GHULAM RBANI v. SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF IMMIGRATION

CACV 267/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2011

(ON APPEAL FROM DCCJ NO. 531 OF 2010)

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J U D G M E N T

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Hon Cheung CJHC:

1. I agree with the judgments of both Stock VP and Fok JA.

Hon Stock VP:

2. I agree with the judgment of Fok JA.

3. The breadth of s. 11 of the Bill of Rights Ordinance (and of the Reservation to the ICCPR, to which Reservation s. 11 gives domestic effect) is increasingly under scrutiny by the courts.  The suggestion in MA v Director of Immigration[1] that s. 11 might not exclude the protection of the Bill of Rights in respect of detention for breach of a condition of stay was, as Fok JA explains hereafter,[2] not intended to relate to the act of detention pending removal under powers granted by the Immigration Ordinance and, in any event, was expressly said to be a question not necessary in that case to decide.  It was no more, as I read it, than an indication that there may be situations where it could be said that a decision or act in relation to an individual who has not acquired the right or permission to land in Hong Kong or who is here subject to conditions of stay, was a decision or act (albeit under the Immigration Ordinance) which was not the exercise of a power “governing entry into, stay in or departure from Hong Kong”.  One is tempted here to venture possible examples but the problem with examples is that they are provided without benefit of argument and tend, unwarrantedly, to be taken as drawing some red line.

4. It is not necessary in this case to determine where the line is drawn for, in my judgment, the impugned decisions in this case fall well within the contemplation of the Reservation and s. 11 of the Bill of Rights Ordinance.

5. The reason for the removal order made in this case was that G had “contravened his condition of stay by overstaying.”[3]  The removal order was made, therefore under s. 19(1)(b)(ii) of the Immigration Ordinance.

6. It is clear, therefore, that the removal order was made under immigration legislation “governing stay in and departure from Hong Kong.”  That much cannot be and is not disputed.  It is also clear and undisputed that it was in contemplation of such an order – or the real possibility of such an order – that G was detained.

7. It is but a short step from that to determination of the s. 11 issue in relation to the exercise of the power to detain under s. 32(2A).  That is because the power conferred by s. 32(2A) is no doubt there to ensure that the removal order under contemplation is an order which, if made, is not rendered nugatory by the person apparently liable to removal going to ground.  And since removal effects “departure”, it is obvious that s. 32(2A) is “immigration legislation governing entry into, stay and departure from Hong Kong.”

Hon Fok JA:

Introduction

8. For a period of approximately six weeks, the appellant, G, was placed under administrative detention by the Director of Immigration pursuant to IO[4] s. 32(2A).  He claims that this detention was in breach of BOR5(1)[5] and therefore amounted to false imprisonment for which he is entitled to damages.

9. After a trial in the District Court, Simon Leung DJ dismissed G’s claim, holding that, by reason of HKBORO[6] s. 11, the HKBORO could not affect the IO or its application to G.  The Judge also held that, by reason of BL41[7], G could not rely on BL28 or BL35.

10. Had he concluded otherwise on liability, the Judge would have awarded $30,000 by way of damages.

11. With the leave of the Judge, G challenges the Judge’s conclusions on liability in this appeal.

The facts

12. G, a Pakistani national, first came to Hong Kong in 1992 (with a passport bearing the name Ghulam Rubbani) and was allowed to stay for three months.  After overstaying for about 10 months, he was convicted of breach of condition of stay, fined and repatriated to Pakistan in August 1993.

13. He next came to Hong Kong in 1994 (using another passport, this time bearing the name Ghulam Rabani) and was again permitted to stay for three months.  He again overstayed, this time for about five months, and was convicted of breach of condition of stay, fined and repatriated to Pakistan in July 1995.

14. In May 1999, G returned to Hong Kong (using yet another passport, this time bearing the name Ghulam Rabbani).  Once again he overstayed, this time for about four months.  He was convicted of breach of condition of stay and also of making a false representation to an immigration officer (in relation to his date of birth on his previous visit to Hong Kong), for which a suspended sentence of imprisonment was imposed before he was removed to Pakistan in October 1999.

15. G’s most recent arrival in Hong Kong was on 24 September 2000 (yet again using another passport, this time bearing the name Ghulam Rbani).  He was permitted to remain as a visitor until 15 October 2000 but, as before, he overstayed.  He was arrested by the police on 1 April 2005 for gambling in a place not being a gambling establishment and was charged with that offence and also with breach of condition of stay.  Taking into account the suspended sentence that had previously been imposed, which was then activated, he was upon conviction for those offences sentenced to a total of seven months’ imprisonment.

16. After he had been in prison for slightly less than five months, G was discharged on 23 August 2005, at which time he was placed under administrative detention by the Director, pursuant to IO s. 32(2A)(a), in the Castle Peak Bay Immigration Centre.

17. During interviews prior to his release from prison in August 2005, G did not raise any objection to being removed from Hong Kong.  On the contrary, he made a positive request to return to Lahore, Pakistan as soon as possible due to concerns about his family, his aged mother and sick son.  This request was repeated in a letter to the Immigration Department and in an interview on the date of his release from prison.

