ARWINDER SINGH v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 675/2022

[2022] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 675 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is currently held in immigration detention, pending his removal from Hong Kong. By his application dated 27 July 2022, the Applicant seeks a writ of habeas corpus to secure his release. As at the date of this hearing, the Applicant has been detained for 384 days.

2.  On 28 July 2022, I gave directions for the putative respondents, the Secretary for Security (“Secretary”) and the Director of Immigration (“Director”), to have leave to file and serve an initial response to the application, which I fixed for hearing today, on 10 August 2022. As the initial response filed identifies, the application is opposed.

3.  At the hearing, the Applicant has appeared in person, and he made brief oral submissions. The Secretary and Director have appeared by Ms Hikki Wong, Senior Government Counsel, whose oral submissions supplemented the points made in the initial response

4.  After careful consideration of the materials and submissions, this is my Decision.

B.  Material Facts

B.1  Arrival in Hong Kong and Removal Order

5.  The Applicant is an Indian national. He arrived in Hong Kong on 27 August 2009, and was refused permission to land. On 20 August 2010, a removal order was later issued against him under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).

B.2  Non-Refoulement Claim and Judicial Review

6.  In the meantime, upon refusal of permission to land on 27 August 2009, the Applicant immediately lodged a torture claim. On 11 February 2014, the Applicant was informed that his torture claim would be treated as a non-refoulement claim (“NRC”) lodged under the unified screening mechanism and assessed on all applicable grounds. On 22 October 2014, the Applicant withdrew his NRC. But, on 9 December 2014, the Applicant sought to reopen his NRC.

7.  On 7 May 2015, the Director issued a Notice of Decision rejecting the Applicant’s NRC. On 18 November 2016, the Director issued a Notice of Further Decision rejecting the Applicant’s NRC.

8.  On 5 July 2017, the Applicant filed late applications by Notices of Appeal/Petitions out of time, against the Director’s decisions rejecting his NRC. On 26 April 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO”) refused the late applications.

9.  On 5 December 2018, the Applicant filed an application seeking leave to apply for judicial review against the TCAB/NCPO’s refusal decisions. On 17 September 2021, leave to apply for judicial review was granted, on the ground that the TCAB/NCPO had not considered the merits of the Applicant’s case when refusing the late applications. On 13 December 2021, a Legal Aid Certificate was issued to the Applicant. On 17 December 2021, the originating summons of the Applicant’s JR application was served on the Director.

10.  As I understand it, there have been ongoing negotiations between the Applicant and the Director (via their legal representatives) on the disposal of the Applicant’s JR application. The latest position seems to be that agreement in principle has been reached that the matter will be remitted to the TCAB/NCPO for reconsideration of the late applications, albeit that the exact terms of the agreement are yet to be finalised.

B.3  Criminal Record in Hong Kong

11.  The Applicant has been convicted of a number of criminal offences whilst released on recognizance in Hong Kong:

(1)  on 20 August 2013, he was convicted of theft and sentenced to 18 months’ imprisonment;

(2)  on 20 June 2015, he was convicted of theft (snatching) and sentenced to 10 months’ imprisonment;

(3)  on 21 February 2018, he was convicted of theft (shoplifting) and sentenced to 4 days’ imprisonment;

(4)  on 19 September 2019, he was convicted of gambling in a gambling establishment and fined $500;

(5)  on 22 May 2020, he was convicted of dabbling in a gambling establishment and fined $1,000;

(6)  on 24 August 2020, he was convicted of theft (pickpocketing) and sentence to 8 months’ imprisonment; and

(7)  on 3 March 2021, he was convicted of gambling in a gambling establishment and fined $700.

12.  As can be seen, the Applicant has been sentenced to periods of imprisonment on several occasions, in total exceeding three years of imprisonment, and see has been made subject to various fines.

B.4  Detention and Reviews

13.  The Applicant’s current period of detention since 23 July 2021 (“Present Detention”) has been authorised by, and the reviews of it have been conducted by, the Director – meaning that the Secretary has had no relevant involvement.

14.  In the Present Detention, the Applicant has been detained under section 32(3A) of the Ordinance pending his removal from Hong Kong. As already stated, that is so far for a period of 384 days.

