STEWART MARCUS JONATHAN v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 256/2022

[2025] HKCFI 595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 256 OF 2022

________________________

________________

______________

D E C I S I O N

______________

A. Introduction

1.  The Applicant is an American national, who formerly had status as a Hong Kong permanent resident (“HKPR”). However, he lost that status owing to the fact that he had been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resided in Hong Kong. He nevertheless retained his right to land in Hong Kong.

2.  On 16 March 2021, the Applicant was sentenced to imprisonment for a period of two years and two months, upon his conviction in Hong Kong of the offence of ‘trafficking in a dangerous drug’, to which he had pleaded guilty.

3.  Following discharge from prison on 7 March 2022, the Applicant was detained at Castle Peak Bay Immigration Centre, until he was released on recognizance on 18 May 2022.

4.  In the meantime, on 18 March 2022, the Secretary for Security (“Secretary”) decided to make a Deportation Order against him (“Decision”). The Decision was made with the input of the Director of Immigration (“Director”).

5.  By Form 86 dated 22 April 2022, the Applicant sought leave to apply for judicial review, to challenge the Decision. The Secretary and the Director are named as the putative respondents to the intended challenge.

6.  On 27 April 2022, I gave directions for the Secretary and Director to file and serve an Initial Response to the application by 1 June 2022, for the Applicant to have leave to file and serve any Reply by 17 June 2022, and to fix the hearing for 10am on 21 July 2022. The Initial Response was filed on 1 June 2022, together with certain annexes. No Reply was filed by the deadline of 17 June 2022.

7.  At the hearing on 21 July 2022, the Applicant appeared in person, but informed me that he had made an application for legal aid. Though the Court had not received any formal notice of that application, it seemed to me that the fair course was to adjourn the hearing to a new date. There and then, I fixed the new hearing for 10am on 29 September 2022 (with a view to permitting time for the legal aid application to be considered, and for the Applicant to take any relevant legal advice with the benefit of any Legal Aid Certificate or, if necessary, from solicitors privately instructed).

8.  The application for legal aid was rejected on 14 September 2022. But the Applicant appealed on 22 September 2022, with an appeal date fixed for 20 January 2023. I therefore vacated the fixed hearing, and directed the Applicant to notify the Court and the Department of Justice within two days of the decision on the legal aid appeal.

9.  Matters then went quiet, until 17 September 2024, when the Applicant filed an affirmation setting out his intended grounds for judicial review with submissions. Notably, this document was filed more than two years since the original Form 86 and the deadline set for any Reply to the Initial Response.

10.  It can also be noted that on 24 September 2024, the Director of Legal Aid sent a memo to the Registrar of the High Court stating that an application for legal aid appeal was pending, and seeking an updated index of documents for the court file in these proceedings. It seems from my enquiries that the legal aid appeal was later heard and dismissed on 5 December 2024.

11.  In the meantime, I re-fixed the hearing for the morning of 14 November 2024. Because of a typhoon signal T8, the morning hearing was automatically adjourned to the afternoon at 2:30pm. Nevertheless, the Applicant failed to appear at the hearing, despite some time spent waiting for him, and attempts to contact him by phone on the number provided by him were not successful. Therefore, the hearing went ahead in his absence.

12.  The Secretary and Director were represented at the hearing by Ms Angel Zhi, Government Counsel (who adopted the materials already filed for the Secretary and the Director). Notwithstanding the Applicant’s absence, I asked Ms Zhi to address me on one point potentially arising from the Applicant’s late affidavit.

13.  At the end of the hearing, I reserved my decision as I wished to consider that point further. However, on 28 November 2024 (and without explaining the two-week delay), the Applicant wrote to the Court saying that the hearing did not proceed, and asking the Court to restore the hearing. As pointed out above, the hearing did in fact proceed in accordance with the standard directions applicable when Court business is interrupted by a typhoon signal – and after waiting and attempts to contact the Applicant on that day had proved unsuccessful. Therefore, and in addition as a result of the matters explained below, I see no good reason to hold another hearing.

14.  This is my Decision.

B.  Further Background

15.  The Applicant was born in Hong Kong on 14 March 1984, to his parents who have HKPR status. His dependant visa was approved on 6 October 1994. On 16 January 1998, he acquired unconditional stay in Hong Kong. On 6 March 1998, he became a HKPR.

