Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Le Tu Phuong And Another v Director Of Immigration And Another

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date01 February 1994
Year1994
Judgement NumberCACV164/1993
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000164/1993 LE TU PHUONG AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV000164/1993

Headnote

Application for 'bail' by Vietnamese detained under sl3D(1) Immigration Ordinance, pending hearing of appeal in judicial review proceedings - Inherent jurisdiction of the court to grant bail - Regina v. Sec. of State for Home Dept. ex parte Turkoglu [1987] 3 WLR 992 considered and distinguished.

Held: Court has no jurisdiction in circumstances of the case to grant bail. If in theory such jurisdiction existed, the application would nevertheless have been refused.

IN THE COURT OF APPEAL

1993, No. 164
(Civil)

_______________

BETWEEN
LE TU PHUONG

DINH THI BICH CHINH

 1st Applicant

2nd Applicant
AND
DIRECTOR OF IMMIGRATION

REFUGEE STATUS REVIEW BOARD

 1st Respondent

2nd Respondent

________________

Coram: Hon. Litton, J.A. in Court

Date of hearing: 21 January 1994

Date of delivery of judgment: 1 February 1994

________________

J U D G M E N T

________________

Litton, J.A. :

1. What I have before me is an originating summons, taken out on behalf of Le Tu Phuong (Mr. Le) and Dinh Thi Bich Chinh (Madam Dinh) former residents of Vietnam who are the Respondents in Civil Appeal No. 164 of 1993. The application is being heard by me as a single judge of the Court of Appeal. The relief sought is that bail be granted to Mr. Le and Madam Dinh and their four dependent children, pending the hearing of an appeal brought by the Director of Immigration and the Refugee Status Review Board against the judgment of Mr. Justice Liu given on 8 September 1993. Mr. Michael Darwyne who appears for them on this application has argued the matter with skill. I am told that this is the first time such an application has been brought in Hong Kong. The four children, all born in Vietnam, are aged respectively 13, 11, 10 and 3. They are not named as parties to the appeal, but nothing turns on this, except that it illustrates the somewhat curious form of these proceedings.

Background

2. The applicants and their four children arrived in Hong Kong by boat in August 1990, having first travelled overland from Vietnam. They arrived without travel documents and were accordingly detained under the authority of the Director of Immigration in a detention centre pursuant to section 13D(1) of the Immigration Ordinance, Cap. 115. In due course they were examined by an immigration officer pursuant to s4(1)(a) of the Ordinance, under the 'screening' procedure adopted for Vietnamese migrants. In February 1992 a decision was made to refuse the applicants and the four children permission to remain in Hong Kong on the ground that the applicants were economic migrants. This decision was affirmed under s13F(1) by the Refugee Status Review Board on 10 April 1992 and the decision of the Board was conveyed to the applicants on 7 May 1992. The applicants obtained legal aid to challenge the decisions of the immigration officer and the Board by way of judicial review and, in proceedings which lasted a total of 56 days, Mr. Justice Liu made an order on 8 September 1993 quashing the decision of the immigration officer and of the Board, ordering at the same time that if an appeal be lodged within six weeks, his order be stayed until the final disposal of the appeal. An appeal was duly lodged by the Attorney-General on behalf of the Director of Immigration and of the Board, on 20 October 1993. The effect of all this is that the decisions of the immigration officer and the Board remain valid in law, pending the hearing of the appeal, and the applicants and their children are presently in detention under s13D(1) pending their removal from Hong Kong. The appeal is due to be heard on 20 April 1994.

Application to the Superintendent

3. On 10 December 1993, an application was made by solicitors on behalf of the applicants to the Superintendent of Whitehead Detention Centre, asking him to exercise his discretion under Rule 28(1) of the Immigration (Vietnamese Migrants)(Detention Centres) Rules to permit the applicants and their children to be absent from the detention centre pending the hearing of the appeal. The grounds for the application are as follows:

"Life in the Detention Centres is difficult for all detainees, but it is especially difficult now for the Le family because they have endured a long period of anxious waiting for the outcome or their Court case, and having won it, and looked forward to rescreening, have had their hopes put on ice pending the appeal. It is right to say that the appeal is on technical legal grounds, and must be seen as being taken by Government as a matter of general principle.

You will be aware of the problems of life in the Detention Centres, especially for women and small children - who are little girls. We are sure you do not need us to point out these problems.

These problems are perhaps made worse for the Le family because they are confined in a special area of Section 8, due to threats to their safety from other detainees.

Our clients are Catholics and their plight has attracted the concern and attention of the Catholic Diocese of Hong Kong. The Chancellor, the Rev. Lawrence Lee, has made a formal offer to board and lodging for the Le family in Church premises at St. Raphael's Catholic Cemetery, Cheung Sha Wan, Kowloon.

This is a serious offer, and one that has been given much thought and consideration by the Diocese. The terms of the arrangement are spelled out in an Agreement, a copy of which is enclosed. We have inspected the flat, which is large, spacious, clean and very suitable for the Le family, with sufficient bedrooms for the four girls. It has its own kitchen, bathroom and toilet and a large living area. It is in a secluded part of the Church grounds and the building is protected by an outer fence and is under the 24 hour supervision of a warden."

4. In the same letter the solicitors stated that two Hong Kong residents were willing to stand surety for the applicants' attendance at court and for their "good behaviour" in the meanwhile.

5. On 21 December 1993 the Superintendent refused to accede to the proposal. He said:

"Our policy is that all persons detained under section 13D should be treated alike. I do not think that involvement in litigation is a sufficient reason to treat the family of Mr. Le Tu Phuong differently from other long stay families.

I regret that I am unable to accede to the proposal."

6. I pause here to make this observation: There are still about 30,000 Vietnamese migrants under the care of the Correctional Services Department. It is no easy task to look after so many different people, from babies to septuagenarians, with their different outlooks on life, their different requirements, hopes and expectations. The Department's resources remain over-stretched. It is easy to see why the Superintendent of Whitehead Detention Centre should say that long-stay families should be treated alike.

Application for bail

7. On 18 January 1994 this...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT