HARTOSH SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 735/2024

[2024] HKCFI 1845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 735 OF 2024

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JUDGMENT

A.  Application

1.  By an ex parte application dated 9 May 2024, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant

2.  The Applicant is an Indian national born on 10 July 1974 in India who entered Hong Kong on the strength of his Indian passport on 20 May 2005 and was permitted to remain as a visitor until 3 June 2005. However, he did not depart as required and had overstayed in Hong Kong since 4 June 2005.

3.  On 15 December 2009, a removal order (the “Removal Order”) was issued against the Applicant.

4.  On 7 July 2023, the Applicant was convicted of “Indecent conduct towards a child under the age of 16 years” and was remanded in jail custody pending sentence. On 24 July 2023, he was sentenced to 6 months’ imprisonment for the said offence.

5.  The present detention commenced on 23 August 2023 when the Applicant was discharged from prison and transferred to Tai Tam Gap Correctional Institute.

6.  On 21 December 2023, a deportation order (the “Deportation Order”) was issued against the Applicant.

7.  According to the information provided by the Applicant, his widowed mother and two brothers are all in India. He has no local connections in Hong Kong.

8.  The Applicant’s Indian passport expired on 2 June 2013.

9.  At the time of the hearing, the Applicant has been detained for 324 days.

C.  NRC related proceedings

10.  On 15 March 2007, the Applicant indicated in writing his intention to lodge a torture claim, which he withdrew on 7 January 2008. On 13 September 2008, he requested to re-open his torture claim, which was rejected by the Director of Immigration (the “Director”) on 28 March 2013 (“Director’s 1^st Decision”)

11.  On 28 May 2013, the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO”) dismissed the Applicant’s appeal against the Director’s 1^st Decision.

12.  On 8 April 2013, the Applicant indicated in writing his intention to lodge a non-refoulement claim (the “NRC”) which was subsequently rejected by the Director on all the remaining applicable grounds other than torture risk on 29 June 2018 (“Director’s 2^nd Decision”).

13.  On 4 March 2021, TCAB/NCPO dismissed the Applicant’s petition against the Director’s 2^nd Decision (“TCAB/NCPO’s 2^nd Decision”).

14.  On 10 January 2024, the Immigration Department (the “Department”) received a letter from the Legal Aid Department (“LAD”) requesting information/ documents for their determination of the merits of the Applicant’s application for legal aid to apply for leave for judicial review (“JR”) in respect of his NRC. On 16 January 2024, the Department sent a letter to LAD enclosing the “Notice of Decision” of 29 June 2018 (i.e. the Director’s 2^nd Decision).

15.  It was not until 197 days after the Applicant’s detention in August 2023 that on 7 March 2024, the Applicant applied for leave to apply for JR against the Director’s 2^nd Decision of 29 June 2018 under HCAL 431/2024 (“JR Leave Application”). The JR Leave Application was filed grossly out of time for 2 years and 9 months.

16.  On 26 April 2024, the Department of Justice (“DoJ”), as instructed by the Department, informed the High Court of the Applicant’s detention and requested priority to be accorded to the Applicant’s JR Leave Application.

17.  On 24 May 2024, DoJ, as instructed by the Department, sent another letter to the High Court informing them that the Applicant was under detention and he had filed the present application for writ of habeas corpus, and requesting priority to be accorded to the Applicant’s JR Leave Application.

18.  The JR Leave Application was heard on 8 July 2024. The court has indicated that judgment will be handed down as soon as possible or by early September 2024.

19.  According to the updated removal policy of the Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

20.  There thus remains a legal impediment to the Applicant’s removal.

D.  Criminal Record & Sentencing and Abscondence Record

21.  The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Sentence
16 September 2008	Breach of condition of stay	6 weeks’ imprisonment
14 August 2009	Theft	HK$1,000 fine
29 September 2009	1.  Theft	6 months’ and 6 weeks imprisonment
	2.  Common assault
15 January 2010	Non-payment of fine	3 days’ imprisonment
9 May 2011	Taking employment while being a person in respect of whom a removal order is in force	10 months and 20 days’ imprisonment
13 June 2012	Theft	14 days’ imprisonment suspended for 18 months
9 November 2020	1.  Common assault	4 months’ imprisonment
	2.  Possession of an offensive weapon in a public place
18 July 2022	1.  Assault occasioning actual bodily harm	14 months’ imprisonment
	2.  Possession of an offensive weapon in a public place
7 July 2023	Indecent conduct towards a child under the age of 16 years	6 months’ imprisonment

22.  On 16 October 2008, the Applicant was released on recognizance. Since 22 July 2009, he had failed to report recognizance until he was re-arrested by the Police on 1 August 2009 for theft and common assault.

