KO KANG SUK v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1437/2023

[2023] HKCFI 2461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1437 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is subject to a Removal Order dated 6 June 2023, issued under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”), as well as a Deportation Order dated 19 July 2023, issued under section 20(1)(a) of the Ordinance.  He has been held in immigration detention since 16 May 2023, following his discharge from serving a term of imprisonment.  Hence, the current period of detention to date is 135 days, or about 4 months.

2.  By application dated 17 August 2023, the Applicant seeks a ripped of habeas corpus, seeking his immediate release from detention on the basis that it has become unlawful.

3.  I gave directions for an initial response to be filed by the Respondents (“Director” and “Secretary” respectively), and for that matter to come to hearing today.

4.  At the hearing, the Applicant appeared in person (and although there was a Korean/English interpreter available, the Applicant addressed the Court in English).  The Director/Secretary were represented by Mr Thomas Tong, Government Counsel who signed the initial response.

5.  This is my Decision.

B.  Background

B.1  Immigration Status

6.  The Applicant is a Korean national, born in 1982.  He arrived in Hong Kong on 28 August 2018, on his Korean passport.  He was permitted to remain as a visitor until 26 November 2018, but did not leave within that period.

7.  On 29 May 2019, the Applicant attempted to depart from Hong Kong, but was found to have overstayed and was reported to the Immigration Department (“ImmD”) for investigation.  On 12 June 2019, the Applicant was convicted of breach of condition of stay, and was sentenced to 12 days’ imprisonment, suspended for two years, and fined HK$1,000.

8.  The Applicant was issued with a notice requiring him to leave Hong Kong on before 20 June 2019, but he did not depart and attempts to locate him were in vain.  He was located after more than a year underground, when arrested by the Police for conspiracy to cheat and defraud, on 18 August 2020.

9.  On 28 October 2022, the Applicant was convicted on two counts of conspiracy to steal and breach of condition of stay, and sentenced to a total of 23 months and 3 weeks’ imprisonment.  It was upon discharge from that imprisonment that the current administrative detention began.

10.  During detention, the Removal Order and then Deportation Order were made.

11.  Earlier, by letter dated 8 September 2020, the Consulate General of the Republic of Korea informed ImmD that the Applicant is wanted by Korean police, and subject to a warrant of arrest issued by the Korean court and an Interpol Red Notice.  Deportation of the Applicant back to Korea was requested.

B.2  Applicant’s Non-Refoulement Claim

12.  Whilst on remand, the Applicant raised a non-refoulement claim (“NRC”) on 14 September 2020.  This was rejected by the Director on 19 January 2021, and the Applicant’s appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”) on 28 April 2023.

13.  On 16 June 2023, the Applicant filed an application for leave to apply for judicial review against the Board’s decision.  The application was heard on 8 August 2023, following requests for the Court to accord priority to it.  The Court informed that the decision would be ready within September 2023.  Eventually, on 21 September 2023, the Applicant was granted leave to apply for judicial review of the Board’s decision.  At the time of granting leave, the Court also ordered the Applicant to issue the Originating Summons within 14 days.

14.  Nevertheless, I accept Mr Tong’s submission that the Applicant appears to have been a deliberate overstayer in Hong Kong, where it was only after his arrest that he raised his NRC for the first time on 14 September 2020.  I do not think it convincing for a person with the level of education of the Applicant to say that the delay in raising the NRC was because did not know he could do so, or how to do so – not least when he says, almost in the same breath, that his coming to Hong Kong was driven by a desire to seek asylum.

15.  Now that the Applicant has been granted leave to apply for judicial review of the Board’s decision, an assessment can be made as to the time within which that application would be determined.  When pressed at the hearing to identify a likely timescale, Mr Tong suggested that – from the experience of previous cases – the substantive judicial review application can be expected to be completed within three months after the filing of the Originating Summons.

16.  In the context of the overall consideration necessary for the current habeas corpus application, I think it appropriate to bear in mind on what basis the Applicant was granted leave to apply for judicial review.  The application arose out of the decision of the Board where the Applicant had failed to attend the oral hearing on 9 August 2022, and the Adjudicator proceeded to deal with the appeal in his absence and on paper.  The Applicant’s intended grounds of judicial review were summarised by the Judge as being:

(1)  That the Board was wrong and/or unfair and/or unreasonable to find that the Applicant had failed to attend the scheduled hearing or to provide any explanation for his failure or to request for another hearing when in fact the Applicant had never been properly served or received the notice of hearing or the subsequent request for him to explain for his absence or to ask for another hearing from the Board.

(2)  That it was procedurally unfair in the circumstances for the Board to proceed to determine the Applicant’s appeal without scheduling another oral hearing given the earlier delays caused to his appeal and his extended periods under the police’s remand or detention and instead proceeded to determine his appeal in his absence.

