SANDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1085/2022

[2022] HKCFI 3361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1085 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the subject of a Deportation Order issued on 8 August 2018. He has been held in immigration detention since 2 June 2021 pending his deportation. The authority for detention is to be found in section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). To the date of hearing, the period of immigration detention has lasted 519 days, or about 1 year and 5 months.

2.  On 13 October 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation.

3.  On 14 October 2022, I gave directions to bring this matter to a hearing fixed on 2 November 2022. Directions were also given for the filing and serving of an ‘initial response’ by the Respondent. Leave was also granted for the Applicant to file a reply, but none has been filed.

4.  At the hearing, the Applicant appeared in person (with the benefit of a Punjabi interpreter).

5.  The Director was represented by Mr Andrew Tong, Government Counsel, who signed the initial response/skeleton argument, jointly signed by him and Ms Carol Lam, Government Counsel, supplemented by his oral submissions.

6.  This is my Decision.

B.  Background Facts

B.1  Immigration Status

7.  The Applicant is an Indian national. He first entered Hong Kong on 6 July 2014 and was permitted to stay until 20 July 2014. But he did not depart and has overstayed since 21 July 2014.

8.  As said, he is the subject of a Deportation Order issued on 8 August 2018. The order was issued under section 20(1)(a) of the Ordinance, which authorizes issuance of a deportation order to a non-Hong Kong permanent resident who has been found guilty of an offence punishable with imprisonment for not less than two years.

9.  By the time of the Deportation Order, the Applicant had already been convicted of three offences, the latter two of which are deportable offences, being:

(1)  on 28 November 2016, he was fined HK$1,000 for theft.

(2)  on 25 September 2017, he was sentenced to a total of 32 months’ imprisonment for burglary and handling stolen goods.

10.  He was deported to India on 14 September 2018.

11.  However, he was sighted in Hong Kong again three months later, on 24 December 2108. On his own account, he entered Hong Kong on the same day. He has been staying unlawfully in Hong Kong ever since.

12.  Since his return, he has further committed the following offences:

(1)  On 9 December 2019, he was sentenced to a total of 18 months’ imprisonment for breach of deportation and remaining in Hong Kong without lawful authority.

(2)  On 4 November 2020, he was sentenced to a total of 8 months’ imprisonment for attempted theft and theft.

(3)  On 15 January 2021, he was sentenced to 4 months’ imprisonment for attempted theft, to run consecutively with the previous sentence.

B.2  NRC and JR

13.  The Applicant has ‘run’ two rounds of non-refoulement claim (“NRC”) so far. The first round was concluded before he was deported to India in 2018. In the first round, his NRC was rejected by the Director and then by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) during the period from 2016 to 2017.

14.  After his return to Hong Kong in 2018, he lodged a request to make a subsequent claim (“SubC”) in April 2019, towards the end of his prison terms. The Director allowed the request to be made in May 2019, but rejected the SubC on 23 August 2019. On 2 September 2019, the Applicant appealed to the Board.

15.  There then followed written correspondence between the Applicant and the Board. The Applicant indicated that he wished to withdraw his appeal application and the Board, after clarification and having satisfied itself that the Applicant was aware of the consequence of the request, decided that the application had been withdrawn on 6 December 2019 (“Board Decision”).

16.  However, a month after the Board Decision – on 6 January 2020 – the Applicant then applied for leave to judicially review the Board Decision. The Court of First Instance (“CFI”) refused leave on 23 September 2022. In [2022] HKCFI 2911, DHCJ Bruno Chan observed that the Applicant did not put forward any grounds relevant to the legality, procedural fairness or reasonableness of the Board in deciding that the Applicant had withdrawn his appeal application.

17.  The Applicant filed a Notice of Appeal (“NoA”) on 7 October 2022 in CACV 404/2022. Only a single ground is identified in the NoA, namely that the Board Decision has the effect of finally disposing of the Applicant’s NRC and thus making him liable to be removed. He also seeks permission to advance a new ground. It is unclear whether the new ground he seeks to advance is the one he had already identified. CACV 404/2022 has not yet been determined.

