For discussion EC(96-97)48
on 27 November 1996

ITEM FOR ESTABLISHMENT SUBCOMMITTEE
OF FINANCE COMMITTEE

HEAD 92 - LEGAL DEPARTMENT
Subhead 243 Hire of Legal services and related professional fees

Members are invited to recommend to Finance Committee the retention of the following consultancy position for the period from 21 May 1997 to 27 December 1997 in the Civil Division of the Legal Department -

1 Consultant (at Principal Crown Counsel (DL3))
($119,650 - $126,800)

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PROBLEM
PROPOSAL
JUSTIFICATION
FINANCIAL IMPLICATIONS
BACKGROUND INFORMATION
CIVIL SERVICE BRANCH COMMENTS
Legal Proceedings relating to Vietnamese Asylum Seekers and Illegal Immigrants
Main Duties and Responsibilities of Consultant at Principal Crown Counsel level -- Civil Division

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PROBLEM

The Legal Department lacks the expertise and capacity at the Principal Crown Counsel level to provide legal advice and conduct litigation in relation to Vietnamese asylum seekers and illegal immigrants when the existing consultancy position at Principal Crown Counsel level lapses on 20 May 1997.

PROPOSAL

2. Having regard to the progress in repatriating Vietnamese Migrants (VMs) and the anticipated work relating to legal proceedings concerning VMs, the Attorney General (AG), with the support of the Secretary for Security (S for S), proposes to retain the existing consultancy position for the period from 21 May 1997 to 27 December 1997.

JUSTIFICATION

3. As at the end of October 1996, there are still around 11 000 VMs, 1 300 Vietnamese Refugees and some 300 Ex-China Vietnamese Illegal Immigrants (ECVIIs) in Hong Kong. With the exception of a few new arrivals and new born babies, all of the VMs have been determined to be non-refugees and are awaiting repatriation to Vietnam, in accordance with the Comprehensive Plan of Action, the internationally agreed strategy for dealing with the VM issue.

4. While the Administration remains committed to expediting the VM repatriation programme, many VMs still hold out hope for overseas resettlement. Some VMs resort to lawsuits to fight for a change of their non-refugee status or challenge their detention. The number of legal challenges and the number of VMs involved in these challenges have grown rapidly over the last two years. In December 1993, when the consultancy was first proposed, there were four cases pending, each involving one VM and their families. There are now 14 cases pending involving a total of more than 6 000 persons. Apart from the VMs, the incumbent of the Consultancy post is required to deal with the residual number of ECVIIs still in Hong Kong. These ECVIIs appealed against their repatriation to China and a decision by the Privy Council is awaited. A list of the legal proceedings relating to refugee status determination, detention and/or removal, as well as other cases involvingrelating to VMs, is at Enclosure 1. These cases require legal input at directorate level and have to be handled by a very experienced officer.

5. The present VM situation is such that both S for S and AG consider it necessary to provide continued legal support to deal with the VM-related legal proceedings specifically. The incumbent of the Consultancy post is responsible to the Crown Solicitor for providing legal advice, conducting litigation and appearing on behalf of the Crown in connection with VM matters. The existing organisation chart of the Civil Division and the duty list of the Consultant are at Enclosures 2 and 3 respectively. The other existing Principal Crown Counsel in the Civil Division do not have the spare capacity to absorb the work which now engages the Consultant full time; nor are any of them specialist advocates. Given the sensitive, complicated and intricate nature of the work involved, the specialist experience of the present incumbent of the Consultancy position is invaluable. The incumbent has been involved in matters relating to VMs and immigration generally since 1980. Since 1987 he has conducted the majority of immigration and VM cases on behalf of the Government with considerable success. He was Leading Counsel in the High Court and Court of Appeal in both the cases recently heard in the Privy Council, and appeared in the Privy Council in both of them. In addition, in view of the expedited repatriation programme and the VM issue coming to a close in the foreseeable future, we do not consider it cost-effective to specifically train in-house counsel for the task. Instead, continuing to engage a Consultant on contract terms is a better option from the deployment of resources perspective.

