HKSAR v. VU THANG DUONG

HCMP 249/2015 and
HCMP 477/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS CASE NO 249 OF 2015

(From Kowloon City Magistrates’ Courts Criminal Case No KCCC 1203 of 2014)

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REASONS FOR DECISION ON BAIL APPLICATIONS
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Introduction

1.  These two cases typify a problem that is currently being experienced by our criminal justice system.  It would appear it has reached a level where it may have serious ramifications both for the legal system and the community. 

2.  On 4 March 2015, I had two bail applications where the circumstances of each applicant were very similar.  Both applicants are Vietnamese nationals who had entered Hong Kong illegally.  Both were subsequently arrested and charged for criminal offences and while in custody made a non-refoulement claim.  Both had made numerous appearances before the courts and had been in custody for some time.  I requested that I be addressed as to the circumstances of the case of each applicant with particular reference to the nature and progress of his claim and the handling of cases of this type before the courts by the relevant authorities.  I adjourned the hearing to arrange appropriate legal representation for the two applicants.  On 6 March 2015, Mr Francis Haddon‑Cave, on behalf of the Duty Lawyer Service, appeared for the applicants, and Ms Polly Wan and Ms Manna Wong appeared for the prosecution.  The applications were further adjourned at the request of the parties to 11 March 2015 to enable the filing of submissions addressing the issues that I had raised.  My concern was primarily focused on the handling of cases by the relevant authorities where a non-refoulement claimant had allegedly committed immigration offences alone or together with other offences and the implication this would have on the criminal justice system by reference to the number of cases pending a non-refoulement claim, the duration and frequency of appearances of such cases before the courts and the status and circumstances of the claimants.  This was relevant to address the specific issue as to what matters could and should be taken into account when deciding whether or not to grant bail to a person in such circumstances.

3.  At the conclusion of the hearing I granted bail to the two applicants on conditions and I said I would hand down my reasons which I now do. 

Background to the applications

4.  In respect of the two applicants, both had allegedly committed immigration offences, although one of them had also allegedly committed a separate criminal offence, for which they were charged, and upon making a non-refoulement claim, their respective cases were placed in abeyance pending the outcome of their claims.  As far as I can see there are two problems arising from cases of this type that need to be addressed.  First, the court lists are being cluttered by a substantial number of such cases which are frequently brought before the courts while the defendant’s claim is being processed and as experience has shown, this can take a long time.  Secondly, any person who enters Hong Kong illegally and subsequently makes a non‑refoulement claim may either have an alleged immigration offence not charged or charged with the case adjourned pending the final outcome of the claim.  This occurs irrespective of the merits of the claim which as noted takes time to process.  It means a person who has entered Hong Kong illegally and makes a subsequent non‑refoulement claim will have the alleged criminal misconduct put on hold, for what may be an indeterminate period, and may either be released on bail if charged or on their own recognizance if not charged.  Any other related alleged criminal misconduct may be prosecuted separately but that will depend upon the nature and seriousness of it and whether the prosecution authority decides to take action.  The number of these cases has over recent times grown significantly and it is when a person is charged that the court processes are engaged with respect to the criminal misconduct as reflected by the charges. 

5.  The regime in place to deal with non-refoulement claimants seeks to abide by and fulfil international requirements and obligations in a fair and just manner.  The regime can be open to abuse and it is naturally a concern if a person enters Hong Kong illegally for a nefarious purpose or purposes and secures release from detention by making a non-refoulement claim.  Depending on the person’s country of origin, it can be difficult for the authorities to ascertain his true identity and relevant particulars as to his background.

Prosecution policy on non-refoulement claimants

6.  I am informed that the policy of the Prosecutions Division of the Department of Justice is that a person who is a refugee, an asylum seeker or torture claimant will not be prosecuted for an immigration offence relating to his claim, such as, landing and remaining without permission, pending a determination by the relevant authorities.  If a charge or charges have been laid against the person, his case will be adjourned except where an offence laid is unrelated to his claim, such as theft or using a false instrument, where in such circumstances he will be prosecuted separately for that offence.  In accordance with the policy, the prosecution will wait until the claim and all appeal procedures have been concluded before taking action in relation to an immigration offence.  This could, and usually does, take a long time, and at the end of the process, the policy is to drop the immigration offence if the claim is approved and to consider the merits of the case if it is rejected.  The policy does not address the issue of bail pending resolution of the claim. 

Processing a non-refoulement claim

7.  Since 3 March 2014, claims for non-refoulement protection are processed by the Hong Kong government using the Unified Screening Mechanism (USM).  

