MD YAZDANI v. HKSAR GOVERNMENT

HCAL 870/2022

[2022] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 870 OF 2022

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REASONS  FOR  DECISION

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A.  Introduction

1.  The Applicant is the subject of a Deportation Order issued on 12 December 2017. He has been held in immigration detention since 17 May 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 had lasted 491 days, or 1 year and 4 months.

2.  But, as will be seen below, the Applicant had in fact been held in forms of detention continuously for a total of nearly 52 months (4 years and 4 months) – being the combination of (1) a period of remand in custody from 11 July 2018 to 17 May 2021, and (2) the present immigration detention from 17 May 2021 to date.

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

4.  On 8 September 2022, I gave directions to bring this matter to a hearing fixed on 3 October 2022. Directions were also given for the filing and serving of an ‘initial response’ by the Respondent (which the Applicant identifies as the HKSAR Government on his application, but I shall take as the Director of Immigration). Leave was also granted for the Applicant to file a reply, but none has been filed. The hearing was subsequently re-fixed to today due to the Applicant’s Covid-19 situation.

5.  At the hearing, the Applicant appeared in person (with the benefit of an interpreter).

6.  The Director was represented by Ms Yvonne Cheung, Senior Government Counsel, and Mr Benson Cheung, Government Counsel, who signed the initial response/skeleton argument, and on which Ms Cheung placed reliance at the hearing, supplemented by her oral submissions.

7.  At the end of the hearing, I ordered the Applicant to be released from detention, pursuant to RHC Order 54 rule 4 and/or the inherent jurisdiction, on terms of recognizance acceptable to the Director.

8.  These are my Reasons for Decision.

B.  Background Facts

B.1  Immigration Status

9.  The Applicant is an Indian national. He first entered Hong Kong on 21 November 2013 as a visitor and was permitted to stay until 23 November 2013. He overstayed and was arrested by Police on 23 December 2013.

10.  As said, a Deportation Order was issued against him on 12 December 2017. 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.

11.  By the time of the Deportation Order, the Applicant had committed several offences, some of which are deportable offences:

(1)  On 8 January 2015, he was sentenced to 4 months’ imprisonment for wounding or inflicting grievous bodily harm.

(2)  On 22 October 2016, he was fined HK$1,200 for theft.

(3)  On 4 January 2017, he was sentenced to 2 months’ imprisonment for possession of dangerous drugs, and 2 months’ imprisonment for assault occasioning actual bodily harm, to run consecutively.

12.  After the Deportation Order was issued, he further committed offences of possession of dangerous drugs and assaulting a police officer, resulting in sentences of imprisonment passed on 6 December 2018 of 6 months and 14 days respectively, to run concurrently.

13.  The power to detain pending removal 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.

B.2  NRC and JR

14.  The Applicant lodged a non-refoulement claim (“NRC”) on 10 December 2014. The NRC was rejected by the Director on 16 May 2017, and then by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) on 1 September 2017.

15.  The Applicant then sought leave to challenge the Board’s decision by way of judicial review (“JR”). That application was dismissed by the Court of First Instance (“CFI”) on 4 December 2018.

16.  There then followed a period of 2½ years when the Applicant took no action to prosecute the JR proceedings any further.

17.  The JR proceedings were only resumed on 21 June 2021, when the Applicant filed a summons seeking extension of time to appeal against the CFI refusal. As the chronology indicates, the Applicant’s attempt to ‘reactivate’ the JR proceedings only occurred after the present detention had commenced.

18.  The summons was therefore approaching 2½ years out of time. In his supporting affirmation, the Applicant stated that as he was detained he did not receive the Judge’s decision refusing leave to apply for judicial review, and thus missed the deadline for appeal. The CFI Judge dismissed the summons on 2 August 2021. In her reasons (at §7), the Judge said:

… the Court can understand as to how it may have come to pass that the relevant authorities did not pass on the Form CALL-1 or Order when he was remanded in custody. Having said that, the applicant did not seek to progress his application whilst on remand despite having the services of legal aid throughout the period of his detention.

