LE CONG MANH v. DIRECTOR OF IMMIGRATION

HCAL 512/2023

[2023] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 512 OF 2023

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REASONS FOR DECISION

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A.  Introduction

1.  This case throws up a conundrum caused by the interplay of (1) the Director of Immigration’s intention to remove from Hong Kong an illegal immigrant who is subject to a Removal Order, and (2) the intended prosecution of that illegal immigrant for the relevant immigration offence.  At least in this particular case, the conflict or tension arising between those two matters is stark.

2.  The issue arises in the following way.

3.  The Applicant is the subject of a Removal Order issued on 27 July 2020. He has been held in immigration detention since 16 November 2022, under section 32(3A)  of the Immigration Ordinance, Cap 115 (“Ordinance”)  which permits the detention of a person against whom a removal order has been issued pending his removal.  To the date of this hearing, the detention has lasted 153 days, or about five months.

4.  The Removal Order remains extant.  The Director maintains that continued detention of the Applicant is lawful, and that it continues to appear reasonable and appropriate in all the circumstances to detain him until he is removed.

5.  But the Applicant also faces a criminal charge of one count of illegally remaining in Hong Kong, laid against him on 14 February 2023.  The matter was brought before the Magistrate at Shatin Magistrates’ Courts on 24 February 2023.  On that date, the case was adjourned to 26 June 2023, and the Applicant was granted bail on condition “not to leave Hong Kong”.  The adjournment was granted, and no plea was taken, on the basis that the criminal proceedings should await the outcome of the Applicant’s application for leave to apply for judicial review of the refusal of his non-refoulement claim.

6.  Though the Applicant was granted bail by the Magistrate, he was nevertheless returned to immigration detention, where he remains.

7.  On the 30 March 2023, the Applicant applied for writ of habeas corpus on the ground that his detention has continued for a period which has become unreasonable and thus unlawful by reference to the Hardial Singh principles.

8.  On 31 March 2023, I gave leave for the Respondent to file and serve his response to the application and the necessary directions to bring the matter to today’s hearing.  At the hearing, the Respondent was represented by Mr Eric Ko, Senior Government Counsel, from the Department of Justice (“DOJ”). The Applicant appeared in person with the benefit of a Vietnamese/English interpreter.

9.  At the conclusion of the hearing, I ordered the Applicant to be released from detention under RHC Order 54 rule 1 and/or the inherent jurisdiction, on terms of recognizance acceptable to the Director.  I also made no order as to costs.

10.  I said I would hand down my reasons for that decision subsequently.  These are my Reasons for Decision.

B.  Background Giving Rise to the Detention

11.  The Applicant is a Vietnamese national born in 1985.  He was sighted in Hong Kong by the police in July 2020 and arrested for being a suspected illegal immigrant.  He lodged a non-refoulement claim (“NRC”)  in the same month.  He has since than been allowed to stay in Hong Kong, albeit unlawfully, pending the resolution of his NRC.

12.  Whilst he stayed in Hong Kong, he was granted immigration recognizance and was able to live in society largely freely. However, in July 2021, he was arrested for burglary, for which offence he was subsequently convicted.  In July 2022, he was sentenced to 2 years’ imprisonment.  When he was discharged from prison on 16 November 2022, he was transferred to the Immigration Department for handling and this marked the beginning of the present immigration detention.

C.  Obstacles to Removal

C1.  NRC and related proceedings

13.  Until December 2022, the removal policy adopted by the Director was that a NRC claimant liable to be removed would not be removed as long as his NRC or related judicial review proceedings were still ongoing.  With effect from 7 December 2022, the policy was changed such that a person’s NRC would no longer be seen as an impediment to removal once the NRC has reached the stage of a consequent judicial review challenge having been rejected by the Court of First Instance (“CFI”), either by a leave decision or by a substantive decision.

14.  The Applicant’s NRC was rejected by the Director in January 2021.  He then appealed against the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which rejected the appeal in April 2021.

