SAKTHEVEL PRABAKAR v. SECRETARY FOR SECURITY

CACV 211/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2002

(ON APPEAL FROM HCAL NO. 2078 OF 2000)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a decision of Hartmann J given on 20 September 2001. The application before the Judge was for an order of certiorari to quash two decisions of the Secretary for Security. The first, dated 29 April 1999, was a deportation order requiring the applicant to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter. The second was dated 14 June 2000 and was a refusal to rescind the deportation order. The judge below dismissed the application and from that decision the applicant appeals.

Background

2. The applicant was born in northern Sri Lanka in 1973. He is a Tamil and was a fisherman. In 1995 when the applicant was 22 he was forced to join the armed opposition group, commonly known as the Tamil Tigers, which was fighting for an independent state. The applicant had no wish to fight for the Tamil Tigers. Nevertheless, he was put under pressure to fight for the Tamil Tigers and he even received death threats to encourage him to do so. Eventually, in 1996, the applicant felt he had to flee the area controlled by the Tamil Tigers and he made the journey to Colombo at considerable risk to his personal safety.

3. Soon after his arrival in Colombo, the applicant was arrested by the Police and Army Forces under Emergency Regulations which were in force. He was detained in prison for six months. Whilst in prison he was tortured. It is unnecessary to dwell on the details of the torture save to say that the torture was of a grave type. The applicant was hung up by his thumbs, he was suffocated until he lost consciousness, he was hung upside down and put under water. Although he was released in April 1997 he was rearrested several times over the next months ago. Again he was subjected to torture. In all this time he was never charged in court with any offence.

4. In October 1997, he was arrested again and tortured until blood ran from his mouth and arm. He was beaten and suffocated. During this time delegates of the International Committee of the Red Cross ("ICRC") saw him in prison and gave him medication for his bleeding mouth. Even after he had been released he was required to "sign in" three times a week. Even on the occasions when he reported to "sign in" he was assaulted. In December 1998, he was arrested by the police and detained in the Colombo Remand Centre. There he was beaten with rubber pipes filled with concrete, belts and chair legs.

5. It was at this stage that the applicant says he felt it necessary to flee Sri Lanka and make his way to Canada. He had no intention of being a burden on anybody or any state and intended to muster all the skills he had, albeit he was a fisherman by trade, and to gain employment. He came in contact with a person who offered to assist him to reach Canada. The assistance offered included the provision of a forged Canadian passport. Under the guidance of this person, the applicant left Colombo on 12 January 1999. There is some obscurity as to how the applicant left Colombo. It is open to some doubt as to whether he went through conventional channels on exiting although his Sri Lankan passport does have an exit chop from Colombo.

6. The applicant's route to Canada was to take him via Bangkok, Hong Kong and Manila. On arrival in Hong Kong the applicant remained in the transit lounge at the airport. Whilst there he was questioned by immigration officers and when they searched his baggage they found the forged Canadian passport. As a result he was questioned under caution by immigration officers. The questions were directed as to how, where and from whom the applicant had obtained the forged Canadian passport and as to how he had handled it. Nevertheless, during the course of giving his answers the applicant made clear that he obtained the Canadian passport for the purpose of going to Canada. When he was asked how he obtained the Canadian passport he said:

"On 2-1-1999, I met an unknown-named (sic) agent in Colombo. The agent tell me that he can arrange a forged Canadian passport to go to Canada for job seeking. The payment is $5000 CAN and can pay after to go successfully. So I agreed with him."

In one of the later questions he was asked what he did with the passport. He is recorded as saying:

"When I received the passport from the agent, the agent told me that to pretend to be the holder of this Canadian passport then I can arrive Canada successfully for my job seeking, so I put the passport inside my pocket."

7. Two days later the applicant was brought before the Magistrate at San Po Kong charged with having been in possession of a forged travel document. Also charged at the same time with a similar offence was the person in whose company the applicant had been travelling. The Brief Facts put before the court recited the history of the discovery of the passport and the fact that the applicant had admitted that only his Sri Lankan passport contained true particulars of his identity. The Brief Facts continued:

"For the sake of securing work in Canada, they accepted the offer from a middleman to arrange the travel documents at a cost Canadian $5,000 upon successful entry into Canada."

