GOLAM RASUL v. HONG KONG SAR GOVERNMENT

HCAL 1185/2022

[2022] HKCFI 3773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1185 OF 2022

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R E A S O N S  F O R

J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Deportation Order made on 28 January 2021.  He has been held in immigration detention since 26 January 2021 pending his removal.  To the date of hearing, the period of detention had lasted 693 days, around 1 year and 11 months.

2.  On 1 November 2022, the Applicant applied for a writ of habeas corpus on the grounds identified in his supporting affirmation.

3.  I gave directions for the Respondent to file an Initial Response, and so as to bring the matter to a hearing on 19 December 2022. At that hearing, the Applicant appeared in person and the Respondent was represented by Mr Jeffrey Fong, Government Counsel.

4.  At the end of the hearing and after time for consideration, I dismissed the application for reasons to be handed down later.  These are my Reasons for Judgment.

B.  Factual Circumstances

B.1    Immigration Status

5.  The Applicant is an Indian national born on 6 May 1984.

6.  On 12 July 2014, he arrived in Hong Kong on the strength of his Indian passport, and was permitted to remain in Hong Kong as a visitor until 26 July 2014.  However, he did not depart and has been overstaying since 27 July 2014.

7.  He was intercepted by the Police for being a suspected overstayer in August 2014, and on 26 August 2014 a Removal Order was made against the Applicant pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).

8.  The Removal Order was not carried into effect, because the Applicant raised a non-refoulement claim (“NRC”) on 5 August 2014. Though he had previously been detained, he was released on recognizance on 10 September 2014.

9.  On 28 July 2017, the Applicant was arrested on suspicion of trafficking in a dangerous drug.  On 15 June 2018, the Applicant was convicted of trafficking in dangerous drugs, and was sentenced to 5 years and 3 months’ imprisonment.  I note that the Reasons for Verdict given by the judge specifically noted, but rejected, the Applicant’s defence that (broadly) he was invited by friend to dinner, and when the friend went out to get food the Police came to the room where the Applicant was and discovered him with the drugs, but they were not his.

10.  The Applicant’s application for leave to appeal against his sentence was refused by the Court of Appeal on 6 November 2018. I note from the Judgment that, though the Applicant initially complained about his conviction at the hearing, he confirmed that he only wanted to appeal his sentence (though he had nothing to say to explain his concerns about his sentence).

11.  After discharge from prison at the end of his sentence on 26 January 2021, the Applicant was detained for inquiry as to whether he ought to be deported.  A Deportation Order was made against him on 28 January 2021, pursuant to section 20 of the Ordinance. The Applicant has been held in detention since that date, under section 32(3) of the Ordinance, pending removal under the Deportation Order.

B.2    Non-refoulement Claim and Related Proceedings

12.  The Applicant raised his NRC on 5 August 2014, and it was rejected by the Director of Immigration (“Director”) on 21 December 2016.

13.  On 10 August 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dismissed the Applicant’s appeal/petition against the Director’s refusal of his NRC.

14.  On 25 February 2021, the Applicant applied in HCAL 230/2021 for leave to apply for judicial review (“JR”) against the Board’s decision.  As the date identifies, the application was significantly out of time.  Regrettably, the application was not dealt with for some period, and on 12 April 2022 the DoJ wrote to the Court of First Instance (“CFI”) seeking priority to be accorded to the Applicant’s leave application.

15.  On 10 May 2022, the CFI refused the Applicant’s leave application.  The refusal was apparently on the merits (rather than on the basis of refusing the necessary extension of time).  In his decision, the CFI Judge noted that the Board had considered the evidence and given its reasons in support of its decisions, and that the Applicant had not raised any valid ground to challenge the Board’s decision.  The Judge also noted that there was no error of law or procedural unfairness in the Board’s decisions, and that the findings are not in any respect open to challenge as being Wednesbury unreasonable or irrational.  He held that there is no evidence to show that the Applicant had any realistic prospect of success in the intended judicial review.  Hence he refused to grant leave to the Applicant to apply for judicial review.

16.  On 7 June 2022, the Applicant applied to the CFI for an extension of time to appeal against the refusal of his leave application, but the further application was refused on 14 July 2022. In the decision refusing the further application, the CFI Judge noted that the reasons given by the Applicant were not good reasons for the delay in seeking to appeal, nor had the Applicant raised any valid reason to show that the Board or the Court had been in error.  The Judge again noted that there was no evidence to show that the Applicant had any realistic prospect of success in the intended judicial review.  Hence he refused to extend time to file the proposed notice of appeal.

17.  On 24 October 2022, the Applicant filed a summons in CAMP 439/2022 with the Court of Appeal seeking an extension of time for appealing against the CFI’s decision dated 14 July 2022. The summons is yet to be determined, and on 8 November 2022 the DoJ wrote to the Court asking that priority be accorded to dealing with the summons, and seeking an estimate of the time which might be required to determine the summons.

