RE MOHAMMAD PALASH

CACV 297/2017

[2018] HKCA 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2017

(ON APPEAL FROM HCAL NO 120 OF 2017)

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REASONS  FOR  JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  This is an appeal against the judgment of Deputy High Court Judge Woodcock on ­18 December 2017 refusing leave to the applicant to apply for judicial review. The applicant is an unsuccessful claimant for non-refoulement protection. He challenges the decision of the Torture Claim Appeal Board to refuse his claim.

Background

2.  According to the applicant, he was a member of the Bangladesh Nationalist Party.  In early October 2011, the applicant and others attacked Raihan who was a member of the Awami League.  On that day, the applicant and his companions were attending the Hindu Festival where Raihan insulted the applicant and his companions.  The applicant and his companions then laid in ambush for 2 hours and attacked Raihan and Raihan’s brother Rashid.  The applicant attacked Raihan with bare hands but his companion Shirajul used an iron rod to hit Raihan’s neck.  Raihan died from the neck injury.

3.  The applicant fled to Rangpur, Bangladesh to hide from the police and Rashid.  The applicant learnt that a report had been filed with the police.  With the help of his relatives, after bribing an immigration officer the applicant fled from Bangladesh to Mainland China in February 2012.

4.  In March 2012, the applicant attempted to enter Hong Kong but he was denied entry due to the lack of a visa.  On 7 January 2013, he entered Hong Kong illegally.  On 10 September 2013 he was arrested by the police.  On 13 September 2013 he lodged a torture claim.

5.  On 13 December 2013, while the applicant was in Hong Kong, he and other persons were charged with murder in Bangladesh in respect of the death of Raihan.  On 26 October 2014, the Bangladeshi Court tried the case in the absence of all the accused.   On the same day, the applicant was convicted of murder and was sentenced to life imprisonment.  The applicant only learnt of the charge and the conviction on 17 January 2017.

The Decisions and judgment below

6.  The Director of Immigration decided against the claims on 5 April 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  By a Further Decision of 12 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

7.  The applicant appealed to the Torture Claims Appeal Board.  At the hearing on 24 January 2017, the applicant applied to adjourn the hearing to remit the case to the Director for considering the new evidence about the applicant’s conviction in Bangladesh.  The Board refused to grant an adjournment and dismissed the appeals on 29 March 2017 (“the Board’s Decision”).

8.  The intended judicial review was in respect of the refusal of adjournment and the Board’s Decision.  The Amended Form 86 dated 16 November 2017 gave the following grounds:

(1)  The provision in Bangladeshi law allowing trial in the absence of the applicant was incompatible with the right to a fair trial under Art 11(2)(d) of BORO;

(2)  The applicant will not have a retrial or fresh determination if he is refouled to Bangladesh;

(3)  There was no proof of notice of hearing being served on the applicant before trial;

(4)  The sentence of life imprisonment passed after a trial in the absence of the applicant is unlawful because of Art 10 and 11 of BORO, Art 14 of ICCPR, Art 6 of ECHR and Art 3 of BORO (CIDTP);

(5)  The prisons conditions in Bangladesh amounts to CIDTP; and

(6)  The refusal to adjourn was unfair.

9.  Although the applicant raised 8 separate grounds of review in his affirmation dated 6 April 2017, these grounds were not pursued in the Amended Form 86.

10.  The applicant was legally represented in the Board and the application for leave to apply for judicial review.

11.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she dismissed all the grounds in the Amended Form 86 and refused leave on 18 December 2017 for the following reasons:

(1)  The applicant did not provide expert evidence on Bangladeshi law.  There is no evidence to support the alleged legal consequences after the applicant’s return, see [25];

(2)  Based on the discussion in SH v Secretary of State for the Home Department [2008] UKAIT 76, it seems that the applicant will have access to the appeal process upon his return to Bangladesh, see [26];

(3)  There was ample time to produce evidence on Bangladeshi law before the hearing of leave and up to then no evidence was produced, see [27];

(4)  The judge rejected the submission that the Director bears the burden in proving that the notice of hearing for the Bangladeshi trial had been properly served.  In any event, it is the applicant’s own evidence that he deliberately fled the country to avoid Bangladeshi criminal proceedings, see [30];

(5)  The judge further rejected the submission of flagrant denial of justice and Fugitive Offenders Ordinance Cap 503 in light of the rejection of the assertion that the applicant does not have the possibility of a retrial and the application was not brought by the Bangladeshi government for an extradition. The judge also held that life imprisonment as a sentence for murder was not so excessive or disproportionate to amount to torture, see [32]; 

(6)  The Board properly considered the COI material on prison conditions in coming to the conclusion that the prisons conditions in Bangladesh did not amount to torture or CIDTP, see [35] and [36]; and

(7)  The Board rightly admitted the new evidence and treated the appeal as a rehearing.  There was no procedural irregularity in the refusal to adjourn, see [40].