16.  On 20 August 2012, the Applicant departed from Hong Kong, and thereafter was absent until his return to Hong Kong on 18 January 2019.

17.  On 8 May 2019, the Applicant applied for replacement of his Hong Kong Identity Card. On 14 August 2019, the Director assessed that the Applicant had lost his HKPR status owing to the fact that he had been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resided in Hong Kong. However, the Applicant retained his right to land in Hong Kong pursuant to the provisions of section 2AAA of the Immigration Ordinance Cap 115 (“Ordinance”).

18.  On 16 March 2021, the Applicant was convicted and sentenced to 2 years and two months’ imprisonment. The period of imprisonment ended on 7 March 2022.

19.  Whilst serving his imprisonment, the Applicant was interviewed by an officer of the Immigration Department on 7 June 2021. The purpose of the interview was to notify the Applicant of the Director’s intention to apply for a Deportation Order against him, pursuant to section 20(1)(a) of the Ordinance. He was provided with the Notice of Consideration of Deportation and the accompanying Explanatory Note. The Notice specifically invited the Applicant to make representations, if he wished, in relation to the proposed application for a Deportation Order and/or the effect of such a Deportation Order (if made) on the applicant or his family members.

20.  Though the Applicant apparently refused to sign those documents to acknowledge receipt, on the same day he nevertheless wrote and signed a document to explain his grounds against deportation, as:

I Stewart Marcus Jonathan, object to the deportation order, because I was born in Hong Kong and I want to stay in Hong Kong.

21.  Further, the Applicant instructed solicitors, who wrote a letter of representations dated 18 January 2022, the material parts of which are as follows:

We have been instructed to make representations to your good department regarding this matter. We are writing today for your department to consider not issuing a deportation order against Mr. Stewart based on the following grounds:

(a) Mr Stewart was born, raised and educated in Hong Kong;

(b) He had the right of abode in Hong Kong, but due to the studies in the United States of America, he lost his right of abode in Hong Kong on his arrival back in Hong Kong and instead he was given a right to land;

(c) Mr Stewart’s whole family has lived in Hong Kong and his elder brother is a Hong Kong permanent resident and has been running a business in Hong Kong for over 10 years. He is willing to fully support Mr Stewart for his rehabilitation after his release from prison;

(d) Mr Stewart is currently engaged, and his fiancé is a Hong Kong permanent resident. Both of them intend to get married after his release and start a family here in Hong Kong. He will reside with his fiancé upon his release from prison. His fiancé is ready to stand surely for his application and willing to provide any supporting documents, should you require that;

(e) Mr Stewart has secured a job after Unipac Properties Limited, and the company has offered him the position of project organizer (please see the attached job letter for your easy reference).

(f) Mr Stewart has also been offered the position of an honorary basketball team coach on a voluntary basis to provide coaching services to ADHD children (Please see the attached job letter for your easy reference);

(g) Prior to this conviction, Mr. Stewart has been an exemplary citizen and had a clear record. He pleaded guilty to the charge and expressed his remorse at the time of his sentence. He is aware of the gravity of his mistake and undertakes not to repeat any such mistake again in future.

(h) Mr. Stewart has applied to insitutions in Hong Kong to enroll in personal training qualification course. He has worked as personal trainer in the past and it has been his life long passion to become a professional in the field;

(i) Mr Stewart undertakes to refrain from any criminal activity;

(j) Mr Stewart poses no threat to the community;

(k) Mr Stewart is willing to undergo some supervision by your department after his release from prison and accepts if he has to follow any conditions imposed on him after his release that will help towards his rehabilitation; and

(l) Mr Stewart undertakes to comply with any other conditions the Director deems necessary in these circumstances.

(m) Mr. Stewart has considered Hong Kong his home all his life and he wishes to continue calling Hong Kong his home in future. We request you to consider his application favourably on compassionate grounds.

22.  On 8 March 2022, a memo was sent from the Director to the Secretary making an application for a Deportation Order against the Applicant. The Recommendation made was as follows:

2. The Director of Immigration considers the continued presence of Mr Stewart in Hong Kong to be undesirable. The Commissioner for Narcotics has no comment to the proposal of making a deportation order against Mr Stewart. The Commissioner of Police has no objection to the deportation of Mr Stewart and considers that his departure would be conductive to the public interest. The Director of Immigration has confirmed that the offence, of which Mr Stewart has been found guilty, is punishable with imprisonment for not less than two years. It is therefore recommended that Mr Stewart be deported for life. The Permanent Secretary for Security will be asked to consider whether a deportation order should be made under section 20(1)(a) of the Immigration Ordinance, Cap.115.