8. The Brief Facts thus clearly stated that the Canadian passport in the applicant's possession was arranged to be provided as a travel document for entry into Canada. The applicant was to pay $5,000 on successful entry. Once there, the applicant intended to secure work. The applicant was sentenced to six months imprisonment.

9. On 2 March 1999, whilst he was in prison, the applicant was served with a letter headed "Notice of Consideration of Deportation". Shortly thereafter on 5 March 1999 the applicant, with the help of an interpreter, wrote a letter which was addressed to the protection officer of the UNHCR, the United Nations High Commission for Refugees, in Hong Kong, the Swiss Embassy in Hong Kong and the International Red Cross. That letter was also sent to the Immigration Department. The letter set out some of the history of the applicant's treatment in Sri Lanka including in particular references to the torture which he had suffered in Colombo at the hands of the police and army. The applicant also referred in the letter to a visit which he had received from the delegates of the ICRC when he was in custody in Colombo and how they had provided him with medication for his bleeding mouth. Towards the end of the letter the applicant stated that he had left Sri Lanka because he could not live there any more since if he returned he did not know what would happen to him and whether he would still be alive.

10. The applicant was visited in prison by a representative of the UNHCR together with an interpreter. The details of that visit are sketchy and, as will emerge below, no information has been provided by the UNHCR as to what took place. There were also interviews by officers of the Immigration Department but the fact that they did not make any investigation into the allegations of torture is not disputed.

11. On 30 March 1999, the UNHCR informed the applicant that he was not recognised as a refugee. Following that, on 16 April the Director of Immigration applied to the Secretary for Security for a deportation order. The basis of the recommendation by the Director was that the applicant had been convicted of an offence punishable with imprisonment of not less than two years. The recommendation referred to the fact that the applicant had made written representations not to be deported. It has to be noted, however, that the summary of those representations, which is contained in Annex B to the Director's Application for Deportation Order, refers to the applicant's life being in danger because of political party struggles and to the fact that the applicant had applied to the UNHCR for refugee's status. It then continues that the applicant had not been recognised as a refugee under the mandate of the UNHCR. Within three days of that request by the Director of Immigration the Secretary for Security signed the deportation order. The effect of that deportation order was that it was likely that the applicant would have been deported back to Sri Lanka.

12. Following the deportation order, there was a considerable amount of activity, both by the applicant and on his behalf, directed to reversing the decision which would cause him to be deported to Sri Lanka. Amongst other things, on 4 August 1999 the appellant's solicitors made a lengthy submission to the Director of Immigration and the Secretary for Security in order to have the deportation order rescinded. One of the documents which was sent with that submission was a report dated 31 July 1999 from a doctor who had examined the applicant. He found scarring particularly on the applicant's legs, forehead and upper arm. The medical opinion was that these scars were consistent with the applicant's allegations of torture and the doctor came to the conclusion that the applicant was likely to have been a victim of torture at about the time he said he had been. It is also of note that included with that letter was a detailed report by Amnesty International headed "Sri Lanka Torture in Custody". The report is dated June 1999. It contains considerable details of torture which took place in Sri Lanka at the hands of those in authority. Although there were cases where the matter was taken to the Sri Lanka Supreme Court and compensation was awarded to the victims of torture, it was clear that there was still continuing torture of the type of which the applicant had complained previously.

13. Despite requests for rescission of the deportation order supported by these materials, the Secretary for Security still refused to rescind the deportation order. It was not until 17 December 1999 that there was any change at all in the official position. On that day, the applicant's solicitors were sent a terse letter from the UNHCR in Hong Kong informing them that the applicant was recognised as a refugee under the mandate of the UNHCR and that he was now under UNHCR protection in Hong Kong pending a durable solution and had been released by the Immigration Department on recognisance.

14. Although on 22 December 1999 a memo was sent on behalf of the Director of Immigration to the Legal Aid Department saying that the applicant's refugee status was recognised and that he would not be deported to Sri Lanka and inquiring whether the legal aid certificate would be discharged, that letter was not copied to the applicant and it was not until 2 February 2000 that the Director wrote to inform the applicant's solicitors that the applicant would not be deported to Sri Lanka. That letter stated that pending identification of a resettlement country, the applicant would remain on recognizance under section 36 of the Immigration Ordinance.

15. The applicant's solicitors maintained their request that the deportation order should be rescinded and on 14 June 2000 the Secretary for Security informed the solicitors that she would not rescind the deportation order.