18. In view of G’s request to return to Pakistan, the Director wrote to the Consulate-General of the Republic of Pakistan two days after G’s administrative detention to seek confirmation of the issue of an emergency passport to G. In the meantime, G’s detention pursuant to s. 32(2A)(a) expired but was continued by the Secretary for Security pursuant to s. 32(2A)(b) for a further period of 21 days from 29 August 2005.  G acknowledged receipt of the notification of the further detention in writing on 31 August 2005.

19. The Pakistani Consulate-General wrote to the Director on 2 September 2005 to indicate that an emergency passport would be issued to G to enable him to be deported to Pakistan.  Accordingly, steps were taken to procure an air ticket for G to return to Lahore and an application for a removal order was made on 7 September 2005, which was issued on 10 September 2005.

20. On 5 September 2005, unbeknownst to the Director, G wrote a letter to the Director lodging a claim under the CAT.[8]  G’s letter was received by the Immigration Department on 8 September 2005 and found its way to the Removal Sub-division on 12 September 2005.  As a result, service of the removal order that had been made against G was withheld and, on 15 September 2005, it was withdrawn.

21. On 16 September 2005, the Secretary authorised the detention of G for a further period of 21 days pursuant to s. 32(2A)(c).  G refused to sign to acknowledge receipt of the notification of continued detention given to him on 21 September 2005.

22. The screening of G’s CAT claim then began and, on 7 October 2005, he was released on recognisance. He had therefore been in administrative detention for six weeks from 23 August 2005 to 7 October 2005.

The issues on appeal

23. The following issues arise on this appeal:

(1)    Was the Judge wrong to hold that, by reason of HKBORO s. 11, the HKBORO does not apply to detention under IO s. 32(2A)?

(2)    Should the Judge have followed A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752?

(3)    Was the Judge wrong to hold that G’s rights under BL28 and BL35 are subject to HKBORO s. 11 by reason of BL41?

(4)    Was the Judge wrong to hold that the Director could rely on s. 32(2A) for the authority to detain G after the removal order made against him on 10 September 2005 had been withdrawn?

24. Two further issues arise by reason of arguments advanced by the Director’s respondent’s notices, namely:

(1)    Whether the principles in Hardial Singh apply to detention under s. 32(2A)?[9]

(2)    Whether, even if liability were established, the Director would only be liable for nominal damages by reason of G’s inability to establish a causal link between breach of BOR5(1) and his detention?[10]

Issue 1: The scope and effect of HKBORO s. 11

25. G relies on BOR5 (identical to ICCPR9[11]) which materially provides:

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

…

(5)   Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

26. The Judge, purportedly following this Court’s decision in Ubamaka Edward Wilson v Secretary for Security [2011] 1 HKLRD 359, held[12] that HKBORO s. 11 had excepted IO s. 32 and its application from the application of the BOR so that G could not found his claim on the rights guaranteed under BOR5.

27. HKBORO s. 11 reflects the terms of the immigration reservation entered by the United Kingdom when the ICCPR was originally extended to Hong Kong.  HKBORO s. 11 provides:

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

28. In Ubamaka (supra), this Court held (at §133) that, as a matter of domestic law, the courts of Hong Kong must give effect to the immigration reservation to the ICCPR as reflected in BL39 and HKBORO s. 11 for the reasons set out in §§134-138.

29. However, on this issue, in the skeleton submissions of Mr Philip Dykes SC[13], for G, it was submitted, in summary, that:

(1)    The powers of detention under IO s. 32 do not “trump” the right to liberty and security of the person under BOR5.

(2)    Properly construed, the immigration reservation, reflected in HKBORO s. 11, was intended to deal with a specific problem, namely immigration to the UK from Commonwealth countries of classes of British citizens not having the right of abode in the UK.

(3)    The immigration reservation was not intended to give the UK a free hand in dealing with persons not having the right of abode in ways that contravened fundamental rights and freedoms guaranteed by the ICCPR other than those connected with ICCPR12(1) and 12(4).

(4)    The exception in HKBORO s. 11 must be construed consistently with the reservation as properly understood and, if it cannot be so construed, it is unconstitutional because it lacks access to rights guaranteed under BL39.

(5)    HKBORO s. 11 cannot, in any event, affect rights and freedoms existing independently of the HKBORO, so that common law rights concerning liberty of the person are unaffected.

30. Shortly before the hearing of this appeal commenced, this Court (differently constituted) handed down its judgment in MA and Others v Director of Immigration, unrep., CACV 44-48/2011, 27 November 2012.  One of the critical issues arising in those appeals concerned the construction of HKBORO s. 11.

31. This Court rejected the invitation to construe HKBORO s. 11 narrowly so as to apply it only where an individual was asserting a right to be permitted to be in, or a right not to be removed from, Hong Kong.

32. It was held in MA (at §37) that HKBORO s. 11 is neither unclear nor ambiguous and that its language is not obscure, so that it should be given its ordinary or literal meaning.  It was further held that the subject matter to which the immigration reservation is directed concerns immigration control and that, as a matter of principle, such immigration control is not just about whether a person can enter a place and for how long before he can be removed.  It also deals with the purpose for which he is allowed into the place and, therefore, the imposition of a condition of stay is an aspect of immigration control to which HKBORO s. 11 applies: see §§38-41. It will be necessary to return to this when addressing the next issue in this appeal.