18.  Though the summons seeking the extension of time for appealing is yet to be determined, the above chronology identifies that the application for extension of time apparently has little merit.

B.3    Detention and Reviews

19.  As stated, the present period of detention commenced on 26 January 2021.  Initially, the Applicant was detained under section 29(1) of the Ordinance for inquiry as to whether he ought to be deported.  The Deportation Order was swiftly made on 28 January 2021, and since that date the Applicant has been detained under section 32(3) of the Ordinance.

20.  During the detention, the Applicant has repeatedly showed willingness to return to his home country during in-person or telephone interviews on nearly 20 occasions.

21.  During his detention, there have been various reviews of detention.  The last review was conducted on 12 December 2022, when the Principal Assistant Secretary for Security considered that there were grounds for the Applicant’s continued detention, and the Director did not recommend release on recognizance, taking into account factors including that:

(1)  The Court has been requested to accord priority to the Applicant’s case.  In any event, under the updated removal policy (see further below), the outstanding appeal proceedings in CAMP 439/2022 do not form an impediment to deportation.

(2)  The Applicant was re-arrested and convicted of trafficking in dangerous drugs, which is a serious offence, while he was released on recognizance.

(3)  The Applicant poses or is likely to pose a threat to the local community.

(4)  The Applicant does not have fixed abode or close connection in Hong Kong, although his friend (who is a Hong Kong permanent resident) is willing to be his guarantor.

(5)  The Applicant may abscond and/or reoffend.

(6)  The Applicant has prevented or delayed his removal by refusing to be cooperative and to complete the formalities for application for travel document, though the Immigration Department (“ImmD”) has been an active liaison with the Indian consulate on alternative means for issuing a travel document to the Applicant.

(7) Removal of the Applicant is going to be possible within a reasonable time.

B.4    Other Steps to Removal

22.  The Applicant’s Indian passport expired on 24 January 2022. However, he has been uncooperative in complying with the formalities to obtain a valid travel document from the Indian Consulate General.

23.  Nevertheless, the Indian Consulate did conduct an interview with the Applicant on 25 November 2022, though the Applicant refused to complete the travel document application form.  ImmD is actively following up with the Indian Consulate.  It is apparently expected that a travel document will be issued to the Applicant within 2 to 3 weeks upon all re-entry formalities as set out by the Indian Consulate being met.

C.  Applicable Principles

24.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

25.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

26.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

27.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that the detention has become unreasonable and therefore unlawful, the detention is a breach of the principle of liberty, and the detention is a breach of the Hardial Singh principles.  In his written submissions, the Applicant enlarged on those grounds, broadly as follows:

(1)  It is impossible for the Applicant to be removed within a short reasonable period, bearing in mind that the detention since 26 January 2021 is more than half of the period served in prison after his conviction.

(2)  He is subject to arbitrary detention, contrary to Article 41 of the Basic Law.

(3)  Whilst the Director may rely on the fact that the Applicant has failed to give his consent to removal or to sign documents which will enable the Director to act expeditiously to effect deportation, no one would wilfully sign his own death warrant.  Asking the Applicant to give consent or sign documents is tantamount to asking him to sign his own death warrant, where the threat to his life is real and imminent.

(4)  As to any alleged risk of reoffending, the circumstances surrounding the Applicant’s arrest and conviction are “still questionable”, and the Applicant has maintained his innocence since his arrest and subsequent conviction.  The Applicant also set out his “story in summary”, which is the defence run at trial, and urged the Court to rigorously scrutinise the Director’s assessment of reoffending and the weight to be given to that assessment.

(5)  As to any alleged risk of absconding, that is merely speculation or assumption, and detention is not necessary to facilitate deportation.

28.  Also attached to the written submissions were copies of the same or similar grounds put forward by applicants in other cases, but without clear identification of how any aspect of those matters directly apply to the Applicant’s own case.  Amongst the points made is the suggestion that the Applicant is detained like a prisoner, offending his various Basic Law rights and other rights.

29.  At the hearing, the Applicant handed up further written submissions which made the points that: he had never failed to report, and had not jumped bail; he has requested release on recognizance since being detained; he asked why ImmD did not try to remove him back to his home country during the almost 1-year validity of his passport, but has sought to remove him once he applied for habeas corpus; he will not be involved in any kind of fencer illegal activity if released; and he can provide (and did provide) the name and contact details of a guarantor.

30.  In his oral reply submissions, the Applicant emphasised that: he does not have the ability to run away as he has no passport; he does not want to go back to India as he has problems there, which is why he is intending to stay in Hong Kong; he has complaints about the rules and procedures to be followed in detention and his request to be sent back to CIC has received no response; and he has a problem with his teeth but is not receiving the treatment he needs.

