tion [1978] AC 547Schtraks v Government of Israel and others [1964] AC 556
Bankers Books (Evidence) Act 1949 (Malaysia)Criminal Procedure Code (FMS Cap 6) (Malaysia)Evidence Ordinance (Cap 8) ss 74, 77B(3)Internal Security Act 1960 (Malaysia) ss 8(1), 11, 12, 13, 73Prevention of Corruption Act 1961 (Malaysia)
J Kitingan (ed), Sabah 25 Years Later 1963–1988 (Kota Kinabalu, Sabah:Institute for Development Studies (Sabah), 1989)
M N Sopiee, From Malayan Union to Singapore Separation: politicalunification in the Malaysia region, 1945–65 (Kuala Lumpur: PenerbitUniversiti Malaya, 1974)
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 863
Jones J delivered the following judgment:
INTRODUCTION
On 27 April 1990 MasterO’Donnell made an order upon an exparteapplication by the Crown acting for the Government of Malaysia that aletter of request issue for the purpose of obtaining the evidence of fivewitnesses, two of whom are bank employees who reside in Hong Kong,in respect of criminal proceedings relating to seven counts of corruptioninstituted in the High Court of Borneo, Kota Kinabalu, Sabah, Malaysiaagainst the respondent Datuk Dr JeffreyKitingan to whom I shall referhereafter as DrKitingan. That order was set aside by MasterBeeson on5 May 1993 after a carefully reasoned judgment upon the application ofDrKitingan on the grounds that the proceedings are of a political char-acter and an abuse of the process of the court. This is an appeal by theCrown from that decision. The summons relating to abuse of processand on other grounds which are not relevant to these proceedings wasissued on 4March 1991 and the summons on the grounds that theproceedings are of a political character was issued on 3 April 1993.
The court in Hong Kong is required to give assistance to an overseascourt in obtaining evidence required in criminal proceedings under s77B of the Evidence Ordinance (Cap 8) except under subsection(3) ofthis section where the proceedings are of a political character.
MALA FIDES
MrGrossman QC, on behalf of the Crown, levelled criticism at the latefiling of the summons issued on the grounds that the proceedings are ofa political character which cast grave doubts on its validity on the basisthat it only arose as an afterthought while the expert’s report by DrReecein support of this ground was only filed three weeks before the hearingbefore MasterBeeson. However, no application was made by the Crownbefore the master for an adjournment in order to consider DrKitingan’sevidence or to file expert evidence in response. Indeed, no applicationhas since been made to adduce any expert evidence on this appeal.Other proceedings in connection with the setting aside of the order ofMasterO’Donnell were heard before the summons on the grounds thatthe proceedings are of a political character was issued on 3April 1993.In fact the question of political motivation had been averred to byDrKitingan when he was arrested in 1990 and this was referred to inthe publication News from Asia Watch of 18October 1991. To put for-ward the argument that it was raised as an afterthought was sheernonsense. I am quite satisfied that DrKitingan was perfectly entitled torely upon this ground and that no mala fides attached to him fromraising it at this stage. I therefore reject the Crown’s submission.
5
10
15
20
25
30
35
40
45
864 High Court (Jones J in chambers) (1994) 4
EFFECT OF MASTER BEESON’S DECISION
Although MrGrossman contended that the master’s ruling could be re-ferred to, he submitted that no weight should be given to it. However, Iam unable to agree with this submission for although the appeal is byway of a rehearing and I am in no way bound by the decision ofMasterBeeson, I am entitled to give it such weight that it deserves: seeEvans v Bartlam [1937] AC473.
ONUS OF PROOF
MrThomas QC, counsel on behalf of DrKitingan, contended that theburden of proof to establish that the proceedings are not of a politicalcharacter is upon the Crown on the basis that he who asserts mustestablish proof. He referred to the affidavit of MrsGunasekera, one ofthe counsel for the Crown, made in support of the exparte applicationbefore MasterO’Donnell in which she stated that the proceedings werenot of a political character. However, in his submission that the burdenrests with DrKitingan on the balance of probabilities, MrGrossmanrelied upon In re Brauchhausen, 18March 1986, Queen’s Bench Divi-sion, unreported, where it was held that the burden is upon the applicantresisting extradition to show that the offence was of a political charac-ter. It is clear that the prosecution must state that the proceedings arenot of a political character when the exparte application is made, but itis likely that the master will place reliance on this statement withoutenquiry. Although In re Brauchhausen is not an authority for the Crown’sproposition as that case was concerned with extradition as distinct froma letter of request, no other authority was cited to me on the onus ofproof. If the burden is held to be on the Crown, it would be necessary forthe Crown to prove a negative. However, although In re Brauchhausenis not directly relevant, I consider that this case does provide usefulguidance where an application is made for a letter of request and theissue raised concerns proceedings which are politically motivated. I there-fore propose to follow this authority. Accordingly, I am satisfied that theburden rests with DrKitingan to establish on a balance of probabilitiesthat the proceedings are of a political character.
EFFECT OF EXPERT EVIDENCE
The evidence that the proceedings are of a political character emergesfrom an affirmation of DrRHWReece, an Australian who is an Associ-ate Professor in History at Murdoch University, Western Australia, anaffidavit of DrKitingan and two affirmations of MrHarjeetSingh, oneof the counsel in Malaysia acting for DrKitingan. MrSingh’s secondaffirmation of 20December 1993 was not before the master.
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 865
DrReece has an impressive academic record which includes a PhD inHistory obtained at the Australian National University. He claims tohave an expert knowledge of Sarawak and Sabah and their relationshipwith the Malaysian Federal Government in Kuala Lumpur. In his affir-mation he sets out some of the details of the history of Malaysia andprovides an opinion of the evolving relationship between Sabah and theFederal Government of Malaysia, particularly for the period since 1985.The affirmation refers to a number of academic publications with ex-tracts from official publications and reports from newspapers andmagazines.
MrGrossman concedes that DrReece is an expert but has attackedhis affirmation, contending that some of the information emanates fromunreliable sources while some of the views expressed amount to specula-tion. In effect, he submits that the affirmation is irrelevant so that littlereliance can be placed on it. Some of the matters are of course of histori-cal knowledge, but where conclusions and opinions have been drawnfrom evidence supplied, it must be borne in mind that this evidence hasnot been tested by cross-examination. Further, some of the evidence ishearsay but such evidence is admissible on an interlocutory application.The newspaper articles cannot necessarily be relied upon as alwaysproviding an accurate, reliable and truthful account, but where state-ments have been attributed to ministers, including the Prime Minister,it is likely that the words reproduced were used, particularly as there isno evidence from the Crown to contradict this testimony. AlthoughMrGrossman has criticised the sources of DrReece’s information, nev-ertheless there was no evidence to show that they were not derived fromreputable sources. In fact one work from which DrReece has quoted isFrom Malayan Union to Singapore Separation: political unification inthe Malaysia region, 1945–65 (Kuala Lumpur: Penerbit Universiti Ma-laya, 1974) by DrMohamedNoordin Sopiee. This writer not only has adistinguished academic record but has published a number of works andalso has various honours and awards to his name. Although I am notconcerned as to whether DrReece is right or wrong, I do not considerthat his propositions can be merely cast aside for they cannot be disre-garded as irrelevant. DrReece’s affirmation is particularly relevant withregard to the history of Malaysia and as to the background to theseproceedings. However, I do not accept that he is entitled to comment onthe charges against DrKitingan that they were politically motivated. Iam in entire agreement with the way in which MasterBeeson treatedthis affirmation which appears in her reasons as follows:
“I did not reject this affirmation in its entirety as the Crown would havehad me do. I treated it as the report of a trained historian who has aspecial expertise in the history and politics of the Malaysian region withthe reservation that as the reporter was not available for oral examination
5
10
15
20
25
30
35
40
45
866 High Court (Jones J in chambers) (1994) 4
or cross-examination it must be treated with some caution where matterspurely of opinion were aired. There can be no hard and fast rules aboutwhat evidence an Applicant must lead in attempting to establish that thecharges against him are of a political character. He can give evidencehimself if he is able to appear before the court. He can presumably callfamily members, friends or employers where they can give relevant evi-dence and where it is practicable that they appear. In some cases docu-ments may be available which can be put before the Court. It may be thatthe political affairs of the requesting country are so familiar to the assist-ing Court that special evidence is not needed — or that such is containedin contemporaneous objective reports.”
In the circumstances, I consider that I am entitled to give DrReece’saffirmation due consideration and such weight bearing in mind that ithas not been tested by cross-examination. I do not therefore agree thatthe affirmation is irrelevant.
The evidence of DrReece is very detailed and overlaps several of theissues raised by DrKitingan in his affidavit. Accordingly, I do not pro-pose to comment on all these matters which will not serve any usefulpurpose but to highlight those issues that are of importance and directlyrelevant to DrKitingan’s case.
BACKGROUND TO PROCEEDINGS
The background to these proceedings reveals a longstanding and bitterdispute between the federal government and the State government ofSabah in respect of the safeguards and assurances that were given toSabah at the time when the Federation came into existence and which itis alleged have been whittled away.
EVIDENCE OF DRREECE
DrReece deals with the circumstances that led to the formation of theFederation of Malaysia in 1963 when it comprised Malaya, Singapore,Sarawak and Sabah. When the Malaysia agreement was signed, it wasagreed that the interests of the people in Sabah would be safeguardedby what became known as the “Twenty Points”. By the report of theInter-Governmental Committee set up to decide on the constitutionaldetails of Malaysia, it was intended that the principles embodied in the“Twenty Points” should be incorporated in the Malaysia Constitution inorder to protect the special rights and interests of the people of Sabah.Although the “Twenty Points” document did not possess any legal orconstitutional standing, it was looked upon by the political leaders ofSabah as a charter of State rights and the basis of its future relation-ship with the federal government. The most important subjects dealt
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 867
with in the “Twenty Points” were religion, immigration, native rights,Borneonisation, finances and constitutional safeguards. However,DrReece refers to a number of significant facts from which he draws theconclusion that the federal government in Kuala Lumpur had not ac-cepted the constitutional and political principles implied in the agreementrelating to the special standing of Sarawak and Sabah. This includedthe withdrawal of Singapore from the Federation of Malaysia in 1965,which shifted the political balance of the Federation in favour of Penin-sula Malaysia’s predominant power, the creation of new parliamentaryseats so as to favour Peninsular Malaysia and the enactment of a numberof amendments to the Federal Constitution relating to the special posi-tion of Sarawak and Sabah.
From 1976 until 1985 the Government of Sabah was controlled by theBerjaya party which was in sympathy with the Barisan NasionalMulti-Party Coalition, the party of the federal government. This, accord-ing to DrReece, enabled the federal government, with its majority, topass amendments to the constitution which have eroded the powers ofSabah.
In 1984, a new political party was formed in Sabah known as PartiBersatu Sabah (PBS) to be led by DrKitingan’s brother Datuk SeriJosephPairinKitingan (DrJosephKitingan). The PBS won the State electionsin April1985 with 25 out of 48 seats and was elected on a promise toreform the timber shipment industry. DrJosephKitingan then becamethe Chief Minister of Sabah. DrReece believes that the main reason forthe loss of support for the previous state government and the success ofPBS was the belief that the Berjaya Government and its predecessorhad actively co-operated with the federal government in reducing Sabah’sspecial status within the Malaysian constitution. DrReece considersthat from the date of the election of PBS, the federal government re-vealed an unwillingness to acknowledge and co-operate with the newgovernment headed by DrJosephKitingan and that the Barisan Nasionalin Kuala Lumpur did not agree to accept PBS into the National Coali-tion until lateJune 1986 despite an application made for earliermembership.
He went on to refer to DrKitingan’s public statement issued on 2Janu-ary 1987 in which he said that one of the main sources of discontentwith the federal government in Sabah was its apparent non-compliancewith the original “Twenty Points” which he regarded as the basis forSabah joining the Federation. He also stated that it was a commonperception that the Federal leadership had been influencing the devel-opment of political events in Sabah to the detriment of the ruling party.On 13January 1987, the Deputy Prime Minister, Ghafar bin Baba, wasreported to have challenged PBS to substantiate the allegations withthe result that DrKitingan produced a long memorandum addressed tothe federal government entitled “The Twenty Points Basis for
5
10
15
20
25
30
35
40
45
868 High Court (Jones J in chambers) (1994) 4
Federal-State Relations For Sabah”. The deviations from the constitu-tional safeguards granted to Sabah at the time of the formation ofMalaysia included such matters as immigration, religious freedom,Borneonisation, citizenship, education, finance and tariff arrangementsand constitutional safeguards.
DrReece then refers to the Sabah Foundation (the Foundation) whichwas set up as a charitable body by the state government in 1966 withthe purpose of distributing more widely for the benefit of the communitythe income from the State’s timber exports. However, instead of benefit-ing the community, he states that the payments were used to promotethe popularity of the ruling coalition.
In May1985, DrKitingan was appointed as Chief Executive of theFoundation by the new PBS state government when it was reorganisedand a commercial arm established in the form of Innoprise CorporationSdn Bhd (Innoprise). This resulted in a rapid improvement of its earnings.
In November1988, DrJoseph Kitingan requested the services of theFoundation to terminate the private monopoly exercised over the ship-ping of logs from Sabah by a Japanese cartel and its local agent,Archipelago Sdn Bhd (Archipelago). Innoprise subsequently attemptedto establish a properly regulated agency which would restore govern-ment control over the shipping of logs but this attempt was unsuccessful.However, it was reported that certain vested commercial interests en-joying close links with the opposition Berjaya party in Sabah and theGovernment in Peninsular Malaysia had been antagonised. One ofDrKitingan’s innovations within the Foundation was to establish theInstitute for Development Studies, a policy research centre or “thinktank” designed to guide the state government in its future planning.Part of the work of the Institute was the publication of material in-tended to canvass issues relating to Federal state relations, one examplebeing Sabah 25 Years Later 1963–1988 (Kota Kinabalu, Sabah: Institutefor Development Studies (Sabah), 1989) edited by DrKitingan and hisdeputy director, DrOngkili.
In early January1990 DrKitingan published a New Year message inwhich he raised some of the specific grievances held by the PBS Govern-ment in relation to the federal government. One of the main grievancesraised by DrKitingan related to the naturalisation and electoral regis-tration of illegal immigrant workers from the Southern Philippines. Asthe newly registered voters are Muslims from the Southern Philippinesand Indonesia, he believes that as they are indebted to the Federalauthorities for their citizenship status and their opportunity to findemployment, their political loyalties will be to UMNO Sabah, the Sabahbranch of the party which dominates the ruling Barisan Nasional Coali-tion at Federal level. In his view, their enrolment is likely to have thesignificant effect of producing Muslim majorities in a number of Federaland state electorates where they did not exist previously, thus facilitat-
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 869
ing the eventual election of an UMNO Sabah Government. I agree thatthe conclusion amounts to speculation but the facts from which DrReecereached his opinion have not been contradicted.
DrReece then proceeds to deal with examples of harassment referredto by DrKitingan. In April 1988 federal government tax investigatorsconducted a raid on four PBS leaders including three state Governmentministers, which included a search of their homes without prior noticeand removal of documents. In June 1989, the federal government Anti-Corruption Agency (ACA) began to investigate DrJosephKitingan andDrKitingan. It is alleged that some of the information obtained in re-spect of DrKitingan was leaked to Sabah’s opposition parties during theensuing months without naming him but then revealing his name inDecember. This resulted in DrJosephKitingan complaining publicly inNovember1989 that certain Federal leaders were attempting to topplehis government. He also claimed that the ACA’s investigations of him-self and of his brother were politically motivated. He further commentedthat the investigations had come at the eve of the by-election for thestate of Ranau.
It is significant that the ACA is under the administrative control ofthe Prime Minister’s Department and the responsible minister then andnow is the Prime Minister, DrMahathir. However, the ACA appears tobe answerable to the Attorney General.
On 18January 1990 in a speech at Kota Kinabalu, the Prime Minis-ter, DrMahathir, was reported as saying:
“Some Sabahans had been given the opportunity to further their educationto an [sic] extent of becoming doctors, though not necessarily being in themedical line, but apparently they have forgotten the benefits of gainingindependence through the federation, but had instead chosen to createanti-Malaysia feelings.”
DrReecestates that this was a veiled but unmistakeable reference toDrKitingan and DrOngkili. Indeed, five days later, DrKitingan wasarrested on the sevencharges of corruption.
During the two months before the Sabah state elections of 16 and17July 1990, there was a series of arrests of four PBS supporters car-ried out by the Federal Police Special Branch in connection with analleged secession plot in Sabah. On 25May 1990 during the annualKadazan harvest festival, two Kadazans were detained under the Inter-nal Security Act. On 10July 1990, a week before the elections, a DeputyInspector General of the Malaysian Police was reported as having re-vealed details of the alleged report. DrKitingan was charged on 12countsof failure to disclose assets a week after PBS won the State election withan increased majority.
At its annual congress held on 15October 1990, five days before the
5
10
15
20
25
30
35
40
45
870 High Court (Jones J in chambers) (1994) 4
Federal parliamentary elections, the PBS decided to leave the BarisanNasional coalition which it had joined in June1986 and join the opposi-tion coalition. DrJosephKitingan was reported as saying after thedecision that his efforts to obtain certain concessions for the state fromthe federal government in return for PBS’s continued support for theBarisan Nasional had been unsuccessful. The PBS announcement re-sulted in the Deputy Prime Minister and Barisan Nasional SecretaryGeneral AbdulGhafar bin Baba describing the PBS’s action as “dirtypolitical tactics”. The Prime Minister, DrMahathir, was also reported atthe same time to have referred to the PBS’s presence within the BarisanNasional coalition as having been like “a thorn in one’s flesh which hadcaused the flesh to swell and suppurate”. In DrReece’s belief, the re-sponsibility for PBS’s last minute switch of political allegiance wasattributed by the Prime Minister and his deputy wholly to DrKitinganand his brother although the newspaper reports of the congress wherethe decision had been made did not indicate this.
The Barisan Nasional party was returned to power at the Federalelections of October1990 with an increased majority.
On 3January 1991, DrOngkili was taken in for questioning underthe Internal Security Act 1960 (Malaysia) but was released after a month.On 5January 1991, DrJoseph Kitingan was arrested on three chargesof corruption. On 16January 1991, the manager of Innoprise was ar-rested under the Internal Security Act on suspicion of being involved ina plot to bring about Sabah’s secession from Malaysia and he was subse-quently served with a two-year detention order signed by the Ministerfor Home Affairs DrMahathir.
On 21February 1991 in a speech at Kota Kinabalu marking the es-tablishment of a branch of UMNO in Sabah, the Prime Minister,DrMahathir, was reported to have said that DrKitingan and the Insti-tute for Development Studies were planning, with the assistance ofanother country, to take Sabah out of Malaysia and to make him itsPresident. The Prime Minister alleged that by raising the “Twenty PointsIssue” and accusing the federal government of neglecting Sabah,DrKitingan and the Institute were spreading hatred for the federalgovernment and working towards secession. He was also reported tohave said on 21February 1991:
“Before, Sabah people never hated the Federal Government or the Na-tional Front, but that since the PBS came to power statements were made,especially by Jeffrey Kitingan to give rise to hatred against the FederalGovernment and poison the minds of Sabahans.”
After this speech, when questioned by journalists why DrKitingan re-mained free when he was fanning anti-Malaysia sentiments, the PrimeMinister, DrMahathir, said:
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 871
“He is free until the government decides he is a threat to the security ofthe country. At that stage there are provisions in the law that we can use.If he is not a security risk, we don’t act.”
He was also quoted as saying that as there was no evidence of anyplanned use of violence against the federal government “we can stillallow the agitators to remain free”. There was no disclaimer issued bythe Prime Minister subsequent to the publication of these remarks.
DrReece refers to factors concerning the measures taken by the fed-eral government to place financial and economic pressure on Sabah inconnection with the export of timber and the allocation of Federal AidFunds for development projects in Sabah.
INTERNAL SECURITY ACT
The Internal Security Act 1960 (Revised-1972) was inherited from theBritish Colonial Government which had introduced it to deal with theaftermath of the communist terrorist uprising of 1948–1960. By s 73, aperson can be held for questioning for a maximum of 60days before theimposition of a maximum two year detention order which can be re-newed indefinitely under s.8(1). There is no provision that the detailedbasis of the detention order can be made public or that a detainedperson can be brought to trial. Representations against an order fordetention can be made under s 11 of the Act to an Advisory Board. By s12, the Advisory Board may make recommendations to Malaysia’s headof state, but the decision of the head of state shall be final and shall notbe called into question by any court. By s 13 every order is required tobe reviewed every six months by an Advisory Board which is then re-ferred to the Minister of Home Affairs.
On 13May 1991, four days after the newly established UMNO Sabah’sfirst by-election victory, DrKitingan was arrested under the InternalSecurity Act on the grounds of suspicion that he was involved in a plotto secede Sabah from Malaysia. On 16July 1991, the Deputy HomeAffairs Minister announced that DrKitingan’s detention had been ex-tended for a further two years by a letter signed by the Minister forHome Affairs, DrMahathir. The Deputy Home Affairs Minister hadinformed the Federal parliament that there might be a white paperproviding details of the secession plot once investigations had been com-pleted and in order to convince the public. However, no white paper hassince appeared.
In response to a question asked by an opposition member in theFederal parliament on 23December 1992, the Parliamentary Secretaryfor Home Affairs stated that DrKitingan was being held under theInternal Security Act for security reasons and not political reasons. Inresponse to an earlier question by an opposition member, seeking the
5
10
15
20
25
30
35
40
45
872 High Court (Jones J in chambers) (1994) 4
reasons for the rejection of the Advisory Board’s recommendation thatDrKitingan be freed, the Parliamentary Secretary stated that the Min-ister’s decision could not be questioned. He did not offer any furtherevidence of DrKitingan’s alleged involvement in a secessionist plot inSabah, or refer to the possibility of a white paper on the subject whichhad been mentioned two years earlier.
The Advisory Board recommended that DrKitingan be released inFebruary 1992, but this recommendation was rejected without an expla-nation being given.
EVIDENCE OF DRKITINGAN
DrKitingan is a very well educated man with degrees in Business Ad-ministration, Public Administration, Law and Diplomacy together witha PhD in International Affairs. He was appointed to be director of theFoundation in 1985. DrKitingan corroborates DrReece’s evidence withregard to historical matters and to his involvement with the Founda-tion.
The charges brought against DrKitingan relate to bribes, induce-ments and commissions which it is alleged DrKitingan took for his ownbenefit whilst acting as director of the Foundation and were offered as aresult of the Foundation’s involvement in the nomination and approvalof vessels used for the export of logs from Sabah.
DrKitingan referred to correspondence between his Malaysian solici-tors and the Attorney General’s Chambers in Malaysia and the ACAbetween February and April 1990 which related to a request by the ACAto take a statement from him as to his assets and expressly stated thatthe questions would be unrelated to the pending corruption charges.This request was made after DrKitingan had been charged with theseven offences of corruption. However, as he and his solicitors wereengaged in preparing for a hearing during the course of the trial inrespect of the corruption charges, it was inconvenient to prepare a de-tailed statement of his assets at that time. Nevertheless, the ACAcontinued to press for a statement and obtained a warrant forDrKitingan’s arrest on the grounds that he had been unwilling to co-operate. Accordingly, following legal advice, he went to the offices of theACA on 20April 1990 to make a statement but when he enquired whetherquestions to be put to him were connected with the seven corruptioncharges, he was told for the first time and wholly contrary to previousrepresentations by the ACA, that they were. As a result, he was of theopinion that he had been requested to attend the ACA offices underfalse pretences and immediately informed the ACA that he would re-main silent, which right he had under the Prevention of Corruption Act1961 (Malaysia) because he had already been arrested for the corruptionoffences. As a result, he said nothing further.
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 873
DrKitingan deals with the new policy requested by the new stategovernment for which he was responsible in a proposal paper of May1985that concerned an attempt to dismantle a powerful local monopoly closelyassociated with the Berjaya party in Sabah, which was closely linkedpolitically with the Federal ruling Barisan Nasional coalition. Followingits formation, the Foundation was granted substantial timber conces-sions by the state government between 1967 and 1970 and the profitsderived therefrom were used by the Foundation for its social and eco-nomic welfare programmes. He refers to the background to the logshipment policy and how the monopoly arose between 1976 and 1985when the state government was controlled by the Berjaya party whichsupported the federal government in Kuala Lumpur. The Berjaya partyallowed the shipment of timber from Sabah to its export markets, pri-marily Japan, with the Taiwanese and South Korean markets being alsoof major significance. It was dominated by a local monopoly which inturn entered into a partnership with a cartel of Japanese ship ownersknown as the Nanyazi Freight Agreement (NFA). DrKitingan describeshow the monopoly was set up under the name of Dewaniaga Sdn Bhd(Dewaniaga) in 1979 on the instruction of the then Chief Minister ofSabah. That Dewaniaga nominated Archipelago to be its agent and thatit was granted a sole and exclusive licence to handle all log carrierscalling at Sabah ports to load logs. One exception to the monopoly wasSafond Shipping Sdn Bhd (Safond) which was given a restricted ship-ping agency licence to handle vessels belonging to the Foundation whoseactivities were confined to shipment of logs extracted by the Foundationfrom their timber concession areas to foreign buyers.
As a result, until 1985, the timber export shipment business had beenallowed to become concentrated in the hands of the private monopolyDewaniaga and Archipelago. The monopoly of Dewaniaga and Archi-pelago then allowed the shipment of timber to be exclusively carried outby the NFA and similar foreign cartels thus preventing local interestsfrom participating in such business with the exception of the restrictedshipping agency licence granted to Safond.
The Foundation tried to implement the new log policy by havingSafond apply to the Federal authorities for a full agent’s licence so thatit could commence accepting vessels for registration in competition tocartel ships. Safond, however, was refused a licence to act as a shippingagent and was subsequently informed by the Director of Customs andExcise, a Federal appointee in Sabah, that it was allowed to service onlyships belonging to the Foundation thereby maintaining the private mo-nopoly enjoyed by Dewaniaga and Archipelago. Accordingly, it was notpossible to implement the new log shipment policy.
Subsequently an entity known as S B Ocean Sdn Bhd (SBO) was setup in about 1987 by a PBS member and received a federal governmentlicence to act as a shipping agent in competition with Archipelago. How-
5
10
15
20
25
30
35
40
45
874 High Court (Jones J in chambers) (1994) 4
ever, this licence was subsequently suspended by the Director of Cus-toms and Excise. Later, the suspension was lifted by the State Governorwith the result that SBO could continue to register ships under the newarrangement.
Other steps were taken by DrKitingan to break the monopoly whichincluded an appointment to the board of Archipelago in order to studythe monopoly from within. However he was denied access to informationwith regard to the financial affairs of Archipelago, so he resigned after afew months.
Between August and October1988, an entity known as PSS obtaineda licence from the federal government in Kuala Lumpur to act as agentfor log shipping companies. This company in effect holds the monopolyin place of Dewaniaga and Archipelago for although SBO has providedship owners with a choice, PSS has in fact been preferred. Accordingly,the attempts to break the old monopoly have had little or no effect.
DrKitingan states that the first four charges against him relate toalleged payments and inducements said to have been made to him as aresult of favouring PSS, both in appointing it as an agent acting withinthe timber shipment business and in approving vessels nominated byPSS. The other three charges relate to alleged payments and induce-ments said to have been extended by DrKitingan in return for grantingfavours to SBO allegedly in appointing that company as an agent for thepurposes of the log shipment policy and in varying the terms and condi-tions of the licences granted to vessels whose registration applicationswere submitted through SBO. DrKitingan has denied all the charges.
DrKitingan disputes that he has ever advocated the secession ofSabah from the Federation but that he has consistently maintained thatSabah should be granted a degree of autonomy and equality within theFederation thus according to it the recognition which was granted to theBorneo states as a result of their special position within the Federationupon independence in 1963.
DrKitingan was informed by his wife that officers from the ACA andthe police came to his house at about 6:30am on 22January 1990 witha warrant for his arrest in connection with the seven charges of corrup-tion. Some of the party were armed with M16 rifles whilst they wereaccompanied by tracker-dogs and a television crew. AlthoughDrKitingan’s wife said that her husband was away, a search of thehouse was made. DrKitingan voluntarily surrendered himself to theACA offices in Kota Kinabalu the following day where he was formallyarrested and produced at the Sessions Court, charged with the sevencounts of corruption and thereafter released on bail.
DrKitingan confirms that he was arrested under the Internal Secu-rity Act on 13May 1991 on the grounds that he represented a threat tonational security in that he was the prime planner of a secret plot tosecede Sabah from Malaysia by armed violence. When he attended the
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 875
interview at the police station in Kota Kinabalu following his arrest, hewas informed that it was in connection with an investigation into theactivities of four Sabahans who had been arrested on the grounds of thealleged plot to secede. Particulars of the allegations in support of thisground are attached to the order for detention which specifies incidentsthat occurred in 1986, 1987 and 1990.
