AMARJIT v. HONG KONG SAR GOVERNMENT

HCAL 1854/2024

[2024] HKCFI 3672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1854 OF 2024

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 31 October 2006 and 3 September 2013. He has been held in immigration detention since 9 February 2024 pursuant to section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 320 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 17 October 2024. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Frenki Fung, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is an Indian national born in 1985. His family is in India and he has no local ties in Hong Kong.

2.2  The Applicant entered Hong Kong on 3 September 2006 and was permitted to remain as a visitor for 14 days. He has overstayed since 18 September 2006 and was arrested by the police on 26 September 2006 and subsequently released on immigration recognizance on 19 December 2006.

2.3  The Applicant had been arrested, convicted and sentenced to imprisonment on multiple occasions for offences including theft, assaulting a police offer in execution of his duty, possession of a dangerous drug, trafficking in a dangerous drug and inflicting grievous bodily harm. Notably, the more lengthy terms of imprisonment were: (1) in March 2011, he was sentenced by the District Court to a term of imprisonment of 52 months and 7 days for assaulting a police officer in execution of his duty and drug-related offences (including trafficking) and (2) in May 2019, he was sentenced by the High Court to a term of 9 years’ imprisonment for trafficking in a dangerous drug.

2.4  The Applicant also has a history of absconding (in September 2017) and jumping court bail (in April 2016).

3.  Non-refoulement claim (“NRC”) and related proceedings

3.1  The Applicant’s NRC was rejected by the Director (“Director’s Decision”) on 23 June 2017.

3.2  Following the commencement of the present detention, the Applicant on 11 June 2024 lodged a late filing of Notice of Appeal/Petition against the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”). On 12 July 2024, TCAB rejected the application for late filing of the Notice of Appeal/Petition (“TCAB’s Decision”).

3.3  On 5 December 2024, the Applicant filed an application for leave to apply for judicial review against TCAB’s Decision (HCAL 2375/2024). HCAL 2375/2024 is now pending determination.

4.  Current detention and its reviews

4.1  The present detention commenced following the Applicant’s release from his latest term of imprisonment imposed by the High Court.

4.2  The Applicant’s passport had expired on 29 March 2015. Prior to the current detention, since 2 February 2023, effort was made to the Consulate General of India (“IND CG”) seeking issuance of replacement travel document to the Applicant.

4.3  The Applicant is unwilling to return to India. Except for one occasion, the Applicant in all the interviews conducted during the present detention has reiterated his unwillingness to return to home country and refused to complete the reentry formalities. Although he expressed his willingness to co-operate with the reentry formalities on 18 July 2024, he immediately retracted by refusing to complete the reentry application form, take photos and attend IND CG interview on 24 July 2024.

4.4  Upon the commencement of the current detention, at least 7 letters and/or emails were sent to IND CG seeking assistance for issuance of replacement travel document and making inquiries as to any possible alternative means to issue replacement travel document to the Applicant despite his uncooperative attitude. However, IND CG has indicated that duly a completed application form, passport photos and an in-person interview were necessary for issuance of an emergency travel document.

4.5  During the present detention, the Applicant disclosed that he suffered from metatarsal fracture in 2019 for which he had to attend follow-up treatment at the Queen Mary Hospital. Further, he received treatment from the Ear, Nose & Throat clinic of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) and the Orthopaedic clinic of PYNEH for finger numbness and neck pain.

4.6  In the latest review conducted on 4 December 2024, it was considered that the Applicant’s release was not warranted for the following broad reasons:

(1)  The Applicant's removal was going to be possible within a reasonable time. There was no sufficient reason to believe that the Applicant's court proceedings could not be finalized in the near future;

(2)  The Applicant posed or was likely to pose a threat or security risk to the community as the past convictions were serious deportable offences of violent nature;

(3)  The Applicant had failed to comply with the terms/conditions of recognizance and jumped court bail;

(4)  The Applicant had directly or indirectly prevented or delayed his removal by action or lack of action, including repeatedly expressing his unwillingness to return to his home country and refusing to cooperate in the reentry formalities;

(5)  The Applicant did not have fixed abode or close connection in Hong Kong; and

(6)  The Applicant’s alleged medical condition on ear and nose was referred to TGCI for medical consultations and a visit to public hospital. There was no reason to believe that he has not received proper medical treatment.

