BAINS CHARANJIT v. HONG KONG SAR GOVERNMENT AND ANOTHER

HCAL 1184/2022

[2022] HKCFI 3772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1184 OF 2022

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R E A S O N S  F O R

J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Deportation Order made on 16 February 2022.  He is currently held in immigration detention pending removal from Hong Kong.  The period of detention commenced on 9 February 2021.

2.  On 1 November 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation.  He named the HKSAR Government and the Director of Immigration (“Director”)  as the Respondents to the application.  I gave directions to bring this matter to a hearing on 19 December 2022, after the provision of the Respondents’ Initial Response/Submissions.

3.  By the date of that hearing, the period of detention had lasted 679 days, or around 1 year and 10 months.  The Applicant has been detained under various provisions of the Immigration Ordinance Cap 115 (“Ordinance”).  He is presently detained under section 32(3)  of the Ordinance.

4.  At the end of the hearing, I dismissed the application for reasons to be handed down later.  These are my Reasons for Decision.

B.  Background Matters

B.1  Immigration Status

5.  The Applicant is an Indian national, born on 30 December 1963.

6.  The Applicant came to Hong Kong as a visitor on 21 August 2005 and was permitted to stay until 23 August 2005.  However, on 22 August 2005, the Applicant applied for extension of stay and reported loss of his Indian passport.  He was required to report to the Immigration Department (“ImmD”)  on 23 August 2005 but failed to appear, and he has overstayed in Hong Kong since 24 August 2005.

7.  On 24 May 2006, the Applicant was arrested by the Police from being a suspected overstayer and was referred to ImmD on 26 May 2006.  On 15 July 2006, the Applicant was released on recognizance under section 36(1)  of the Ordinance.

8.  On 13 August 2007, a Removal Order was issued against the Applicant under section 19(1)(b)  of the Ordnance.

9.  On 16 February 2022, a Deportation Order was made against the Applicant under section 20(1)  of the Ordinance.  Notice of detention under section 32(3)  of the Ordinance was served on the Applicant on 23 February 2022.

B.2  Criminal Record

10.  Before the present period of detention, the Applicant was from August 2007 to November 2019 referred to ImmD on 11 occasions, on 10 occasions following his discharge from prison following his criminal convictions, and on 1 occasion after his arrest by the Police after failing to report recognizance.

11.  The occasion of failing to report recognizance was on 17 September 2012.  The Applicant was eventually arrested by the Police for the offence of common assault on 1 December 2012, when the Applicant explained that he had no money for travelling to the reporting centre and thus missed the reporting date.

12.  The Applicant’s lengthy criminal record relates to past convictions in Hong Kong, all of which occurred during previous releases on recognizance.  That record identifies that the Applicant is a repeated offender, with the following convictions and sentences:

(1)  1 August 2007: 14 days’ imprisonment for an offence of indecent assault;

(2)  26 April 2010: 2 months’ imprisonment for an offence of indecent assault;

(3)  4 January 2011: 6 weeks’ imprisonment for an offence of indecent assault;

(4)  17 May 2012: consecutive 6 weeks’ and 2 months’ imprisonment for two offences of indecent assault;

(5)  22 January 2013: concurrent 1-week’s and 2 weeks’ imprisonment, suspended for 1 year, for two offences of common assault;

(6)  25 November 2013: consecutive 4 months’ imprisonment and 2 weeks’ imprisonment for offences of indecent assault and breaching suspended sentence;

(7)  7 October 2014: 4 months’ imprisonment for an offence of attempted robbery;

(8)  7 September 2015: 7 days’ imprisonment, suspended for 1 year, for an offence of theft (shoplifting);

(9)  4 September 2017: consecutive 2 months’ and 2 weeks’ imprisonment for two offences of indecent assault;

(10)  14 December 2017: fine of $500 for an offence of fighting in a public place;

(11)  12 January 2018: 2 months’ imprisonment for an offence of (shoplifting);

(12)  22 January 2018: 4 months’ imprisonment for an offence of indecent assault;

(13)  23 May 2018: 4 months’ imprisonment for an offence of indecent assault;

(14)  2 September 2019: 3 months’ imprisonment for an offence of indecent assault; and

(15)  6 January 2021: 4 months’ imprisonment for an offence of indecent assault.

