LegCo Paper No. CB(2) 2649/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/14/96/S2
Bills Committee on the
Supreme Court (Amendment) Bill 1997
Minutes of the Meeting
held on Thursday, 15 May 1997 at 10:30 am
in Conference Room B of the Legislative Council Building
Members present :
Hon Margaret NG (Chairman)
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon Ambrose LAU Hon-chuen, JP
Member attending :
Hon Martin LEE, QC, JP
Members absent :
Hon Ronald ARCULLI, OBE, JP
Hon Christine LOH Kung-wai
Hon Albert HO Chun-yan
Hon IP Kwok-him
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers attending :
- Mr Paul TANG
- Deputy Director of Administration
- Ms Cecilia YEN
- Assistant Director of Administration
- Mr Ian DEANE
- Senior Assistant Solicitor General
- Mr Duncan BERRY
- Deputy Principal Crown Counsel
- Mr Raymond FAN
- Principal Assistant Secretary for Security
- Mr CHOY Ping Tai
- Assistant Director of Immigration
- Mr LEUNG Ping Kwan
- Principal Immigration Officer
Attendance by invitation :
- The Hong Kong Bar Association
- Mr Gerard McCoy,QC
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Mr Alan YU
- Senior Assistant Secretary (2)1
I. Confirmation of minutes of previous meeting
(LegCo Paper No. CB(2) 2284/96-97)
Subject to the words "Non-Panel member" on page one being amended to read "Non-Bills Committee member", the minutes of the meeting held on 24 April 1997 were confirmed.
II. Continued discussion on the Bill
(LegCo Paper No. CB(2)2274/96-97(01)
LegCo Paper No. CB(2)2031/96-97
LegCo Paper No. CB(2)2290/96-97
Proposed section 22A(4)
Members suggested that the proposed Committee stage amendment (CSA) be amended to the effect that part of the proceedings were to be conducted in camera if so specified by the Court, and reasons in respect of those proceedings to be announced in open court.
Proposed section 22A(5)
Members suggested that the Administration should consider specifying a time limit of 48 hours for production and return unless the Court granted an extension. At the Chairmans request, Mr Gerard McCoy agreed to provide written comments on the draft CSA to this section.
Proposed section 22A(9)
Members agreed to the proposed CSA.
Proposed section 22A(11)
Deputy Director of Administration (DDA) said that the Administration was prepared to limit the exception in the proposed new section 22A(11)(b) with respect to removal from Hong Kong under an enactment to removal under the Immigration Ordinance. The reason why it was considered necessary for immigration control to preserve an authority to remove a detained person where habeas corpus proceedings were underway had been explained previously. Another exception in the proposed new section 22A(11)(a) was concerned with the removal within Hong Kong from one place of detention to another under the Prisons Ordinance.
Mr Gerard McCoy said that the Bar Association was pleased to see the exclusion from the proposed section of enactments to removal under the Mental Health Ordinance, the Fugitive Offenders Ordinance and the Repatriation of Prisoners (Overseas Territories) Order 1986 (items (b), (c) and (d) on page 2 of the Administrations letter dated 13.5.97). However, it was adamantly opposed to the Director of Immigration being placed above and beyond the power of the High Court. It maintained the view that once habeas corpus proceedings were underway, a detained person should not be removed without further reference to the court. No other territories or countries under common law jurisdictions had the power of the Immigration Authority being placed above that of the High Court. Mr McCoy said that he agreed generally with all other amendments proposed by the Attorney General with the exception of subsection (11)(b) which conferred on the Director of Immigration the power to remove a person whilst habeas corpus proceedings were in train.
Members generally shared the Bar Associations view that the Director of Immigration should not have the power to remove a person away from Hong Kong pending habeas corpus proceedings. Representatives of the Administration considered otherwise, reiterating similar arguments expressed at pervious meetings.
DDA said that the present Bill served to amend the Supreme Court Ordinance (Cap. 4) so as to re-enact, in an updated form, the provisions of the UK Habeas Corpus Acts 1679 and 1816 in so far as those Acts were relevant to Hong Kong. If a person considered that he should not be removed, he could avail himself of existing channels to appeal against the removal order. The present provision was to enable effective immigration control to be exercised by the Administration.