The Convention background

16. Hong Kong is not a signatory to the Convention Relating to the Status of Refugees 1951. Under that Convention, a refugee is one who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country. It would seem, however, that the Hong Kong Government does have regard to findings by the UNHCR in respect of a person's status as a refugee.

17. In contrast, Hong Kong is a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). Torture is defined under that Convention as meaning any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

18. Article 3 of the Convention states that:

"1. No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

19. Hong Kong's obligations under the Convention against Torture are taken seriously. The adherence to the Convention against Torture is perhaps underlined by the Crimes (Torture) Ordinance, Cap. 427. Under that Ordinance torture is a crime if it is committed by a public official or person acting in an official capacity whatever his nationality or citizenship. The importance of the Convention is also made clear in the 1999 report of the Hong Kong SAR under the Convention against Torture. Reference is there made to Article 9 of the Bill of Rights which reads as follows:

"A person who does not have the right of abode in Hong Kong but who is lawfully in Hong Kong may be expelled therefrom only in pursuance of a decision reached in accordance with the law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion to, and have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."

Under paragraph 27 of the report it is stated:

"Should potential removees or deportees claim that they would be subjected to torture in the country to which they are to be returned, the claim would be carefully assessed, by both the Director of Immigration and the Secretary for Security or, where the subject has appealed to the Chief Executive, by the Chief Executive in Council. Where such a claim was considered to be well-founded, the subject's return would not be ordered. In considering such a claim, the Government would take into account all relevant considerations, including the human rights situation in the state concerned, as required by Article 3.2 of the Convention. However, there have been no cases so far where the question of torture has been an issue. Thus Article 3.2 has not been applied in any particular case."

20. Nevertheless, all might not be quite as well as could be hoped. The Report of the Committee against Torture, noted that the defence of lawful authority in the Crimes (Torture) Ordinance was not fully in conformity with Article 1 of the Convention. In paragraph 36 of the Report, it is stated, perhaps prophetically:

"36. It is noted with concern that the practices in the Hong Kong Special Administrative Region relating to refugees may not be in full conformity with article 3 of the Convention."

21. As has been seen, the applicant made clear in his letter of 5 March 1999 that he had been tortured by officials in Sri Lanka. That claim was not investigated by the Director of Immigration or any officer of the Hong Kong Government. Instead the Director of Immigration and the Secretary for Security relied entirely upon the assessment by the UNHCR as to whether the applicant was a refugee. Although there may be some overlap and a victim of torture may also be a refugee, the criteria are different. More importantly, nothing is known as to what steps were taken by the UNHCR in March 1999 to determine the truth of any of the allegations made by the applicant. No records of interview have been produced. Equally importantly, neither the Director of Immigration, the Secretary for Security nor any other person within the Hong Kong Government had access to information as to what took place at any interview by the UNHCR, as to how they were conducted, as to what questions were asked or as to whether the applicant's allegations of torture were investigated properly or at all.

22. The applicant had landed in Hong Kong for the purpose of transit only. He had been permitted to do so because he was then using his Sri Lankan passport and there was no difficulty. He had been arrested and thus prevented from departing Hong Kong because of his possession of the Canadian passport. In my view the applicant clearly was in Hong Kong lawfully until his arrest and thereafter was in Hong Kong in accordance with the law and, in particular, at least after 14 January 1999 in accordance with the directions of the court. He is therefore entitled as of right to the protection afforded by Article 9 of the Bill of Rights.

23. In my view in taking the decision to make the deportation order, the Secretary for Security did not act fairly in relation to the applicant. In particular, his case was not considered by the Hong Kong Government as it should have been. The delegation of any decision by the Hong Kong Government to the UNHCR was in my view unauthorized. The Hong Kong Government had no control whatever over that decision making process and would not even know whether it was fairly conducted or not. It has been said that the Secretary for Security was unaware of the country conditions in Sri Lanka. That, in my view, is no justification for failing to investigate the applicant's allegations of torture. If it were necessary to do so, steps should have been taken to discover the country conditions. Reports of such bodies as Amnesty International are no doubt easily obtainable.

24. Importantly, the Convention against Torture continues to apply in Hong Kong. As acknowledged in the report on behalf of the Hong Kong Government, once a person has complained of torture and said that he fears for his life if returned to the country where he was tortured, that claim should be investigated before any decision is taken which would have the effect of returning him to that country. The obligation might be expressed in terms of legitimate expectation or it might be expressed in terms of fairness and proper application of Article 9 of the Bill of Rights. It matters not. The decision was taken without the decision maker having ensured that the proper enquiries were made.

