LegCo Paper No. CB(2) 2640/96-97
(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, 22 May 1997 at 5:00 pm
in Conference Room B of the Legislative Council Building

Members present :

    Hon Margaret NG (Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Members absent :

    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Christine LOH Kung-wai
    Hon Albert HO Chun-yan
    Hon IP Kwok-him
    Hon Ambrose LAU Hon-chuen, JP

Public Officers attending :

Mr Paul TANG
Deputy Director of Administration
Ms Cecilia YEN
Assistant Director of Administration
Mr Peter H H WONG
Senior Assistant Solicitor General (Acting)
Mr Duncan BERRY
Deputy Principal Crown Counsel
Mr CHOY Ping Tai
Assistant Director of Immigration
Mr LEUNG Ping Kwan
Principal Immigration Officer

Attendance by invitation :

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. Continued discussion on the Bill

(LegCo Paper No. CB(2) 2031/96-97
LegCo Paper No. CB(2) 2396/96-97(01)
LegCo Paper No. CB(2) 2403/96-97(01))

Proposed section 22A(4)

Members agreed to the proposed Committee Stage amendment (CSA) by the Administration.

Proposed section 22A(5)

Members agreed that the time for production and return should be left to the discretion of the Court to allow for the different circumstances of particular applications. The proposed CSA by the Administration was agreed.

Proposed section 22A(11)(b)

Assistant Director of Immigration reiterated the arguments put forward by the Administration at previous meetings, citing the Chieng A Lac case which involved 1,376 heads of family. He said that a great majority of applicants for habeas corpus had no argument against the removal under the Immigration Ordinance. Between December 1996 and May 1997, 1,144 Vietnamese illegal immigrants were repatriated by 47 flights. If the Director of Immigration did not have the power of removal pending habeas corpus proceedings, the impact on the Administration and the Court in terms of time and workload would be tremendous, particularly in the case of mass actions. Principal Immigration Officer remarked that between 1992 and this year, there were four cases of application for habeas corpus. The small number was due to the fact that illegal immigrants could avail themselves of other existing channels to appeal against the removal order. More than 1,000 removal and deportation orders were issued every year and if all removees and deportees were to apply for habeas corpus, the Administration and the Court would face tremendous difficulties in terms of detention and litigation. Deputy Director of Administration (DDA) added that at present applications for habeas corpus by illegal immigrants would not prevent the Administration from repatriating them to their countries of origin. However, if they knew that they could not be removed pending habeas corpus proceedings, the number of applications would certainly increase.

Mr Gerard McCoy said that the Bar Association agreed that illegal immigrants without the right of abode should be removed. However, it maintained the view that if the Court had concluded that an application for habeas corpus had ‘substance’, the subject of the case should not be removed until the case was finally disposed of by the Court. The Bar Association’s concern was that the rule of law should not be imperiled by the authorities of the Director of Immigration. As to whether similar provisions as in the new subsection (11)(b) existed in other common law jurisdictions, Mr McCoy stated that no similar legislation existed in countries like New Zealand, Australia (with the exception of the Northern Territory where information on the legislation could not be obtained), Canada (with the exception of Prince Edward Island and Northwest Territories where information on the legislation could not be obtained), India, Sri Lanka, South Africa, Fiji, Malaysia and Singapore. The Administration’s proposal was an expedient solution based on the assumption that Hong Kong would be swamped by illegal immigrants. The Bar Association did not consider that the scenario would happen if the legislation was passed in the form it proposed since the Court would grant leave only after a detached analysis of the merit of a case.

On the question of whether there were English case laws in which the Immigration Authority removed detained persons from the jurisdiction whilst habeas corpus proceedings were underway, Mr McCoy pointed out that the cases quoted by the Administration in its letter dated 21 May 1997 (LegCo Paper No. CB(2)2396/96-97(01)) were not habeas corpus cases but were judicial review cases. As to whether the proposed section 22A(11)(b) was in breach of the Hong Kong Bill of Rights Ordinance(BORO) and the International Covenant on Civil and Political Rights (ICCPR), Mr McCoy said that the assertion of the Administration was contrary to the prevailing decision of the High Court. He stressed that habeas corpus would not be an adequate implementation of BORO and ICCPR if a person could be removed pending habeas corpus proceedings and the power of Director of Immigration prevailed over the jurisdiction of the High Court.

Responding to Mr McCoy’s comments, Senior Assistant Solicitor General (Acting) (SASG (Ag)) said that there was no general prohibition against releasing people overseas. The Habeas Corpus Act 1679 prohibited the sending of people to unlawful imprisonment in other places. The protection in the present Bill went further than the UK legislation in that there was general prohibition against removing people outside. The Administration only wished to reserve an exception to the Immigration Department and in that case, the Director of Immigration just set people free, and not removed them to another place of detention. On the point about the ICCPR, he said that the ICCPR recognized the differential treatment between aliens and local people. The exception cited in sections 11 and 12 of BORO fully supported that contention. Moreover, the High Court decision cited by Mr McCoy referred to the non-exclusion of the power to apply habeas corpus. It did not address the point that the Bill was inconsistent with the ICCPR.