19.  On 20 September 2021, the Applicant filed a summons to the Court of Appeal (“CA”), to renew his extension of time application. That summons was dismissed on 21 March 2022. In its Judgment at §16, the CA referred to the Judge’s reasoning in her §7, and stated its conclusion at §17:

In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

20.  The CA also went on to state that, even if the court were to accept the Applicant’s reason for the delay, it would remain necessary to consider the merits of the intended appeal, and the CA could see no prospect of success in the intended appeal, and it would not grant an extension of time for a hopeless appeal.

21.  On 22 April 2022, the Applicant filed a Notice of Motion to the CA, again out of time, to seek leave to appeal to the Court of Final Appeal (“CFA”). This is the application referenced in the Applicant’s affirmation (see below). I understand that there has been no decision from the CA as yet, but the Department of Justice has by letter dated 6 September 2022 requested the CA to accord priority to this case.

22.  At some point during the present detention, the Applicant also made a request to file a ‘subsequent claim’. That request was withdrawn.

B.3  Periods of Detention and Reviews

23.  Prior to the present detention, from December 2013 to February 2018, the Applicant was under various periods of immigration detention. Whilst he was released on recognizance, he failed to report recognizance on 6 June 2016, and he had committed the offences set out above.

24.  The present detention commenced after the conclusion of a High Court trial in which the Applicant stood accused of robbery. The Applicant was acquitted on 17 May 2021 and released from the High Court into the custody of the Immigration Department (“ImmD”).

25.  As already mentioned, whilst awaiting trial on the robbery charge of which he was later acquitted, the Applicant was remanded in custody as from 17 July 2018. Even if one assumes that the period from 17 July 2018 until 6 December 2018 became ‘time served’ as or towards the 6-month sentence passed on that day, the Applicant was on remand in custody from late 2018/early 2019 until his acquittal, and the commencement of the present immigration detention on 17 May 2021.

26.  The Applicant’s detention was reviewed on 6 occasions, on 16 August 2021, 28 October 2021, 23 March 2022, 31 March 2022, 6 June 2022 and 19 September 2022. On each occasion, continued detention was recommended. The grounds are: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he poses or is likely to pose a threat or security risk to the community; (3) he may abscond and/or (re)offend; (4) he does not have any close connection or fixed abode in Hong Kong; (5) there are no other circumstances in favour of his release.

27.  Specifically, by reference to the last review, the section of the internal minute headed ‘Assessment and Recommendation’ reads as follows (bold and underlining in original):

2.  Subject has been detained for over one year and four months since 17-05-2021 pending removal from Hong Kong. Regarding his judicial review case in relation to his non-refoulement claim, assistance from the Court has been sought on 06-09-2022 to accord priority to the said leave application. Therefore, it is estimated that the leave application could be determined in a reasonable foreseeable future.

3.  Regarding subject’s re-entry to India, the IND CG had issued subject an emergency travel document on 23-08-2022 with validity until 22-02-2023. There is a reasonable prospect of effecting subject’s deportation within reasonable time in the foreseeable future once his judicial review case is finalized.

4.  A deportation order for life was made against subject on the basis of his criminal convictions of “Wounding”, “Theft”, “Possession of a dangerous drug” and “Assault occasioning actual bodily harm” for which he was sentenced to four months’ imprisonment respectively. The said offences are considered to be serious as they are deportable offences under section 20 of the Ordinance. Subsequently, during his release on recognizance, he was further convicted of the offences of “Possession of a dangerous drug” and “Assaulting a police officer”. Given the above, subject is likely to pose a threat / risk to the community. The potential gravity of offence(s) committed, if subject is released, is not a low one.

5.  There is a Hong Kong permanent resident who claimed to be a friend of subject and willing to act as his guarantor. Also, regarding subject’s claimed health condition which he was suffering from psychiatric disorder i.e. depression, there is no reason to believe that subject would not receive proper medical treatment at the Tai Tam Gap Correctional Institution if required. These factors have been taken into consideration but such factors do not outweigh the factors against the release of him as stated above.