After his arrest under the Internal Security Act, DrKitingan’s houseswere searched, together with his office at the Foundation where severaldocuments were seized including a copy of his asset declaration state-ment and documents relating to the log shipment policy. Although heobjected to the seizure of these documents as they could only have beenrelevant to the seven charges of corruption, his protests were ignored.
On the evening of his arrest DrKitingan was flown to Kuala Lumpurwhere he was placed in a detention centre. He was detained for somedays in appalling conditions before he was interrogated. The interroga-tion focused upon an alleged plot for Sabah to secede from the Federationwhich lasted initially for three days and three nights during which timehe was deprived of food, drink and sleep. Thereafter the interrogationcontinued for the remainder of the initial 60days detention during whichtime he received very rough treatment.
The detention order that was renewed against DrKitingan in July1993was suspended with effect from 22December 1993 subject to certainrestrictions and conditions, including a condition not to change his resi-dence without the permission of the Chief Police Officer or leave thedistrict of Seremban near Kuala Lumpur where he is now living. Fur-ther, he is not permitted to address any public meetings or to engage inany political activity and is not permitted to write or publish any arti-cles of a political nature.
EVIDENCE OF MRHARJEET SINGH
MrHarjeet Singh in his first affirmation states that DrKitingan wasdetained in July1991 and that there have been four occasions when hiscase was reviewed by the Advisory Board. He states that DrKitinganwas given no information as to the outcome of those reviews or therecommendations made by the Board. MrSingh says that he knowsDrKitingan’s wife and that she and DrKitingan have been assessed.DrKitingan’s wife’s liability has been assessed at over M$8 million al-though it is contended that she has no income and has never worked.MrSingh has been informed by DrKitingan’s wife that the Inland Rev-enue Department have imposed stop notices on her and DrKitinganpursuant to the Income Tax Act since February 1990 as a result ofwhich she has been and is still prevented from leaving Malaysia. Thishas prevented her from visiting her two sons studying in secondaryschool in Western Australia. Judgment has been obtained against
5
10
15
20
25
30
35
40
45
876 High Court (Jones J in chambers) (1994) 4
DrKitingan in respect of his tax liability. However, an appeal has beenlodged, but has not yet been heard. No judgment has been obtainedagainst DrKitingan’s wife nor has any enforcement action been takenagainst her.
In his second affirmation, MrSingh refers to the release in December1993 of the three Sabahans who had been detained under the InternalSecurity Act in respect of the alleged plot to secede Sabah from Malay-sia. At that time DrKitingan was still detained and the Deputy HomeMinister stated that there were “technical problems” which did not al-low for his release. No information or explanation was given as to whatwas meant by “technical problems”. However, as I have said, DrKitinganwas subsequently released on 22December 1993 subject to the condi-tions to which I have referred.
EVIDENCE FOR THE APPELLANT
An affirmation has been filed on behalf of the appellant byMrGongSiengMee who is an investigation officer attached to the ACAwho states that the criminal proceedings are not politically motivated.
One further affirmation filed by the appellant that was not before themaster is that of MrAbdulGaniPatail made on 20October 1993. In thisaffirmation MrPatail states that he is the Senior Federal Counsel andDeputy Public Prosecutor attached to the Attorney General’s Chambersin Kota Kinabalu and is the leading prosecuting counsel in respect ofthe sevencorruption charges pending against DrKitingan. He deniesthat the charges are politically motivated and that he decided and ad-vised the Attorney General on 19January 1990 that there was sufficientevidence to warrant a prosecution against DrKitingan. He based hisopinion upon the evidence gathered by the ACA that there is sufficientprima facie evidence to prosecute DrKitingan.
MEANING OF POLITICAL CHARACTER AND CONCLUSIONS
MrGrossman submitted that there is a difference between the words“proceedings” and “criminal matter”. In construing s 77B(3) of the Evi-dence Ordinance, he contended that regard must be had to s 77B(2) thatrefers to “criminal proceedings” and provides that in its application that“civil proceedings” be substituted by “criminal proceedings” and s 74which reads with “civil proceedings” being substituted by “criminal pro-ceedings as follows:
“‘Criminal proceedings’, in relation to the requesting court, means proceed-ings in any [criminal] matter.”
As a result, the section may be read as follows:
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 877
“Nothing in this section applies in the case of any proceedings in anycriminal matter of a political character”.
Accordingly he posed the question as to whether the adjectival phrase“of a political character” will qualify the word “proceedings” or the words“criminal matter”. He also submitted that the three authorities cited onextradition are of limited assistance and that although the relevantsections are similar, the interpretation must be different. He empha-sised that a request for extradition involves the requested court dealingwith the liberty or life of the accused and will therefore be particularlyastute to ensure that its protection is not lifted for unworthy reasons. Insupport of his submission, MrGrossman cited In re Extradition Act 1870,ex parte Treasury Solicitor [1969] 1 WLR12 where ChapmanJ summa-rised the position appositely as follows when he had this to say (at 15):
“the phrase ‘any criminal matter’ must have the same or a cognate mean-ing; in other words, the reference is to the nature of the proceedings, bethey by what we would call summons, charge, indictment, or what haveyou. If that is the meaning of the words in the body of the section, thesame meaning must, I think, be given to them in the proviso. In otherwords, when one is considering the words in the proviso, ‘any criminalmatter of a political character,’ one has to look, not at the character of theoffence which is charged, but to the character of the proceedings whichhave been instituted.
The effect of this interpretation is that no order for the examination of awitness can be made when the ‘criminal matter,’ that is, the prosecution,is of a political character. This might well involve, even in a world lesscomplicated than ours, quite difficult issues. It is perhaps unlikely nowa-days that a State would seek the assistance of a foreign court in securingevidence to show that a person belonged to a prescribed political party, butas a possibility it cannot be ignored. In any case, there are all sorts andkinds of holding charges, sometimes of a highly technical character, whichmight be resorted to in order to drag in a person whose head was wantedfor political reasons, that is, because he was from the point of view of hispolitical opponents a dangerous character.”
Later he said (at 16):
“I think the words must postulate some sort of political behaviour on thepart of the accused which makes it in the eyes of those in power desirablethat he should be rendered silent or inactive.”
In connection with the meaning of the words “proceedings of a politicalcharacter”, my attention was drawn to three extradition cases: R v Gov-ernor of Brixton Prison, ex parte Kolczynski and others [1955] 1 QB540;
5
10
15
20
25
30
35
40
45
878 High Court (Jones J in chambers) (1994) 4
Schtraks v Government of Israel and others [1964] AC556; and R vGovernor of Winson Green Prison, Birmingham, ex parte Littlejohn [1975]3 All ER208. In these cases the court went behind the words of thestatute in order to decide whether there has been any political motiva-tion behind the offence. Most assistance can be derived from the speechesof LordReid, Viscount Radcliffe and Lord Hodson in Schtraks v Govern-ment of Israel and others [1964] AC 556. LordReid had this to say (at583):
“So it appears to me that the motive and purpose of the accused in commit-ting the offence must be relevant and may be decisive. It is one thing tocommit an offence for the purpose of promoting a political cause and quitea different thing to commit the same offence for an ordinary criminalpurpose.
Moreover, I do not think that the application of the section can belimited to cases of open insurrection. An underground resistance move-ment may be attempting to overthrow a government and it could hardly bethat an offence committed the day before open disturbances broke outwould be treated as non-political while a precisely similar offence commit-ted two days later would be of a political character. And I do not see whythe section should be limited to attempts to overthrow a government. Theuse of force, or it may be other means, to compel a sovereign to change hisadvisers, or to compel a government to change its policy may be just aspolitical in character as the use of force to achieve a revolution. And I donot see why it should be necessary that the refugee’s party should havebeen trying to achieve power in the State. It would be enough if they weretrying to make the government concede some measure of freedom but notattempting to supplant it.”
Viscount Radcliffe said (at 591–592):
“In my opinion the idea that lies behind the phrase ‘offence of a politicalcharacter’ is that the fugitive is at odds with the State that applies for hisextradition on some issue connected with the political control or govern-ment of the country. The analogy of ‘political’ in this context is with ‘politi-cal’ in such phrases as ‘political refugee,’ ‘political asylum’ or ‘politicalprisoner.’ It does indicate, I think, that the requesting State is after himfor reasons other than the enforcement of the criminal law in its ordinary,what I may call its common or international, aspect. It is this idea that thejudges were seeking to express in the two early cases of In re Castioni[[1891] 1 QB 149] and In re Meunier [[1894] 2 QB 415] when they con-nected the political offence with an uprising, a disturbance, an insurrec-tion, a civil war or struggle for power: and in my opinion it is still neces-sary to maintain the idea of that connection. It is not departed from bytaking a liberal view as to what is meant by disturbance or these other
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 879
words, provided that the idea of political opposition as between fugitiveand requesting State is not lost sight of: but it would be lost sight of, Ithink, if one were to say that all offences were political offences, so long asthey could be shown to have been committed for a political object or with apolitical motive or for the furtherance of some political cause or campaign.There may, for instance, be all sorts of contending political organisationsor forces in a country and members of them may commit all sorts ofinfractions of the criminal law in the belief that by so doing they willfurther their political ends: but if the central government stands apart andis concerned only to enforce the criminal law that has been violated bythese contestants, I see no reason why fugitives should be protected bythis country from its jurisdiction on the ground that they are politicaloffenders.”
In the same case, Lord Hodson emphasised (at 612):
“there must be either in existence or in contemplation a struggle betweenthe State and the fugitive criminal.. . . In some modern States politics andjustice may be inextricably mixed, and it is not always easy, for example,to say what amounts to a revolt against the Government.”
It is clear from the authorities that the accused must be at odds withthe state, and in this case MrGrossman has conceded that DrKitinganis at odds with the federal government of Malaysia.
LordWidgery CJ adverted to the importance of the attitude of therequesting authority as well as that of the accused in deciding whetheran offence is of a political character when he said in R v Governor ofWinson Green Prison, Birmingham, ex parte Littlejohn [1975] 3 All ER208 at 211:
“Counsel for the applicant in the course of his argument before us hasstressed, as indeed he must stress, the important fact that the attitude ofthe requesting authority is at least as relevant in deciding whether theoffence is an offence of a political character as is the attitude and motive ofthe wrongdoer himself. . . . I quite accept that one of the most importantfactors in deciding whether an offence is of a political character is to seewhether the requesting authority are minded to use their right to extradi-tion for some ulterior and political motive in order that they may punishthe man for his politics rather than for the actual offence in respect ofwhich extradition is sought.”
Later, LordWidgery CJ said (at 211–212):
“Thus one reaches the stage now on the weight of authority, and a consid-erable weight it is, that an offence may be of a political character, either
5
10
15
20
25
30
35
40
45
880 High Court (Jones J in chambers) (1994) 4
because the wrong-doer had some direct ulterior motive of a political kindwhen he committed the offence, or because the requesting state is anxiousto obtain possession of the wrong-doer’s person in order to punish him forhis politics rather than for the simple criminal offence referred to in theextradition proceedings.”
Although MrGrossman argued that a letter of request as it concernscriminal proceedings rather than a criminal offence requires a less strin-gent examination than a case that concerns extradition, I do not agree.In my judgment, the words “proceedings” and “criminal matter” are inwide terms and must be given their ordinary meaning. I agree with themaster that the words can be used interchangeably and in effect there isno difference. The guidelines set out in the authorities cited require thecourt to look behind the statute and to look at all the surroundingcircumstances as a whole and not in isolation. It is also important tolook at the motivation of those persons who were responsible for theinstitution of the proceedings as well as the motivation of DrKitingan.
At the time of Federation, assurances were given by the federal gov-ernment that the special interests of Sabah would be safeguarded afterit became a member of the Federation. The main issues were set out inthe document known as the “Twenty Points”. However, it is claimed thatthose safeguards have been seriously eroded by the federal governmentwith the connivance of the state governments that held power until1985. The new PBS party was elected as the state government in 1985on a manifesto to restore the state rights advocated by DrJosephKitinganthrough the Institute for Development Studies. One of the main issuesto be addressed was the log shipment policy. DrKitingan prepared aproposal to break the monopoly that had been exercised by Dewaniagaand Archipelago. However, the efforts of the state government were metwith opposition from the federal government. On 2January 1987,DrKitingan made a public statement in which he said that one of themain sources of unhappiness with the federal government in Sabah wasits apparent non-compliance with the original “TwentyPoints” which heregarded as the basis for Sabah joining the Federation. He also statedthat it was a common perception that the Federal leadership had beeninfluencing the development of political events in Sabah to the detri-ment of the ruling party. On 13January 1987, Deputy Prime MinisterGhafar bin Baba was reported to have challenged PBS to substantiatethe allegations with the result that DrKitingan produced a long memo-randum addressed to the federal government and entitled “The 20Pointsbasis for Federal-State Relations for Sabah”. This very detailed memo-randum was presented to the federal government by DrKitingan in hiscapacity as a concerned citizen through the state government in order toimprove Federal-State relations. After dealing with the “TwentyPoints”and subsequent developments, DrKitingan in his conclusions wrote:
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 881
“In conclusion, it is shown that there are a number of critical areas inwhich the Federal government has deviated from the original spirit andmeaning of the constitutional safeguards and assurances granted to Sabahat the time of the formation of Malaysia. The basic conditions were con-tained in a memorandum called the ‘Twenty Points’, the contents of whichwere subsequently incorporated into the IGC Report, the Malaysia Agree-ment and the Federal Constitution. The principal areas in which therehave been clear deviations with respect to implementation are those whichrelate to matters pertaining to Immigration, Religious freedom,Borneonisation, Citizenship, Education, Finance, and Tariff Arrangementsand Constitutional safeguards.
Deviations in implementation with respect to these matters have beenlargely responsible for strained Federal-State relations, thereby present-ing barriers to territorial integration. It must nevertheless be stressedthat problems pertaining to Federal-State relations do not originate merelyfrom deviations as described above. Equally important is the problem ofpolitical interference by Kuala Lumpur in State affairs.
As a result of the deviations and political interferences, an idea is nowslowly taking root that there is going to be a ‘take-over’ of the BorneoTerritories by Malaya and the submersion of the individualities of Sabahand Sarawak.”
At the beginning of January1990, DrKitingan published a New YearMessage in which he raised some of the specific grievances held by theState government in its relation with the federal government and inparticular, the failure by the federal government to act against the du-plication of names on electoral rolls and the naturalization and electoralregistration of large numbers of illegal immigrants and the erosion ofState powers in such areas as fisheries, mining and forestry. DrKitinganalso sought the equal distribution of oil and gas revenue between theFederal and State governments and for Sabah to have greater represen-tation on federal government boards and authorities.
It is abundantly clear from the evidence that the motivation ofDrKitingan is political in character for he is at odds with the federalgovernment with regard to the grievances that he has expressed onbehalf of the State of Sabah. The federal government retaliated by ar-resting him on corruption charges in 1990 and later arresting him in thesame year on the grounds that he had not co-operated with the authori-ties with regard to the disclosure of his assets. When he was interviewedabout his assets, DrKitingan maintained his right of silence when herealised that questions were being put to him about the corruption chargesfor which he had already been arrested. Finally, he was charged inMay1991 under the Internal Security Act that he was a threat to thesecurity of the State. Yet the allegations preferred go back to 1986, withthe most recent being in 1990. No evidence has been forthcoming to
5
10
15
20
25
30
35
40
45
882 High Court (Jones J in chambers) (1994) 4
justify the allegations by way of a criminal prosecution that DrKitinganintended to take steps to secede Sabah from the Federation by armedviolence.
The inextricable link with politics also arises under the Internal Se-curity Act which resulted in questions being asked about matters whichwere clearly directed to the charges of corruption. The instances of theraid by the Inland Revenue Department, the investigation by the ACAand the political attacks made upon DrKitingan, together with the ar-rest of prominent politicians of the State, including the Chief MinisterDrJosephKitingan all indicate an intention by the federal governmentto discredit the State government and bring about its downfall.
Whilst the investigating officer MrGong of the ACA and MrPatail,the prosecuting counsel for the Malaysian Government, have stated thatthe charges upon the evidence are not politically motivated, that evi-dence cannot be accepted in isolation when all the surroundingcircumstances have to be considered.
A point was raised that Malaysia has the separation of powers but itis not DrKitingan’s case that Malaysia does not have such separation,nor that the courts there are likely to be influenced by the executive.
It is indeed unlikely that the corruption charges would have beenpreferred without the approval of persons in high authority. Indeed, thecharges of corruption cannot be described as merely straightforwardcriminal offences, for it is not as if, for example, DrKitingan offered abribe to a police constable for his agreement not to report a trafficoffence, but [they] arise directly from the log shipping policy which wasobviously a matter of political concern. I agree with MrThomas that thecharges of corruption are part and parcel of a political campaign di-rected against the PBS leadership and its supporters to undermine theirpolitical power and credibility in Sabah, and as part and parcel of asustained campaign to victimise DrKitingan for his political activitiesand beliefs. DrKitingan has been discredited by the accusations that heis a tax evader, corrupt and a threat to the security of the State. Theallegations are clearly politically motivated and inextricably linked withpolitics with the result that I draw the irresistible inference that thecharges against DrKitingan relate to criminal proceedings of a politicalcharacter. Accordingly, MasterBeeson was right when she set aside theorder of MasterO’Donnell on this ground.
ABUSE OF PROCESS
The only evidence of abuse of process was an affirmation on behalf ofDrKitingan by Judge Suffian, a distinguished jurist who wasLordPresident of the Federal Court of Malaysia, from 1974 to 1982 andChief Justice of the High Court of Malaya from 1973-1974. JudgeSuffianis now the Vice-President of the International Labour Organization Ad-
5
10
15
20
25
30
35
40
45
HKPLR The Crown Solicitor v Datuk Jeffrey Kitingan 883
ministrative Tribunal, Geneva and a judge of a similar tribunal of theWorld Bank in WashingtonDC.
In his affirmation of 4March 1991, JudgeSuffian has explained therelevant law relating to the admissibility of deposition evidence by ab-sent witnesses in criminal proceedings in Malaysia. As there is noprovision of Malaysian law specifically dealing with the admissibility ofdepositions obtained abroad, he has invoked the provisions of the Crimi-nal Procedure Code (FMS Cap 6) (Malaysia) and the Evidence Act 1950(Revised 1971)(Malaysia) to determine whether the depositions requestedare admissible. After consideration of the law of Malaysia, he states thatthe depositions to be taken in Hong Kong pursuant to the letter ofrequest do not fall within the provisions of the Code or the Act andtherefore the depositions, if taken, cannot be given as evidence in acriminal trial in Malaysia. Judge Suffian further expressed his opinionthat with regard to the evidence of the two bank employees, there is noprovision available to compel an officer of a bank in a foreign jurisdic-tion to produce any banker’s books or to appear as a witness to prove thematters and transactions recorded in a foreign jurisdiction for it is ultravires the Bankers Books (Evidence) Act 1949 (Malaysia).
In respect of this issue, my attention was drawn to Rio Tinto ZincCorporation and others v Westinghouse Electric Corporation [1978] AC547where LordDiplock in his speech said (at 634):
“The English court cannot be expected to know the systems of civil proce-dure of all countries from which request for an order under the Act of 1975may come. It has to be satisfied that the evidence is required for thepurpose of civil proceedings in the requesting court but, in the ordinaryway in the absence of evidence to the contrary, it should, in my view, beprepared to accept the statement by the requesting court that such is thepurpose for which the evidence is required.
The letters of request from the United States District Court for theEastern District of Virginia (‘the letters rogatory’) contained in the pream-ble what on a fair reading is, in my view, an adequate statement to thiseffect; so the High Court had jurisdiction to make an order. It was notbound to do so, but I think that the court should hesitate long beforeexercising its discretion in favour of refusing to make an order unless itwas satisfied that the application would be regarded as falling within thedescription of frivolous, vexatious or an abuse of the process of the court.”
No expert evidence was adduced by the Crown in opposition to theevidence of JudgeSuffian, but MrGrossman attempted to show fromthe bar table that JudgeSuffian’s opinion was wrong on the basis thathe had overlooked the Malaysian Rules of Court which are similar,although not identical, to the Rules of England and Hong Kong. How-ever, it is clear that he was not entitled to do so and that the proper
5
10
15
20
25
30
35
40
45
884 High Court (Jones J in chambers) (1994) 4
course would have been for him to file expert evidence in reply, which hechose not to do. MrGrossman also relied upon a passage from the speechof LordKeith in the Rio Tinto Zinc Corporation and others v WestinghouseElectric Corporation where he had this to say (at 654):
“In the face of a statement in letters rogatory that a certain person is anecessary witness for the applicant, I am of opinion that the court ofrequest should not be astute to examine the issues in the action and thecircumstances of the case with excessive particularity for the purpose ofdetermining in advance whether the evidence of that person will be rel-evant and admissible. That is essentially a matter for the requesting court.”
The issue in this case is not as was submitted by MrGrossman todetermine what is or what is not admissible in evidence which is clearlya matter for the court in Malaysia to decide, but whether the form inwhich the evidence of the witnesses is required irrespective of its rel-evance can be used in the criminal trial in Malaysia. Having regard tothe uncontradicted evidence of Judge Suffian, I am satisfied that theevidence requested cannot be used in a Malaysian court. Accordingly, tomake an order under these circumstances would be an abuse of theprocess of the court.
The appeal will therefore be dismissed and there will be an order nisifor costs in favour of DrKitingan with a certificate for two counsel.
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 885
Yung Tak-lam, Philip v Governor
[Christopher Patten] and others
High CourtMP No 380 of 1994
Jerome Chan JDates of hearing — 21 February and 28 April 1994Date of delivery of decision — 28 April 1994Date of handing down reasons for decision — 17 May 1994
Administrative law — Government consultation on issues — Gov-ernment solicitation of public submissions on electoral issues —Undertaking to publish submissions — Whether failure to do sogave rise to cause of action in tort or contract
Tort — Misrepresentation — Elements of tort of misrepresenta-tion — False representation — Knowledge as to truth ofrepresentation — Recklessness as to truth of representation —Reliance — Damages and expense incurred — Pure economic loss— Whether failure by government to publish submissions it hadsolicited from public with promise of publication gave rise tocause of action
Practice and procedure — Pleadings — Statement of claim —Striking out — Abuse of process — Poorly drafted pleading —Particularity — Whether pleadings disclosed reasonable cause ofaction or were embarrassing — Whether defendants knew natureof case — Whether pleadings could be perfected by provision ofparticulars
Contract — Creation — Offer to public — Acceptance by membersof the public — Consideration — Whether government solicitationof submissions on electoral issue constitutes offer — Whether sub-mission of views by members of public constitutes acceptance andcreates binding contract — Reliance — Whether loss needs to beshown — Whether failure by government to publish submission abreach of contract — Remedy — Declaration — Not necessary toallege damage — Rules of the Supreme Court (Cap 4, sub leg), O15, r 16
The first defendant (the Governor of Hong Kong) delivered his policy
5
10
15
20
25
30
35
40
45
886 High Court (Jerome Chan J) (1994) 4
address to the Legislative Council at the opening of the 1992–1993 sessionof the Council. The address proposed reforms to Hong Kong’s electoralsystem for the 1994–1995 elections. The defendants made publicstatements indicating the Governor’s desire to receive the views andopinions of the public on the issue, and members of the public wereinvited to send in their views and proposals. Following these invitations,the plaintiff submitted his proposal (dated 10 December 1992) to theGovernor, whose private secretary acknowledged its receipt on 17December 1992.
In December 1992, the second defendant (the Secretary for Constitu-tional Affairs) made a statement in which he said that the governmentwould collate and analyze the views that had been received, and makethem public.
The government decided in January 1993 to publish a compendium ofsubmissions, and sent letters to authors of submissions requesting theirpermission to publish their submissions. When the compendium waspublished in February 1993, it did not contain the plaintiff’s submission.It was unclear whether he had received a letter requesting his consentto its publication. The compendium was accompanied by a press releasewhich stated that the compilation included submissions made to thegovernment and that submissions received after the publication of thecompendium would, if their authors agreed, be presented to the mem-bers of the Legislative Council.
The plaintiff wrote to the Governor on 15 February 1993 complainingthat his submission had not been included in the compendium, and hethen sent in a more detailed submission. The government did not replyto his further submission, nor did it acknowledge receipt of the secondletter.
In March 1993, a supplementary compendium was published. Prior topublication, letters were once again sent to authors of submissions seek-ing their consent to publication. It was unclear whether such a letterwas sent to the plaintiff. However, neither of the plaintiff’s submissionsappeared in the supplementary compendium. The press release accom-panying the second compendium stated that it contained additionalsubmissions received since the earlier compendium, as well as earliersubmissions whose authors had consented to publication after the publi-cation of the first compendium.
The plaintiff continued to write to the Governor and to the Office ofthe Members of the Legislative Council urging, inter alia, his proposal.In response to a letter dated 31 January 1994, the private secretary ofthe Governor wrote to the plaintiff:
“When you first wrote to us on 10 December 1992, I was not quite surewhether you would wish your letter to be published in a compendium.Hence the Government did not include your letter in the publication is-
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 887
sued in January 1993. We are sorry that we did not do so if that had beenyour intention.”
On 14 February 1994, the plaintiff commenced legal proceedings. His re-amended statement of claim claimed that the defendants hadmisrepresented that the submission made in response to the variousinvitations would be published and made known to the Legislative Counciland other relevant bodies; that relying on those misrepresentations theplaintiff made submissions which were not published or disseminated;and as a result, the plaintiff suffered damages and incurred expense.The defendants applied to strike out the plaintiff’s statement of claim onthe ground that it pleaded no reasonably arguable cause of action andwas an abuse of process.
Held (dismissing the defendants’ application to strike out thestatement of claim)
1. A claim will only be struck out summarily in plain and obvious cases.The plaintiff’s pleadings stated claims which were reasonably argu-able and the claims were neither frivolous nor vexatious. Thedefendants had not established that it was a plain and obvious casefor the exercise of summary jurisdiction. (p 900, lines 17–28)
Claim of misrepresentation
2. When one read the plaintiff’s pleadings as a whole and drew appro-priate inferences from the facts alleged in them, it was clear that hehad pleaded the material facts needed to establish a cause of actionbased on misrepresentation. These were that the government had rep-resented: (a) that its policy and intention was to solicit the views ofthe public on electoral issues; (b) that it would publish and dissemi-nate submissions received from the public to the Legislative Counciland others; (c) that the plaintiff, in preparing his submission and sub-mitting it, relied upon the government’s representations; (d) that thegovernment’s representations were not true as the plaintiff’s submis-sions were never published; and (e) that the plaintiff suffered damageand incurred expenses as a result. (p 899, line 44 to p 900, line 8)
3. The claim by the government that the reason for failing to publish theplaintiff’s submissions was ignorance of his wishes was implausibleand it appeared that the real reason could only be a negligent ordeliberate failure to seek his consent. Despite that the pleadings didnot contain an express allegation of knowledge or recklessness on thepart of the defendants as to the truth of the representations, the
5
10
15
20
25
30
35
40
45
888 High Court (Jerome Chan J) (1994) 4
evidence gave rise to a prima facie case for the existence of knowledgeor recklessness on the part of the defendants. Whether the defend-ants had knowledge or were reckless was a matter for trial whenevidence would be called on the issue. (p 897, lines 18–21)
4. Though there was no express pleading that the plaintiff’s letter waswritten in reliance on representations made by the government, thecontents of the 15 February 1993 letter reasonably indicated a reli-ance on a promise that all further submissions would be disclosed tothe public. (p 898, lines 4–6)
5. There was a relationship of proximity between the defendants and mem-bers of the public that gave rise to a duty of care. The Governor andSecretary for Constitutional Affairs were in positions of authority indetermining government policy. They stood in such special positions thatit was foreseeable that the public would repose trust in their statementsof government policy. The representations were indisputably made withthe intention that the public act upon them. (p899, lines 1–9)
6. A negligent misstatement is actionable in tort if financial loss is therebycaused to the plaintiff. The pleadings made out an arguable case thatthe plaintiff had suffered financial loss as a result of the defendants’misrepresentations. (p 898, lines 16–23)
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1946] AC 465 andEsso Peteroleum Co Ltd v Mardon [1975] QB 819, followed.
Claim in contract
7. The pleadings also made out an arguable claim of breach of contract.It was arguable that: (a) the defendants’ representations were anoffer to the public that the defendants would publish submissionswhich it received to the Legislative Council and to the public (it couldhardly be contended that the defendants had no intention to be boundby such representations); (b) an enforceable contract was created whenthe public announcements were made and members of the publicacted upon the representations by making submissions. There was nosuggestion of lack of consideration. (p 899, lines 23–38)
Carlill v The Carbolic Smoke Ball Company Limited [1892] 1 QB 484,Gibbons v Proctor (1891) 64 LT 594, and William v Carwardine (1833)5 C & P 566, followed.
