WALLACE SHAUN MARK v. DIRECTOR OF IMMIGRATION AND OTHERS

HCAL 1788/2023

[2023] HKCFI 2847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1788 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 and supporting affirmation, both dated 6 October 2023, the Applicant appeared to be seeking leave to apply for judicial review to challenge three things: (1) the Deportation Order made against him on 28 April 2022; (2) the lawfulness of his current immigration detention; and (3) being “tricked” into making a ‘torture claim’, leading to the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) on 6 January 2023.

2.  However, following my directions given on 11 October 2023, the Applicant clarified by way of letter dated 17 October 2023 that it was not his intention to challenge the decision of the Board – a matter to which I shall nevertheless make reference below.

3.  The hearing was, therefore, held so as to consider just the Deportation Order and the lawfulness of detention (akin or amounting to an application for a writ of habeas corpus).

4.  At the hearing, the Applicant appeared in person.  The Secretary for Security and the Director of Immigration were represented by Mr Frenki Fung and Ms Wingkie Lam, both Government Counsel – who had also signed the Initial Response/Skeleton Submissions filed in accordance with my directions.

5.  This is my Decision.

B.  Background

B.1  Immigration Status

6.  The Applicant is a New Zealander, born on 3 September 1987.  He has a New Zealand passport, valid until 9 February 2031.

7.  The Applicant is apparently single, although he has refused to disclose particulars of his family members, except to say that none of his family members live in Hong Kong.

8.  On 28 January 2020, the Applicant entered Hong Kong and was permitted to remain as a visitor until 9 March 2020.  He did not leave as required, but overstayed.  He was subsequently arrested by the Police on 11 August 2020, and referred to the Immigration Department (“ImmD”) for investigation the following day.

9.  On 22 September 2020, the Applicant was released on recognizance.

10.  On 28 February 2022, a Removal Order was made against the Applicant, pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).  On 28 April 2022, a Deportation Order was made against the Applicant, pursuant to section 20(1)(a) of the Ordinance.  Both Orders were made against the Applicant during the present period of detention.

11.  The Deportation Order is the target of part of the intended challenge in this application.  Therefore, it is worth identifying here that the Deportation Order was made on the basis that the Applicant is not a Hong Kong permanent resident and he had been found guilty of offences punishable with imprisonment for not less than two years.  Both matters are undoubtedly factually correct.

B.2    Conviction and Absconding Record

12.  On 15 August 2020, the Applicant was sentenced to 2 weeks’ imprisonment suspended for two years, upon conviction for ‘breach of condition of stay’ (i.e. overstaying).

13.  On 17 January 2022, the Applicant was sentenced to 4 months and two weeks’ imprisonment, upon conviction for ‘theft’, ‘possession of offensive weapon in a public place’, and ‘breach of suspended sentence order’.

14.  On 20 October 2020, the Applicant failed to report recognizance.  By letter dated 29 December 2020, he explained that he had been hospitalised since October 2020.  His recognizance was resumed on 2 February 2021, with the next reporting date on 9 February 2021.

15.  However, the Applicant then failed to report recognizance on that date.  He apparently absconded until he was arrested for theft on 13 August 2021, and then remanded in custody.  The only reason offered for his failure to report recognizance and absconding was that he had no money for transportation.

B.3    Non-refoulement Claim (“NRC”). 

16.  On 24 and 25 May 2022, the Applicant indicated his intention to make an NRC on all applicable grounds.  This was immediately after a failed attempt to deport the Applicant on 23 May 2022 (see below).

17.  On 14 July 2022, the Applicant’s NRC was rejected by the Director.

18.  On 22 July 2022, the Board received the Applicant’s appeal/petition, and an oral hearing was conducted on 6 September 2022.  After 13 letters sent by ImmD to the Board, enquiring as to progress, the Applicant’s appeal/petition was dismissed by the Board on 6 January 2023.

19.  There is no current legal impediment to the Applicant’s removal arising from his NRC.  In fact, in his letter to the Court dated 17 October 2023, the Applicant said that he was not only not challenging the decision of the Board, but that its decision was accepted/appropriate (albeit that the timing/conduct was not).  The Applicant also said that he “made the story up (it is fake/fabricated)”, because that was what he was influenced to do, for which he apologised.

