HKSAR v. ASIF MUHAMMAD

HCMP 1409/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1409 OF 2009

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DECISION FOR REFUSAL OF BAIL

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Introduction

1.  This is a bail application by an illegal immigrant which typifies the problems that the courts are confronted with on a regularly basis.  The applicant has been illegally in Hong Kong for almost 21 years and has from all appearances played the system by sequential applications for asylum or protection.  The seriousness and prevalence of cases of this type were recently discussed by Macrae JA, giving the judgment of the court, in HKSAR v Mahabul Alam Khan, CACC 116/2016, 8 September 2017, unreported. 

The case background

2.  The applicant is a Pakistani national.  His name on the papers is Asif Muhammad but he is also known as Ch Sohil Ahmad and Chaudhry Sohail Ahmad.  It appears that back in 1996 he came to Hong Kong but breached his condition of stay for which he was convicted on 21 September 1996 and fined $2,000, in default 7 days’ imprisonment.  It seems he never left Hong Kong because some 9 years later on 14 July 2005, he was again convicted for breach of condition of stay and was sentenced to 6 months’ imprisonment.  These offences were contrary to section 41 of the Immigration Ordinance, Cap 115.

3.  The case does not end there, because on 16 June 2009 the applicant was arrested by the police after he could not provide an identity document.  Following further inquiries, he was charged with remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.  In a cautioned interview, he stated that he was born in Pakistan and came to Hong Kong illegally in 2007 by boat from Shenzhen.  He said that his life was in danger in Pakistan and he did not want to go back.  He said that he had applied for asylum protection from the United Nations High Commissioner for Refugees (UNHCR).  What he did not mention was that the UNHCR had closed his case on 8 June 2007.  On 16 July 2009, he wrote to the UNHCR, requesting that his case be reopened.  His request was reviewed and declined on 29 July 2009.

4.  The applicant appeared in the Magistrate’s Court in relation to the immigration offence and was remanded in custody.  After two unsuccessful applications for bail in the High Court on 29 July and 13 August 2009, he eventually was granted bail on 3 November 2009.  Conditions for bail were imposed, which included that he reside at a particular address, that he obey a curfew from 12 am to 6 am and that he report three times a week to Mongkok police station. 

5.  It appears that after his request to reopen his application for asylum protection had been declined, the applicant made a torture claim on 21 July 2009 with the Immigration Department which was subsequently refused by the Director of Immigration.  He appealed this decision on 8 October 2010.  The appeal was dismissed on 9 February 2011. 

6.  The applicant’s torture claim was made under Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires, amongst other things, that the HKSAR will not expel or return a person in respect of whom there are substantial grounds for believing that he or she will be in danger of being subjected to torture. 

7.  As a result of his torture claim, the proceedings against him for illegally remaining were adjourned from time to time pending the outcome of his claim.  The case was last fixed for hearing in the Magistrate’s Court on 16 February 2011, but the applicant failed to attend. An arrest warrant was issued against him.  I am informed that the applicant had previously attended his various court dates but it was when his appeal against the refusal of his torture claim was unsuccessful that he failed to attend court. 

8.  Over 6 years later, on 23 March 2017, the applicant was arrested when he failed to provide any identity document when stopped by the police.

The current proceedings

9.  On 25 March 2017, the applicant was brought before the Magistrate’s Court on the original immigration offence of illegally remaining (Charge 1) together with an additional offence of failing to surrender to custody as appointed, contrary to sections 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 2).  A request by the prosecution for plea to be taken in relation to the offences was met by an application from the applicant for an adjournment of his case in order for him to lodge a further appeal against the refusal of his torture claim.

10.  Instead, there followed an application by the applicant for a non-refoulement claim on 27 March 2017.  I am informed that the claim is currently being processed.  Since 3 March 2014, claims for non-refoulement protection in relation to the risk of being subjected to torture, Cruel, Inhuman or Degrading Treatment or Punishment (CIDTP) and persecution are processed using the united screening mechanism.  This permitted the applicant to make an application on all applicable grounds except torture which had been previously refused.

