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Henry Litton[*], CBE
The impact of mass migration on an established legal system in Hong Kong.
Following the collapse of the South Vietnamese government in April 1975 large numbers of Vietnamese fled the country. Many entered Thailand by land. Others took to the sea in small boats for destinations as distant as Hong Kong. In May 1975 a Danish registered vessel, the Clara Maersk, picked up 3743 Vietnamese 'boat people' at sea and brought them to Hong Kong. This marked the beginning of Hong Kong's involvement with the 'boat people' story.
The Hong Kong government hurriedly provided accommodation and means of subsistence for the refugees from the Clara Maersk but announced at the same time that no more boat people would be accepted. This policy soon proved unsustainable as more refugees arrived in small boats: these were South Vietnamese fleeing in consequence of the takeover of the country by the North Vietnamese army. In the year ending 31 December 1975 nearly 4000 boat people arrived. They were housed in specially prepared camps helped by elements of the British army stationed in Hong Kong. Thus began, in effect, the government's 'first asylum' policy: Hong Kong would provide sanctuary to the refugees if their first port of call was Hong Kong. Those arriving in 1975 were quickly resettled overseas. The United Nations High Commission for Refugees (UNHCR) sent representatives to Hong Kong to assist in dealing with the problem and provided a substantial grant for their accommodation. The Intergovernmental Committee for European Migration undertook to arrange for the onward movement of those leaving Hong Kong.
The 'first asylum' policy was put to the test in July 1976 when the Hong Kong government was told that a Burmese vessel, the Ava, on its scheduled route of Rangoon–Hong Kong–Japan had picked up 99 Vietnamese (including a new-born baby) off the Vietnam coast and was sailing for Hong Kong. The government refused to allow the vessel to enter. The UNHCR tried to persuade the government to allow the refugees to land and to remain, pending their resettlement overseas. The Ava was anchored just outside Hong Kong territorial waters. The negotiations went on. The month of July falls within the typhoon season. The vessel was at risk. On 3 August 1996 the refugees were allowed to land.
In December 1978, a Panamanian vessel the Huey Fong sailed from Vietnam with 3318 passengers on board. It was purportedly bound for Kaohsiung. The master radioed the Hong Kong Marine Department saying that he had picked up thousands of refugees in the South China Sea, found in leaking junks. The master asked for permission to enter Hong Kong. Permission was refused. The vessel anchored about one mile outside Hong Kong waters while the world media looked on. The master was offered assistance to enable the vessel to continue its voyage. This was not taken up. The impasse continued. In mid-January 1979 the master was told that the government would not continue to supply provisions indefinitely and he should continue his voyage to Kaohsiung. The next day the Huey Fong entered port without permission and the refugees disembarked and were given accommodation ashore, for humanitarian reasons. These added to the considerable number of Vietnamese migrants arriving in Hong Kong: some by small boats and some overland through the southern provinces of China. There were more than 6000 in the year 1978.
As can be seen, the application of a strict 'first asylum' policy proved difficult. Hong Kong was not the Huey Fong's supposed first port of call. Yet, at the end, the government felt bound to receive the passengers for humanitarian reasons.
The Huey Fong story did not occur in isolation. About two months earlier, a freighter the Southern Cross loaded with refugees tried to enter Malaysia. In November 1978 another vessel the Hai Hong entered Port Klang in Malaysia with more than 2500 refugees on board and in the same month yet another freighter with a similar number of refugees entered Manila Bay. The government's suspicion was that these were organised rackets in illegal human cargo. The Merchant Shipping Ordinance was accordingly amended to introduce heavy penalties for the offence of using a cargo ship to bring unauthorised people into Hong Kong. The captain of the Huey Fong and 10 others — including three Hong Kong-based businessmen with Vietnamese connections — were charged and convicted of conspiracy. The evidence at trial revealed that the passengers had embarked in Vietnamese waters with the assistance of the local authorities, and the ship's log was falsified. In the engine-room of the Huey Fong, HK$6.5 million worth of gold was found stashed away: clear evidence that the vessel was engaged in trafficking in human cargo.