15.  However, prior to the Present Detention, the Applicant had been subject to various periods of detention under the Ordinance and had been released on recognizance. On eight prior occasions, across the period from August 2016 to the last occasion on 6 May 2016, the Applicant failed to report recognizance. This morning, Ms Wong also informed me of her understanding that the Applicant had also failed to report to police bail on three occasions. But, even ignoring those occasions, it is fair to identify the Applicant as someone who has repeatedly failed to report as required as a term of his release.

16.  During the Present Detention, reviews of detention have been conducted on 23 September 2021, 21 January 2022, 30 March 2022, 10 May 2022, 19 May 2022, 24 June 2022 and 3 August 2022. On each occasion, release on recognizance was not recommended, on the following consistent grounds that:

(1)  the Applicant’s removal is going to be possible within a reasonable time;

(2)  the Applicant poses, or is likely to pose, a threat or security risk to the community;

(3)  the Applicant may abscond and/or (re)offend; and

(4)  there are no other circumstances in favour of the Applicant’s release.

17.  As regards the last review on 3 August 2022, it might be noted that it post-dated the Court of Appeal’s Reasons for Judgment in the Harjang Singh case [2022] HKCA 781 (see below), which might have triggered a difference in approach to be taken, and now taken, in reviews of detention.

18.  The internal memorandum of that review sets out a number of background matters (including family/local connections), and the ‘Assessment and Recommendation’ section reads as follows:

2.  Subject has been detained for slightly over 12 months pending removal from Hong Kong. Regarding his judicial review case in relation to his non-refoulement claim, active liaison has been made by RLS counterpart to expedite settlement after which case would be remitted to the TCAB/NCPO for determination of his late filing of appeal/petition. Should subject’s appeal/petition be remitted to TCAB/NCPO, request would also be made by ImmD to TCAB/NCPO to accord priority for subject’s case. In general, TCAB/NCPO would take a few months to reach a decision on the late filing application and determination of the appeal/petition, if any, given that priority is accorded. Accordingly, with expectation on settlement on subject’s JR case coupled with the estimated processing time of subject’s coming appeal/petition as remitted to TCAB/NCPO, it is estimated that subject’s case could be completed within a few months.

3.  After previous release on recognizance, subject had failed to report for recognizance on 8 occasions. On the facts, there is a real possibility that subject, if released, will not only abscond but also commit criminal offence(s), as supported by his previous records. Subject’ as criminal records is at encl. … for reference. Among other things, subject was convicted of the offence of “Theft” on 5 occasions. The said offences considered to be a serious one as it is a deported offence under section 20 of the Ordinance such that on the basis of these “Theft” convictions, subject is liable to have a deportation order made against him. Moreover, the said offence also carries a maximum penalty of 10 years’ imprisonment. The convictions of subject and sentences imposed by the court in relation to his “theft” offences, as stated above, also reflected the potential gravity of risk of his commission of further offence(s) if released on recognizance.

4.  The fact that there is a PR female who claim to be subject’s girlfriend willing to be subject’s guarantor, as well as the reported baby born between them, has been taken into consideration but such factor does not outweigh the factors against release of subject as stated above.

5.  Notwithstanding subject has been detained for slightly over 12 months for the present detention, there should be reasonable prospect that his judicial review and coming appeal/petition, if any, in relation to his non-refoulement claim could be finalised in a reasonable foreseeable future, and coupled with the fact that re-entry clearance of subject had already been secured, removal of subject should be effected within reasonable time in the foreseeable future in a few months, subject to no other legal impediments hindering removal. As mentioned above, there is a real risk that subject may abscond and commit criminal offence(s) if released on recognizance. The potential gravity of offence(s) committed, if subject is released, is not a low one as supported by his previous convictions and sentences imposed by the Court. Having considered all relevant circumstances and balancing all factors including the time of detention of subject for slightly over 12 months, it is considered that this case is not warranted 14 release on recognizance.

19.  The memorandum was signed by an IO(RAL)RD45, and was passed up the chain of command for further consideration, eliciting the following comments from individual officers in the following order:

(1)  SIO(RAL)RD22: “Recommendation at para 5 & 6 is supported.”

(2)  CIO(RAL)RD3: “Considering all relevant circumstances of this case, release of [sic] recognizance is not warranted. Para 5 & 6 are supported, please.”

