LegCo Paper No. CB(2) 1817/96-97
(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 Second Meeting held on Saturday, 22 March 1997 at 11:00 am in Conference Room B of the Legislative Council Building

Members present :

    Hon Margaret NG (Chairman)
    Hon Emily LAU Wai-hing
    Hon Albert HO Chun-yan

Members absent :

    Hon Ronald ARCULLI, OBE, JP*
    Hon James TO Kun-sun*
    Hon Christine LOH Kung-wai*
    Hon IP Kwok-him*
    Hon Ambrose LAU Hon-chuen, JP*
    Hon Mrs Elizabeth WONG, CBE, ISO, JP*
Public Officers attending :
    Mr Paul TANG
    Deputy Director of Administration
    Mr Stephen FISHER
    Assistant Director of Administration
    Mr Ian DEANE
    Senior Assistant Solicitor General
    Mr Duncan BERRY
    Deputy Principal Crown Counsel

Attendance by invitation :

    The Hong Kong Bar Association

    Mr Gerald McCoy
    The Law Society of Hong Kong
    Mr Patrick MOSS

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 meeting

(LegCo Paper No. CB(2) 1537/96-97)

1. The minutes of the first meeting held on 12 March 1997 were confirmed.

II. Discussion on the Bill

Administration’s response to the concerns of the Bar Association

2. Assistant Director of Administration (ADA) briefed members on the Administration’s response to the Bar Association’s concerns contained in its letter dated 18 February 1997 (LegCo Paper No. CB(2) 1585/96-97(01)).

Proposed section 22A(5)

3. ADA said that the Administration accepted that the existing flexibility under RSC Order 54r2 should be retained. In response to the Chairman’s enquiry on the draft Committee stage amendment (CSA), Deputy Principal Crown Counsel (DPCC) said that the amendment would take a two-pronged approach, i.e. to retain the existing possibility of issuing the writ of habeas corpus and at the same time encompassing the procedure of allowing the court to direct a custodian to come before the court to justify the legality of the detention without producing the detainee. The draft would be ready before the next meeting and a copy would be sent to the Bar Association.Adm

Proposed section 22A(5)(a)

4. ADA pointed out that as subsection (5)(a) was now drafted, the Court had the power to direct the person having custody of the applicant to have the applicant brought before the Court at a specified time. The Administration considered it appropriate to leave the discretion to the judge issuing the writ to fix the return and production date. SASG remarked that as there had not been any problem with the court acting expeditiously and as there was no provision in the present law, he did not consider it necessary to introduce a measure of inflexibility into the legislation.

Proposed section 22A(9)

5. ADA said that the Administration had no objection to the Bar Association’s proposal to delete the provision for the making of consequential orders. A CSA would be prepared to achieve this.Adm

Proposed section 22A(11)

6. ADA advised that the Administration did not agree to the Bar Association’s proposal to remove the qualification enabling removal under the authority of an enactment. Using the Vietnamese refugee case as an example, ADA said that the Administration considered it necessary to retain the power to re-detain a person due to changed circumstances. However, he saw no problem with deleting the reference to the High Court and a CSA would be prepared to that effect.Adm

Proposed section 22A(12)

7. ADA advised that the Administration saw difficulty with the Bar Association’s suggested reformulation as it would preclude redetention on the same ground under any circumstances. A possible solution would be to restrict the provision to criminal matters. Senior Assistant Solicitor General (SASG) said that the problem of change in circumstances arose in the civil area particularly in relation to detention under the Immigration Ordinance where it might be necessary to re-detain on essentially the same ground because of a change in circumstances. The Administration would therefore wish to have the capacity to do that, and hence the reference to the authority of the High Court. The proposed restriction to criminal matters was based on section 5 of the Habeas Corpus Act.

8. In response to Ms Emily LAU’s enquiry, SASG said that administrative detention was not for a criminal offence. Obvious examples included detention of Vietnamese migrants pending removal under the Immigration Ordinance and detention under the Mental Health Act. The protection on redetention was historically restricted to criminal matters. In reply to the Chairman’s question, SASG confirmed that the Administration was of the view that there should be no redetention in respect of criminal matters but redetention should be permitted in respect of non-criminal, particularly immigration, matters to allow for changes in circumstances. He added that the proposal was in line with the present law.

Proposed section 22A(14)

9. ADA said that the Administration had no strong views on the Bar Association’s proposal to remove the words "and is affected by this section only insofar as it is inconsistent with this section".

Proceedings in open court

10. The Administration saw merit in the Bar Association’s suggestion for the inclusion of a provision requiring habeas corpus proceedings to be heard in open court unless there were compelling reasons for hearing the proceedings in private. A CSA would be prepared along these lines.Adm

11. The Chairman stated that the aim of the Bill was to put into legislation the present law and practice on habeas corpus having regard to the circumstances in Hong Kong. The areas requiring further discussion were subsections 5, 11 and 12. She then invited the Bar Association’s representative to brief members on the present practice, the Bar’s submission and the Administration’s response to its suggestions.

Views of the Bar Association

12. Mr Gerald McCoy of the Bar Association said that there were two ways in which habeas corpus could proceed. Firstly, when applying to the judge for habeas corpus, the judge could immediately order the writ run, i.e. the person holding the detainee was obliged to bring the person to court within a specified time and the detainor had the burden of proof to establish that he was lawfully holding the person. Secondly, the judge said that the writ would not issue and order the case to be heard on the same basis as if the writ had been issued. The Bar Association preferred some flexibility on the approach in that the writ was issued upon success. In general, the system worked because of the supremacy of the rule of law. The Bar Association took the view that members should consider either that the writ was a formal document and was only granted if a person was to be set free finally by the court or that the writ was issued in every case as the originating documentation. At the moment it worked both ways. The advantage in having the writ actually issued was that, if the custodian failed to comply with the terms of the writ, he committed an offence. The writ of habeas corpus gave precedence to all other court business. Secondly, it underlined the sanctity and importance of the issue at stake, viz. liberty. Thirdly, it was a reflection of the continuum of the common law at work. Lastly, it told in plain terms what happened if the writ was not complied with.