11.  The applicant next appeared in the Magistrate’s Court on 31 March 2017 and an application for bail was refused.

12.  On 24 April 2017, the applicant pleaded guilty to Charge 2 and applied for the sentencing of that offence to be adjourned pending the outcome of Charge 1.  The adjournment was granted. 

13.  There have been numerous appearances before the Magistrate’s Court in relation to the applicant’s case, where the applicant on most of those occasions applied for bail which were refused.  The applicant intermittently applied for bail before this Court on 13 July 2017 and 31 August 2017 which were also refused.  The present application for bail is his third before this Court.  

14.  On 25 September 2017, the applicant appeared before the Magistrate’s Court where his sentence in relation to Charge 2 was adjourned as he indicated that he wished to seek legal assistance from a lawyer.  The applicant’s case was adjourned to 20 November 2017 for mention of Charge 1 and for sentence of Charge 2. 

The likely penalties on the charges

15.  On Charge 1 of illegally remaining the usual sentencing guideline is 15 months’ imprisonment after a guilty plea where the circumstances of the case involved the offender remaining unlawfully after entering Hong Kong illegally.  See R v So Man-king and Others [1989] 1 HKLR 142; AG v Ng Kin-hung and Others [1991] 1 HKLR 81; and HKSAR v Lee Chiu-yui [2015] 1 HKC 323 where successively higher starting points should be adopted for repeat offenders. 

16.  On Charge 2 of failing to surrender to custody, an offender is liable on summary conviction to a fine of $75,000 and to imprisonment for 6 months.  See HKSAR v Law Ying Kam, CACC 183/2015, 20 October 2015, unreported, per Macrae JA. 

17.  As I said at the outset of this decision, the applicant has by all appearances played the system in his efforts to remain in Hong Kong and avoid the legal processes.  When he was arrested in relation to Charge 1 in 2009, having failed to resurrect his asylum application, he made a torture claim which was eventually rejected.  When he was arrested more recently in March 2017, he made a non-refoulement claim.  He has already had his applications rejected as an asylum seeker and a torture claimant.  The timing of his applications seem to coincide with his apprehension by the authorities. 

Guiding principles for bail

18.  In deciding whether to grant bail, guidance has been provided by the legislature in section 9G(2) of the Criminal Procedure Ordinance, where it provides that the court may have regard to the following matters:

“(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

(b) the behaviour, demeanour and conduct of the accused person;

(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

(d) the health, physical and mental condition and age of the accused person;

(e) the history of any previous admissions to bail of the accused person;

(f) the character, antecedents and previous convictions, if any, of the accused person;

(g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

(h) any other thing that appears to the court to be relevant.”

19.  As is apparent from this section, the matters a court can consider on the question of bail are quite broad and focus on the nature of the offence, the risk of danger that the defendant poses to the public, and the likelihood that the trial could be affected by the defendant absconding or influencing a witness. 

The application for bail

20.  The applicant has confirmed that he left Pakistan in 1996.  He said that for a short period in 2006 he returned to Pakistan but came back to Hong Kong through China in the same year.  I note that in his caution statement he said he returned to Hong Kong illegally in 2007.  Accordingly, he has in effect been away from Pakistan and in Hong Kong for about 21 years.  

21.  As pointed out by Mr Charles Lee, for the respondent, the applicant only made his non-refoulement claim after his re-arrest and not at the earliest opportunity as one would expect if the claim was genuine and with merit.  It does put into question the merits of his non-refoulement application.  This is a matter that can quite properly be taken into account when deciding whether to grant bail.  See HKSAR v Vu Thang Duong [2015] 2 HKLRD 502, at paragraph 24. 

22.  Mr Lee also points out that the evidence against the applicant in relation to Charge 1 is strong, based on documentary evidence and the applicant’s clear admission.  Upon conviction for this offence after trial the applicant is likely to receive a substantial term of imprisonment. 

23.  I agree with Mr Lee that the applicant poses as a real risk of not abiding by his conditions of bail as evidenced by his current conviction for failing to surrender to custody.  Moreover, due to his lack of local ties and connections here in Hong Kong, it would be very difficult for the authorities to locate him.  On the last occasion, it took the authorities over 6 years before they caught up with him.  

