GURUNG SANTA BAHADUR v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 897/2022

[2022] HKCFI 3059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 897 OF 2022

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D E C I S I O N

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A.   Introduction

1.  The Applicant is currently held in immigration detention, and has been detained under various detention authorities of the Immigration Ordinance Cap 115 (“Ordinance”) since 6 December 2020.

2.  Up to today, that is a period of 1 year and 20 months, or 669 days.

3.  By his application dated 8 September 2022, the Applicant applies for writ of habeas corpus, on the basis set out in his accompanying affirmation that [sic]:

I hereby set forth to challenge the Immigration Dept.  For the “unlawful detention”.  Immigration has abuse the power of executive power.  The purpose of the power of detention is to remove a person, not for the protection of public safety.  A judge will discharge a person if it appears clearly that the act for which the party is committed is no crime – Halsbury’s Laws of Hong Kong 2022 vol. one(1)

also attached Habeas (written submissions) Corpus case bundle

4.  On 19 September 2022, I gave directions to bring this matter to this hearing.  Those directions included for the Respondents (“Secretary” and “Director” respectively) to file an initial response to the application, which was filed on 28 September 2022.

5.  The Applicant has appeared in person at the hearing, and made oral submissions to supplement his written materials.

6.  The Secretary/Director have been represented by Ms Hikki Wong, Senior Government Counsel, who signed the initial response, upon which she relied at the hearing.

B.   Background Facts

B.1    Immigration Status

7.  The Applicant is a Nepalese national who last arrived in Hong Kong on 27 September 2013, and was permitted to remain as a visitor until 2 October 2013.  The Applicant did not depart Hong Kong as required, and has been overstaying since 3 October 2013.

8.  On 29 December 2015, a Removal Order was made against the Applicant under section 19(1)(b) of the Ordinance.

9.  On 15 July 2022, a Deportation Order was made against the Applicant under section 20(1)(a) of the Ordinance, with reference to and in reliance upon the Applicant’s conviction of the offence of trafficking in a dangerous drug during his overstaying in Hong Kong.  On 22 February 2018, the Applicant was sentenced for that offence to 2 years and four months’ imprisonment.

B.2    NRC and related legal proceedings

10.  On 26 November 2014, the Applicant indicated his intention to lodge a non-refoulement claim (“NRC”), which was later rejected by the Director on 17 April 2018.

11.  On 30 April 2018, the Applicant filed a Notice of Appeal/Petition against the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

12.  On 16 August 2018, the Board dismissed the appeal/petition.

13.  On 31 August 2018, the Applicant filed an application for leave to apply for judicial review (“JR”) against the Board’s dismissal decision.

14.  On 30 June 2020, the Applicant’s JR leave application was refused by the Court of First Instance (“CFI”).

15.  On 26 January 2021, the Applicant filed a summons (“CFI Summons”) seeking an extension of time within which to appeal from that refusal, and for leave to advance a new ground of appeal.  The CFI Summons was dismissed on 20 April 2021.

16.  On 20 May 2021, the Applicant filed a summons (“CA Summons”) in the Court of Appeal seeking an extension of time to appeal against the CFI’s refusal of his JR leave application.  The CA Summons was dismissed on 1 April 2022.

17.  On 14 June 2022, the Applicant filed a Notice of Motion (“CA NoM”) to the Court of Appeal seeking leave to appeal to the Court of Final Appeal (“CFA”) against the dismissal of the CA Summons.  The CA NoM was, in accordance with the usual practice, determined on paper without an oral hearing.  The CA NoM was dismissed on 30 September 2022.  The dismissal was on the basis, amongst other things, that the Applicant had not shown any merits in his intended appeal, and what he had set out in his written submissions and the CA NoM was plainly unarguable, and in any event did not satisfy the requirements of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484.

18.  At present, the Applicant has taken no further step, but he indicated at the hearing today that he would like to continue his “fight” against the decision of the Board and so will apply to the CFA.

B.3    Detention and Reviews of Detention

19.  As stated, the present period of detention commenced on 6 December 2020.  Prior to that, the Applicant had been subject to detention under the Ordinance but had been released on recognizance.  He failed to report recognizance on 21 August 2020, after the refusal of his JR leave application by the CFI.  He was rearrested by police on 4 December 2020 and referred to ImmD, which revoked the release on recognizance and detained him pursuant to section 32(3A) of the Ordinance.

20.  Following the making of the Deportation Order against the Applicant on 15 July 2022, the Applicant was detained under section 32(3) of the Ordinance.

21.  During the period of detention, there have been a number of reviews of detention authority by the Secretary (or Principal Assistant Secretary for Security (“PAS for S”)) and reviews of whether to release the Applicant on recognizance by the Director.  The various internal minutes identify the Secretary/PAS for S/Director have consistently taken the view that detention is authorised and that release on recognizance is not warranted, on the following consistent grounds: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant poses, or is likely to pose, a threat or security risk to the community; (3) the Applicant may abscond and/or (re)offend; and (4) there are no other circumstances in favour of the Applicant’s release.

22.  In the last review by the Director, the minutes identify the consideration (on the facts as there set out) being as follows:

Recommendation

2.  Subject has been detained for over one year and nine months since 06-12-2020 under different detention authorities pending inquiry as to whether a deportation order ought to be made against him and pending removal / deportation from Hong Kong.  As regards his judicial review in relation to his non-refoulement claim, assistance had been sought from the DoJ for the issuance of a letter on the progress of the proceedings to the Court and there is no sufficient reason to believe that his legal proceeding cannot be finalized within a reasonable time.

3.  Regarding subject’s re-entry to Nepal, a one-way travel document which was previously issued by the NPL CG on 09-06-2022.  Given the said travel document expiring on 09-09-2022, further liaison was made with the NPL CG for the issuance of a replacement travel document.  On 26-09-2022, a new one-way travel document was issued by the NPL CG to subject.

4.  Subject is a serious crime offender and a subject of deportation order.  He is likely to pose a threat to the local community.  On 22-02-2018, subject was convicted of the offence of “Trafficking in a dangerous drug” and was sentenced to two years and four months’ imprisonment.  The said offence under section 4 of the Dangerous Drugs Ordinance, Cap. 134, on conviction on indictment, is liable to a fine $5,000,000 and imprisonment for life and is considered to be a serious one as it is a deportable offence under section 20 of the Ordinance.  The conviction and sentence imposed by the Court also reflected the potential gravity of risk of commission of further offence(s) if released on recognizance.  After his previous release on recognizance, Subject had once failed to report for recognizance until he was re-arrested by the Police.  On the facts, there is a real risk that Subject, if released, will not only abscond but also commit criminal offence(s) as supported by his previous records.

5.  Subject’s family connection in Hong Kong, two HKPRs willing to act as his guarantors and the claimed health problem of subject’s claimed fiancée have been taken into consideration but such factors do not outweigh the factors against release of subject as above.

6.  Notwithstanding subject has been detained for over one year and nine months under different detention authorities pending inquiry as to whether a deportation order ought to be made against him and pending removal / deportation from Hong Kong, assistance had been sought from the DoJ regarding his judicial review in relation to his non-refoulement claim for the issuance of a letter informing the Court of subject’s detention and seeking the assistance to accord priority to the said application and there is no sufficient reason to believe that his legal proceeding cannot be finalized within a reasonable time.  Together with the fact that a NPL one-way travel document has been issued to subject, there is reasonable prospect of effecting his deportation within reasonable time in the foreseeable future.  As mentioned above, there is a real risk that subject may abscond and commit criminal offence(s) if released on recognizance.  The potential gravity of offence(s) committed, if subject is released, is high as supported by his previous records.  Should subject’s judicial review be finalized, arrangement will be made to effect his deportation as soon as practicable, subject to no other unusual circumstances or impediment hindering his deportation.  Having considered all relevant circumstances and balancing all factors including the time of detention of subject over one year and nine months and the above-mentioned PAS’s conclusion on the review of subject’s detention, this is not a case warranting release of subject on recognizance in lieu of his detention under section 32(3) of the Ordinance pending his deportation from Hong Kong.

23.  The recommendation was considered by immigration officers in ascending rank, who hand wrote their comments as follows:

(1)  SIO(RAL)RD14:

Subject has been detained for more than 1 year and 9 months since 6-12-2020 pending removal from Hong Kong.  Regarding subject’s JR application, assistance has been sought via DoJ for the court to accord priority in processing the JR as subject claimed that he had lodged Notice of Motion on 14-6-2022, there is no indication that subject’s JR cannot be determined in a reasonable foreseeable future.  With a valid emergency travel document issued, subject’s removal can be effected once his JR is finalized. Subject had a real risk of re-offending and absconding if release on recognizance, based on his previous conviction and absconded record.  Having considered all circumstances of the case and balancing all relevant factors, it is supported that this is not a case warranted release subject on recognizance.  Para. 2-6 are supported, please.