B.3  Periods of Detention and Reviews

18.  The power to detain pending deportation under such a deportation order is to be found in section 32(3) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.

19.  Other than the present detention, the Court is not informed of any prior period of detention by the Director.

20.  The present detention was immediately preceded by the Applicant’s release from prison for his criminal conviction.

21.  During the currency of the present detention, the Applicant’s detention has been reviewed 8 times, on 15 July 2021, 16 September 2021, 7 January 2022, 11 April 2022, 6 July 2022, 3 October 2022, 25 October 2022, and 27 October 2022 respectively. On every occasion, continued detention was recommended. On the last review, drawing together the strands from the various officers endorsing the recommendation of continued detention, the bases for the continued detention could be summarized as follows:

(1)  The Applicant’s deportation is going to be possible within a reasonable time. Whilst he has an on-going legal proceedings in CACV 404/2022 arising from the Board Decision, it is believed that that could be resolved within reasonable time. The Department of Justice (“DoJ”) has written to the Court on 26 October 2022 to urge the Court to accord priority to this case. It is also noted that the case lacks merit and may even be “hopeless/abusive”, because it was the Applicant himself who withdrew his appeal/petition before the Board, but later changed his mind, and as seen from the Judgment in [2022] HKCFI 2911.

(2)  The Applicant has directly or indirectly prevented or delayed his removal by action or lack of action. He filed the NoA in CACV 404/2022 on 7 October 2022, but had only provided a copy of the same to the Director on 25 October 2022 upon request. The repatriation arrangement scheduled for 9 November 2022 has had to be put on hold.

(3)  The Applicant is a repeated offender. He has been convicted of 8 offences from 2016 to 2021, including theft, burglary, handling stolen goods, etc. Releasing him is likely to pose threat or security risk to the community.

(4)  The Applicant has a record of failing to report recognizance and jumping court bail. He has no family connection or fixed abode in Hong Kong. There is a risk of absconding.

(5)  The Applicant is a returned deportee.

(6)  There are no other circumstances favouring his release.

B.4  Steps towards Removal

22.  During the present period of detention, the main obstacles to deportation have been (a) the Applicant’s attempt to overturn his withdrawal of his appeal application to the Board by way of JR, and (b) the need to replace his expired Indian passport.

23.  Internal minutes show that the Director has kept in view the progress of the Applicant’s JR proceedings and has sent letters to the Court to urge the Court to accord priority as the case progressed.

24.  The Director has also been in active liaison with the Consulate General of India (“Indian CG”) seeking to replace the Applicant’s expired passport, resulting in the issuance of an Emergency Travel Document (“ETD”) dated 19 August 2022, with a validity until 18 February 2023.

25.  It also seems that originally there was to be a repatriation operation scheduled for 9 November 2022, but that has now been put on hold in light of the Applicant’s appeal in CACV 404/2022.

C.  Applicable Principles

26.  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.

27.  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.

D.  Applicant’s Submissions

28.  The Applicant exhibited 17 pages of handwritten submissions to his supporting affirmation. The first 16 pages appear to have come from one hand, and the last page appears to come from another hand. Trying my best to do justice to his submissions, I think they would be fairly summarized into six broad grounds.

29.  First, the Applicant submits that Tai Tam Gap Correctional Institution (“TGCI”) – where has been detained – is a prison facility and he has been in effect treated or detained as a prisoner during his detention in the institution for no crimes. He has already completed his prison terms for the crimes he committed, and he should not be further detained. He relies on Article 14(7) of the ICCPR which provides that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. He also refers to Halsbury’s Law of Hong Kong, 2020 Ed., Vol. 1, §226, as support for the principle that the Court would release the applicant in an application for writ of habeas corpus when it becomes clear that the act for which a person is committed to prison is not a crime.