23.  On 9 February 2021, the Applicant was released on recognizance. Since 14 December 2021, he had failed to report recognizance until he surrendered to the Department on 28 December 2021. He claimed that he had skin problems and forgot to report recognizance.

24.  The Applicant again had failed to report recognizance since 11 February 2022 until he was re-arrested by the Police for “Assault occasioning actual bodily harm” and “Possession of an offensive weapon in a public place” on 24 March 2022.

25.  On 12 April 2022, the Applicant jumped police bail.

E.  Steps towards Removal

26.  The Applicant was in possession of an Indian passport which expired on 2 June 2013. Prior to the present detention, the Director has been repeatedly liaising with the Consulate General of India (the “Consulate”) since 5 March 2021 to confirm the Applicant’s identity and renew his travel document for his repatriation.

27.  On 17 August 2022, the Consulate confirmed the identity of the Applicant.

28.  In most of the interviews conducted by the Department with the Applicant during his present detention, on 30 August 2023, 25 October 2023, 29 and 30 November 2023, 12 January 2024, 16 and 21 February 2024, 27 March 2024, 17 and 23 April 2024, and 23 May 2024 respectively, the Applicant expressed his unwillingness to return to India.

29.  In particular, in the interviews conducted on 25 October 2023, 30 November 2023, and 16 February 2024, he refused to complete application forms for a replacement travel document, take photos or attend interviews with the Consulate. Even when the Applicant was reminded that his uncooperativeness would impede his removal, he claimed that he would not cooperate with any removal arrangements.

30.  Despite the Applicant’s uncooperative behaviour, re-entry application form with the Applicant’s photos were secured on 21 February 2024. On 7 March 2024, the Department arranged an interview for the Applicant with the Consulate on 8 March 2024.

31.  In the interview conducted with the Applicant by the Department on 8 March 2024, he expressed willingness to return to his home country. On the same day, the Applicant attended the interview with the Consulate, and re-entry application form and photos were passed to Consulate for processing. However, during the interview with the Consulate, the Applicant changed his mind and expressed his unwillingness to return to India.

32.  Throughout the present detention, the Department has been in active liaison with the Consulate for issuing a replacement travel document to the Applicant despite his uncooperative attitude. On 1 November 2023, 28 December 2023, 29 January 2024, 29 February 2024 respectively, the Department had sent chaser letter/email to the Consulate seeking their assistance in exploring possible alternative means to issue the Applicant a travel document regardless of his uncooperative attitude.

33.  On 20 November 2023, the Consulate replied that generally speaking, an emergency travel document could be issued to the Applicant in about 1 month upon all requirements as set out by the Consulate are met, i.e. provision of a completed application form for emergency travel document and recent photo, as well as attending an in-person interview at the Consulate. On 16 May 2024, the Department followed up with the Consulate, who replied that the Applicant’s case was under active processing and would provide the Applicant’s emergency travel document by the end of May 2024.

34.  On 21 May 2024, an Emergency Travel Document was issued to the Applicant, which remains valid until 20 November 2024.

F.  Applicable Principles

35.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

36.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

37.  The Applicant has set out his grounds for application in his affirmation filed on 9 May 2024. In summary, they are as follows:

(1)  He is being detained like a prisoner for 23 hours a day or more.

(2)  He suffers from HIV, back pain, claustrophobia and is in poor health.

(3)  He suffers from mental illness due to months of detention.

(4)  Passages of Halsbury’s Laws of Hong Kong on the principles of Habeas Corpus have been reproduced.

(5)  The Department knows that he cannot be removed within a reasonable time. He should thus be released.

38.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  He has gone weak and is unable to see clearly.

(2)  He has already served sentences for the crimes committed.

39.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

40.  The Removal Order and Deportation Order were issued on 15 December 2009 and 21 December 2023 respectively and remain valid. The Applicant has been detained under:

(1)  section 32(3A) of the Ordinance from 23 August 2023 to 7 December 2023 pending his removal from Hong Kong under the Removal Order,

(2)  section 29(1) of the Ordinance from 8 December 2023 to 21 December 2023 for the purpose of inquiry as to whether he ought to be deported under section 20 of the Immigration Ordinance, and

(3)  section 32(3) of the Ordinance from 21 December 2023 to present pending his removal from Hong Kong under the Deportation Order.