(2)  CIO(RAL)RD2:

Subject has been detained for more than one year and nine months since 6-12-2020.  He claimed that he had failed a Notice of Motion in relation to his NRC.  Even if accepting this subject had filed the said Notice of Motion, it is no reason to suggest that it cannot be concluded written reasonable time.  Having considered all circumstances of the case and balancing all factors, including the period of detention, I support that this is not a case warranty the release subject on recognizance.  Para 2 to 6 are supported please.

(3)  APIO(RAL)3:

The present case concerns a NPL male, a DO subject, who has been detained for close to 1 year and 10 months.  Regarding his JR case, assistance has been sought though DoJ for sending letter to the court to inform, among others, current detention of subject, while the said JR case has reached the Court of Appeal. There is no indication that subject’s JR case cannot be determined in a reasonable foreseeable future.  With a valid travel document received from the local NPL CG.  Accordingly, subject’s removal can be effected in a reasonable time.  He is a serious offender as reflected by his conviction and there is a real risk of his re-offending and absconding of released, his local connections and claimed circumstance had been duly taken into account but such cannot outweigh grounds for detention in particular given the possible imminent in a near future.  All factors balanced, para 2-6 supported

(4)  PIO(RAL):

I am aware that subject has been detained for 21 months.  He is a subject of D.O. pending to be removal from HK.  Having balanced relevant factors, including detention period, past criminal record and gravity, risk of absconding, JR development, re-entry readiness, etc.  I consider this is not a case warranting release on recognizance.  He shall be removed once no legal impediment.

B.4    Steps for Removal

24.  On 9 December 2020, ImmD sent a chaser letter to the Consulate General of the Federal Democratic Republic of Nepal (“Nepal CG”) seeking re-entry of the Applicant.

25.  On 29 January 2021 the Nepal CG issued a one-way travel document in respect of the Applicant, valid until 28 April 2021.

26.  Following the dismissal of the CFI Summons, a letter was sent to the Nepal CG seeking re-entry of the Applicant.  Further chasing letters were sent on 5 October 2021 and 22 February 2022.

27.  On 6 April 2022, the Applicant attended an interview where he stated he was unwilling to go back to Nepal, and he refused to submit a re-entry application.  As a result, on 8 April 2022, ImmD wrote to the Nepal CG seeking possible alternative means to issue him a travel document.  A chaser letter was sent on 20 May 2022.  On 9 June 2022, the Nepal CG issued a one-way travel document in respect of the Applicant, valid until 8 September 2022.

28.  On 13 September 2022, a letter was sent to the Nepal CG, seeking re-entry of the Applicant.  On 26 September 2022, the Nepal’s CG issued a one-way travel document in respect of the Applicant, valid until 25 December 2022.

29.  Ms Wong informed me this morning that in light of the dismissal of the CA NoM, and because there is no legal impediment to removal, a removal flight has been arranged for the Applicant on 14 October 2022.

C.   Applicable Principles

30.  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.

31.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D.   Applicant’s Further Submissions

32.  In the bundle of further documents referred to by the Applicant in his affirmation, there are a number of submissions, which I think can be broadly summarised as follows:

(1)  his removal is not going to be possible within a reasonable time, and that ought to have been recognised on various earlier occasions when he had outstanding civil proceedings;

(2)  there is no certain time that can be confirmed for those proceedings to end, and ImmD are unable to identify the time when he might realistically be removed from Hong Kong;

(3)  he has a ‘guarantor’ in the form of his fiancée, the holder of a Hong Kong identity card, with whom he will live and who will ensure he abides by the law and reports recognizance on time;

(4)  his fiancée had brain surgery to remove a tumour, when the Applicant accompanied her to hospital for all appointments and follow-up, but she has since suffered from depression and hyperactivity, with two suicide attempts arising from the long separation from the Applicant, who she says is important for her physical and mental health recovery;

(5)  he has another ‘guarantor’ in the form of his cousin, who has been supporting the financial expenditure and other necessary care of the fiancée;

(6)  the guarantors and family in Hong Kong “should militate the risk” of his absconding;

(7)  the explanation for his previous failing to report recognizance arose from his suffering flulike symptoms and in the context of pandemic control in the Yau Ma Tei area where he resided;

(8)  despite his prior criminal record, which were not of a serious nature nor acts of violence, he does not pose and is not likely to pose a security risk or threat to the community of Hong Kong;

(9)  he has paid his debt to society and further to detain him does not benefit any person or government department;

(10)  he thinks he has been badly treated by being recently moved to Stanley Prison for a while as a result of Covid-19 precautions, though he has now been moved back;

(11)  in various ways (which he explains) he has been treated as a ‘prisoner’ rather than as someone in administrative detention.