The Appeal

12.  On 28 December 2017, the applicant filed a Notice of Appeal in person.  He did not state any ground of appeal in the Notice of Appeal.  He also filed an affirmation on the same day.  The affirmation contains the factual background and a copy of the relevant conventions and case law.  It does not set out any ground of appeal pinpointing any error on the part of the judge.

13.  The applicant lodged written submissions on 4 May 2018. Since then, he obtained legal representation through the Bar Free Legal Service Scheme of the Hong Kong Bar Association. Mr Ross and Mr Ma appeared on behalf of the applicant on a pro bono basis. Counsel lodged supplemental submission on 14 June 2018 and applied to amend the Notice of Appeal as per a draft of 14 June 2018.

14.  We are grateful for the assistance of counsel. 

15.  We heard the appeal on 6 July 2018. Having considered the submissions of the applicant, we decided that he has reasonable ground for challenging the decision of the Board. We therefore allowed the appeal and granted leave to the applicant to apply for judicial review.

16.  We shall briefly explain our reasons for differing from the judge below.

17.  The applicant’s case is primarily based on the assertion that he faces life imprisonment without any automatic right to set aside his conviction if he returns to Bangladesh. Mr Ross submitted that this would amount to a violation of his right to be tried in his presence under Article 11(2)(d) of the Hong Kong Bill of Rights.

18.  In the present case, the trial took place in Bangladesh and Bangladesh had entered a reservation for the same article in the ICCPR to permit trial in absentia for a fugitive offender or a person who, being required to appear before a court, fails to present himself or to explain the reasons for non-appearance.

19.  However, there is no similar reservation in Hong Kong. Mr Ross relied on the principle discussed in Soering v United Kingdom (1989) 11 EHRR 439 (applied in the context of right to a fair trial in Othman v United Kingdom (2012) 55 EHRR 1) and submitted that Hong Kong should not remove the applicant back to Bangladesh where his right under Article 11(2)(d) would be infringed.

20.  The relevant principle was discussed in Othman v United Kingdom (2012) 55 EHRR 1 at [258] to [259]:

“ 1. General principles

(a) The “flagrant denial of justice” test

258 It is established in the Court’s case law that an issue might exceptionally be raised under art.6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagant denial of justice in the requesting country. That principle was first set out in Soering v United Kingdom and has been subsequently confirmed by the Court in number of cases.

259 In the Court’s case law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of art.6 or the principles embodied therein. Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:

• Conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge;

• A trial which is summary in nature and conducted with a total disregard for the rights of the defence.”

21.  Hence, the test adopted in the Strasbourg jurisprudence is flagrant denial of justice. If there is a possibility to obtain a fresh determination of the merits, the Soering principle would not prevent the refoulement of a person who had been convicted in his absence.

22.  Though Mr Ross also referred us to General Comment No 32 by the United Nations Human Rights Committee, the comment did not address the issue in the context of the application of the Soering principle.

23.  For the present purposes, without pre-empting further arguments at the substantive judicial review, we would adopt the approach in Othman v United Kingdom, supra. It appears to us that the Deputy Judge also applied the same test at [32] of her decision.

24.  We however respectfully differ from the Deputy Judge on the significance of the failure on the part of the applicant to produce expert evidence on Bangladesh law. Whilst the applicant bears the burden to prove his claim, it is reasonably arguable that the Director and the Board should take a more proactive approach in terms of securing some evidence on Bangladesh law as to the matters that the applicant would have to establish in appealing against his conviction. Without such information, it is not safe to come to the conclusion (as the judge did) that it was possible for the applicant to obtain a fresh determination of the merits without difficulties. For example, if Bangladesh law requires the applicant to demonstrate that the conviction was unsafe due to his absence or his departure from Bangladesh was reasonable in the circumstances, an onerous burden could be placed on him which he could not meet readily.  There may be scope for arguing that these additional requirements could constitute flagrant denial of justice notwithstanding the possibility of appeal.

25.  Hence, in the context of this case, the evidence on Bangladesh law as discussed above is of crucial importance.

26.  In Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at [53] to [55], the Court of Final Appeal highlight that regard have to be made to the difficulties of proof faced by a claimant and the need on the part of the Director to obtain the relevant information in some instances.    

27.  In the present case, the applicant obviously does not have the means or resources to obtain the relevant evidence on Bangladesh law by himself. Whilst he was legally represented before the Board and the court below, such representation was provided on a pro bono basis. In such special circumstances, it is reasonably arguable that the high standard of fairness set out in Prabakar requires the Director and the Board to obtain such evidence before making their decisions.

28.  Before the hearing in this Court, we were informed that the applicant had an appeal against the refusal of his legal aid application and that appeal will be heard on 20 July 2018. If legal aid is granted, there would be resource to the applicant for obtaining the evidence on Bangladesh law. Mr Ross had submitted that this appeal be adjourned pending the outcome of legal aid appeal.

29.  We did not accede to that request. The better course, as we saw it, was to allow the appeal and grant leave to apply for judicial review. If legal aid is granted subsequently, such evidence can be adduced in the substantive judicial review.   

30.  For these reasons, we allowed the appeal and gave leave to the applicant to apply for judicial review.