41.  Thus, there was and remains clear prima facie lawful authority for the detention.

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

I.  Whether Detention has become unlawful

43.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1)  The Secretary for Security (the “Secretary”)/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

44.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

45.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

46.  The starting point is the length of the detention – about 324 days – against which all the other factors must be weighed and balanced.

47.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

48.  Although there remains a legal impediment to the Applicant’s removal in light of the impending JR Leave Application, it needs to be borne in mind that:

(1)  The JR Leave Application is grossly out of time for 2 years and 9 months. The Applicant has not provided any reason for such undue delay.

(2)  The Applicant had only taken out the JR Leave Application nearly 200 days after he had been detained, and one day before he indicated his willingness to return to his home country.

(3)  There was originally no legal impediment to his removal between the period from the commencement of his detention in August 2023 to 7 March 2024. The only hurdle for removal at that time was the lack of a valid travel document, which the Applicant had refused to co-operate in applying for.

(4)  On 8 March 2024, the day after his filing of the JR Leave Application, the Applicant had switched between indicating willingness to return to India and unwillingness to be returned.

(5)  The above indicates the lack of a genuine desire to pursue a challenge to the Director’s 2^nd Decision and points to a tactical manoeuvre on the part of the Applicant to create a legal impediment to his removal.

(6)  The Applicant’s Form 86 has failed to provide any specific or proper grounds for seeking judicial review against the Director’s 2^nd Decision. It is not apparent that the application has any merit. I agree with Ms Wong’s submissions that there is no reason why the court will not be able to deal with the JR Leave Application swiftly. After the hearing, the court had also indicated that judgment for the JR Leave Application is expected to be handed down as soon as practicable, or by early September 2024.

(7)  The Applicant’s attitude is one of general unwillingness to return to India between August 2023 to 7 March 2024. Even after he had indicated on 8 March 2024 his willingness to co-operate with his repatriation to India, he immediately changed his stance within the day. He had consciously and deliberately refused to cooperate, which had led to the impossibility of an earlier removal before the Applicant filed the out-of-time JR Leave Application on 7 March 2024.

(8)  It lies ill in the Applicant’s mouth to complain that the detention period was and will be unreasonable. The length of the current detention was at least partly attributable to the Applicant’s refusal to be removed. In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal observed at §29(3) that:-

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(9)  The travel document is already available, the Applicant can be removed as soon as possible after the disposition of the JR Leave Application, which is imminent.

(10)  The Applicant has no strong local ties in Hong Kong.

(11)  The Applicant’ history of abscondence, together with the Applicant’s clear attitude that he is unwilling to be repatriated indicate a real risk of abscondence.

(12)  The risks of abscondence is of critical and paramount importance in the assessment of the lawfulness of detention. As recognised by the Court of Appeal, if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred[2].

(13)  The Applicant’s convictions were serious and involved violent and sexual offences. I agree with the Director’s view that the Applicant poses, or is likely to pose, a threat or security risk to the community. The Applicant is an HIV carrier. Given that he had committed sexual offences in the past, the threat and potential harm to the community is grave.

(14)  Concerning the medical request by the Applicant, he had received the 3 medical consultations by the in-house Medical Officer (“MO”) at Tai Tam Gap Correctional Institute. On these occasions, the Applicant complained of i) HIV, for which he would have follow-up appointments at the medical clinic of Queen Elizabeth Hospital (“QEH”) on 14 June 2024 and 28 June 2024; ii) liver problem, for which he would have follow-up appointment at the ultrasound clinic of QEH on 10 September 2024; iii) eczema, for which he would have follow-up appointment at Chai Wan Social Hygiene Clinic on 24 March 2026; and iv) unequal pupils, for which he would have follow-up appointments at the eye clinic of Grantham Hospital on 1 April 2025 and 7 May 2025 There is no evidence supporting the Applicant’s allegation that he cannot receive medical care whilst in detention.

(15)  Overall, weighing the period of detention – around 324 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

49.  I am satisfied that HS4 is satisfied for the following reasons:

(1)  The Director had all along, even before the commencement of the Applicant’s detention on 23 August 2023, sought the assistance of the Consulate to issue the Applicant with a travel document upon discovering that his passport had expired.

(2)  I am of the view that the Director had diligently pursued the Applicant’s deportation as set out in paragraphs 26 – 34 above.

50.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

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