8. Insofar as the plaintiff pleaded his claim in contract, he did not needto prove that he had suffered any loss, as O 15, r 16 RSC permits a
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 889
claim solely for a declaration on a claim of misrepresentation foundedon contract. (p 898, lines 36–40)
Abuse of process
9. The plaintiff’s claim did not amount to abuse of process. Although thestatement of claim lacked the particulars of the material facts theplaintiff relied on, it did allege facts sufficient to found his claim, andthe defendants were aware of the true nature of the plaintiff’s case.Where a claim can be perfected by the supply of proper particulars, itshould not be struck out. Nor was there any evidence of bad faith orulterior motive. (p 899, line 44 to p 900, line 21)
The following cases and materials are referred to in the ruling:
Carlill v The Carbolic Smoke Ball Company Limited [1892] 1 QB 484Esso Petroleum Co Ltd v Mardon [1975] QB 819Gibbons v Proctor (1891) 64 LT 594Le Lievre v Gould [1893] 1 QB 491Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465William v Carwardine (1833) 5 C & P 566
Rules of the Supreme Court, O 15, r 16
Philip Yung Tak Lam, appearing in person.A Sham and N Bradley (for the Attorney General’s Chambers), for the
defendants.
Jerome Chan J delivered the following decision:
The plaintiff is a citizen of Hong Kong. The first defendant is the Gover-nor of Hong Kong and the second defendant is the Secretary forConstitutional Affairs of the third defendant. The third defendant is thegovernment of Hong Kong, represented by the Attorney General. Theaction arises out of the controversial proposals for the constitutionalreforms that the defendants wish to put in place for the 1994/5 electionfor the Legislative Council of Hong Kong.
The curtain to the present dispute rose on 7 October 1992 when thefirst defendant delivered his policy address to the Legislative Council atthe opening of the 1992/3 session of the Council. The address madereference to proposals for the 1994/5 electoral arrangements. The policyaddress generated much press coverage and public debate, particularly
5
10
15
20
25
30
35
40
45
890 High Court (Jerome Chan J) (1994) 4
in relation to the constitutional reforms proposed. In the course of thepublicity thus generated, the defendants made many public statementsindicating the sincere desire of the first defendant to receive the viewsand opinions from the public. The public were persistently told to sendin their views and proposals. In the light of such invitations, the plain-tiff formulated his proposal dated 10 December 1992 and sent it to thefirst defendant. His contribution was acknowledged by the private secre-tary to the first defendant on 17 December 1992. In essence the plaintiff’sproposal was that a special committee be set up by the British andChinese governments to deal with this unique issue of political change.This special committee is not to be involved with matters relating tocommercial, financial or any other matters. In other words, such a spe-cial committee would be similar to those special groups dealing with theproposed airport project or land development. Apart from thanking theplaintiff for his letter, the reply from the Government House also madereference to the existence of the Joint Liaison Group which would dealwith matters relating to the implementation of the Joint Declarationand smooth transfer in 1997.
In December 1992, there was a suggestion within the third defendantthat it would be a good idea if the submissions generated by its publicinvitation and received by it thereafter were to be made available to thepublic in some form. This would be in accordance with the policy of anopen government championed by the defendants. This idea was firstmade known to the public through a public statement made by thesecond defendant on 21 December 1992. Two proposals were mentioned,one of which was for the government to collate and analyse the viewsthat had been received and then make them public. It was subsequentlydecided in early January 1993 to publish a compendium of submissions.With a view to seek the consent of the authors of the submissions for thepublication of their views, letters were sent out to the authors in Febru-ary. It is not clear if any such letter was ever sent to the plaintiff. And ifnot, why not? But it is an accepted fact that the submission of theplaintiff was never included in this compendium. The relevant part of acontemporaneous press release by the third defendant explained thepurpose for such a compendium:
“The Government has today made available to interested parties Compen-dium of Proposals, which includes 65 written submissions that the Gov-ernment has received on the 1994–95 elections since the Governor de-scribed his proposals in his Address to the Legislative Council on 7 Octo-ber last year.
A Government spokesman said copies of the 400-page compendium wouldbe sent to Members of the Executive Council and the Legislative Council.Copies would also be sent to the Municipal Councils, the District Boards,and the authors of the submissions which were included in the Compendium.
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 891
The unedited texts of these submissions are included in the Compen-dium, except for those for which it has not been possible to confirm theauthors’ permission for their submissions to be included.
Discussions on the Governor’s proposals in the Legislative Council, theUrban and Regional Councils and District Boards have not been includedbecause they are a matter of public record and are available for publicinspection.
Also excluded are those many comments and views which have beenpublished in newspapers and periodicals, unless they have been separatelysubmitted to the Government.
The spokesman said the purpose of publishing the Compendium was toprovide a handy reference for Members of the Legislative Council and thepublic, when they examine the Government’s draft legislation for the 1994–95 elections.
It is expected that there will be further views after the publication ofthe Compendium. With the permission of the authors, these will be pre-sented to Members of the Legislative Council when they are received.”
Apparently outraged by the exclusion of his submission, the plaintiffwrote to the Hong Kong and Macau Office of the State Council of theChinese government on 3 February lodging a complaint. The complaintletter was in fact hand-delivered to the Chinese government by theplaintiff who went on a trip to Beijing to see Mr Lu Ping in order tomake known his views to them. On 15 February, he wrote to the firstdefendant accusing him of, inter alia, untruthfulness and concealmentThe complaint letter to the Chinese government was also copied to thefirst defendant. After making known his feelings towards the first de-fendant, the plaintiff further set out in much greater details his viewson the first defendant’s proposals as well as the pros and cons of hisconduct at that period of time The plaintiff suggested that the proposedlegislative amendments be suspended for the detailed reasons giventherein. For reasons unknown, the plaintiff was not given the courtesyof any reply or acknowledgement of receipt of his letter on this occasion.
The third defendant published a supplementary compendium in March1993. Prior to the publication, in accordance with the previous practice,letters were sent out to the authors of the submissions seeking theirconsent for publication. It is again unknown whether any such letterwas ever sent to the plaintiff. But it is an accepted fact that the submis-sions of the plaintiff, both the one in December 1992 and the latter onethat was sent in the 15 February letter after the compendium was firstpublished, were again excluded from the supplement. The supplementwas again accompanied by a press release in similar terms as the earlierone. It is, however, to be noted that in this second press release it wasrepresented that the supplement “contained an additional 28 submis-sions to the 65 submissions published . . . which the government has
5
10
15
20
25
30
35
40
45
892 High Court (Jerome Chan J) (1994) 4
received”. It was further represented that “some of these authors havesince (the publication of the compendium) given their authorization. Theunedited texts of these and other submissions are included in the Sup-plement.”
On 1 December 1993 the plaintiff again wrote to the first defendanturging him not to cause any further damage to Hong Kong. The privatesecretary to the first defendant replied on 6 December explaining thefirst defendant’s view. On 10 December the plaintiff wrote to the com-plaints department of the Secretariat of OMELCO complaining of thedefendant’s concealment of his submissions. He also wrote to the firstdefendant making complaints again as well as enclosing his complaintletter to the OMELCO. The private secretary to the first defendantreplied on 14 December but merely gave the plaintiff an update on whatthe plaintiff could have read from newspapers about the progress of thetalks between the two governments. On 20 December the plaintiff wroteagain to the first defendant urging him to give the truth to the citizensof Hong Kong as his Christmas gift. The Secretary General of the Officeof the Members of the Legislative Council replied on 30 December tell-ing the plaintiff that the bill was introduced on 15 December, ie in themeantime, and enclosed a copy of the speech of the second defendant inmoving the bill. The plaintiff was undaunted and wrote a further letterto the Office of the Members of the Legislative Council, dated 7 January1994, reiterating his complaint about the concealment of his submis-sions and pleaded that the compendium be corrected. This letter wasagain copied to the first defendant under a covering letter of the samedate. His letters were acknowledged by the first defendant on 14 Janu-ary, and by the Legislative Council on 21 January and 31 January.
On 31 January 1994, the plaintiff again wrote to the first defendantsetting out further views on the first defendant’s proposals and theturmoil they had caused. His letter to the first defendant was copied tothe Legislative Council by a covering letter of the same date. Uponreceiving the acknowledgement from the Legislative Council to his ear-lier letter, he wrote again to it on 2 February. In response to his letter of31 January, the private secretary to the first defendant replied on 5February saying:
“When you first wrote to us on 10 December 1992, I was not quite surewhether you would wish your letter to be published in a compendium.Hence the Government did not include your letter in the publication is-sued in January 1993. We are sorry that we did not do so if that had beenyour intention.”
On 7 February 1994, the Legislative Council acknowledged the plain-tiff’s letter. On 9 February 1994, the plaintiff sent his letter beforeaction to the first defendant saying that in view of the damages and
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 893
continuing expenses this matter has caused him, he has no alternativebut to commence legal proceedings to redress the situation.
On 14 February 1994, the plaintiff took out these proceedings againstthe first and second defendants as well as the Legislative Council as thethird defendant. On 21 February 1994, at the hearing of an applicationfor striking out the claim, the plaintiff’s claim against the LegislativeCouncil to stop the legislative process for the reform bill was dismissed.Prior to the commencement of the second hearing of the defendants’application to strike out the plaintiff’s claim, the originating summonsof the plaintiff had been transformed to a statement of claim which wasthen amended twice to become the present re-amended statement ofclaim, with orders of costs against him.
It is not at all easy to understand the language used in the plaintiff’s10-page pleading. As is expected from a layman perhaps, [many] irrel-evant allegations and comments found their way into the same. However,focusing solely on the material allegations made in the re-amended state-ment of claim, the plaintiff’s claim is one based on misrepresentation.But it is not at all clear whether the claim is one founded on contract ortort. It was alleged that the defendants had represented to the publicthat the submissions that they were invited to present to the govern-ment will be made known to the Legislative Council and other relevantbodies as well as to the public at large in a publication. The plaintiffclaims that on the strength of such representation he had made variousrepresentations and submissions to the first defendant between Decem-ber 1992 and February 1994. His efforts were not rewarded by thepublication of his contributions in either the compendium, its supple-ment, or in some other form. The plaintiff thus claims that the defendantshad been misleading the public by way of repeated untrue representa-tions that the submissions sent in by the public will be published in theway promised. It is alleged that as a result of the misrepresentations, hesuffered damages and expenses over an extensive period in making hissubmissions and subsequently to try to get them published to the public.
THE REPRESENTATIONS
The plaintiff confessed in his pleadings that he is not able to supplydetailed information of the dates of the representations under complaint.Though there is no direct express pleading relating to a representationthat the submissions would be published, the balance of the pleadingsmade it clear beyond doubt that he was alleging that to be the case. Hecomplained of being misled when he found his submission not includedin the compendium, and that the compendium contains untruth. Fur-thermore, all the defendants approached the application on theunderstanding there was an allegation of a promise by the governmentto publish all submissions received in the compendium or its supple-
5
10
15
20
25
30
35
40
45
894 High Court (Jerome Chan J) (1994) 4
ment. Thus it is beyond doubt that all parties were able to understandthe real substance of the plaintiff’s claim despite the difficulty in thelanguage used.
The only particulars given by the plaintiff in his pleadings of thealleged representations are that they were “within the period end of1992 after the first defendant’s announcement of his proposal”. Thatthey were made through the media in newspapers and television newsand interviews of the first defendant. That the representations werecarried on a number of newspapers.
Though a vast number of newspaper reports were produced by theplaintiff in his affirmations, it is not easy to distil the alleged represen-tations from them. However, evidence of the various announcements ofthe defendants at various stages of time, with better details and clarity,was supplied by the Principal Assistant Secretary of Constitutional Af-fairs, Mr Joseph Lai, in his affirmation of 25 April 1994.
It would appear that the representations made by the defendants onthe relevant subject can be separated into 5 groups, in accordance withthe time they came into existence:(1) From 7 October up to 20 December 1992.(2) From 21 December 1992 up to 20 January 1993.(3) Between 21 January and end of February 1993.(4) In March when the supplement to the compendium was published.(5) 5 February 1994 when the first defendant wrote to the plaintiff via
his private secretary.
During (1) it is clear that the only representation made was to invitethe public to send in submissions and that such submissions will beconsidered and taken into account by the government in deciding how toproceed with the first defendant’s reform proposals.
During (2) the second defendant had represented to the public that ofthe two proposals under consideration by the third defendant at thattime, one was for the government to collate and analyse the views re-ceived and to have them published to the public. This representation is,put at its highest, merely an indication of a future intention. The rel-evant proposal was merely one of 2 proposals under consideration atthat time.
The express complaint as can be ascertained from the rather difficultto understand pleadings is a failure to publish in the compendium. But,in the context of the many complaints made to the Legislative Councilby the plaintiff, it would appear that his complaints must have beenintended to include a representation for presentation of all submissionsto the Legislative Council as well. In view of the rather poor and brokenEnglish used, it is necessary to read the entire pleading as a whole toascertain his complaints. Simply looking at one sentence where he spe-cifically dealt with a particular point and say as he should have included
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 895
all the particulars there in the same way one would expect a lawyer todo, one should not go beyond that sentence to ascertain the full natureof his complaint as the defendants counsel did, is neither doing justice tohis pleadings nor to the case. It is essential, to understand this difficultpiece of pleading drafted by a layman with inadequate skill of English,that sometimes necessary inferences would have to be drawn. Of course,one should not venture beyond reason and try to seek out a phantomfrom his pleadings when none exists or could have existed.
During (3) and on 21 January 1993, accompanying the compendiumwas announced the news release that had been set out at some lengthsupra. It is at least arguable, if not strongly arguable that the pressrelease contained a representation that the government’s policy andintention in composing the compendium is to include all submissionsreceived by the government save those expressly excepted therein. Thatit further represented that that had been done in the compendium pub-lished. And that all future submissions received after the publication ofthe compendium will be presented to members of the Legislative Councilupon receipt of the same. The submission of the plaintiff on 10 Decem-ber 1992 as expanded in his further submission on 15 February 1993does not come within any one of the excepted categories detailed in thesaid representations. The said representations are statements of theexisting state of intention and policy of the government, ie statements ofa fact. According to the defendants, which is not really disputed by theplaintiff, this was the first occasion when a firm statement was an-nounced regarding publication of submissions. In the premises, whenthe plaintiff refers to representations by the defendants of publication ofsubmissions, he could only have meant these or some subsequent repre-sentations.
In March when the supplement to the compendium was published, asimilar press release was made by the third defendant. Thus, it is like-wise strongly arguable that similar representations as in the first pressrelease were again made by the third defendant there in relation to thefurther submissions. It further contained a representation that thosesubmissions received before the compendium was published but weremissed out from the compendium due to a lack of authorization from theauthors were also included in the supplement as the authorizations hadsince been obtained.
In the 5 February 1994 letter, the first defendant has via his privatesecretary represented that the reason for failing to publish the plaintiff’ssubmission (reference was only made to the first submission dated 10December 1992 but not to the far more lengthy submission in the letterof 15 February 1993 that contained a detailed and critical analysis ofthe first defendant’s proposal and conduct) was the ignorance of theplaintiff’s wish to have his views published.
5
10
15
20
25
30
35
40
45
896 High Court (Jerome Chan J) (1994) 4
UNTRUTHFULNESS
There is no dispute that if the defendants did make representations tothe effect that all submissions sent in by the public will be published tothe Legislative Council, all relevant bodies and to the public; they hadfailed to live up to such representations in that the plaintiff’s submis-sions were never included in the compendium or its supplement. Nor isthere any dispute that his submissions were not published by the de-fendants to the said bodies or the public in some other manner or at all.Thus if the announcement made at stages (3) and (4) could be construedto contain the alleged representations, then they would be untrue repre-sentations as to the existing state of intention and policy of thegovernment, in the absence of any or any reasonable explanation beingoffered to excuse the failure to publish the plaintiff’s submissions.
The representation, or lame excuse, given in the letter of 5 February1994 can hardly hold water. It is the evidence of the Principal AssistantSecretary of Constitutional Affairs that letters would be sent to authors ofsubmissions prior to the publication of the compendium and its supplementseeking consent for publication. There is no suggestion that such a noticewas ever sent to the plaintiff for his submissions dated 10 December 1992and 15 February 1993, which were sent to the first defendant prior to thepublication of the compendium and its supplement respectively. A letterseeking the plaintiff’s consent was only sent on 26 March 1994, a year af-ter the publication of the compendium and its supplement, and 11/2 monthsafter the present proceedings were commenced by the plaintiff. The noticeof 26 March 1994 tends to suggest that no earlier notice was ever sent tothe plaintiff seeking consent for publication. It is thus absurd for the letterof 5 February 1994 to suggest that the reason for the failure to publish hissubmission was due to ignorance of the plaintiff’s wishes. It would appearthe only true reason is either a negligent or deliberate failure to seek theconsent of the plaintiff: these circumstances may perhaps help to explainwhy a concerned citizen would become so determined to take such a dras-tic step as seeking redress through the courts.
KNOWLEDGE/RECKLESSNESS
No criticism has been laid against the cause of action in respect of therequirement for knowledge, actual or constructive, or recklessness onthe part of the defendants as to the untruthfulness of the representa-tions. It is, however, to be noted that the pleadings lack any expressallegation of such knowledge or recklessness of the defendants. It istherefore to be taken for the purpose of the application that there is noobjection taken to the lack of such an express pleading. However, de-spite the absence of pleadings, the evidence disclosed does give rise to aprima facie case for the existence of such knowledge or recklessness.
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 897
Whether the defendants, or any of them, have such knowledge orrecklessness is a matter for trial when evidence would be called on thisissue. It is perhaps rather equivocal on the present state of evidence asto whether such knowledge or recklessness could exist in respect of therepresentations made at the time of the first press release or shortlythereafter. However the letter of 5 February 1994 from the first defend-ant’s private secretary, giving the lame excuse of ignorance of theplaintiff’s desire for publication of his submission, may very well reflectupon the defendants’ knowledge or recklessness as to the untruthfulnessof the representations. The knowledge or recklessness of the defendantsat the time of the second press release or thereafter as to the untruthful-ness of the representations (when the same and further representationswere made) can be more readily inferred because by that time the de-fendants must or ought to have know, that the plaintiff’s submissiondated 10 December 1992 was never published by them in any form atall. On one view the evidence may be suggestive that it was their inten-tion at all material times to be selective and/or to impose a degree ofdiscretion or censorship over the publication of submissions received. Inthe premises, a prima facie case has been made out that the defendantseither knew, whether actually or constructively, or were at least reck-less about the untruthfulness of the representations made.
RELIANCE
The representations made in the two press releases (or thereafter viathe media in other form, if any), coupled with the earlier invitations forsubmissions are the cornerstones to the plaintiff’s claims. In the premises,it is not possible for the plaintiff to seek assistance from any act per-formed by him prior to the first press release on 21 January 1993 tofound the necessary reliance. Thus, the submission dated 10 December1992 cannot be [relied] upon to support any claim for misrepresentationagainst the defendants.
In paragraph 9 of the re-amended statement of claim, the plaintiffreferred to the letter of 15 February 1993. He referred to it as a com-plaint letter and pleaded that he stated in that letter that he was misledby the first defendant’s announcements; and that it was not true to saythat the compendium contained all submissions. One of the mattersreferred to ill his said letter was to ask the first defendant to disclosethe truth and all proposals submitted (paragraph 6(C) of the letter).Though there is no express pleading that the said letter was written inreliance on the representations made on 21 January (or made subse-quently in the television or other media interviews given by thedefendants), the contents of the letter reasonably indicated a reliance ona promise that all further submissions would be disclosed to the public.It would not be unreasonable to infer that that was why in addition to
5
10
15
20
25
30
35
40
45
898 High Court (Jerome Chan J) (1994) 4
complaining he was making a further submission far more comprehen-sive than the earlier one. The letter was an effort to get the first defendantto do what had been represented would be done, ie to disclose to thepublic all submissions received by the government. It is reasonably ar-guable that the letter of 15 February 1993 is evidence of reliance on therepresentations for publication made on and after 21 January 1993.
RELIEF
Though the re-amended statement of claim does not really spell outclearly any particular relief he is seeking in these proceedings againstthe defendants. It has however been the subject of discussions at thefirst hearing, and the defendants were given to understand that theplaintiff’s claim is for damages and/or a declaration that the defendantshad been guilty of misrepresentations.
Since the House of Lords decision in Hedley Byrne & Co Ltd v Heller& Partners Ltd [1964] AC 465, in general no distinction is drawn be-tween financial loss and physical loss. Thus decisions like Le Lievre vGould [1893] 1 QB 491 are no longer good law to prevent the recovery offinancial loss suffered as a result of negligent misstatements. In EssoPetroleum Co Ltd v Mardon [1975] QB 819 it was held that a negligentmisstatement is actionable in tort if financial loss is thereby caused tothe plaintiff.
Though the plaintiff has not made any specific claim for damages in theprayer, he does claim for further and other relief. And in the body of thepleadings he did make reference to suffering damages and continuing ex-penses as a result of the said misrepresentations. No particulars of suchgeneral allegations of damages and expenses were, however, given. But,neither was there any attempt to seek further and better particulars ofsuch general allegations at all. It is not inconceivable that the plaintiffwould have spent time and effort and incurred some expenses in prepar-ing the lengthy submission in the letter of 15 February 1993, as well asin his strenuous attempts to get the defendant to honour the said repre-sentations over an extensive period. Thus it is arguable that the plaintiffhas suffered financial loss as a result of the misrepresentations.
If the plaintiff’s claim is founded on contract, there is no need for himto prove any damages as the cause of action is actionable without anydamages. Pursuant to Order 15, rule 16 of the Rules of the SupremeCourt, a claim solely for a declaration is maintainable on a claim ofmisrepresentation founded on contract.
CONTRACT/TORT
The defendants have not contended that if the claim is founded on tort,there could not have been any duty of care on the part of the defendants.
5
10
15
20
25
30
35
40
45
HKPLR Yung Tak-lam, Philip v Governor [Christopher Patten] 899
It is obvious that there exists a relationship of proximity between thedefendants and members of the public to give rise to a duty of care. Thefirst and second defendants are in positions of authority in determina-tion of government policy regarding the matter. The second defendant isthe government. They all stand in such special positions that it is fore-seeable that members of the public will repose trust in statements ofgovernment policy announced by them. The representations, if they weremade, were made indisputably with the intention that they be actedupon by the public.
It was submitted that the claim could not have been founded oncontract as no contract was ever intended or created between the plain-tiff and any of the defendants. It was submitted on behalf of thedefendants that there was no offer made; or if such an offer was made,there was no intention on the part of the defendants to be bound.
Advertisements in newspapers for the payment of reward for theperformance of a task have always been held to be an offer that bindsthe offeror to an enforceable contract if members of the public had ac-cepted the offer by performance of the task. Carlill v The Carbolic SmokeBall Company Limited [1892] 1 QB 484, Gibbons v Proctor (1891) 64 LT594 and William v Carwardine (1833) 5 C & P 566 are examples of theprinciple. The defendants have undoubtedly been persistently invitingand urging the public to send in their views on the proposed electoralarrangements. The representations alleged against the defendants, iffound to be proved, are arguably an offer to the public at large that ifsubmissions are sent in they will be published to the Legislative Counciland the public. It can hardly be contended by the defendants that therewas no intention to be bound by such representations once the represen-tations are found to have been made. Such a contention can only bemade if the defendants are suggesting that when those representationswere made they never meant it to be relied upon by anyone. That is notwhat I believe to be the defendants’ suggestions.
In the premises, it is at least arguable that an enforceable contractcame into existence when the public announcements made to the publicin general that if submissions are made to the government they will bepublished to the public and to the Legislative Council was accepted by amember of the public by making a submission to the government. Thereis no suggestion of a lack of consideration as the making of the submissionprovides not only the acceptance but the consideration for the contract.
I am not convinced that the plaintiff has failed to show a reasonablecause of action, or that his claim is frivolous or vexatious.
ABUSE OF PROCESS OF THE COURT
It is submitted that it is an abuse of the process of the court if a plaintiffdoes not know the facts needed to found his claim. But that is not the
5
10
15
20
25
30
35
40
45
900 High Court (Jerome Chan J) (1994) 4
case here. The plaintiff has pleaded the material facts needed to foundhis claim of misrepresentation. He had pleaded that the representationswere made by the defendants through the media in newspapers andtelevision broadcasts. That the representations were to publish all sub-missions made by the public to the government. That he relied on suchrepresentations and sent in his submissions. That such representationswere untrue as his submissions were never published. That he suffereddamages and expenses as a result. What was lacking in his pleadingsare the particulars of the material facts he alleged. If the plaintiff’s casecan be perfected by the supply of proper particulars then it should notbe struck out. The defendants are not embarrassed; and do know nowwhat is the true nature of the plaintiff’s case, if they did not appreciateit fully before this hearing.
The defendants have not expressly contended that there is any ulte-rior motive or mala fides tainting these proceedings, though that appearedto be the suggestion by way of casual insinuations as to the lack of realdamage suffered by the plaintiff. In view of the history outlined and themanner the plaintiff’s complaints had been treated, in particular theletter of 5 February 1993, perhaps it is not difficult to understand theplaintiff’s contention in his letter before action as to why he has to go tothe courts. I am unable to find any evidence of an ulterior motive.
I am satisfied that the plaintiff’s claim is an arguable one though noteasy to understand as a result of the language used. It is trite law that aclaim will only be struck out summarily in plain and obvious cases. Thedefendants fell far short of establishing that it is a plain and obviouscase for the exercise of this summary jurisdiction of the court. In thepremises, the defendants’ application to strike out the plaintiff’s actionis dismissed. Though the re-amended statement of claim contains muchirrelevant allegations, as all relevant issues have been identified afterthis hearing and there is no application to strike out any particular partof the pleadings before me, the re-amended statement of claim will beleft intact. In view of the difficulty entailed in distilling the plaintiff’sclaim from the lengthy recital of the history of the dispute, no order asto costs is made on the application.
5
10
15
20
25
30
35
40
45
HKPLR R v Obscene Articles Tribunal, ex parte Hui Siu-yan 901
R v Obscene Articles Tribunal, ex parte Hui
Siu-yan and others
High CourtObscene Articles Tribunal Appeal No 1 of 1993
Deputy Judge W WongDate of hearing — 28 July 1993Date of judgment — 19 August 1993
Obscene Articles Tribunal — Jurisdiction — Exclusive jurisdic-tion to determine whether articles are obscene or indecent —Whether Tribunal must give reasons why it concluded that arti-cles are obscene or indecent — Application of standards ofmorality — Intent to be published — Control of Obscene and In-decent Articles Ordinance (Cap 390), s 10(1)(c)
Courts — Jurisdiction — High Court — Appeals from ObsceneArticles Tribunal — Decisions on points of law — Powers —Whether High Court has power to order Tribunal to reconsiderits determination on obscenity — Power when Tribunal had erredby considering irrelevant matters, or failed to consider importantor relevant matters — Control of Obscene and Indecent ArticlesOrdinance (Cap 390), s 29
The four appellants had been charged with possession of obscene arti-cles for the purpose of publication, contrary to s 21(1)(b) of the Control ofObscene and Indecent Articles Ordinance (Cap 390). The magistratereferred 166 articles to the Obscene Articles Tribunal to determinewhether the articles were obscene or indecent under s 29(1). The Tribu-nal found nearly all of the articles were either indecent or obscene.
The fourth appellant was a company carrying on the business of col-our separation used in printing publications. Slides and photographswere sent to the company by its overseas customer Scan-Mag A/S forcolour separation. After colour separation, the films, slides and photo-graphs would be returned to its overseas customer, in Sweden. Themagazines to be produced based on the colour separation films were tobe in foreign languages and would not be for local distribution in HongKong.
The other three appellants were the company’s directors.
5
10
15
20
25
30
35
40
45
902 High Court (Deputy Judge W Wong) (1993) 4
Held:
1. The Obscene Articles Tribunal had not given reasons why it con-cluded that the articles were obscene or indecent. It did not statewhat standards of morality its members had applied, though theyfound that the articles were intended to be published (s 10(1)(c)) tothe general public in Sweden without any age limit. (p 906, lines 10–14)
2. Section 29(1) provides that the Tribunal shall have exclusive jurisdic-tion to determine whether any article is obscene or indecent. TheHigh Court cannot determine, as a matter of law, whether an articleis obscene or indecent because to do so would usurp the function ofthe Tribunal. Thus, the High Court cannot reverse a decision or de-termination of the Tribunal. (p 905, lines 18–23)
3. The High Court can only decide on points of law, and order the Tribu-nal to reconsider its determination in the light of its ruling on thosepoints of law. The High Court may find that the Tribunal had erredin considering irrelevant matters or evidence, or failed to considerimportant or relevant matters, and direct the Tribunal accordingly.(p905, lines 31–36)
4. In determining whether an article is obscene or indecent, the stand-ard of morality of the place the article is intended to be published hasto be considered. In the absence of such evidence the standards ofmorality of Hong Kong are to be applied. (p 907, lines 5–14)
5. The standards of acceptance of those articles in the Swedish commu-nity, where the articles were to be sent, were a material factor, andshould have been given serious consideration in the Tribunal’s deter-mination of the obscenity or otherwise of the articles. The Tribunaldid not state reasons for its obscenity finding, and it was likely thatthe Tribunal had erred in its findings by failing to give sufficientconsideration to the standards of acceptance of the articles in theSwedish community, because they could not have been deemed ob-scene or indecent in Sweden if they could be obtained easily in publicthere. (p 907, lines 20–25)
K Kwok QC & Yeung Ming Tei (Messrs Paul CW Tse & Co), for theappellants.