In February 1979, less than three months after the Huey Fong incident, another freighter the Sky Luck with 2651 Vietnamese on board entered Hong Kong waters without authorisation. By that time the reception facilities on shore for Vietnamese refugees were crowded to bursting point. The Sky Luck was escorted to an anchorage near an outlying island. The passengers were kept on board, receiving daily provisions and medical care. They were confined in the Sky Luck for nearly five months. Eventually, they cut the anchor cable, the vessel drifted ashore and they were taken into reception. The small boats kept arriving. Most of them were unseaworthy, crammed with Vietnamese migrants
Whereas, in the earlier years, the rate of refugee resettlement overseas matched the rate of arrival in Hong Kong, by the year 1979 'compassion fatigue' had set in and there was increasing reluctance on the part of host countries to take in Vietnamese refugees from Hong Kong. Thus, in May 1979, 18,688 arrived and only 500 were resettled; in June 19,651 arrived and only 1608 were resettled. The situation had reached crisis point. The British Prime Minister, Mrs Thatcher, asked the United Nations Secretary-General to convene an international conference on the problem of mass migration from Vietnam. In the meanwhile additional units of the British Army were sent to Hong Kong and deployed along the border, in an attempt to stem the flow of illegal immigrants.
To deter further arrivals a 'closed centre' policy was introduced, effective from 2 July 1982, whereby all arriving Vietnamese refugees would be detained in closed centres run by the Correctional Services Department. Families were kept together, but outside employment was prohibited.
Between July 1982 and the end of 1987, an average of about 2000 Vietnamese entered Hong Kong each year. In 1988 this suddenly increased to 18,328. Many of them were not refugees but economic migrants. This led the Hong Kong government to implement, from 16 June 1988, a policy whereby all Vietnamese migrants entering Hong Kong without valid travel documents would be treated as illegal immigrants unless given permission to remain as refugees after screening of their status. If screened out, they remained in detention pending repatriation to Vietnam. Those screened out had a right to apply to a statutory board for review of their case.
The refugee screening process involved three stages: failure at each stage involved a formal notification to the migrant concerned. Thus, the migrant who was finally screened out would have received three notices of rejection: ironically referred to by the detainees as the 'three chicken wings'. Chickens, though endowed with wings, cannot fly. Vietnamese migrants, told they have been screened out as refugees, are held in detention: neither can they fly.
The first stage involved an examination by an immigration officer, assisted by a Vietnamese interpreter, of the migrant and possibly of members of his family. This followed the procedures laid down in the UNHCR Handbook for determining refugee status. The officer eventually compiled a report which then formed the basis for decision making by the Director of Immigration. If screened out at the first stage, the second stage involved a review by a statutory review board that, for some years, was presided over by a retired District Court Judge. The submissions to the review board were prepared with the help of a lawyer
The processes involved in these two stages were examined in depth by the Court of Appeal in Le Tu Phuong v Director of Immigration [1994] 2 HKLR 212. Points of note emerging from the judgment included that there was no mandatory requirement for the notes of interview made by the immigration officer for the purposes of his report to be read back to the interviewee. It was for the officer concerned to decide how best to ascertain the facts.
In June 1989 the International Conference on Indochinese Refugees was held in Geneva, attended by 79 countries, including Vietnam. A Comprehensive Plan of Action (CPA) was adopted. The Hong Kong government policy of screening was endorsed, and the contracting states agreed on principles for the repatriation of non-refugees. But the focus of the Conference was on voluntary repatriation. There were no arrangements in place for the forcible return of migrants found by due process not to be refugees. The inevitable consequence was that those screened-out as refugees faced the prospect of long and indefinite detention.
At the end of 1989 there were 48,632 Vietnamese migrants in closed centres. Inevitably, there were trouble makers among them. Gangs of detainees had caches of weapons used to intimidate other detainees, and violence was frequent in the camps. The largest, Whitehead Detention Centre, held over 25,000 inmates at one time. Mass fights with weapons between groups from different regions took place on many occasions. Mass break-outs also occurred. As a result, some inmates were transferred to high security prisons for the purpose of restoring order in the camps. In Tran Quoc Cuong and Khuc The Loc [1991] 2 HKLR 312 two Vietnamese migrants, having obtained legal aid, brought proceedings by way of judicial review to challenge the decisions of the authorities relating to their treatment, and for damages. Their cases were dismissed in the High Court. Points emerging from the judgment are:
• The government policy of detaining all Vietnamese migrants pending screening and, if screened out as refugees, pending repatriation was lawful. The Director of Immigration could lawfully apply that policy to all arrivals without considering the circumstances of each individual case.
• The transfer of inmates to high security prisons, in the interests of good management of the closed centres, was justified in law. The applicants had no right to be heard before the decision to transfer was made.