30.  In support of his argument that he has been detained as a prisoner in TGCI, he raised the following features. The institution is surrounded by tall steel mesh fence. Signage of the “Prison Ordinance” are posted everything. There are CCTV, even in the bathroom and the shower areas. Detainees are subject to full body-strip searches, including X-ray and anal cavity scan, as well as compulsory urine tests for defecting dangerous drugs. Detainees have to wear prison uniforms rather than their own cloths thus making them easily recognizable (as prisoner) by the public when they attend hospitals or clinics. The code of discipline applicable to prisons is strictly enforced. They could be sent to a separate confinement cell for 23 hours a day for minor breaches such as borrowing a book from another detainee to read. The shower is not in their individual dormitories and they could only shower once a day.

31.  Second, he says the conditions of detention in TGCI amount to a breach of the “Nelson Mandela Rules” published by the United Nations (“UN”), a set of minimum standards for treatment of prisoners advocated by the UN. He said it was wrong for the Director to claim that detainees’ treatment in TGCI is largely in line with those in Castle Peak Bay Immigration – the other place of detention – when in fact the conditions in TGCI are much less favourable.

32.  Third, perhaps related to the existence of CCTV over everything in the TGCI, he says that the detainees’ rights to privacy enshrined in Article 17 of the ICCPR had been breached.

33.  Fourth, relying on Harjang Singh at §§108-112, he submits that the primary purpose of detention pending deportation is not to guard against the risk of re-offending and, in any event, such risk should become of less weight as the detention drags on.

34.  Fifth, the Applicant tries to address some of the grounds relied upon by the Director in recommending his continued detention.

(1)  Referring to the ground that his deportation would be possible within a reasonable time, he asks rhetorically for the standard to assess the reasonableness of the length of detention. He has been detained for more than 1 year and 5 months and he does not believe that is reasonable. He also says that there are no sufficient reasons to believe that his appeal in CACV 404/2022 would be finalized within a reasonable time.

(2)  Referring to his posing risk to security or reoffending, he says that in the crimes he committed he had never used any weapon or hurt anyone physically. He offers an example where he reported a crime to the police. He has served the sentence for his convictions.

(3)  Referring to his risk of absconding, he says he had provided explanation as to why did failed to report recognizance. He was sick and was hospitalized. He also said he never absconded from custody.

(4)  Relating to the absence of fixed abode or close connection in Hong Kong, he says he was not asked about close connection or fixed abode. He could provide that to the Director if that was the requirement. (But, such information was not provided to the Court.)

(5)  He would like to know what would qualify as “other circumstances in favour [his] release”.

35.  Sixth – which is set out in the last page in another handwriting, he says he could not go back to India because of the danger there. He could go anywhere in the world but India.

36.  In the oral hearing, the Applicant made further submissions by handing up a handwritten document (a large part of which seems to be in a word for word pro forma manner as provided by other applicants in similar applications), the relevant points in which can be summarized as follows:

(1)  Part of the document rehearses some of the applicable legal principles (which I have already summarised above and which cannot be in dispute).

(2)  The power to detain should be used only to effect removal, and should not be used for the protection of public safety which is the duty of the Hong Kong Police Force.

(3)  There are more than several factors that contribute towards immediate release, where the circumstances show the continued detention is unreasonable.

(4)  Removal cannot be effected within a reasonable time, as the Director cannot say when or how it will be effected.

(5)  The Director has failed to acknowledge as well as take into account relevant considerations concerning the Applicant’s disability, which has worsened since his period in detention.

37.  The Applicant further made oral submissions as follows:

(1)  One of the documents in the hearing bundle suggests that the Applicant had been in Stanley Prison, but in fact he had never been there. (However, I accept that the relevant sentence does not apply to the Applicant but to a different detainee, whose name was redacted, so that there is nothing in this particular point.)