SH Kwok (of the Attorney General’s Chambers), for respondent.
5
10
15
20
25
30
35
40
45
HKPLR R v Obscene Articles Tribunal, ex parte Hui Siu-yan 903
The following case and materials were referred to in the judgment:
Gold Star Publications Ltd v DPP [1981] 2 All ER 257
Control of Obscene and Indecent Articles Ordinance (Cap 390), ss 21(1)(b),29(1), 30
Deputy Judge W Wong delivered the following judgment:
This is an appeal against the decision of the Obscene Articles Tribunal(the Tribunal), pursuant to s 30 of the Control of Obscene and IndecentArticles Ordinance (Cap 390).
The four appellants were charged with possession of obscene articlesfor the purpose of publication, contrary to s 21(1)(b). The magistratereferred the articles involved to the Tribunal to determine whether thearticles were obscene or indecent under s 29(1).
There were altogether 166 articles sent to the Tribunal for examina-tion and the Tribunal found nearly all of the articles were either indecentor obscene.
The fourth appellant is a company carrying on the business of colourseparation to be used in printing of publications. The other three appel-lants are its directors.
Slides and photographs were sent by its overseas customer Scan-MagA/S for colour separation. After colour separation the colour separationfilms together with the slides and photographs would be returned to itsoverseas customer.
The magazines to be produced based on the colour separation filmswould be in foreign languages and would not be for local distribution.
The appellants called four witnesses at the hearing of the Tribunal togive evidence as to the role [of] the fourth appellant [...] and the even-tual distribution of the finished product from the colour separations inSweden and other Scandinavian countries. The Swedes, including MrDimbead, General Manager of the Swedish Chamber of Commerce inHong Kong, gave evidence to the effect that the end products from thosecolour separations would be sold in department stores, bookstalls, gasstations and newspaper stands without any restrictions. There are notless than 22 such magazines in Sweden. Those magazines can be ob-tained easily by the general public of all ages without restrictions orintervention by the authorities. They are not against the Swedish PenalLaw and have a wide circulation amounting to 20% in the volume of themagazine market in Sweden.
The Tribunal after hearing the evidence came to the following find-ings of fact:
5
10
15
20
25
30
35
40
45
904 High Court (Deputy Judge W Wong) (1993) 4
“The Tribunal heard the evidence given by a Swedish lawyer, the generalmanager of the Swedish Chamber of Commerce in Hong Kong, and adirector of Scandinavian Publishing Groups A/S, witnesses called by De-fence. From their evidence, the Tribunal is satisfied that the end products,viz., magazines similar to those submitted to the Tribunal and marked asExhibits p.167 to p.174, printed from some of the articles the subjectmatters of the charge, are placed on sale at convenient public places andreadily available to the Swedish general public of all ages without anyintervention from or by the authorities.
From the evidence of the 3rd defendant, the Tribunal is satisfied thatthe slides, P1 to P30, and other original editorial material, were receivedfrom Sweden by the 4th defendant (the limited company), who then bycertain process turned the slides into what is known as colour separationfilms, P31 to P43 etc., and that the colour separation films and all materialsupplied would have been returned by the 4th defendant to Sweden for theprinting of pornographic magazines except for the intervention in this caseof the Customs and Excise Department.
The Tribunal is satisfied that as regards section 10(1)(c), the persons orclass of persons, or age groups of persons to or amongst whom the articlesare intended to be published are the general public in Sweden, withoutany age limit, either upward or downward.”
The members of the Tribunal having satisfied themselves with thefinding above, went on to state that:
“The Tribunal, therefore, having heard Counsel for prosecution and de-fence and bearing in mind the guidance set down in s. 10(1), where appli-cable makes the following determination.”
Section 10 states:
“(1) In determining whether an article is obscene or indecent or whetherany matter publicly displayed is indecent, or in classifying an article, aTribunal shall have regard to —(a) standards of morality, decency and propriety that are generally ac-
cepted by reasonable members of the community, and in relation theretomay, in the case of an article, have regard to any decision of a censorunder section 10 of the Film Censorship Ordinance 1988 (Cap. 390) inrespect of a film within the meaning of section 2(1) of that Ordinance;(replaced 25 of 1988 s. 33)
(b) the dominant effect of an article or of matter as a whole;(c) in the case of an article, the persons or class of persons, or age groups
of persons, to or amongst whom the article is, or is intended or islikely to be, published;
(d) in the case of matter publicly displayed, the location where the matter
5
10
15
20
25
30
35
40
45
HKPLR R v Obscene Articles Tribunal, ex parte Hui Siu-yan 905
is or is to be publicly displayed and the persons or class of persons, orage groups of persons likely to view such matter; and
(e) whether the article or matter has an honest purpose or whether itscontent is merely camouflage designed to render acceptable any partof it.
(2) The opinion of an expert as to any of matters to which a Tribunalmust or may have regard under subsection (1) may be admitted in anyproceedings before a Tribunal either to establish or negative that matter.”
Section 30(1) states:
“Any party to any proceedings before a Tribunal may appeal to the HighCourt against a decision of that Tribunal on a point of law by giving noticeof appeal in writing setting out the grounds of that appeal to the Registrarwithin 14 days of that decision.”
Since s 29(1) states that the Tribunal shall have exclusive jurisdictionto determine whether any article is obscene or indecent, in my judg-ment, the High Court cannot reverse a decision or determination of theTribunal because the decision of the Tribunal is a decision of its mem-bers two of whom are adjudicators chosen from members of public andhence represent the opinion of the public. My view is fortified by s31(1)(a) which states:
“31. In the case of any appeal under section 30 —(a) the High Court may confirm the decision of the Tribunal or may order
it to re-hear or re-open the proceedings to be determined in accordancewith the point of law decided by it.”
In other words the High Court can only decide on points of law andorder the Tribunal to reconsider its decision or determination in thelight of its ruling on those points of law. It can, say, indicate that theTribunal had erred in taking into consideration irrelevant matters orevidence or failed to consider some important or relevant matters anddirect the Tribunal accordingly. I do not think the High Court can deter-mine as a matter of law whether an article is obscene or indecent becauseto do so the High Court would be usurping the function of the Tribunal.In view of s 29(1) it would be contrary to the intention of the legislationto do so.
In the present case the Tribunal after having made the findings that:
(1) the originals and the colour separations would have been returnedto Sweden but for the intervention of the Customs & Excise Depart-ment;
5
10
15
20
25
30
35
40
45
906 High Court (Deputy Judge W Wong) (1993) 4
(2) magazines with similar articles (subject matters of the Tribunal’sdecision) are placed on sale at convenient public places and readilyavailable to the Swedish general public of all ages without any inter-vention from or by the authorities;
(3) the persons or class of persons, or age groups of persons to or amongstwhom the articles are intended to be published are the general pub-lic in Sweden without any age limit, either upward or downward.
It had not given any reasons as to why it came to the conclusion thatthose articles were obscene or indecent. It did not state what standardsof morality (s 10(1)(a)) its members applied, bearing in mind that theycame to the finding that those articles are intended to be published(s10(1)(c)) to the general public in Sweden without any age limit.
In Gold Star Publications Ltd v DPP [1981] 2 All ER 257, 259 perLord Wilberforce:
“Obscenity, viz tendency to deprave or corrupt persons likely to read therelevant matter is relative.”
He went on (at 259):
“In my opinion it has to be accepted that in some cases the magistrateswill not be able to form any opinion on this matter. In such cases, since thecourt has to be satisfied that the articles are obscene (see s 3(3)), it wouldhave to release them. In other cases there might be evidence before themeither way: that the articles would not tend to deprave or corrupt likelyreaders in the country of destination, or that they would. Then they wouldhave to decide on the evidence.”
At 260 Lord Wilberforce went on,
“These findings to my mind show both that the Act is workable as regardsexports, and that the court properly applied its mind to the probable effectof the articles on likely readers.”
In the judgment of Lord Roskill he said (at 265):
“As Lord Wilberforce pointed out in Deputy of Public Prosecutions v Whyte[1972] 3 All ER 12 at 17, [1972] AC 849 at 860 and again in Deputy ofPublic Prosecutions v Jordan [1976] 3 All ER 775 at 778, [1977] AC 699 at717, s 1 is directed to ‘relative obscenity’, that is, obscenity relative tolikely readers or other likely recipients of the article in question. It hasthus become important in these cases to determine who are the likelyreaders or customers, for it is only when that class or those classes have
5
10
15
20
25
30
35
40
45
HKPLR R v Obscene Articles Tribunal, ex parte Hui Siu-yan 907
been sufficiently identified that the next question arises, namely whetherthe allegedly offending article will ‘tend to deprave and corrupt persons’who form a significant part of that class or of those classes.”
I am in agreement with both Lord Wilberforce and Lord Roskill. Inmy judgment when the Tribunal finds on facts that the offending articleis intended to be published in places other than Hong Kong, in theabsence of any evidence as to the moral standard of those places themoral standard of Hong Kong should be the guideline in the determina-tion by the Tribunal because Hong Kong is a very cosmopolitan city andstandards of morality here are neither too loose nor too restricted. How-ever, when there is evidence as to the standards of morality of the placewhere the article is intended to be published, then in accordance with s10(1) that should be taken into consideration and given due weight.
In the present case, evidence were given by three Swedes as to thestandards of acceptance of those articles in their community. In my viewthis is a material factor which should be given serious considerationwhen the Tribunal determines the obscenity or otherwise of those arti-cles.
There is no information as to how the Tribunal came to its decision,and in view of the evidence presented, it is likely that the Tribunal haderred in its findings by failing to give sufficient consideration to thestandard of acceptance of those articles in the Swedish Community,because they could not have been deemed obscene or indecent in Swedenif they can be obtained easily in public there.
For reasons above I direct the Tribunal to re-open the proceedingsand determine again whether the articles are obscene or indecent ac-cording to the guidelines laid down in s 10(1) by taking into considerationthe moral standards of the place where they are intended to be pub-lished, ie Sweden.
Mr Kwok for the appellants invited me to reverse the finding of theTribunal and substitute my own finding. As I have already set out myreasons earlier as to why the High Court cannot as a matter of lawdetermine whether an article is obscene or indecent, his application forsuch order is refused.
Costs reserved.
5
10
15
20
25
30
35
40
45
908 High Court (Leonard J) (1994) 4
R v Ng Ming
High CourtMag App No 1001 of 1993
Leonard JDate of hearing — 8 June 1994Date of judgment — 28 June 1994
Bill of Rights — Right to obtain the attendance and examinationof witnesses on one’s behalf — Whether unavailability of witnessesdue to their repatriation to China from Hong Kong was a viola-tion of right — Procedure to be followed — Hong Kong Bill ofRights Ordinance (Cap 383), art 11(2)(e)
Criminal Law and Procedure — Accused convicted subject to fur-ther argument on Bill of Rights issues — Whether conviction valid
Criminal Law and Procedure — Witnesses — Repatriation of de-fence witnesses to China before trial — Whether witnesses couldbe detained under provisions providing for detention of prosecu-tion witnesses — Whether Director of Immigration could detainthem or permit them to enter into a recognizance — Whetherwitness summons necessary for Director of Immigration to detainwitnesses with their consent pending trial — Immigration Ordi-nance (Cap 115), ss 32(4), 36
Immigration — Unauthorized entrants — Whether Director ofImmigration has power to permit unauthorized entrants to stayin Hong Kong to testify on behalf of defence at criminal trial —Appropriate procedures — Immigration Ordinance (Cap 115), s13
The appellant had been one of three illegal immigrants arrested by thepolice. When he was searched, a knife was found in his possession.When a police officer told the appellant that he was arresting him forbeing in possession of an offensive weapon, the appellant, who had beenresisting, pushed the officer away and ran off.
The appellant was charged with possession of an offensive weapon,contrary to s 17 of the Summary Offences Ordinance (Cap 228) andresisting police officers in the execution of their duty, contrary to s 63 ofthe Police Force Ordinance (Cap 232). The first charge was subsequentlyamended to allege an offence of possession of an offensive weapon con-
5
10
15
20
25
30
35
40
45
HKPLR R v Ng Ming 909
trary to s 33 of the Public Order Ordinance (Cap 245). Charges werealso brought against the other two persons, but these were later dropped.
The other two men wished to give evidence on behalf of the appellantand were willing, if necessary, to be held in detention in order to do this.Counsel for the appellant contacted the prosecution and the immigrationauthorities, requesting that the two witnesses be detained pursuant to s32(4) of the Immigration Ordinance. On 22 October 1993, when this re-quest was refused on the ground that power conferred by that sectionapplied only to prosecution witnesses, the appellant’s counsel sought per-mission from the Director of Immigration under s 13 of the ImmigrationOrdinance for the two men to remain in Hong Kong for the purpose ofgiving evidence at the trial. However, the witnesses were repatriated on24 October 1993, unbeknown to counsel for the Crown and for the defence.
The appellant was convicted by the magistrate “subject to Bill of RightsOrdinance arguments”. The appellant did not pursue the argumentfollowing the conviction, but subsequently appealed against conviction.
Held (allowing the appeal):
1. It is not possible to convict a person subject to further argument. Allrelevant issues must be decided before verdict. Accordingly, the mag-istrate had erred in law in entering a provisional conviction subject toarguments under the Hong Kong Bill of Rights Ordinance. (p 913,lines 41–43)
2. A convicted person has a right of appeal from a magistrate’s decisionwhether or not he first applies for a review. By declining to argue theBill of Rights issue after he had been convicted, the appellant was, ineffect, declining to apply to the magistrate to review his decision,something he was perfectly entitled to do. It did not prevent him fromraising the Bill of Rights issue on appeal. (p 914, lines 32–34)
3. The Director of Immigration had power under s 13 of the ImmigrationOrdinance to permit unauthorized entrants to remain temporarily inHong Kong to give evidence, either on recognizance under s 36 or, ifthe person agreed, in custody. The exercise of this power did notdepend upon the production of a witness summons, which would inpractical terms add nothing to a letter sent by a solicitor of the Su-preme Court to the Director of Immigration stating that he desired tocall an unauthorized entrant as a defence witness. Attorney General vPham Si Dung (No 2) (1993) 4 HKPLR 813, Liew Kar-seng v Gover-nor-in-Council [1989] 1 HKC 215 and R v Governor of RichmondRemand Centre, ex p Asghar [1971] 1 WLR 129, distinguished. (p 915,lines 40–42; p 916, lines 4–10)
5
10
15
20
25
30
35
40
45
910 High Court (Leonard J) (1994) 4
4. If the Director of Immigration has a policy that he will not accept theword of a solicitor of the Supreme Court that an unauthorized entrantis required as a defence witness and if, in pursuance of that policy, hedeports that unauthorized entrant before the trial, the prosecution maywell find that the trial court will stay the proceedings on the groundthat the Crown has denied the defendant his right under article 11(2)(e)to obtain the attendance of his witnesses. In the present case there wasprima facie evidence of a denial of the appellant’s rights under article11(2)(e) and if the magistrate had dealt with that issue at the appropri-ate time, there might not have been a trial. (p 916, lines 13–23)
The following cases and materials are referred to in the judgment:
Attorney General v Pham Si Dung (No 2) (1993) 4 HKPLR 813Liew Kar-seng v Governor-in-Council [1989] 1 HKC 215, [1989] 1 HKLR
607R v Governor of Richmond Remand Centre, ex parte Asghar [1971] 1
WLR 129
Hong Kong Bill of Rights Ordinance (Cap 383) s 8, art 11(2)(e)Immigration Ordinance (Cap 115) ss 13, 32(4), 36, 38(1)(b)Police Force Ordinance (Cap 232) s 63Public Order Ordinance (Cap 245) s 33
M Lunn QC and R Wong (Director of Legal Aid), for the appellant.S R Bailey (Crown Prosecutor), for the respondent.
Leonard J delivered the following judgment:
The appellant was convicted by a magistrate after a trial on the follow-ing charges:(a) possession of an offensive weapon contrary to s 33 of the Public
Order Ordinance (Cap 245); and(b) resisting police officers in the execution of their duty, contrary to s
63 of the Police Force Ordinance (Cap 232).
In allowing the appellant’s appeal against conviction, I said that I wouldgive my reasons later, which I now do.
When he appeared before the magistrate, the appellant pleaded guiltyto the offence of remaining in Hong Kong without authority, contrary tos 38(1)(b) of the Immigration Ordinance (Cap 115).
The history of the case is as follows:
5
10
15
20
25
30
35
40
45
HKPLR R v Ng Ming 911
On 30 September 1993, police officers arrested three male illegal im-migrants, including the appellant. It was the prosecution’s case thatwhen the appellant saw the police officers, he and his companions movedoff. That evidently aroused the suspicion of the police who pursued them.PC 51099 (PW1) and PC 47049 (PW2) intercepted the appellant and,after a struggle, searched him, finding a knife in his waistband, con-cealed by his T-shirt. The knife was in a sheath. PW1 told the appellantthat he was arresting him for possessing an offensive weapon, where-upon the appellant, who had continued to resist, pushed PW1 away andran off. He was caught after moving five to six feet, subdued and ar-rested for resisting arrest as well as possessing an offensive weapon.
The other two illegal immigrants, who were also caught, were eachcharged with resisting a police officer and remaining in Hong Kongwithout authority.
All three men came before a magistrate on 4 October 1993. At thattime, charge (a) against the appellant alleged an offence of possessingan offensive weapon contrary to s 17 of the Summary Offences Ordi-nance. All three were remanded in custody until 19 October, when theprosecution withdrew the charges against the other two defendants.Charge (a) was amended to allege the s 33 offence.
After the appellant’s pleas had been taken, the duty lawyer informedthe magistrate that the two other men wished to give evidence on behalfof the appellant. He applied for a speedy trial and for the detention ofthe two men who had said that they wished to be witnesses for theappellant. Having heard that, the magistrate appointed 4 November1993, some 16 days later, for the hearing and he wrote this in hisminutes of the proceedings:
“I note that D2 and D3 whose cases have been dropped may be required togive evidence for the defence.”
It is not surprising that he made no order for the detention of thepotential witnesses for he had no power so to do.
Three days later, on 22 October 1993, the duty lawyer came beforethe same magistrate, whom he informed that the appellant was in LaiChi Kok Reception Centre, desired to call D2 and D3 to give evidenceand wanted a letter from the magistrate to the effect that they must notbe repatriated. Not surprisingly, the magistrate pointed out that thatwas not the court’s business. He said that the availability of D2 and D3was a matter for the duty lawyer scheme and for the Immigration De-partment.
In order to complete the story, I turn from the magistrate’s record tothe unchallenged affidavit evidence of Mr Joseph Ho, assistant chiefcourt liaison officer of the Eastern Court Liaison Office of the DutyLawyer Service, who acted as “instructing solicitor” for the appellant.
5
10
15
20
25
30
35
40
45
912 High Court (Leonard J) (1994) 4
On the afternoon of 22 October, he went to see D2 and D3 at Wan ChaiPolice Station, and he took statements from them. They are very shortand in identical terms. Each statement reads:
“I . . . saw Ng Ming had not push (sic) the police and ran (sic) away, also Idid not see how the police conducted (sic) a body search on Ng Ming andthe discovery of the knife.”
Mr Ho formed the view that they were material witnesses. He had a hand-written note written by the duty lawyer who had appeared before themagistrate on 19 October. It said that D2 and D3 had agreed to be fur-ther detained to be witnesses for the appellant as long as there was aspeedy trial, that a speedy trial date had been granted, but that the mag-istrate, refusing to make a body order against D2 and D3, had suggestedthat witness summonses be served upon them. The duty lawyer suggestedthat Mr Ho contact Miss Crabtree in the Attorney General’s Chambersasking for the Attorney General to apply for the further detention of D2and D3 under s 32(4) of the Immigration Ordinance (Cap115).
Mr Ho wrote on 20 October 1993 to the Superintendent of the VictoriaImmigration Centre saying that D2 and D3 would like to be detained forthe sake of giving evidence at the trial. He invited the Superintendent tomake arrangements for their detention under s 32(4) of the ImmigrationOrdinance (Cap 115). Mr Ho sent the letter on the afternoon of 21October to Wan Chai Police Station on the understanding that the policewould deliver it to the Victoria Immigration Centre when D2 and D3were taken there for detention.
On the following morning, 22 October, Mr Ho was told by Miss Crabtreeof the Attorney General’s Chambers, that s 32(4) of the ImmigrationOrdinance did not apply to defence witnesses. Then he was told by anofficer of the Victoria Immigration Centre that a memorandum from thecourt was required for the detention of D2 and D3. That explained whythe duty lawyer on that day made the unsuccessful application to themagistrate for a letter from the court.
Mr Ho wasted no time. On that very day, letters from D2 and D3asking for permission under s 13 of the Immigration Ordinance to re-main in Hong Kong for the purpose of giving evidence at the trial (thenonly 12 days away) were delivered to the Director of Immigration.
There can be no doubt that by then the Attorney General’s Chambersand the Immigration Department well knew that the appellant wantedto call D2 and D3 at his trial, and that D2 and D3 had indicated theirwillingness to remain in Hong Kong in order to testify.
According to Mr Ho, D2 and D3 were transferred to a holding centreand repatriated to the People’s Republic of China before the trial. Thedefence did not know that, however, until 4 November, when the dutylawyer said in court that he needed to know where they were. It was
5
10
15
20
25
30
35
40
45
HKPLR R v Ng Ming 913
only after the case had been stood down twice for enquiries to be madethat the court prosecutor was able to tell the magistrate that it had,with difficulty, been ascertained that D2 and D3 had been moved to SanUk Ling Detention Centre, and he suspected that they had been de-ported. Evidently, it had not been possible to discover where they were.This court has been informed by Mr Bailey, Senior Assistant CrownProsecutor, appearing for the respondent that they were repatriated on24 October 1993.
After hearing the duty lawyer’s account of the efforts Mr Ho hadmade (but there being no mention of the two letters written by D2 andD3 to the Director of Immigration), the magistrate said, “cannot see anyreason why one can say an abuse of process.”
The duty lawyer said, “I agree”.The trial then proceeded. At the close of the Crown’s case, when there
was evidence that D2 and D3 had been with the appellant at the mate-rial time, the magistrate said, according to his note:
“Bill of Rights — art 11(2)(e). May be a point here for him. Will have torule a case to answer.”
The duty lawyer and the magistrate then had a discussion and themagistrate indicated that the case could go on, there being nothing toprevent the appellant from arguing later that the proceedings were fun-damentally flawed.
The appellant gave evidence to the effect that he had been framed.The duty lawyer told the magistrate that other witnesses “were notavailable as repatriated.” He made a closing submission on the facts andthe magistrate said, without inviting submissions on the Hong Kong Billof Rights Ordinance point:
“Convicted on charges (a) and (b) subject to Bill of Rights Ordinance argu-ments.”
The magistrate then asked whether the duty lawyer had instructions tomake submissions.
Having himself raised the Bill of Rights question at the outset, themagistrate should have invited submissions on that question before hear-ing any evidence. Had he decided to stay the proceedings, there wouldhave been no trial and no conviction. Had he decided otherwise, he wouldhave been free to proceed to conviction. What he in fact did was to purportto enter a provisional conviction on each charge. For that reason alone, theappeal was bound to succeed. It is not possible to convict a person subjectto further argument. All relevant issues must be decided before verdict.
At that stage, the appellant knew that the magistrate had disbelievedhim. It is hardly surprising that the appellant then instructed the duty
5
10
15
20
25
30
35
40
45
914 High Court (Leonard J) (1994) 4
lawyer that he did not wish to pursue the Bill of Rights argument beforethe magistrate.
The hearing then proceeded to mitigation and sentence.It must be said that after reflection, the magistrate said in his state-
ment of findings:
“Although I was certain on the evidence before me of the appellant’s guilt,I remain uneasy about the fairness of the trial process for him.”
The first ground of appeal was that the convictions were unsafe andunsatisfactory, the trial having been conducted in breach of the rightsgiven to the appellant by s 8 and article 11(2)(e) of the Hong Kong Bill ofRights Ordinance (Cap 383).
Article 11(2) reads, so far as is material in the present case, as fol-lows:
“In the determination of any criminal charges against him, everyone shallbe entitled to the following minimum guarantees, in full equality —(e) . . . to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him.”
The basis of the first ground of appeal was of course the removal fromHong Kong by the Crown of two persons whom, to the Crown’s knowl-edge, the appellant wished to call as witnesses for the defence and whowere willing to remain in order to testify.
Mr Bailey submitted that it was not open to the appellant to takethat point since the appellant, according to him, had abandoned it at thetrial. In fact, the record shows that the appellant only expressly declinedto argue the Bill of Rights point at the time when he had already beenconvicted and the trial of the issue of guilt or innocence was over. Hewas declining, in effect, to apply to the magistrate to review his decision.He was perfectly entitled to take that line. A convicted person has aright of appeal from a magistrate’s decision whether or not he firstapplies for a review.
It is true that the appellant did not seek a stay of proceedings duringthe trial, but the duty lawyer had suggested to the trial magistrate that heshould adjourn after the defendant’s evidence for the Bill of Rights ques-tion to be considered. The magistrate’s reply, according to the record, was:
“In view of the fact that no possibility of getting the 2 DWs here, wouldn’tit be best to reserve your position on Bill of Rights argument and go onwith available evidence? Still nothing stopping you arguing that processfundamentally flawed.”
He did not say when that point might be argued.
5
10
15
20
25
30
35
40
45
HKPLR R v Ng Ming 915
I decided that the appellant was entitled to argue his first ground andthat Mr Ho’s affidavit should be before the court. Its contents were notdisputed.
Mr Bailey then submitted that the Crown had no power to detain thewitnesses for the purpose of giving evidence for the defence. He referredto the decision in Attorney General v Pham Si Dung (No 2) (1993) 4HKPLR 813, which was to the effect that s 32 of the Immigration Ordi-nance only entitles the Attorney General to apply for the detention of aperson against whom a removal order is in force, for the purpose ofgiving evidence for the prosecution. Mr Bailey also relied upon the deci-sion of Godfrey J in Liew Kar-seng v Governor-in-Council [1989] 1 HKC215, [1989] 1 HKLR 607, in which the judge held that the detention of aperson “pending” his removal pursuant to a deportation order could notbe justified after the expiration of what was, in all the circumstances ofthe case, a reasonable time in which to execute the order. He also citedR v Governor of Richmond Remand Centre, ex p Asghar & Anor [1971] 1WLR 129 as authority for the proposition that a person detained pend-ing a trial was not detained “pending removal”. It was argued by MrBailey that, in view of the authorities, the Crown had no power furtherto detain D2 and D3.
Those cases all contemplate the situation where a person is detainedagainst his will. The present case is concerned with people who wereperfectly willing to remain in Hong Kong in order to give evidence forthe defence if only the Director of Immigration would delay their depor-tation. The magistrate had fixed an early hearing date and theImmigration Department had been apprised of the situation. D2 and D3had applied in writing for permission under s 13 of the ImmigrationOrdinance to remain in Hong Kong.
Following an adjournment of the appeal hearing, Mr Bailey changedhis ground. Having received further instructions, he was able to say thatthough it had not been the practice of the Director of Immigration to doso, he does have power under s 13 of the Immigration Ordinance toallow unauthorized entrants to remain temporarily in Hong Kong. TheDirector can take a recognizance under s 36 of the Immigration Ordi-nance, but will not do so where the unauthorized entrant has no firmlink with Hong Kong, such as a fixed abode. Where he is not willing totake a recognizance, he seeks the agreement of the unauthorized en-trant to remain in Hong Kong in custody. If the unauthorized entrantagrees, there is no problem because there is no question of the personbeing held against his will. It is clear that it was open to the Director ofImmigration in the present case to permit the unauthorized entrants tostay, but their application was apparently ignored.