B.4    Period of Detention and Reviews

20.  After discharge from his prison sentence on 17 January 2022, the Applicant attended the ImmD reporting office on the following day, and asked to resume his recognizance.  He was asked to report at a different reporting office on the next day, but he failed to show up.

21.  On 24 February 2022, the Applicant surrendered himself to that reporting office, and on the same day it was decided to cease his recognizance.

22.  Since that date and until today, the Applicant has been held pursuant to various sections of the Ordinance, as follows:

(1)  from 24 February 2022 to 28 February 2022 (5 days), under section 32(2A)(c) of the Ordinance – pending consideration of whether to make a removal order against him;

(2)  from 7 March 2022 to 21 April 2022 (46 days), under section 32(3A) of the Ordinance – pending removal pursuant to the Removal Order made against him;

(3)  from 22 April 2022 to 28 April 2022 (6 days), under section 29(1) of the Ordinance – pending consideration of whether to make a deportation order against him;

(4)  from 28 April 2022 to 27 May 2022 (30 days), under section 32(3) of the Ordinance – pending deportation pursuant to the Deportation Order made against him;

(5)  from 27 May 2022 to 6 January 2023 (225 days), under section 37ZK of the Ordinance – pending determination of the Applicant’s NRC;

(6)  from 6 January 2023 to 10 November 2023 (309 days), under section 32(3) of the Ordinance – pending deportation.

23.  If the 8-day period between 28 February 2022 and 7 March 2022, when the Applicant was in Covid-related quarantine, is included, the Applicant has been held in detention for a period of 626 days to date (around 20½ months).

24.  During the period of detention, various reviews of detention have been performed.  Most recently, on 4 September 2023 and 2 November 2023 respectively, a review of detention under section 32(3) of the Ordnance was conducted, and the Permanent Assistant Secretary for Security considered that there were grounds for the Applicant’s continued detention, and the Director considered that release of the Applicant on recognizance was not warranted. 

25.  The factors taken into account by the Director included that: (1) there is no sufficient reason to believe that the Applicant’s case cannot be finalised in the near future, when the hearing of this application has been fixed for 10 November 2023; (2) there is no reason to believe that the legal proceeding could not be completed within a reasonable period of time; (3) in light of his previous offences, the Applicant poses, or is likely to pose, a threat or security risk to the community; (4) the Applicant has convictions associated with crimes of a serious or violent nature; (5) the Applicant has previously absconded, including two counts of failure to report recognizance; (6) the Applicant has failed to comply with the terms/conditions of recognizance; (7) the Applicant was re-arrested during recognizance; (8) the Applicant does not have fixed abode or close connection in Hong Kong to make it likely that he would be easily located; and (9) the Applicant has directly or indirectly prevented or delayed his removal by his own action or lack of action.

B.5    Efforts at Removal

26.  The last mentioned point taken into account in deciding that release on recognizance is not warranted refers to the following matters.

27.  During the period of detention, the Applicant has persistently shown unwillingness to return to his home country during interviews on at least 15 occasions.  He has also refused to cooperate with ImmD on any removal arrangements.

28.  Three attempts have been made to deport the Applicant from Hong Kong, on 23 May 2022, 28 March 2023 and 8 August 2023 respectively.  All attempts were unsuccessful, as a result of the Applicant’s strong resistance.  He behaved in an aggressive manner and refused to cooperate.

29.  Not that long after the unsuccessful attempt to deport the Applicant on 8 August 2023, and on the verge of implementation of a renewed removal operation, the Applicant filed his Form 86 and commenced the present application on 6 October 2023.  As the present application is, at least in part, akin to an application for a writ of habeas corpus, it provides a legal and/or practical impediment to his deportation and hence release. Therefore, there is an inherent inconsistency between (1) an application which seeks immediate release from detention on the basis that it has become unlawful, and (2) the Applicant’s obstruction and frustration of his prior possible release, including by making the application which further impedes that release.

C.  Intended Challenge to Deportation Order

30.  Neither the Applicant’s Form 86 nor his affirmation identify any reasonably arguable ground for judicial review of the decision to make the Deportation Order against him.  The absence of identification of any public law grounds of intended review is in breach of the mandatory requirements under Rules of the High Court Order 53 and itself sufficient to lead to dismissal of the intended challenge.