5.  The Applicant’s submissions

5.1  The Applicant’s written materials put forward the following matters:

(1)  The present detention is unlawful, as he is detained pending the resolution of his NRC and related proceedings and it is not possible to remove him within a reasonable period;

(2)  He should not be deported before the resolution of the extant legal proceedings;

(3)  He undertakes that he would not abscond;

(4)  He is unwilling to return to India as he fears for his own safety if repatriated;

(5)  He should not be detained for his past criminal convictions; and

(6)  His health conditions have deteriorated during the present detention.

5.2  At the hearing, the Applicant confirmed that the preceding paragraph represents an accurate summary of his submissions. He further supplemented as follows. First, he has applied for legal aid in HCAL 2375/2024. Secondly, he has recently sought medical treatment for his testicles. This is confirmed by Mr Fung and I was further informed by him that an appointment for ultrasound at the Queen Mary Hospital is scheduled for 20 January 2025. Thirdly, the Applicant has offered cash bail in the sum of HK$5,000 and further a surety who is willing to put up an additional HK$5,000 as conditions for his release.

6.  The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

6.2  I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3  Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

6.4  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

“ 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.”

6.5  In relation to the preceding paragraph, in assessing whether the Applicant’s conduct is or is not reasonable, the court should take into account whether he has pursued his NRC with reasonable diligence: Johnson Benjamin §29(1).

6.6  Also pertinently, where, as here, the Applicant has refused to cooperate with the reentry formalities, Johnson Benjamin is an authority for the proposition that this is a factor which may be taken into account in assessing the reasonableness of his detention. At Johnson Benjamin §37, it is stated:

“ Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

7.  Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3) of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 320 days, against which the various other factors must be weighed and balanced.

7.3  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the efforts (1) made for the issuance of a replacement travel document and (2) to expedite the resolution of the Applicant’s NRC and related proceedings.

7.4  As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal. The Applicant then made a very belated and unsuccessful challenge of the Director’s Decision to the TCAB, followed by the commencement of HCAL 2375/2024. The Court of First Instance has been requested to expedite the resolution of HCAL 2375/2024. I accept the Respondents’ submissions that there is no reason to expect that HCAL 2375/2024 cannot be disposed of within a reasonable given its lack of merits.

7.5  In any event, I accept the Respondents’ submissions that the lateness in the progress of the Applicant’s NRC is attributable solely to the Applicant. The Director’s Decision was made in June 2017 and the challenge made to TCAB only took place around 7 years later following the commencement of the present detention.

7.6  The current practical impediment is the Applicant’s refusal to render cooperation in completing the reentry formalities.

7.7  I accept the Respondents’ submission that the Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonable.

7.8  The Applicant’s criminal records are egregious enough to cause a significant concern over the posing of a threat or security risk to the community. The risk of (re)offending is also relevant. Were the Applicant to commit another offence, the consequent legal ramifications (potential prosecution and possible imprisonment) may delay his removal from Hong Kong. I also accept the Respondents’ submission that an important consideration in the present case is the risk of the Applicant absconding, which would frustrate the very purpose for which the detention power was conferred and exercised. I take stock of the Applicant’s persistent indications throughout the present detention of his unwillingness to be repatriated and lack of local ties. It seems to me that the assessment of the existence of such risks cannot be said to have been unreasonably reached.

7.9  In relation to his medical conditions, the evidence shows that, where necessary, the Applicant did receive medical treatment at outside facilities and records of his future appointments have been duly noted by the staff at the detention facilities. In my view, and as previous cases have decided, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required (Mansuri, Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018).

7.10  As regards the Applicant’s fear for his own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

7.11  I do not believe the offer of a cash bail and a surety have the effect out outweighing the matters identified in the preceding paragraphs to justify his release.

7.12  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  I therefore dismissed the present application with no order as to costs.