Mr Bailey indicated that some formal notification would be requiredfrom the defence before the Director of Immigration would consider ne-gotiating terms upon which an unauthorized entrant could be permitted
5
10
15
20
25
30
35
40
45
916 High Court (Leonard J) (1994) 4
to remain for the purpose of giving evidence for the defence. He saidthat it would be necessary for the defence to produce witness sum-monses in relation to the unauthorized entrants. I can see no justificationwhatever for such a requirement. A witness summons does not affectthe Director of Immigration’s powers in any way. A solicitor is an officerof the Supreme Court. All he has to do to obtain a witness summons isto tell a magistrate that the unauthorized entrant is likely to give mate-rial evidence on behalf of the defendant and the summons will normallybe forthcoming. The production of a witness summons in practical termsadds nothing to a letter sent by a solicitor of the Supreme Court to theDirector of Immigration stating that he desires to call an unauthorizedentrant as a defence witness.
If the Director of Immigration has a policy that he will not accept theword of a solicitor of the Supreme Court that an unauthorized entrant isrequired as a defence witness and if, in pursuance of that policy, hedeports that unauthorized entrant before the trial, the prosecution maywell find that the trial court will stay the proceedings on the groundthat the Crown has denied the defendant his right under s 8 [article 11]to obtain the attendance of his witnesses. Though it is not necessary forme to make a finding on the point, there is prima facie evidence of adenial of the appellant’s rights under s 8 [article 11] in the present caseand if the magistrate had dealt with that issue at the appropriate time,there may not have been a trial.
The second ground of appeal was that the duty lawyer scheme hadbeen guilty of gross negligence in not applying for witness summonses.The issue of witness summonses would not have made a jot of differenceto the powers of the Director of Immigration, and there is no reasonwhatever to suppose that, in the absence of witness summonses, D2 andD3 would have failed to turn up to give evidence if the Director ofImmigration had let them stay in Hong Kong for that purpose. Thefailure to obtain witness summonses was not gross negligence. No indi-cation had been given to the duty lawyer scheme by the Director ofImmigration that he required the production of witness summonses andin any event the s 13 applications should have been considered on theirmerits.
The appeal against the two convictions having been allowed on thebasis that the magistrate had brought in provisional verdicts, the appel-lant appealed, with leave, against the sentence of 15 months’imprisonment imposed upon him in relation to charge (e). It was com-mon ground that he would not have been charged with that offence if hehad not been charged with charges (a) and (b). He had been in custodyfor over seven months when his appeal against sentence was heard. Inthe circumstances, the appeal was allowed and his immediate dischargewas ordered.
5
10
15
20
25
30
35
40
45
HKPLR Re Tin Sau-kwong 917
Re Tin Sau-kwong
Magistrates CourtWrit No W1311 of 1994
Mr G A Andrée-WiltensDate of ruling — 23 May 1994
Bill of Rights — Application — Pre-existing legislation — Whetherlegislation admits of construction consistent with Bill of Rights— Interpreting reference to suspicion as meaning reasonable sus-picion — Repeal to the extent of any inconsistency with Bill ofRights — Excision of words in order to render remaining wordsconsistent with the Bill of Rights — “suspected” — “alleged” —“ex parte” — Bill of Rights Ordinance (Cap 383), ss 3(1), 3(2), —Prevention of Bribery Ordinance (Cap 201), s 17A(1)
Bill of Rights — Equality before the courts and tribunals — Rightof access to court — Whether requirement that person apply firstto ICAC Commissioner before applying to court violated right —Bill of Rights, art 10 — Prevention of Bribery Ordinance (Cap201), ss 17A, 17B
Bill of Rights — Liberty of movement — Deprivation of traveldocument of a person under investigation by the ICAC — Whetherreasonable suspicion required — Whether power can be invokedon an alleged offence — “alleged” — “suspected” — “reasonablesuspicion” — Bill of Rights, art 8 — Prevention of Bribery Ordi-nance (Cap 201), s 17A
Criminal procedure — Order to surrender travel documents —Requirement that person apply to ICAC Commissioner for returnconsistent with Bill of Rights — Requirement to show undue hard-ship before court — “undue hardship” — Prevention of BriberyOrdinance (Cap 201), s 17B(5)
Section 17A(1) of the Prevention of Bribery Ordinance (Cap 201) pro-vides that a magistrate may, upon an ex parte application by theCommissioner of the ICAC, order a person who is “the subject of aninvestigation in respect of an offence alleged or suspected to have beencommitted by him” to surrender his or her travel documents to theCommissioner. Section 17A(6B) provides that, where a notice ordering aperson to surrender travel documents has been served on the person
5
10
15
20
25
30
35
40
45
918 Magistrates Court (Mr G A Andrée-Wiltens) (1994) 4
and the notice has been complied with, the notice “shall not thereafterbe revoked or withdrawn.” Section 17B provides that the person affectedhas a right to apply to the Commissioner for the return of his traveldocuments and the Commissioner may accede to the request, decline, oragree to it subject to the person’s agreeing to certain conditions. Wherethe Commissioner refuses to return the travel documents or is preparedto do so only subject to conditions, the person affected may appeal to amagistrate pursuant to s 17B(5). The magistrate may order the returnof the documents absolutely or upon conditions.
The applicant was arrested by the ICAC, and the ICAC subsequentlyrequired him to obtain an order under s 17A of the Prevention of Brib-ery Ordinance ordering that he surrender his travel documents. Theapplicant subsequently applied, pursuant to s 17B, to the Commissionerfor the return of his passport, a request declined by the Commissioner.The Commissioner shortly thereafter offered to return the applicant’spassport if the applicant accepted certain conditions.
The applicant thereupon applied to a magistrate for the unconditionalreturn of his passport under s 17B(5) of the Ordinance. He argued thatss 17A(1) and 17A(6B) of Cap 201 had been repealed in part by the HongKong Bill of Rights Ordinance (Cap 383). He argued that the procedureconstituted an unjustifiable limitation on his right to liberty of move-ment guaranteed by article 8 of the Bill of Rights.
He further argued that requiring him first to apply to the Commis-sioner for the return of his travel documents rather then permitting himto apply directly to a court meant that his right to equality before thecourts and his right of access to court guaranteed by article 10 wasinfringed, particularly when compared with other ex parte procedures,under which an inter partes remedy could be sought immediately.
Held (dismissing the Bill of Rights challenge and ordering thereturn of the applicant’s travel documents on conditions):
1. While s 17A clearly limits the enjoyment of the right to liberty ofmovement enshrined in article 8(2), the power is nevertheless justifi-able, provided it is not to be exercised on the basis of the very lowthreshold of a mere allegation of the commission of an offence by asuspect. The power is akin in many respects to the issuing of searchwarrants, which are granted ex parte on the basis of reasonable sus-picion. In order to bring this section into conformity with article 8(2),the word “alleged” in s 17A(1) should be excised and the suspicionreferred to in the subsection should be interpreted as meaning “rea-sonable suspicion”. (p 920, line 32 to p 921, line 22)
Re Nattrass (1994) 4 HKPLR 234, followed.
5
10
15
20
25
30
35
40
45
HKPLR Re Tin Sau-kwong 919
2. Requiring a person whose travel documents had been surrenderedfirst to apply to the Commissioner before permitting the person tobring the matter before a court involved a delay in his enjoyment ofthe right of access to court, but that delay was in no way unfair. TheCommissioner could be expected to deal with such matters expedi-tiously and, in a case involving undue delay, there was nothing toprevent a magistrate from deeming the Commissioner to have refusedan application and then dealing with the matter under s 17B(5).(p923, lines 5–8)
3. There was sufficient evidence to establish reasonable suspicion unders 17A(1) and the applicant had failed to establish on the balance ofprobabilities, as was required by s 17B(5), that he would suffer unrea-sonable hardship if the order were to remain in force. (p 923, lines44–45)
G J X McCoy, for the applicant.I McWalters, for the respondent.
The following cases and materials are referred to in the ruling:
Ashingdale v United Kingdom, European Court of Human Rights, Judg-ment of 28 May 1985, Series A, No 93, 7 EHRR 528
Golder v United Kingdom, European Court of Human Rights, Judgmentof 21 February 1975, Series A, No 18, 57 ILR 200, 1 EHRR 524
Kaplan v United Kingdom, European Commission of Human Rights, Re-port of 17 July 1980, Application No 7598/76, 21 D & R 5, 4 EHRR 64
Philis v Greece, European Court of Human Rights, Judgment of 27 Au-gust 1991, Series A, No 209, 13 EHRR 741
R v Man Wai-keung (No 2) (1992) 2 HKPLR 164, [1992] 1 HKCLR 89R v Sin Yau-ming (1991) 1 HKPLR 88, [1992] 1 HKCLR 127Re Nattrass (1994) 4 HKPLR 234
Hong Kong Bill of Rights Ordinance (Cap 383), ss 3(1), 3(2)Hong Kong Bill of Rights, arts 8, 10Prevention of Bribery Ordinance (Cap 201), ss 17A, 17B
Mr Andrée-Wiltens delivered the following ruling:
Mr Henfrey Tin Sau-kwong was arrested by the Independent Commis-sion Against Corruption (ICAC) on 14 March 1994, and released within48 hours on bail of $250,000 on his own recognizance, with a like surety.
5
10
15
20
25
30
35
40
45
920 Magistrates Court (Mr G A Andrée-Wiltens) (1994) 4
On 22 March 1994, when he reported to the ICAC under the terms of hisbail, he refused to have his bail further renewed/extended. He was there-fore released unconditionally.
The following day, on 23 March 1994, the ICAC applied under s 17Aof the Prevention of Bribery Ordinance (Cap 201), for a notice to beissued compelling Mr Tin to surrender his passport to the ICAC. Asupporting “information” was sworn by Mr Godfrey before me, sitting atWestern Magistracy, on 24 March 1994; and following the issue of thesought notice, Mr Tin surrendered his passport later that same day.
Pursuant to s 17B, Mr Tin caused his solicitors to write, on 6 April1994, to the ICAC requesting the return of his passport. A proformareply was issued by the ICAC on 11 April 1994, and on 13 April 1994,this was followed by a further letter stating that the Commissionerwould consider returning the passport to Mr Tin, provided Mr Tin en-tered into conditions, as permitted under ss 17B(2) and (3) — in otherwords, Mr Tin could have his passport back if he agreed to renewing hisearlier bail and additionally agreed to provide the ICAC with his futuretravel itineraries.
Mr Tin now asks me, by way of appeal, to return his passport to himunconditionally, pursuant to s 17B(6). Before I go on to consider themerits of the case, it is necessary for me to deal with two preliminarypoints, namely: (1) whether s 17A(1) is partly repealed by the HongKong Bill of Rights Ordinance (Cap 383); and (2) whether s 17A(6B) isrepealed by the Bill of Rights Ordinance, and if so, what effect does thathave on the operation of the whole of ss 17A and 17B, and in particular,what effect does that have vis-à-vis this application?
The procedure for an application such as this is that all proceedingsshall be heard in chambers: s 17A(6A). Mr McCoy takes no point on thisalbeit that it is prima facie contrary to article 10 of the Bill of Rights. Itake it that he concedes this a permissible derogation from the right to a“public hearing”.
Mr McCoy’s challenge to the validity of s 17A(1) is based on article 8,and he prays in aid the decision of Mr I Carlson in Re Nattrass (1994) 4HKPLR 234. Mr McWalters, quite fairly, concedes that the decision isgood law. I therefore have no difficulty in respectfully concurring withmy learned brother that the words “alleged or” are repealed, and furtherthat a gloss should be put on the word “suspicion”, so that it should beread as “reasonable suspicion”. Those matters apart, s 17A is compatiblewith the Bill of Rights.
Mr McCoy also challenges the validity of s 17A(6B) under articles 8and 10. Article 8 deals with freedom of movement, while article 10 dealswith the right to a fair trial and equality before the courts. There can beno doubt that the operation of ss 17A and 17B may restrict a citizen’sfreedom of movement. However, some restrictions to this right are per-missible, as set out in article 8(3). Mr McCoy, as I understand it, does
5
10
15
20
25
30
35
40
45
HKPLR Re Tin Sau-kwong 921
not challenge the validity of s 17A(6B) in relation to the permittedderogation of protecting public order, but does so on the basis of the lackof consistency between the right to freedom of movement and the rightto equal access to a court coupled with the right to a fair trial underarticle 10.
The scheme of the Ordinance, in relation to the surrender of traveldocuments and the return of the same, has been set forth in Re Nattrass(1994) 4 HKPLR 234. Once a notice has been issued it must be properlyserved. Thereafter, compliance with the notice is mandatory, which isenforced by the provision of powers of arrests for non-compliance. Aperson so arrested then has the option of surrendering his travel docu-ment or facing a minimum period of 28 days imprisonment, unless hecan satisfy the court he has no travel document.
Once a notice has been complied with, then under s 17A(6B) thenotice “shall not thereafter be revoked or withdrawn.” Mr McCoy pointsto these words as showing inequality and unfairness. In my view, theeffect of these words is that a magistrate cannot revoke the notice, andthe Commissioner for the ICAC cannot withdraw it. The appropriateremedy, under the legislation, is for an application to be made to theCommissioner under s 17B(1), and if the result of that still leaves theaffected person aggrieved, an application can be made by way of appealto the magistrate under s 17B(5).
Mr McCoy submits that his client does not have equality of access toa court because of the operation of s 17A(6B) compelling him to first goto the Commissioner before he can have access to a court. This is espe-cially illustrated when this situation is compared with other types of exparte orders. It is only under this legislation, so the argument goes, thatan affected person cannot immediately pursue his remedies inter partes,because he must follow the routes of appeal set out in s 17B. This isunfair and unequal, says Mr McCoy, primarily because of the time ele-ment involved, and it is therefore a breach of both articles 8 and 10.
Mr McWalters counters these points with a contrived and unaccept-able submission — namely that Mr Tin could have refused to complywith the notice in order to gain immediate access to the court. Once hehad gained access, ie having submitted himself to arrest under s 17A(4),he could then seek to set aside the notice. This argument fails to takeinto account that under s 17A(5), Mr Tin would then have beenmandatorily imprisoned for a minimum of 28 days unless he handedover his passport. Should he hand over his passport, then because hehas complied with the notice, s 17A(6B) would bind the court. I cannotaccept that this submission is good law.
Even having rejected Mr McWalters’ submissions, I am not at all surethat Mr McCoy’s are correct.
It is trite law that the Hong Kong courts can consider as authoritativethe decisions of the European Court of Human Rights, the European
5
10
15
20
25
30
35
40
45
922 Magistrates Court (Mr G A Andrée-Wiltens) (1994) 4
Commission of Human Rights, and those of other Commonwealth juris-dictions with entrenched Bills of Rights: R v Sin Yau-ming (1991) 1HKPLR 88, [1992] 1 HKCLR 127. The European Court has held that theright of equality before the courts and of access to a court are not abso-lute: Golder v United Kingdom, European Court of Human Rights,Judgment of 21 February 1975, Series A, No 18, 57 ILR 200, 1 EHRR524; Kaplan v United Kingdom, European Commission of Human Rights,Report of 17 July 1980, Application No 7598/76, 21 D & R 5, 4 EHRR 64;and Philis v Greece, European Court of Human Rights, Judgment of 27August 1991, Series A, No 209, 13 EHRR 741. A margin of appreciationis permitted to member states of the ICCPR which permits some limita-tions to be imposed upon these rights: Ashingdale v United Kingdom,European Court of Human Rights, Judgment of 28 May 1985, Series A,No 93, 7 EHRR 528. The Hong Kong Court of Appeal has specificallyaccepted that limitations are permissible: R v Man Wai-keung (No 2)(1992) 2 HKPLR 164, [1992] 1 HKCLR 89.
Ex parte orders are made for a number of reasons. Mr McCoy sug-gests that s 17A is “unique” in that it is the only situation in which interpartes remedies cannot be immediately pursued — first there must bean application to the Commissioner. This argument has an initial at-traction, but does that deny Mr Tin access to a court? In my view it doesnot. Mr Tin may have somewhat delayed access, but his access is notdenied.
Is that delayed access “unfair”, as that term is used in article 10? Icannot see that it is. There will be some delay, but I cannot envisage theCommissioner being dilatory about the matter. In the event of an unex-pected occurrence or emergency arising, an urgent application wouldundoubtedly be expeditiously dealt with. If there is any suggestion ofundue delay, there appears to me to be nothing to prevent a magistratedeeming the Commissioner to have refused the application due to thepassage of time and to then deal with the matter under s 17B(5).
Does the delay mean that Mr Tin is being unequally treated beforethe court? In my view it does not. In some circumstances delay mayresult in severe repercussions, and therefore inequalities, but I am surethat is not case here. This application came before me on 26 April 1994,and was adjourned on the application of Mr McWalters until 28 April1994. I heard evidence on 28 April 1994 and 29 April 1994. Thereafterthe matter was adjourned, at the request of Mr Tin’s counsel, for writtensubmissions to be made until 3 May 1994. On that day Mr McCoy wasunavailable, and application was made to adjourn the matter until hewas next available — on 16 May 1994. I was specifically told that MrTin knew of the reasons for the adjournment and consented to it. Itherefore allowed the adjournment. On 16 May 1994 I heard final sub-missions, and I handed down short reasons for my decision on 23 May1994. I have outlined at length the course of events to illustrate that
5
10
15
20
25
30
35
40
45
HKPLR Re Tin Sau-kwong 923
there has been a significant passage of time between the commencementof this action and the final determination of it. A not inconsiderableproportion of the delay lies at the feet of the applicant. I also note thatthe Commissioner dealt with the application before him within a week!
It follows from the various determinations I have come to, that s17A(6B) is not inconsistent with the provisions of the Bill of Rights. Itherefore need not go on to consider the possible ramifications of havingfound otherwise.
I have looked closely at the demeanour of the three witnesses calledduring the hearing, and scrutinized the manner in which they testified.I reached individual assessments as to their veracity and credibility. Iconsidered Mr Tin to be rather glib and over-confident in the witnessbox. I consider that he was too assured and cocky and more concernedwith creating an impression of being a successful businessman thantelling the full truth. I found he gave very superficial evidence, espe-cially when he was most ably cross-examined. I determined that he wasnot a good witness and that I should take care before accepting hisevidence.
The manner in which Mr Midgely testified left me in no doubt that hehad pre-conceived ideas about the case and what had transpired — somuch so that he was unable or unwilling to answer what were verystraight-forward questions. His evidence was directed to the “mala fides”of the ICAC, and as will be seen later, I have not found any indication ofimpropriety on the part of the ICAC in this investigation. I did notconsider Mr Midgely’s evidence had any bearing on the issue of whetherMr Tin would suffer undue hardship by the continued deprivation of hispassport.
I was very impressed by Mr Godfrey. He came across as a straight-forward and extremely competent witness. He answered questions directlyand with an obvious desire to assist the court as much as possible. Hewas also very candid, when cross-examined, in conceding points. I hadno doubts at all as to his credibility, veracity or reliability.
There has been a very strong allegation of bad faith on the part of theICAC in general, and by Mr Godfrey in particular. I have heard lengthyevidence about this, seen numerous documentary exhibits and a video-taped recording of an interview, and had the benefit of both oral andwritten submissions. Taking all those matters into consideration, I havereached the very firm conclusion that there is no evidence before me ofany deliberate improprieties against the applicant. While it is undoubt-edly true that the wording of Mr Godfrey’s information, with hindsight,could be improved upon, and expanded, I am satisfied that the docu-ment contained was factually correct, and not in any way intended tomislead.
Considering all the evidence, there is sufficient evidence to establish“reasonable suspicion”, under s 17A(1). Much was made by the applica-
5
10
15
20
25
30
35
40
45
924 Magistrates Court (Mr G A Andrée-Wiltens) (1994) 4
tion of the ICAC’s lack of notification to the court of the effect of ReNattrass (1994) 4 HKPLR 234 and their obligation to have told the courtabout that. In fact, I was aware of the ruling at the time I granted theapplication, and I granted it on the basis of the ICAC having “reason-able suspicion”. I note also that the original information sworn beforeme refers only to “suspected” offences, and not “alleged” offences. I donot think there was an obligation on the part of the ICAC to include inthe information the numerous further particulars available to them, aswas suggested by Mr Tin’s counsel.
The evidence I have heard indicates a far-reaching and extensiveenquiry is being undertaken into extremely well-organized and profit-able criminal activity, where, inevitably, corruption must be involved. Inmy view, that evidence has been sufficiently linked to the applicant insuch a way as to show a reasonable suspicion of his involvement.
It is for the applicant to show, on the balance of probabilities that hewould be caused “unreasonable hardship” were the order to remain inforce. The correct test for determining that, in my view, must be anobjective one. He has not established that to my satisfaction, such thathe should get his passport back unconditionally.
Nevertheless, I am persuaded to return the applicant’s passport tohim, on terms, and I so order. Those terms are:
1. That the applicant enters into a recognizance with the ICAC in thesum of $250,000.
2. That the applicant provides one surety to enter into a recognizancewith the ICAC in the sum of $250,000.
3. That the applicant files with the ICAC not less than 24 hours priorto departure, an itinerary for every overseas trip he embarks on.
I see no necessity or desirability in the ICAC retaining the applicant’spassport when the applicant is in Hong Kong. I therefore do not addthat as a further condition.
HKPLR Subject Index 925
Cumulative Subject Index to Volume 4
Parts 1 to 4
Administrative law
Contractual liability arising from government undertaking topublish submissions on electoral issues
Government consultation on issues — Government solicitation of publicsubmissions on electoral issues — Undertaking to publish submissions— Whether failure to do so gave rise to cause of action in tort or contract
Yung Tak-lam, Philip v Governor [Christopher Patten]and others [HCt] 885
Judicial review
Application for leave — Test to be applied — Whether material beforecourt discloses what might on further consideration turn out to be anarguable case
R v Governor, ex parte Reid [CA] 18
Application for leave — Delay — When time begins to run — Discretionto extend time limit — Rules of the Supreme Court (Cap 4, sub leg), O53
R v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 274
Proper test being potential arguabilityR v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 274
Application for leave — Delay — No reasonable excuse for the delay andno good reason for extending time shown for application to be granted —Whether merit of case to be considered by court in the exercise of itsdiscretion to grant an application for judicial review
R v Director of Immigration, ex parte Cheung Kuk-ching [HCt] 542
Application for leave — Test to be applied in deciding whether to grantleave — Whether applicant must show “potential arguability” — Whethermaterial disclosed matters which on further consideration might demon-strate an arguable case for the grant of the relief claimed
R v Director of Immigration, ex parte Cheung Kuk-ching [HCt] 542
926 Subject Index (1994) 4
Availability — Concurrent criminal proceedings — Declaration not to begranted if such would preempt or prejudice criminal proceedings
R v Obscene Articles Tribunal, ex parte Loui Wai-poand Ming Pao Holdings Ltd [HCt] 5
Availability — Alternative remedy — Not appropriate when alternativeremedy available — Purpose of judicial review — Special circumstances
R v The Disciplinary Committee of the Stock Exchangeof Hong Kong Ltd, ex parte Onshine Securities Ltd [HCt] 523
Availability — Alternative remedy — Exhaustion of other remedies re-quired
R v Medical Council of Hong Kong, ex parte Li Sum-wo [HCt] 548
Availability — Alternative remedy — Practice and procedure — Whetherapplicant should exhaust other avenues of remedies
R v Director of Immigration, ex parte Du Gui Fang [HCt] 562
Certiorari — Decision of Commissioner of Correctional Services Depart-ment requiring employee to obtain medical certificate from designatedclinic if sick leave is to be granted — Abuse of sick leave
R v Commissioner of Correctional Services, ex parteNgai Fook-lam [HCt] 854
Courts — Jurisdiction — Whether Court of Appeal has jurisdiction togrant bail following successful challenge in judicial review proceedingsto refusal to grant applicant refugee status — Whether appropriate togrant bail
Re Le Tu Phuong and another [CA] 159
Grounds for review — Natural justice — Bias — Test — Real possibilityof bias — Representative of executive member of disciplinary board —Executive also the complainant — Bill of Rights, art 10 — Lifts andEscalators (Safety) Ordinance (Cap 327), s 11G(2)(d)
R v Lift Contractors’ Disciplinary Board, ex parteOtis Elevator Company (HK) Ltd [HCt] 168
Delay — Application for leave made out of time — Failure to provideany explanation
R v Commissioner of Correctional Services, ex parteNgai Fook-lam [HCt] 854
Ouster clause — Decision of Refugee Status Review Board not to besubject to review or appeal in any court — Whether Board’s decision
HKPLR Subject Index 927
was a nullity not protected from review by ouster clause — “decision” —“nullity” — Immigration Ordinance (Cap 115), s 13F(8)
R v Director of Immigration, ex parte Le Tu Phuongand another [CA] 337
Practice and procedure — Jurisdiction of the court to admit additionalaffidavits from respondent out of time — Whether 56 day time limitshould be rigorously enforced — Rules of the Supreme Court (Cap 4, subleg), O 53, rr 3, 5 and 6
R v Director of Immigration, ex parte Du Gui Fang [HCt] 562
Validity of enforcement notice — Retrospective legislation — Town Plan-ning Ordinance (Cap 131) — Town Planning (Amendment) Ordinance1991 (Ordinance No 4 of 1991)
R v Attorney General, ex parte Tsei Kwei-king andanother [HCt] 686
Whether decision of Governor not to exercise prerogative of mercy sub-ject to judicial review — Whether case fit for investigation at a fullhearing — Whether matters disclosed which on further considerationmight demonstrate an arguable case for the grant of the relief claimed— Substitution of executive decision on sentencing for a judicial decision— Hong Kong Letters Patent 1917–1993, art XV
R v Governor, ex parte Reid [CA] 18
Whether a challenge to the decision of returning officer disqualifying aprospective candidate can proceed by way of judicial review before theelection, or whether it must proceed by way of election petition — Elec-toral Provisions Ordinance (Cap 367), ss 30, 31, 37
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Whether provision providing that the decision of returning officer shallbe final precludes judicial review — Whether provision ultra vires —“final” — Electoral Provisions Ordinance (Cap 367), s 30
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
928 Subject Index (1994) 4
Whether decision of a public authority is amenable to judicial review —Public law and private law — Distinction between public act and privateact — Disputes under contract of employment between government serv-ant and government a matter of private law
R v Commissioner of Correctional Services, ex parteNgai Fook-lam [HCt] 854
Natural justice
Bias — Test — Real possibility of biasR v Lift Contractors’ Disciplinary Board,ex parte Otis Elevator Company (HK) Ltd [HCt] 168
Bias — Whether Town Planning Board judge in its own cause whenhearing objection to plans it promulgated — Town Planning Ordinance(Cap 131), ss 6(6) and (9)
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Bias — Test — Real danger of bias — More stringent test applied whena person acting in a judicial capacity has pecuniary interest in the mat-ter — “direct pecuniary interests” — “possibility” of “pecuniary interests”
R v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 285
Bias — Test — “real likelihood” of bias — “reasonable suspicion” of bias— “real likelihood in the sense of a real possibility” — “possibility” ofbias — Person acting in a judicial capacity and having a pecuniary in-terest in the matter — “direct pecuniary interest” — “pecuniary interest”
R v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 285R v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [CA] 298
Duty to act fairly — Procedural fairness — Asylum cases — Screeningprocedure — Legitimate expectation of the full and fair observance ofthe screening practice and procedure — Duty to read back the notes ofinterview — Whether different standards to be applied under HongKong law than under United Kingdom law — Immigration Ordinance(Cap 115), ss 4(1)(a), 13D(1)
R v Director of Immigration, ex parteLe Tu Phuong and another [CA] 337
Duty to act fairly — Whether general duty to give reasons for adminis-trative decisions
R v Immigration Tribunal, ex parte Tsang Yau-chiuand others [HCt] 500
HKPLR Subject Index 929
Duty to give reasons — Nature of reasons required to be given — Ad-equacy of reasons — Immigration Ordinance (Cap 115), s 53D
R v Immigration Tribunal, ex parte Tsang Yau-chiuand others [HCt] 500
Duty to give reasons — When applicableR v Medical Council of Hong Kong, ex parte Li Sum-wo [HCt] 548
Duty to give reasons — Duty to act fairly — Whether duty to confrontthe applicant with damaging material — Whether duty to make positiveenquiry — Whether decision refusing an application for a change ofstatus Wednesbury unreasonable
R v Director of Immigration, ex parte Du Gui Fang [HCt] 562
Right to be heard — Denial of legal representative before disciplinarytribunal — bias — Constitution of tribunal
R v The Disciplinary Committee of the Stock Exchangeof Hong Kong Ltd, ex parte Onshine Securities Ltd [HCt] 523
Relief
Interim relief — Injunction — Factors to be consideredR v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 274
Relief discretionary — Relief not granted if to do so would be contrary topublic policy
Re Chan Yat-fai and others [HCt] 481
Supervisory role of court — Appropriate order — Desirability of courtquashing decision to provide clear guidance as to steps to be taken inorder for decision-maker to comply with law — Whether court shouldconsider whether outcome would be different
R v Director of Immigration, ex parteLe Tu Phuong and another [CA] 337
Ultra vires
Failure to take into account relevant considerations — Unincorporatedtreaty — Director not obliged to comply with provisions of unincorpo-rated treaty but required to take its provisions into account
R v Director of Immigration, ex parteYin Xiang-jiang and others [CA] 265
Sources of power for development permission areas to control develop-
930 Subject Index (1994) 4
ment — Effective development permission area plan — Presumption notto deprive a person’s property rights without compensation not applica-ble when legislation merely regulates the use of property — “development”— “effective” — Town Planning Ordinance (Cap 131), ss 1A, 3(1)(b), 16,20(5) and (6), 21
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Whether Town Planning Board acting ultra vires in laying down restric-tions on types of building and plot ratios in development permissionarea plan — Legislative history — Expressio unius est exclusio alterius— Expressum facit cessare tacitum — Purposive approach of interpreta-tion to be adopted — Effective development permission area plan — “aswell as for the types of building” — “development” — “effective” —Building Ordinance (Cap 123), s 16 — Interpretation and General ClausesOrdinance (Cap 1), s 19 — Town Planning Ordinance (Cap 131), ss 1A,3(1)(a) and (b), 4, 20, 21
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Whether provision providing that the decision of returning officer shallbe final precludes judicial review — Whether provision ultra vires —“final” — Electoral Provisions Ordinance (Cap 367), s 30
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Bill of Rights/Bill of Rights Ordinance
Application
Commencement date — Statutory provisions inconsistent with Bill ofRights repealed with effect from 8 June 1991 — Hong Kong Bill ofRights Ordinance (Cap 383), s 3(2)
R v Kwok Hing-man [CA] 186
Consistency of legislation with the Bill of Rights — Whether court shouldlook at the section creating the offence as a whole in assessing consist-ency — Whether appropriate to adopt rigid formalistic analysis indetermining consistency with the Bill of Rights
R v China State Construction Engineering Corporation [Mag] 716
Extraterritorial operation — Whether Bill of Rights applies to actions
HKPLR Subject Index 931
taken outside of Hong KongRe Thanat Phaktiphat [HCt] 652
Government and public authorities — Whether the Hong Kong Bar Asso-ciation in promulgating its Code of Conduct is acting as a public authority— “public authority” — Hong Kong Bill of Rights Ordinance, s 7(1)
Re Anthony Chua [Barristers’ Disciplinary Tribunal] 637
Immigration — Whether Bill of Rights applies to decisions of Director ofImmigration refusing to permit persons to remain indefinitely in HongKong — Effect of provision providing that Ordinance does not affectimmigration legislation governing entry into, stay in and departure fromHong Kong as regards persons without right to enter and remain inHong Kong — Hong Kong Bill of Rights Ordinance (Cap 383), s 11
R v Director of Immigration, ex parte Hai Ho-tak;R v Director of Immigration, ex parte Wong Chung-hingand others [CA] 324
Immigration legislation — Whether Bill of Rights applicable to a deci-sion of the Director of Immigration refusing an application for a changeof status — Bill of Rights Ordinance (Cap 383), s 11
R v Director of Immigration, ex parte Du Gui Fang [HCt] 562
Interpretation — Generous and purposive approach — Realism and goodsense
R v To Kwan-hang and Tsoi Yiu-cheong [CA] 356
Pre-existing legislation — Whether legislation admits of constructionconsistent with Bill of Rights — Reference to “suspicion” construed asmeaning “reasonable suspicion” — Repeal to the extent of the inconsist-ency — Excision of words in order to render remaining words consistentwith the Bill of Rights — “suspected” — “alleged” — “ex parte” — Bill ofRights Ordinance (Cap 383), ss 3(1), 3(2) — Prevention of Bribery Ordi-nance (Cap 201), s 17A(1)
Re Nattrass [Mag] 234
Pre-existing legislation — Inconsistency with Bill of Rights — Repeal tothe extent of the inconsistency — Excision of words from statutory pro-vision possible — Hong Kong Bill of Rights Ordinance (Cap 383), s 3(2)— Public Order Ordinance (Cap 245), s 33 — Summary Offences Ordi-nance (Cap 228), s 17
R v Chong Ah-choi and others [CA] 375
Pre-existing legislation — Repeal — Effect of repeal of legislation —Quashing of convictions and setting aside of sentences of defendants
932 Subject Index (1994) 4
convicted of crimes under sections deemed to have been repealed by theBill of Rights Ordinance
R v Chu Cheuk-hong; R v Siu Hai-ka and others [CA] 650
Pre-existing legislation — Whether legislation admits of constructionconsistent with Bill of Rights — Interpreting reference to “suspicion” asmeaning “reasonable suspicion” — Repeal to the extent of any inconsist-ency — Excision of words in order to render remaining words consistentwith the Bill of Rights — “suspected” — “alleged” — “ex parte” — Bill ofRights Ordinance (Cap 383), ss 3(1), 3(2), — Prevention of Bribery Ordi-nance (Cap 201), s 17A(1)
Re Tin Sau-kwong [Mag] 917
Repeal of inconsistent provision by Bill of Rights Ordinance — Decisionof lower court declaring provision repealed — Subject to contrary deci-sion by superior court — Relevance of Attorney General’s views on validityof the provision — Unsatisfactory nature of such a position — HongKong Bill of Rights Ordinance (Cap 383), s 3(2) — Bill of Rights, art11(1) — Theft Ordinance (Cap 210), s 29(6)(a)(i)
R v Anastasius Chiu [CA] 457
Retrospective operation — Amendments to legislation following declara-tion of repeal by courts — Application of amendments to proceedingsconcerning events prior to enactment of amending legislation — Bill ofRights, arts 10, 11(1), 12
R v Lum Wai-ming [CA] 497
Retrospective operation — Whether applicable to proceedings concern-ing events occurring prior to commencement of amending legislation —Drug trafficking offences — Presumptions — Presumptions as to posses-sion — Amendments — Summing up — Dangerous Drugs (Amendment)(No 2) Ordinance (No 52 of 1992) — Dangerous Drugs Ordinance (Cap134), s 47(2)
R v Lum Wai-ming [CA] 497
Retrospective operation — Application to offences committed subsequentto the coming into the operation of the Bill of Rights Ordinance — HongKong Bill of Rights Ordinance (Cap 383), s 3(2)
R v Chu Cheuk-hong; R v Siu Hai-ka and others [CA] 650
Equality before courts and tribunals
Deprivation of travel document of a person under investigation by theICAC — Whether procedure involved denial of equality before the courts—Bill of Rights, art 10 — Prevention of Bribery Ordinance (Cap 201), ss
HKPLR Subject Index 933
17A, 17B 201), ss 17A, 17BRe Nattrass [Mag] 234
Right of access to court — Whether requirement that person apply first toICAC Commissioner before applying to court violated right — Bill ofRights, art 10 — Prevention of Bribery Ordinance (Cap 201), ss 17A, 17B
Re Tin Sau-kwong [Mag] 917
Whether preferential treatment of the Crown involved denial of equalitybefore the courts— Bill of Rights, art 10 — Fixed Penalty (Traffic Con-traventions) Ordinance (Cap 237), s 3(2)
R v Crawley [HCt] 62
Equality before the law and equal protection of the law
Illegitimacy — Whether time limit of 12 months after birth of an illegiti-mate child for filing an application for financial support by child’s motherconsistent with guarantee of equality — Whether requirement that moth-er’s evidence of paternity be corroborated discriminatory — AffiliationProceedings Ordinance (Cap 183), ss 4, 5 — Bill of Rights, art 22
L v C [HCt] 388
Power of magistrate to order the surrender of passport by a suspectunder investigation by the ICAC on an ex parte application by the Com-missioner of the ICAC — Bill of Rights, art 22 — Prevention of BriberyOrdinance (Cap 201), s 17A(1)
Re Nattrass [Mag] 234
Rights of honest taxpayers to equality arguably violated if the law wereimportant or inefficient in combatting evasion of duty — Bill of Rights— art 22
Attorney General v Fong Chin-yue and others;R v Wang Shi-hung [CA] 430
Traffic offences — Owners of private vehicles liable for obstruction of-fences whereas Crown as owners of government vehicles not liable undersimilar circumstances — Whether consistent with preferential and dis-criminatory treatment of the Crown — Bill of Rights, art 22 — FixedPenalty (Traffic Contraventions) Ordinance (Cap 237), ss 3(2) and 14(2)
R v Crawley [HCt] 62
Whether powers to investigate persons suspected of dangerous drugoffences discriminatory against persons of a particular status — “status”— Bill of Rights, art 22 — Dangerous Drugs Ordinance (Cap 134), s 52
R v Yu Yem-kin [HCt] 75
934 Subject Index (1994) 4
Exceptions and savings
Exclusion from scope of Bill of Rights Ordinance of persons not havingright to enter and remain in Hong Kong as regards immigration legisla-tion — Exception prevented members of family with right of abode frominvoking Bill of Rights to impugn decision to order removal of familymembers without right of abode — Hong Kong Bill of Rights Ordinance(Cap 383), s 11
R v Director of Immigration, ex parte Hai Ho-tak;R v Director of Immigration, ex parte Wong Chung-hingand others [CA] 324
Interpretation — Exceptions not obscure or ambiguous and are to beinterpreted according to their plain and ordinary meaning — Relevanceof international treaties — Need to approach interpretation of the Bill ofRights with realism, good sense, and sense of proportion — Hong KongBill of Rights Ordinance (Cap 383), s 11
R v Director of Immigration, ex parte Hai Ho-tak;R v Director of Immigration, ex parte Wong Chung-hingand others [CA] 324
Freedom of association
Civil liberties necessary for enjoyment of trade union rights — Expul-sion of trade unionist — Permitting reentry on condition that tradeunionist not exercise rights — Whether consistent with trade unionrights
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Right to organise and bargain collectively — Trade Union Act (1992) —Unions required to further socialist modernisation — Single trade unionstructure nation-wide — Whether a violation of the right to freedom ofassociation and the right to bargain and organise collectively — PRCTrade Union Act 1992
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Right to strike — Whether exclusion of right to strike consistent withguarantees of freedom of association
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
HKPLR Subject Index 935
Freedom of expression
Whether classification by Obscene Articles Tribunal violates freedom ofexpression — Control of Obscene and Indecent Articles Ordinance (Cap390) — Bill of Rights, art 16
R v Obscene Articles Tribunal, ex parte Loui Wai-poand Ming Pao Holdings Ltd [HCt] 5
Whether restriction on disclosure of details of an ICAC investigation “arestriction prescribed by law” — Whether protection of rights and repu-tation of others an objective of the restriction on disclosure — Protectionof public order (ordre public) — Pressing social need — Mandatory dis-qualification from public office for person convicted of offence —“necessary” — “ordre public” — “public order” — Prevention of BriberyOrdinance (Cap 201), ss 30, 33 — Bill of Rights, art 16(2)
R v Ming Pao Newspapers Ltd [Mag] 621
Whether restriction on personal advertisement by barristers a violationof the right to freedom of expression — Bill of Rights, art 16 — Bar’sCode of Conduct, para 101
Re Anthony Chua [Barristers’ Disciplinary Tribunal] 637
Freedom of movement
Deprivation of travel document of a person under investigation by theICAC — Whether reasonable suspicion required — Whether power canbe invoked in relation to an alleged offence — “alleged” — “suspected” —“reasonable suspicion” — Bill of Rights, art 8 — Prevention of BriberyOrdinance (Cap 201), s 17A
Re Nattrass [Mag] 234
Deprivation of travel document of a person under investigation by theICAC — Whether reasonable suspicion required — Whether power canbe invoked in relation to an alleged offence — “alleged” — “suspected” —“reasonable suspicion” — Bill of Rights, art 8 — Prevention of BriberyOrdinance (Cap 201), s 17A
Re Tin Sau-kwong [Mag] 916
Interpretation
Proper approach to interpreting the Bill of Rights — Text in one lan-guage can be used to clarify the meaning of the text in another languagewhich is of equal authenticity — Autonomous meaning — “Rights andobligations in a suit at law” — Whether “rights and obligations in a suitat law” the same as “civil rights and obligations” — “Determination” —
936 Subject Index (1994) 4
Bill of Rights, art 10 — European Convention on Human Rights, art 6(1)— International Covenant on Civil and Political Rights, art 14 — Vi-enna Convention on the Law of Treaties, art 33
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Relevance of international treaties — Relevance of case law from otherjurisdictions — European Convention on Human Rights, art 8 — Cana-dian Charter of Rights and Freedoms 1982, ss 7, 8
R v Yu Yem-kin [HCt] 75
Permissible limitations
Freedom of expression — Objectives of restriction — Whether justifica-tion limited to original objectives — “necessary” — Bill of Rights, art16(3)
R v Ming Pao Newspapers Ltd [Mag] 621
Whether requirement that interference with protected right be lawfulreferred only to lawfulness under domestic law or also to an interna-tional standard — Tests of necessity and minimal intrusion — Commonlaw notion of justice and international law notions of justice — “law” —“unlawful” — “universal concept of justice” — Bill of Rights, arts 5(1),14, 15
R v Yu Yem-kin [HCt] 75
Whether infringing provision can be justified and survive Bill of Rightschallenge — Rationality, proportionality and minimal impairment —Whether rational and proportional to place the burden of taking practi-cable steps on the construction site controller to keep illegal immigrantsoff of construction sites — Hong Kong Bill of Rights, arts 11(1), 22 —Immigration Ordinance (Cap 115), s 38A
R v Dragages et Travaux [Mag] 601R v China State Construction Engineering Corporation [Mag] 716
Remedies
Exclusion of evidence — Evidence obtained in reliance on power heldrepealed by Bill of Rights — Whether evidence must or should be ex-cluded — Factors to be taken into account — Relationship betweencommon law power to exclude evidence and power under Bill of RightsOrdinance — Hong Kong Bill of Rights Ordinance (Cap 383), s 6(1)
R v Yu Yem-kin [HCt] 75
Inconsistent legislation — Effect of inconsistency with guarantee of equal-ity in the Bill of Rights — Bill of Rights, art 22 — Bill of Rights Ordinance
HKPLR Subject Index 937
(Cap 383), s 3(2)R v Crawley [HCt] 62
Whether court has the power and duty in extradition proceedings toexclude evidence of telephone conversations obtained allegedly in a man-ner inconsistent with the Bill of Rights — Bill of Rights Ordinance (Cap383), s 6
Re Thanat Phaktiphat [HCt] 652
Right to adequate facilities for preparation of one’s defence
Missing exhibit — Whether reasonable possibility that the destructionor loss of evidence would impair the defendant’s ability to make fullanswer and defence to the charge — Stay of proceedings — Bill ofRights, art 11(2)(b)
R v Chu Kam-to and another [HCt] 472
Right to the benefit of lesser penalty
Substitution of offence by another offence with a lesser penalty — Pen-alty imposed in excess of maximum provided for by replacement provision— Whether defendant entitled to be sentenced on the basis of lessermaximum — Crimes Ordinance (Cap 200), LHK 1984 ed, ss 76(1), 76(2)— Crimes Ordinance (Cap 200), ss 75(2) — Bill of Rights, art 12(1)
R v Tai Yiu-wah [CA] 56
Substitution of offence by another offence with a lesser penalty — Pen-alty imposed in excess of maximum provided for by replacement provision— Defendant entitled to be sentenced on the basis of lesser maximum —Crimes Ordinance (Cap 200), LHK 1984 ed, s 76A — Crimes Ordinance(Cap 200), ss 76 (1), (2) — Bill of Rights, art 12(1)
R v Yau Chi-keung [CA] 453
Rights of children
Right to protection by the State — Right not to be subject to discrimina-tion on the ground of birth — Illegitimate child — Whether time limit of12 months after birth of child for filing an application for financialsupport by child’s mother consistent with guarantee of equality —Whether requirement that mother’s evidence of paternity be corrobo-rated discriminatory — Affiliation Proceedings Ordinance (Cap 183), ss4, 5 — Bill of Rights, art 20
L v C [HCt] 388
938 Subject Index (1994) 4
Right to examine or have examined witnesses against one
Documentary evidence — Whether proof of previous criminal record bycertificate of authorized police officer without calling any expert witnesswhen such evidence is in dispute consistent with the right — CriminalProcedure Ordinance (Cap 221), s 63 — Bill of Rights, art 11(2)(e)
R v Wong Wai [Mag] 245
Documentary evidence — Admission of computer records as prima facieevidence — Power of judge to order oral evidence to be given if goodreason exists for doubting the truth and accuracy of the computer records— Evidence Ordinance (Cap 8), ss 22A(1), (7) — International Covenanton Civil and Political Rights, art 14(3)(e) — European Convention onHuman Rights, art 6(3)(d) — Hong Kong Bill of Rights Ordinance (Cap383), s 2(3) — Hong Kong Bill of Rights, art 11(2)(e)
R v Chow Chai-sang [DCt] 592
Missing witnesses — Whether right guaranteed — Opportunity to testthe evidence of a crucial missing witness against other evidence —Whether relevant that the prosecution had been at fault regarding themissing witness — Whether relevant that the defendant would benefitfrom exercise of his right or exploitation of his opportunities to test theevidence of a missing witness — Hong Kong Bill of Rights, arts 10,11(2)(e)
R v Yeung Chi-chiu and another [DCt] 677
Missing witnesses — Whether unavailability of witnesses due to theirrepatriation to China from Hong Kong was a violation of right — Proce-dure to be followed — Hong Kong Bill of Rights Ordinance (Cap 383),art 11(2)(e)
R v Ng Ming [HCt] 908
Right not to be subject to medical or scientific experimentationwithout one’s free consent
Right of person not to be subjected without his free consent to medical orscientific experimentation — Bill of Rights, art 3
R v Commissioner of Correctional Services, ex parteNgai Fook-lam [HCt] 854
Right to a fair and public hearing by a competent, independentand impartial tribunal
Determination of criminal charge — Confiscation proceedings followingconviction for drug trafficking— Whether involves “determination of a
HKPLR Subject Index 939
criminal charge” — “criminal charge” — “criminal offence” — DangerousDrugs (Recovery of Proceeds) Ordinance (Cap 405), s 5 — Bill of Rights,art 11(1)
R v Ko Chi-yuen [CA] 152
Determination of rights and obligations in a suit at law — Indecency —Whether initial classification by Obscene Articles Tribunal involves adetermination of rights and obligations in a suit at law — Nature ofclassification procedure — Whether notice of interim classification shouldbe served on the parties adversely affected by the classification — Con-trol of Obscene and Indecent Articles Ordinance (Cap 390) — Bill ofRights, art 10
R v Obscene Articles Tribunal, ex parte Loui Wai-poand Ming Pao Holdings Ltd [HCt] 5
Determination of rights and obligations in a suit at law — Illegal struc-ture — Demolition order — Closure order to enable the Building Authorityto carry out demolition work without causing danger to the occupiers orto the public — “suit at law” — Whether any “rights and obligations” areinvolved — Bill of Rights, art 10 — Buildings Ordinance (Cap 123), s27(1)(a)(ii)
Business Rights Ltd v Building Authority [CA] 43
Determination of rights and obligations in a suit at law — Whethercourt in granting closure order is involved in an administrative act or ajudicial act — Whether there is any “determination” of rights and obli-gations — Bill of Rights, art 10 — “determination” — Buildings Ordinance(Cap 123), s 27(1)(a)(ii)
Business Rights Ltd v Building Authority [CA] 43
Determination of rights and obligations in a suit at law — Objection toDraft Development Permission Plan — Whether objection proceedingsinvolve rights and obligations in a suit at law — Whether objectionproceedings involve “determination” of civil rights and obligations —Whether promulgation of development permission area plan an admin-istrative or legislative act — Whether objection proceedings a fair andpublic hearing
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Fair and public hearing — Closure order — Possibility of Appeal Tribu-nal dismissing an appeal merely on written material without an oralhearing where “no good cause” had been shown not inconsistent withthis right — Bill of Rights, art 10 — Appeal Tribunal Rules (Cap 123,sub leg), rr 1, 2
Business Rights Ltd v Building Authority [CA] 43
940 Subject Index (1994) 4
Fair and public hearing — Objection to Draft Development PermissionPlan — Whether objection proceedings a fair and public hearing
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Fair and public hearing — Whether preliminary ex parte proceedingswhere a magistrate may order the surrender of travel document of asuspect under ICAC investigation consistent with right — Bill of Rights,art 10 — Prevention of Bribery Ordinance (Cap 201), ss 17A, 17B
Re Nattrass [Mag] 234
Independent and impartial tribunal — Demolition order — Closure or-der — Appeal Tribunal — One member of the tribunal appointed by theBuilding Authority — Whether tribunal independent and impartial —“independent and impartial” — Bill of Rights, art 10 — Buildings Ordi-nance (Cap 123), ss 27, 43(2)
Business Rights Ltd v Building Authority [CA] 43
Independent and impartial tribunal — Registered Lift Contractors’ Dis-ciplinary Board — Boards chosen from panel members of which wererequired to be recommended by Director of Electrical and MechanicalServices who was complainant before Board — Not inconsistent witharticle 10 of the Bill of Rights — Bill of Rights, art 10 — Lifts andEscalators (Safety) Ordinance (Cap 327), s 11E(2)
R v Lift Contractors’ Disciplinary Board, ex parteOtis Elevator Company (HK) Ltd [HCt] 168
Independent and impartial tribunal — Registered Lift Contractors’ Dis-ciplinary Board — Director of Electrical and Mechanical Services or hisrepresentative member of disciplinary board but also preferrer of charge— Inconsistent with article 10 of Bill of Rights — Bill of Rights, art 10— Lifts and Escalators (Safety) Ordinance (Cap 327), s 11G(2)(d)
R v Lift Contractors’ Disciplinary Board, ex parteOtis Elevator Company (HK) Ltd [HCt] 168
Independent and impartial tribunal — Whether availability of appeal byway of rehearing before High Court judge satisfied requirement of ac-cess to court — Bill of Rights, art 10 — Lifts and Escalators (Safety)Ordinance (Cap 327), s 11I
R v Lift Contractors’ Disciplinary Board, ex parteOtis Elevator Company (HK) Ltd [HCt] 168
Independent and impartial tribunal — Whether Town Planning Boardan independent and impartial tribunal — Composition of the Board —“determination” — “rights and obligations in a suit at law” — Bill ofRights, art 10 — European Convention on Human Rights, art 6 —
HKPLR Subject Index 941
Interpretation and General Clauses Ordinance (Cap 1), s 34 — Interna-tional Covenant on Civil and Political Rights, art 14 — Town PlanningOrdinance (Cap 131), ss 2, 6, 8, 9, 13, 14
