MUHAMMAD SALMAN alias AHMED SANI SALMAN alias SULMAN SHANI CHOUDHRY v. HONG KONG SAR GOVERNMENT

HCAL 2415/2020

[2020] HKCFI 3117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2415 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for a writ of habeas corpus by the Applicant, a returned deportee currently detained in the Castle Peak Bay Immigration Centre (“CIC”) under s 32(3) of the Immigration Ordinance, Cap. 115 (“Ordinance”) pending his removal from Hong Kong under s 25 thereof.  Unless otherwise indicated, references hereinafter to “Section” or “s” shall be to the Ordinance.

BACKGROUND FACTS

2.  The background facts stated in this section are based primarily on the facts set out §§5 to 40 of the Skeleton Submissions for the Respondent dated 15 December 2020, which are supported by a bundle of documents lodged by Government Counsel together with the Skeleton Submissions. In view of the urgency with which this application was fixed to be heard, the Respondent has not filed an affidavit to verify those facts, but undertakes to do so if required.

3.  At the hearing of the application on 16 December 2020, the Applicant indicated that he had read and understood the contents of the Skeleton Submissions.  He did not suggest that the primary facts set out in the Skeleton Submissions were wrong or incorrect, although he did not accept various submissions made by Government Counsel on behalf of the Respondent. For the purpose of the present application, I am content to accept the documents as evidence without requiring the Respondent to file an affidavit to formally produce them or verify the facts as set out in §§5 to 40 the Skeleton Submissions.

(i)     First entry to Hong Kong

4.  The Applicant is a Pakistani national with triple identities.  On 3 May 2000, he arrived in Hong Kong on the strength of a Pakistani passport bearing the identity of “Muhammad SALMAN” (“ID1”) (“First Entry”), and was permitted to remain as a visitor until 11 May 2000.  The Applicant did not depart Hong Kong after the expiry of his limit of stay.  He had overstayed since 12 May 2000 and was arrested by the Police on 15 June 2000.  On 21 June 2000, the Applicant was convicted of the offence of “breach of condition of stay” and sentenced to one month’s imprisonment suspended for two years.  On 23 June 2000, a removal order was made against the Applicant under the identity of ID1 pursuant to s 19(1)(b) of the Ordinance (“Removal Order”).  On 3 July 2000, the Applicant was removed to Pakistan pursuant to the Removal Order.

(ii)     Second entry to Hong Kong

5.  On 26 September 2000, the Applicant arrived in Hong Kong on the strength of a Pakistani passport bearing the identity of “Ahmed Sani SALMAN” (“ID2”) (“Second Entry”).  He was permitted to remain as a visitor until 10 October 2000.  The Applicant did not depart Hong Kong as required after the expiry of his limit of stay.  He had overstayed since 11 October 2000 and was arrested by the Police on 19 January 2002. Under caution, the Applicant admitted, inter alia, that he had falsely presented himself as ID1 upon his First Entry.  He also claimed that ID2 was his true identity.  On 1 February 2002, the Applicant was convicted of the offences of “breach of condition of stay” and “making a false representation to an Immigration Assistant”, and sentenced to a total of 8 months’ imprisonment (including activation of the previous one-month suspended sentence).  On 4 March 2002, the Applicant’s appeal against sentence was dismissed.  On the basis of the latest convictions and upon the recommendation made by the Director of Immigration (“Director”) on 12 June 2002, the Secretary for Security (“Secretary”), acting under the delegated authority of the Chief Executive, made a deportation order for life (“Deportation Order”) dated 20 June 2020 against the Applicant (under the name of ID2 including alias of ID1) pursuant to s 20(1)(a) of the Ordinance, requiring the Applicant to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter.  On 5 July 2002, the Applicant was removed to Pakistan under the Deportation Order.

(iii)    Third (latest) entry

6.  On 11 May 2003, the Applicant arrived in Hong Kong on the strength of a Pakistani passport bearing the identity of “Sulman Shani CHOUDHRY” (“ID3”) (“Third Entry”).  He was permitted to remain as a visitor with limit of stay until 25 May 2003.  The Applicant did not depart Hong Kong as required after the expiry of his limit of stay and had overstayed since 26 May 2003.

7.  On 4 September 2005, the Applicant was arrested by the Police.  On 7 September 2005, the Applicant was confirmed to be a returned deportee upon fingerprint check.  On 8 September 2005, the Director submitted an application for authorization of detention.  On the same day, the Principal Assistant Secretary for Security (“PAS for S”) authorised the Applicant’s detention pending his removal from Hong Kong under s 32(3) of the Ordinance.

