NGUYEN VAN TUNG v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 1603/2023

[2023] HKCFI 2715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1603 OF 2023

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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 11 September 2023, 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 Correctional Services Department.

2.  The Applicant originally named the Immigration Department as the only respondent. However, as the Applicant is being detained under the authorisation of the Secretary for Security, he should be added as the 2^nd respondent. The Applicant did not object to adding the Secretary for Security as the 2^nd respondent. The application thus proceeded on that basis.

B.  Background of Applicant

3.  The Applicant is a Vietnamese national born in 1991 who entered Hong Kong illegally on 26 October 2017 and was arrested for theft on 28 October 2017. He was convicted of theft and was sentenced to 4 months’ imprisonment in November 2017. He was further convicted of remaining in Hong Kong without the authority of the Director and was sentenced to 14 months’ imprisonment on 26 March 2018.

4.  The Applicant raised a non-refoulement claim (the “1^st NRC”) on 1 December 2017 which was rejected by the Director of Immigration (the “Director”) on 19 March 2018. The Applicant lodged an appeal to the Torture Claims Appeal Board (the “TCAB”) against the refusal of the 1^st NRC on 10 April 2018, which was subsequently withdrawn. On 6 November 2018 a deportation order was made against the Applicant (the “Deportation Order”) and he was deported to Vietnam on 14 November 2018.

5.  About a year later on 17 November 2019, the Applicant illegally re-entered Hong Kong in breach of the Deportation Order in force against him and he was re-arrested by the police on 18 November 2019. The Applicant sought non-refoulement protection (the “2^nd NRC”) which was rejected by the Director on 30 June 2020. The Applicant’s appeal to the TCAB against the refusal of the 2^nd NRC was dismissed on 22 September 2020 (the “TCAB Decision”).

6.  In the meantime, the Applicant was convicted of the offences of “remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong” and “breach of Deportation Order” and was sentenced to 16 months’ and 15 months’ imprisonment respectively on 16 July 2020. Upon his discharge from prison on 8 October 2020, the Applicant was initially detained pending his deportation. The Applicant filed an application to the Court of First Instance on 25 November 2020 for leave to commence judicial review against the TCAB Decision. The Applicant was released on recognizance on 24 December 2020.

7.  Whilst released on recognizance, the Applicant was re-arrested by the Police on 12 September 2022 for “unlawful recording or observation of intimate parts”. He was granted bail pending the trial but failed to report to Police Bail on 17 March 2023 and failed to report immigration recognizance from 13 April 2023.

8.  The Applicant was further re-arrested by the Police on 27 May 2023 for two counts of theft.

9.  The Applicant was sentenced on 29 May 2023 for 1 count of “unlawful recording or observation of intimate parts” for 14 days’ imprisonment and for the two counts of “theft” for 28 days and 42 days respectively.

10.  Upon discharge from prison on 12 July 2023, the Applicant has been detained under section 32(3) of the Immigration Ordinance (Cap.115) (the “Ordinance”) pending his deportation from Hong Kong.

11.  The Applicant’s passport had expired in January 2019.

12.  At the time of the hearing, the Applicant has been detained for 97 days.

C.  NRC related proceedings

13.  The Applicant’s 2^nd NRC was based on alleged fear of being killed by a customer of his pawn shop over some monetary dispute.

14.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 dated 28 September 2023 (the “JR Decision”) in HCAL 2318/2020.

15.  According to the updated removal policy of the Immigration Department 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.

16.  There is thus no legal impediment to the Applicant’s removal.

D.  Criminal Record & Sentencing Record

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

Date of Conviction	Offence	Period of Sentence
27 November 2017	Theft	4 months
26 March 2018	Remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong	14 months
16 July 2020	Remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong	16 months (concurrent)
	Breach of Deportation Order	15 months (concurrent)
29 May 2023	Theft	6 weeks (concurrent)
	Theft	4 weeks (concurrent)
	Unlawful recording or observation of intimate parts	2 weeks (consecutive)

E.  Steps towards Removal

18.  There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s expired passport.

19.  On 21 July 2023, the Applicant indicated his unwillingness to return to Vietnam. On 11 August 2023, the Applicant expressed his unwillingness to be interviewed by the Vietnamese Interview Team for the purposes of completing procedural formalities to facilitate his re-entry into Vietnam.