33. In particular, in MA, it had also been argued that HKBORO s. 11 should be narrowly construed.  Various arguments were relied upon in support of a narrow construction (see §35), including the contention that the context of the UK reservation to the ICCPR was the influx into the UK of East African Asians, who had asserted rights under the ECHR[14] to enter the UK.[15]  That argument is also relied upon by G in this appeal.

34. This Court did not consider that reference to the East African Asians case supported the narrow construction of HKBORO s. 11 advanced in MA.[16]  Similarly, in Ubamaka, this Court rejected an invitation to construe the immigration reservation narrowly by reference to comments of the UK made in 2006 to the UNHRC[17] as to the purpose of the reservation[18] (on which Mr Dykes also relied in this appeal).[19]

35. Notwithstanding the submissions made on behalf of G in this appeal, I remain of the view that reference to the context in which the UK entered the immigration reservation to the ICCPR does not require that reservation to be read as being limited only to the UK Government’s right not to permit entry or immigration into the UK by those classes of British citizens who did not have the right of abode in the UK, as opposed to some lesser citizenship rights, or that its effect is limited to addressing the concern over intra-Commonwealth immigration.

36. On the contrary, as was held in Ubamaka (at §135):

“… there is a long line of cases decided in Hong Kong in which it has been confirmed that the effect of section 11 of the HKBORO and the immigration reservation to the ICCPR is that the provisions of the BOR and the ICCPR respectively cannot be invoked to enable those not having the right to enter and remain in Hong Kong to resist removal or deportation.”

37. That line of cases, to which MA must now been added, includes:

(1)    Hai Ho Tak v Director of Immigration [1994] 2 HKLR 202 at 207-208, 209 and 209-210;

(2)    Vo Thi Do & Ors v Director of Immigration [1998] 1 HKLRD 729 at 747-748;

(3)    Bahadur v Secretary for Security [2000] 2 HKLRD 113 at 125H-I;

(4)    Tam Nga Yin v Director of Immigration (2001) 4 HKCFAR 251 at 260C-261C; and

(5)    Bahadur v Secretary for Security (2005) 5 HKCFAR 480 at §22.

38. The decision in Ubamaka is shortly to be argued before the Court of Final Appeal where, Mr Dykes informed us, the arguments he advanced to us as to the proper construction of s. 11 will be addressed.  However, I am certainly not persuaded that this Court’s decision in relation to HKBORO s. 11 in Ubamaka and, more recently, in MA is plainly wrong.  Pending the outcome of the appeal in Ubamaka, we are therefore bound by those previous decisions and, consistently with those decisions, to reject the narrow construction of HKBORO s. 11 urged on us on behalf of G.

39. That leads to the question of whether the Judge was wrong to hold that, by reason of HKBORO s. 11, the HKBORO does not apply to detention under IO s. 32(A).  It is convenient to answer that question in dealing with the next issue, to which I now turn.

Issue 2: A (Torture Claimant) v Director of Immigration binding?

40. The case of A (Torture Claimant), being a decision of this Court, would of course be binding on the Judge below to the extent that he was deciding the same issue.  It is clear from the judgment below that the Judge was plainly alive to this.  In that case, which concerned the power to detain under IO ss. 32(3) and 32(3A) (not, as in this case, s. 32(2A)), it was held that BOR5 required that the grounds and procedures for the exercise of a power to detain must be certain and accessible, for example by way of published policy or by legislation.  Since the grounds and procedures were not certain and ascertainable, the Court declared the detention of the four torture claimants, after they had made torture claims, unlawful.

41. However, as the Judge was also plainly aware, there is a material difference between A (Torture Claimant) on the one hand and Ubamaka on the other, in that HKBORO s. 11 was considered and applied in the latter but not the former.  The reason for this is simple.  In A (Torture Claimant), no reliance was placed on s. 11 to preclude reliance on rights under the BOR.

42. In the Court’s recent decision in MA, it was held that HKBORO s. 11 did apply so that the appellants there were not entitled to invoke rights under the BOR to challenge the lawfulness of the condition of stay imposed on them that they not take up employment while in Hong Kong.  At §38, it was held:

“38. … that the subject matter to which the immigration reservation is directed concerns immigration control. However, as a matter of principle, immigration control is not just about whether a person can enter a place and for how long before he can be removed. It also deals with the purpose for which he is allowed into that place: thus, a condition of stay as to that purpose must form a core ingredient of the relevant immigration decision whether to admit the person. There seems to me to be no reason or necessity to limit the sovereign ability of immigration control to a decision as to whether someone can enter or must leave. Instead, it may also include what the person can do on his being allowed to enter since the purpose for which a person is allowed to enter clearly impinges on the question of whether he should be allowed to enter at all. That purpose is inextricably linked up with the latter decision (as to whether to permit him to enter) and is therefore part of the immigration decision itself. To take a simple example, a student from, say, France enrolled for a degree course at a tertiary institution in Hong Kong may be granted permission to land subject to a condition of stay that he may remain in Hong Kong only for so long as he is in full-time education at that institution. The decision to impose that condition of stay on the student is part and parcel of the very decision whether to allow him to enter: but for his enrolment in his degree course, he would not have been allowed to enter otherwise than as a visitor only and for a much shorter period than he would require.”