(3)  APIO(RAL)3: “Having balancing all relevant circumstances of the case it is supported that this is not a warranted case for release on recognizance, please.”

(4)  PIO(RAL): “Subject has been detained for around 12.5 months. Having balanced various factors, including period of detention, prospect of removal and criminal records, I am of a view that this is not a case warranting release of recognizance.”

20.  Though the Applicant suggested at the hearing today that he did not know why he had been detained, or why his detention continues, he has in fact been served various Notices of Review of Detention. Following the 3 August 2022 review conducted – and as set out above – the Applicant was served with the Notice of Review of Detention on 4 August 2022, which Notice was signed by him next to the signature of the interpreter who interpreted its contents to him. That Notice, in a tick-box form, identifies to the Applicant the reasons why the Director has chosen to continue to detain him, rather than release him on recognizance.

B.5  Other Proceedings

21.  By writ dated 3 December 2021 in District Court action DCCJ 5547/2021, the Applicant has commenced a civil claim for loss and damage for the claimed unlawful detention in Castle Peak Bay Immigration Detention Centre, and loss of liberty, for various periods (8 in total) between 7 January 2016 and 2 December 2021, the date immediately preceding the writ.

22.  For present purposes, I need not set out the details of the 8 individual periods. But, it can be noted that the last period of detention claimed to amount to false imprisonment is that commencing on 23 July 2021, namely the Present Detention.

C.  Applicable Principles

23.  In its recent 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.

24.  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.

25.  Though I refer to the summary, I also keep in mind the underlying details and rationale.

D.  Application to this Case

26.  There can be no dispute that the removal order made against the Applicant is valid and subsisting. There can also be no dispute that the authority to detain the Applicant is valid. Hence there is prima facie lawful authority to detain the Applicant under section 32(3A) of the Ordinance.

27.  The question is whether – now, after 384 days of detention – the detention continues to be lawful.

28.  In his affirmation, the Applicant made the following points:

(1)  He has been detained since 23 July 2021, pending removal.

(2)  He wishes to stay in Hong Kong until all his claims are completed, including (a) his civil claim in DCCJ 5547/2021, where a case management summons will only be heard on 2 December 2022, and (b) his remitted consideration before the TCAB/NCPO (now that the Director has agreed to settle the JR application by remitting the case back to the TCAB/NCPO).

(3)  It is impossible to remove him within a short reasonable period, so that the present detention is unlawful.

(4)  He will not run away. Though he had previously been released on recognizance at least seven times, the Director is now objecting to release because of his past criminal record and that he might pose a threat to the community. That cannot be valid, as those matters must have been considered when he was previously released, yet the same reasons are now put forward to detain him.

(5)  He has a girlfriend in Hong Kong, who gave birth to their son on 27 December 2021. She is willing to be his guarantor and he himself can offer a small cash surety.

29.  At the hearing, the Applicant has made oral submissions by way of additional or emphasised points. He submits that:

(1)  He has not been detained before – by which I think he means that, though he had been subject to previous periods of detention, he had then been released on recognizance (which Ms Wong accepts is correct).

(2)  He does not know why he is being detained now, or why he is not being released (which I do not accept, in light of the Notice given to him: see above).

(3)  He has a child.

(4)  He is ready to go anywhere to sign any documents required or to keep any other conditions.

(5)  He does not know how long it would take for his NRC matter to go back to the TCAB/NCPO, or how long it will take that Board to determine the matter, and it may be a long process.

30.  In her submissions, Ms Wong correctly first identifies the period of detention of 384 days to date as the factor in the light of which other factors are to be assessed. I also note that at least the latest review of detention by the Director (see above) also has that period firmly in mind for the necessary weighing and balancing exercise.

31.  Ms Wong then points to the following matters:

(1)  The Director has liaised with the Consulate General of India regarding issuance of travel document for the Applicant and verification of his identity. Therefore, the Director plainly intends to remove the Applicant, who is detained for that purpose.

(2)  The Director accepts that the Applicant’s JR application is an impediment to removal. But, given the active negotiation for disposal of the JR application, it is not unreasonable for the Director to take the view that the application and any fresh determination by the TCAB/NCPO would be completed within a few months. This is particularly when the Director intends to ask for priority to be accorded. Therefore, it is not unreasonable to conclude that the impediment to removal can be resolved within a reasonable time.