DDA commented that removing people to end detention pending habeas corpus proceedings was being done and the practice was accepted and endorsed by the Court. The Bills Committee should consider the Bill in the light of the problem faced by Hong Kong in immigration control and should not simply make comparisons with other Commonwealth jurisdictions. In response to Mrs Elizabeth WONG’s questions, SASG(Ag) said that the crucial consideration was the purpose of removal. The aim of the Director of Immigration was to remove people from Hong Kong. There was no intention to send them to another place of detention. There was an obligation under international law not to send people to another place where they would face persecution. Under the existing mechanism of the laws of Hong Kong, there was plenty of opportunity to apply for judicial review or an injunction against a removal order issued by the Director of Immigration.

Mrs Elizabeth WONG said that the spirit of trying to protect a person might be offended if the proper process of the Court was not completed. Whilst she was fully aware of the problem faced by the Administration insofar as illegal immigration was concerned, she would not take the risk of breaching the rule of law. She indicated that she would not agree to the CSA to subsection (11)(b) proposed by the Administration.

The Chairman concluded that as members did not accept the Administration’s position, the Bills Committee would move the CSA to delete the exception allowing removal from Hong Kong under an enactment to removal under the Immigration Ordinance. Mr Ronald ARCULLI reserved his position on the CSA proposed by the Bills Committee.


Proposed section 22A(14)

The Chairman pointed out that the Administration had agreed at an earlier meeting to delete the words "and is affected by this section only in so far as it is inconsistent with this section". She preferred the deletion of those words as they created confusion rather than clarification as to whether the purpose was to preserve the position under the common law. Deputy Principal Crown Counsel (DPCC) considered it advisable to include those words in order to give a clear direction as to what should happen in the unlikely event of a conflict between the relevant common law and the statutory provision. He pointed out that there was a principle of statutory interpretation that the common law was abrogated only in so far as expressly provided by statute. He added that this principle made it necessary to make it clear that the statutory provision prevailed over the common law in the event of an inconsistency. Responding to the Chairman’s question as to the effect of having or not having those words, Assistant Legal Adviser 4 (ALA4) said that the general principle was that if the statute was to codify the common law, the common law would not be affected, unless it was expressly stated to be so.

Mr Gerard McCoy said that the Bar Association preferred those words to be deleted since it believed that the flexibility of the remedy should best be left to the discretion of the Court. Should there be any inconsistencies or situation not catered for by the legislation, the common law with its certainty and adaptability should be the basis. DPCC remarked that in the immigration case, there might be inconsistencies between the common law and the statutory provisions since the exception given to the Director of Immigration to remove persons from Hong Kong pending habeas corpus proceedings was probably a departure from the common law. SASG(Ag) said that in the absence of those words, it was the general common law principle that the statutory provisions should prevail. The inclusion of those words would provide clarity and certainty. ALA4 agreed with the view of SASG(Ag) and said that the inclusion of those words was in accordance with the general principle of statutory interpretation. In response to Mr Ronald ARCULLI’s question, SASG(Ag) said that in the UK, there was a right under the common law to apply for writ of habeas corpus. The purpose of the UK Habeas Corpus Acts 1679 and 1816 was to improve on or rectify problems arising from the common law. By localizing the two Acts, the Bill improved the common law. In the event of any discrepancies, the Administration would prefer the statute to prevail. Mrs Elizabeth WONG said that she accepted the Administration’s position. Mr Ronald ARCULLI was inclined to support the Administration’s position.

In the light of members’ comments, the Chairman concluded that the Bills Committee would not move any CSA on subsection (14). However, she would give further consideration to the matter and if she decided to propose any CSA, that would be moved in her own capacity.

Forms of Writ of habeas corpus

DDA informed members that the Judiciary was taking action to modernize the statutory forms, including those in relation to the writ of habeas corpus proceedings, with a view to getting new forms ready in time. It would put forward proposals to the Rules Committee of the Supreme Court in due course. It was the preference of the Administration for the task of modernizing the forms to be done in one go: inconsistencies and confusion might arise from an isolated modernization exercise. The Chairman asked whether the Rules Committee could undertake to have the forms in relation to the writ of habeas corpus ready before 1 July 1997 even if the whole exercise could not be completed by then. DDA agreed to convey her request to the Rules Committee for consideration.



The Chairman said that she would make a verbal report to the House Committee on 23 May 1997. A written report on the deliberations of the Bills Committee would be submitted to the House Committee on 6 June 1997 to recommend that the Second Reading debate of the Bill be resumed on 17 June 1997.


II. Close of Meeting

The meeting ended at 6:15 pm.

LegCo Secretariat
10 June 1997

Last Updated on 18 October 1997