23.  The attachment to the memo included the following:

REPRESENTATIONS ON DEPORTATION

1. Mr Stewart has been informed of the intended deportation and a Notice of Consideration of Deportation was served on him on 7 June 2021 (Appendix I). On the spot, he raised objection against deportation as he was born in Hong Kong and he wanted to stay in Hong Kong (Appendix II).

2. Mr Stewart submitted a written representation, through his legal representative, on 18 January 2022 objecting to deportation order with following grounds provided (Appendix III):

(a) Mr Stewart was born and raised in Hong Kong. He acquired the right to land in Hong Kong after his return from his studies in the United States of America;

(b) Mr Stewart’s elder brother is a HKPR and is running a business in Hong Kong. He is willing to fully support Mr Stewart for his rehabilitation;

(c) Mr Stewart’s fiancée is a HKPR and they intended to get married after his release from prison and start a family in Hong Kong;

(d) Mr Stewart had secured a job offer as a project organizer in a local company;

(e) Mr Stewart had been appointed as an honorary basketball team coach on a voluntary basis to provide coaching services to ADHD children;

(f) Mr Stewart had enrolled in personal training qualification course in local institutions. He worked as a personal trainer in the past and he was passionate in becoming a professional in this field;

(g) Mr Stewart had a clear criminal record prior to his current conviction and posed no threat to the community. He was remorseful to his wrongdoings and promised to refrain himself from any criminal activities in the future;

(h) Mr Stewart was willing to undergo any supervision and comply with any condition by the Immigration Department deemed necessary; and

(i) Mr Stewart had considered Hong Kong as his home. He wished the Immigration Department not to issue a deportation order against him on compassionate grounds.

3. Mr Stewart further submitted copies of the following documents in support of his representation (Appendix IV):

(a) Mr Stewart’s employment contract from a local company; and

(b) Mr Stewart’s appointment letter as an honorary basketball team coach from a local foundation.

REMARKS/MITIGATING FACTORS

1. According to records, Mr Stewart was born on 14 March 1984 in Hong Kong to his HKPR parents, Mr James Marvin STEWART JUNIOR and Madam Lynda Faye STEWART. Mr Stewart was approved dependant visa on 6 October 1994. He acquired unconditional stay in Hong Kong on 16 January 1998, and subsequently acquired the right of abode in Hong Kong on 6 March 1998 under paragraph 2(d) of Schedule 1 to the Immigration Ordinance, Cap. 115 (“the Ordinance”).

2. In light of Mr Stewart’s long absence from Hong Kong, the Right of Abode Section (“ROAS”) had made an assessment on his eligibility for right to abode in August 2019. On 14 August 2019, it was concluded that he had been absent from Hong Kong for a continuous period of not less than 36 months and had lost his permanent resident status under paragraph 7(a) of Schedule 1 to the Ordinance. Nevertheless, he still enjoyed the right to land in Hong Kong by virtue of section 2AAA of the Ordinance.

3. Records revealed that Mr Stewart’s father, Mr James Marvin STEWART JUNIOR, was approved employment visa on 6 October 1994. He acquired unconditional stay in Hong Kong on 16 January 1998, and subsequently acquired the right of abode in Hong Kong on 6 March 1998. Mr Stewart’s mother and two siblings, Madam Lynda Faye STEWART, Madam Charrise Lynn MATHEW and Mr James Marvin STEWART III, were approved dependant visa on 6 October 1994. They acquired unconditional stay in Hong Kong on 16 January 1998, and subsequently acquired the right of abode in Hong Kong on 6 March 1998.

4. In making the recommendation for Mr Stewart’s deportation, the Director of Immigration (“the Director”) has taken into account the representations made by him. The Director is aware that Mr Stewart’s HKPR brother and fiancée are in Hong Kong, and notices that he was born in Hong Kong and he had acquired the right to land in Hong Kong since 2019. However, the Director believes that Mr Stewart, being an able-bodied adult, should not have any undue hardship in re-establishing himself in the United States of America. The circumstances that the deportation of Mr Stewart may deprive him of his proximity to his family members in Hong Kong have also been carefully considered. The Director opines that Mr Stewart’s family members are free to visit or reunite with him outside Hong Kong if they wish to do so.