31.  There is also substantial delay in the attempt to raise the challenge.  The Deportation Order was issued on 28 April 2022, and the long-stop date by which any intended challenge ought to have been brought was 28 July 2022.  There has, therefore, been the substantial delay of around 14 months.  There has been no application for extension of time, and – in the materials, at least – no proper attempt to explain the delay.

32.  I take into account the points made by the Applicant about being delayed in bringing judicial review proceedings (see the reference to his submissions, below).  But there may have been some misunderstanding in that regard.  It seems likely to me that the immigration officers thought he was talking about judicial review related to his NRC claim, rather than one seeking to challenge the making of the Deportation Order.

33.  In any event, were there to have been an application for extension of time, it would also be necessary to consider the merits of the proposed challenge.  For the following reasons, there seems to me to be no merit in the intended challenge. 

34.  The complaint made by the Applicant appears to be that the Deportation Order was made in relation to the conviction of an offence of theft relating to only HK$34 worth of goods.  He has described that decision as “not just” and “wicked”.  Hence, it seems that the suggestion is that the decision was unreasonable (perhaps Wednesbury unreasonable, in the public law sense).

35.  But, first, I accept from the internal minutes of the Security Bureau dated 28 April 2022 that the consideration as to whether or not to make the Deportation Order took into account both convictions of ‘theft’ and ‘possession of offensive weapon in a public place’, as both are punishable with imprisonment for not less than two years.  Secondly, the internal minutes also identify that the full circumstances of the case were taken into account, including the Applicant’s own representations that a deportation order should not be made against him in relation to a theft of value of only HK$34.

36.  I also accept the point made by Mr Fung that it is well-established that a deportation order is prima facie for life, absent special circumstances (where no special circumstances have been found to exist in this particular case).

37.  Decisions relating to matters such as removal orders or deportation orders are decisions to be made by the Director and/or Secretary, and the Court will be slow to interfere unless public law errors are identified in the decision-making process.  I do not think there is anything to suggest the decision to make the Deportation Order was Wednesbury unreasonable otherwise in breach of any public law requirement.  Therefore, the Applicant has failed to identify a reasonably arguable ground of intended review with any reasonable prospect of success.

38.  In so far as the present application is directed at the Deportation Order, it is dismissed.

D.  Lawfulness of Detention

D.1  Applicable Principles

39.  As I have said, this part of the Applicant’s application is akin to an application for writ of habeas corpus, to seek release from detention on the basis that the detention was or has become unlawful.  I shall address it on that basis.

40.  The principles applicable on an application for writ of habeas corpus in cases with the present context are well-established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of any individual case.

41.  I bear in mind that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.2  Applicant’s Submissions

42.  In his affirmation, the Applicant appeared to make the following submissions: 

(1)  His detention has become unlawful because it breached or voided or rejected the suspended sentence order made against him.

(2)  The detention is unlawful as being arbitrary.

(3)  The detention is an abuse of power by ImmD.

(4)  He was tricked by his case officer to make the torture claim following the commencement of his detention.

43.  At the hearing, the Applicant made submissions, which might be summarized as follows:

(1)  Following his conviction on 15 August 2020 for breach of condition of stay, he was sentenced to 2 weeks’ imprisonment suspended for two years.

(2)  However, he had already been held in detention since 12 August 2020, and was not released on recognizance until 22 September 2020.

(3)  Therefore, he was detained for 27 extra days beyond the two-week sentence, without court order and without proper authority.

(4)  He claims compensation in the maximum possible amount per day for each of the 618 days of the current period of detention, as well as those 27 days in 2020.

(5)  The Deportation Order was made against him only in relation to the offence of theft – and not the offence of possession of an offensive weapon in a public place.

(6)  The offence of theft would not have happened at all if the ImmD had honoured the two-week period of imprisonment, instead of detaining him for longer.

(7)  He also suffered an accident, which required him to be hospitalised, and he was treated in an inhumane way at the Queen Elizabeth Hospital (“QEH”), which he says caused him permanent damage as a result of bedsores and from being tied to the bed.

(8)  That accident would not have happened – or at least the particular form of accident would not have happened – if ImmD had honoured the two-week period of imprisonment, instead of detaining him for longer.

(9)  When asked why that accident would not have happened, the Applicant explained that the accident occurred when he was smoking heroin with somebody and consumed something which he did not know what it was, but if he had been released on time that particular accident would not have happened.