8.  On 27 October 2005, the Applicant was convicted of three counts of immigration-related offences, including breach of the Deportation Order, and sentenced to a total of 20 months’ imprisonment.  On 21 November 2005, the Applicant’s appeal against sentence was allowed and his sentence was reduced to 14 months’ imprisonment.

9.  On 14 June 2006, the Applicant completed his sentence and was discharged from prison.  The Applicant, being the subject of the Deportation Order who did not have any permission to remain in Hong Kong, was transferred to the CIC for detention under s 32(3) of the Ordinance pending removal as authorized by the PAS for S.

(iv)    Non-refoulement claim, convictions for dangerous drugs-related offences and failure to answer court bail/recognizance

10.  On 19 June 2006, the Applicant indicated his intention to lodge a torture claim.

11.  The PAS for S conducted a review of detention under section 32(3) of the Ordinance, and on 20 April 2007, the Applicant was released on recognizance.

12.  On 2 November 2009, the Applicant failed to answer a court bail in respect of some traffic-related offence(s).

13.  On 27 November 2009, the Applicant was convicted of seven counts of traffic-related offences and given, inter alia, a sentenced of 2 months’ imprisonment.

14.  On 6 January 2010, the Applicant was convicted of a further six counts of traffic-related offences and given, inter alia, a sentence of 2 months’ imprisonment.

15.  On 5 February 2010, the Applicant completed his sentence and was discharged from prison.  On the same day, he was transferred to the CIC for detention under s 32(3) of the Ordinance pending removal as authorized by the PAS for S.

16.  Upon the request of the Director, the PAS for S conducted a review of detention under s 32(3) of the Ordinance.  On 1 March 2010, the Applicant was released on recognizance.

17.  On 17 March 2010,the Applicant failed to report in accordance with the terms of his recognizance for the first time.

18.  On 31 January 2011, the Applicant was convicted of the offences of “possession of dangerous drugs” and “possession of apparatus fit and intended for the inhalation of dangerous drugs”, and sentenced to 3 months’ imprisonment and ordered to pay a fine of HK$8,000.

19.  On 28 December 2011, the Applicant was convicted of the offence of “trafficking in dangerous drugs” and sentenced to 27 months’ imprisonment.

20.  On 13 January 2012, the Applicant withdrew his torture claim.

21.  On 11 January 2013, the Applicant completed his sentence and was discharged from prison.  On the same day, he was transferred to the CIC for detention under s 32(3) of the Ordinance pending removal as authorized by the PAS for S.

22.  On 18 January 2013, the Applicant requested to re-open his torture claim.  On 31 May 2013, the Director accepted the Applicant’s request to re-open his torture claim.  On the same day, the UNHCR confirmed that the Applicant had made an application for refugee status.  On 3 March 2014, the Unified Screening Mechanism (“USM”) for determining claims for non-refoulement protection was implemented.  The Applicant’s claim for non-refoulement protection on all applicable grounds was subsequently assessed by the Director under the USM.

23.  Upon the request of the Director, the PAS for S conducted a review of detention under s 32(3) of the Ordinance.  On 28 June 2013, the Applicant was released on recognizance.

24.  On 18 October 2013, the Applicant failed to report in accordance with the terms of his recognizance for the second time.

25.  On 20 June 2014,the Applicant failed to report in accordance with the terms of his recognizance for the third time.

26.  On 9 December 2014, the Applicant was convicted of two counts of traffic-related offences and given, inter alia, a sentence of 12 weeks’ imprisonment.

27.  On 11 December 2014, the Applicant completed his sentence and was discharged from prison.  On the same day, he was transferred to the CIC for detention under s 32(3) of the Ordinance pending removal as authorized by the PAS for S.

28.  On 19 December 2014, the Applicant’s appeal against his sentence referred to in §26 above was allowed, and the sentence was reduced from 12 weeks to 2 weeks’ imprisonment.

29.  Upon the request of the Director, the PAS for S conducted a review of detention under s 32(3) of the Ordinance.  On 25 February 2015, the Applicant was released on recognizance.

30.  On 7 December 2015, the Applicant’s non-refoulement claim assessed under the USM was refused by the Director.

31.  On 8 July 2016, the Applicant was convicted of the offence of “possession of dangerous drugs” and sentenced to 5 months’ imprisonment.

32.  On 4 January 2017, the Applicant’s non-refoulement claim based on BOR 2 risk was refused by the Director (“BOR 2 Decision”).  On 27 January 2017, the Non-refoulement Claims Petition Office (“NCPO”) received the Applicant’s petition against the BOR 2 Decision (“Appeal”).