• The applicants had no legitimate expectation that they could engage in peaceful demonstration inside the closed centre or could remain with their families when peace and good order within the closed centre took priority over these matters.
• The court, on an application for judicial review, could not judge whether the applicants were 'innocent' or 'guilty' of the complaints alleged against them. So long as the authorities had acted properly and fairly they could not complain.
In Pham Van Ngo [1991] 1 HKLR 499 113 Vietnamese migrants arrived in Hong Kong aboard a steel-hulled cargo vessel 28 metres long. Their destination was Japan. At that time the Japanese government had not yet adopted a 'screening' policy for boat people. This meant that if the 113 Vietnamese were able to get to Japan, there was a chance that they would be accepted as refugees for eventual resettlement elsewhere. The vessel was slightly damaged en route, causing some fresh water on board to be lost and, even though the vessel carried enough diesel to reach Japan, the captain set a course for Hong Kong. On arrival the captain asked for assistance to enable them to continue their voyage. Through a series of administrative blunders the Vietnamese were taken into detention and kept in detention pending screening. They had not sought permission to remain in Hong Kong as refugees and, as a result of the application of the terms of the Immigration Ordinance, their detention was unlawful ab initio. The High Court so declared. Their claim for damages for wrongful detention against the government was subsequently settled.
It is worth observing that the 113 Vietnamese arrived in Hong Kong at the height of the 'second wave' and, at about the time they were taken into detention, there were over 45,000 Vietnamese in detention centres. The average waiting time for screening was two years. The judge in Pham Van Ngo did not specifically deal with the length of detention as an issue, but remarked that it was for the government to justify continued detention. There must come a time when a detention, lawful initially, became unlawful through effluxion of time.
As at the end of 1991 the total number of Vietnamese migrants in Hong Kong (including those awaiting resettlement overseas) was over 60,000. It was not until October 1991 that the international community finally succeeded in persuading the Vietnamese government to cooperate in a compulsory program. By the end of 1996 the number of migrants compulsorily returned was at the rate of about 2000 per month. It is against this background that the landmark case of Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] UKPC 5; [1997] AC 97 should be viewed. This was decided by the Privy Council about 15 months before sovereignty over Hong Kong reverted to China in 1999.
Section 13D(1) of the Immigration Ordinance confers power to detain a former resident of Vietnam who had been screened out 'pending his removal from Hong Kong'. The appeal arose from habeas corpus proceedings brought by a number of Vietnamese migrants. The applicants were in detention pending removal to Vietnam, so the key issue in Tan Te Lam was who should decide, given the circumstances, whether compulsory repatriation was possible — the Director of Immigration or the court? It was common ground that if, in a practical sense, it was not possible to repatriate the applicants, then the Director's power of detention was spent as they would no longer be detained pending removal.
The Privy Council held that the facts relevant to the question whether the applicants were being detained pending removal were jurisdictional facts. These facts went to the Director's power to detain, and it was for the Director to adduce evidence to satisfy the court he had such power. There was in fact some evidence before the court, adduced by the Director, showing that migrants in the position of the applicants may be accepted back by the Vietnamese government. But the Privy Council concluded this was not enough. The result was that the applicants succeeded and the Privy Council ordered their release.
The Comprehensive Plan of Action, agreed in Geneva in June 1989, was the international framework within which problems involving Vietnamese migrants were resolved in the last eight years of colonial rule in Hong Kong. That agreement has now expired. A few hard cases remain to be dealt with by the authorities in Hong Kong. They include refugees with bad criminal records who have been refused resettlement elsewhere. But the problems arising from the mass movement of boat people are now things of the past. A chapter in Hong Kong's history has closed. Whitehead Detention Centre, which nestles at the foot of a spectacular mountain Ma On Shan, thrown up at a cost of HK$240 million, once held more than 25,000 people. There were schools, clinics, playgrounds within its precincts. The kitchens were capable of preparing 50,000 meals a day. It is now derelict, and may one day be replaced by high-rise buildings, shopping arcades and plazas. And so the wheel of life turns.
[*] The Hon Mr Justice Henry Denis Litton, CBE is a judge of the Hong Kong Court of Final Appeal.T his article has been written with the invaluable assistance of Mr W.R. Marshall. SC, Consultant to the Hong Kong Department of Justice.© 2001 Henry Litton (text)© 2001 John Lynch (cartoon)
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