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Right to a fair hearing — Disciplinary proceedings — Right to a fair andpublic hearing before an independent and impartial tribunal — Denialof legal representation — bias — Member of disciplinary Committee alsomembers of Stock Exchange council — Existence of an appeal to Disci-plinary Appeal board
R v The Disciplinary Committee of the Stock Exchangeof Hong Kong Ltd, ex parte Onshine Securities Ltd [HCt] 523
Right to a fair hearing — Whether right to fair hearing applies to extra-dition proceedings — Whether extradition proceedings involve“determination of a criminal charge” — Assumption that a fugitive willobtain a fair hearing in requesting state — Whether admission of inad-missible evidence a violation of right — Bill of Rights, arts 10, 11
Re Thanat Phaktiphat [HCt] 652
Right to a fair hearing in the determination of a criminal charge —Adverse pre-trial publicity — Whether fair trial possible — Stay of pro-ceedings — Whether there is a difference between principles governinggrant of stay under Bill of Rights and at common law — Whether stay ofproceedings a just and appropriate remedy — Effluxion of time — Properdirections to the jury by trial judge — Bill of Rights, art 10 — Bill ofRights Ordinance (Cap 383), s 6 — Drug Trafficking (Recovery of Pro-ceeds) Ordinance (Cap 405), s 25
R v Lo Chak-man (No 2) [HCt] 466
Right to a fair hearing in the determination of a criminal charge —Missing exhibit — Whether reasonable possibility that the destructionor loss of evidence would impair the defendant’s ability to make fullanswer and defence to the charge — Stay of proceedings — Bill ofRights, art 10
R v Chu Kam-to and another [HCt] 472
Right to a fair hearing in the determination of a criminal charge —Prejudice to defendant — Publication of defendant’s photographs wherehis identification an issue at trial — Stay of proceedings — Publicationnot so manifestly prejudicial that right could not be guaranteed — Billof Rights, art 10
R v Wong Sik-ming [DCt] 488
Right to a fair hearing in the determination of a criminal charge — Stay
942 Subject Index (1994) 4
of prosecution where defendants deprived of opportunity to test evidenceof missing witness — Hong Kong Bill of Rights, arts 10, 11(2)(e)
R v Yeung Chi-chiu and another [DCt] 677
Right to a fair hearing in the determination of rights and obligations in asuit at law — Right of access to court — Whether exclusion of judicial re-view before election constitutes a denial of the right of access to court —Boundary and Election Commission (Electoral Procedure) (GeographicalConstituencies) Regulations (Cap 432 sub leg), reg 9(7) — InternationalCovenant on Civil and Political Rights, art 14(1) — Bill of Rights, art 10
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Right to a fair and public hearing in the determination of one’s rightsand obligations in a suit at law — Disciplinary proceedings — Publichearing — Mandatory prescription that disciplinary proceedings be con-ducted in camera — Discretion to conduct public hearing — LegalPractitioners Ordinance (Cap 159), s 35A(3) — Bill of Rights, art 10
Re Anthony Chua [Barristers’ Disciplinary Tribunal] 637
Right to be free from arbitrary deprivation of liberty
Strict liability offence — Whether abolition of mens rea requirementconsistent with right — Bill of Rights, art 5(1)
Attorney General v Fong Chin-yue and others; [CA] 430R v Wang Shi-hung
Right to liberty and security of the person
Detention of witnesses in order to give evidence for prosecution at trial— Whether detention order could be made by consent if witnesses will-ing to testify — Vietnamese boatpeople — Immigration Ordinance (Cap115), ss 13E, 32(4)(a), (b)
Attorney General v Pham Si Dung (No 1) [HCt] 799Attorney General v Bui Thi Ngoan and others (No 1) [HCt] 824Attorney General v Bui Thi Ngoan and others (No 2) [HCt] 832Attorney General v Bui Thi Ngoan and others (No 3) [HCt] 837
Detention of witnesses in order to give evidence for defence at trial —Whether statutory power extended to defence witnesses — Vietnameseboatpeople — Hong Kong Bill of Rights, arts 5(1), 11(2)(e) — Immigra-
HKPLR Subject Index 943
tion Ordinance (Cap 115), ss 13E, 32(4)(a), (b)Attorney General v Pham Si Dung (No 2) [HCt] 813
Whether guarantee provides protection against search of premises andseizure of property — Bill of Rights, art 5(1)
R v Yu Yem-kin [HCt] 75
Whether guarantees procedural in nature — Deprivation of travel docu-ment — Bill of Rights, art 5 — Prevention of Bribery Ordinance (Cap201), ss 17A, 17B
Re Nattrass [Mag] 234
Right to organise and bargain collectively
Trade Union Act (1992) — Unions required to further socialist moderni-sation — Single trade union structure nation-wide — Whether a violationof the right to freedom of association and the right to bargain andorganise collectively — PRC Trade Union Act 1992
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Right of peaceful assembly
Whether the guarantee of the right of peaceful assembly applies to un-lawful assembly — “peaceful assembly” — “unlawful assembly” — PublicOrder Ordinance (Cap 245), s 18 — Bill of Rights, art 17
R v To Kwan-hang and Tsoi Yiu-cheong [CA] 356
Rights of persons belonging to minorities
Right of members of minority, in community with the other members oftheir group, to enjoy their own culture, to profess and practice their ownreligion, or to use their own language — International Covenant on Civiland Political Rights, art 27
General comment 23(50) [Hum Rts Com] 1
Rights of persons charged with or convicted of criminal offence
Whether s 4 of the Fixed Penalty (Traffic Contraventions) Ordinanceinvolves a criminal offence — “criminal charge” — Bill of Rights, art11(1) — Fixed Penalty (Criminal Proceedings) Ordinance (Cap 240), ss3A(4), 3B(4) — Fixed Penalty (Traffic Contraventions) Ordinance (Cap237), ss 4, 14
R v Crawley [HCt] 62
944 Subject Index (1994) 4
Right to be presumed innocent until proved guilty according tolaw
Applicability — Post-conviction — Whether presumption of innocence iscapable of extending beyond conviction — Meaning of “criminal charge”— Confiscation order — Assumptions under Drug Trafficking (Recoveryof Proceeds) Ordinance relating to assessment of benefits and proceedsfrom drug trafficking —Whether assumptions consistent with the pre-sumption of innocence — Bill of Rights, art 11(1)
R v Ko Chi-yuen [CA] 152
Applicabililty — Pre-charge — Whether a suspect under investigationby the ICAC is a person charged with a criminal offence within themeaning of the Bill of Rights — Whether guarantee only comes into playafter charge — Bill of Rights, art 11(1) — Prevention of Bribery Ordi-nance (Cap 201), s 17A
Re Nattrass [Mag] 234
Adverse pre-trial publicity — Whether a violation of the right to bepresumed innocent — Whether stay of proceedings just and appropriateremedy — Bill of Rights, art 11(1)
R v Lo Chak-man (No 2) [HCt] 466
Offence of being in possession of goods reasonably suspected of beingstolen — Provision held repealed by appellate courts after defendantconvicted — Whether leave to appeal out of time should be granted —Whether appeal should be allowed — Summary Offences Ordinance (Cap228), s 30 — Hong Kong Bill of Rights Ordinance (Cap 383), s 3(2) —Bill of Rights, art 11(1)
R v Kwok Hing-man [CA] 186
Offence of maintaining a living standard above that commensurate withofficial emoluments — Requirement that defendant give a satisfactoryexplanation to the court — Presumption of corruption in the absence ofsatisfactory explanation — Whether absence of satisfactory explanationan element of the offence — Whether reversal of onus reasonably im-posed — Whether consistent with presumption of innocence —Proportionality — Bill of Rights, arts 10, 11(1), 11(2)(g) — Prevention ofBribery Ordinance (Cap 201), s 10(1)(a)
R v Hui Kin-hong Harry [DCt] 581
Presumptions — Presumption of a person gambling in a gambling estab-lishment — “gambling establishment” — Rationality — Proportionality— “according to law” — Bill of Rights, art 11(1) — Gambling Ordinance(Cap 148), s 19(2)
R v Choi Kai-on [CA] 105
HKPLR Subject Index 945
Presumptions — Presumption of being an unauthorized entrant in theabsence of evidence to the contrary — Evidential burden — Whetherconsistent with the right — Immigration Ordinance (Cap 115), s 37K(1)— ICCPR, art 14(2) — Bill of Rights, art 11(1)
R v Chan Chak-fan [CA] 115
Presumptions — Mandatory presumption of fact — Presumption of duti-able goods until the contrary is proved — Whether consistent with theBill of Rights — Dutiable Commodities Ordinance (Cap 109), s 40(a) —Bill of Rights, art 11(1)
Attorney General v Fong Chin-yue and others;R v Wang Shi-hung [CA] 430
Proof of previous criminal conviction — Certificate of authorized policeofficer deemed to be evidence of the facts stated therein until the con-trary is proved — Whether consistent with the right to be presumedinnocent — Criminal Procedure Ordinance, s 63 (Cap 221) — Bill ofRights, art 11(1)
R v Wong Wai [Mag] 245
Reverse onus provisions — Assumptions — Court’s discretion to makeassumptions — “rational” — “realistic” — “proportional” — Bill of Rights,art 11(1)
R v Ko Chi-yuen [CA] 152
Reverse onus provisions — Possession of offensive weapon or other im-plement — Requirement to give satisfactory account of possession —Whether primary responsibility for proving guilt remains with prosecu-tion — Whether departure from general rule reasonable — “satisfactoryaccount” — Bill of Rights, art 11(1) — Summary Offences Ordinance(Cap 228), s 17
R v Chong Ah-choi and others [CA] 375
Right to a fair trial — Presumption of innocence — Summing up —Direction to jury that evidence of the accused should be subject to spe-cial scrutiny for no reason other than that she was the accusedundermined the presumption of innocence
R v Leung Kit-chun [CA] 38
Strict liability offence — Whether imposition of liability to pay a fixedpenalty irrespective of responsibility for contravention of an Ordinanceconsistent with presumption of innocence — Bill of Rights, art 11(1) —Fixed Penalty (Traffic Contraventions) Ordinance (Cap 237), s 20(1) —Fixed Penalty (Criminal Proceedings) Ordinance (Cap 240), ss 3A(4),3B(4) — Magistrates Ordinance (Cap 227), s 68
R v Crawley [HCt] 62
946 Subject Index (1994) 4
Strict liability offences — Where strict liability the result of interpreta-tion in accordance with Gammon criteria consistent with the Bill ofRights — Dutiable Commodities Ordinance (Cap 109), s 17 — Bill ofRights, art 11(1)
Attorney General v Fong Chin-yue and others;R v Wang Shi-hung [CA] 430
Strict liability offence — Defence — Offence of being in charge of aconstruction site on which illegal immigrants are found — Defence thatconstruction site controller took all practicable steps to prevent —Whether consistent with the presumption of innocence — InternationalCovenant on Civil and Political Rights — Hong Kong Bill of Rights, art11(1)
R v Dragages et Travaux [Mag] 601
Strict liability offence — Defence — Legal burden on the constructionsite controller charged with illegal immigrants being on the site —Whether consistent with the presumption of innocence — InternationalCovenant on Civil and Political Rights, art 14(2) — Hong Kong Bill ofRights, art 11(1)
R v China State Construction Engineering Corporation [Mag] 716
Rights to protection of privacy and correspondence
Closure order — Whether a violation of the right to privacy — BuildingsOrdinance (Cap 123), s 27(1)(a)(ii) — Bill of Rights, art 14
Business Rights Ltd v Building Authority [CA] 43
Entry, search and seizure — Power to enter premises without warranton basis of reasonable suspicion of presence of article liable to seizure —Whether warrantless search and seizure consistent with Bill of Rights— Whether independent scrutiny of justifiability required by Bill ofRights in some or all circumstances — Lack of warrant requirement andof specific circumstances under which warrantless entry permissible in-consistent with Bill of Rights — “arbitrary” — “unlawful” — Bill ofRights, art 14 — Dangerous Drugs Ordinance (Cap 134), s 52(1)(e)
R v Yu Yem-kin [HCt] 75
Telephone tapping — Whether interception of telephone communica-tions a violation — Bill of Rights, art 14
Re Thanat Phaktiphat [HCt] 652
Right to strike
Whether exclusion of right to strike consistent with guarantees of free-
HKPLR Subject Index 947
dom of associationCase No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Right to vote and to be elected without unreasonable restric-tions
Reasonable restriction — Whether requirement of ten years’ continuousordinary residence immediately before the date of nomination an unrea-sonable restriction of the right to be elected — Electoral ProvisionsOrdinance (Cap 367), s 18(2) — Bill of Rights, arts 21, 22
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Bribery
Restriction on disclosure of details of an ICAC investigation — Whethermens rea required — Whether suspicion or allegation must be reason-able — Whether consistent with Bill of Rights — Freedom of expression— “alleged” — “suspected” — Prevention of Bribery Ordinance (Cap201), s 30
R v Ming Pao Newspapers Ltd [Mag] 621
Building
Demolition order — Closure order — Whether grant of closure order bythe District Judge involves a determination of rights and obligations ina suit at law — Composition of Appeal Tribunal — Whether AppealTribunal an independent and impartial tribunal — Whether possibilityof Appeal Tribunal dismissing the appeal without an oral hearing vio-lates the right to a fair hearing — Whether closure order amounts to anarbitrary or unlawful interference with privacy — Bill of Rights, arts 10,14 — Buildings Ordinance (Cap 123), ss 27(1)(a)(ii), 43(2) — AppealTribunal Rules (Cap 123 sub leg), rr 1, 2
Business Rights Ltd v Building Authority [CA] 43
948 Subject Index (1994) 4
Children
Illegitimacy — Legitimacy — Whether distinctions drawn between le-gitimate and illegitimate children consistent with Bill of Rights
L v C [HCt] 388
Constitutional law
Boundaries of Hong Kong — “Hong Kong” — Whether boat in the part ofDeep Bay where Hong Kong police refrained from patrolling was al-ready in Hong Kong — Interpretation and General Clauses Ordinance(Cap 1), s 3, Schedule 2 — Immigration Ordinance, s 37C(1)(a)
R v Chan Chak-fan [CA] 115
Prerogative of mercy — Power of Governor to remit sentence — Whetherproper to involve the executive in the sentencing process to give properdiscount for sentence for the accused’s co-operation to testify in othersubsequent trials — Prison Rules (Cap 234 sub leg), r 69
R v Governor, ex parte Reid [CA] 18
Contempt of court
Contempt not committed in the face of the court — Appropriate proce-dure reference of matter to the Attorney General — Rules of the SupremeCourt, O 52
R v Wong Sik-ming [DCt] 488
Newspaper publication of defendants’ photographs where his identifica-tion an issue at trial — Publication amounted to contempt — “calculatedto prejudice a fair trial”
R v Wong Sik-ming [DCt] 488
Contract
Creation — Offer to public — Acceptance by members of the public —Consideration — Whether government solicitation of submissions onelectoral issues constitutes offer — Whether submission of views bymembers of public constitutes acceptance and creates binding contract— Reliance — Whether loss needs to be shown — Whether failure bygovernment to publish submission a breach of contract — Remedy —Declaration — Not necessary to allege damage — Rules of the SupremeCourt (Cap 4, sub leg), O 15, r 16
HKPLR Subject Index 949
Yung Tak-lam, Philip v Governor [Christopher Patten]and others [HCt] 885
Coroner
Inquest — Death by unlawful killing — Reckless — Unlawful killing —Obvious risk — Serious risk — Whether subjective or objective test to beapplied
R v Her Majesty’s Coroner of Hong Kong W B G Banks,ex parte Lai Shu-wing and others [HCt] 782
Inquest — Directions to jury — VerdictR v Her Majesty’s Coroner of Hong Kong W B G Banks,ex parte Lai Shu-wing and others [HCt] 782
Corruption
Maintaining a standard of living not commensurate with official emolu-ments — Whether consistent with presumption of innocence — Preventionof Bribery Ordinance (Cap 201), s 10(1)(a) — Bill of Rights, art 11(1)C
R v Hui Kin-hong Harry [DCt] 581
Courts
Court of Appeal — Whether Court of Appeal has jurisdiction to hear anappeal against conviction where the applicant is committed by a magis-trate for sentence to the High Court
R v Ng Kit-yuen [CA] 33
Court of Appeal — Inherent jurisdiction — Substituted offence — Whetherappeal court has jurisdiction to substitute conviction for offence of as-sisting the passage of unauthorized entrants within Hong Kong forconviction of being a crew member of a ship which entered Hong Kongwith unauthorized entrants on board —Criminal Procedure Ordinance(Cap 221), s 51(2), 83A — District Court Ordinance (Cap 336), s 83 —Supreme Court Ordinance (Cap 4), s 13(4)(a)
R v Chan Chak-fan [CA] 115
Court of Appeal — Inherent jurisdiction — Whether Court of Appeal hasinherent jurisdiction to grant bail to asylum-seekers lawfully detainedunder immigration legislation pending Crown’s appeal against their suc-cessful challenge to decision to refuse refugee status
Re Le Tu Phuong and another [CA] 159
950 Subject Index (1994) 4
Court of Appeal — Whether Court of Appeal has jurisdiction to order aretrial when there was no valid trial before a court of competent juris-diction
R v So Mun-sung [CA] 318
High Court — Jurisdiction — Wardship jurisdiction — Wardship juris-diction extending to aliens physically present in Hong Kong — Whethercourt should exercise wardship jurisdiction which might interfere withimplementation of immigration decision
Re a Minor [HCt] 667
Magistrates Court — Procedure — Whether magistrate conducting com-mittal under Part III of the Magistrate’s Ordinance has jurisdiction torule on the admissibility of evidence — Power of magistrate to excludeevidence — Whether there is a difference between committal proceed-ings and extradition proceedings — Magistrate’s Ordinance (Cap 227),Part III — Extradition Act 1989 (UK), Schedule 1, clause 6(1)
Re Thanat Phaktiphat [HCt] 652
Stare decisis — Effect of decision of inferior court declaring provisionrepealed — Subject to contrary decision by superior court — Relevanceof Attorney General’s views on validity of the provision — Unsatisfac-tory nature of such a position — Hong Kong Bill of Rights Ordinance(Cap 383), s 3(2)
R v Anastasius Chiu [CA] 457
Criminal law and procedure
Accused convicted subject to further argument on Bill of Rights issues— Whether conviction valid
R v Ng Ming [HCt] 908
Appeals — Appeal against conviction out of time — Whether leave shouldbe granted — Appeal on point of law — Point overlooked by legal advis-ers in previous application for leave to appeal against sentence —Interests of justice
R v Ng Kit-yuen [CA] 33
Appeals — Appeal against conviction of possession of a dangerous drugfor the purpose of trafficking therein — Summing up — Direction to jurythat evidence of the accused should be subject to special scrutiny for noreason other than she was the accused — Whether consistent with com-mon law presumption of innocence
R v Leung Kit-chun [CA] 38
HKPLR Subject Index 951
Appeals — Leave to appeal out of time — Conviction of non-existentoffence — Appeal against conviction under provision subsequently de-clared by appellate courts to have been repealed by Bill of Rights beforeconviction of defendant — Hong Kong Bill of Rights Ordinance (Cap383), s 3(2)
R v Kwok Hing-man [CA] 186
Appeals — Court of Appeal — Jurisdiction to order a retrial — “freshindictment” — “retrial” — Governor’s consent for the institution of pro-ceedings — Appeals — Court of Appeal — Crimes Ordinance (Cap 200),s 23(C) — Criminal Procedure Ordinance (Cap 221), s 83E
R v So Mun-sung [CA] 318
Appeals — Court of Appeal — Whether criminal jurisdiction of the Courtof Appeal includes power to hear appeals from proceedings which areclaimed to be a nullity
R v So Mun-sung [CA] 318
Appeals — Convictions — Substitution of conviction for another offence— Whether open to court to substitute conviction under another limb ofsame section where limb under which charge was made is declaredrepealed — Summary Offences Ordinance (Cap 228) , s 17
R v Chong Ah-choi and others [CA] 375
Bail pending appeal — Asylum-seekers — Refusal of refugee status —Decision successfully challenged in judicial review proceedings — WhetherCourt of Appeal had jurisdiction to grant bail pending appeal by govern-ment — Whether bail should be granted
Re Le Tu Phuong and another [CA] 159
Confiscation proceedings — Confiscation proceedings not involving de-termination of a criminal charge — “criminal charge” — Prison termbeing enforcement of order for payment and not as punishment for drugtrafficking — Drug Trafficking (Recovery of Proceeds) Ordinance, ss 4(2)and 4(3)
R v Ko Chi-yuen [CA] 152
Courts — Powers of District Court — Power at common law to orderrestrictions on publication — Contempt of Court Act 1981 (UK), s 4(2) —Criminal Procedure Ordinance (Cap 221), ss 122, 123
R v Wong Sik-ming [DCt] 488
Criminal offences — Possession of forged instrument — Whether an in-strument — “instrument” — “die” — Crimes Ordinance (Cap 200), s 68
R v Tai Yiu-wah [CA] 56
952 Subject Index (1994) 4
Criminal offences — Obstruction of road — Whether obstruction whereroad blocked by other vehicles — “parking place” — Fixed Penalty (Traf-fic Contraventions) Ordinance (Cap 237), ss 4, 7(1) — Road Traffic(Parking) Regulations (Cap 374 sub leg), reg 2(1)
R v Crawley [HCt] 62
Criminal offences — Unlawful assembly — Active participation requiredfor an offence of unlawful assembly — Reasonable fear of breach of thepeace — Whether reasonable fear exists to be determined by an objec-tive test — breach of the peace — Public Order Ordinance (Cap 245), s18
R v To Kwan-hang and Tsoi Yiu-cheong [CA] 356
Criminal offences — Possession of offensive weapon — Defence of lawfulexcuse or justification — Whether consistent with presumption of inno-cence — Whether definition of offensive weapon too broad — Possible toexcise words from definition to render it consistent with Bill of Rights —“offensive weapon” — “suitable” — Public Order Ordinance (Cap 245), ss2, 33
R v Chong Ah-choi and others [CA] 375
Criminal offences — Possession of offensive weapon or other articles —Whether offence consistent with Bill of Rights — Consistent with Bill ofRights so far as prosecution required to prove unlawful purpose — Re-quirement that accused prove innocent possession inconsistent with Billof Rights — Bill of Rights, art 11(1) — Summary Offences Ordinance(Cap 228), s17
R v Chong Ah-choi and others [CA] 375
Criminal offences — Mens rea — Strict liability offences — Whetherconsistent with Bill of Rights — Whether offences interpreted as strictliability offences as a result of application of Gammon criteria consistentwith the Bill of Rights — “truly criminal” — Dutiable CommoditiesOrdinance (Cap 109) — Bill of Rights, arts 5(1), 11(1)
Attorney General v Fong Chin-yue and others;R v Wang Shi-hung [CA] 430
Criminal offences — Offence of being a construction site controller of asite on which an illegal immigrant is found — Elements of the offence —Whether element of the offence includes the defence that the controllertook all practicable steps to prevent the illegal immigrant from being onthe construction site — Hong Kong Bill of Rights, arts 11(1), 22 —Immigration Ordinance (Cap 115), s 38A
R v Dragages et Travaux [Mag] 601R v China State Construction Engineering Corporation [Mag] 716
HKPLR Subject Index 953
Defences — Strict liability offences — Defence of honest and reasonablebelief available to offence of strict liability — Dutiable CommoditiesOrdinance (Cap 109), s 17
Attorney General v Fong Chin-yue and others;R v Wang Shi-hung [CA] 430
Defences — Defence as element of strict liability offence — Statutorydefence for strict liability offence — Whether element of the offenceincludes the defence that the controller took all practicable steps toprevent the illegal immigrants from being on the construction site —Hong Kong Bill of Rights, arts 11(1), 22 — Immigration Ordinance(Cap115), s 38A
R v Dragages et Travaux [Mag] 601R v China State Construction Engineering Corporation [Mag] 716
Evidence — Witnesses — Testimony of accused — “Suspect witness” —Whether tests applicable to witnesses in a criminal trial same whereaccused is witness — Broadhurst direction
R v Leung Kit-chun [CA] 38
Evidence — Unlawfully obtained evidence — Discretion of court to ex-clude — Evidence obtained in exercise of power under statutory provisionheld inconsistent with Bill of Rights — Exclusion not automatic — Fac-tors to be considered — Technical infringement of protected right — Nounfairness, injustice or prejudice to defendant — Dangerous Drugs Or-dinance (Cap 134), s 52(1)(e)
R v Yu Yem-kin [HCt] 75
Evidence — Onus of proof — Presumptions — Mandatory presumptionof fact — Whether legislature bound to choose the least intrusive means— Reverse onus — Rebuttal of presumption — Presumption of inno-cence — Rational connection — Proportionality
R v Choi Kai-on [CA] 105
Evidence — Onus of proof — Presumptions — Mandatory presumptionsof fact — Consistency with Bill of Rights — Possession of dangerousdrugs for the purpose of trafficking — Presumption of possession —Presumption of innocence — Possession of key to motor vehicle — Pre-sumption of knowledge — Physical possession — Dangerous DrugsOrdinance (Cap 134), ss 8, 47(1), 47(2)
R v Lum Wai-ming [CA] 497
Gambling offences — Comparative severity of gambling, drug and im-port/export offences — Presence in a gambling establishment — Inferencedrawn from defendant’s presence when illegal acts are committed —
954 Subject Index (1994) 4
“gambling establishment” — Gambling Ordinance (Cap 148), ss 2, 19(2)— Bill of Rights, art 11(1)
R v Choi Kai-on [CA] 105
Immigration offences — Whether consent of both Governor and Attor-ney General to institution of proceedings required — Crimes Ordinance(Cap 200), s 23C — Immigration Ordinance (Cap 115), ss 37C(1), 37L —Territorial Waters Jurisdiction Act 1878 (UK), ss 3, 4
R v Ng Kit-yuen [CA] 33
Missing exhibit — Whether duty to produce non-documentary exhibitsat trial mandatory or directory — Whether fair trial possible — Whetherreasonable possibility that the destruction or loss of evidence wouldimpair the defendant’s ability to make full answer and defence to thecharge — Stay of proceedings — Bill of Rights, arts 10, 11(2)(b) —Magistrates Ordinance (Cap 227), s 86(4)
R v Chu Kam-to and another [HCt] 472
Order to surrender travel documents — Requirement that person applyto ICAC Commissioner for return of documents consistent with Bill ofRights — Requirement to show undue hardship before court — “unduehardship” — Prevention of Bribery Ordinance (Cap 201), s 17B(5)
Re Tin Sau-kwong [Mag] 917
Practice — Concurrent civil proceedings seeking judicial review of deci-sion having bearing on issue in criminal proceedings — Declaration notto be granted if such would preempt or prejudice criminal proceedings
R v Obscene Articles Tribunal, ex parte Loui Wai-poand Ming Pao Holdings Ltd [HCt] 5
Right to a fair trial — Presumption of innocence — Summing up —Direction to jury that evidence of the accused should be subject to spe-cial scrutiny for no reason other than that she was the accusedundermined the presumption of innocence
R v Leung Kit-chun [CA] 38
Sentencing — Remission of sentence given by executive less than thatsuggested by sentencing judge — Whether Court of Appeal should con-sider circumstances that had occurred since sentence was passed —Whether decision of Governor could be challenged on the ground ofirrationality
R v Governor, ex parte Reid [CA] 18
Sentencing — Offence carrying a maximum penalty of 14 years’ impris-onment replaced by new offence carrying maximum penalty of 3 years’
HKPLR Subject Index 955
imprisonment respectively — Sentence imposed in excess of 3 years —Bill of Rights entitling sentencing on basis of lesser maximum — CrimesOrdinance (Cap 200), LHK 1984 ed, s 76(2) — Crimes Ordinance (Cap200), ss 75(2)
R v Tai Yiu-wah [CA] 56
Sentencing — Offence carrying a maximum penalty of 14 years’ impris-onment replaced by new offence carrying maximum penalty of 3 years’imprisonment respectively — Sentence of 2 years imposed on basis of14-year maximum — Whether Bill of Rights entitled defendant to besentenced on basis of lower maximum — Crimes Ordinance (Cap 200),LHK 1984 ed, s 76(1) — Crimes Ordinance (Cap 200), ss 100(2) —Crimes (Amendment) Ordinance 1992 (No 49 of 1992)
R v Tai Yiu-wah [CA] 56
Sentencing — Length of sentence — Taking into account of term alreadyserved — Sentencing by lower courts
R v Choi Kai-on [CA] 105
Sentencing — Previous record of criminal conviction — Whether proof ofprevious criminal conviction by certificate of an authorized police officerconsistent with the Bill of Rights — Previous judicial guidelines onsentencing Chinese illegal immigrants to be applied with flexibility —Criminal Procedure Ordinance, s 63 — Bill of Rights, arts 11(1), 11(2)(e)
R v Wong Wai [Mag] 245
Sentencing — Offence carrying a maximum penalty of 14 years’ impris-onment replaced by new offence carrying maximum penalty of 3 years’imprisonment respectively — Sentence of 2 years imposed on basis of14-year maximum — Whether Bill of Rights entitled defendant to besentenced on basis of lower maximum — Crimes Ordinance (Cap 200),LHK 1984 ed, s 76A(1) — Crimes Ordinance (Cap 200), ss 76(1), (2) —Crimes (Amendment) Ordinance 1992 (No 49 of 1992)
R v Yau Chi-keung [CA] 453
Strict liability offences — Whether consistent with Bill of Rights —Hong Kong Bill of Rights, arts 11(1), 22 — Immigration Ordinance (Cap115), s 38A
R v Dragages et Travaux [Mag] 601
Witnesses — Missing witnessesR v Yeung Chi-chiu and another [DCt] 677
Witnesses — Detention of witnesses to ensure availability at trial —Conditions precedent to exercise of power by court — Vietnamese boat
956 Subject Index (1994) 4
people detained in order to give evidence for the Crown — ImmigrationOrdinance (Cap115), ss 13 E, 32(4)
Attorney General v Pham Si Dung (No 1) [HCt] 799
Witnesses — Detention of witnesses to ensure availability at trial —Whether power available to detain witnesses for the defence — Immi-gration Ordinance (Cap 115), ss 13 E, 32(4)
Attorney General v Pham Si Dung (No 2) [HCt] 813
Witnesses — Detention of witnesses to ensure availability at trial —Principles to be applied by court in deciding on application — Vietnam-ese boat people detained in order to give evidence for the Crown —Immigration Ordinance (Cap 115), ss 13 E, 32(4)
Attorney General v Bui Thi Ngoan and others (No 1) [HCt] 824Attorney General v Bui Thi Ngoan and others (No 2) [HCt] 832Attorney General v Bui Thi Ngoan and others (No 3) [HCt] 837
Witnesses — Repatriation of defence witnesses to China before trial —Whether witnesses could be detained under provisions providing fordetention of prosecution witnesses — Whether Director of Immigrationcould detain them or permit them to enter into a recognizance — Whetherwitness summons necessary for Director of Immigration to detain wit-nesses with their consent pending trial — Immigration Ordinance (Cap115) , ss 32(4), 36
R v Ng Ming [HCt] 908
Customs and excise
Dutiable commodities — Possession of dutiable goods other than in ac-cordance with provisions of Dutiable Commodities Ordinance — Whetherstrict liability offence — Whether defence of honest and reasonable be-lief available — Dutiable Commodities Ordinance (Cap 109), s 17 — Billof Rights, art 11(1)
Attorney General v Fong Chin-yue and others;R v Wang Shi-hung [CA] 430
Elections
Administration — Returning officer — Undesirable to leave difficult ques-tions such as whether a prospective candidate is or is not ordinarily residentin Hong Kong to an administrative officer acting as returning officer
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400
HKPLR Subject Index 957
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Candidates — Qualifications — Election petition — Whether judicialreview prior to election challenging the decision of returning officer dis-qualifying a prospective candidate an alternative remedy to electionpetition — Whether the court should exercise discretion to entertainjudicial review before the election — Boundary and Election Commis-sion (Electoral Procedure) (Geographical Constituencies) Regulations (Cap432, sub leg), reg 9(7) — Boundary and Election Commission Ordinance(Cap 432), s 7 — Electoral Provisions Ordinance (Cap 367), s 30