43. On the other hand, the Court pointed out that HKBORO s. 11 did not mean that an alien has no rights under the BOR while here.  At §42, the Court noted that a line must be drawn on one side of which are decisions which are caught by HKBORO s. 11 and on the other side of which are decisions which are not.  At §43, it was held:

“…as will be seen, there is authority suggesting that such rights can be invoked in respect of detention, i.e. something that has happened to the alien while he is here. Although it is not necessary for the purposes of these appeals to decide whether detention is outside the ambit of the phrase “governing entry into, stay in and departure from Hong Kong”, it is sufficient to state that there is a clear difference between a decision to permit a person to land and to impose a condition of stay as to the purpose of his visit (e.g. to attend full-time education) and a decision to detain a person for some breach of an immigration condition. The former decision is bound up with the decision whether to let that person enter, whereas the latter decision is the consequence of whatever decision has been taken on the question of whether to admit and, if so, for how long and for what purpose. It is certainly arguable that the latter decision to detain may not be covered by the phrase “governing entry into, stay in and departure from Hong Kong” but, as I have said, it is not necessary to so decide in this case.”

44. The Court in MA considered various authorities relied upon by the appellants in those appeals in support of the contention that HKBORO s. 11 did not affect rights while here and only affected rights to be here or not to be removed. [20]  At §§52 to 55, it was held:

“52. I do not accept that the appellants’ case is supported by Wong King Lung. Counsel’s submission in that case, recorded at p. 325 (lines 24-29), upon which Mr Fordham placed much reliance, was that:

“… it is clearly not the legislative intention [of the HKBORO] to exclude all decisions which the Director of Immigration can make in relation to persons who do not have the right of abode.  The Director has the power to maintain in custody persons who are suspected to be illegal immigrants but in that respect those persons would be able to bring a claim under the BORO if it is alleged that there has been a breach of their rights during custody.”

That submission was apparently accepted by Jones J at p. 327 (lines 16-18) when, after having upheld the application of HKBORO s. 11 to the case before him, he said:

“Nonetheless, I am satisfied that if any of the applicants’ rights are infringed whilst they are in Hong Kong, as for instance, under Article 3, which is concerned with torture, inhuman or degrading treatment, those rights are protected under the BORO.”

53. Neither the submission in Wong King Lung nor the Judge’s acceptance of it supports the distinction the appellants seek to make between rights to be here and rights while here. As I have already indicated, it was accepted by the Director that there may be circumstances in which a person subject to a decision of the Director would be able to invoke rights under the BOR because the decision is not one governing his entry into, stay in and departure from Hong Kong. Not everything that happens to an alien in Hong Kong arises out of the decision which HKBORO s. 11 catches and, in respect of those other matters outside that particular decision, the alien can invoke rights under the BOR. In any event, as Jones J observed at p. 326 (lines 37-45), it is not the case that if the HKBORO does not apply the Court’s jurisdiction is ousted entirely: there are still rights at common law and other rights under the IO unaffected by the immigration reservation.

54. Mortimer JA’s observation in Hai Ho Tak (being the name under which Wong King Lung proceeded on appeal) at p. 208 (lines 14-15) that HKBORO s. 11 “applies to only part of the immigration legislation and its application; that is to legislation governing entry, stay or deportation of persons with no right to enter or remain” similarly does not assist the appellants. That observation states the position accurately: not every decision of the Director falls within s. 11.

55. In Chieng A Lac, Keith J (as he then was) held that HKBORO s. 11 did not exclude the application of the BOR to detention under IO s. 13D(1) since such detention did not amount to the application of immigration legislation governing stay in Hong Kong (see p. 291B-E). The argument that was advanced, and was accepted by Keith J, was that s. 11 only applied to lawful stay under a condition of stay and not to unlawful stay. On appeal in Vo Thi Do & Ors v The Director of Immigration & Anor [1998] 1 HKLRD 729, being the name under which Chieng A Lac went on appeal, Litton VP, giving the judgment of the Court of Appeal, rejected that argument and instead (at p. 748F-H) agreed with the Director’s submission which was:

“… that the words ‘entry into, stay in and departure from Hong Kong’ in s.11 should be given their ordinary meaning. ‘Stay in Hong Kong’ means what it says, and includes stay in a detention centre on order of the Director made under s.13D(1) of the Immigration Ordinance (Cap.115).  Since the Vietnamese migrants are undoubtedly ‘persons not having the right to enter and remain in Hong Kong’ in terms of s.11, it follows that the [BOR] does not affect the power of detention under s.13D(1).”

Litton VP went on to say that s. 11 should not be given an artificial interpretation and that Keith J was not referred to Hai Ho Tak where the Court of Appeal appeared to have taken a broad view of s. 11 “as well”. Although Litton VP noted that the construction of s. 11 did not affect the result of the case, I am satisfied that this part of his judgment construing s. 11 constitutes a separate, independent reason for the Court’s decision and is therefore not merely an obiter dictum. I do not therefore consider that the appellants derive any assistance from the decision in Chieng A Lac.”

