NGO QUANG DUY v. DIRECTOR OF IMMIGRATION

HCAL 1753/2021

[2022] HKCFI 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1753 OF 2021

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BETWEEN

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D E C I S I O N

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A. Introduction

1.  The applicant is currently detained in Tai Tam Gap Correctional Institution, pending his removal from Hong Kong. The detention is pursuant to the power of the Director of Immigration (“Director”) to detain him under section 32(3A) of the Immigration Ordinance. All references in this Decision to sections of an Ordinance are to sections of that Ordinance.

2.  On 24 December 2021, the applicant filed an originating summons applying for a writ of habeas corpus ad subjiciendum. The grounds of the application are set out in the affidavit, summarised by the statement that the applicant feels his detention is unlawful. The exhibited two letters identify the grounds for the requested release to be, in gist: (1) that he has health problems and wishes to seek treatment outside of detention; (2) that he wishes to stay with his younger sister in Hong Kong, for them to care for each other; and (3) that he has made an application for leave to apply for judicial review of the refusal of his non-refoulement claim, and he wishes to await the result of that application in HCAL 1317/2019.

3.  On 3 January 2022, I directed the application to be heard on 11 January 2022. However, on that date the applicant was unable to attend court through ill-health and/or whilst awaiting the result of a Covid test. Therefore, I re-fixed the hearing for this afternoon.

4.  The applicant appears in person. The Director, as respondent to the application, is represented by Ms Angel Zhi, Acting Senior Government Counsel (though the Director’s skeleton submissions were also signed by Mr Sunny Li, Senior Government Counsel). The Director has also helpfully provided a bundle of background documents which underpin the facts stated in the following background and chronology.

5.  Having heard the application this afternoon, this is my Decision.

B. Background and Chronology

6.  The applicant is a Vietnamese national.

7.  On 26 December 2013, the applicant was arrested by the Hong Kong Police for being a suspected illegal immigrant. On 22 January 2014, the applicant was removed from Hong Kong to Vietnam.

8.  However, on 8 May 2014, the applicant was again arrested by the police for being a suspected illegal immigrant, and was referred to the Immigration Department.

9.  On 22 May 2014, the applicant indicated his intention to lodge a claim for non-refoulement protection in Hong Kong. On 27 May 2014, he was released on recognizance.

10.  On 12 February 2018, the applicant’s non-refoulement claim was refused by the Director. On 13 December 2018, the applicant’s appeal/petition against that refusal was dismissed by the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“Board”).

11.  In the interim between the decisions of the Director and that of the Board, on 28 March 2018, the applicant was convicted of the offence of possession of a dangerous drug and was fined HK$800.

12.  On 10 January 2019, the applicant failed to report recognizance and absconded. He was arrested on 1 February 2019, and the following day referred to the Immigration Department. The Applicant was detained under section 32(2A).

13.  On 3 February 2019, a removal order was made against the applicant, and he was thereafter detained under section 32(3A), pending his removal from Hong Kong.

14.  On 16 May 2019, the applicant filed his Form 86 in HCAL 1317/2019, seeking leave to apply for judicial review from the decision of the Board.

15.  On 1 July 2019, the applicant was released on recognizance. However, the applicant has been arrested whilst on recognizance six times, in relation to shoplifting offences. On the first occasion, he was convicted of the offence and sentenced to one week’s imprisonment. Thereafter, he was sentenced to several terms of between three and six months’ imprisonment.

16.  On each of the later five occasions, the applicant was released on recognizance shortly after being discharged from prison, and was then again arrested for theft (shoplifting).

17.  On 24 July 2021, the applicant completed his latest sentence of four months’ imprisonment. After discharge from prison, he was referred to the Immigration Department and detained under section 32(3A). That detention continues until the present day.

18.  However, the detention has been kept under regular review, with reviews conducted on 26 August 2021, 21 October 2021, 30 November 2021, 24 December 2021 and 10 January 2022. In each of the reviews, the Director has maintained the decision that the applicant’s detention should be continued.

19.  The only current impediment to the applicant’s removal from Hong Kong is his outstanding application for leave to apply for judicial review. From enquiries made of the Court, and by the Court, it seems that the Deputy High Court Judge tasked to handle the case is now actively seized of the matter and, I would think, likely to expedite the relevant hearing.

20.  When the applicant was deported in 2014, his identity was verified by the Vietnamese authorities and he was issued a laissez-passer, which was subsequently renewed in March 2019. Since the coming into force of section 37Z(2)(c)(i) in August 2021, the Immigration Department has been actively liaising with the Vietnamese authorities for approval of the applicant’s return to Vietnam.

C. Applicants’ Further Submissions

21.  At this hearing, the applicant has placed most emphasis upon his health condition. He has explained that his health is not good, that he suffered from haemorrhoids and difficulties with the stomach, often leading to diarrhoea. He has explained that he sometimes became dizzy and lost consciousness in the toilet. But he said that all that happened was that he was taken to the clinic within the Correctional Institution and was given a few pills or painkillers, which were insufficient. He emphasised that his own father had suffered from similar problems, that this was a serious illness, and that he ought to get outside medical help. Therefore, he wished to apply for bail, as he put it, so as to seek medical attention.

22.  The applicant also expressed that he knew what he had done was wrong, that he was remorseful, and that he promised that, if released from detention, he would not commit any crimes in Hong Kong. He also suggested that the offences previously committed by him were relatively small matters, and that other persons who had committed such offences were given bail.