(10)  There has been delay in his ability to bring a professional/medical negligence claim against QEH, which has been delaying correspondence with the legal aid Department, and he asks for an extension of time beyond the looming deadline for bringing his claim.

(11)  He has also been obstructed in bringing judicial review proceedings on four occasions, being (a) when he was tricked into making the torture claim, (b) when he was refused a JR claim form because he had an ongoing torture claim and was told he needed to wait for the decision of the Board, (c) when, after the decision of the Board, he was refused a JR claim form because he did not have $1,040 (court fee) in his property, and (d) when he was not allowed to be helped by others who had that money in their property and were prepared to pay the court fee for him.

(12)  As to being tricked into making the torture claim, this occurred immediately after he had frustrated the first removal attempt and the immigration officer told him “Ask your mates about torture claim, or I am going to keep coming back to remove you every week”.

44.  When I pointed out to the Applicant that his detention could have ended a long time ago, but that he had obstructed his release by frustrating the repatriation operations, the Applicant explained that was because he had been given a lifetime ban on returning to Hong Kong (i.e. was made subject to the Deportation Order) for a HK$34 theft, which was “not just” and was “very wicked”.  He also suggested that as a soldier of the earth, he could not be barred from any place on earth.

45.  In his reply submissions, the Applicant said that detention in CIC was the same as or in fact much worse than prison, because of the conditions (noise from keys and doors opening and closing, constant television in the day room, and silence only when the Muslim detainees pray), and wearing mufti does not mean that it is not prison.

46.  It is helpful at this point to note the following:

(1)  The question of any compensation for unlawful detention might only arise if detention has been unlawful, and the question of compensation does not arise on this application.

(2)  This application is concerned with the (prior) question as to whether the Applicant has been lawfully detained to date, and/or whether he can continue to be lawfully detained in the foreseeable future until he is removed from Hong Kong.

(3)  The potential professional/medical negligence claim is not relevant to the current application, and I will not (and cannot) rule on any extension of time for bringing such a claim.

(4)  The lawfulness of the period of detention in August/September 2020 is strictly not the subject matter of this application.

(5)  In any event, the Applicant’s submission is based upon a misunderstanding of the basis upon which he was detained during that period.  It was not a period of imprisonment following from the making of the suspended prison sentence imposed on him by the Court.  Rather, it was a period of immigration administrative detention pursuant to various provisions of the Ordinance, namely sections 26(a) and (b), and sections 32(2A)(a), (b) and (c).

(6)  Hence, the idea that the Applicant was detained without court order or lawful authority in the period between 12 August 2020 and 22 September 2020 is entirely misplaced.  There was lawful authority under the provisions of the Ordinance.

(7)  At the end of that period, the Applicant was released on recognizance.  However, as is apparent from the factual matters set out above, he breached the terms of his recognizance

(8)  Lastly, I do not accept for present purposes the Applicant’s attempt to link the period of immigration detention in August/September 2020 with the commission of offences in 2021 or the “accident” which caused hospitalisation.

47.  Other than the above, I take the various points made by the Applicant into account in my analysis below, and give them such weight in the seems to me to be appropriate.

D.3  Whether Detention is Unlawful

48.  I have identified above the various provisions of the Ordinance and which the Applicant has been detained at various times during the present overall period of detention.  Each of the provisions plainly provided, and section 32(3) continues to provide, prima facie lawful authority for the detention.

49.  Therefore, the question arises whether the overall circumstances of detention have become unreasonable, and hence unlawful.  I can consider that by reference to the Hardial Singh principles.

50.  The starting point is that the Applicant has been detained for a period of 626 days (or 618 days, if the short period of quarantine is ignored).  That is the period against which the various other factors must be weighed and balanced, it being recognised that the weight to be given to factors in the balance may vary as a period of detention increases in length.

51.  I accept that HS1 is satisfied.  The Applicant has been detained pending the intended removal and/or deportation of him from Hong Kong, and the power of detention has been used only for that purpose or pending final determination of the Applicant’s NRC.

52.  I also accept that the Director/Secretary have acted with reasonable diligence and expedition to achieve the purposes underpinning the detention.  Both of the Removal Order and the Deportation Order were made within just a few days of the commencement of the consideration whether to make those orders, namely in an expeditious manner.  Further, the Director processed the NRC swiftly, by arranging a screening interview and issuing the determination.  Subsequently, the Board was requested by the ImmD to give priority to the Applicant’s appeal/petition, and a relatively early hearing date was fixed by the Board.  Thereafter, ImmD sent 13 letters to follow up with the handing down of the Board’s decision which eventually came on 6 January 2023.  Further, there were timely reviews of detention at various points during the period.