8.  The process involves the claimant voluntarily surrendering to the General Investigation Section of the Immigration Department.  The Immigration Department will issue a removal order against the claimant and detain him for verification and investigation.  The claimant is then required to submit a formal written signification setting out his personal particulars and reasons for claiming non-refoulement protection, in particular, why he fears returning to his country of origin and what harm he may encounter if he returns.  After an investigation into the claimant’s identity, how he entered into Hong Kong and any other relevant issue, he may be issued with a recognizance document by the authorities pursuant to section 36 of the Immigration Ordinance, Cap 115, and released.  Such a recognizance does not confer any rights to the claimant and carries with it an obligation to report to immigration authorities and a prohibition not to work.  The claimant upon release will be provided with social assistance.  

9.  The Immigration Department will take the claimant’s fingerprints and photograph and provide a briefing of the relevant procedures for a non-refoulement claim and appoint a Duty Lawyer to assist and represent the claimant.  There follows a screening interview, and eventually an analysis and determination of the claim.  The length of time required to make the determination will depend upon the specific facts and circumstances of the individual case.  If the claim is rejected and the claimant feels aggrieved by the decision, he may lodge an appeal which will be heard by the Torture Claims Appeal Board. 

10.  I have been informed by the Duty Lawyer Service that the number of outstanding non-refoulement claims is approximately 9,500 of which 7,893 have been referred to the Duty Lawyer Service.  Most immigration related cases are dealt with by the Shatin Magistracy, but some are also dealt with by other Magistracies.  The Duty Lawyer Service from its analysis has informed me that in Shatin Magistracy there are 188 cases pending USM decision of which 155 are ongoing.  It would appear that in most of the cases bail had been granted. 

The principles of bail

11.  Bail is the conditional grant of liberty to a person suspected of committing or alleged to have committed a criminal offence.  A defendant’s right to bail is enshrined in Article 5(3) of the Hong Kong Bill of Rights Ordinance, Cap 383, which addresses the liberty and security of persons.  The material part states that “… it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial…”.  The right to bail is premised on the presumption of innocence and the entitlement to an early trial.  The fundamental objective of bail is to ensure that the defendant appears at his trial and that the public are protected from further offences in the meantime.  Although there are specific provisions that authorise the granting of bail in the courts, the question of bail is primarily governed by Part 1A, sections 9C to 9Q, of the Criminal Procedure Ordinance Cap 221. 

12.  Section 9G(1) provides:

“The court need not admit an accused person to bail if it appears to the court that there are substantial grounds of believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would –

(a) fail to surrender to custody as the court may appoint; or

(b) commit an offence while on bail; or

(c) interfere with a witness or pervert or obstruct the course of justice.”

13.  The section creates a rebuttal presumption in favour of bail and where it appears to the court that an accused would fail to comply with the conditions set out in section 9D(2) then bail may be refused and in forming that view the court may have regard to the matters set out in section 9G(2) which are as follows:

“a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

b) the behavior, demeanour and conduct of the accused person;

c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

d) the health, physical and mental condition and age of the accused person;

e) the history of any previous admissions to bail of the accused person;

f) the character, antecedents any previous convictions, if any, of the accused person;

g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

h) and any other thing that appears to the court to be relevant.”

14.  The relevant provisions allow the court to take into account a range of relevant matters when deciding whether or not to grant bail.  The presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing a witness.  An unreasonable delay in custody, in the particular circumstances of the case, may be a factor in favour of bail.  Of course, such a factor would be taken into account together with all other relevant factors in deciding whether or not to grant bail. 

Vu Thang Duong

15.  The first application involved Vu Thang Duong (Vu) who according to the information before me entered Hong Kong illegally from Shenzhen on 31 March 2014.  A few days later on 2 April 2014, he was apprehended by the police selling obscene DVDs at a shop in Mongkok.  He was subsequently charged with possession of obscene articles for the purpose of publication and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.  He first appeared in the Magistrate’s Court on 4 April 2014.  Sometime in April 2014, he made a non-refoulement claim.  Since his first appearance in the Magistrate’s Court, his case had been brought up for mention on 9 and 29 April, 19 May, 23 June, 25 August, 22 September, 12 and 17 December 2014, 29 January and 25 February, 2015.  It was only on his last appearance in the Magistrate’s Court that he applied for bail which was refused.  His next court appearance in the Magistrate’s Court is fixed for 15 April 2015. 

16.  On 5 February 2015, Vu made an application for bail in the High Court which was refused.  The judge made comments in passing about the time taken to deal with his criminal case and his application as a non-refoulement claimant.  He has been in custody since 2 April 2014.

17.  Vu said he made his claim after a friend in prison told him about it.  He said the basis of his claim is that he owed people money in Vietnam who had threatened him.  He went to the authorities to report the matter but they did not help him.  He had a quarrel with them, during which he threw the national flag on the floor.  He said he was charged with an offence of insulting the nation. 