B.3  Non-refoulement Claim

13.  On 27 May 2006, the Applicant indicated his intention to lodge a torture claim.  That claim was rejected by the Director on 6 September 2012.

14.  On 17 December 2012, ImmD was informed by the United Nations High Commissioner for Refugees (“UNHCR”)  that the Applicant made a request for asylum with the UNHCR.  That claim for asylum was closed on 30 January 2014.

15.  On 26 February 2014, the Applicant indicated his intention to lodge a non-refoulement claim (“NRC”).  That claim was rejected by the Director on 29 December 2017.

16.  On 10 May 2018, the Applicant filed, out of time, a Notice of Appeal/Petition against the refusal of his NRC with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). On 7 June 2018, the Board refused the Applicant’s application for late filing.

17.  On 30 October 2018, the Applicant filed an application for leave to apply for judicial review (“JR”)  against the Board’s refusal decision.

18.  On 23 June 2020, the Applicant was granted leave to apply for JR by the Court of First Instance, on the basis that the Board had not considered the merits of the Applicant’s case when refusing his late filing of appeal.  The Applicant was required to issue an originating summons within 14 days from the date of the Court Order and to serve a copy on the Respondent and the Interested party.  He did not do so.

19.  As a result, on 24 September 2021, the Department of Justice (“DOJ”)  sent a ‘warning letter’ to the Applicant, stating that ImmD would proceed with his removal because there was no pending litigation as a result of the failure to issue the originating summons.

20.  On 30 September 2021, the Legal Aid Department sent a letter to ImmD requesting information because the Applicant had applied for legal aid.  On 18 January 2022, legal aid was granted to the Applicant to apply for JR.  On 16 March 2022, ImmD was notified by the Applicant’s then legal representatives that they had been assigned by the Director of Legal Aid to represent the Applicant in his JR application.

21.  Following further correspondence, including directions from the Court, the Court granted an extension of time for the Applicant to file his originating summons on 10 June 2022.  The originating summons was filed and served on 15 and 16 June 2022 respectively.

22.  On 3 August 2022, the DOJ proposed disposing of the JR application by way of a consent order.  Following the filing of a consent summons, the Court made an order by consent on 7 September 2022, quashing the decision of the Board and remitting to the Board the Applicant’s application for late filing of his appeal for fresh determination.

23.  By letters dated 21 September 2022, 14 October 2022 and 4 November 2022, ImmD requested the Board to expedite the processing of the Applicant’s application.

24.  On 7 November 2022, the Applicant’s application for late filing of his appeal was allowed by the Board.  Thereafter, the Board was urged to record high priority to the case and, as far as practicable, to fix a hearing on an early date.

25.  On 21 November 2022, the Board issued a notice of hearing directing the substantive hearing of the Applicant’s appeal/petition to be fixed on 29 December 2022.

B.4  Reviews of Detention

26.  The Applicant’s present detention has been regularly reviewed under the relevant applicable sections of the Ordinance relating to each part of that detention.  The most recent review took place this month.

27.  On 12 December 2022, the Secretary for Security informed ImmD that the PAS for S had reviewed the Applicant’s detention and considered that there were grounds for continued detention, taking into account the following factors:

(1)  The outstanding NRC can be finalised within a reasonable time.  ImmD has acted with diligence to urge the Board to accord priority to the Applicant’s case, and the substantive hearing of his appeal/petition of NRC has been fixed for 29 December 2022.

(2)  There are high risks of re-offending if the Applicant is released on recognizance, based on his previous adverse record.