15.  On 13 February 2023, the Applicant sought leave to challenge the Board’s dismissal by way of judicial review.  As the chronology indicates, the application was made more than six months out of time and was made only after the Applicant had already been taken into immigration detention.

16.  By letter dated 3 April 2023, the DOJ, on behalf of the Director, invited the Court to accord priority to the Applicant’s leave application.  As shown in the Court’s diary, the leave application has now been fixed to be heard on 25 April 2023.  It can be reasonably anticipated that a decision would be made on the application within a few weeks.

C2.  Travel document and approval to return

17.  When the present detention began on 16 November 2022, the Applicant’s NRC appeal to the Board had already been dismissed months before, and the judicial review leave application had not yet been issued.  At that time, therefore, there was no legal impediment to removal.

18.  The only obstacle to removal appeared to be the need to obtain a travel document for the Applicant and to seek the Vietnamese authorities’ approval for his return.

19.  The Applicant does not have any travel document of which the Director is aware.  Since the Applicant was detained, the Director has been frequently liaising with the Consulate of the Socialist Republic of Vietnam for the purpose of obtaining an approval for the Applicant’s re-entry into Vietnam and the issuance of a travel document for such purpose.

20.  It appears that the Applicant has not been fully cooperative in the process.  For example, he initially refused to submit the re-entry application or to attend interview with the relevant Vietnamese authority.  In any event, the Vietnamese authority advised the Director on 17 March 2023 that the Applicant’s travel document would be ready for collection by April 2023. Mr Ko updated me that the travel document was actually provided on 18 April 2023, with a validity of one year.  The Vietnamese authority has on 4 April 2023 also approved the Applicant’s return.

C3.  Criminal proceedings for illegally remaining in Hong Kong in STCC 629/2023.

21.  On 14 February 2023, the Applicant was charged with remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong.

22.  As the chronology indicates, the charge was brought immediately after the day the Applicant applied for leave for judicial review.  But the internal minutes suggest that the decision to prosecute was already made at the latest by 8 February 2023, and it seems that the Director was only informed of the judicial review proceedings by the Applicant’s legal representative after the Applicant had been charged.

23.  As already mentioned above, the Applicant was brought for mention in the Shatin Magistrates’ Courts on 24 February 2023.  As reflected in the court records, provided to me by the Director in the hearing bundle, the prosecution asked for no plea to be taken and for the case to be adjourned to 26 June 2023 for a second mention, pending the outcome of the judicial review leave application.  Bail was granted with the condition that the Applicant should not leave Hong Kong.

24.  Mr Ko informed me that the general prosecution’s policy is not to pursue a charge of illegally remaining in Hong Kong against a non-refoulement claimant before the determination of that claim and the determination of any application for leave to apply for judicial review at the CFI level.

D.  Review of Detention/ Notice of Detention

25.  During the currency of the present detention, the Applicant’s detention was reviewed thrice, on 2 February 2023, 23 March 2023 and 12 April 2023.  Continued detention was considered appropriate on every occasion.

26.  In the latest review, the grounds relied upon in support of continued detention are that (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat or security risk to the community; (c) he may abscond and/ or reoffend; and (d) there are no other circumstances in favour of his release.

27.  It was noted that his judicial review application will be heard on 25 April 2023.  Once the judicial review application has been resolved, a plea will be taken for the illegal remaining offence and his criminal case will be concluded.  It is also said that approval has been given by the Vietnamese authority for his return and that his travel document application is under active processing by the local authority.  These are relied upon to suggest that the Applicant could be removed within a reasonable time.

28.  His burglary conviction and imprisonment term were relied upon to support the conclusion that he poses or is likely to pose a threat or a security risk to the community.

29.  The Director also referred to his affirmation filed in support of this habeas corpus application in which the Applicant put forward a Hong Kong resident as his guarantor.  It is said that enquiry had been made with that guarantor, who stated that she is the Applicant’s paternal cousin and she is willing to stand as the Applicant’s guarantor.  However, this factor does not outweigh the other factors in support of continued detention.

30.  I also record that Mr Ko informed me that once the outcome of the Applicant’s application for leave to apply for judicial review is known, that will trigger a further review of detention.