24.  The difficulty I have in this case is that the applicant when he was first arrested in relation to Charge 1 on 16 June 2009 was detained in custody until 3 November 2009.  This was a period of about 4½ months.  As at today’s date, the applicant has been in custody since his re-arrest on 24 March 2017.  A period of about 6½ months.  This means that he has been in custody for about 11 months, so he has already spent a substantial period of time in custody, and close to serving a likely prison sentence upon conviction, depending on whether it is after plea or trial, on Charge 1 and the sentence on Charge 2 for which he has already pleaded guilty. 

25.  In the present case, the evidence against the applicant for illegally remaining is strong and includes a full admission from the applicant.  I am informed by the applicant that he admitted his guilt to the police and wished to plead guilty to the immigration offence but it was at the behest of the prosecution that his plea was not taken.  There appears to be some truth in this.  Initially, the prosecution asked that a plea be taken from the applicant in relation to the two charges.  However, the applicant sought and was granted an adjournment of the proceedings during which he filed a non-refoulement claim.  This then resulted in the prosecution invoking its policy of placing the immigration offence in abeyance pending the outcome of the applicant’s claim.   

26.  As I have discussed in Vu Thang Duong, the prosecution policy when dealing with a non-refoulement claimant who has been charged with an immigration offence is to adjourn his case until his claim and all appeal procedures have been concluded.  I pointed out in that decision that this could, and usually does, take a long time, and at the end of the process, the policy is to drop the immigration offence if the claim is approved, or to consider the merits of the case if it is rejected.  I also pointed out that the policy does not address the issue of bail pending resolution of the claim.  This policy, or the lack of it, has placed an unbearable burden on the courts because of the continual adjournments of the case by the prosecution where at the same time it also opposes the grant of bail to the defendant concerned.  The uncertain status of the case makes it very difficult for the courts to address the issue of bail in such circumstances.

27.  My concerns in the present case are two-fold. 

28.  The first is that the applicant is close to having served the likely prison sentence following conviction of the two charges.  The case against him on Charge 1 is very strong and he informs me that he wishes to plead guilty to it.  I have already mentioned the sentencing guideline cases where he would likely receive a sentence upon conviction for the two offences of between 18 to 21 months’ imprisonment.  This is a rough estimate and subject to a sentencing court’s appraisal of the circumstances of the offence and the offender.  The applicant so far has been in custody for about 11 months and taking into account the one third remission for good behaviour, he is not far from having served the likely sentence for these offences. 

29.  The second is that if the applicant is released on bail, no matter the stringency of the conditions, there is a risk he will “go to ground” as he has in the past.  This is due to the prosecution policy of placing his case in abeyance pending the outcome of his non-refoulement claim and the length of time that it takes the authorities to process the claim.  I am informed that a screening interview for his non-refoulement claim has yet to be arranged for various reasons but it means that the claim could be outstanding and unresolved for some time.  Even if I was to direct that the relevant authorities expedite the process of his claim, it still remains that an unfavourable decision could be the subject of appeal or other action, and the prosecution policy is that the case is placed in abeyance until all appeal procedures have been concluded.  Such is the unsatisfactory and paradoxical situation that the courts have to unravel in order to properly decide bail applications of this type. 

30.  There is a catch to all of this, which is that if the decision of the non-refoulement claim is favourable, the prosecution policy dictates that the immigration offence would not be proceeded with.  This would result in the applicant’s immediate release from custody even taking into account the time served for any penalty on Charge 2.  It is for this reason that I have made some assessment of the overall history and circumstances of the present case as well as taking into account the past rejection for asylum and torture protection in order to arrive at my decision on the question of bail. 

31.  In the circumstances of this case, there is a real risk that the applicant would fail to surrender to custody as the court may appoint, notwithstanding the imposition of conditions on bail.  I will therefore refuse bail at this stage.  However, if the applicant is still in custody, he is at liberty to bring on an application for bail before me in two months’ time which should coincide approximately with the applicant having served the likely sentence that would be imposed upon him in relation to the two charges.