45. As to A (Torture Claimants), the Court in MA observed:

“56. Finally, the case of A (Torture Claimant) concerns the treatment of detainees in detention. The Court of Appeal held that because the power of detention under IO s. 32 had not been exercised under a sufficiently clear and certain policy, it violated the detainees’ rights under BOR5(1). I have already indicated that it is not necessary for the purposes of these appeals to decide if detention is an immigration decision governing a person’s entry into, stay in or departure from Hong Kong within HKBORO s. 11. However, it is right to note that the decision in A (Torture Claimant) may be difficult to reconcile with Vo Thi Do. Vo Thi Do was not cited in the judgment of the Court of Appeal in A (Torture Claimant), nor was reliance placed on s. 11 to preclude reliance on rights under the BOR. I do not therefore consider that A (Torture Claimant) assists the appellants in the present case as regards the construction of s. 11.” (Footnote omitted)

46. The omitted footnote was a footnote to the penultimate sentence of §56 and read:

“It is also to be noted that, in Ghulam Rbani v Secretary for Justice, unrep., DCCJ 531/2010 (13.10.11), Leung DJ declined to follow A (Torture Claimant) but instead held that he was bound by Ubamaka to hold that the effect of HKBORO s. 11 was to except IO s. 32 from the application of the BOR. Whether Leung DJ’s decision as to the application of the BOR to detention is correct or not is not one with which this judgment is concerned.”

47. Mr Dykes suggested in argument before us that the reference, in §43 of the judgment in MA, to “a decision to detain a person for some breach of an immigration condition” being arguably not covered by HKBORO s. 11 supported G’s case in this appeal.  For his part, Mr Anderson Chow SC,[21] for the Director, submitted that the difference highlighted in §43 of MA was an insufficient basis for drawing a distinction between those decisions which were caught by s. 11 and those which were not.  For his part, he invited us to follow Litton VP’s dictum in Vo Thi Do (see the extract from MA in §44 above) and to hold that detention under a provision of the IO was part of a person’s stay in Hong Kong and therefore caught by s. 11.

48. It suffices to say, by way of clarification, that the example given in §43 of MA of detention for breach of an immigration condition was not intended to relate to detention pending a decision whether to issue a removal order under s. 32(2A) and is not therefore determinative of the issue in this appeal.  That question was expressly identified and left open in MA (see §56 and the footnote to that paragraph quoted above).

49. The point left open in MA is of course now squarely before this Court and it is necessary to examine the basis on which G was detained in the present case.  As in MA, the issue before this Court is whether the particular decision falls on the side of the line to which HKBORO s. 11 applies.

50. G was detained pursuant to the powers conferred by IO s. 32(2A), which provides:

“(2A) A person may be detained pending the decision of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration as to whether or not a removal order should be made under section 19(1)(b) in respect of that person –

(a) for not more than 7 days under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration;

(b) for not more than a further 21 days under the authority of the Secretary for Security; and

(c)  where inquiries for the purpose of such decision have not been completed, for a further period of 21 days under the authority of the Secretary for Security, in addition to the periods provided under paragraphs (a) and (b).”

51. The power of detention under s. 32(2A) is to be contrasted with the powers of detention under ss. 32(3) and 32(3A) – which were the basis for the detention in A (Torture Claimant) – which respectively provide as follows:

“(3) 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.

(3A)  A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

52. In contrast to the power of detention under s. 32(2A), the powers of detention under ss. 32(3) and 32(3A) relate to detention after a deportation order or removal order has been made.  A further difference between the two powers of detention is that the period of detention under s. 32(2A) is a finite period (7 days, followed by a further 21 days, followed by a final period of 21 days) whereas the periods of detention that may be imposed under ss. 32(3) and 32(3A) are not prescribed.

53. In my view, the decision to detain under s. 32(2A) is a decision “governing entry into, stay in and departure from Hong Kong”.  That is because detention under s. 32(2A) is expressly for the purpose of enabling a decision to be made as to whether a removal order under IO s. 19(1)(b) should be made.  The powers of removal under IO s. 19 squarely govern a person’s departure from Hong Kong and the power of detention under s. 32(2A) is expressly for the purpose of enabling the Director to make a decision as to whether or not to issue a removal order under s. 19(1)(b).  The detention also serves the purpose of ensuring that any removal order that follows is not made in vain by reason of the person absconding.  Hence, although ancillary to it, the detention decision is intimately bound up with the decision whether to remove the person from Hong Kong and is no less part of the immigration decision-making process (in relation to departure from Hong Kong)[22] than a decision whether to impose a condition of stay prohibiting the taking up of employment whilst here (in relation to stay in Hong Kong, as in MA).  The detention decision in respect of G, a person not having the right to enter and remain here, was therefore an application of immigration legislation governing his departure from Hong Kong and thus excepted from the application of the BOR by reason of HKBORO s. 11.

