MUNIR AHMAD v. THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

HCAL 130/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 130 OF 2017

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his detention by the Director of Immigration (“the Director”).

2.  The application, supported by a short affirmation of the applicant, was made on 10 April 2017. On 12 April 2017, the court directed that the application be heard in the morning of 13 April 2017, with notice of the hearing being given to the Department of Justice.  In the afternoon of 12 April 2017, the court received the respondent’s skeleton submissions in opposition to the application.

3.  At the hearing on 13 April 2017, the court heard oral submissions from the applicant himself, as well as oral submissions from Mr Louie Chan (Government Counsel) on behalf of the respondent.  Mr Chan also provided some background information in relation to the applicant’s detention.  Although the information was not confirmed by affidavit (understandably in view of the urgency with which the hearing was fixed), the applicant, who heard Mr Chan’s submissions with the assistance of an Urdu interpreter, did not dispute the basic facts stated by Mr Chan.

Background facts

4.  The applicant is a Pakistani national.  He first came to Hong Kong on 22 January 2003 under another name (Munir Ahmed).  He was permitted to enter and remain in Hong Kong as a visitor until 5 February 2003.  He did not, however, depart from Hong Kong as required and had overstayed since 6 February 2003. Subsequently, he was arrested and, on 31 August 2004, convicted of the offence of breach of condition of stay by overstaying contrary to Section 41 of the Immigration Ordinance, Cap 115 (“the Ordinance”).  He was sentenced to a term of imprisonment of 2 months suspended for 2 years. On 9 September 2004, a removal order was issued against the applicant, and he was eventually repatriated to Pakistan on 21 September 2004.

5.  On 15 July 2009, the applicant was arrested for the offence of remaining in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully contrary to Section 38(1)(b) of the Ordinance (“the Section 38(1)(b) Offence”).  He was undocumented at that time.  According to Mr Chan, the Immigration Department has no record of his entry into Hong Kong.

6.  On 17 July 2009, the applicant was released on court bail.

7.  On 20 July 2009, the applicant lodged a torture claim.  On 23 July 2010, the applicant’s torture claim was rejected by the Director.  On 29 July 2010, he lodged a petition against the rejection of his torture claim.  On 2 September 2010, his petition was dismissed by the Torture Claims Appeal Board.

8.  The applicant next appeared in court on 3 January 2011 in relation to the Section 38(1)(b) offence when his case was brought up for mention, but he subsequently failed to turn up in court on 28 February 2011 as required.  A warrant for his arrest was then issued by the court.

9.  On 12 March 2016, the applicant was arrested by the police.  He was, eventually on 14 March 2016, convicted of (i) the Section 38(1)(b) Offence, and (ii) the additional offence of failing to surrender to custody after having been admitted to bail by a court contrary to Section 9L of the Criminal Procedure Ordinance, Cap 221, and sentenced to a total term of imprisonment of 15 months and 3 weeks.

10.  In addition, on 12 April 2016, the applicant was convicted of the offence of attempting to knowingly mislead a police officer contrary to Section 64(b) of the Police Force Ordinance, Cap 232, and sentenced to a consecutive term of imprisonment of 3 months.

11.  While the applicant was in prison, he wrote on 27 June 2016 stating that he wished to return to his home country after the completion of his sentences.

12.  On 9 January 2017, the applicant was discharged from prison, and transferred to the Castle Peak Bay Immigration Centre.  He was detained successively under Section 32(2A)(a), (b) and (c) of the Ordinance until a removal order was issued against him on 20 February 2017. Since that date, the applicant has been detained under Section 32(3A) pending his removal from Hong Kong.

13.  I have been told by Mr Chan that the only reason why the applicant has not yet been removed from Hong Kong is because the Director is still waiting for the issuance of an emergency travel document by the Pakistani Consulate for the applicant, which would normally take at least 3 months (from February 2017).

14.  On 12 April 2017, the Immigration Department was informed by the Pakistani Consulate that the issuance of the applicant’s travel document was still under process.

15.  Also on 12 April 2017, the Director carried out a review of the applicant’s detention.  It was concluded that the applicant should not be released on recognizance in view of the following considerations:-

(1)  it was possible to effect the applicant’s removal from Hong Kong within a reasonable time;

(2)  there was a risk of absconding by the applicant, having regard to his case history mentioned above; and

(3)  the applicant’s true identity had not yet been fully resolved, and the Director was not satisfied that the applicant’s claimed identity was genuine.

16.  In support of this application, the applicant told the court that:-

(1)  His wish is to return to Pakistan voluntarily as soon as possible because his wife, son and mother, who are all in Pakistan, are not well.

(2)  He does not know whether his mother is still alive or not.

(3)  He recently made a couple of emergency overseas calls to Pakistan from prison. According to the applicant, it is very expensive to make overseas calls from prison.

(4)  He called the Pakistani Consulate in Hong Kong many times to enquire about the progress of the issuance of his travel document but no one answered his calls.

(5)  He has a mass on the back of his shoulder which has not been properly treated.

(6)  He has been detained for over 3 months while waiting for the issuance of his travel document by the Pakistani Consulate.

Discussion

17.  The legal principles governing an application for the issue of a writ of habeas corpus are well settled.  The central question is whether the detention is unlawful (see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was).

18.  An unlawful detention is one that is made without proper lawful authority.  An initially lawful detention can be turned into an unlawful detention if it falls foul of the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at paragraph 46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at paragraph 23), as follows:-

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

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

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

19.  In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at paragraph 17, is applicable:-

“The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than ‘until’ deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

20.  The applicant is currently detained under Section 32(3A) of the Ordinance, which provides as follows:-

“A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

21.  The applicant’s current detention is, prima facie, lawful because:-

(1) a removal order under Section 19(1)(b) of the Ordinance in respect of the applicant is in force; and

(2) the applicant is being detained pending his removal from Hong Kong under Section 25 of the Ordinance.

22.  On the question of whether the applicant has been detained for a period that is reasonable in all the circumstances, there is nothing in the evidence before the court to show that the Director is using the power of detention for any purposes other than for removal of the applicant, or it has become apparent to the Director at any time that it would not be possible to effect the applicant’s removal within a reasonable time.  The evidence shows that a removal order was issued against the applicant shortly after his discharge from prison and, subject to the issuance of an emergency travel document by the Pakistani Consulate,the Director is in a position to remove the applicant at any time thereafter.  There is nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the applicant’s removal.  It is also reasonable of the Director to take the view that the applicant can be removed within a reasonable period of time.   In all the circumstances, I find that the applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is compliance with the Hardial Singh principles.

23.  None of the grounds relied upon by the applicant can justify the issue of a writ of habeas corpus in the present case.  While the court has sympathy with his personal and family circumstances, they do not affect the legality of his detention. 

Disposition

24.  The application for the issue of a writ of habeas corpus is dismissed, with no order as to costs.