(3)  There are high risks of absconding if the Applicant is released on recognizance, based on his previous adverse record.

(4)  The Applicant poses a threat and security risk to the local community.

(5)  The Applicant has no family connections in Hong Kong.

28.  On 13 December 2022, ImmD decided that release of the Applicant on recognizance was not recommended on the grounds that: (i)  his removal was going to be possible within a reasonable time; (ii)  he poses, or is likely to pose, a threat or security risk to the community; (iii)  he may abscond; (iv)  he does not have close connection or fixed abode in Hong Kong; and (v)  there are no other circumstances in favour of his release.  The following factors were taken into account:

(1)  There is no sufficient reason to believe that the Applicant’s case cannot be finalised in the near future, where the Board has decided to conduct the hearing on 29 December 2022 through Remote Official Visit System.

(2)  The Applicant has convictions associated with crimes of a serious nature, and he poses a threat or security risk to the community having regard to his 15 prior convictions.  He also has previous records of being re-arrested during recognizance.

(3)  The Applicant has a series of previous convictions of criminal and/or immigration offences and has recommitted the same offence in respect of his previous arrests.

(4)  The Applicant failed to report recognizance and went underground on 17 September 2012, and was only arrested by the Police for the offence of common assault on 1 December 2012.  That identifies a real risk that the Applicant may abscond.

(5)  On each of the 12 occasions from 2007 to 2020 that the Applicant was released on recognizance, he was rearrested by the Police in relation to the criminal offences he committed.

(6)  The Applicant failed to attend a scheduled appointment without reasonable excuse, and failed to submit documents for his application for extension of stay as was required in September 2005.

(7)  The Applicant does not have fixed abode or close connection in Hong Kong, making it likely that he would not be easily located.

29.  The Applicant was given the relevant notice of the review of detention, and reasons for continued detention, on 13 December 2022.

B.5  Other Steps to Removal

30.  Even prior to the present period of detention, ImmD has sought assistance from the Indian Consulate, requesting issuance of a replacement travel document for the Applicant’s intended repatriation.

31.  During the present period of detention, ImmD has continued to seek a replacement travel document for the Applicant’s intended repatriation.  Although the Indian Consulate has confirmed the details of the Applicant as being consistent with their records, the Applicant has shown unwillingness to return to his home country and has refused to complete a re-entry application form and take photos as required by the Indian Consulate.

C.  Applicable Principles

32.  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 this case.

33.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

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

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

(HS3)  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; and

(HS4)  the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years)  applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

34.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

35.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that:

(1)  The Director has failed to comply with the Hardial Singh principles, in particular because it has been more than 12 months since the Applicant was granted leave to apply for JR and the Court ordered the Board to consider afresh his NRC, so that there is no realistic prospect of removal in the foreseeable future.

(2)  Now that the Court has ordered the Board to review the Applicant’s NRC, it is obvious that there will be protracted legal challenges.

(3)  There have not been regular or evenly spaced out reviews of detention.

(4)  The detention is tantamount to duplication, where the Applicant has paid his debt to society by the sentences already served.

(5)  Detention is in breach of Articles 28 and 41 of the Basic law, as the Applicant is subjected to arbitrary detention.

(6)  The conditions of detention are to treat the Applicant as a criminal.

36.  At the hearing, the Applicant handed up a written note of submissions.  They suggested that ImmD’s letters to the Board dated 11 and 18 November 2022 seeking expeditious handling was “a desperate attempt to further exercise the power to detain”, and it begs the question why the Director did not write the letters months before the current habeas corpus application, rather than in response to it.  However, as I pointed out at the hearing, there is plainly nothing objectionable in the Director notifying the Board that the Applicant is held in detention, and asking the Board therefore to accord priority to dealing with his case.  In fact, that approach is not only proper, it is in the Applicant’s favour.  Further, the Director had in fact sought to expedite the Applicant’s case from a much earlier time, and did not do so just as a reaction to the current habeas corpus application.

