GILBERT, MUASA NTHALE ALIAS NTHALE GILBERT MUASA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT PETITION OFFICE

HCAL 1506/2023

[2023] HKCFI 2576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1506 OF 2023

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REASONS FOR DECISION
(Lifting Legal Aid Stay)

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A.  Introduction

1.  The Applicant is perhaps one of those persons who cannot take ‘yes’ for an answer.

2.  By application filed on 24 August 2023, the Applicant seeks a writ of habeas corpus to obtain his release from detention.  He is, in fact, due to be released from detention on 9 October 2023.  However, he has now taken a step which could frustrate his own release. It arises in the following way.

3.  The Applicant is subject to a Removal Order and a Deportation Order.  Both orders are valid and extant.  He is currently held in administrative detention pending his removal/deportation.  The detention is under the authority of the Secretary for Security, and the Director of Immigration decides whether or not to release the Applicant on recognizance.  As at today’s date, the Applicant has been held in detention for 85 days, or around 3 months.

4.  I gave directions for an initial response to the application, and to bring the matter to hearing today.  At the hearing, the Director/Secretary have been represented by Mr Felix Lee, acting Senior Government Counsel, who signed the initial response.

5.  The Applicant has appeared in person, with the benefit of a Swahili/English interpreter.  However, as notified to the Court by a Memorandum of Application for Legal Aid dated 4 October 2023 (i.e. yesterday), the Applicant has made an application for legal aid.  Upon that application, the usual automatic 42-day stay of proceedings was triggered. However, also on 4 October 2023, I lifted the stay for the purposes of at least commencing today’s hearing, at which time I said I would consider the position further.  Having done so, I lifted the legal aid stay completely, and the hearing went ahead.

6.  My Decision on the substantive habeas corpus application is given separately: see [2023] HKCFI 2519.

7.  These are my Reasons for Decision, in which explain why I lifted the legal aid stay.

B.  Habeas Corpus Principles

8.  Before considering the matters arising from the Applicant’s application for legal aid, it is also helpful to set out some applicable principles for context.

9.  The powers enabling applications for, and the issue of, writs of habeas corpus ad subjiciendum are now to be found in section 22A of the High Court Ordinance Cap 4 (“HCO”).  The relevant procedural rules are to be found in Order 54 of the Rules of the High Court (“RHC”). Applications are to be heard as soon as is practicable.

10.  Though the section and rules permit a two-stage process, the practice has arisen recently in cases such as the present that the application will be dealt with at one ‘rolled up’ hearing.  In effect, the first stage of issuing a writ of habeas corpus directing the person alleged to be detained to be produced before the Court will be assumed, and the applicant person who is detained will be brought to Court from detention. 

11.  In cases such as the present, the applicant will be produced from administrative/immigration detention.  The person detaining him – either or both of the Director of Immigration and Secretary for Security – will also attend the hearing (ordinarily represented by Counsel from the Department of Justice). 

12.  Usually with the benefit of an initial response from the Director/Secretary provided at the request of the Court, the Court will enquire into the circumstances surrounding the detention of the detained person, and must order the release of that person from detention unless satisfied that the detention is lawful.

13.  It is noteworthy for present purposes that if a writ of habeas corpus has been issued in respect of the detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded (amongst other things)  allow the detained person to be removed from Hong Kong: see section 22A(11)  of the HCO.  Hence, the practical effect of the making of an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong.

14.  The particular principles applicable on an application for writ of habeas corpus in cases with the present context are well-established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  The Harjang Singh 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 any individual case.

15.  However, because of the Applicant’s application for legal aid, particular emphasis might be placed upon the points that:

(1)  The central question is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(2)  What is an ‘unreasonable period’ depends upon the circumstances of the particular case, taking into account all relevant factors. 

(3)  The assessment will be made in line with settled the ‘Hardial Singh principles’.