53.  There have also been attempts actually to effect the removal of the Applicant, the first such attempt being as early as 23 May 2022.  It was the Applicant’s own strong resistance and uncooperative attitude which led to the aborting of that removal operation.

54.  The Applicant then created the impediment to further removal (and hence to his own release) by lodging the NRC, which he accepts now – and which he knew throughout – was based upon a fabricated made up story.  The Applicant’s allegation that he was “tricked” by an officer of ImmD into making his NRC seems to me to be inherently unlikely, and is apparently contradicted by the contemporaneous note of the officer which records that at an interview on 24 May 2022 the Applicant stated that he had (already) lodged a NRC that morning, but was not willing to reveal further details.  At most, even on the precise wording put forward by the Applicant, it seems the Applicant might have been told that only an ongoing NRC would raise a legal impediment to his removal and removal operations, but that would not mean that the Applicant was tricked or influenced into making a NRC which he knew was simply false.

55.  In any event, it seems to me that it lies ill in his mouth to complain about any of the time taken for the resolution of his NRC.  Even if he feels he was “influenced” or “tricked” into making the NRC in the first place, he knew throughout that it was an application based on a fake or fabricated story, and he could and should have truthfully withdrawn the application at any time.  Though it does him no credit, he must be taken to have chosen not to do so – notwithstanding that he must also have known that the making and continued pursuit of his fabricated NRC and appeal/petition was potentially extending the period of his detention.

56.  As to the paramount considerations of the risk of absconding and reoffending, there are clearly real such risks.  The Applicant has previously failed to report recognizance, on one occasion almost immediately after release on recognizance was resumed, and on another occasion failed to report until he was arrested for an offence.  The Applicant has also expressed strong unwillingness to return to New Zealand and has frustrated the removal attempts.  I also take into account the Applicant’s own explanation that he has frustrated the removal attempts because he does not like the lifetime ban on a return to Hong Kong caused by the Deportation Order.  It seems to me that his risk of absconding is high.

57.  Similarly, he committed offences whilst on recognizance (albeit whilst absconding), indicating that he is not deterred from breaking the law whilst released on recognizance.  The subsequent offences were in breach of the suspended sentence order, indicating scant regard to that order.  The offences committed were deportable offences, and if further offences were to be committed, the potential consequences could be serious, and any sentence of imprisonment would delay or defeat removal.

58.  I accept Mr Fung’s submission that the Director/Secretary stand ready to arrange expeditious repatriation, and I note that a repatriation flight has been scheduled for 23 November 2023 (in approximately two weeks’ time).  Therefore, there is a clear time scale for removing the Applicant, as well as the reasonable prospect of doing so, in the near future.  HS3 is satisfied.

59.  As to the Applicant’s apparent suggestion that the detention is unreasonable because it was somehow in breach of the suspended sentence order, that suggestion is entirely misplaced.  Being brought into immigration detention had nothing to do with the prior suspended sentence order, and was certainly not a breach of or inconsistent with it.  In any event, by the time the bid of detention commenced, the Applicant had already been sentenced (and had served the sentence) for being in breach of the suspended sentence order.  I have already dealt with the Applicant’s complaint regarding the period of detention in 2020, where that complaint is based upon a fundamental misunderstanding and has no merit.

60.  Overall, weighing and balancing the various factors against the period of detention to date – a period of around 20½ months – I am satisfied that the detention has remained reasonable in all the circumstances throughout, and will continue to remain reasonable for the foreseeable future period until his imminent release upon removal of the Applicant from Hong Kong, scheduled for 23 November 2023.  HS2 is satisfied.

61.  In short, the detention of the Applicant has remained, and continues to remain, lawful.  The Applicant should also understand that where there is no public law basis for challenging the Deportation Order, it is not open to him to resist deportation upon his idea that he should not be barred from Hong Kong for life.

E.  Result

62.  There is no merit to either of the two live aspects of the current application.  Therefore, the application is dismissed.

63.  In the exercise of my broad discretion in that regard, I make no order as to costs.