6. AG has considered the alternative of briefing out the work. However, this option would be very expensive. In the period of the consultancy since 1 November 1995 to date, the Consultant has appeared as Leading Counsel in 15 cases (two in the Privy Council, three in the Court of Appeal and the rest in the High Court) on a total of 26 days. Assuming an average brief fee to cover preparation and the first day of hearing of $150,000 and a refresher rate of $40,000 for the second and subsequent days the cost of briefing out the cases would have been about $2.7 million.

7. Besides advocacy, the Consultant advises the Administration on an appropriate response to written challenges to our VM policy and its implementation and undertakes many of the functions of a solicitor in the conduct of litigation. Since 1 November 1995 to date he has given 176 pieces of advice. Assuming that each piece of advice would take an outside counsel an average of two hours to research and write and that Counsel charged $4,500 per hour, the cost of briefing out that work would have been $1.58 million. In practice, unless private counsel had the same degree of knowledge of the issues as the Consultant, the average time required to advise would likely be very much longer. Having regard to the full cost for a consultant at Principal Crown Counsel level, which is slightly above $2.6 million per annum, AG considers it good value for money to retain the consultancy position.

8. Members have been invited vide EC(96-97)49 to recommend to Finance Committee the retention of four supernumerary posts in Security Branch, Correctional Services Department, and Immigration Department until 30 September 1997 to deal with the management of VM camps, the repatriation of VMs and the resettlement of the Vietnamese Refugees. AG proposes that the consultant’s service should co-terminate with that rendered by these four supernumerary Directorate posts, i.e. until 30 September 1997. Since it is normal practice for consultants to take accumulated leave only at the end of the contract period, AG therefore proposes that the consultancy position should be further extended from 30 September 1997 to 27 December 1997 to include the leave period. We will however review the need for the post in mid-1997 and delete the post as soon as it is no longer necessary. Members may wish to note that the existing contract has included a provision which enables either party to it to terminate the contract at three months’ notice in writing or by paying one month’s fee in lieu of notice. We shall include this provision in the new contract to be concluded with the Consultant should Members support and the Finance Committee approves of the present proposal.

FINANCIAL IMPLICATIONS

9. The additional notional annual salary cost of this proposal at mid-point is $1,478,400.

10. The full annual average staff cost of the proposal, including salary and staff on-costs, is $2,646,420.

11. Since the creation of the consultancy position, one Personal Secretary I post (with a notional mid-point salary cost of $258,300 and a full annual average staff cost of $406,344) has been created to provide secretarial support to the consultant. Should Members approve this proposal, we shall retain the Personal Secretary I post until 30 September 1997. This proposal entails no other financial or staffing implications.

12. We shall include sufficient provision in 1997-98 draft Estimates to meet the cost of this proposal.

BACKGROUND INFORMATION

13. We first created the Consultancy post on 21 May 1994 to provide AG with directorate support in VM matters. Given the continuing need for the post, we had sought and Finance Committee has agreed to the retention of the post December 1995 ((vide EC(95-96)67) until was up to 20 May 1997

CIVIL SERVICE BRANCH COMMENTS

14. Having regard to the complexity and workload of legal matters relating to Vietnamese migrants, the Civil Service Branch considers that there is an operational need to retain the consultancy position. The grading and ranking of the consultancy position are appropriate.

Legal Department
November 1996

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Legal Proceedings relating to Vietnamese Asylum Seekers and Illegal Immigrants

1. Public Law Cases

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Enclosure 3 to EC(96-97)48

Main Duties and Responsibilities of Consultant at Principal Crown Counsel level -- Civil Division

Responsible to the Crown Solicitor for -

1. advising the Secretary for Security and Director of Immigration on matters connected with the continued presence in Hong Kong of Vietnamese migrants and Ex-China Vietnamese illegal immigrants, including -
   1. claims for refugee status;
   2. detention, return and resettlement; and
   3. claims in respect of death, personal injury and loss of property arising out of incidents in the VM camps. At present, such claims have arisenwhich arose as a result of the fire at Shek Kong Detention Centre and arising out of the transfer operation at Whitehead Detention Centre.
2. conducting litigation and appearing on behalf of the Crown in connection with (1); and
3. advising on, and when required, undertaking such duties as may be assigned by the Crown Solicitor.

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