(3)  That the Board erred in law in rejecting the Applicant’s claim or appeal on credibility on the basis that he failed to attend the hearing to enable the Board to assess the credibility of his claim.

17.  The Judge refused to grant leave on the first two grounds, and granted leave only on the third ground, holding that it is reasonably arguable that the Board had erred in law in rejecting the credibility of the Applicant’s claim without making any or proper findings as to the primary facts of his NRC, or if it did that it failed to give any or sufficient reasons for dismissing his appeal.

B.3  Criminal Record and Absconding Record

18.  The Applicant’s criminal record has been identified above.

19.  The Applicant jumped court bail on 11 June 2019, and a warrant of arrest was issued against him.  He surrendered to the Court on 12 June 2019.  (Whilst I note this occasion, I do not think it is of significant seriousness in context, perhaps also in light of the explanation offered by the Applicant, even if that explanation is difficult to reconcile entirely with the issue of the warrant of arrest.)

20.  After he was convicted for breach of condition of stay, he was required to leave Hong Kong, but failed to do so and went underground until arrested by the Police on 18 August 2020.  (This is obviously the much more serious event of absconding.)

B.4  Present Detention

21.  The Applicant has been detained pursuant to various powers under the Ordinance.  As already stated, he is now subject both to a Removal Order and a Deportation Order.  He is currently detained under section 32(3) of the Ordinance which authorises detention of a person subject to a deportation order, pending that deportation.

22.  During the detention, the Applicant has consistently expressed unwillingness to return to his home country.  Nevertheless, the Korean Consulate has confirmed that it would issue an emergency travel document to the Applicant once informed of the date of his removal/deportation.  There is no issue as to the Applicant’s identity.  Indeed, the Korean Consulate wishes the Applicant to be deported to Korea as early as possible.

23.  Various reviews of detention have been conducted.  It has consistently been considered that there were grounds for continued detention of the Applicant.  Following the grant of leave to apply for judicial review, a further review of detention was conducted on 22 September 2023. At that time, the PAS for S considered that the Applicant should continue to be detained pending deportation, and the Director did not recommend release on the cognizance on the grounds that: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) the Applicant poses, or is likely to pose, a threat or security risk to the community; (c) the Applicant may abscond and/or re-offend; and (d) there are no other circumstances in favour of the Applicant’s release.

C.  Applicable Principles

24.  The applicable principles in the present context are well established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  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 any individual case.

25.  It is to be borne in mind that the burden is on the Director/Secretary in this case to justify the continuation of detention as being reasonable in all the circumstances, hence lawful.

D.  Applicant’s Submissions

26.  In the written materials provided by the Applicant in support of his application, he made the following points (in my summary of them):

(1)  He has been held in detention since 16 May 2023, which is unnecessary to the point of being unlawful, and without sufficient risk to justify the length of detention.

(2)  The Director has failed to give proper consideration to whether removal can be effected within a reasonable time, not least against the significant time already spent by the Applicant in detention.  No concrete assessment has been made as to when the Applicant might actually be removed.

(3)  Continuing to detain him has become unreasonable in the absence of any material change in circumstances, in breach of HS2.

(4)  The Applicant has outstanding legal proceedings impeding removal.  Therefore, removal will not be possible within a reasonable time in breach of HS3.

(5)  Holding the Applicant in detention no longer has anything to do with removing him from Hong Kong, and so is in breach of HS1.

(6)  The Applicant poses no likely threat or security risk to the community.  His previous conviction does not evidence any such risk, not least because it was not a crime of serious or violent nature.

(7)  Nor is there any real risk of absconding.

(8)  The Applicant can provide a guarantor and an address where he would reside if released.

27.  At the hearing, the Applicant made submissions in English, with a cogency which might be expected of a person who obtained a Master of Business Administration in the United States, and subsequently worked as a financial analyst in New York.  The submissions which he made can be summarised as follows:

(1)  During detention, he has been cooperative in complying with the necessary pre-entry application for any potential return to Korea.

(2)  There is no realistic prospect of removal within a reasonable time, now that he has been granted leave to apply for judicial review.  Though the judicial review Court has required filing of the originating summons within 14 days, the Applicant does not know how to do that, and will seek legal aid assistance.  Making a legal aid application will probably take three months, and then time will be taken for the determination of the judicial review application.

(3)  The Director’s suggestion that the proceedings will be brought to a conclusion within a reasonable time is not a proper assessment, as it assumes that the judicial review will fail.  Because it may not fail, there can be no realistic timescale identified when the NRC might be finalised.