20.  On 14 August 2023, the Director provided a list of illegal immigrants, one of which was the Applicant, to the Vietnam Immigration Department for the purposes of conducting interviews for the completion of procedural formalities.

21.  On 22 August 2023, the Immigration Department arranged another interview with the Applicant to inform him of the procedural formalities to facilitate his re-entry into Vietnam. The Applicant once again strongly refused to attend the interview with the Vietnamese Interview Team and refused to enter the interview room.

22.  On 24 August 2023, another interview with the Immigration Department was arranged when the Applicant once again refused to complete the re-entry formalities, including the completion of an application form and photo taking. He indicated he would not co-operate with any immigration removal arrangements.

23.  In view of the Applicant’s refusal to co-operate with re-entry formalities, the Immigration Department adopted the alternative procedure and issued a Note Verbale to the Vietnam Consular Department on 7 September 2023, asking for clearance for the Applicant’s return. Three further Notes Verbale were issued between 19 September 2023 to 12 October 2023.

24.  Upon the handing down of the JR Decision, the Immigration Department visited the Vietnamese Consulate General on 29 September 2023 to provide further information in facilitating the processing of the Applicant’s travel document.

25.  The issue of a travel document from the Vietnamese Consulate General is still pending. The court is given to understand that the usual time for the issue of an emergency travel document where an applicant does not co-operate would take about 3 – 4 months. Once a travel document is issued, it takes about a week before a repatriation flight can be arranged.

F.  Applicable Principles

26.  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.

27.  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

28.  The Applicant has set out his grounds for application in his affirmation dated 8 September 2023. In summary, they are as follows:

(1)  He was detained pending the outcome of his 2^nd NRC.

(2)  The Immigration can only use detention for the purpose of removal, not to protect the public.

(3)  The length of the detention has become unreasonable.

(4)  The deportation cannot be effected within a reasonable time. The Director has not taken active steps to effect his removal.

(5)  The decision for detention was based on his criminal record, but his convictions were not related to violence.

29.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  He has a pending appeal against the JR Decision.

(2)  He would be willing to return to Vietnam once his family has repaid his debt. He wished to be released in the meantime.

30.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

31.  The Deportation Order was issued on 6 November 2018 and remains extant. The Applicant has been detained from 12 July 2023 to 16 October 2023 (97 days) under section 32(3) of the Ordinance which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

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

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

I.  Whether Detention has become unlawful

34.  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/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”).

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

HS1

36.  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

37.  The starting point is the length of the detention – about 97 days – against which all the other factors must be weighed and balanced.

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

(1)  There is no dispute that from the very beginning of the Applicant’s detention in July 2023, the Applicant has repeatedly refused to co-operate in obtaining a valid travel document to enter Vietnam by failing to complete any re-entry formality for applying a travel document. The unwillingness to return to Vietnam was once again repeated at the oral hearing.

(2)  T here is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(3)  With the only impediment being the issue of a travel document, I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(4)  In any event, I agree with Ms Kao that the length of the current detention was largely attributable to the Applicant’s self-inflicted hindrance and thus it lies ill in the mouth of the Applicant to complain about the length of the detention. He had consciously and deliberately refused to co-operate, which led to the impossibility of earlier deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(5)  The Applicant has been repeatedly convicted of various offences, even whilst on recognizance. I am of the view that the risk of re-offending is high.

(6)  The Applicant has shown no local connection. In addition, given the Applicant’s clear attitude that he is unwilling to be repatriated, the risk of absconding is real.

(7)  Overall, weighing the period of detention – around 97 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

39.  I am satisfied that HS4 is satisfied as the Director had pursued the Applicant’s deportation diligently, as shown in paragraphs 19 – 24 above.

40.  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

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