54. In any event, the case of A (Torture Claimant) is, in my opinion, distinguishable from the present case by reason of the fact that a wholly-different statutory provision for the detention is engaged, which prescribes the period of detention and requires that the detention be for the express purpose of deciding whether or not to issue a removal order against the detainee.  Being distinguishable from the present case, A (Torture Claimant) was therefore not binding on the Judge below.

55. For these reasons, it therefore follows that I do not agree that the Judge was wrong not to hold that he was bound to follow A (Torture Claimant) and conclude that BOR5 could be invoked by G in respect of his detention under IO s. 32(2A).

Issue 3: Any better rights under BL?

56. G also relies on BL28 and BL35 which materially provide:

“28. The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

35. …

    Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

57. Mr Dykes contended that, if the Director’s argument on HKBORO s. 11 were correct, it would mean that G’s freedom from arbitrary detention or even torture under BL28 became a right guaranteed only in the Basic Law and not in the ICCPR as applied to Hong Kong.

58. He further submitted that it could not have been the intention of the Basic Law that the freedom from arbitrary detention or even torture could be abrogated by domestic legislation merely because the restriction is “in accordance with law”.  Instead, he submitted that the test for judging permissible restrictions on G’s rights under BL28 must “depend on the nature and subject matter of the rights in issue”: per Li CJ in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at §28. Applying that test, he submitted that it was impossible to conceive of permissible restrictions to BL28 rights as regards freedom from arbitrary or unlawful detention or freedom from torture.

59. The passage in Gurung Kesh Bahadur has, with respect, been taken out of context.  In §28 of the Court of Final Appeal’s judgment, Li CJ was addressing the question of whether rights found only in the Basic Law could be restricted.  The present case plainly does not concern such rights, since the relevant rights protected by BL28 are also protected by BOR5 (or ICCPR9).

60. As a matter of interpretation, it is clear that the Basic Law distinguishes between “Hong Kong residents” (see e.g. BL24, BL25, BL27) and “persons … other than Hong Kong residents” (BL41).  The rights conferred by BL28 and BL35 are expressly conferred on “Hong Kong residents” and therefore are not conferred, by those articles, on persons other than Hong Kong residents.

61. BL41 provides:

“Persons in the Hong Kong Special Administration Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.”

62. In the context of immigration law, in a series of first instance decisions, it has been consistently held that the enjoyment of rights by a non-Hong Kong resident under the Basic Law are subject to the provisions of the IO and HKBORO s. 11:

(1)    Santosh Thewe v Director of Immigration [2000] HKLRD 717 at 721D-722H;

(2)    Re Pasa Danaville Dizon, unrep., HCAL 97/2009, 11 September 2009, at §§7-8;

(3)    Li Nim Han & Anor v Director of Immigration [2012] 2 HKC 299 at §14;

(4)    Comilang Milagros Tecson & Anor v Commissioner of Registration & Ors, unrep., HCAL 28/2011, 15 June 2012, at §91.

63. Moreover, this Court has now held, in MA, that the phrase “in accordance with law” in BL41 includes the IO so that the provisions of that ordinance would be relevant in considering the extent of a Basic Law right for a non-resident.  See, MA at §§144-145, where it was held:

“144.  The appellants argue that BL41 limits the restrictions that can be imposed on non-residents’ rights since these can only be such as are “in accordance with law”.  As to this, the conclusions I have reached as to the proper construction of HKBORO s. 11 and the UK reservation to ICESCR6 mean that the ICCPR and ICESCR rights as applied to Hong Kong are restricted as regards non-residents.  The Court of Final Appeal has recognised that there is a difference as regards the fundamental rights and freedoms enjoyed by residents on the one hand and non-residents on the other and also whether such rights can be restricted by law: see Gurung Kesh Bahadur (supra) at §§28, 29 and 42.

145.  Furthermore, the phrase “in accordance with law” in BL41 means law including the IO so that the provisions of that ordinance would be relevant in considering the extent of the right under BL33 for a non-resident: see Re Pasa Danaville Dizon, unrep., HCAL 97/2009 (11 September 2009) at §8, Gurung Ganga Devi v Director of Immigration, unrep., HCAL 131/2008 (23 September 2009) at §27 and Comilang v Director of Immigration, unrep., HCAL 28/2011 (15 June 2012) at §91.”

64. Accordingly, it follows that Mr Chow’s submission that G cannot rely on BL41 to challenge his detention under IO s. 32(2A) must be accepted.

65. I also accept his submission in answer to Mr Dykes’ contention that acceding to the Director’s case means that the Basic Law, and in particular BL41, permits arbitrary and unlawful detention.  Whilst the construction of HKBORO s. 11 advanced by the Director means that G cannot, in relation to the detention orders made in this case, rely on BOR5, and has, in conjunction with BL39(2), the further consequence that his right to invoke BL28 or BL35 is qualified to that extent, it remains open to G to challenge the lawfulness of his detention under IO s. 32(2A) on the basis that it does not comply with the statutory requirements of that section or is otherwise contrary to the common law.

Issue 4: Power to detain under s. 32(2A)(c) after withdrawal of previous removal order?

66. Although raised in the notice of appeal as a ground of appeal, this argument was not addressed by Mr Dykes in his skeleton submissions.