(4)  The objective review of lawfulness of detention, or continuing detention, is not a review on 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)  The burden of showing that detention is lawful lies upon the respondent, and the Court is the primary decision maker as to the reasonableness of the detainee's continued detention.

16.  Further, it is important to remember what does not fall to be decided on a habeas corpus application in this context. The Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should or should not be removed from Hong Kong.

17.  Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or a deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong. 

18.  Further, if an applicant is detained until he is removed or deported from Hong Kong, he will be released from detention upon his removal or deportation (albeit in the place to which he is removed or deported).  In other words, executing the removal order or deportation order will result in the release of the applicant from detention.

C.  Whether to Lift Legal Aid Stay

19.  At the hearing, the Applicant stated his preference for the stay to be continued to permit the possibility of legal representation.  He said that his case has some weight, and its presentation would be better with the benefit of a lawyer. 

20.  In response, Mr Lee submitted that the stay should be lifted.  First, he said habeas corpus applications should be heard as soon as practicable.  Secondly, he suggested that the timing of the legal aid application was suspect, when (according to enquiries made of the Legal Aid Department)  the application was only made on 29 September 2023. Thirdly, the Applicant appears to have made a separate legal aid application in respect of the CFI’s refusal of his application for leave to apply from the decision of the Board.  Therefore, Mr Lee submitted, an inference can be drawn that the legal aid applications on attempt to frustrate the repatriation flight scheduled for 9 October 2023.  Lastly, Mr Lee suggested that a provisional view of the merits of the habeas corpus application would identify it to be of no merit.

21.  As already stated, the Applicant’s application for writ of habeas corpus in this case was issued on 24 August 2023.  By his application, the Applicant asserts that his detention up to that date had already become unlawful, and that any future detention would also be unlawful. The application seeks his immediate release from detention.

22.  At the date of the application, the only practical obstacle to removal of the Applicant was obtaining a replacement travel document for him, a process in which the Applicant has refused to cooperate. However, on 19 September 2023, the local Kenyan Consulate issued a Certificate for Emergency Travel, thereby enabling the Applicant’s repatriation to Kenya on a flight booked for 9 October 2023.

23.  I am told that the Applicant was informed of those matters on 26 September 2023, when provided with the initial response. Hence, the Applicant became aware that he would indeed be released from detention on 9 October 2023.  On 4 October 2023, the Court received notification that the Applicant had made his application for legal aid.  Whilst I note that the application appears to have been received by the Legal Aid Department on 29 September 2023, the document provided to the Court appear to support the Applicant’s saying that he signed the relevant application/consent on 16 September 2023.

24.  There is, in any event, an inherent inconsistency between:

(1)  making an application which seeks immediate release from detention, and which should be heard as soon as possible; and

(2)  making another application which by its nature would prevent or delay release from detention, whether it is (a)  an application for an adjournment, perhaps to seek legal advice, or (b)  an application for legal aid which has the effect of triggering an automatic stay of 42 days (6 weeks).

25.  There is also the further inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged.  Indeed, in this particular case, the Applicant is scheduled to be released from detention in just three days’ time, on 9 October 2023, upon his deportation. 

26.  Hence, in this particular case, and in circumstances which are likely to be frequently recurrent in other cases, it can be seen that:

(1)  the habeas corpus application creates a legal impediment to removal;

(2)  unless lifted, the automatic legal aid stay now triggered would necessarily postpone the hearing of the habeas corpus application for at least 42 days (6 weeks);

(3)  hence, unless the Applicant were for some other reason to be released earlier, the automatic legal aid stay would almost necessarily prevent the Applicant’s release from detention for at least a further 42 days (6 weeks);

(4)  whilst at the same time the Applicant is saying that his detention has already become unlawful, and/or any future period would also be unlawful; and

(5)  but for the stay, release from detention is actually imminent.

27.  Thus, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – would cause him real unfairness and prejudice.  The same would likely be the position for other applicants who seek an adjournment of their own application for writ of habeas corpus.

