NGUYEN VAN HIEU v. HONG KONG SAR GOVERNMENT

HCAL 494/2023

[2023] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 494 OF 2023

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D E C I S I O N

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A. Introduction

1.  The Applicant has been held in immigration detention since 4 January 2023 pending his removal from Hong Kong.  To the date of this hearing, the period of detention has lasted 101 days.

2.  The detention was initially authorised by section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”) which permits the detention of a person against whom a removal order has been issued.  Such a Removal Order was issued against the Applicant on 3 July 2020, and it remains extant.

3.  Since 6 April 2023, the statutory basis for detention has been switched to section 29(1) of the Ordinance, which permits detention for the purpose of making enquiry as to whether a deportation order should be issued.

4.  On 29 March 2023, the Applicant applied for a writ of habeas corpus on the broad ground that his detention has become unlawful by reference to the Hardial Singh principles.

5.  The Applicant identified the Hong Kong SAR Government as the Respondent.  I shall take that as a reference to the Director of Immigration and the Permanent Secretary for Security, if necessary.

6.  I gave directions for the Respondent to file an initial response, and so as to bring the matter to today’s hearing.  At the hearing, the Applicant appeared in person with the benefit of a Vietnamese/English interpreter.  The Respondent was represented by Ms Angel Zhi, Senior Government Counsel (Ag), who had also signed the initial response.

B.  Factual Background

7.  The Applicant is a Vietnamese national born on 2 November 1983.  He has been unlawfully staying in Hong Kong since at least May 2016.

8.  His presence in Hong Kong was first discovered by the police who arrested him on 11 May 2016 for being a suspected illegal immigrant.  He was subsequently convicted of (1) illegally remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, and (2) possession of forged identity card.  He was sentenced to a total of 27 months’ imprisonment for the two offences.

9.  Those are not the only criminal offences he has committed during his stay in Hong Kong.  He committed further offences, all of which were shoplifting.  In 2019, he was sentenced to 5 months’ imprisonment for 2 counts of shoplifting.  In 2020 and 2022, he was sentenced to 6 months and 7 months respectively for the same offences.

10.  Every period of imprisonment was followed by a brief period of immigration detention, varying from 6 days to 24 days. But he was released on recognizance after those brief periods of detention.

11.  This is also how the present immigration detention began.  The Applicant was discharged from prison on 4 January 2023 upon completion of his latest imprisonment term and he was then transferred to the Immigration Department for handling on the same day.

C.  The Applicant’s Non-refoulement Claim

12.  By the time of commencement of the present detention, the Applicant had already lodged a non-refoulement claim (“NRC”) which had become, and for a period of time remained, an obstacle to removal under the then removal policy adopted by the Government.

13.  The NRC was lodged in January 2017.  The claim was rejected by the Director in November 2018.  The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal in 2019.  The Applicant then sought leave for a judicial review challenge to the Board’s decision, in HCAL 2134/2019. The leave application was still pending at the time the present detention commenced.

14.  After the Applicant had been taken into immigration detention, the DOJ, by letter dated 31 January 2023, urged the Court of First Instance (“CFI”) to accord priority to the Applicant’s leave application.  On 7 March 2023, the CFI determined and dismissed the leave application.

15.  I am informed that the Applicant has further appealed to the Court of Appeal (“CA”) against the CFI’s refusal.  However, under the updated removal policy which has come into effect since December 2022, further appeals are no longer seen as removal obstacles as long as the CFI’s decision remains valid.  Therefore, as it now stands, the Applicant’s NRC and related proceedings are no longer an obstacle to his removal.

D.  Steps Towards Removal

16.  From the materials available to me, the Applicant has always been in possession of a valid Vietnamese passport with a validity expiring on 13 January 2024.  However, unlike repatriation to other countries, the possession of a valid passport appears to be insufficient to repatriate the Applicant to Vietnam.  Apparently, express approval from the Vietnamese authorities for the Applicant’s return is needed before removal could be effected.  The Director has been communicating with the Vietnamese authorities for this purpose since 13 January 2023.  I am informed by the Director that the required approval has been secured on 5 April 2023.

17.  In those circumstances, it seems to me that effect could be given to the Removal Order within a very short time.

18.  Nevertheless, I have been informed that consideration of the making of a deportation order against the Applicant will be continued, and that process will finish within two weeks, after which arrangements to remove or deport the Applicant from Hong Kong can be put quickly into place.  It is not clear to me why consideration of making a deportation order need to continue, though Ms Zhi said that it was because the consideration had been initiated before the making of this application for habeas corpus. 

19.  But, in any event, it appears that there is now neither any legal or practical obstacle to removal in the very near future.

E.  Review of Detention

20.  During the currency of the present detention, the Applicant’s detention was reviewed by the Director once, on 8 February 2023. The Director considered that continued detention was appropriate on the following broad grounds:

(1)  The Applicant’s removal is going to be possible within a reasonable time.  It was noted that a letter had been sent to the Court to urge for priority in handling the Applicant’s leave application (at that time the CFI had not yet determined the leave application).