(4)  The DOJ may also settle the judicial review application and agree that the NRC be remitted back to the Board.

(5)  Any hearing before the Board will require significant time, including answering any questions that may be posed.

(6)  Even if the Board decides against the Applicant, he can once again seek to apply for leave for judicial review.

(7)  That whole process will not take a short time, but a significant period of time.

(8)  As a result, it can comfortably be said that HS3 is not satisfied.

(9)  Further, when assessing the weight to be given to the period of detention was done appeal is being maintained, it is necessary to consider the apparent merits of the appeal.  Where the Applicant has been granted leave to apply for judicial review, it ought to be recognised that he has been detained for a period during which he was pursuing an application which was at least not hopeless, and might be said to have some merit.

(10)  As to the Director’s assessment of absconding, the Director has unfairly failed to take into account the full matters. Importantly, the Applicant was granted bail by the High Court pending the trial – and later during the entirety of the trial – of the conspiracy matters on which he was subsequently convicted.  The Applicant complied in full with the terms of bail, namely surrendering his passport and reporting every Monday, Wednesday and Friday to a police station for a period of over 70 weeks.  The Applicant also attended every day of the trial, and arrived each day on time, each day of the trial from May to July. 

(11)  Those matters, which occurred more recently than the period of absconding relied upon by the Director, should as a matter of fairness be taken into the assessment of risk of absconding.  If that is done, the risk can be seen to be low.

(12)  Further, where the Applicant has obtained leave to apply for judicial review of the Board’s refusal of his NRC, there is no incentive for him to abscond – hence, lessening the risk of absconding.

(13)  The Director’s reliance on the Applicant’s persistent statements that he is unwilling to return to Korea is also misplaced.  First, he cooperated with the re-entry formalities.  Second, he has expressed that unwillingness because he is making, and it is consistent with his making, the NRC.  The Applicant has the right to stay in Hong Kong until the termination of his NRC.

(14)  The incident of jumping court bail arose because he knew he would be late to attend a court hearing at Shatin, and so telephoned the court and was told to attend at the same time on the following day.  He did, and paid a penalty of $1,000 and no further mention was made by the Magistrate of any bail issue.

(15)  The absconding which occurred after that, when the Applicant failed to comply with the requirement that he leave, was because he did not know he could pursue the NRC and decided to ignore the immigration officer.  That is the explanation, though the Applicant does not try to justify the absconding.

(16)  As to risk of re-offending, the previous convictions for breach of conditions of stay were the result of his claim to asylum.  The other convictions were the first time he was convicted in Hong Kong, only in October 2022.

(17)  The Interpol Red Notice is the result of his not taking part in the police investigation in Korea, but that was because he was in Hong Kong seeking asylum.  He has not been in Korea since 2015, though the Red Notice was only issued in 2020.

(18)  The Applicant has three friends – who were in Court – willing to stand as guarantor.  He also has two other friends – who were not able to be in Court – who each stood surety in the sum of $50,000 for the Applicant’s High Court bail.

(19)  The Applicant’s parents will arrive in Hong Kong tomorrow, and he can stay with them in Hong Kong until his NRC is determined

28.  I will take these various points into account, and weigh them as I see fit in my analysis which follows (even if I do not specifically reference each individual point).

E.  Has the Detention Become Unlawful?

29.  There can be no dispute that the detention of the Applicant throughout the current period of detention has prima facie been with lawful authority under the various provisions of the Ordinance.  The Removal Order and the Deportation Order have respectively remained in force since their issue.  The question, therefore, arises as to whether detention has become unreasonable in all the circumstances, and hence unlawful.

30.  The starting point, and the factor against all other factors are to be weighed and balanced, is the period of detention to date, namely 135 days, or about 4 months.

31.  I accept that the Director has detained the Applicant throughout the period of detention solely for the purposes of removal or deportation.  Therefore, HS1 is satisfied.

32.  I also accept that the Director/Secretary have exercised diligence in taking the various steps necessary to seek to effect the Applicant’s removal or deportation from Hong Kong.  This is particularly evident from the efforts to obtain the emergency travel document for the Applicant.  Therefore, HS4 is satisfied.

33.  I accept that there is a real risk of re-offending.  The Applicant was twice convicted of breach of condition of stay, and after the first conviction went underground for more than a year.  He was subsequently convicted of conspiracy to steal, an offence of sufficient seriousness as justified the issuing of the Deportation Order.  Further, the Applicant is wanted by the Korean Police and is the subject of an Interpol Red Notice.

34.  That latter fact, and the Applicant’s expressed unwillingness to return to Korea, are also relevant to the assessment of the risk of absconding.  I acknowledge the point that his expression of unwillingness is connected to his ongoing NRC, but that does not remove its weight entirely. 