(2)  The suggestion in some of the reviews of detention that there were no outstanding NRC-related proceedings was not correct, because there were proceedings including the present outstanding appeal. (However, I accept that at the time of at least one review, the Director was unaware of the appeal having been launched, and he conducted a further review on 27 October 2022 when this came to his knowledge, and where that appeal was taken into consideration.)

(3)  A letter apparently written by solicitors on his behalf, requesting his release and threatening habeas corpus proceedings was not written on his instructions, and must have been falsely generated on the instructions of the Immigration Department to mislead the court. (However, irrespective of whether the firm had proper instructions to act on behalf of the Applicant, I shall not proceed on the basis that the letter was generated by the Immigration Department, and the point is in any event of marginal if any relevant to the present consideration.)

(4)  The suggestion that the Applicant had not complained about the conditions in his current detention is not true, as he complained from the first day. (However, it does not seem to me particularly to matter whether he did or did not complain, as the real point is about the conditions themselves.)

(5)  He was forced to spend 2 ½ months in isolation, as a result of being found to have medication, which was used as an excuse to isolate him, and force him to write a document suggesting that he wanted to leave Hong Kong in order to obtain release from isolation. (There seems to me to be more force in this complaint, as the offered explanation that he was moved to isolation not as a punishment but to facilitate investigation and to prevent possible circulation of medication within the detention centre does not seem to justify such a lengthy period of isolation. Therefore, this is a factor properly to be taken into account in assessing the overall reasonableness of the period of detention.)

(6)  He wishes to apply for judicial review as regards the deportation order or his NRC, and can only obtain the necessary help and documents to pursue his claim if released.

(7)  He has a guarantor who can provide surety for his release.

(8)  He can demonstrate that he is a law-abiding person because the police have written a letter to thank him for his assistance leading to the arrest and conviction of a person for impersonating a police officer, apparently with a gun. (However, though this might be taken into account as part of the consideration of the likelihood of reoffending, it may not carry great weight.)

(9)  He intends to pursue his appeal to the Court of Final Appeal if necessary, and that may take another year or year-and-a-half, which would double his time already spent in detention. (However, it seems to me that it is premature to anticipate what steps the Applicant might take after the CA has dealt with his present appeal. If, for example, as seems likely, the present appeal is dismissed as having no merit, then any decision to pursue a further appeal would have to be seen in that light.)

38.  In addition to my responses shown in brackets in the sub- paragraphs above, I will also take matters into account as seems fit in my consideration of the merits: see below.

E.  Merits of Application

39.  The central question for this habeas corpus application is whether the period of detention has become too long and thus unlawful by the time of assessment. The first to the third arguments put forward by the Applicant concern the conditions of detention at TGCI. The Director does not deny the situation submitted by the Applicant. Though it is not for the Court seized of a habeas corpus application to examine the condition of detention in its own right, the conditions of detention are relevant in the current enquiry in that it is one factor against which the total length of detention must be balanced.

40.  The importance of the conditions of detention is not to be overlooked. In assessing whether the period of detention has become too longer, the Court has to balance (a) the gravity of any risks arising from release against (b) the deprivation of liberty. The magnitude of the deprivation of liberty primarily turns on the length of the period of detention, but the conditions of detention are also a measure of how much a detainee has been deprived of his liberty. The more severe the restraints placed upon the detainee, the deeper the intrusion into personal liberty.

41.  I will bear in mind the first to the third ground in my analysis below and refer to them when appropriate, and I have particularly in mind the period of two and half months in isolation mentioned above. So too the fourth and the fifth grounds.

42.  The sixth ground is a repetition of the Applicant’s basis for the NRC. That is irrelevant to the present application and I shall disregard it below.

43.  The starting point is that there is an extant deportation order which has remained in force at all times. Thus, the detention of the Applicant under section 32(3) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending deportation. Whilst the Applicant has been detained in a prison facility, he was not committed to imprisonment, nor was he detained pursuant to any authority to imprison him. The Applicant cannot rely on Article 14(7) of the ICCPR or the relevant excerpts from the Halsbury’s Law of Hong Kong.