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Qualifications — Ordinary residence — Whether involuntary imprison-ment in China for counter-revolutionary crime disrupts ordinary residencein Hong Kong — Electoral Provisions Ordinance (Cap 367), s 18(2)
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Qualifications — Whether requirement of ten year’s continuous ordinaryresidence immediately before the date of nomination an unreasonablerestriction of the right to be elected — “ordinary residence” — ElectoralProvisions Ordinance (Cap 367), s 18(2) — Bill of Rights, art 22
R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [HCt] 400R v Apollonia Liu, ex parte Lau San-ching; R v ThomasChow Tat-ming, ex parte Eric Chan Po-ming; R vThomas Chow Tat-ming, ex parte Richard Fung Chan-ki [CA] 415
Employment
Civil servants — Contract of service of civil servant — Whether anemployment relationship and governed by private law or a matter of
958 Subject Index (1994) 4
public lawR v Commissioner of Correctional Services, ex parteNgai Fook-lam [HCt] 854
Evidence
Admissibility — Committal proceedings —Power of magistrate to ex-clude evidence
R v Cho Shu-wah [HCt] 514
Admissibility — Computer records — Conditions of admissibility — Powerof trial judge to order oral evidence to be given — Whether provisioninconsistent with right to examine or have examined witnesses againstone — “prima facie” — Evidence Ordinance (Cap 8), ss 22A(1), (7) —Hong Kong Bill of Rights, art 11(2)(e)
R v Chow Chai-sang [DCt] 592
Admissibility — Judge’s power to reconsider admissibility of evidence atthe stage of closing speech
R v Chow Chai-sang [DCt] 592
Exhibits — Production of exhibits — Whether duty to produce non-documentary exhibits at trial mandatory or directory — MagistratesOrdinance (Cap 227), s 86(4)
R v Chu Kam-to and another [HCt] 472
Lies — Relevance to establishing guilty knowledge of accused — Not tobe relied on as direct evidence — Whether trial judge relied on lies asdirect evidence
R v Anastasius Chiu [CA] 457
Extradition
Admissibility of evidence — Admissibility of photograph containing preju-dicial and unnecessary information — Relevance of photograph —Whether photograph of suspect wrongly admitted as evidence wherewithout such photograph there would have been no evidence to link theapplicant to the two charges in question
R v Cho Shu-wah [HCt] 514
Admissibility of evidence — Whether duty of magistrate in an extradi-tion proceedings to exclude relevant evidence because of certainprejudicial effect — Whether appropriate to use photograph to establish
HKPLR Subject Index 959
prima facie identity at an extradition hearingR v Cho Shu-wah [HCt] 514
Admissibility of evidence — Whether appropriate to apply exactly thesame rules of evidence as would be applied in a committal proceeding —Application of Bill of Rights to extradition proceedings — ExtraditionAct 1989 (UK), Schedule 1, clause 6(1)
Re Thanat Phaktiphat [HCt] 652
Letters of request — Whether proceedings in requesting country are of apolitical character — Whether test applicable in extradition proceedingsshould apply to letters of request — Whether foreign proceedings of apolitical character — Expert evidence — Weight to be given to evidenceas to historical and political background of the requesting country —“political character” — “proceeding” — “criminal matter” — “criminalproceedings of a political character” — Evidence Ordinance (Cap 8), s77B (3)
Crown Solicitor, The v Datuk Jeffrey Kitingan [HCt] 860
Procedure — Habeas corpus — Grounds on which court hearing habeascorpus application permitted to review the decision of a magistrate tocommit fugitive to await surrender — Whether facts which emerge sub-sequent to extradition hearing can be relied on to impugn magistrate’sdecision — Supreme Court Ordinance (Cap 4) s 23(1)
Re Thongchai Sanguandikul and the Governmentof the United States of America and another (No 2) [CA] 768
Family law
Affiliation proceedings — Child support — Illegitimate children —Whether mother of illegitimate child subject to time limit in applying forfinancial provision from putative father — Conflict between Guardian-ship of Minors Ordinance (Cap 13) as amended by the Parent and ChildOrdinance (Cap 429) and Affiliation Proceedings Ordinance (Cap 183) —Legislative history — Legislative intention to put legitimate and illegiti-mate children on same footing — Affiliation Proceedings Ordinance (Cap183), ss 4 — Guardianship of Minors Ordinance (Cap 13), s 10 — HongKong Bill of Rights, arts 20, 22 — Parent and Child Ordinance (Cap429)
L v C [HCt] 388
Affiliation proceedings — Evidence — Requirement of corroboration ofmother’s evidence as to paternity of putative father — Whether consist-ent with Bill of Rights — Reasonable and proportionate measure —Affiliation Proceedings Ordinance (Cap 183), s 5 — Hong Kong Bill of
960 Subject Index (1994) 4
Rights, arts 20, 22L v C [HCt] 388
Habeas corpus
Extradition proceedings — Function of the judge in habeas corpus appli-cation
R v Cho Shu-wah [HCt] 514
Extradition proceedings — Renewed application — Fresh evidence —Whether evidence available to applicant since extradition hearing maybe relied on to impeach the decision of the magistrate to commit fugitiveto await surrender — “fresh evidence” — Supreme Court Ordinance(Cap 4) s 23(1)
Re Thongchai Sanguandikul and the Governmentof the United States of America and another (No 2) [CA] 768
High Court
Jurisdiction over matters on appeal from Obscene Articles Tribunal —Decisions on points of law — Powers — Whether High Court has powerto order Tribunal to reconsider its determination on obscenity — Powerwhen Tribunal had erred by considering irrelevant matters, or failed toconsider important or relevant matters — Control of Obscene and Inde-cent Articles Ordinance (Cap 390), s 29
R v Obscene Articles Tribunal,ex parte Hui Siu-yan and others [Obscene Articles Tribunal] 901
Human rights
Domestic jurisdiction — Non-interference in matters essentially withindomestic jurisdiction —China — Whether hearing of complaint violationof non-interference principle
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Immigration
Application for a change of status on the basis of marriage — Whethergenuine relationship of man and wife existed — Burden of proof on the
HKPLR Subject Index 961
applicant to satisfy the immigration officer of the existence of a genuinemarriage — Standard of proof that of balance of probabilities
R v Director of Immigration, ex parte Du Gui Fang [HCt] 562
Asylum-seekers — Refusal of refugee status — Decision successfullychallenged in judicial review proceedings — Whether Court of Appealhad jurisdiction to grant bail pending appeal by government — Whetherbail should be granted
Re Le Tu Phuong and another [CA] 159
Asylum-seekers — Procedure for determining claim to refugee status —Whether immigration officer obliged to read back record of interview toapplicants in all cases — Circumstances in which read back necessary— Desirability of read back
R v Director of Immigration, ex parteLe Tu Phuong and another [CA] 337
Director of Immigration — Powers — Exercise of discretion — Whetherrequired to comply with provisions of unincorporated treaty — Whetherrequired to take provisions of treaty into account — Statelessness —Relevance of possible statelessness apart from treaty — Convention Re-lating to the Status of Stateless Persons 1954, art 31
R v Director of Immigration, ex parte Simon YinXiang-jiang and other [CA] 265
Director of Immigration — Discretion to permit illegal immigrant toremain in Hong Kong on humanitarian grounds — “humanitariangrounds” — Immigration Ordinance (Cap 115), s 13
R v Director of Immigration, ex parte Cheung Kuk-ching [HCt] 542
Immigration Offences — Being captain of a ship on which an unauthor-ised entrant enters Hong Kong — Consent of Governor and AttorneyGeneral required to institution of proceedings — Immigration Ordinance(Cap 115), ss 37C(1), 37L — Crimes Ordinance (Cap 200), s 23C —Territorial Waters Jurisdiction Act 1878 (UK), ss 3, 4
R v Ng Kit-yuen [CA] 33
Immigration Offences — Assisting the passage of an unauthorized en-trant within Hong Kong — Whether this offence can be substituted foroffence of being a crew member of a ship which entered Hong Kong withunauthorized entrants on board — Whether consent to prosecution ofone offence sufficient in relation to consent required for prosecution ofthe substituted offence — Crimes Ordinance (Cap 200), s 23C — Immi-gration Ordinance (Cap 115), ss 37C(1)(a), 37D(1)(a), 37L
R v Chan Chak-fan [CA] 115
962 Subject Index (1994) 4
Immigration Offences — Being a crew member of a ship which enteredHong Kong with unauthorized entrants on board — Whether persons inpossession of “Sea-going Boat Person Certificates” issued by the ChineseGovernment are unauthorized entrants — “unauthorized entrant” —Immigration Ordinance (Cap 115), ss 37A, 37C(1)(a) — Immigration(Unauthorized Entrants) Order (Cap 115 sub leg), para 2(1)(aa)
R v Chan Chak-fan [CA] 115
Immigration Tribunal — Duty to give reasons — Adequacy of reasonsgiven — Requirement to consider all the material evidence — Immigra-tion Ordinance (Cap 115), s 53D
R v Immigration Tribunal, ex parte Tsang Yau-chiuand others [HCt] 500
Power to detain person in Hong Kong in order to give evidence — Exist-ence of order of Director of Immigration pre-condition to making ofdetention order by Secretary for Security and subsequent order by court— Immigration Ordinance — Immigration Ordinance (Cap 115), ss 13E,32(4), 36(1)
Attorney General v Pham Si Dung (No 1) [HCt] 799
Power to require a person liable to be detained to enter into a recogni-zance — Power enjoyed only by immigration and police officers — Nopower of the court to make such an order — Immigration Ordinance(Cap 115), s 36(1)
Attorney General v Pham Si Dung (No 1) [HCt] 799Attorney General v Bui Thi Ngoan and others (No 1) [HCt] 824
Power to detain person in Hong Kong in order to give evidence — Immi-gration Ordinance (Cap 115), ss 13E, 32(4), 36(1)
Attorney General v Pham Si Dung (No 2) [HCt] 813Attorney General v Bui Thi Ngoan and others (No 1) [HCt] 824Attorney General v Bui Thi Ngoan and others (No 2) [HCt] 832Attorney General v Bui Thi Ngoan and others (No 3) [HCt] 837
Presence of illegal immigrants on construction site — Liability of con-struction site controller when illegal immigrant found on constructionsite — Whether offence consistent with Bill of Rights — Hong Kong Billof Rights, arts 11(1), 22 — Immigration Ordinance (Cap 115), s 38A
R v Dragages et Travaux [Mag] 601R v China State Construction Engineering Corporation [Mag] 716
Refugees — Minor — Unaccompanied minor — Ward of court — Re-moval order — Vietnamese refugee — Decision of Director of Immigrationto remove unaccompanied minor — Wardship application conflicting with
HKPLR Subject Index 963
Immigration decisions — Immigration Ordinance (Cap 115), s 13DRe a Minor [HCt] 667
Review of decisions — Decisions to order removal of persons withoutright to enter and remain in Hong Kong not reviewable under the Bill ofRights — Immigration Ordinance (Cap 115), ss 13, 19 — Hong Kong Billof Rights Ordinance (Cap 383), s 11
R v Director of Immigration, ex parte Hai Ho-tak;R v Director of Immigration, ex parte Wong Chung-hingand others [CA] 324
Right to remain in Hong Kong using a foreign passport obtained by falseinformation — Marriage of such a person to a Hong Kong resident —Registration of a child to such a marriage under s 15(3) of the BritishNationality Act 1981 (UK)
Re Chan Yat-fai and others [SCt] 481
Unauthorized entrants — Whether Director of Immigration has powerto permit unauthorized entrants to stay in Hong Kong to testify onbehalf of defence at criminal trial — Appropriate procedures — Immi-gration Ordinance (Cap 115) s 13
R v Ng Ming [HCt] 908
International law
Human rights — Domestic jurisdiction —China — Claim of non-inter-ference in matters essentially within domestic jurisdiction —Whetherhearing of complaint violation of principle of non-interference
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Relationship between domestic and international law — Treaties — Un-incorporated treaties — Whether decision-maker required to comply withunincorporated treaty in the exercise of discretion — Wether decision-maker required to take provisions of treaty into account
R v Director of Immigration, ex parte Simon YinXiang-jiang and other [CA] 265
Statelessness — Revocation of passport and citizenship by foreign gov-ernment with retrospective effect — Whether Director of Immigrationshould take into account international treaty obligation in exercising hisdiscretion to permit a change of status — Convention Relating to theStatus of Stateless Persons
964 Subject Index (1994) 4
R v Director of Immigration, ex parte Simon YinXiang-jiang and other [CA] 265
Treaties — Reservations — Test of compatibility — Object and purposeof treaty — Non-derogable rights — Jus cogens — Role of treaty body indetermining compatibility — Effect of incompatibility — ICCPR — FirstOptional Protocol — Second Optional Protocol
General Comment No 24 (52) [Hum Rts Com] 727
Labour law
Freedom of Association — Right to organise and bargain collectively —Whether a violation of the right to freedom of association and the rightto bargain and organise collectively
Case No 1652 v China; Complaint against theGovernment of China presented by the InternationalConfederation of Free Trade Unions (ICFTU) [ILO] 736
Law reform
No appeal against refusal of the Director of Immigration to exercise hisdiscretion to allow an illegal immigrant to stay in Hong Kong on hu-manitarian grounds — Immigration Ordinance (Cap 115), s 13
R v Director of Immigration, ex parte Hai Ho-tak;R v Director of Immigration, ex parte Wong Chung-hingand others [CA] 324
Legal Aid
Whether applicant justified in rejecting offer of Legal Aid legal assist-ance — Leave to apply for judicial review out of time where delay causedby applicant’s rejection of offer of Legal Aid
R v Director of Immigration, ex parte Cheung Kuk-ching [HCt] 542
Legal profession
Disciplinary action — Personal advertising — Failure to discharge dutyof a barrister by failing to respond to requests from the Bar Council forcomments on a complaint — Whether the Hong Kong Bar Association inpromulgating its Code of Conduct is acting as a “public authority” withinthe meaning of the Hong Kong Bill of Rights Ordinance — Bar’s Code of
HKPLR Subject Index 965
Conduct, paras 10(a), 101 — Bill of Rights Ordinance, s 7(1)Re Anthony Chua [Barristers’ Disciplinary Tribunal] 637
Marriage
Notification of marriage — “Satisfactory” evidence of the identity of theproposed party to a marriage — Whether refusal of the Marriage Regis-try to accept a notice of an intended marriage for failure to supplysatisfactory evidence of the identity of a party to a marriage subject tojudicial review — Identity of party to a marriage — False names —Party to marriage using false name — Marriage Ordinance (Cap 181)
Re Chan Yat-fai and others [HCt] 481
Validity of marriage — Right to marry and to respect for family lifewithout discrimination — Hong Kong Bill of Rights, arts 1, 14, 19, 22and 23
Re Chan Yat-fai and others [HCt] 481
Medical Council
Disciplinary proceedings — Whether power to proceed with disciplinaryproceedings when the complainant had withdrawn the complaints —Whether duty to give reasons — Whether Crown Counsel can be ap-pointed to prosecute in the absence of the complainant — MedicalPractitioners (Registration and Disciplinary Procedure) Rules (Cap 161sub leg), r 22
R v Medical Council of Hong Kong, ex parte Li Sum-wo [HCt] 548
Obscene and indecent articles
Obscene Articles Tribunal — Jurisdiction — Whether a photo appertain-ing to a written article an “article” — Nature of classification procedure— Informal procedure without conclusively determining any issue be-tween the parties — Whether notice of classification should be served onthe parties adversely affected by the classification — “Parties to theproceedings” — Control of Obscene and Indecent Articles Ordinance(Cap 390) — Control of Obscene and Indecent Articles Rules (Cap 390sub leg), r 7(2)
R v Obscene Articles Tribunal, ex parte Loui Wai-poand Ming Pao Holdings Ltd [HCt] 5
Obscene Articles Tribunal — Jurisdiction — Exclusive jurisdiction to
966 Subject Index (1994) 4
determine whether articles are obscene or indecent — Whether Tribunalmust give reasons why it concluded that articles are obscene or indecent— Application of standards of morality — Intent to be published —Control of Obscene and Indecent Articles Ordinance (Cap 390), s 10(1)(c)
R v Obscene Articles Tribunal,ex parte Hui Siu-yan and others [Obscene Articles Tribunal] 901
Public display of indecent matter — Precise question of referral to bemade by magistrate, not by prosecuting officer — Duty on Tribunal tohave regard to the dominant effect of matter as a whole — “matter” —Control of Obscene and Indecent Articles Ordinance (Cap 390), ss 1, 10,23, 29
R v Obscene Articles Tribunal, ex parte Sum Mui-taiand another [HCt] 711
Reference to Obscene Articles Tribunal — Jurisdiction — Duty of magis-trate to refer to tribunal precisely the question which the tribunal has todecide — Duty to have regard to the dominant effect of matter as awhole — Control of Obscene and Indecent Articles Ordinance (Cap 390),ss 29
R v Obscene Articles Tribunal, ex parte Sum Mui-taiand another [HCt] 711
Police
Powers and duties — Whether police have power to cordon off a publicplace to prevent a public assembly or public demonstration — Duties ofthe police — Police Force Ordinance (Cap 232), s 10 — Interpretationand General Clauses Ordinance (Cap 1), s 39(1)
R v To Kwan-hang and Tsoi Yiu-cheong [CA] 356
Practice and procedure
Application for leave to apply for judicial review — Delay — When timebegins to run — Discretion to extend time limit — Rules of the SupremeCourt (Cap 4, sub leg), O 53
R v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 274
Application for leave to apply for judicial review — Proper test potentialarguability
R v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 274
HKPLR Subject Index 967
Contempt of court — Refusal by witness to answer questions — “Body or-der” — Order that person be brought before court at end of trial to be dealtwith — Whether order of custody — Evidence Ordinance (Cap 8), s 81(1)
Attorney General v Bui Thi Ngoan and others (No 3) [HCt] 837
Interim relief — Injunction — Factors to be consideredR v Panel on Takeovers and Mergers and another,ex parte William Cheng Kai-man [HCt] 274
Originating summons — Striking out originating summons — Scandal-ous, frivolous, vexatious — Originating summons as an abuse of process— Rules of the Supreme Court s 18, r 9
Re a Minor [HCt] 667
Originating summons — Seal — Effect of failure to seal originatingnotice of motion — RSC, O 8, r 3(6)
Attorney General v Bui Thi Ngoan and others (No 3) [HCt] 837
Pleadings — Statement of claim — Striking out — Abuse of process —Poorly drafted pleading — Particularity — Whether pleadings disclosedreasonable cause of action or were embarrassing — Whether defendantsknew nature of case — Whether pleadings could be perfected by provi-sion of particulars
Yung Tak-lam, Philip v Governor [Christopher Patten]and others [HCt] 885
Provision of information in court in camera and in the presence of therespondents’ counsel but in the absence of the respondents
Attorney General v Bui Thi Ngoan and others (No 3) [HCt] 837
Precedent
Stare decisis — Court of Appeal — Whether Court of Appeal bound tofollow earlier decisions
R v Tai Yiu-wah [CA] 56
Precedent — Whether Hong Kong High Court bound to follow EnglishCourt of Appeal where Hong Kong law does not materially differ
Re a Minor [HCt] 667
Public order
Breach of the peace — Reasonable fear of breach of the peace — Whether
968 Subject Index (1994) 4
direct evidence of fear of a breach of the peace required — Whetherreasonable fear of breach of the peace could be proved by the evidence ofpolice officers — Test for determining whether a reasonable fear existsan objective one — “breach of the peace”
R v To Kwan-hang and Tsoi Yiu-cheong [CA] 356
Unlawful assembly — Active participation as an element of the offence— Public Order Ordinance (Cap 245), s 18
R v To Kwan-hang and Tsoi Yiu-cheong [CA] 356
Refugees
Determination of status — Criteria to be applied — Standard of proof —UNHCR Guidelines — Difference between the United Kingdom and HongKong Schedules regarding the standard of procedural fairness to beadopted in the determination of applications by asylum-seeking — “refu-gee” — “well-founded fear of persecution” — “loss of nationality” —“refoulement”
R v Director of Immigration, ex parteLe Tu Phuong and another [CA] 337
Determination of status — Refugee screening procedure — Duties ofimmigration officers in carrying out screening procedure — Legitimateexpectation of asylum seekers not to be treated as illegal immigrantsuntil after the completion of screening procedure — Whether immigra-tion officer obliged to read back record of interview to applicants in allcases — Circumstances in which read back necessary — Desirability ofread back
R v Director of Immigration, ex parteLe Tu Phuong and another [CA] 337
Road traffic
Fixed penalty scheme — Whether involves criminal charge — Whetherconsistent with presumption of innocence — Whether different treat-ment of private drivers and Crown’s drivers discriminatory — FixedPenalty (Criminal Proceedings) Ordinance (Cap 240), ss 3A(4), 3B(4) —Fixed Penalty (Traffic Contraventions) Ordinance (Cap 237), ss 3(2),14(1), 14(2), 20(1), 23(1), 24
R v Crawley [HCt] 62
Offences — Obstruction — Whether obstruction where road blocked byother vehicles — “parking place” — Fixed Penalty (Traffic Contraven-
HKPLR Subject Index 969
tions) Ordinance (Cap 237), s 4 — Road Traffic (Parking) Regulations(Cap 374 sub leg), reg 2(1)
R v Crawley [HCt] 62
Search and seizure
Entry, search and seizure — Whether power to enter premises without awarrant on basis of reasonable suspicion inconsistent with Bill of Rights— Dangerous Drugs Ordinance (Cap 134), s 52(1)(e) — Bill of Rights,art 14
R v Yu Yem-kin [HCt] 75
Securities
Securities regulation — Breaches of Securities Ordinance — Stock Ex-change disciplinary proceedings Stock Exchange — Disciplinaryproceedings — Fair and impartial hearing — Right to legal representa-tion — Failure to reveal identity of principal witness and failure tosupply witness statement prior to hearing — Members of Disciplinarycommittee also members of Stock Exchange Council did not constitutebias — Bill of Rights, article 10
R v The Disciplinary Committee of the Stock Exchangeof Hong Kong Ltd, ex parte Onshine Securities Ltd [HCt] 523
Statutes
Commencement — Retrospective effect — Application to proceedingsinvolving events prior to commencement of statute — Dangerous DrugsOrdinance (Cap 134), s 47(2)
R v Lum Wai-ming [CA] 497
Interpretation — Presumption that legislation does not deprive a personof property rights without compensation — Distinction between legisla-tion which confiscates land and that which merely regulates the use ofland — Ambiguity resolved in citizen’s favour where statutory provisionis of a penal character — Town Planning Ordinance (Cap 131), ss 3(1)(b),21
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Interpretation — Whether the absence of the words “as well as for thetypes of building” in s 3(1)(b) of the Town Planning Ordinance restrictsthe Town Planning Board from laying down restrictions on the types of
970 Subject Index (1994) 4
building and plot ratios in a development permission area plan —Expressio unius est exclusio alterius — Expressum facit cessare tacitum— Purposive approach to interpretation to be adopted — Interpretationand General Clauses Ordinance (Cap 1), s 19 — Town Planning Ordi-nance (Cap 131), ss 3(1)(a) and (b)
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Interpretation — Legislative history — Law Reform Commission’s re-port and Hansard referred to as aids to interpretation — Parent andChild Ordinance (Cap 429), ss 6, 13
L v C [HCt] 388
Interpretation — Reference to Hansard Proceedings of the LegislativeCouncil
R v Dragages et Travaux [Mag] 601
Penal statutes — Existence of strict liability — Whether defence ofhonest or reasonable belief can be arrived at by construction — Rel-evance of provision of explicit defence in related provisions — DutiableCommodities Ordinance (Cap 109), s 17
Attorney General v Fong Chin-yue and othersR v Wang Shi-hung [CA] 430
Repeal of prior inconsistent legislation by Bill of Rights — Repeal takeseffect from date of commencement of Bill of Rights Ordinance — HongKong Bill of Rights Ordinance (Cap 383), s 3(2)
R v Kwok Hing-man [CA] 186
Repeal — Implied repeal — Whether legislative intention to place ille-gitimate and legitimate children on same footing impliedly repealedstatute which imposed time limit within which mother of illegitimatechild could apply for financial provision from putative father - AffiliationProceedings Ordinance (Cap 183), ss 4, 5 — Guardianship of MinorsOrdinance (Cap 13), s 10 — Parent and Child Ordinance (Cap 429), ss 6,13
L v C [HCt] 388
Statutory provisions to be interpreted to avoid absurdity only when theyare obscure or ambiguous
R v Director of Immigration, ex parte Hai Ho-tak;R v Director of Immigration, ex parte Wong Chung-hingand others [CA] 324
Subsidiary legislation — Presumption of validity of subsidiary legisla-tion — Forms of subsidiary legislation — Whether promulgation of
HKPLR Subject Index 971
development permission area plan under the Town Planning Ordinancepart of legislative process — Nature of development permission areaplan — Whether tabling of subsidiary legislation mandatory or directory— Whether development permission area plan advisory or binding —Whether implied power to make subsidiary legislation can exist along-side an express power to make delegated legislation — “subsidiarylegislation” — Interpretation and General Clauses Ordinance (Cap 1), ss3, 34 — Town Planning Ordinance (Cap 131), ss 3, 6, 7, 8, 9, 13, 14
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Validity of enforcement notice — Retrospective legislation — Town Plan-ning Ordinance (Cap 131) — Town Planning (Amendment) Ordinance1991 (Ordinance No 4 of 1991)
R v Attorney General, ex parte Tsei Kwei-king andanother [HCt] 686
Tort
Misrepresentation — Elements of tort of misrepresentation — Falserepresentation — Knowledge as to truth of representation — Reckless-ness as to truth of representation — Reliance — Damages and expenseincurred — Pure economic loss — Whether failure by government topublish submissions it had solicited from public with promise of publica-tion gave rise to cause of action
Yung Tak-lam, Philip v Governor [Christopher Patten]and others [HCt] 885
Town planning
Interim development permission area — Development permission areaplan — Unspecified use — Unauthorized development — Agriculturalland — Open storage of building materials and containers — Existinguses — Enforcement actions — Town Planning Ordinance (Cap 131), ss3, 20, 23, 26 — Town Planning (Amendment) Ordinance 1991 (Ordi-nance No 4 of 1991)
R v Attorney General, ex parte Tsei Kwei-king andanother [HCt] 686
Right to a fair hearing — Procedure for objecting to draft plans —Whether objection proceedings afford the objector a right to a fair andpublic hearing — Whether preparing and promulgating a DevelopmentPermission Plan a legislative or administrative act — Whether rightsand obligations in a suit at law involved in objection proceedings —
972 Subject Index (1994) 4
Whether objection proceedings involve a determination of civil rightsand obligations — Whether Town Planning Board an independent andimpartial tribunal — Bill of Rights, art 10 — European Convention onHuman Rights, art 6 — Interpretation and General Clauses Ordinance(Cap 1), s 34 — Town Planning Ordinance (Cap 131), ss 2, 3, 4, 4A, 6, 8,9, 13, 14, 16, 17A, 17B
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Whether Town Planning Board is acting ultra vires in laying downrestrictions on the types of building and plot ratios in draft developmentpermission plan — Interim Development Permission Plan — Draft de-velopment permission area plan — Outline Zoning Plan — Control onthe types of building and plot ratios — Green Belt zoning — “develop-ment” — “effective development permission area plan” — “interimDevelopment Permission Area” — Building Ordinance (Cap 123), s 16 —Town Planning Ordinance (Cap 131), ss 1A, 3, 4, 4A, 16, 20, 21 — TownPlanning (Amendment) Ordinance 1974 — Town Planning (Amendment)Ordinance 1991
R v Town Planning Board, ex parte Auburntown Ltd [HCt] 194
Wardship
Best interests of the child — Whether court can overrule parent’s re-fusal to consent to an operation on a 15-day old baby who would diewithout the operation
Re C (A Minor) [HCt] 793
Words and Phrases
“According to law” (Hong Kong Bill of Rights, art 11(1)) 105
“Alleged” 234,917
“Arbitrary” 56
“Article” (Control of Obscene and Indecent Articles Ordi-nance (Cap 390), s 13) 5
“As well as for the types of building” 194
“Breach of the peace” (Public Order Ordinance (Cap 245),s 18) 356
“Calculated to prejudice a fair trial” 488
“Civil rights and obligations” 194
“Criminal charge” 62,105
“Criminal matter” 860
“Criminal proceedings of a political character” — EvidenceOrdinance (Cap 8), s 77B (3) 860
“Decision” 337
“Determination” 43,194
“Determination of any criminal charge” (Hong Kong Bill ofRights, arts 10, 11) 667
“Development” 194
“Die” 56
“Direct pecuniary interest” 274,285,298
“Effective” 194
“Effective development permission area plan” 194
“Ex parte” (Prevention of Bribery Ordinance (Cap 201),s 17A(1)) 917
“Final” 400,415
“Fresh evidence” — Supreme Court Ordinance (Cap 4)s 23(1) 768
“Fresh indictment” 318
“Gambling establishment” (Gambling Ordinance (Cap 148),ss 2, 19(2), 23) 105
“Hong Kong” 115
“Humanitarian grounds” — Immigration Ordinance(Cap115), s 13 542
“Independent and impartial” 43
“Instrument” 56
“Interim Development Permission Area” 194
“Law” 56
“Loss of nationality” 337
“Matter” (Control of Obscene and Indecent ArticlesOrdinance (Cap 390), ss 1, 10, 23, 29) 711
“Necessary” (Hong Kong Bill of Rights, arts 16(2), 16(3)) 621
“No good cause” 43
“Nullity” 337
“Offensive weapon” 375
“Office” (Interpretation and General Clauses Ordinance(Cap1), s 63) 129
“Ordinary residence” 400,415
“Ordre public” (Hong Kong Bill of Rights, art 16(2)) 621
974 Words and Phrases (1994) 4
“Parking place” 62
“Party to the proceedings” (Control of Obscene and IndecentArticles Rules (Cap 390 sub leg), s r 7(2)) 5
“Peaceful assembly” (Hong Kong Bill of Rights, art 17) 356
“Person holding any office” (Interpretation and GeneralClauses Ordinance (Cap 1), s 63) 129
“Political character” 860
“Possibility of bias” 274,285,298
“Possibility of pecuniary interests” 274,285,298
“Potential arguability” 542
“Prima facie” (Evidence Ordinance (Cap 8), ss 22A(1), (7)) 592
“Proceeding” 860
“Proportional” 152
“Public authority” (Bar’s Code of Conduct, paras 10(a), 101) 637
“Public order” (Hong Kong Bill of Rights, art 16(2)) 621
“Rational” 152
“Real likelihood of bias” 274,285,298
“Realistic” 152
“Reasonable suspicion” 234, 917
“Reasonable suspicion of bias” 298
“Refoulement” 337
“Refugee” 337
“Retrial” 318
“Rights and obligations” (Hong Kong Bill of Rights, art 10) 43
HKPLR Words and Phrases 975
“Rights and obligations in a suit at law” (Hong Kong Bill ofRights, art 10) 194
“Satisfactory” 481
“Satisfactory account” (Summary Offences Ordinance(Cap228), s 17) 375
“Sea-Going Boat Person Certificates” 115
“Status” 56
“Suit at law” 43
“Suitable” 375
“Suspect witness” 38
“Suspected” 234,917
“Truly criminal” 430
“Unauthorised entrant” 115
“Undue hardship” (Prevention of Bribery Ordinance(Cap 201), s 17B(5)) 917
“Universal concept of justice” 56
“Unlawful” 56
“Unlawful assembly” (Public Order Ordinance (Cap 245),s 18) 356
“Well-founded fear of persecution” 337
976 Words and Phrases (1994) 4