33.  The written submissions also contain various references to legal authority (in a photocopied form apparently used in applications by number of persons), but with little by way of specifics as to how any particular principle applies to his case.  In any event, the relevant legal principles are settled (see above).

E.   Merits of Application

34.  On behalf of the Secretary/Director, Ms Wong correctly identifies the central question as being whether there is, and continues to be, lawful authority for detention of the Applicant, where the burden is on the Secretary/Director to show that the detention is lawful.

35.  In this case, I agree that there is prima facie lawful authority by virtue of the Ordinance for the present detention of the Applicant.  Therefore, the focus is on whether the detention has become unlawful.

36.  The starting point must be to recognise that the Applicant has been detained for a significant period of time, 669 days.  It is against that factor that the other factors need to be weighed and balanced.

37.  One of the factors to be taken to account is that relevantly identified in section 32(4A)(d) of the Ordinance, namely where the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including his not obtaining or not providing assistance to obtain any authorisation from the relevant authorities of a place outside Hong Kong that is required for his entry to that place.  It is clear that the Applicant has been uncooperative, and that some of the obstacles to removal are self-inflicted.  Further, the Applicant’s approach to the NRC and related legal proceedings has been somewhat lacklustre, and fraught with his own delay.  In particular, the recent proceedings in the Court of Appeal, by the CA Summons and the CA NoM have arisen from the Applicant’s own significant delay in seeking an appeal against the refusal of his CFI Summons (where the Court has rejected his explanations as justifying that delay, and has stated that the application lacks any merit in any event).

38.  The CA NoM having recently been dismissed, there is now no legal impediment to the Applicant’s removal.  Further, despite his own lack of cooperation, the Applicant has been provided with a travel document.  It is therefore fair to say that removal of the Applicant is possible within a reasonable time.  Indeed, as mentioned above, a removal flight has now been arranged for 14 October 2022.

39.  Even if the Applicant chooses to go ahead with a further application to the CFA, its prospects appear to be extremely weak (which I take into account), and there is no reason to suppose it could not be dealt with swiftly.

40.  I also agree with Ms Wong that, in that light, appropriate weight should be given to the Secretary’s/Director’s assessment of the risks that the Applicant will abscond and/or reoffend.  The Applicant has previously absconded, and was only picked up upon his arrest on suspicion of another offence.  Further, the risk of reoffending is not low, and the potential gravity of any offence committed is also not low.

41.  Looking specifically at the Hardial Singh principles:

(1)  The Secretary/Director do intend to deport the Applicant and is only using the power to detain for that purpose.  Indeed, the Secretary/Director intend to remove the Applicant as soon as possible, where there is currently no legal impediment against removal and emergency travel documents have been obtained.  HS1 is satisfied.

(2)  The Secretary/Director have acted with reasonable diligence and expedition to effect removal, including by the obtaining of the emergency travel document.  HS4 is satisfied.

(3)  Where there is no legal impediment to removal at present, and some of the previous impediments were the result of applications with little if any merit (and any further step appears to have even less if any merit), and where efforts have been made to secure the necessary emergency travel documents, I think the Secretary/Director were correctly of the view that the Applicant could likely be removed within a reasonable period of time.  HS3 is satisfied.

(4)  Lastly, I agree that the risk that the Applicant will abscond if released from detention is not low.  That risk is of critical and paramount importance in the assessment of the lawfulness of detention, because if the Applicant were to abscond, it would defeat the primary purpose for which the power to detain has been conferred and exercised. 

(5)  Further, though the Applicant has some close local connections to Hong Kong, and in particular a fiancée and family members such as the cousin, I do not think those matters are particularly weighty in the current overall circumstances.  For example, upon his removal (likely within a reasonably short time), the Applicant will in any event be separated from his fiancée unless she chooses to join him.  There seems to be no other factor pointing in favour of release on recognizance.

42.  Balancing matters overall – and keeping firmly in mind that the period of detention to date is 669 days – I nevertheless conclude that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances.  HS2 is satisfied.

F.   Result

43.  The Applicant continues to be lawfully detained.  The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

44.  I make no order as to costs.