(3)  Given the assessment that removal is possible within a reasonable time, and the risk of absconding and/or re-offending could not be said to be low (against the previous history), considerable weight should be given to the Director’s assessment of the Applicant’s risk of offending and/or reoffending and the potential gravity of offences.

(4)  Section 32(4A)(f) of the Ordinance also identifies a relevant consideration as being whether the person poses, or is likely to pose, a threat or security risk to the community. From the reviews of detention, it is considered that the Applicant is a recidivist who poses, or is likely to pose, such a threat.

(5)  The Director has duly considered the fact that there is a Hong Kong permanent resident (who claims to be the Applicant’s girlfriend) willing to be his guarantor, but has considered that factor did not outweigh the other factors in favour of continued detention.

(6)  The Applicant’s civil claim, in which he is represented by solicitors, can be proceeded with even when the Applicant is outside Hong Kong, by his giving instructions to those solicitors. The claim is not a legal impediment to his removal.

32.  In this case, as in other applications for habeas corpus, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention. Therefore, I approach that question, remembering that the burden of showing that detention is lawful lies upon the Director. I also start from the proposition that every deprivation of liberty pending removal or deportation requires proper scrutiny of all the facts, as those facts appear at the time of scrutiny.

33.  Looking at the ‘Hardial Singh principles’ on the evidential materials – but in the order HS1, HS4, HS3, HS2 – it seems to me that:

(1)  The Director does intend to deport the Applicant and is only using the power to detain for that purpose. I do not accept the Applicant’s suggestion that he is being detained pending his NRC. Rather, he is being detained pending removal, but his NRC presently constitutes a legal impediment to removal.

(2)  The Director is acting with reasonable diligence and expedition to effect removal. There has been contact with the Indian Consulate authorities to obtain an appropriate travel document and to verify the Applicant’s identity. The Director has also sought to expedite to some extent the NRC.

(3)  I do not think it is at this point possible to say that the Director will not be able to effect deportation within a reasonable period, such that he should not seek to exercise the power of detention.

(4)  The period of detention remains reasonable (and so lawful) in all the current circumstances.

34.  As regards that last point, no one factor is necessarily determinative – though it is important to recognize and give due weight to the period of detention to date, before balancing the various other factors and risks against that period. The weight to be given to the other factors and risks will vary as the period of detention increases in length.

35.  In this case, as many others, the risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

36.  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. In looking at the risks, I have in mind both each risk’s likelihood and its potential seriousness. Here, I have scrutinised the Director’s assessment of risk on both grounds.

37.  I agree that, against the previous history of convictions and the numerous prison sentences imposed, the risk of the Applicant re-offending is real and substantial, and the potential consequences are of some seriousness (though perhaps not at the most serious end of the scale). It also seems to me that the Director’s assessment has involved an appropriate consideration of (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 has been identified, to enable it to be qualified as reasonable or unreasonable. The Director’s assessment and reasoning are such that I can give appropriate weight to them.

38.  I am conscious that the underlying NRC is only now about to be remitted to TCAB/NCPO. But that is likely to be dealt with expeditiously, in light of the fact that the TCAB/NCPO will be informed of the need for expedition because the Applicant is currently held in detention. I think it fair to think the application will be dealt with at least within 3 months or so.

39.  I do not think it helpful in this case to seek to predict what will be the outcome of that remitted hearing. I do not lose sight of the fact that one possible outcome is that the late application would be permitted, and the NRC claim thereby extended, but it seems to me to be better to deal with the consequences of the application once they are known against the then prevailing chronology and other factors. Any such real change in circumstances ought to trigger a further review of detention in the then prevailing circumstances as a whole.

40.  The civil claim brought by the Applicant is not a legal impediment nor any other bar to his removal. The Applicant is well able to give instructions to his solicitors, even if he is not in Hong Kong.

41.  As to the Applicant’ as personal circumstances, which have some weight in pointing to a release from detention, I would agree that they do not outweigh the other factors.

E.  Conclusion

42.  The prima facie lawful detention of the Applicant has not in all the present circumstances become a period of unreasonable length as would render the continued detention unlawful. Nor is there at present any other reason to order the Applicant’s release.

43.  The application is, therefore, dismissed.

44.  I make no order as to costs.