VO VAN HUNG v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1091/2017

[2018] HKCFI 1227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1091 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The applicant is a 39-year-old national of Vietnam who was brought to Hong Kong as a refugee in 1991 when he was 12 years old, and while being detained together with other Vietnamese refugees in Whitehead Detention Centre, he was involved in an incidentin 1994 in which a fellow Vietnamese refugee was killed and for which he was convictedof murder and subsequently sentenced to 23 years of imprisonment for the fact that he was then only aged 15 when the crime was committed.

2.  Upon completing his sentence the applicant was transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he was served with a deportation order by the Immigration Department on 29 June 2016. He then lodged a non-refoulement claim on 23 November 2016 on the basis that if he returned to Vietnam he would be at risk of harmof persecution and/or prosecution by the Vietnamese government or killed by the family of the murder victim in revenge.  He has since been kept in CIC pending the determination of his claim.

Relevant background

3.  The applicant was born in Southern Vietnam in 1979 where his father was during the Vietnam War in the 1970s a soldier in the army of the then South Vietnam fighting against the communist regime of North Vietnam.  After the latter won the war and united the country as the Socialist Republic of Vietnam, his parents fled and hid from the resultant purge against South Vietnamese, and after his birth his parents placed him in the care of a relative whom he used to call his adoptive father and then disappeared without being heard of again.

4.  One day in 1991 when the applicant was 12 years old, his adoptive father asked one of his friends to bring him onto a boat when they travelled with other Vietnamese to Hong Kong where they were put in the Whitehead Detention Centre and where the applicant was subsequently involved in the incident for which he was convicted for murder and sentenced to life imprisonment which was subsequently quashed by the Court of Appeal for his age factor and replaced by one of 29 years and of which the applicant had served 23 years.

5.  During his prison term the applicant was also involved in two incidents for which he was convicted in 2001 for attempt to cause grievous bodily harm and sentenced to imprisonment for two years, and in 2002 for assault occasioning actual bodily harm and criminal damage and sentenced to four months imprisonment.

6.  While in prison the applicant also attended classes for Chinese, English and accounting, sat for and passed two subjects in the Hong Kong Certificate of Education Examination, learnt skills in book-binding, printing, hair styling and sewing, and became a Christian, and was offered jobs and supports by fellow Vietnamese residents in Hong Kong upon his release from prison.

7.  However, based on his criminal convictions, a deportation order for life was issuedagainst him on 2 September 2016 by the Immigration Department upon his completion of the prison terms, and he has since been detained in CIC pending the determination of his non-refoulement claim, for which he later completed his Non-refoulement Claim Form with legal representation from the Duty Lawyer Service in which he claimed to be at the following risks if refouled to Vietnam:

(1)  that he would be at risk of persecution as his biological father was a soldier who fought for South Vietnam against the Communist Regime of North Vietnam;

(2)  that he would be at risk of being killed by the family of the murder victim in revenge;

(3)  that he would be at risk of being prosecuted for having left Vietnam without official permission; and

(4)  that he would be at risk of double jeopardy for being punished for the murder he committed in Hong Kong.

8.  By a Notice of Decision dated 1 March 2017 the Director of the Immigration Department (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  On 13 March 2017 the applicant filed his appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended two oral hearings on 20 and 21 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 June 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

The Board’s decision

10.  In its decision the Board dealt with and rejected each of those four risks relied on by the applicant which can be summarized as follows:

(1)  Risk of harm because his father fought against the communist:

The Board found that the applicant did not know very much about his biological father, that everything he knew about him had been told to him by his adoptive father, that he did not adduce any evidence to show that the Vietnamese government would even regard his biological father to be a person of interest, that there was very little evidence available in support of this alleged harm, the Board therefore concluded that the available evidence does not support that the feared harm may or will occur (paragraph 37).

(2)  Risk of harm from the family of the murder victim:

The Board found that the applicant did not know very much about the victim’s background or family, that he did not know if his family members had returned to Vietnam or migrated abroad or that over 20 years after the crime that the family still harbored ill-will towards him, and the Board therefore considered that the available evidence does not support that the feared harm may or will occur (paragraph 38).  

(3)  Risk of harm for having left Vietnam illegally:

The Board found that while Article 91 of the Penal Code of Vietnam provides thatthose who flee abroad or defect overseas with a view to opposing the government shall be sentenced to between three to twelve years of imprisonment, and in the case of committing particularly serious crimes the offenders shall be sentenced tobetween twelve and twenty years of imprisonment or life imprisonment, the Board considered that various articles in the Penal Code such as Article 8 which gives the definition of “crime” as an “act dangerous to the society prescribed in the Penal Code” must mean Vietnam society, while other Articles indicate only those persons aged 16 or older who commit acts dangerous to Vietnamese society or those aged 14 or older who have intentionally committed particularly serious crimes will bear penal liability, and that the Board considered the fact that the applicant left Vietnam when he was 12 years old could not be regarded as capable of forming the necessary penal liability capacity (paragraphs 39 – 47).  