37.  By way of further oral submissions, the Applicant expressed being sorry for whatever mistakes he had made whilst intoxicated, and asked for forgiveness.  He said he would not repeat his mistakes again and asked for “bail”.

D.  Whether Detention Has Become Unlawful

38.  I accept that proper authority for detention has been present throughout the current period of the Applicant’s detention, variously under sections 32(3A), 29 and 32(3)  of the Ordinance.  Hence, there was and is prima facie lawful authority to detain the Applicant pending removal under the Removal Order or Deportation Order.  The question therefore arises as to whether the overall circumstances of the detention have made it unreasonable and hence unlawful.

39.  Ms Zhi submitted that the detention of the Applicant has been reasonable at each stage and throughout its entire period. Ultimately, after careful consideration, I agreed.

40.  The starting point is, of course to recognise that the period of detention is certainly quite long, being 679 days (approximately 1 year and 10 months).  It is against that period that the various other factors needed to be weighed and balanced.

41.  I accept that the Director is intent upon removing the Applicant at the earliest possible moment, and that the Applicant has been detained for that purpose.  The Director has been actively liaising with the Indian Consulate regarding a replacement travel document for the Applicant, and the prior verification of his identity – though the Applicant has chosen not to be cooperative in completing the re-entry application form and to provide photos as required.

42.  Now that the Board’s fresh consideration of the Applicant’s NRC has been fixed for hearing on 29 December 2022 (just 10 days after the hearing of this application), I agree that it can be said that the Applicant can be removed within a reasonable period of time.  The consideration is affected by the history, where the Applicant was granted leave to apply for JR on 23 June 2020, but took no steps to issue the originating summons until apparently triggered by the DOJ’s warning letter in September 2021, and even then the originating summons itself was not issued until June 2022.  That delay must be down to the Applicant.  Thereafter, the DOJ actively sought to resolve that originating summons by a consent order, and the Director has subsequently urged the Board to expedite dealing with matters involving the Applicant.  It can be expected – not least with further encouragement for expedition – that the Board will determine the Applicant’s appeal/petition within say two or three months after the hearing.

43.  As to what will happen after the Board’s decision, it is inappropriate to speculate.  I note that the Applicant has suggested that there is bound to be some protracted legal proceedings, but it is premature to say so without seeing the Board’s decision and the reasoned basis for it. 

44.  I also accept that there is some risk of absconding, evident from the previous period of absconding which ended only upon the Applicant’s re-arrest, and his clear unwillingness to be repatriated notwithstanding the illegality of his presence in Hong Kong and the existence of the Removal Order and the Deportation Order.

45.  Further, the risk of re-offending is obviously substantial, where the Applicant has committed criminal offences on each and every occasion of his previous releases on recognizance.  It seems to me that little weight can be given to the Applicant’s promise that he would not re-offend, even if he is genuinely remorseful for the mistakes he made when (he says)  he was intoxicated.  The Applicant is a recidivist, in particular as regards the repeated indecency offences and offences involving violence, identifying a real and substantial risk to members of society if he were to be released.

46.  Further, the Applicant has no close or local connections to Hong Kong, and the degree of close or local connections has already been taken into account by the Director.

47.  Lastly, I do not think the allegations made regarding the conditions of detention in this case significantly change the balancing exercise.  Nevertheless, I accept that the longer detention continues the greater the impact may be of the various restrictions and requirements inherent in detention.

48.  Ultimately, at present, after weighing and balancing all the various factors against the period of detention and the apparent likely progress of the Applicant’s NRC, I am satisfied on balance that the detention has remained Hardial Singh compliant.

49.  Of course, I also accept that the situation might change after the Board’s decision, not least against the already quite lengthy period of detention.  Any future assessment and balancing exercise will have to take place to take into account any change of circumstances and the changed length of detention.

E.  Result

50.  For the above reasons, I dismissed the Applicant’s application, with no order as to costs.