67. As will be recalled, the facts of this case are that, whilst G was detained under s. 32(2A)(b), he lodged a CAT claim by letter dated 5 September 2005 which was received by the Immigration Department on 8 September 2005 and by the Removal Sub-division on 12 September 2005.  In the meantime, a removal order had been made on 10 September 2005, which crossed with G’s CAT claim.  The removal order was not served on G and was withheld then eventually withdrawn on 15 September 2005.

68. On 16 September 2005, after the withdrawal of the removal order, G’s further detention under IO s. 32(2A)(c) was authorised.  This was for a defined period of time, being a further 21 days, and for a specific purpose, namely for the Director to decide whether or not to issue a removal order against G under IO s. 19(1)(b).  That purpose was a proper one, since there was as at 16 September 2005 no removal order extant against G.

69. The Judge rejected the contention made on behalf of G that, once the original removal order was made, further detention could only be under IO s. 32(3A).  He held instead that, once the original removal order was withdrawn, the Secretary could revert to s. 32(2A) for the authority to detain G pending a decision as to whether a removal order should be made in view of the recently raised CAT claim.[23]

70. I respectfully agree.

Issue 5: Hardial Singh principles applicable to s. 32(2A) detention?

71. The applicability of the Hardial Singh principles[24] to detention under IO s. 32(2A) is raised by the Director’s supplemental respondent’s notice.

72. Those principles have recently been restated by the UK Supreme Court in Shepherd Masimba Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 at §12.  They may be summarised, in the context of Hong Kong’s immigration legislation, as follows:

(1)    The Director (or Secretary) must either intend to remove (or deport) the person or intend to make a decision as to whether or not to do so and can only use the power to detain for that purpose;

(2)    The person who may, or is to, be removed (or deported) may only be detained for a period that is reasonable in all the circumstances;

(3)    If, before the expiry of the reasonable period, it becomes apparent that the Director (or Secretary) will not be able to reach a decision as to whether to remove (or deport) or to effect removal (or deportation) within that reasonable period, he should not seek to exercise the power of detention;

(4)    The Director (or Secretary) should act with reasonable diligence and expedition to make the decision whether to remove (or deport) or to effect removal (or deportation).

73. It was submitted by Mr Chow that the Hardial Singh principles do not apply to the powers of detention under IO s. 32(2A) which are subject to express time limits.  I do not, however, accept that those principles are necessarily restricted only to the exercise of a power of detention which is not expressly subject to limitation on duration. Were it otherwise, there would be no legal restraint on a legislative power of detention for a defined (as opposed to open-ended) period of time which was unreasonably long.

74. On the other hand, since the periods of detention permitted to be authorised under IO s. 32(2A) are strictly defined and of limited duration, there is clearly less (if, indeed, any) scope for the invocation of the Hardial Singh principles. Moreover, the purpose of the detention under s. 32(2A) is expressly directed to be in order for the Director to reach a decision as to whether or not to issue a removal order against the person detained.

75. The Judge made no finding that G’s detention in the present case contravened the Hardial Singh principles.  Instead, he indicated that he thought this was “arguable on the evidence” but that, in light of his conclusion that the power of detention under IO s. 32(2A) was not unlawful by reason of BOR5, he considered that the application of the Hardial Singh principles “[did] not arise for a conclusion”.[25]

76. In my view, and with respect, it was necessary to reach a conclusion on the issue of whether G’s detention was compliant with the Hardial Singh principles.  As indicated above, although HKBORO s. 11 precludes reliance by G on the provisions of BOR5, it does not follow that he is without any legal redress for arbitrary or unlawful detention.  If his detention were in breach of the principles in Hardial Singh, I would hold that he would be entitled to a legal remedy for such breach.

77. However, on the facts of the present case, I do not consider that G’s detention from 23 August 2005 to 7 October 2005 was contrary to the Hardial Singh principles.  As already noted above, G’s detention was expressly stated to be for the purpose of the Director determining whether or not to issue a removal order against him pursuant to IO s. 19(1)(b).  The period of detention was strictly limited and was for 7 days, 21 days and a further 21 days respectively. In the circumstances, the duration and purpose of the detention being specifically identified in accordance with the statutory power, I am satisfied that there was no contravention of the Hardial Singh principles in respect of G’s detention.

Issue 6: Causation of damage established?

78. This issue arises out of the Director’s cross-appeal relating to the issue of damages.  The Judge held that, if liability had been established, he would have awarded G the sum of $30,000 by way of compensatory damages for the tort of false imprisonment.  It was the Director’s contention that, even if liability were established, G should only have been entitled to an award of nominal damages.

79. The starting point in the Director’s analysis was that, even if his detention were found to be in breach of BOR5, it was still necessary for G to prove a causal link between the non-compliance with the requirements of BOR5 and his detention.  I did not understand this proposition to be disputed by Mr Dykes and it is clear that the Judge below proceeded on the basis that G did have to prove a causal link between the breach of BOR5 and his loss of liberty.[26]  This is consistent with the conclusion in Raju Gurung v The Secretary for Security & Anor, unrep., HCAL 5/2009, 21 August 2009 at §§61-64, although in that case Saunders J went further and held that the failure to establish the relevant causal link would lead to the claimant failing on the issue of liability, a conclusion which Mr Chow did not seek to advocate in this appeal.

