GURINDER SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1178/2023

[2023] HKCFI 2049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1178 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the subject of a Removal Order made on 20 May 2020, and the subject of a Deportation Order made on 1 August 2023.  He has been held in immigration detention since 31 May 2023 pending his removal from Hong Kong.  To the date of this hearing, the detention has lasted 70 days, or approaching 2½ months.

2.  On 13 July 2023, the Applicant applied for writ of habeas corpus on the broad ground that his detention has become unreasonable and thus unlawful by reference to the Hardial Singh principles.  On 20 July 2023, I gave leave for the respondent Director to file and serve his response and the necessary directions to bring the matter to a hearing on 7 August 2023.  Unfortunately, it was necessary to adjourn the hearing to 8 August 2023, to allow for the correct Punjabi/English interpreter.

3.  At the hearing, the Applicant indeed appeared in person with the benefit of a Punjabi/English interpreter.  The Director was represented by Mr Rex Cheung, Senior Government Counsel of the Department of Justice (“DOJ”).  Mr Cheung said he is also authorized to represent the Secretary for Security, albeit not named as a respondent, who was also involved in making decisions to continue the present period of detention.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is an Indian national born in 1980.

6.  He last entered Hong Kong in June 2019 as a visitor but soon over-stayed beyond the limit of stay granted to him.  He went underground until he was arrested by the Police in January 2020 for breach of condition of stay, for which offence he was then convicted and sentenced to 2 months’ imprisonment.

7.  This led to the issuance of the Removal Order on 20 May 2020.  But the order was not executed since the Applicant had lodged a non-refoulement claim (“NRC”) about a month before the Removal Order was issued.  In the following 2 to 3 years, the Applicant’s stay in Hong Kong was tolerated, pending the resolution of his NRC.

8.  Whilst his NRC was being processed, recognizance was granted to him most of the time to allow him to live in the community freely, subject to requirement to regularly report recognizance to the Director.

C.  Imprisonment, Previous Immigration Detention & Absconding Record

9.  However, as a matter of fact, he was often not able to benefit from the immigration recognizance which would enable him to live freely in the community, since he was repeatedly convicted of criminal offences for which he was sentenced to imprisonment on 6 occasions.  His criminal record is as follows:

(1)  On 8 May 2020, he was sentenced to 2 months’ imprisonment for breach of condition of stay.

(2)  On 19 October 2020, he was fined HK$500 and ordered to pay compensation of HK$16 for shoplifting.

(3)  On 10 December 2020, he was sentenced to a total of 4 months’ imprisonment for 2 counts of theft.

(4)  On 18 March 2021, he was sentenced to a total of 5 months’ imprisonment for theft and attempted theft.

(5)  On 24 June 2022, he was sentenced to 20 months’ imprisonment for burglary.

(6)  On 27 January 2023, he was sentenced to a total of 6 weeks’ imprisonment for two counts of shoplifting.

(7)  On 4 May 2023, he was sentenced to 4 weeks’ imprisonment for shoplifting.

10.  Therefore, as said, the Applicant was imprisoned on 6 occasions and immediately following each of his prison terms, he was transferred to the Immigration Department who would then detain him for a period to decide if immigration recognizance was to resume.  Recognizance was eventually resumed on all the previous occasions, except the last one where recognizance was not granted.  On each of those previous occasions, after being released on recognizance, the Applicant was re-arrested by the police, then prosecuted and convicted of offences leading to further imprisonment. 

11.  On the last occasion, that cycle was broken by the refusal to release again on recognizance.  Hence began the present period of detention the subject of this habeas corpus application.

12.  The lengths of the 5 previous immigration detention periods which were eventually ended by the resumption of recognizance were 4 months, 1 days, about 3 weeks, 1 month, and 2½ months respectively.

13.  He failed to report immigration recognizance thrice and jumped court bail twice.  But all the failings, except one, could be explained by his being detained by the Police or his being in prison.  The one occasion where the failure could not be accounted for occurred on 10 January 2023, when he jumped court bail and was only arrested by the police on 18 January 2023.

D.  Steps towards Removal

14.  At all material times, the Applicant has held an Indian passport issued on 9 June 2015, with validity expiring on 8 June 2025.

15.  When the present detention started on 31 May 2023, the only impediment to removal was his NRC, the subsequent judicial review of which was then pending the resolution of the Court of the First Instance (“CFI”).

16.  For the purpose of the present habeas corpus application, it suffices to set out the procedural history of his NRC and related proceedings rather briefly. His NRC, lodged in April 2020, was first rejected by the Director in June 2020 and then rejected by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) in June 2020.  In August 2020, he sought leave from the CFI to challenge the Board’s refusal by way of judicial review in HCAL 1747/2020.

