HARPAL SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1238/2023

[2023] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1238 OF 2023

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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 Removal Order dated 5 December 2011 and a Deportation Order dated 8 May 2023. He has been held in immigration detention since 30 December 2022 pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 233 days, or around 7½ months.

2.  On 14 July 2023, the Applicant applied for writ of habeas corpus seeking his immediate release from detention. On 24 July 2023, I gave leave for the Respondent Director to file and serve a written response and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Director was represented by Mr Thomas Tong, Government Counsel of the Department of Justice (“DOJ”). Mr Tong said he also has authority to represent the Secretary for Security which was also involved in making the decisions relevant to the present detention, albeit not named as a respondent. The Applicant appeared in person with the benefit of a Punjabi/English interpreter.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is an Indian national born in 1979.

6.  The Applicant last entered Hong Kong as a visitor in May 2007, but soon over-stayed in June 2007 by failing to leave Hong Kong within the limit of stay granted to him.

7.  He went underground, and only resurfaced in February 2009 when he was arrested by the police. He was then convicted of breach of conditions of stay and sentenced to 2 months’ imprisonment. He was discharged from prison on 19 March 2009, and lodged a torture claim under section 37X of the Immigration Ordinance Cap 115 (“Ordinance”) the next day. In September 2013, the Applicant also raised a non-refoulement claim (“NRC”) after the grounds for a person to resist removal to his or her home country were broadened in the local jurisprudence to include risks other than torture risk.

8.  Whilst the Removal Order against the Applicant was issued as early as 5 December 2011, such order could not be executed because the Applicant has been maintaining the NRC or relating legal proceedings in the following decade, up till now.

9.  It is not necessary to go into the details of the legislative regime or the Government’s removal policy concerning when a NRC claimant could be removed. Suffice to say that, with effect from 7 December 2022, the Government has changed its removal policy such that once a claimant’s NRC has reached the stage of any subsequent judicial review application having been rejected by the Court of First Instance (“CFI”), the existence of further appeals would no longer be seen by the Government as an obstacle or impediment to removal. An NRC reaching this stage would necessarily have been “finally determined” under section 37Z of the Ordinance, which prohibits the removal of claimants whose NRCs are not yet finally determined.

10.  By 9 May 2023, the leave application for judicial review in HCAL 1947/2019 arising from the Applicant’s NRC was rejected by the CFI. Thus, the Applicant has become “removable” under the applicable legislative and policy regime.

C.  Criminal Record, Previous Detention, & Absconding Record

11.  During the Applicant’s 16-year long stay in Hong Kong, he has been frequently in and out of prison. He was convicted of 25 counts of various offences, of which 21 counts were theft related offences including 16 counts of shoplifting. He received 4 weeks’ to 8 months’ imprisonment for a single count of shoplifting. The heaviest sentence came from “theft from vehicle” which brought him 12 months. His criminal record is as follows:

(1)  On 12 February 2009, he was sentenced to 2 months’ imprisonment for breach of conditions of stay.

(2)  On 4 July 2011, he was sentenced to a total of 11 months’ imprisonment for possession of dangerous drugs, and 2 counts of going equipped for stealing.

(3)  On 27 April 2012, he was sentenced to 4 weeks’ imprisonment for shoplifting.

(4)  On 5 November 2012, he was sentenced to a total of 6 months’ imprisonment for 3 counts of shoplifting.

(5)  On 8 July 2013, he was sentenced to 4 months’ imprisonment for shoplifting.

(6)  On 28 February 2014, he was sentenced to 4 months’ imprisonment for shoplifting.

(7)  On 28 November 2014, he was sentenced to 5 months’ imprisonment for shoplifting.

(8)  On 23 October 2015, he was sentenced to 4 months’ imprisonment for shoplifting.

(9)  On 1 September 2016, he was sentenced to 7 months’ imprisonment for 2 counts of shoplifting.

(10)  On 4 September 2017, he was sentenced to a total of 10 months’ imprisonment for 2 counts of shoplifting.

(11)  On 23 November 2017, he was sentenced for possession of dangerous drugs to 6 months’ imprisonment (apparently with 3 months to run concurrently with another offence which is not ascertainable from the criminal record summary provided to me).

(12)  On 10 January 2019, he was sentenced to a total of 7 months’ imprisonment for theft and misleading a police officer by giving false information.

(13)  On 12 November 2019, he was sentenced to 4 months’ imprisonment for shoplifting.

(14)  On 27 July 2020, he was sentenced to 3 months’ imprisonment for shoplifting.

(15)  On the 20 March 2021, he was sentenced to 6 weeks’ imprisonment for shoplifting.

(16)  On 16 February 2022, he was sentenced to 5 months’ imprisonment for shoplifting.

(17)  On 6 May 2022, he was sentenced to 12 months’ imprisonment for theft from vehicle.

(18)  On 14 July 2022, he was sentenced to 2 months’ imprisonment for shoplifting (with 1 month to run consecutively to another offence which is not ascertainable from the criminal record summary provided to me).

12.  On each occasion upon his discharge from prison, he would be transferred to the Immigration Department which would first detain him under section 32(3) whilst deciding if he should be granted immigration recognizance under section 36. In all the previous occasions except the most recent one (so 15 times), the Director granted the Applicant immigration recognizance after having detained him for a brief period under section 32(3).

13.  As Mr Tong puts it, during his long stay in Hong Kong, the Applicant had been intermittently serving his sentences in prison, being held in immigration detention and then being released on recognizance, on a cycle 15 times.

14.  On the last occasion when the Applicant was discharged from prison on 30 December 2022, the Director took him into detention and has been detaining the Applicant until now. Hence, this is the period of detention from which this application seeks his release.

15.  When the Applicant was granted immigration recognizance, he was required to report to the Director regularly. There were 2 occasions when the Applicant failed to report recognizance:

(1)  The Applicant failed to report recognizance on 27 May 2009. He only resurfaced 10 months later when he was arrested by the police for being a wanted person on 29 March 2010.

(2)  On 25 June 2018, the Applicant failed to report recognizance again and only resurfaced about 6 months later when he was intercepted by the police for a theft case on 30 December 2018.

D.  Steps towards Removal

16.  As is common in a habeas corpus application of this sort, the removal obstacles impeding the Applicant’s removal when he was taken into custody were (1) his expired passport, which needed replacement, and (2) his judicial review leave application, the resolution of which was pending in HCAL 1947/2019.

17.  That intended judicial review leave application arose in the following circumstances. The Applicant’s NRC was rejected by the Director on 24 July 2017. Almost 10 months later, on 18 May 2018, and whilst the Applicant was in detention, the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) received the Applicant’s late filing of a Notice of Appeal/Petition. On 14 March 2019, the Board refused the late filing application. On 10 July 2019, again whilst in detention, the Applicant filed an application out of time, seeking leave to apply for judicial review against the Board’s decision.

18.  By letter dated 2 February 2023, the DOJ on behalf of the Director informed the High Court that the Applicant was in detention and requested for priority to be accorded to his case. As already set out above, the CFI dismissed the Applicant’s leave application on 9 May 2023. Under the Government’s latest removal policy applicable since the 7 December 2022, that put to an end any impediment to removal arising from the Applicant’s NRC.

19.  The resolution of the passport issue has not been as smooth. Mr Tong set out in a detailed chronology the steps the Director has taken for the purpose of obtaining a replacement passport for the Applicant. I can deal with matters more briefly.

20.  The Director started liaising with the Indian Consulate as early as 18 February 2022, that is more than 10 months before the Applicant was taken into immigration custody. The liaison resulted in the Applicant’s identity being confirmed by the Consulate on 24 February 2022.

21.  Apparently, the efforts were then paused until around 7 February 2023, when the Applicant was requested to submit a re-entry application form, which he rejected.

22.  On 19 May 2023, in an interview conducted by the Director, the Applicant again refused to cooperate in going through the re-entry seeking formalities, including completing the re-entry application form and taking photos. He also refused to attend interview with the Indian Consulate.

23.  Such refusal to go through the necessary steps and procedures to facilitate his own return was repeated on 27 June 2023, and again on 25 July 2023.

24.  Despite the Applicant’s demonstrated resistance, the Director nonetheless booked an appointment with the Indian Consulate for interviewing the Applicant for his travel document on 1 August 2023. But the appointment had to be called off because the Applicant refused to attend the interview on that day.

25.  I have omitted from the above brief chronology the various requests sent by the Director to the Indian Consulate requesting the latter to issue a travel document for the Applicant, and the various interviews conducted by the Director with the Applicant where the latter consistently expressed his unwillingness to return.

26.  I am informed by the Director that the Indian Consulate confirmed that generally speaking they will be able to issue a replacement travel document within 3 to 4 weeks’ upon the Applicant’s completing the necessary formalities.

E.  Review of Detention

27.  Since 30 December 2022, the Director and/or the Secretary had to consider if the detention should be continued, on a number of occasions. The Director/Secretary’s decisions were reflected on the relevant “Notice of Detention” which were served on the Applicant. Detention or continued detention was considered justified on each occasion. The broad grounds relied upon in each decision are similar: (a) his removal is going to be possible within a reasonable time; (b) he poses or is likely to pose, a threat or security risk community; (c) he may abscond and/or reoffend; (d) he does not have close connection of fixed abode in Hong Kong; and (e) there are no other circumstances in favour of his release.

28.  The Director/Secretary heavily relied upon the Applicant’s lengthy criminal record and his uncooperative attitude in applying for a replacement passport. They also placed importance on his absconding record. Whilst the judicial review application was still afoot, they expected that the application could be dealt with shortly. In the latest review, they noted in their internal communication that the leave application was already disposed of on 9 May 2023. As to the passport issue, they expected that a replacement travel document would be issued within a reasonable time in view of the active liaison with the Indian Consulate.

F.  Applicable Principles

29.  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 any individual case.

G.  The Applicant’s Submissions

30.  The Applicant exhibited 11 pages of handwritten notes to his supporting affirmation, some of which are regurgitation of the general legal principles applicable to habeas corpus applications (apparently copied almost word for word from other similar applications previously made). There is no explanation how any particular could be applicable to his case, but in any event the applicable principles are well-settled.

31.  The Applicant also attempted to make submissions directly by reference to the Hardial Singh principles, and to rebut the grounds relied by the Director/Secretary in deciding to continue the detention as revealed in the “Notice of Detention” or “Notice of Review of Detention”. His submissions can be summarised as follows:

(1)  He has been detained for nearly 8 months.

(2)  His continued detention is unnecessary to the point of being unlawful. The Hardial Singh principles are not satisfied.

(3)  His leave application for judicial review was refused, but he has already applied for a Summons which is still in progress.

(4)  After the Summons is dealt with, he still has other options that can impede his removal. He does not think his removal could be effected in the near future.

(5)  The power of detention is for facilitating removal rather than for protecting the public, which is the duty of the police.

(6)  He disagrees that he is likely to pose a threat or security risk to the community. Although he was convicted of multiple criminal offences, he has already served all the sentences passed on him, and the longer sentence imposed was one of 13 months’ imprisonment.

(7)  He disagrees that he was convicted of crimes of a serious or violent nature. All of his convictions were for theft or possession of drugs.

(8)  On the previous occasions, the Director was able to grant him recognizance after he was discharged from prison, he asked what had suddenly changed which had turned him into a security risk to the community of Hong Kong.

(9)  As to his absconding history, he said he had jumped court bail. But he said, on the previous occasion, the Director would still release him, and so he questioned what had changed this time.

(10)  As to the reference that he has directly or indirectly prevented or delayed his removal, the Applicant admits that he has refused to return to his home country. He said he cannot return because he has problems there and that was why he applied for NRC in the first place.

32.  I note that in fact the Applicant had no record of jumping bail and that was not relied upon by the Secretary or Director in any of the “Notice of Detention” or “Notice of Review of Detention”.

33.  As to the Summons, I have consulted the court file which shows that the Applicant did file a Summons in HCAL 1947/2019, apparently seeking an order to quash the CFI’s refusal originally made on 9 May 2023. That Summons was clearly filed irregularly.

34.  At the oral hearing, the Applicant further submitted (in my summary of his points) that:

(1)  The Deportation Order made against him has three names on it, when he has only one name.

(2)  If he were to change his name, or the order of his name, on his passport, he might be charged with providing false information, possibly resulting in conviction and serving a sentence.

(3)  The Commissioner of Police does not object to his being released on recognizance.

(4)  He has already served his sentence for crimes committed, and there is no basis for detaining him.

(5)  If the Director really wants to send him back, they can release him and send him back.

(6)  He has previously been uncooperative in obtaining a passport because he does not wish to return as his life is still in danger.

(7)  There are documents outside in support of his torture claim, which he could obtain.

(8)  He is not being sent for proper follow-up appointments for his medical condition (apparently affecting his back).

35.  I will bear all these points in mind in my analysis below as appropriate, including by reference to the following points.

36.  First, the Deportation Order is clearly made against the Applicant, and the Applicant alone. The ‘three names’ are in fact the Applicant’s name written in three ways i.e. HARPAL SINGH alias Singh HARPAL alias Harpel SINGH. I do not think this makes the Deportation Order invalid (if that is what is being suggested), nor does it give rise to any confusion.

37.  Secondly, the memorandum from the Commissioner to the Director merely states that the Applicant is not adversely known to the Commissioner, who has no comment on whether the Applicant should be released on recognizance.

38.  Thirdly, when the Applicant suggested that he might be released and then sent back, I asked him how that would happen if he refused to cooperate in obtaining the necessary travel document and approvals. When I asked him why the Court should think that he would cooperate if released when he has refused to cooperate to date, the Applicant suggested that he would state in writing that he would cooperate. When I sought clarification as to whether he was saying that he would cooperate only on condition that he is first released, the Applicant confirmed that to be the case. That kind of conditional suggestion of co-operation in future he is deeply unimpressive. It is also in any event not something upon which any substantial reliance could be placed, in light of the Applicant’s strident and continued assertion of unwillingness to be returned.

H.  Whether Detention has become unlawful

39.  There was and remains clear prima facie lawful authority for the detention.

(1)  From 30 December 2022 to 12 April 2023, he was detained under section 32(3A) which authorizes the detention of person against whom a removal order is in force. The Removal Order has remained extant at all times.

(2)  From 13 April 2023 to 7 May 2023, he was detained under section 29 for making enquiry as to whether a deportation order ought to be issued.

(3)  From 8 May 2023, he was detained under section 32(3) which authorises the detention of person against whom a deportation order is in force. The Deportation Order remains extant.

40.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

41.  I can address the Hardial Singh principles broadly as below. The starting point is that the Applicant has been detained up to today for a period of 233 days or a little over 7 months. It is against that period – which is obviously not insubstantial – that the other factors are to be weighed and balanced.

42.  HS1 and HS4 are clearly satisfied. I have no doubt that the detention power has been used to facilitate removal or deportation. The Director’s diligence and expedition were evident in his efforts in resolving the removal obstacles, as already set out above.

43.  When the Applicant was taken into custody, his NRC had reached the stage of its subsequent judicial review leave application pending the resolution of the CFI. That obstacle was later removed by the CFI’s refusal made on 8 May 2023.

44.  The Applicant did not particularize what “other options” he would employ to impede his own removal. Without speculating as to what those options might be, this does appear to identify a blatant admission by the Applicant of his willingness to exploit NRC-related court procedures in the hope of creating a continuing impediment to, and so delay of, removal. This would be consistent with the Applicant’s past behaviour, where (as Mr Tong has set out in his written response) the Applicant had applied to withdraw and then re-open his NRC on multiple occasions in the past, which necessarily lengthened the processing time of his NRC. I accept Mr Tong’s submission that the Applicant has not pursued his NRC or the judicial review leave application with diligence.

45.  I also agree with Mr Tong that the difficulty arising from obtaining a replacement passport for the Applicant stems from his own conscious choice in refusing to cooperate in the application process. The Applicant is the author of delay in his removal. The Applicant has implicitly accepted this in his supporting affirmation. He has sought to explain his uncooperative attitude by claiming that it will be dangerous for him to return to India, which claim he has failed to substantiate even though he has had more than 10 years to do so. I agree with Mr Tong that a replacement passport might have been issued already, had the Applicant chosen to cooperate. In any event, the Indian Consulate confirmed that the necessary document could be issued within 3 to 4 weeks if the Applicant would cooperate to complete the application procedure.

46.  As I have already indicated above, no real weight can be placed on the Applicant’s suggestion this morning that he would cooperate in obtaining a passport were he to be released on recognizance. The Applicant can, and he should, cooperate now. If he were to cooperate at last, the Applicant could be released within a matter of weeks (albeit in India).

47.  Importantly, it is not fairly or properly open to the Applicant to complain about the continuing length of his detention when his own conduct has contributed to it, and where a change of conduct could bring the detention to an early end. In essence, the only reason why this Applicant continues to be detained is because he has failed to facilitate the step which will end it. This is a matter properly to be taken into account in the current balancing exercise: see section 32(4A)(d) of the Ordinance.

48.  There is also substantial force in the Director’s argument that there is real risk of re-offending and absconding. Whilst most offences committed by the Applicant were shoplifting, the counts on shoplifting alone stretch to 16. The Applicant is a recidivist, and has shown himself to pay scant regard to the laws of Hong Kong. The list of offences also includes drug related offences and theft from a vehicle. These are serious offences. Whilst the power of detention is not for protecting the Hong Kong public, risk to the community is properly a factor which the Director or Secretary is entitled to consider in deciding if recognizance should be granted. As I see it, the risk of re-offending is high, and the potential impact from it is of some real and substantial weight to be taken into the current balancing exercise. Further, if the Applicant were to commit further crime and be imprisoned, that would also frustrate or delay the intended removal/deportation.

49.  Although the Applicant has only failed to report recognizance on 2 occasions, he went underground for 10 months and 6 months respectively until he was arrested by the police. Coupled with the demonstrated reluctance to cooperate in the application process for his replacement passport and the self-proclaimed willingness to deploy what other procedures he could to keep his NRC alive in order to maintain a removal impediment, I consider that the absconding risk is also significant. I also note that the Applicant has little local connection in Hong Kong.

50.  Simply because recognizance was re-granted by the Director on the previous 15 occasions after the Applicant was briefly held in immigration detention following his discharge from prison does not entitle the Applicant to be so treated on all future occasions. To the contrary, the Director/Secretary was entitled to draw the line at the 16^th occasion. This is perhaps stating the obvious.

51.  I see no merit in the point about his medical condition, as there is no reason to think that the Applicant would not receive appropriate medical assistance within the detention facility, or as necessary at an external medical establishment. Similarly, no weight is to be given to the assertion that documents supporting his NRC could be obtained if he is released. The Applicant had years to provide materials in support of his NRC, which has in any event been determined against him.

52.  Overall, weighing the period of detention – around 7½ months – against all the other factors, I am satisfied that HS2 and HS3 are met.

53.  In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

I.  Result

54.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.