E.  Applicable Principles

31.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

F.  Applicant’s Submissions

32.  Exhibited to his supporting affirmation are three pages of handwritten notes titled “written submissions of Le Cong Manh”. The grounds he put forward could be summarised as follows:

(1)  HS1 requires that he could only be detained for the purpose of removal.  But the Director has not been detaining him pending his removal from Hong Kong.  In fact, he was detained pending the resolution of his torture claim.  He was also detained because the immigration officer has a suspicious mind and thought that he would pose a threat or risk to Hong Kong.

(2)  HS2 and HS3 are also not satisfied.  He has been detained for a period which has become unreasonable.  He cannot be removed within a reasonable time.  The outcome of his judicial review leave application is still pending.  He said the Director has done nothing to expedite the application.  He also said that there has been no travel document for him for the purpose of his re-entry into Vietnam.

(3)  There is procedural impropriety in that the Director made an assumption that he is a threat or risk to the society which is totally false.  He has not committed any violent crime.  He is not a serious offender in comparison with other cases.  The threat or risk he poses to the Hong Kong community is very low.

(4)  There are detainees who have committed far more serious crime than him, but who were nonetheless released on recognizance.  The Director has not been acting fairly towards every detainee.

(5)  The Director has failed to take into account relevant considerations such as that he has a guarantor and he will live with that guarantor if he is to be released on recognizance.  He provided the name, the HKID number, the telephone number, and the home address of the guarantor.

(6)  The Director has failed to adhere to his own published policy without good reason (though the Applicant did not specify to which policy he was referring).

33.  As reflected in the latest review of detention, the Director had already made enquiry with the guarantor put forward in the affirmation.  Mr Ko further supplemented that the guarantor said that she indeed had never met the Applicant and the Applicant had got her address wrong.

34.  At the oral hearing, the Applicant submitted a number of matters relevant really only to his underlying NRC.  When invited to focus on the real question in these proceedings, namely whether his continued detention pending removal from Hong Kong has become unlawful, the Applicant made the following submissions (in my summary of them):

(1)  He should be released from detention, so that he can obtain legal and other assistance relating to his NRC.

(2)  If released, he would not repeat his previous mistakes, and would obey the law and any regulations.

(3)  He would also try to familiarise himself with relevant law and regulations, so as not to breach it/them.

(4)  He has relatives in Hong Kong, with whom he would stay, and one of whom will act as his surety.

(5)  He offers his commitment not to reoffend, and instead to obey all requirements as may be imposed upon him as conditions for release.  He will be present at any time on any day when his presence is required, and he would report regularly as required.

(6)  He knows he will be responsible for his actions in Hong Kong.

(7)  He seeks the Court’s leniency.

35.  Except for the last general point, which is not of great relevance to this application, I will bear these points in mind in my overall assessment below, and make reference to them as appropriate.

G.  Whether Detention has become unlawful

36.  The Removal Order remains extant.  Therefore, there was and remains clear prima facie lawful authority for the detention of the Applicant.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

37.  The starting point is that the Applicant has been detained up to today for a period of 153 days, or a little over five months.  It is against that period that the other factors are to be weighed and balanced.

38.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

39.  I accept that the Director has always been using the detention powers for the purpose of deportation.  The Applicant’s current judicial review application and the likely risks he might pose to the society are factors which the Director had to consider in deciding whether the Applicant should continue to be detained or to be released on recognizance.  But that does not mean the current detention is not for the purpose of the Applicant’s eventual removal.  HS1 is satisfied.

40.  I also accept that the Director has exercised due diligence to seek to overcome the practical obstacles to the removal of the Applicant from Hong Kong back to Vietnam.  There has been active liaison with the Vietnamese authorities, which has resulted in the recent provision of a travel document and approval for the Applicant’s return.  HS4 is satisfied.

41.  But there is the question arising from the conundrum I identified at the beginning of these Reasons.

42.  If the outstanding criminal charge is ignored, it might be said that a date when removal of the Applicant can be affected can be seen to be reasonably likely within just a few weeks.  There are no practical obstacles to removal, and the application for leave to apply for judicial review is likely to be heard and determined within one month or so.