5. The Director considers that the offence committed by Mr Stewart is serious in nature, and that it will not be in the public interest to allow him to remain in or come to Hong Kong again. After careful consideration of all the circumstances, the Director recommends that Mr Stewart be deported for life on the basis of his criminal conviction in Hong Kong.

24.  On 18 March 2022, after considering all the circumstances, the Secretary made the Decision, making the Deportation Order against the Applicant. The Deportation Order was made pursuant to section 20(1)(a) of the Ordinance.

C.  Grounds of Intended Challenge

25.  In order to obtain leave to apply for judicial review, it is incumbent on the Applicant to demonstrate that he has arguable grounds of review with a reasonable prospect of success. Indeed, it is one of the mandatory requirements of Rules of the High Court Order 53 rule 3(2) that the Form 86 contain a statement of the relief sought and the grounds on which it is sought.

26.  But, the Form 86 did not identify any grounds of intended review. Nor did the Applicant’s affirmation dated 22 April 2022, filed in support. Ordinarily, the failure to state grounds of intended review is itself fatal to an application for leave to apply for judicial review.

27.  I acknowledge that, some two and half years later, the Applicant filed his further affidavit in which he sought to advance grounds for leave for judicial review. However, judicial review is not some rolling process where compliance with the mandatory rules can occur informally and in dribs and drabs. Whilst the Applicant acts in person, and has been seeking legal aid for legal representation, the rules nevertheless still apply.

28.  That said, the further affidavit did seek to advance grounds for leave, and one of the arguments put forward is potentially arguable.

29.  It is against those background and procedural matters that I deal with the application.

D.  The Merits of the Intended Challenge

30.  Despite the failure to identify in the Form 86 any grounds of review, I shall also consider the circumstances of the Decision – in the context of the typical judicial review grounds.

31.  A Deportation Order may be made against an immigrant, if the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years: see section 20(1)(a) of the Ordinance.

32.  An “immigrant” is defined in section 2 of the Ordinance to mean a person who is not a HKPR. The definition is clear, and therefore includes the Applicant, notwithstanding that he retained the right to land. It is not reasonably arguable to suggest that the definition of “immigrant” in section 2 might somehow encompass a person who is not a HKPR but retains the right to land.

33.  The offence of ‘trafficking in a dangerous drug’, of which the Applicant was convicted, is an offence punishable with imprisonment for not less than two years: see section 4(3) of the Dangerous Drugs Ordinance Cap 134.

34.  Therefore, the Decision made by the Secretary was prima facie in accordance with the law.

35.  The Applicant was notified of the Director’s intention to apply for the Deportation Order against him, and he was invited to raise objections, if he wished. On the same day as the notification, the Applicant was able to raise, and did raise, his objection. He also subsequently instructed solicitors, who made further written representations on his behalf. It is clear from the documents evidencing the internal considerations of the Director and the Secretary, that the particular circumstances and facts and matters canvassed by the Applicant’s solicitors (which also repeated the matters raised by the Applicant himself) were taken into consideration in the making of the Decision.

36.  There was no arguable procedural irregularity in the decision-making process.

37.  As the Applicant’s solicitors made representations saying on compassionate grounds that the Deportation Order should not be made. It is settled that the Secretary is under no legal obligation to take into account humanitarian or compassionate circumstances. Nevertheless, the Secretary did in fact take into account those circumstances identified on behalf of the Applicant. In doing so, it is also well-established that it was for the Director and the Secretary to decide how much weight to be put on those factors – subject to interference by the Court only on public law grounds of procedural unfairness, irrationality or Wednesbury unreasonableness.

38.  In this instance, there was no procedural unfairness. Nor do I think it reasonably arguable that there was any irrationality or Wednesbury unreasonableness.

39.  However, I can turn to consider the extra materials filed by the Applicant.

40.  In his late affidavit, the Applicant first rehearsed the history of the consideration of making the Deportation Order, including the representations made by him and on his behalf. As noted above, the focus of those representations was on the Applicant’s history and family connection in Hong Kong, and his retained right to land. The Applicant also offered various intended grounds of review, but none of them are reasonably arguable except potentially one.

41.  That argument arises from the Applicant’s reference to the Hong Kong Bill of Rights Article 19 (“BOR 19”), relating to ‘Rights in respect of marriage and family’, connected to the effect of section 2AAA of the Ordinance, and the interaction between them and section 11 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”).