E.  Whether Detention Has Become Unlawful

31.  There was and remains clear prima facie lawful authority for the detention of the Applicant.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

32.  The starting point is, of course, that the Applicant has already been detained for the lengthy period of 693 days, or 23 months.  It is against that lengthy period that the other factors are to be weighed and balanced.

33.  I accept that the Secretary/Director intend to deport the Applicant and are only using the power to detain for that purpose.  HS1 is satisfied.  Further, the Secretary/Director have acted with reasonable diligence and expedition to effect removal, including by pursuing alternate means to obtain a travel document for the Applicant, and by asking the Courts to accord priority to dealing with the Applicant’s applications.  HS4 is satisfied.

34.  I acknowledge that there was a period of almost one year after the commencement of the detention when the Applicant’s passport remained valid.  But it must be noted that it was the Applicant himself who put in place the legal impediment to his removal during that period, by making the belated application for leave to apply for JR.  I have also not lost sight of the fact that the application for leave to apply for JR was only made after a lengthy delay from August 2018 to February 2021, and perhaps in response to the fact that the Applicant was taken into detention in late January 2021.

35.  Where the Court of Appeal has been asked to accord priority to the only remaining application in CAMP 439/2022 – which was filed on 24 October 2022 – I do not think it can be said that, before the expiry of a reasonable period, it has become apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, so that the Secretary/director should not seek to exercise the power of detention.  Indeed, it can properly be expected that a decision on an application (which also appears to lack any real merit in any event) will be received within a relatively short timeframe.  HS3 is satisfied.

36.  I also accept that there is a real and significant risk that the Applicant may re-offend or pose a threat to the local community, in view of his failure to comply with the terms/conditions of recognizance that he was arrested by the Police and convicted of the serious offence of trafficking in dangerous drugs – the seriousness of which was reflected in the heavy sentence imposed (though I note that the Court of Appeal commented that the Applicant was “very fortunate” that the sentence imposed had not been higher, which is why the application for leave to appeal against sentence was “totally devoid of merit”).

37.  I have also taken into account that the Applicant continues to maintain his innocence and seeks to reargue the defence which was considered and rejected at the criminal trial, and does so notwithstanding that he made clear that he did not wish to appeal against the conviction itself.  In any event, these proceedings are not an opportunity for the Applicant to reargue the matters dealt with in the criminal trial.  Nor are these proceedings and opportunity to revisit matters as regards the NRC.

38.  There is also a real risk of absconding, given the Applicant’s clear unwillingness to return to India, his own uncooperative attitude towards obtaining a replacement travel document, and his lack of close local connections.  If the Applicant were to be released on recognizance and then absconded, that would frustrate the purpose of the Deportation Order.

39.  Looking at matters overall, and despite the lengthy period of detention to date, I am satisfied that the Applicant has been detained for, and will likely continue to be detained only for, a period that is reasonable in all the circumstances.  The detention has not become unlawful.

F.  The Updated Removal Policy

40.  The Government recently updated the removal policy, taking effect as from 7 December 2022.  Under the updated removal policy, may generally proceed with removal from Hong Kong of an unsubstantiated NRC claimant upon either (a) the CFI’s dismissal of an application for leave to apply for judicial review (including an occasion for an extension of time to make an application for leave) or (b) if leave has been granted for a judicial review, upon the CFI’s dismissal of that application for judicial review.  Therefore, subject to any Court order, ImmD’s removal operations may generally proceed irrespective of:

(1)  whether the claimant will appeal or has already filed a notice of appeal to the higher Court(s) against the dismissal decision by the CFI, unless the higher Court(s) has(have) reversed the CFI’s dismissal decision on the respective JR proceedings before ImmD’s execution of removal operation; and

(2)  whether the claimant will initiate or has already initiated other legal proceedings pertaining to his or her removal, unless there are court rulings against the removal operations before the same are executed.

41.  However, having noted the updated removal policy, I did not need to address it further in making my decision in this case, as it would not alter the result.  On the chronology, a decision on the only outstanding appellate application made by the Applicant can be expected to be received within a relatively short timeframe, and I have taken that into account in accepting that the period of detention has been, and will likely continue to be, reasonable in all the circumstances (see above).

42.  I would merely note that the impact of the updated policy is that it would enable the Director to remove a detained person sooner than would have been effected under the old policy.  Thus, the likely period of detention for a person detained pending removal would be made shorter.  In the context of applications for a writ of habeas corpus, and depending on the other factors to be brought into the balance, this factor might be thought to tilt the balance towards continued detention rather than release on recognizance.

G.  Result

43.  It was for the above reasons that I dismissed the Applicant’s application for a writ of habeas corpus, with no order as to costs.