43.  However, the outstanding criminal charge is there, and cannot be ignored.  It, and the potential consequences of it, are some of the relevant circumstances which must be taken into account in considering whether the prima facie lawful detention of the Applicant has become, or it can be seen that it will become, unlawful.

44.  As I pointed out to Mr Ko during the hearing, the steps being taken (1) to effect removal of the Applicant from Hong Kong and (2) to prosecute a charge of illegally remaining in Hong Kong are in direct conflict.  Indeed, as things stand, the removal of the Applicant cannot be put into effect because it is a condition of his bail set by the Magistrate that he must not leave Hong Kong.

45.  What is known now is that the Applicant cannot be removed from Hong Kong until at least 26 June 2023, and potentially for some longer unknown period thereafter. Indeed, the charge brought against the Applicant for the immigration offence of illegally remaining in Hong Kong has presumably been brought because the relevant prosecuting body thinks that there are reasonable prospects of a conviction and that it is in the public interest to pursue that conviction.  As a result, that prosecuting body appears to be of the view that the Applicant should not be removed from Hong Kong – at least, not yet – but instead should face the criminal consequences of his alleged offence.  Those consequences potentially include the imposition of a term of imprisonment of 15 months, being the guideline term of imprisonment for such an offence.

46.  I acknowledge that there is good reason for the policy not to prosecute a non-refoulement claimant for the offence of illegally remaining in Hong Kong whilst his claim has not been determined, and until the CFI has dealt with any application for leave to apply for judicial review.  But a good reason for a policy does not remove the conundrum or potential conflict which might arise.

47.  On the face of it, this case throws up at least the possibility that there is a lack of communication between the left-hand and right-hand:

(1)  the Director thinks it correct for the Applicant to be subject to a Removal Order, and for the Applicant to be removed from Hong Kong as soon as possible;

(2)  the prosecuting body (possibly within the same Immigration Department exercising power delegated by from the DOJ)  thinks it correct for the Applicant to be subject to criminal proceedings which are designed to prevent his removal from Hong Kong, and to elicit a criminal sanction which realistically includes a possible prison sentence to be served in Hong Kong.

48.  Seeking to retain a person in Hong Kong for the purposes of prosecuting that person, and potentially imprisoning that person, appears to be the antithesis of the desire to remove that person from Hong Kong as soon as possible.  It seems to me that some further consideration might usefully be given to such a possible conflict, and how it might as a general rule be avoided.

49.  But, for the purposes of this case, it seems to me that it is not possible to say that the Applicant will be removed within a reasonable time.  It may be that the detention to date has remained reasonable in all the circumstances, so that it may be that HS2 is satisfied.  However, as a result of the, I think it has become apparent that the Applicant will not be able to be deported within a reasonable period, such that the Director should not seek to exercise the power of detention.  In other words, HS3 is not satisfied.

50.  I have kept in mind that the Director, through Mr Ko, has properly acknowledged that when the outcome of the Applicant’s leave to apply for judicial review is known, that would trigger a further review of detention.  However, it seems to me that (other than knowledge of that outcome)  the Director already knows all the other matters which he would have to take into account on such a review.  He would know then, as he knows now, that the outcome of the application for leave to apply for judicial review does not remove a practical or legal obstacle to removal of the Applicant from Hong Kong.  That is because of the existence of the continuing criminal proceedings, and the bail condition which specifies in terms that the Applicant must not leave Hong Kong.  Therefore, I do not think it correct to suggest that it should be left until the next review to determine whether continued detention is lawful.  It has already become apparent that the Director will not be able to effect removal within a reasonable period.

51.  That is particularly so against the period of detention already served, and notwithstanding balancing all the other factors which come into play.

H.  Result

52.  For the above reasons, I ordered the release of the Applicant from detention, on terms of recognizance acceptable to the Director.

53.  It also seemed to me that, in the broad exercise of my discretion as to costs, there should be no order as to costs.