17.  By letter dated 21 June 2023, followed by a chaser/reminder dated 21 July 2023, the DOJ (on behalf of the Director) informed the Court that the Applicant was being held in immigration detention and requested for priority to be accorded to his case.

18.  As it now stands, the hearing of the Applicant’s leave application in HCAL 1747/2020 has been fixed for 22 August 2023.  It is anticipated that a decision will be made on that application within September 2023.

E.  Applicable Principles

19.  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 any individual case.

F.  The Applicant’s Submissions

20.  The Applicant exhibited to his supporting affirmations 14 pages of handwritten notes.  Most of them are recitation of legal principles or case authorities related to habeas corpus applications, but without explaining how they could be applied to the instant case.  In any event, the principles are well-settled (as referred to above).

21.  The remaining content of the notes makes submissions by reference to the Hardial Singh principles and by seeking to rebut the grounds relied upon by the Director in refusing to grant recognizance in the review of detention conducted on 2 May 2023.  Those grounds were made known to the Applicant by way of the “Notice of Review of Detention” served on him on 6 June 2023. I will set out the grounds to put in context what the Applicant said in his affirmation.  They were that: (a) the Applicant’s removal is going to be possible within a reasonable time, (b) he pose, or is likely to pose, a threat or security risk to the community, (c) he may abscond and/or (re)offend, (d) he does not have close connection or fixed abode in Hong Kong, and (e) there are no other circumstances in favour of his release.

22.  The Applicant’s written submissions could be summarized as follows:

(1)  He has been detained since 25 February 2023.  The detention has been continued for a period that is unreasonable.

(2)  His judicial review application arising from his NRC is still pending resolution.  Even if that is dismissed by the Court, he can still appeal further.  He expects that it is not going to be finally resolved within the next 1 or 2 years.  He cannot be removed within a reasonable time.  The Director cannot say when he will be removed.

(3)  In one of his criminal case, he was fined HK$500 and he was given time to pay by December 2023.

(4)  He is not a threat to the Hong Kong society.  He was admittedly convicted of numerous offences, but he had served all his sentences.  The crimes he committed were not very serious or of violent nature, if one looks at the sentences imposed.

(5)  Further, in the past, the Director felt able to resume his recognizance after he had completed his prison term, reflecting that he was not considered a threat.  If he was not a threat in the past, why has he become a threat now?

(6)  He admitted he had jumped police bail in the past.  But the Director still resumed his recognizance afterwards.

(7)  Although he does not have family in Hong Kong, the Immigration Department has his address and phone number.  ImmD was able to locate him in the past, so cannot now say he cannot be easily located.

23.  At the outset, Mr Cheung pointed out that the present detention began on 31 May 2023, rather than 25 February 2023.  There was another previous period of immigration detention beginning on 25 February but that ended on 5 May 2023, on which day he was sentenced to prison once again, for shoplifting.  The present period of detention only commenced after he had completed his last prison term for shoplifting.

24.  No doubt the present period of detention only started on 31 May 2025, as a matter of fact.  But, as Mr Cheung has also fairly accepted, the previous period of immigration detention and prison term which immediately preceded the present immigration detention form part of the background against which the impact of present detention is to be assessed.  I shall bear that in mind, but I do not think that is a particularly weighty consideration in the present case.

25.  At the oral hearing, the Applicant further submitted (in my summary of his points) that:

(1)  Between 2007 and 2019, he had been conducting his own business, and had travelled between Hong Kong and mainland China almost every day.

(2)  In those 13 years, he had no bad record at all.

(3)  The offences he subsequently committed were committed out of need.  He only stole food items, which were usually recovered and given back.

(4)  He has never assaulted or robbed anyone. Instead, sometimes when he was drunk, and out of need for food, he committed thefts.

(5)  He is embarrassed and ashamed by the mistakes he has made. 

(6)  He has since promised himself and his God that he will stop drinking, and he will not make the same mistakes again.

(7)  His judicial review application is fixed to be heard on 22 August 2023, and he wishes to be released to prepare for that hearing, as is his right.  He has bullet wounds and had a broken arm, and wishes to obtain documents from India to prepare for the hearing.

(8)  Whether that application will be successful will only be determined by the Court, not by the Immigration Department nor anyone else.

(9)  He has also been ordered to pay a fine, with six months permitted to arrange payment.  He wants to be released to arrange that payment, which is important to him.

10)  Therefore, he requests release (a) to be able to obtain documents from India relevant to his NRC and the judicial review hearing, and (b) to arrange for money to pay the fine.

11)  His case, and his personal circumstances, are less serious than a previous case in which the Court granted release on an application for habeas corpus: see [2023] HKCFI 1247.