25. In those circumstances the applicant is, in my view, entitled to an order to quash the deportation order. There can be no doubt that the existence of the deportation order, preventing, as it does, the applicant from ever returning to Hong Kong is a matter which would weigh heavily in relation to the applicant's ability to secure a country which would permit his entry as a refugee. Whereas, initially, the Director of Immigration and the Secretary for Security's reasons as expressed related simply to the commission of an offence of being in possession of a forged passport, the reasons put forward now by the Secretary for Security in her affidavit seeking to justify the refusal to rescind the deportation order include as a basis that the applicant was intending to use the forged Canadian passport to deceive potential Canadian employers.

26. The distinction between a refugee using a forged passport to gain entry to a country of refuge and a person using a passport to obtain a pecuniary advantage by deception is very marked. The latter act might well mark its perpetrator as someone whom it would be undesirable to admit to a country even as a refugee. In contrast the former circumstance can be regarded as something which is entirely excusable. This was exemplified in the case of R v Uxbridge Magistrates' Court and another Exp. Adimi [2001] QB 667, when it was held that a person who is a legitimate refugee could not be blamed for using forged travel documents in order to protect his own safety. It may be that the full effect of the Adimi decision may not extend to Hong Kong because the Convention Relating to the Status of Refugees 1951, and in particular Article 31, does not apply as such in Hong Kong, nevertheless, the possession of a forged travel document by a legitimate refugee for the purposes of travelling and escaping from his country of torture to a country of refuge is not likely to be looked upon as crime in countries adhering to the 1951 Convention.

27. The only justification for the notion that the applicant intended to use the Canadian passport not as a travel document but to deceive potential employers stems from the plea in mitigation made by a duty lawyer on behalf of the applicant at the Magistrate's Court hearing on 14 January 1999. From everything which this court has seen it would appear that the applicant's denial that he ever said he intended to use, or that he actually did intend to use, the forged Canadian passport to deceive potential employers must be correct. The duty lawyer's notes refer to the applicant's instructions "never used the forged travel document". The notes show that the applicant instructed the duty lawyer that because he could not obtain a Canadian visa he obtained the "travel document" from a middleman. Whilst it is clear from the transcript of the plea in mitigation that the duty lawyer used some of the wording of the Brief Facts in making his plea, the reference to using the travel document to secure employment is something which might well have arisen out of a misreading of the Brief Facts in the course, no doubt, of a busy morning acting probably for many clients. It should be noted that the plea in mitigation is the only place where it is stated that the forged Canadian passport was so to be used and that this was not available to the Secretary for Security in April 1999 when the original decision was taken.

28. Both counsel were in agreement that should the decision of the Secretary for Security of 29 April 1999 be quashed and the deportation order set aside, the second decision challenged, that of 14 June 2000 whereby the Secretary for Security refused to rescind the deportation order, becomes irrelevant. As already indicated, if, and insofar as, the Secretary for Security took that latter decision on the basis that the applicant intended to use the forged Canadian passport not for entry into Canada but to deceive Canadian employers, that decision was taken on the basis of an erroneous assessment of the facts.

Hon Le Pichon JA:

29. I agree with the judgment of the Vice-President.

Hon Yuen JA:

30. I have had the benefit of reading the judgment of the Vice-President in draft and agree that the decision of the Secretary for Security making the deportation order should be quashed. I would only wish to add that given that Hong Kong is a signatory to the Convention Against Torture (1984), once the applicant had alleged in his letter following the Notice of Consideration of Deportation that he had suffered torture in Sri Lanka, the Director of Immigration should have been alerted to the Government's obligations under the 1984 Convention. It was therefore surprising that the Director's summary to the Secretary for Security did not refer to the allegations of torture at all, and it perhaps betrayed an erroneous assumption that the status of "torture victim" and "refugee" were identical, which led to the failure to properly investigate (or at least properly supervise investigations of) the allegations of torture prior to the making of the deportation order.

Hon Rogers VP:

31. This appeal will therefore be allowed. There will be an order of certiorari quashing the decision of the Secretary for Security dated 29 April 1999. There will be an order nisi that the applicant should have his costs here and below.

Remarks: