JATINDER SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 438/2024

[2024] HKCFI 1122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 438 OF 2024

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J U D G M E N T

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A.  Application

1.  By an ex parte application filed on 7 March 2024, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 Rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Immigration Department (the “Department”).

B.  Background of Applicant

2.  The Applicant is an Indian national who arrived in Hong Kong on the strength of his Indian passport which will expire in February 2025. He was initially permitted to remain in Hong Kong as a visitor until 19 October 2016. The Applicant did not depart as required and overstayed in Hong Kong until he surrendered to the Department on 1 November 2016. The Applicant was released on recognizance on 2 November 2016.

3.  A removal order (the “Removal Order”) was made against the Applicant under section 19(1)(b) of the Immigration Ordinance (the “Ordinance”) on 7 February 2017.

4.  The Applicant had repeatedly been convicted of various criminal offences and was last released on recognizance on 31 December 2022. On 18 December 2023, the Applicant’s recognizance ceased and has since been detained at the Castle Peak Bay Immigration Centre (the “CIC”). At the time of the hearing the Applicant has been in detention for 127 days.

C.  NRC related proceedings

5.  The Applicant indicated his intention to lodge a non-refoulement claim (“NRC”) on 23 February 2017. The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 26 April 2018 (the “Director’s Decision”).

6.  The Applicant lodged an appeal to the Torture Claims Appeal Board against the Director’s Decision on 16 May 2018. The Torture Claims Appeal Board refused the Applicant’s appeal on 8 February 2019 (the “TCAB Decision”).

7.  The Applicant’s application to the Court of First Instance for leave to commence judicial review of the TCAB Decision (the “JR Application”) was refused on 19 April 2022.

8.  According to the Department’s removal policy since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

9.  As the JR Application has been refused, there is no longer any legal impediment to the Applicant’s removal.

D.  Criminal Record & Sentencing Record & Abscondence

10.  The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Period of Sentence
27 January 2017	Breach of condition of stay by overstaying	6 days’ imprisonment (suspended for 12 months)
25 May 2018	Conspiracy to defraud	12 months’ imprisonment
25 November 2022	Handling of stolen goods	Fined $5000
2 December 2022	Trafficking in a dangerous drug	4 months’ imprisonment
20 April 2023	Gambling in a gambling establishment	Fined $700

E.  Steps towards Removal

11.  The Applicant’s passport is valid until 2 February 2025. However, he refused to surrender it to the Department.

12.  After the Applicant’s present detention commenced on 18 December 2023, he expressed strong unwillingness to return to India on 3 January 2024. Such unwillingness was repeated on 25 January, 5 February, 20 February and 27 February 2024.

13.  In view of the Applicant’s attitude, the Department contacted the Consulate General of India (the “Consulate”) on 26 January 2024 requesting issuance of a replacement travel document for the Applicant’s repatriation.

14.  An interview was held with the Applicant on 5 February 2024 but the Applicant refused to submit re-entry application nor attend interviews with the Consulate.

15.  The Department further emailed with the Consulate on 1 March and 14 March 2024 requesting for verification of the Applicant’s identity without his co-operation.

16.  The Consulate replied on 22 March 2024 that the verification of the Applicant’s identity is being processed actively.

F.  Applicable Principles

17.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

18.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

19.  The Applicant has set out his grounds for application in his affirmation filed on 7 March 2024. In summary, they are as follows:

(1)  Detention is not for purposes of removal.

(2)  In any event the period of detention has become unreasonable.

(3)  The Director cannot effect removal within a reasonable time.

(4)  The Applicant has complied with terms of recognizance in the past.

(5)  The diet at the detention centre is not balanced as the fruit provided is only one orange per day.

(6)  The Applicant complained of the condition during his detention, including that his meals provided in CIC is not balanced and there were CCTV monitoring and recording.

(7)  The Applicant alleged that he was in poor health condition during the detention and he was suffering from eye problem, head pain and back bone pain.

(8)  The Director is slow in dealing with his enquiries about the deprivation of his liberty.

20.  At the oral hearing, the Applicant relied upon his earlier written materials and made further submissions. In addition to his submissions made in his affirmation, the Applicant stated the following:

(1)  He had never jumped bail, even after his JR Application was concluded and was unsuccessful.

(2)  The Department could have detained him after the conclusion of his JR Application but they did not.

(3)  He had requested for updates of his JR Application but he was not informed of the result of his JR Application until 18 December 2023.

(4)  He had already served his sentence for his past criminal conviction.

(5)  Applicants in cases similar to him have in the past successfully obtained bail.

21.  I have borne these points in mind in my analysis below.

H.  Lawful Authority for Detention?

22.  Up to the hearing on 22 April 2024, in total, the Applicant has been detained for 127 days.

23.  At all times, the Applicant was detained under section 32(3A) of the Ordinance, which authorises the detention of a person against whom a removal order is in force pending his removal from Hong Kong. The Removal Order remains extant.

24.  Thus, there was and remains clear prima facie lawful authority for the detention.

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

I.  Whether Detention has become unlawful

26.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

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

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

(3)  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 (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

27.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

28.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

29.  The starting point is the length of the detention – about 127 days – against which all the other factors must be weighed and balanced.

30.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  At the time of the commencement of the Applicant’s detention, the JR Application has already been dismissed. There is no longer any legal impediment to the Applicant’s removal.

(2)  The Applicant does not have a right to remain in Hong Kong, yet the Applicant has all along refused to go back to India and has refused to surrender his passport which has not expired.

(3)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(4)  The period of detention that the Applicant has refused to co-operate with his repatriation will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful.

(5)  The Applicant’s removal will be possible as soon as the Applicant would surrender his passport.

(6)  As such, the Applicant can leave the detention centre if he agrees to be repatriated. He does not have the right to remain in Hong Kong. He also does not have the right to dictate that he would only leave the detention centre if he were given recognizance. There is thus very little basis for him to raise complaints about conditions of detention including being subjected to CCTV surveillance, food quality, insufficient medical care etc (even if proven) when he refuses to be repatriated.

(7)  In light of his criminal records, I agree with Ms Zhi that the risk of re-offending is real. Presumably, if not repatriated, once out of detention, the Applicant would find it necessary to seek employment (illegally) to maintain a living. It is thus not unreasonable to guard against the risk that the Applicant, if released on recognizance, might engage in unlawful employment or activities again which would lead to terms of imprisonment which might delay further repatriation operation.

(8)  Despite the fact that the Applicant has provided a surety, given the Applicant has repeatedly indicated his unwillingness to be repatriated and refused to co-operate in obtaining the necessary travel documents, the risk of absconding is also real.

(9)  For the cases referred to by the Applicant, one of which the application was settled, and the other one had completely different factual backgrounds. It is of no relevance to the Applicant’s case. In any event, each case must depend on its own facts.

(10)  Overall, weighing the period of detention – around 127 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

31.  I am satisfied that HS4 is satisfied that the Director had diligently pursued the Applicant’s deportation for the steps taken in paragraphs 12 – 16 above.

32.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

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