33.  On 29 September 2017, the Applicant was convicted of the offences of “trafficking in dangerous drugs”, “possession of dangerous drugs” and “possession of apparatus fit and intended for the inhalation of dangerous drugs”, and sentenced to a total of 5 years and 9 months’ imprisonment.  On 8 January 2019, the Applicant’s appeal against sentence was dismissed.

34.  On 27 December 2019, the NCPO dismissed the Appeal (“NCPO’s Decision”).

(v)     The Applicant’s current detention

35.  On 26 March 2020, the Applicant completed his sentence and was discharged from prison.  On the same day he was transferred to the CIC for detention under s 32(3) of the Ordinance pending removal as authorized by the PAS for S.  This detention has continued up to the present.

36.  Meanwhile, on 17 April 2020, the Applicant made an ex parte application for leave to apply for judicial review out of time against the NCPO’s Decision in HCAL 694 of 2020 (“Leave Application”). I understand that no hearing date has yet been fixed for the Leave Application.

37.  During the Applicant’s detention under s 32(3) of the Ordinance, the Director had on three occasions sought the PAS for S’s review of detention:

Review of Detention	Date of Review of Detention Authority Conducted by the PAS for S
1st	10.6.2020
2nd	26.8.2020
3rd	30.11.2020

38.  The Director also conducted 19 reviews of detention during the Applicant’s detention.  The Applicant was provided with a Notice of Review of Detention on every occasion and, with the assistance of an interpreter, the justifications for detention were explained to him:

Review of Detention	Date of Review of Detention Conducted by ImmD
1st	15.7.2020
2nd	7.8.2020
3rd	14.8.2020
4th	21.8.2020
5th	28.8.2020
6th	4.9.2020
7th	11.9.2020
8th	18.9.2020
9th	25.9.2020
10th	9.10.2020
11th	16.10.2020
12th	23.10.2020
13th	29.10.2020
14th	6.11.2020
15th	13.11.2020
16th	20.11.2020
17th	27.11.2020
18th	4.12.2020
19th	11.12.2020

39.  The main reasons for the continued detention of the Applicant were (i) threat / security risk to the community, and (ii) risk of absconding / reoffending.

APPLICATION FOR HABEAS CORPUS

40.  On 9 December 2020, the Applicant made the present application for a writ of habeas corpus.  It was supported by his affirmation which had attached to it a 12-page handwritten document entitled “Affidavit of Applicant, Ahmed Sani Salman @ Muhammad Salman in the writ of habeas corpus” dated 9 December 2020.  At the hearing on 16 December 2020, the Applicant submitted a further 5-page handwritten document entitled “Additional grounds and facts of the application for the writ of habeas corpus” dated 15 December 2020.

41.  In his written submissions and at the hearing on 16 December 2020, the Applicant complained that he had been kept in detention for a long time, and did not know when the Leave Application, which he said was meritorious, would be heard.  He said that some non-refoulement claimants had to wait for up to 2 to 3 years before their applications for judicial review were heard, and he objected to his potential detention for such a long period of time.  He also complained about the conditions in the CIC, which he said was worse than prison.  In particular, he complained about the medical treatment that he had received in the CIC.  He said that he was suffering from arthritis, but the doctors at the CIC refused to let him take his own medicine (Tram 50 Painkillers) except for a few days, but prescribed to him another type of painkillers which caused him allergy.  He said he had been given the type of painkillers that he had requested for since the day before the hearing.  Lastly, he said that he wished to leave the CIC to gather evidence in support of the Leave Application.

DISCUSSION

(a)     The Applicant’s detention is prima facie lawful

42.  The legal principles governing an application for a writ of habeas corpus are well settled.  The central question is whether there is lawful authority for a detention: see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was:

“Now the purpose of an application of habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.”

43.  The Applicant is currently detained under s 32(3) of the Ordinance, which states as follows -

“A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

44.  In view of the fact that -

(1)     a deportation order in respect of the Applicant is in force; and

(2)     the Applicant is being detained pending his removal from Hong Kong under s 25,

the Applicant’s detention is, prima facie, lawful.

(b)     The Applicant’s detention is Hardial Singh compliant

45.  The relevant principles were set out in this court’s decision in Simona Mundia v Director of Immigration [2020] HKCFI 741, and will not be repeated here.

46.  In summary, the determination of whether a person has been detained for a period that is reasonable in all the circumstances is a fact-sensitive exercise.  The court has to consider, amongst other matters, the length of the period of detention; whether, and if so when, there is a realistic prospect that deportation will take place; the nature of the obstacles which stand in the path of a deportation; the diligence, speed and effectiveness of the steps taken by the Director/Secretary to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.