(4)  Risk of double jeopardy:

As for the applicant’s alleged fear of being punished for having committed murder in Hong Kong and would be at risk of double jeopardy as Article 6 of the Penal Code provides that Vietnamese citizens who commit offences outside the territory of Vietnam may be examined for penal liability, the Board noted that the Article uses the word ‘may’ be examined and not ‘shall’ be examined, that it was never referred to any provision in the Penal Code which would make a murder in Hong Kong punishable in Vietnam, that it was committed when the applicant was very young, that he has paid for his crime in prison in Hong Kong, that the crime poses no danger to the Vietnamese society, and that the applicant has rehabilitated himself, hence the Boards found very little risk that he may even be examined pursuant to the Penal Code, let alone to be punished by it (paragraphs 48 – 50).     

11.  On 15 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but he was then some2½ months out of time, for which he subsequently issued a summons on 22 March 2018 (and again on 13 April 2018) for extension of time for his leave application, of which I must deal with first.

Extension of time

12.  The relevant statutory provisions are Order 53, rule 4(1) of the Rules of the High Court, Cap 4A and section 21K(6) of the High Court Ordinance, Cap 4 as follows:

Order 53, rule 4(1) is in these terms:

“ An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

While section 21K(6) provides that:

“ Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

13.  As noted the applicant was in this case late by 2½ months for his leave application, and in support of his application for extension of time he first produced an affirmation on 22 March 2018 to explain that he was trying to obtain his identity documents as he was under the impression that without which he could not apply for judicial review, that he was not aware of the deadline for applying for judicial review, and in his subsequent supplementary statement dated 12 April 2018 and exhibited to his solicitor’s affirmation of 13 April 2018, he provided further details as follows:

“ I instructed my solicitors in December 2017. I was trying to obtain my identity documents and I was under the impression that I cannot apply for the leave for Judicial Review without my identity documents. I was not aware of the deadline for applying the Judicial Review.

In order to obtain my identity documents, my friends at the prison advised me to contact the Vietnamese Consulate. I tried to call them and asked themto help me. I made three or four phone calls. No one from the VietnameseConsulate came to see me. They refused to provide me with any assistance on phone.

I have been in prison since I was 15 years old and before that I was detainedin a camp. I have never seen the outside world since I came to Hong Kong and did not have a normal life. I have no idea how to go about things.

In view of aforesaid, I humbly pray that the honorable court grant me the application to apply for leave for Judicial Review out of time.”

14.  In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in his judgment which have since been adopted in the cases of Chan Kam Chuen & Ors v Director of Lands HCAL 145/2014, BH v Director of Immigration HCAL 105/2014, and TH v Director of Immigration HCAL 114/2014, and approved by the Court of Appeal in AW v Director of Immigration & Anor CACV 63/2015, 3 November 2015 in which Kwan JA summarized in paragraph 27 of the judgment as follows:

“ …

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisionsof Order 53 rule 4(1) and section 21K(6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behavedsensibly and reasonably of relief to which he is otherwise entitled (R vCommissioner for Local Administration, ex p Croydon London BoroughCouncil [1989] 1 All ER 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’srequest for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter tobe taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chanv Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to the public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance:  Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.” 

15.  Here a delay of 2½ months may not be regarded as unreasonably long but is certainly not insignificant either, and while the applicant’s belief that he required identitydocuments from his home country for the issue of his application for judicial review may have been misplaced, but whether it should not be accepted as a good reason must be judged against the unique factual situation that the applicant has been in when he was brought to Hong Kong as a 12-year-old boy in 1991 and has since never been out of confinement whether first in the refugees detention camp or in prison and now in CIC, and his attempt to seek assistance from the Vietnam Consulate for his identity documents which he clearly does not have any from the SAR Government other than perhaps just his prison number, all of which when considered in their totality must in my view be regarded as much more than just a good excuse for the delay, but whether it is a good enough reason to extend time to his leave application, it would be relevant to also consider the merits of his substantive application.

16.  In his Form 86 the grounds put forward by the applicant can be essentially summarized as follows:

(1)  As against the Director, failure to properly consider or place sufficient weight in his consideration of the risks to the applicant upon his return to Vietnam where he had left at the age of 12 and with which he has since no connection whatsoeverand that he would face all sorts of risk under the current legal and/or administrative system in Vietnam; and

(2)  As against the Board, failure to make sufficient enquiries into Country of Origin Information (“COI”) in its consideration and assessment of his claims.

17.  I need not be concerned with the challenge against the Director due to the latter’s opposition to the leave application and the subsequent concession made on behalf of the applicant at the hearing not to proceed with his intended application against the Director, and having granted leave for his leave application against the Director be withdrawn, I shall confine myself only to the consideration of the grounds for the challenge against the Board’s decision.

The applicant’s grounds

18.  For his complaints against the Board, Mr Hunter for the applicant elaborated in his skeleton submission that in respect of all those risks claimed by the applicant in paragraph 7 above, the adjudicator essentially relied on COI and especially upon interpretations of the Penal Code of Vietnam which he submits as not wide enough in scope and led to a very narrow understanding of both the law of Vietnam and the manner in which the authoritarian nature of the government creates an arbitrary environment, and that a more extensive examination of the sources would have shown that someone in the applicant’s position was most definitely in personal danger of being targeted by the Vietnamese government and its actors.