44.  Mr Tong drew my attention to Schedule 1 of the Immigration (Places of Detention) Order Cap 115B, which sets out some of the places for detention when a person is authorized to be detained under the Ordinance. Item 1 of the Schedule 1 refers to

the sites and buildings from time to time set apart for the purposes of prisons under the Prisons Ordinance (Cap. 234) and which are specified in the Schedule to the Prison Order (Cap 234 sub. Leg. B)

45.  TGCI is specified in the Schedule to Cap 234B. Therefore, there was prima facie authority to detain the Applicant in TGCI pending his deportation.

46.  Given that the detention was prima facie with lawful authority, the question raised by this application was whether the detention had become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

47.  For the Director, Mr Tong submitted that the detention of the Applicant had been reasonable at each stage, and throughout the entire 591 days.

48.  I accept that HS1 is satisfied, because the Director does intend to deport the Applicant and is only using the power to detain for that purpose. Whilst the Applicant had already applied for leave to challenge the Board Decision before the detention commenced on 2 June 2022, the dismissal by the Board was based on his own request to withdraw the appeal to the Board. It is not unreasonable for the Director to expect that the leave application could be resolved within reasonable time. The Director has kept in view the progress of (and apparent lack of merit in) the JR application, and the urging the Court to accord priority. Active steps were also taken to remove the other obstacle to deportation – his expired passport.

49.  HS4 is also satisfied, in that the Secretary has acted with reasonable diligence and expedition to effect removal, evident by the efforts in obtaining the replacement travel document until one was issued on 18 August 2022, and urging the Court to accord priority to the Applicant’s case.

50.  I also acknowledge – as suggested by the Director – that considerable weight is to be placed on the Applicant’s criminal history and absconding record as factors favouring continued detention. The 8 convictions include burglary and theft. These are crimes of a serious nature. Against the history, the risk of further offending is not low, and the potential gravity of offences if committed is also not low. I would give very little weight to the Applicant’s assertion or point that he did not use a weapon or physically injure other people in committing those offences. That point may mean the previous offences were less serious than they might have been, but it does not mean that they were not serious.

51.  I would also give little weight to the Applicant’s assertion that he had a proper excuse for the occasion when he failed to report recognizance. As pointed out by the Director, he did not provide evidence for the claimed hospitalization, and indeed he was arrested whilst absconding. I do not think the possible provision of a guarantor significantly changes the balance in this case.

52.  Nevertheless, there is force in the Applicant’s submissions that as the period of detention drags on, the weight given to the risk of reoffending and absconding must decrease over time. I will also bear this in mind.

53.  With respect to his JR proceedings, I note that in [2022] HKCFI 2911, the CFI has observed that no grounds were put forward and no attempts were made to explain why the Board was wrong in deciding that the Applicant had withdrawn his appeal before the Board. In the NoA, it was not explained why the CFI was wrong or why the Board was wrong. Indeed, the Applicant did not even state that he did not withdraw his appeal before the Board. Given the apparent lack of merits, I would expect CACV 404/2022 be disposed of fairly quickly.

54.  I would also agree with the Director that relatively little weight should be given to the on-going JR proceedings. As said, the application lacks apparent merit and seems to be a self-imposed obstacle to removal (and hence release).

55.  I bear firmly in mind that the period of detention is substantial – 591 days – and the deprivation of liberty has been exacerbated by the perhaps rather stringent detention conditions, including the period in isolation. This is a more finely balanced case than many others. But, on balancing all the factors, and after careful consideration of all the circumstances, I think HS2 and HS3 are presently just satisfied, with the expectation that deportation would be possible within a matter of two or three months.

F.  Result

56.  For the above reasons, I dismiss the application.

57.  I make no order as to costs.