23.  I take all the matters raised by the applicant in his written materials and oral submissions into account.

D. Applicable Legal Principles

24.  The relevant legal principles governing an application of this nature are well-settled, and do not need to be traversed at any great length. The core question is whether the detention is unlawful, which requires the Court to consider (1) whether the detention was made with proper legal authority, and if so (2) whether the continued detention remains lawful in compliance with the principles identified in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 as adopted in Hong Kong by the Court of Final Appeal in Ghulam Rbani v SJ for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 at §§21-25.

25.  There are essentially four underlying principles, namely that: (1) the authority must intend to deport the person and can only use the power to detain for that purpose; (2) the deportee may only be detained for a period that is reasonable in all the circumstances; (3) if, before the expiry of the reasonable period, it becomes apparent that the authority will not be able to effect deportation within that reasonable period, the authority should not seek to exercise the power of detention; and (4) the authority should act with reasonable diligence and expedition to effect removal.

26.  As to how long a period of detention is to be regarded as reasonable, there are a number of factors that can be taken into account and applied to the particular circumstances of each individual case. It is settled that the matters to consider include at least: the length of the period of detention; the nature of the obstacles standing in the way of deportation; the diligence, speed and effectiveness of the steps being taken to surmount such obstacles; the conditions in which the detained person has been kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.

27.  Similar, albeit not exactly co-extensive, matters are stipulated in the new section 32(4A), which also came into force in August 2021. That subsection specifies that the detention under section 32 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 in the case of a person being detained pending removal from Hong Kong those matters set out in the subsection.

E. Application of Principles to this Case

28.  As indicated above, the applicant is detained under section 32(3A), following the making of the removal order against him. That detention was authorised under the section by the Director. As the removal order and authorisation have remained extant at all times during his detention, there is prima facie lawful authority to detain the applicant pending removal.

29.  As to the four Hardial Singh principles:

(1) The applicant, being subject to the removal order, can be removed at any time, save for the current impediment of the outstanding application for leave to apply for judicial review. The Vietnamese Consulate has previously confirmed the applicant’s identity by issuing him a laissez-passer. The power to detain is being used pending the intended deportation.

(2) I accept the submission made on behalf of the Director that the period of the applicant’s detention has been reasonable in all the circumstances. The timing of the determination of the applicant’s application for leave to apply for judicial review is not within the control of the Director, but the Director is entitled on the available information to consider that the application – itself made significantly out of time after the Board’s decision – is a weak one, without good prospects of success. Indeed, the challenge actually discloses no ground for intended judicial review, and it is not the role of the Court to usurp the Board’s role as the primary decision maker, absent any identified public law error. Further, the Director is entitled in the circumstances to consider that the applicant poses, or is likely to pose risks, of absconding and re-offending. He has previously absconded, and whilst on recognizance he has repeatedly committed crimes. The applicant’s reliance on the fact that his younger sister would help to ensure that he did not abscond is not supported by his history. Doubt is also cast on his credibility by his claim that his sister was undergoing treatment for cancer, which enquiries with the sister show to be incorrect. Nor does the applicant’s medical condition render the detention unreasonable, where appropriate medical care and treatment is available for detainees either at the Correctional Institution or if necessary at a hospital.

(3) It is reasonable to expect that the applicant’s application for leave to apply for judicial review can be disposed of soon. The Deputy Judge seized of the matter has made enquiries, and has been informed of the applicant’s detention.

(4) The Director has, on the evidence, exercised due diligence to affect the applicant’s removal, by expeditious issuing of the removal order and by providing relevant documents promptly in response to enquiries from the Court. The Director has also conducted active liaison with the Vietnamese authorities.

30.  As to the points made by the applicant, the thrust of them has of course essentially already been taken into account by the Director. In my view, none of the points tip the balance so as to suggest in any way that the applicant’s continued detention, originally lawful, has somehow since become unlawful. In so saying, I do not belittle the pain, discomfort and concern which is described by the applicant. However, the applicant is able to seek medical assistance at the Centre Hospital of the Correctional Institution, which is overseen by professionally trained staff well-versed in nursing and dispensing knowledge. He has done so. Further, consultations can be arranged with doctors, and when medical conditions warrant it, attendance at outside specialists or the Accident and Emergency Department of the Hospital Authority will be arranged. This has also happened, as the applicant was recently seen at the Queen Mary Hospital and received treatment and prescriptions there. There is no evidence to suggest that the applicant is any way medically unfit for continued detention.

31.  In the circumstances, I am satisfied that the original detention of the applicant was lawful and that the continued detention remains Hardial Singh compliant and lawful.

F. Result and Costs

32.  The applicant’s application for writ of habeas corpus is dismissed.

33.  As to costs, Ms Zhi accepts that there is no general rule that costs of such an application should follow the event, and the question of costs is approached on a more liberal basis, requiring the exercise of discretion depending on the facts and circumstances. However, Ms Zhi submits that there are no arguable grounds raised in this application, which is plainly unmeritorious, so that costs should be awarded to the Director upon the dismissal of the application.

34.  I see some force in that submission. However, in the practical circumstances, there seems to me to be little point in making a costs order on this occasion. That is not to encourage any future application with similar lack of merit, but is simply to recognise the practical realities as they currently stand. Therefore, in the exercise of my discretion on the facts and circumstances of this case, I make no order as to costs.