(2)  The Applicant poses, or is likely to pose, a threat or security risk to the community, in view of his criminal record.  It was said that the offences he committed were serious.

(3)  He may abscond and/or re-offend.  Again, reliance is placed upon his criminal record.  References were also made to his absconding record.  He once failed to report immigration recognizance in June 2021 and only resurfaced again some 14 months later, in August 2022 when he was arrested by the Police.  He also jumped court bail once, in May 2021.

(4)  He does not have close connection or fixed abode in Hong Kong.

(5)  There are no other circumstances in favour of his release.

F.  Applicable Principles

21.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the CA 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.

G.  Applicant’s Submissions

22.  In his supporting affirmation, the Applicant cited §164(4) of the Harjang Singh case and said the following:

(1)  He has been detained (at that point) for more than 84 days.

(2)  He estimates that it will take more than a year to finalise the judicial review proceedings.  Until the proceedings are finalised he cannot be removed.  The Director will not be able to remove him within a reasonable time.  Therefore, by reference to HS3, the Director should not continue to detain him.

(3)  The Applicant deeply regrets that he had breached the law and was thus punished by imprisonment.  He promises that he will not breach the law again and wishes the Court give him one more chance.

(4)  If the application is allowed, the Applicant is willing to agree to any terms of recognizance as imposed by the Court.

23.  The Applicant submitted that he would rely on those written materials, and he orally only supplemented these points by adding that his female cousin – who he named, and who was a Hong Kong permanent resident – could stand as surety for him if he were to be released on recognizance.

24.  I will bear these points in mind in my overall assessment below, and make reference to them as appropriate.

H.  Whether Detention has become unlawful

25.  The Removal Order remains extant.  So is the order authorising his detention for the purpose of making enquiry as to whether a deportation order should be issued.  Therefore, there was and remains clear prima facie lawful authority for the detention of the Applicant.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

26.  The starting point is that the Applicant has been detained up to today for the period of 101 days, or about 3 months. It is against that period that the other factors are to be weighed and balanced.

27.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

28.  Whilst the statutory basis for detention was switched from section 32(3A) to section 29(1), the purpose of both provisions are broadly in line – the detention is meant to facilitate the ultimate removal or deportation of an immigrant from Hong Kong.  I accept that the Director/Secretary intend to remove or deport the Applicant and have been only using the power to detain for that purpose.  HS1 is satisfied.

29.  I am also satisfied that the Director has acted with reasonable diligence in effecting removal.  Shortly after the present detention had commenced, the initiative was taken to invite the Court to accord priority to the Applicant’s leave application.  There has also been the active liaison with the relevant Vietnamese authorities to obtain approval for the Applicant’s return.  I suppose it could be said that there is no need to await the making of any possible deportation order, where the Removal Order is extant.  But, nevertheless I consider that HS4 is satisfied.

30.  By the time the present detention commenced, the Applicant’s NRC related proceedings had already proceeded to the stage of seeking leave from the CFI.  The resolution of the leave application would bring this obstacle to an end under the new removal policy.  It was thus not unreasonable for the Director to take the view that the immigration detention could be brought to an end within a reasonable time.  In fact, the obstacle has now been removed, following the CFI’s dismissal of the leave application (and the Applicant’s suggestion otherwise is misplaced).  The Applicant has had a valid Vietnamese passport with him at all material times.  The seemed to be no reason to doubt that approval for the Applicant’s return would not be given by the Vietnamese authorities.  Indeed, approval has now already been obtained.

31.  As a result, whether or not consideration is continued for the making of a deportation order, it appears that a clear and real sense of the timescale for removal can now be foreseen, and that it is a matter of at most a few weeks.

32.  I also agree with the Director’s assessment that there is a real risk of reoffending and absconding if the Applicant is to be released on recognizance, in light of his criminal record and absconding history.  I accept that the shoplifting offences are not the most serious, but they have been repeated notwithstanding custodial sentences.  The previous absconding for a lengthy period points to a real risk of absconding in future, as removal or deportation looms.  I also note the Applicant’s persistent stated unwillingness to return to Vietnam, as indicated in his interviews conducted with the Director.  Absconding would frustrate the purpose for which the power of detention is given in the first place.

33.  As to family ties, I note that the Applicant has identified a female cousin who is prepared to stand as surety for him if released, which factor was not able to be taken into account at the time of the last review of detention by the Director (who proceeded on the basis that there the Applicant has no close connection or fixed abode in Hong Kong).  I take that family connection and possible surety into account, though I do not find that a particularly weighty factor against the other matters already canvassed.

34.  Nor do there seem to me to be any other factors pointing in favour of release on recognizance.

35.  Weighing the period of detention – 101 days, or something over 3 months – against all the factors and circumstances of this case, I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful.  HS2 and HS3 are satisfied.

I.    Result

36.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus.

37.  I make no order as to costs.