HUSSAIN MAZHAR v. SECRETARY FOR SECURITY

HCAL 720/2020

[2020] HKCFI 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 720 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under Section 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”) since 24 December 2019.  Unless otherwise indicated, references hereinafter to “Section” shall be to the Ordinance.

BACKGROUND FACTS

2.  The present application, made on 17 April 2020, is supported by a short affirmation of the Applicant dated 21 April 2020 which has attached to it a 2-page handwritten document in Urdu.  On 23 April 2020, the court directed the application to be heard on 27 April 2020, with notice of the hearing being given to the Department of Justice.  On 24 April 2020, the court received the Respondent’s Skeleton Submissions and a bundle of relevant documents containing some background facts relating to the Applicant’s case.

3.  At the hearing on 27 April 2020, the court heard oral submissions from the Applicant himself, as well as oral submissions from Mr Sunny Li (Senior Government Counsel) on behalf of the Respondent.  Mr Li’s Skeleton Submissions, as well as his oral submissions, were interpreted to the Applicant with the assistance of an Urdu interpreter.

4.  Although the basic facts of the Applicant’s case as related by Mr Li have not been confirmed by affidavit (understandably in view of the urgency with which the hearing was fixed), the following summary is, I understand, not in dispute.

5.  The Applicant is a Pakistani national.  In October 2017, the Applicant married his wife, a Hong Kong permanent resident, in Pakistan. On 12 April 2018, the Director of Immigration approved his application for a dependant visa, which was sponsored by his wife.  On 4 May 2018, the Applicant came to Hong Kong, and was given permission to remain in Hong Kong as a dependant of his wife with limit of stay up to 4 May 2019.

6.  On 26 December 2018, the Applicant was arrested by the police for the suspected offence of indecent assault of his step-daughter.  On 27 June 2019, he was convicted of that offence after trial, and sentenced to 9 months’ imprisonment.

7.  On 5 May 2019, the limit of stay granted to the Applicant expired.  There was no application for its renewal.

8.  On 14 November 2019, the Applicant’s appeal against his conviction and sentence was dismissed by Deputy High Court Judge Tam in HCMA 331/2019.

9.  On 13 December 2019, the Permanent Secretary for Security, under the delegated authority of the Chief Executive, made a deportation order (“the DO”) against the Applicant by reason of his aforesaid conviction pursuant to Section 20(1)(a).  On 17 December 2019, the Permanent Security authorised the detention of the Applicant under Section 32(3).

10.  On 24 December 2019, the Applicant was discharged from prison and was transferred to the Castle Peak Bay Immigration Centre for detention pending his removal under Section 32(3).

11.  Subsequently, the Applicant applied to the Court of First Instance for a certificate (“the Certificate Application”) under Section 32(2) of the Hong Kong Court of Final Appeal Ordinance for the purpose of seeking leave to appeal against his conviction.  The Certificate Application, originally scheduled to be heard on 5 February 2020, was adjourned due to the general adjournment of court proceedings announced by the Judiciary for public health and safety reasons which it is not necessary to further explain here.  The application was eventually heard on 9 April 2020 by Deputy High Court Judge Tam, who dismissed the application.

12.  The Applicant’s detention pursuant to Section 32(3) has been reviewed twice on or about (i) 18 March 2020 by the Permanent Secretary, and (ii) 20 April 2020 by the Director respectively.  Upon review on each occasion, it was decided that the Applicant’s detention should be continued because it was considered that (i) his removal from Hong Kong could be effected within a reasonable time, (ii) the Applicant might abscond and/or re-offend, and (iii) there were no other circumstances in favour of the Applicant’s release.

13.  As earlier mentioned, the present application was made on 17 April 2020. In support of his application, the Applicant contends that he was wrongly convicted and that the allegations against him were made up by his step-daughter and her boyfriend.  The Applicant also disputes the grounds relied upon by the Permanent Secretary and Director for his continued detention.