In response to the Chairmans enquiries, Senior Assistant Solicitor General (SASG) said that there were a number of provisions in the Immigration Ordinance giving power to the Director of Immigration (D of I) to remove Vietnamese migrants specifically and people without the right of abode generally. He stressed that the present arrangement was not a case of putting D of I above the law or the High Court. As pointed out by Mr Bill MARSHALL previously, people could apply for an interim injunction at the start of habeas corpus proceedings. In the mass influx case cited, the Vietnamese migrants concerned had not applied for injunctions. When the approval from Vietnam came through, D of I was under an obligation to bring detention to an end. The process of removing people continued and the practice had been accepted and endorsed by the Court.
Principal Assistant Secretary for Security pointed out that under the Immigration Ordinance, there were three sets of situation under which removal would be exercised, viz. Vietnamese migrants, deportation and removal order. There were existing channels which enable people to appeal against D of Is decision. In the case of removal orders, the people concerned might not be removed whilst their appeals to the Immigration Tribunal were being considered. Assistant Director of Immigration then explained how the work of immigration control would be affected if D of I did not have the power to remove people pending habeas corpus proceedings. He stressed that the Immigration Department did not only deal with Vietnamese migrants, but also illegal immigrants, people without the right of abode, people who had overstayed and people holding forged documents, etc and there were thousands of such cases every month. DDA remarked that the Bar Associations proposal, if implemented, would convey a wrong message to would-be illegal immigrants who would hope to take advantage of the legal proceedings to stay in Hong Kong for a longer period of time. It would also complicate the proceedings since people involved might apply for both habeas corpus and injunction.
In response to Ms Emily Laus question, SASG said that immigration legislation was exempted from the provisions of the Hong Kong Bill of Rights (BOR) Ordinance. Mr McCoy pointed out that the Immigration Ordinance applied to people who had no right of abode in Hong Kong. At present, many of the people who were lawfully in Hong Kong were not qualified for the right of abode because they were non-Chinese nationals. Under BOR Ordinance, these people could challenge the lawfulness of any law which sought to differentiate by reason of race or nationality. The Bar Association therefore took the view that the new subsection (11)(b) proposed by the Administration was discriminatory and would violate the International Convenant on Civil and Political Rights (ICCPR), the Basic Law and BOR principles.
After some discussion, the Chairman advised that a decision on subsection (11)(b) should be deferred to the next meeting pending the Administrations response to the following issues raised by members -
- whether there were any English case laws in which the Immigration Authority removed detained persons from the jurisdiction whilst habeas corpus proceedings were underway, and whether similar provisions as in the new subsection (11)(b) existed in other common law jurisdictions;
- whether the new subsection (11)(b) was in breach of the BOR Ordinance and the ICCPR; and
- whether there were any common law jurisdictions in which their immigration legislation was exempted from the provisions of ICCPR.
Mr Gerard McCoy undertook to provide information on English case laws in which the Immigration Authority removed detained persons from the jurisdiction pending habeas corpus proceedings.
Proposed section 22A(12)
Members agreed to the proposed CSA.
Proposed section 22A(14)
The Chairman pointed out that the Administration had agreed at the previous meeting to delete "and is affected by this section only in so far as it is inconsistent with this section." The Chairman requested the Administration to look into this point and suggest proposed CSA as appropriate.
Writ of habeas corpus
DDA said that the Rules Committee of the Supreme Court was looking into the modernization of the various statutory court forms and it would therefore be inappropriate to consider the matter out of this general exercise. However, the Chairman was concerned as to whether the matter could be completed by the time the Bill was enacted since there was disagreement between the Administration and the Chinese side over the adaptation of laws exercise. Mr Gerard McCoy said that as the Rules Committee of the Supreme Court had to deal with more than three hundred forms, and in view of the importance of habeas corpus, the forms should become the Second Schedule to the Supreme Court Ordinance so that the Bill and the forms could be passed at the same time. DDA further explained that it was the preference of the Rules Committee for the task of modernizing court forms to be done in the context of the general exercise mentioned above. Moreover, as the rules might be changed in future, it was not considered appropriate for the forms concerned to be dealt with under the principal legislation. There were also reasons of consistency to be considered as the exercise was concerned with other forms as well. Nevertheless, it was the intention of the Rules Committee to have various court forms updated before 1 July 1997. The Chairman requested the Administration to explain, in more precise terms, the practical difficulties if the proposal by the Bar Association was to be adopted, and to advise on the timing for the relevant forms to be adapted for use after the enactment of the Bill.
III. Date of next meeting
The next meeting of the Bills Committee was scheduled for Thursday, 22 May 1997 at 5:00 pm.
IV. Close of Meeting
The meeting ended at 12:15 pm.
2 June 1997
Last Updated on 18 October 1997