LEGCO Paper No. CB(2) 1470/95-96
(The minutes have been seen
by the Administration)
Ref :CB2/PL/SE

Minutes of Meeting of the LegCo Panel on Security

held on Friday, 12 April 1996 at 11:30 a.m. in Conference Room B of the Legislative Council Building

Members Present :

    Hon James TO Kun-sun (Chairman)
    Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon Bruce LIU Sing-lee
    Hon LO Suk-ching
    Hon Margaret NG
    Hon Lawrence YUM Sin-ling

Members Absent :

    Hon Howard YOUNG, JP #
    Hon Fred LI Wah-ming *
    Hon Zachary WONG Wai-yi *
    Hon CHAN Kam-lam *
    Hon Andrew CHENG Kar-foo *
    Hon CHEUNG Hon-chung *
    Hon HO Chun-yan *
    Hon IP Kwok-him *
    Dr Hon LAW Cheung-kwok *
    Hon LAW Chi-kwong *
    Hon TSANG Kin-shing *

Members Attending:

    Hon Christine LOH Kung-wai
    Hon LEE Kai-ming

Public Officers :

Mr Peter LAI, JP
Secretary for Security
Mr I G M Wingfield, JP
Crown Solicitor
Mr B J Bresnihan, MBE, JP
Refugee Co-ordinator
Asst Director of Immigration
(Vietnamese Refugees)

Staff in Attendance :

Mr Jimmy MA
Senior Asst Legal Advisor
Mrs Sharon TONG
Chief Asst Secy (2) 1
Miss Odelia LEUNG
Sr Asst Secy (2) 1

The meeting discussed the proposed legislation to amend the Immigration Ordinance (IO) (Cap 115).


2. Mr Peter LAI referred members to the information paper entitled "Proposal to amend the Immigration Ordinance pursuant to a "Privy Council decision on Vietnamese Migrants (VMs)" (Ref: LP No. CB(2) 997/95-96) for details of the proposal. Mr LAI highlighted that subject to the approval of the Executive Council (ExCo) to introduce the bill into LegCo, the Administration hoped that the three readings of the bill could be completed at one LegCo sitting, preferably on 24 April 1996.

3. In reply to Ms Emily LAU's question on the urgency of the bill, Mr Peter LAI said that the bill was aimed at plugging a loophole in the IO. At present, of the 19,000 VMs in Hong Kong, 11,000 had been cleared for return to Vietnam and 7,000 VMs had yet to be cleared by the Vietnamese authorities. The number of to-be-cleared VMs holding Taiwanese papers was unknown and it was not difficult to forge papers. Unless the IO was amended, there was a risk that more VMs would claim on the basis of the Privy Council judgement that they also fell to be released from detention. As a matter of fact, consequent to the Privy Council judgement, the Administration had already released 207 VMs who, in the Administration's judgement, fell within the terms of the judgement and could thus no longer be lawfully detained. The Administration was examining the cases of about another 40 VMs who might also be eligible for release on recognisance. Apparently the Administration was pro-active and was taking the initiative to examine the cases of VMs, rather than reacting until the VMs had applied for a writ of habeas corpus. Indeed, experience showed that the legal proceedings for such applications were dealt with swiftly and the court normally would grant temporary release to the applicants pending hearing.

4. On Ms Emily LAU's query of whether the bill sought to legalise indefinite detention of VMs, Mr Peter LAI said categorically that the Administration was not seeking to legislate for indefinite detention. The bill would not affect the current jurisdiction of the court to release a VMs who, in all the circumstances, had been detained for an unreasonable period. Mr Peter LAI pointed out that although the progress of the Vietnamese authorities in clearing VMs for return was not entirely satisfactory in the past few years, it should be noted that the Vietnamese authorities were dealing with a large caseload exceeding 100,000 cases. Since 1989, about 47,000 VMs in Hong Kong had returned to Vietnam. The Administration's experience showed that the Vietnamese Government would reply in every case, and that they did not delay a case rather than give a rejection. Mr I G M WINGFIELD said that the Attorney General's Chamber had confirmed that the bill was not inconsistent with the International Covenant on Civil and Political Rights (ICCPR). The Administration had no intention of amending section 13D (1A) of the IO which provided for the discretion of the court to release VMs detained for an unreasonable period. The bill only sought to clarify that where a VM claimed to be a non-national and that he would not be accepted by Vietnam, the court, in considering whether the purpose of detention had been spent, should give proper weight to a very material factor, namely whether the Vietnamese Government had rejected the VM in question. The court should not infer a rejection by the Vietnamese authorities, until and unless the request for repatriation had been refused by the Vietnamese Government. The bill would only apply to VMs whose nationality was in doubt and whose rejection might be inferred by the court. VMs who had actually been rejected by Vietnam and VMs who had volunteered for return but had not been cleared by Vietnam within a reasonable period of time would not fall within the ambit of application of the bill.

5. SALA advised that it would be difficult to comment on the legal effects of the bill without having sight of its text. Section 13D (1A), so far, had not been held as providing for indefinite detention of VMs. Based on the Administration's view on the scope of application of the bill, it could be inferred that the bill would not confer additional power to detain a VM indefinitely. In any case, the court would declare any legislation which was considered in breach of the ICCPR invalid.