6.  Subject has been detained for over one year and four months since 17-05-2021 for the present detention. There should be a reasonable prospect that his judicial review in relation to his non-refoulement claim could be finalized in reasonable foreseeable time. Meanwhile, subject’s emergency travel document has been issued and there is a reasonable prospect of effecting his deportation within reasonable time in the foreseeable future once his judicial review case is finalized, subject to no other unusual circumstances or impediment hindering his deportation. After careful consideration of all relevant circumstances and balancing all factors including the time of detention of subject for over one year and four months, the above-mentioned PAS’s conclusion on the review of subject’s detention and subject’s valid emergency travel document, this is not a case warranting release of subject on recognizance in lieu of his detention under section 32(3) of the Ordinance pending his deportation from Hong Kong.

28.  The recommendation was agreed to by the various immigration officers in ascending rank who considered the materials and made their handwritten comments. Neither the recommendation nor the individual officers’ agreement with the recommendation make specific reference to the lengthy period on remand served by the Applicant immediately before the commencement of immigration detention on 17 May 2021.

B.4  Steps towards Removal

29.  During the present period of detention, the main obstacles to deportation have been (a) the Applicant’s attempt to revive his JR proceedings in the courts by seeking extension of time, and (b) the need to replace his expired Indian passport.

30.  Internal minutes show that the Director has kept in view the progress of the Applicant’s JR proceedings. As said, a letter has been sent to urge the CA to accord priority to the Applicant’s application for leave to appeal to the CFA.

31.  ImmD has also been in active liaison with the local office of the Consulate General of the Republic of India (“Indian CG”) for the issuance of a replacement travel document since June 2021. An Emergency Travel Document (“ETD”) was issued on 23 August 2022, with a validity until 22 February 2023.

C.  Applicable Principles

32.  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.

33.  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

34.  In the supporting affirmation for his habeas corpus application, the Applicant put forwards the following:

1.  I wish to stay in Hong Kong until all my claims are completed (currently CAMP 396/2021 on Appeal from HCAL 958 of 2017).

2.  I shall not abscond, according to my bail history, I have been release on my own “Recognizance” on occasion in the past.

3.  The Director of Immigration is not willing to release me because of my past criminal record and that I may pose a threat to the community cannot be valid. They had already considered this when they released me in the past. Now, they are using the same reason to detain me.

4.  I am presently detained pending for my “Non-refoulement” claim not pending for removal. It is impossible to remove me within a short reasonable period. Therefore, the present detention is unlawful.

5.  I shall rely on the - “Hardial Singh Principles” that; “An initially lawful detention can become unlawful if it falls foul to the Hardial Singh Principles (1-4).

35.  CAMP 396/2021 is the CA case in which the Applicant has sought leave to appeal to the CFA.

36.  At the oral hearing, the Applicant further pointed out that he had been held in custody/detention for a total period of around 51 months – being the period on remand and then the period in immigration detention. He emphasised that he had been detained for that extremely lengthy period, notwithstanding that he had not committed any offence.

37.  He also submitted that he had identified a guarantor, were he to be released, and he promised that he would not commit any crime or abscond – and said if he did so, he would not have any objection to deporting immediately.

38.  Whilst the Applicant also pointed out that the lengthy period over which he had been detained was longer than the period of detention of some other cases, where the detained individuals had fairly recently been released as a result of their habeas corpus applications, I do not think that point is particularly weighty where each individual case must be determined on its own particular circumstances.

39.  Other than that, I bore these various points in mind and I shall make reference to them in my reasoned analysis below when it becomes relevant.

E.  Merits of Application

40.  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 removal. The release of the Applicant on recognizance in the past would not prevent the Secretary for Security from revoking recognizance and commencing detention of the Applicant under section 32(3). The Applicant’s reference to his being released on recognizance in the past even after his having committed crimes cannot of itself render the current detention unlawful (though it may be a factor to take into account in the weighing and balancing of the overall circumstances: see below).