13. Mr McCoy further explained that habeas corpus applied to everyone in Hong Kong as it was the remedy for unlawful detention. It was applied in the following circumstances :

  1. immigration cases particularly in recent times in respect of Vietnamese detainees;

  2. other immigration circumstances such as illegal immigrants being held too long; unlawful detention of illegal immigrants for giving evidence; people being held by the Director of Immigration in his offices for long durations without access to a lawyer;

  3. mental health situations;

  4. military conscription;

  5. extradition cases; and

  6. custody battles in family law cases.

The most common examples of criminal cases in which habeas corpus was applied were unlawful arrest and extradition. The Bar Association expressed concern about the Administration’s intention to distinguish between civil and criminal habeas corpus. Mr McCoy then explained briefly how an application for habeas corpus was made. He suggested that the Administration should review the drafting of the subsidiary legislation in respect of the procedure for application for writ of habeas corpus.

14. On subsection (5)(a), Mr McCoy said that the Bar Association had proposed that 48 hours should be the maximum time permitted to comply with an order for production. The proposal was in line with the time within which police officers had to produce suspects before a magistrate. He pointed out that the Administration’s justification for not agreeing to a time limit was flawed since the 1679 Act and the 1816 Act looked at separate matters : the former at criminal law and the latter at civil law. The Chairman advised that since the Administration would be submitting draft CSAs on subsection (5) for consideration at the next meeting, discussion on this aspect should be deferred till then.

Proposed section 22A(11)

15. Mr McCoy tabled at the meeting the proposed amendments to proposed sections 22A(11) and (12) by the Bar Association. Mr McCoy stated that the Bar Association objected to conferring on the High Court the power to order the removal of a person from Hong Kong. He stressed that judges did not remove people, Government did. The Bar Association also objected to the removal of a person under the authority of an enactment because would have an impact on the independence of the Judiciary. The Bar was gravely concerned about the possibility that during the course of the habeas corpus proceedings, an applicant could be removed from Hong Kong. He cited a case in 1991-92 in which his clients were taken out to the United States whilst court proceedings were underway. Mr McCoy stressed that the Administration was not entitled to remove people once court proceedings were in train and until the legality of the detention had been finally determined by the court.

16. Members questioned whether persons having custody of the detained person could remove the detainee from Hong Kong when an application for habeas corpus had been made. SASG responded that this could happen and had happened. At members’ request, he undertook to check on the background and clarify the position at the next meeting.Adm

17. In response to members’ enquiries concerning judicial review, Mr McCoy said that some judges permitted applicants seek judicial review as an additional legal redress. The Bar Association considered this to be unnecessary because habeas corpus writ would take precedence over all other court business. The practice was therefore not supported by principle and should cease to operate.

Proposed section 22A(12)

18. Referring to the draft subsection (12) proposed by the Bar Association, Mr McCoy said that it had taken into consideration the intention of the law and the objection raised by the Administration. The Bar Association objected to the Administration’s proposal to distinguish between criminal and civil matters since all people should be treated equally. He stressed that re-detention was possible only if there was a material change in circumstances.

19. The Chairman requested the Administration to respond to the Bar Association’s proposed amendments later.Adm

Writs of Habeas Corpus

20. Mr McCoy referred to a copy of section 46(2) of and Schedule to the Supreme Court Ordinance tabled at the meeting and pointed out that the amendment of the Administration only dealt with Writ No. 9 (Writ of Habeas Corpus ad subjiciendum). However, Writs No. 10 and 11 were obsolete and should be removed. He therefore suggested, as a tidying-up exercise, that a provision should be added to repeal these two Writs. The Chairman asked that the Administration consider this point and respond in due course. In view of the importance of the Writ of Habeas Corpus ad subjiciendum, she suggested the Administration take that out of the whole adaptation of laws exercise and consider the language used now so that the Writ would be available for use as soon as the Bill was enacted. She invited the Bar Association and the Law Society to offer any suggestions they might have on the matter.Adm

Proceedings in open court

21. Mr McCoy said that the Bar Association was pleased to note that the Administration had agreed to their proposal for habeas corpus proceedings to be heard in open court. He remarked that the draft CSAs should have the following characteristics :

  1. in each and every case, habeas corpus was to be heard in open court unless there were exceptional reasons;

  2. if there were exceptional reasons, they must be given in open court; and

  3. if the matter was heard wholly or partially behind closed doors, the judgments must in every case be given in open court.

Views of the Law Society

22. Mr Patrick MOSS of the Law Society of Hong Kong said that the Law Society would reconsider its position on subsection (11) in the light of the comments made by the Bar Association and the background information to be provided by the Administration. He had no further comments to make on subsection (12).

23. The Chairman requested the Administration to follow-up on the matters raised and respond to the various points put forward by the Bar Association.Adm

III. Date of next meeting

24. The next meeting was scheduled for 2 April 1997 at 8:30 am. Further meetings were scheduled for 16 April 1997 (8:30 am) and 24 April 1997 (4:00 pm).

(Post-meeting note : The meeting scheduled for 2 April 1997 at 8:30 am has been cancelled.)

IV. Close of meeting

25. The meeting ended at 12:30 pm.

LegCo Secretariat
10 April 1997

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