Lam and Others v. Superintendent of Tai A Chau Detention Centre and Others (Hong Kong)

Factual and Procedural Background

Since 1985 approximately 80,000 Vietnamese migrants (“the Vietnamese boat people”) arrived by boat in The City (then a British colony). Initially they received first-asylum and awaited third-country resettlement, but from 1982 all new arrivals were detained in closed centres. In 1988 the “first-asylum” policy ended and a two-stage regime was introduced: (1) screening for refugee status and (2) repatriation—voluntary or, from 1991, compulsory—to Vietnam for those refused refugee status.

The four Appellants—all ethnic Chinese—were denied refugee status and remained in detention “pending removal.” Three never applied for voluntary repatriation; the fourth applied but was rejected by Vietnamese officials who treated him as a non-national. Their individual detention periods ranged from roughly four to six years, much of it after refusal of refugee status.

Eleven detainees originally sought writs of habeas corpus. Seven were released before judgment. At first instance Judge [Last Name] ordered release of three applicants and continued detention of one. The Court of Appeal reversed that outcome, reinstating detention. The matter came before the Judicial Committee of the Privy Council on further appeal.

Legal Issues Presented

1. Whether the common-law limitations stated in Hardial Singh apply to detentions authorised by section 13D of the Hong Kong Immigration Ordinance.
2. Whether the court, rather than the detaining authority, must determine the factual questions that condition the legality of detention (e.g., whether removal is realistically “pending”).
3. Whether, on the evidence, continued detention of each Appellant was lawful given (a) the length of detention and (b) Vietnam’s alleged policy of refusing to accept persons it classifies as non-nationals.

Arguments of the Parties

Appellants’ Arguments

• The Hardial Singh principles limit any statutory power to detain “pending removal”; detention is unlawful if removal is not reasonably achievable within a reasonable time.
• The court, not the Director of Immigration, must decide jurisdictional facts bearing on liberty; the burden lies on the detainer to justify continued confinement.
• Given Vietnam’s refusal to accept alleged non-nationals and the protracted detention periods, removal is not reasonably foreseeable; therefore detention is no longer authorised.

Respondents’ Arguments

• Section 13D, read with section 13D(1A), displaces Hardial Singh; reasonableness is for the Director unless a decision is Wednesbury unreasonable.
• The returns to the writs, stating detention under section 13D “pending removal,” are conclusive unless shown to be irrational.
• Efforts toward repatriation continue; therefore the statutory purpose endures and detention remains lawful.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Statutory Construction: The Board found no language in section 13D displacing the implicit common-law limits on detention. Sub-section (1A) expressly recognises that detention must be “reasonable,” reinforcing the Hardial Singh framework rather than ousting it.

2. Jurisdictional Facts: Whether removal is genuinely pending is a pre-condition to the power to detain. Absent clear statutory words, that factual question is for the court. Permitting the executive to be the final judge would erode the constitutional protection of habeas corpus.

3. Application to Evidence:

• The trial judge correctly placed the burden on the Respondents to show a realistic prospect of removal.
• On the evidence, Vietnam maintained a policy of refusing repatriation of persons it regarded as non-Vietnamese. Three applicants fell squarely within that category; after more than a year there was still no progress toward their removal.
• The fourth applicant’s continued detention was originally upheld on the belief that a new bilateral procedure would secure his repatriation “in the near future.” Subsequent inaction proved that forecast wrong; the statutory purpose of detention had therefore expired.
• Length of Detention: Although prolonged, detention attributable to a detainee’s refusal of voluntary repatriation weighs against release; nonetheless, where removal is not realistically achievable, detention cannot continue.

Holding and Implications

Appeals ALLOWED; all four detainees ordered to be released immediately; costs awarded to the Appellants.

Implications: The decision re-affirms that administrative detention “pending removal” is tightly circumscribed. Courts, not administrators, must decide whether removal is realistically achievable and whether detention remains reasonable. Section 13D of the Hong Kong Immigration Ordinance does not displace the common-law Hardial Singh limits. While the ruling directly frees the four individuals, it also establishes that other long-term detainees may obtain relief where repatriation is not genuinely forthcoming, though self-induced delay via refusal of voluntary return will remain a significant factor.