14.  On behalf of the Respondent, Mr Li informs the court that the removal of the Applicant was previously held up in view of the Certificate Application, in that if the Applicant should ultimately succeed in his intended appeal against his conviction, the DO issued against the Applicant could no longer stand.  However, in view of the dismissal of the Certificate Application on 9 April 2020, there is no longer any legal impediment to his removal from Hong Kong.  Nevertheless, the Applicant’s removal has not yet been carried out for two reasons: (i) the Applicant claimed that he had lost his passport and thus the Immigration Department had to apply for a replacement travel document for him from the Pakistan Consulate in Hong Kong, and (ii) in view of the current COVID-19 pandemic, commercial flights between Hong Kong and Pakistan has been suspended.

15.  In respect of (i), the Applicant has informed the court at the hearing that his passport is actually kept by his wife, and he is prepared to surrender his passport should he be granted “bail” by the court.  In respect of (ii), Mr Li has informed the court that although commercial flights between Hong Kong and Pakistan has been suspended, the Pakistan Government has announced that it would arrange flights to repatriate its nationals stranded in overseas countries, although there is no confirmation as to when such flight from Hong Kong will become available.  In any event, the Immigration Department will keep the matter in review, and remove the Applicant as soon as practicable.

DISCUSSION

16.  The legal principles governing an application for a writ of habeas corpus are well settled.  The central question is whether the detention is unlawful (see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was).

17.  An unlawful detention is one that is made without proper lawful authority.  An initially lawful detention may be turned into an unlawful detention if it fails to meet the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at paragraph 46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at paragraph 23), as follows:-

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

18.  In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at paragraph 17, is applicable:-

“The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than ‘until’ deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

19.  In the present case, the Applicant is currently detained under Section 32(3) of the Ordinance, which provides as follows:-

“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.”

20.  The Applicant’s current detention is, prima facie, lawful because:-

(1)  a deportation order under Section 20(1)(a) of the Ordinance in respect of the Applicant is in force; and

(2)  the Applicant is being detained pending his removal from Hong Kong under Section 25 of the Ordinance.

21.  On the question of whether the Applicant has been detained for a period that is reasonable in all the circumstances, there is nothing in the materials before the court to show that the Director is using the power of detention for any purposes other than for the removal of the Applicant.  The evidence shows that the Director is intent upon removing the Applicant at the earliest moment, and is of the view that the Applicant can be removed within a reasonable period of time and that it will not be impossible to do so.

22.  The Applicant has been detained since 24 December 2019, for a period of slightly longer than 4 months up to the present moment.  There are currently no further legal proceedings in respect of his criminal conviction, and there is no legal impediment to his removal from Hong Kong.

23.  There is nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  The only reason why the Director is unable to effect the removal of the Applicant is because of the suspension of commercial flights between Hong Kong and Pakistan due to the current COVID-19 pandemic.  At the moment, it is uncertain as to when such flights will resume service. However, as informed by Mr Li, there is at least some real prospect that the Pakistan Government would arrange a flight to repatriate its nationals from Hong Kong.  Under Section 32(4A), the detention of a person under that section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person’s detention including, in the case of a person being detained pending his removal from Hong Kong, “the extent to which it is possible to make arrangements to effect his removal”.  In any event, disregarding the period of time that the removal of the Applicant was not proceeded with due to the Certificate Application, the Applicant has been detained for some 18 days only since 9 April 2010.  In my view, the stage has not yet been reached where it would be right to conclude that that the Applicant cannot be removed within a reasonable period of time, or that it will not be possible to do so.  Having regard to the inevitable removal of the Applicant from Hong Kong, it is, I consider, open to the Director to form the view that there is a real risk of the Applicant absconding.  The serious nature of the offence for which the Applicant was convicted, and the obvious lack of remorse on his part, also lends support to the Director’s view that the Applicant may re-offend.  The fact that the Applicant has a wife in Hong Kong who is a Hong Kong permanent resident is not, in my view, a sufficient circumstance in favour of release.  In all, I am of the view that the Applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

DISPOSITION

24.  The application for the issue of a writ of habeas corpus is dismissed.  There shall be no order as to costs, which is not sought by Mr Li on behalf of the Respondent.