47.  When determining whether a period of detention has become unreasonable, the merits of the judicial process pursued by the detainee which impedes his removal is a relevant consideration.  Also, the risks of absconding and reoffending are of paramount importance in the court’s assessment of whether a period of detention has become unreasonable in all the circumstances.

48.  In the present case, there is nothing in the materials before the court to show that the Secretary is using the power of detention for any purposes other than for the removal of the Applicant.  There is also nothing to suggest that the Secretary has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  The main obstacle to the Applicant’s removal is his pending application for leave to apply for judicial review of the NCPO’s decision.  The Secretary is intent upon removing the Applicant at the earliest moment, and is of the view that the Applicant can be removed within a reasonable period of time and that it will not be impossible to do so.

49.  The court accepts that the Applicant has been detained for a substantial period of time.  The current detention under s 32(3) pending his removal commenced on 26 March 2020.

50.  The present application is not the appropriate occasion to examine in detail the merits of the Leave Application.  However, to the extent that the merits of that application are relevant to a consideration of whether the period of the Applicant’s detention has become unreasonable, It is of note that the Applicant’s Form 86 in HCAL 694/2020 does not state any ground on which relief is sought.  In the Applicant’s affidavit dated 17 April 2020 in support of the Leave Application, the Applicant states that: “I am not agreed with the decision of the Director of Immigration and the Torture Claim Appeal Board Adjudicator, and I wish to bring this to the Honourable Court to challenge the Director of Immigration.  Because my life is in danger”. Attached to that affidavit is a 12-page handwritten document entitled “Affidavit and reasons in support of application.”  A quick perusal of that document indicates that the Applicant’s grounds of application essentially go to the merits of the Director/NCPO’s respective assessments of his non-refoulement claim.  It is, however, trite that it is not the court’s function in an application for judicial review of the NCPO’s Decision to carry out a merits review, or consider the non-refoulement claim afresh.  As stated by the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246, at §13:

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in the absence of any legal error.”

51.  On the currently available materials, the court is not satisfied that the Leave Application has a good prospect of success.

52.  The Director/Secretary are of the view that the Applicant might constitute a threat/security risk to the community due to the serious nature of his convictions for, inter alia, various dangerous drugs-related offences.  As this court stated in Harjang Singh v Secretary for Security [2019] HKCFI 1486, at §29, the Secretary/Director are much better placed than the court to consider matters such as the risks of absconding or reoffending, and whether a detainee, if released, may pose a threat or security risk to the community, which are fact-sensitive issues and involve a broad range of considerations of or on which the court has little knowledge or expertise.  In the present case, having regard to the multiple dangerous drugs-related offences committed by the Applicant and the seriousness of those offences as reflected by the substantial prison sentences passed on the Applicant (3 months, 27 months, 5 months, and 5 years and 9 months of imprisonment on 4 separate occasions), in addition to a string of convictions for immigration offences and traffic-related offences, the Secretary/Director are entitled to come to the view that the Applicant does constitute a threat/security risk to the community and/or may reoffend, and that the Applicant’s release would not be conducive to the public good.

53.  Also, having regard to the fact that the Applicant previously failed to answer court bail once and further failed to report in accordance with the terms of recognizance thrice (I am told that on all those occasions, the Applicant went underground and was subsequently arrested), the Secretary/Director are entitled to take the view that there is a risk or likelihood of absconding by the Applicant.

54.  The fact that the Applicant has no obvious connection with Hong Kong supports the continued detention of the Applicant.

55.  In respect of the specific matters that the Applicant relies upon in support of the present application:

(1)     There is no reason to believe that the resolution of the Leave Application will be unduly delayed, although, having regard to the large number of similar applications made by non-refoulement claimants pending before the High Court, it will inevitably take some time for them to be dealt with.

(2)     In relation to his complaint about the medical treatment that he has received in the CIC, there is no sufficient evidence to show that the doctors there have failed to give proper treatment or prescribe appropriate medicine to the Applicant.  Anyhow, the Applicant accepts that he has been given the type of painkillers that he wants since before the date of the hearing.

(3)     The suggestion that the Applicant needs to leave the CIC to gather evidence in support of the Leave Application is not a reason for granting the Applicant’s application for a writ of habeas corpus.  In relation to the Leave Application, the court will not examine the Applicant’s non-refoulement claim afresh, or consider fresh evidence which was not before the NCPO.  The court will be exercising a supervisory jurisdiction and can only interfere with the NCPO’s Decision on the grounds of illegality, irrationality or procedural impropriety.

56.  Overall, the Applicant has not been detained for a period that is unreasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

DISPOSITION

57.  The application for a writ of habeas corpus is dismissed.  There shall be no order as to costs.