42.  BOR 19(1) – which reflects Article 23 of the International Covenant on Civil and Political Rights – provides that:

Article 19 Rights in respect of marriage and family

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

43.  Section 2AAA of the Ordinance provides that a person who is a HKPR but ceases to be so by virtue of the operation of the Ordinance shall, upon such cessation, have the right (1) to land in Hong Kong, (2) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed on him shall have no effect; and (3) not to have a removal order made against him.

44.  Section 11 of the BORO provides that:

11. Immigration legislation

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.

45.  The Applicant argues that, because he is a person who did have the right to enter and remain in Hong Kong, the section 11 exclusion does not apply to him. Therefore, he is entitled to rely upon BOR 19, so that his right to family life cannot be interfered with unlawfully.

46.  Though not expressed in exactly these terms, the argument continues that therefore, when the proposed Deportation Order was being considered, taking into account the specific interference with the Applicant’s family life was mandatory and not discretionary. That requirement arose so as to assess whether the interference could be objectively justified in the light of (a) the significance of the reasons for deportation and (b) the degree of hardship the family and its members would encounter as a consequence of such deportation if effected. That is a proportionality analysis. That analysis – which seeks to balance the State’s interest on the one hand and individual rights on the other – can or will be fact-sensitive to the particular circumstances of the case.

47.  It can be acknowledged, on the facts of this case, that the Director did take into account the humanitarian or compassionate arguments advanced by or on behalf of the Applicant, when considering whether or not to issue the Deportation Order: see the relevant internal minute, quoted above. Those arguments might be regarded as similar to the BOR 19 rights. But it can be argued that the consideration was in the usual context, where the Director chooses to take into account a factor which he is not obliged to take into account, and then weighs it in the balance – rather than by way of a proportionality analysis, considering whether the public interest of deporting the Applicant was commensurate with or proportional to the adverse impacts it would have upon the Applicant and his family in Hong Kong in the particular circumstances of the case.

48.  At least, that much seems to me to be properly arguable. It also seems to me to be a point of some potential wider import.

49.  In deciding whether or not to grant leave on this point, I have taken into account the following further factors: (1) the point was not raised until significantly after the proceedings were commenced; and (2) the Applicant did not actually attend the re-fixed hearing. However, it can be noted that: (1) much of the period of delay was apparently taken up with a slow process of legal aid application and legal aid appeal; and (2) it is perhaps understandable that the Applicant would not have been aware (though he should have been, as it is public) that the hearing in the morning would be automatically adjourned to the afternoon, following the lowering of the T8 typhoon signal.

50.  Therefore, I do not think the delay and hearing point should stand in the way of the argument if of sufficient importance. Whether the argument has merit is worthy of a proper determination. In conclusion, I think there is a reasonable argument justifying the grant of leave, albeit on this ground alone.

51.  For that purpose, the Form 86 should formally be amended to include this ground, and the intended argument broadly in line with how I have described above. I grant leave for that amendment.

52.  However, because of the passage of time since the making of the impugned Decision, and the commencement of these proceedings, I propose to set a relatively tight timetable to bring this matter to a substantive hearing. In order not to await any further application for or consideration of legal aid, I also propose to seek the appointment of an amicus curiae.

E.  Result

53.  I grant leave to apply for judicial review on the ground based upon the interaction of section 11 of the BORO, BOR 19 and section 2AAA of the Ordinance.

54.  There being no other arguable grounds for challenging the Decision, the application for leave to apply for judicial review is otherwise refused.

55.  I give the following directions to bring the matter to a substantive hearing:

(1)  The Respondents have leave to file evidence in opposition to the substantive application for judicial review on or before 28 February 2025.

(2)  The Applicant has leave to file evidence in reply, if any, on or before 21 March 2025.

(3)  No further evidence shall be filed without leave.

(4)  An amicus curiae shall be appointed to assist the Court.

(5)  Skeleton submissions shall be filed by the Amicus on 7 April 2025.

(6)  Skeleton submissions shall be filed by the Applicant, if any, by 11 April 2025.

(7)  Skeleton submissions shall be filed by the Respondents on 16 April 2025.

(8)  The hearing of the substantive application for judicial review is fixed to be heard before Hon Coleman J at 10am on 23 April 2025 (with one day reserved).

(9)  Liberty to apply.

56.  The appropriate costs order to make is for all questions of cost to be reserved to the substantive hearing. I so order.