80. Mr Chow did submit, however, that if the person detained would have been lawfully detained, either because he would have been detained in any event if the proper procedures that should have been followed were in fact followed or because he would have been detained in any event under some other alternative power of detention, then he would only be entitled to nominal damages for the tort of false imprisonment.

81. In support of this contention, Mr Chow relied on two recent decisions of the UK Supreme Court, namely R (WL (Congo)) v Home Secretary [2011] 2 WLR 671 and Shepherd Masimba Kambadzi v Secretary of State for the Home Department (supra).

82. In (WL (Congo)) (also referred to as R (Lumba and Mighty) v Secretary of State for the Home Deparment), the Secretary of State was held liable to the appellants in the tort of false imprisonment on the ground that she unlawfully exercised a statutory power to detain them pending deportation because she applied an unpublished policy which was inconsistent with her published policy.  The appellants were held to be entitled to nominal damages only because, if the Secretary for State had acted lawfully and applied her published policy, it was inevitable that both appellants would have been detained.

83. In Shepherd Masimba Kambadzi, decided subsequently to (WL (Congo)), the Supreme Court followed (WL (Congo)) on the issue of causation and nominal damages, see per Lord Kerr at §§88-89 where he said:

“88. The majority in [Lumba], has held that causation is not a necessary ingredient for liability. In that case the argument on behalf of the detained persons was put in this way: a public law error that bears directly on the decision to detain will mean that the authority for detention is ultra vires and unlawful, and will sound in false imprisonment. That argument was accepted by the majority of the court in Lumba. The public law error in the present case bore directly on the decision to detain in that it was made without the necessary review of the justification for detention.

89.   As the majority in Lumba also held, however, causation is relevant to the question of the recoverability of damages.  For the reasons that I gave in my judgment in that case, I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable.”

84. On the basis of these cases, Mr Chow invited the Court to ask the question whether it was shown, on a balance of probabilities, that G would have been detained if there had been a published policy which was lawful.  The answer to that question was, he submitted, yes.

85. However, I do not think this is the correct question to ask.  The basis of G’s complaint in the present case is the Director’s exercise of power under IO s. 32(2A) in the alleged absence of a published policy making the exercise of that power consistent with BOR5.  Assuming, for present purposes the applicability of BOR5, the question that arises is whether, on a balance of probabilities, G would have been detained in any event if the power to detain under s. 32(2A) had not been exercised given the absence of a BOR5-compliant policy.

86. In other words, there is no basis in the present case for assuming the existence of a BOR5-compliant policy in respect of the power to detain under s. 32(2A).

87. The position would be different if, as in (WL (Congo)) there was in fact another policy in existence which could have been lawfully applied so as to lead to the detention in any event.  But that is not the case here since there is simply no evidence of a published policy concerning the power of detention under s. 32(2A).

88. Nor is there any other statutory power other than s. 32(2A) to which the Director could point which would provide an alternative lawful basis for detaining G.

89. I do not therefore accept that the Judge erred in holding (at §108) that notwithstanding the fact that the background of G, including his previous criminal convictions in Hong Kong, would suggest that his detention would have been reasonable and appropriate, these matters did not destroy the causal link for the purposes of establishing more than nominal damages.

90. The Judge held:

“109. As there is nothing to show that G would have in any event been lawfully detained during the period of his actual detention, I am satisfied that he has discharged his burden to prove the causal link between the breach of Art.5(1) of the HKBOR and his detention. In my judgment, but for his failure to establish liability, G would have been entitled to more than nominal damages.”

91. I would respectfully agree.

92. Had there been an unpublished policy which would have rendered the s. 32(2A) detention power BOR5-compliant (assuming it was not), which might have been applied so that G would have been lawfully detained in any event, or had there been some other power of detention that could have been lawfully exercised, the position would be different.  But in that event, there would, in my judgment, be an evidential burden for the Director to demonstrate the inevitability of the detention by reason of the application of that unpublished policy or other power of detention.

93. For these reasons, I would dismiss the Director’s cross-appeal.  It follows that it is not necessary to examine the factual basis on which it is contended, on behalf of the Director, that G would not have been released from detention before 7 October 2005 in any event.  Further, since that factual basis is particular to G, no useful guidance would be served by our analysing it in this judgment.

Conclusion

94. For the above reasons, I would dismiss this appeal and the cross-appeal.

95. As to costs, it would seem appropriate that these follow the event and I would therefore make an order nisi that G pay the Director’s costs of the appeal and the Director pay G’s costs of the cross-appeal.  For the assistance of the taxing master, I would also make a direction, on a nisi basis, apportioning the time of the hearing of the appeal before us between the appeal and cross-appeal in the ratio of 2:1.  G’s own costs will be taxed in accordance with the Legal Aid Regulations.

Hon Cheung CJHC:

96. Accordingly, the Court makes the orders disposing of the appeal and cross-appeal as set out in paragraphs 94 and 95 above.