6. Responding to Miss Christine LOH's enquiry, Mr I G M WINGFIELD replied that an application for habeas corpus need not be lodged by a legal representative. On Miss LOH's concern as to whether the bill would inhibit VMs from establishing a claim of statelessness in legal proceedings, Mr Peter LAI said that the proposed amendment related only to the weighing of evidence by the court in deciding whether a VM was detained lawfully. The question of statelessness was a separate issue. It had been the Administration's position that the Vietnamese Government had an obligation to take back all VMs whose habitual residence was Vietnam. UNHCR shared this view and agreed that the natural home for non-nationals was Vietnam. The problem of "non-nationals" was raised with the Vietnamese Government during the recent visit of FCO Minister Mr Jeremy HANLEY to Hanoi. The Vietnamese authorities agreed to review the question. Mr I G M WINGFIELD supplemented that according to international laws and practices, in considering a claim of statelessness, the test of connection should be with the home country of the claimant, and in the VM cases, Vietnam.

7. Mr CHEUNG Man-kwong opined that the proposed amendment fell short of settling the cases of VMs who were ethnic Chinese and were not accepted by either the Vietnamese Government or the Taiwanese Government. Neither would it resolve cases of VMs who volunteered for return but who had not been cleared by the Vietnam authorities within a reasonable period of time.

8. In response, Mr Peter LAI said that the proposed amendment was not aimed at resolving the problem of non-nationals. Resettlement of non-nationals depended on a third country. As a matter of fact, the Administration was awaiting a response from Taiwan on whether it would accept those released VMs who held Taiwanese papers. The proposed amendment was also not intended to address the issue regarding the lengthy time taken by the Vietnamese authorities in clearing some VMs who had volunteered for return. As said earlier, experience showed that the Vietnamese authorities would give a rejection to non-nationals and would not delay a case. The Administration was expecting an initial response from the Vietnamese Government on the 7,000 to-be-cleared cases in the coming two months. In proposing an amendment to the IO, the Administration had to balance the need to plug a loophole in the existing legislation and to uphold an important principle of habeas corpus enshrined in the common law.

9. Addressing Mrs Selina CHOW's questions, Mr I G M WINGFIELD reassured members that the proposed amendment would not affect the operation of section 13D(1A). Since there might be possible litigation, it would not be appropriate for the Administration to explain the legal position if the IO was not amended as proposed. Mr Peter LAI said that the Administration had been acting lawfully beyond doubt. Where the Administration considered that any VMs fell within the terms of the Privy Council judgement and could thus no longer be lawfully detained, the Administration would release them at once.

10. Miss Margaret NG was concerned about the restrictions imposed by the proposed amendment on the court in interpreting the circumstances under which the purpose of detention should be considered failed or spent. Mr I G M WINGFIELD explained that the proposed amendment would inhibit the court from making a particular finding that a VM had been rejected by the Vietnamese authorities when the court did not know whether or not the VM would be refused. Mr Peter LAI said that the only effect of the proposed amendment would be that the court should not infer a rejection of a VM by the Vietnamese authorities without evidence of such refusal/rejection. Mr LAI emphasised that the proposed amendment would not inhibit the court from releasing VMs on any other grounds.

11. SALA advised that the length of detention of the VMs in question was not the basis for the decision of the Privy Council. Under section 13D, the authority of the Director of Immigration in detaining VMs depended on the purpose of detention, namely pending removal from Hong Kong. Even the said purpose was fulfilled, whether detention remained lawful would hinge on its duration. The proposed amendment would not remove the power of the court under section 13D (1A) to review lawfulness of the detention which depended on whether the period was reasonable having regard to all the circumstances specified thereunder.

12. In reply to Mr YUM Sin-ling's question, Mr Peter LAI said that in any event, the bill would not apply to VMs who had been released pursuant to the Privy Council judgement. The Administration envisaged that of the 40 cases under examination, some VMs might also be eligible for release. More than half of the 7,000 to-be-cleared VMs were ethnic Chinese. However, the Administration could not guesstimate how many of them might fall within the terms of the Privy Council judgement. Mr P T CHOY advised that of the 207 released VMs, 62, 99 and 46 fell respectively within categories (a), (b) and (c) in paragraph 13 of LP No. CB(2) 997/95-96.

13. Ms Emily LAU stated that she was not convinced of the urgency of the bill as to warrant completing the three readings at one LegCo sitting. Such an approach would allow members no time to scrutinize the bill nor to propose Committee Stage Amendments. Members of the public would also be deprived of an opportunity to express views. Miss Christine LOH echoed Ms Emily LAU's view. Mrs Selina CHOW said that without even the draft bill, it would be difficult to decide whether the Administration's proposed legislative time-table was acceptable. Miss Margaret NG said that she acknowledged the urgency of the bill but had reservations about the one-sitting procedure. Mr Bruce LIU opined that not until he had studied the bill, he would not rule out such an option.

14. In response to members' enquiry, SALA said that it would be procedurally in order to complete the three readings of a bill at one LegCo sitting should the Council so agree under Standing Orders 42. Strictly speaking, the House Committee did not have the power to consider a bill prior to its introduction to LegCo. However, the House Committee meetings provided a convenient forum for members to express their views so that the Administration could take account of them in considering its course of action.

15. Mr Peter LAI said that the Administration would respect the views of LegCo on the legislative time-table of a bill. Unless the IO was amended, the loophole would remain unplugged and more VMs might be released. Upon the approval of the ExCo on 16 April 1996 to introduce the bill into LegCo, the Administration would send it to members immediately.

16. Members agreed that the House Committee be recommended to accord priority to the scrutiny of the bill. To further consider the possibility of completing the three readings of the bill at one sitting, members agreed to hold a meeting on 17 April 1996 (Thursday) at 5:30 p.m., subject to the approval of the ExCo to introduce the bill into LegCo.

17. The meeting ended at 1:20 p.m.

LegCo Secretariat
3 June 1996

# -- Away from Hong Kong
* -- Other Commitments

Last Updated on 21 Aug, 1998