41.  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.

42.  For the Director, Ms Cheung submitted that the detention of the Applicant had been reasonable at each stage, and throughout the entire 491 days. Having carefully considered the circumstances, I disagreed.

43.  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. When the present detention commenced on 17 May 2021, the only obstacle in sight was the Applicant’s expired passport which needed replacement. His JR proceedings were then added as an impediment when the Applicant sought an extension of time to appeal against the CFI’s refusal made 2½ years beforehand. The Director has taken active steps to obtain a replacement document and was keeping the progress of the JR proceedings in view.

44.  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 23 August 2022, and the letter dated 6 September 2022, urging the CA to accord priority to the Applicant’s case.

45.  I also acknowledge and agree with that the Director that considerable weight is to be placed on the Applicant’s criminal history and absconding record as factors favouring continued detention. The Applicant’s suggestion that reliance cannot be placed on this risk of absconding because he had previously been released on recognizance is misplaced. First, he committed offences whilst on recognizance, as well as failing to comply with the conditions of the recognizance. Secondly, the decision whether or not to detain or to continue detention must be taken by reference to the then pertaining circumstances, where the balance may change. Against the history, the risk of further offending is not low, and the potential gravity of offences if committed is also not low.

46.  I have noted that the Applicant moved to reactivate his JR proceedings after the present detention had begun, it is reasonable to expect a time extension application of the sort would be resolved by the courts reasonably quickly at all stages. As it now stands, it can be expected the that CA will perhaps determine the Applicant’s application for leave to apply to the CFA fairly soon.

47.  I have also taken into account that the attempted reactivation of the JR proceedings after a long gap, and only after the current period of detention began, does not suggest the merits of the attempt are very high. Indeed, the CFI Judge and the CA have already stated that the Applicant’s delay was very substantial without reasonable explanation and that his intended appeal had no prospect of success (see above). In his latest application, the Applicant has failed to advance any question of great general public importance nor identify any other reason otherwise why leave to appeal to the CFA might or should be granted. So I agree with Ms Cheung less weight should be accorded to the time taken with these applications.

48.  But, the consequences of the delay on the JR proceedings seems to me to be a different point from consideration of that period of delay as one of the particular circumstances of this case, when assessing the continued reasonableness of detention. In other words, whilst the delay (said by the Applicant to have been occasioned as the result of his being held on remand) may have been deeply unhelpful to his JR proceedings, that does not mean the period of previous detention on remand is irrelevant to the present consideration on the Applicant’s habeas corpus application. Therefore, whilst acknowledging that the previous periods of detention were not caused as a result of any decision by the Director, I reject Ms Cheung’s submission that the previous periods of detention are simply irrelevant. To my mind, they are not irrelevant – they are part of the overall circumstances to be weighed and balanced.

49.  In this case, the Applicant had not been discharged from a prison sentence served after conviction, and transferred to immigration detention. He had been discharged from being held on remand pending a trial at which he was acquitted, and then transferred to immigration detention. The natures of detention on remand and imprisonment are different, and that can be recognized in the present context. It does not require any criticism of the Applicant’s being held on remand to take that fact into account when considering the reasonableness of the detention which immediately followed it.

50.  I think it should be kept firmly in mind that the period of immigration detention to date is the quite lengthy period of 491 days, or 1 year 4 months, but that it was immediately preceded by a period of non-imprisonment detention of at least 2 years and 5 months. The lengthy prior period significantly changes the ‘colour’ of the subsequent period. It does so at least for the reason of its effect on him of the ensuing immigration detention, as stated in the particular circumstances that the prior period was not the result of imprisonment after a conviction. To my mind, it is that factor when given proper weight which tipped the balance in this case.

51.  Balancing matters overall now, I concluded that period for which the Applicant has now been detained is unreasonable in all the circumstances. In other words, in the circumstances I think neither HS2 nor HS3 are satisfied.

F.  Result

52.  For the above reasons, I concluded that the detention had become unlawful, so I ordered the Applicant to be released.

53.  I made no order as to costs.