35.  However, there is force in the Applicant’s submission that the Director has not taken into account all those matters as should be taken into account in a proper assessment of the risk.  It seems to me to be necessary to look both at the previous occasions of absconding (which the Director did) but in this case also at the previous compliance with the fairly stringent bail conditions imposed by the High Court.  That the Applicant complied with the bail conditions for a lengthy period pre-trial, as well as during the weeks-long trial itself – and that those matters occurred later than the previous absconding – are matters to be given some weight in the overall assessment of risk of absconding.

36.  Nevertheless – even taking into account (a) the Applicant’s stated local connections (in the form of relatives, or friends prepared to stand as surety and/or guarantor), (b) that he says he will reside at a fixed abode in Hong Kong, and (c) the Applicant’s point that it would be counter-productive for him to abscond now that he has been granted leave to apply for judicial review – it seems to me that the overall circumstances do continue to identify a real risk that he would abscond if released on reconnaissance.  I acknowledge that the impact of the assessment of risk will vary as the period of detention lengthens, but at this point in time I think the impact is probably not insignificant.  Absconding would frustrate the very purpose of the detention, which is to effect removal or deportation under the Removal Order or Deportation Order.

37.  The weight given to the risks of re-offending and absconding are of critical importance to the weighing and balancing analysis.  I have also taken into account the fact that the Applicant previously gave contact details, which then proved of little use in establishing contact with him when he went underground.

38.  I take into account that the period of detention to date has included the time when the Applicant was pursuing an application which, in light of its result, cannot be said to have been hopeless.  But, I accept that the detention to date has in all the circumstances been reasonable, and hence lawful.  HS2 is satisfied to date.

39.  But perhaps the Applicant’s primary focus was understandably as regards HS3.  Now that the Applicant has been granted leave to apply for judicial review, it is necessary to consider whether there is any sufficiently clear timescale within which it might be possible to effect the removal or deportation of the Applicant from Hong Kong – and whether that is a reasonable period measured in context of the other factors.

40.  I have noted that Originating Summons must be issued within the next week or so.  I do not think any potential delay from an application for legal aid needs to be taken into account.  First, from the description of the Applicant’s family background as identified by the Judge who granted leave to apply for judicial review, and the fact that the Applicant says his parents will arrive in Hong Kong very soon, it seems unlikely that the Applicant need apply for legal aid in order to obtain appropriate legal assistance.  Secondly, the necessary document comprising the Originating Summons is in the specified Form 86A in Appendix A to the Rules of the High Court, and which is readily found.  It is in essence a ‘one-pager’, where the relevant ground of review for consideration at the substantive hearing was identified in the Form 86, being the original application for leave to apply for judicial review.  

41.  Further, I acknowledge that the Director will notify the Court that it should accord priority to the Applicant’s judicial review case, and I am confident that priority would be accorded.  Yet further, as the Applicant has himself submitted – and looking at the basis of the grant of leave to apply for judicial review, and the ground itself on which leave was granted – there may even be a realistic possibility that the DOJ on behalf of the Director would agree to remission of the matter to the Board. 

42.  Hence, it can be reasonably expected that the substantive judicial review application would be dealt with or determined, one way or another, within a matter of weeks or at most perhaps three months.

43.  I recognise the possibility that the outcome of the judicial review application – or any compromise agreed – might be to remit the Applicant’s appeal/petition back to the Board for fresh determination.  But I do not think it necessary or appropriate at this stage to second-guess what will be the outcome.  Matters can be subject to further review at the time of, and in light of, that outcome (though it may be that further reviews of detention will in any event occur in the interim period).

44.  Further, therefore, it is also not necessary at this stage to seek to estimate what time might be taken in reaching a new decision by the Board, if the matter is remitted to the Board.  Nor is it necessary to anticipate, even before any new decision might be reached by the Board (if the matter is remitted to it), that there will necessarily be a further application for leave to apply for judicial review of that decision.  As I say, reviews of detention will continue, and will likely be triggered, by any relevant change of circumstances, and indeed by any continuing length of the detention itself.

45.  Against the various other factors which I have canvassed above, I am just persuaded, on balance, that HS3 is also satisfied.  

46.  Hence, balancing the various factors against the period of detention to date, and the relevant material likely foreseeable period of detention, the detention has remained and will remain reasonable in all the circumstances, and hence lawful.

47.  But I hope it will not go unnoticed that I have seen considerable force in some of the Applicant’s submissions.  As is made clear by the relevant authorities, the weight or force in the various points will vary over the period of time – as the period of detention lengthens.  In the particular circumstances of this case, that seems to me something that must be kept well in mind.

F.  Result

48.  The Applicant’s application is dismissed, with no order as to costs.