12)  He requests to be granted justice.

26.  I will bear all these points in mind in my analysis below as appropriate.  But it may be helpful to point out two things now:

(1)  Each case will be decided on its own merits on the individual circumstances weighed and balanced by the Court, so that comparison with other cases may not be so helpful.  As it happens, the applicant in the other case cited was at a different point in the possible chronology so that future uncertainties as to when he might actually be removed made it difficult to conclude that the detention would likely remain or continue for a period which is reasonable and lawful.  That is not the situation here.

(2)  The Applicant’s conduct before and 2019 may be of less weight when compared with the more recent conduct, and in particular the apparent pattern in that conduct.

G.  Whether Detention has become unlawful

27.  There was and remains clear prima facie lawful authority for the detention of the Applicant throughout the whole period.

(1)  From 31 May 2023 to 23 July 2023, the Applicant was detained pursuant to section 32(3A) which authorizes the detention of a person against whom a removal order has been issued, pending his removal.  The Removal Order remains extant.

(2)  From 24 July 2023 to 1 August 2023, the Applicant was detained pursuant to section 29 of the Ordinance, which authorizes the detention of a person for enquiring if a deportation order should be issued against him.

(3)  Since 1 August 2023, the Applicant has been detained pursuant to section 32(3) of the Ordinance, which authorises detention of a person pending deportation.

28.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

29.  I can address the Hardial Singh principles broadly, as below.  The starting point is that the Applicant has been detained up to today for a period of 69 days or a little 2 over months (albeit in the context of the immediately previous periods of detention and imprisonment).

30.  HS1 and HS4 are plainly satisfied.  I have no doubt that the detention power has been used to facilitate removal or deportation.  The Director’s efforts are also reflected in his informing the Court (via the DOJ) about the current detention and requesting priority for the Applicant’s case.

31.  As said, the Applicant holds a valid passport and the only removal obstacle throughout the 2 months’ detention period has been his judicial review application, the result of which is pending.  The hearing for the leave application is now fixed in about 2 weeks’ time.  It can be expected that the Court will make a decision fairly quickly after the hearing, now that it is aware of the need to accord priority to this case.

32.  I note that the Applicant request release in part to obtain documents to support his NRC and the forthcoming judicial review application.  However, the Applicant has had many years to obtain whatever materials he thinks is necessary and appropriate to pursue that claim.  I also note that in the application for leave to apply for judicial review dated 26 August 2020, the Applicant said that the decision made on his NRC stated “all the details of his claim”.  Further, the grounds upon which the relief is sought merely challenge the Board’s decision as being wrongful, unreasonable and unfair (in the Wednesbury sense).  There is no suggestion in the document that further information or evidence is required, and in any event an application for leave to apply for judicial review seeking to challenge the decision of the Board is not usually the opportunity to provide fresh information in support of a NRC – rather, it is a challenge to the integrity of the decision making process engaged in by the Board on the materials provided to the Board.

33.  Whilst the Applicant alludes to the suggestion that he will keep appealing further even if his leave application is to be dismissed by the Applicant, this has become irrelevant in light of the Director’s current removal policy, which will not consider any further proceedings as an impediment to removal if and once the NRC has reached the stage of its subsequent judicial review application being rejected by the CFI.

34.  I also give weight to the Director’s assessment there is a real risk of re-offending.  The Applicant has numerous criminal convictions, including burglary for which he was sentenced to 20 months.  Even if his crimes were committed whilst he was drunk, I reject his submissions that the crimes he committed were not very serious.  The impact of potential re-offending is not minor.  The Applicant is a recidivist, and he has demonstrated little respect for the laws of Hong Kong.  Obviously, the fact that the Director decided to resume his recognizance on the first 5 occasions after he was sent to prison does not mean that the Director is under a duty to continue to do on the next occasion.  There will come a time when the Director will have to decide that enough is enough, and that time has come for the Applicant.  Although the immigration detention powers are not for the purpose of protection the Hong Kong public, the risk of re-offending is a factor which the Director is entitled to take into account is assessing if recognizance should be granted.  I do the same.

35.  I see no other factors which would favour release from detention.  The fact that the Applicant has not yet paid his fine imposed by the criminal court is obviously not an obstacle to his removal, and I do not think it is of any weight in the current necessary balancing exercise.

36.  What might happen after the determination of the judicial review application can be addressed at the relevant time.  But, I note Mr Cheung’s submission that, unless the application is determined in favour of the Applicant, there would then be no obstacle or impediment to his removal which could be swiftly arranged.

37.  Overall, weighing the period of detention – approaching 2½ months – against all the other factors, I am satisfied that HS2 and HS3 are met.

38.  Therefore, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

H.  Result

39.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.