Hoang Van Cuong

18.  The second application involved Hoang Van Cuong (Hoang) who according to the information before me first entered Hong Kong on 31 August 2010 on a visitor’s visa for 7 days.  He claimed that he sneaked out of Hong Kong and entered Shenzhen in early November 2010 as he feared he would be prosecuted for having overstayed.  He claimed that he sneaked back into Hong Kong from Shenzhen on 11 June 2014.  No explanation has been provided as to the period of 3½ years when he left from and returned to Hong Kong.  He was stopped by the police on 3 August 2014 in Wan Chai because he was acting suspiciously.  He produced his passport which showed that he had entered Hong Kong on 31 August 2010 with permission to stay for 7 days.  He was subsequently charged with breach of condition of stay by overstaying and remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong.  He was brought before the Magistrate’s Court on 5 August 2014 and it was requested that his case be adjourned to 2 September 2014 so that he could make a non-refoulement claim.  His case had been brought up for mention before the Magistrate’s Court on 2 September, 4 November and 30 December 2014 and 24 February 2015.  His next court appearance in the Magistrate’s Court is fixed for 24 March 2015.  He has been in custody since 3 August 2014. 

19.  Hoang said he discussed his situation with a welfare officer who told him about making a non-refoulement claim.  He said the basis of his claim is that he has knowledge of triad societies in relation to the drug trade and informed the police in Vietnam about it but when he did they sided with the triads.  As a consequence, he said certain triads were after him.  He said he acquired his knowledge about the drug trade by observing the selling of drugs in his neighbourhood. 

Submissions

20.  Mr Haddon‑Cave on behalf of the applicants submitted that they both had a strong case for being granted bail.  He acknowledged that the immigration offences with which both applicants had been charged were serious, he however argued that they were limited in scope and were not dangerous or violent offences and did not suggested that the applicants would be a danger to society if released on bail.  In the case of Vu, he had been further charged with the possession of obscene articles for the purpose of publication and Mr Haddon-Cave submitted that although it was a serious offence it did not warrant refusing him bail as he had already spent 11 months in remand which would unlikely exceed any term of imprisonment imposed on him if convicted after trial.  He stressed that both applicants had been in remand for an unacceptable length of time which he argued was due to the time taken to process their claims. 

21.  Mr Haddon-Cave further submitted that both applicants could comply with appropriate bail conditions, in particular by providing a residential address. 

22.  As to the issue of whether or not it is appropriate for the court to take into account the merits of the applicants’ claims when deciding whether or not to grant bail, he argued that the court should not but it could take into account matters relating to the processing of the claim which he said would be a relevant factor under the bail provisions.  He noted, quite rightly in my view, that given the likely background of a non-refoulement claimant and his unfamiliarity of the legal processes in Hong Kong, it is generally not until legal assistance is provided to the claimant that his claim is appropriately particularised.  He submitted that on this basis, it would not be appropriate for the court to consider the merits of a claim.  I disagree.  If on the information before the court, it can appropriately ascertain the nature of the claim, I see no reason why it cannot be taken into account together with all other relevant factors.  This would be particularly so if the court is satisfied that there is no substance or merit to the claim. 

23.  Mr Haddon-Cave also pointed out that in the case of Hoang his non-refoulement claim had yet to be referred to the CAT office by the Immigration Department and in the case of Vu his claim even though made on 26 April 2014 was only referred by the Immigration Department to the CAT office on 24 February 2015, some 9 months later. 

Conclusion

24.  In the end I granted bail to both applicants.  I was satisfied that both applicants had been in remand for an unreasonable period taking into account the charges that they faced and the status of the criminal proceedings against them and the likely inordinate delay for trial.  In the case of Hoang, he had a sister living here in Hong Kong and he was able to show that he had family ties here and could provide a residential address.  In the case of Vu, his case was somewhat different.  He had been apprehended allegedly committing the criminal offence of possessing obscene articles but given the length of time in remand of 11 months this most likely would have satisfied any term of imprisonment imposed on him upon conviction after trial.  I note that the obscene articles offence could have been tried separately in accordance with the prosecution policy but for some reason it has not happened. There was also the matter in both cases that it was only when the two applicants were apprehended by the authorities that they made their non-refoulement claims.  Vu said that he was informed by a friend about making such a claim whilst in remand and the question arose whether it was a genuine and meritorious claim.  However, I granted him bail because of the time he had spent in remand and upon being satisfied that he could meet an appropriate range of conditions if released from custody.  This included providing the residential address of a welfare based home where he would reside.  It was also a condition that he would abide by and obey all the rules and regulations of the home and any breach thereof would be treated as a breach of his condition of bail.  In both cases there were additional conditions of surrendering travel documents, residing at the address given and reporting to the police at various times during the week.