28.  It also causes prejudice to the Court in potentially frustrating the Court’s ability to require a person’s immediate release from unlawful detention.  This seems to me to be something which should be avoided.

29.  The Applicant has created the risk of frustrating his imminent release from detention – the very thing his application for habeas corpus supposedly seeks.  Of course, it is not difficult to think that the Applicant actually intends to frustrate his imminent release from detention, where that release would not be in Hong Kong but in his home country upon deportation.

30.  Against that risk of unfairness and prejudice in postponing the habeas corpus hearing might be measured any contrary risk of prejudice from lifting the stay (or, in another case, the risk of prejudice from not granting an adjournment).  The contrary risk of prejudice is, of course, in depriving the Applicant (and other similar applicants)  of the potential opportunity to seek and obtain legal representation.  But, in my view, that contrary risk is – in this case, and likely in most other similar cases – significantly less likely to give rise to any real prejudice.

31.  This is because of the applicable principles to which I have drawn attention above.  As stated, those principles are well-established.  The principles require the Court to answer a ‘yes or no question’ as to the lawfulness of detention in all the particular circumstances of the case, and the assessment will be made in line with the ‘Hardial Singh principles’.  That question is answered and the assessment is made where:

(1)  it is not incumbent on the applicant to demonstrate unlawfulness;

(2)  rather, the burden of showing that detention is lawful lies upon the respondent;

(3)  the Court takes an objective view, without any exercise of discretion, and

(4)  the Court is the primary decision maker as to the reasonableness and hence lawfulness of the detention to date, and any likely continued detention.

32.  I am also conscious of the real potential for abuse, in the context of the type of case and situation where there has often been much abuse of the Court processes.  As will be evident from numerous recent decisions on applications similar to this, it seems that:

(1)  Some applicants incorrectly think that a habeas corpus application is an occasion to try to reargue their NRC – or at least the hearing is treated in that way.  In other words, many habeas corpus applications are made not to seek release on recognizance pending removal/deportation from Hong Kong (the actual question to be addressed), but to seek release from detention generally, hopefully with the ability to remain in Hong Kong (not the question to be addressed).  As can be seen from my decision on the habeas corpus application itself, there is a strong flavour that the Applicant has this in mind.

(2)  Some applicants think that a habeas corpus application can be used itself to create a legal impediment to removal or deportation which has become imminent.  On the chronology, there is also some flavour that the Applicant had this intention.

33.  Whilst it is, of course, necessary for the Court to consider each application on its individual circumstances and merits – and perhaps to consider the motive behind the application as seen against its individual circumstances merits – the Court will be very slow to permit a course of conduct which is likely to facilitate abuse of its process, rather than the proper administration of justice.

34.  I also take into account that if a hearing is vacated at short notice, or if an adjournment is granted at the hearing, there will be a potential waste of Court time and other resources.  That obviously would have a potentially adverse impact on other Court users, possibly including other habeas corpus applicants.

35.  I also took into account my provisional view that the habeas corpus application made by the Applicant was not one of any great merit.

36.  In conclusion, if the detention of the Applicant has become unlawful, or will foreseeably become unlawful, he should be released as soon as possible.  Alternatively, if the detention of the Applicant has remained lawful, and will foreseeably remain lawful, he can continue to be detained pending his removal.  The Court is in the proper position to decide that question now. 

37.  In this case, the removal of the Applicant is imminent and, if the Applicant is lawfully detained pending that removal, I think it would be an abuse to permit a stay or adjournment that would frustrate that removal.

38.  Like it or not, persons in the position of the Applicant – i.e. an illegal immigrant who has failed to establish his NRC, and who is subject to a valid and extant removal order or deportation order – must understand that (1)  they will be removed or deported, and (2)  the Court will not lend itself to abuse which frustrates that removal or deportation.

D.  Stay Lifted

39.  For the above reasons, I lifted the legal aid stay.