19.  For the first risk of harm from familial association with the previous regime, Mr Hunter criticizes the Board’s reasons for rejecting it as rather missing the point and symptomatic of the narrow view taken by the Board, as the harm which the applicant fears would come to him is not simply dependent on his father’s bad relations with the Vietnamese government, as it is the product of a more general association with the former South Vietnamese state of which his father’s position is merely the origin.

20.  This issue, Mr Hunter submits, in many ways overlaps greatly the risks of harm of having left Vietnam illegally and of double jeopardy for the murder and other crimes committed in Hong Kong, as by fleeing Vietnam the applicant became associated in the regime’s eyes with the South Vietnamese cause, as the “boat people” were political refugees and certainly regarded as such by the Vietnamese government, and that the applicant though a child when he fled and with little personal knowledge of the circumstances of his association with the South Vietnamese cause is nevertheless a political refugee, and is precisely who this vaguely worded provision under Article 91 of the Penal Code is designed to encompass.

21.  Further, Mr Hunter submits, that the Board’s decision failed to consider the relevant Section 274 of the Penal Code which provides that “Those who illegally leave or enter the country or stay abroad or in Vietnam, have already been administratively sanctioned for such act but continue the violation, shall be subject to a fine of between five million dong and fifty million dong or a prison term of between three months and two years.”

22.  Mr Hunter also submits that by this the Board has not only taken a narrow view of Article 8 of the Penal Code but also confused the double jeopardy issue with the risk of political persecution, as it must be understood from the perspective of the Vietnamese government which the Board accepts is an authoritarian one party state, and it is crucial to consider the wording of section 8.1 of the Code: “infringing upon the independence, sovereignty, unity and territorial integrity of the fatherland, infringing upon the political regime, the economic regime, culture, defense, security, social order and safety”, of which Article 91 and Section 274 must be understood in this light, which means that fleeing the country is a political offence regarded as a crime against the state, that the act is not simply the moment of fleeing but the being an émigré, and hence the issue is not the moment of fleeing but the period of exile, as it is inevitable in such a regime that the longer the exile the more suspicion the émigré will be held in.

23.  It is therefore submitted that the adjudicator failed to understand that the applicant is at grave risk of harm merely because of his being a refugee with associations to a perceived enemy and also failed to consider the arbitrary nature of the regime, for which the applicant satisfies the criteria laid down in Ubamaka Edward Wilson v Secretary for Security(2012) 15 HKCFAR 743.  

24.  As for the Board’s reasons for rejecting the risk of double jeopardy, Mr Hunter submits that the Board was wrong in its conclusion that there was no provision in the Penal Code which makes murder in Hong Kong punishable in Vietnam, as it is both relevant and necessary to also consider Article 93.1 which provides that “Those who commit murder in one of the following cases shall be sentenced to between twelve and twenty years of imprisonment, life imprisonment or capital punishment”, and one of those cases being a vague catch all provision of “Murder of people for despicable motivation”, and similarly vague is Article 93.2 which states “Those committing crimes which do not fall into those cases stipulated in Clause 1 of this Article, shall be sentenced to between seven and fifteen years of imprisonment.” which should be taken with Article 6.1 “Vietnamese citizens who commit offences outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code”, and taken into consideration the fact that the man the applicant killed was also a Vietnamese, it is submitted that there is every reason to suppose that the applicant may be subject to retrial in Vietnam.

25.  As the proscription against double jeopardy depends upon the Hong Kong Bill of Rights under Article 11(6) which provides that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong”, Mr Hunter argues that if the applicant is indeed retried and convicted he faces a prison regime which would amount to cruel, inhuman and degrading treatment or punishment (“CIDTP”) within the ambit of BOR 3 risk, and falls to consideration of the Ubamaka criteria of whether the ill treatment in Vietnamese prison reaches the minimum level of severity and that there is a genuine and substantial risk, and that even if this risk is not personally directed at the applicant but rather his membership of refugees is enough to make the risk substantial and real.

26.  It is therefore submitted that the adjudicator took too narrow a view of the danger to life and the possibility of torture based on a superficial interpretation of the COI, and that while it is true that the applicant must prove his case, it is also incumbent on the Board to make investigation and not act passively, and having accepted that extrajudicial and arbitrary killings and torture do occur in Vietnam (in paragraph 57 of the decision), the Board’s refusal to accept the applicant personally at risk despite the fact that there is evidence to show the danger returned refugees are exposed to in Vietnam is Wednesbury unreasonable in the circumstances.

27.  Having considered the Board’s decision and reasons for rejecting the applicant’s claim as noted above with rigorous examination and anxious scrutiny, I accept in the circumstances of the applicant’s case that there are merits in his substantive application and that these grounds of his are reasonably arguable for judicial review of the Board’s decision, and I accordingly extend time and grant leave for him to do.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1