CHOI JAE MYOUNG v. SECRETARY FOR SECURITY AND ANOTHER

 HCAL 756/2022

[2022] HKCFI 2611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 756 OF 2022

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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 Castle Peak Bay Immigration Centre (“CIC”), and the period of detention began on 27 November 2021. Therefore, as at the date of this hearing, the Applicant has been detained for a period of 272 days (around nine months).

2.  By an application dated 12 August 2022, made pursuant to Order 54 rule 1 of the Rules of the High Court, the Applicant applies for a writ of habeas corpus ad subjiciendum, on the grounds set out in his accompanying affirmation of the same date. Those grounds are stated to be as follows (sic):

I would like to apply Habeas Corpus for unlawful detention. I have been detained since 28.11.2021 for 9 months. I am under 37ZK ordinance. I wish to stay in Hong Kong until my claims are completed & I cannot go back to my country for risk of my life. but IMMD didn’t grant bail for some reason. Therefore I apply this.

3.  On the same day of the application, I gave directions for the papers to be served on the Respondents (“Secretary” and Director” respectively), and for them to have leave to file and serve a Response to the application before 22 August 2022. I also fixed this hearing for today. The hearing was originally fixed for this morning, but was delayed by weather until this afternoon.

4.  The ‘Response/Skeleton Submissions’ for the Secretary and the Director was filed on 22 August 2022. It was prepared by Ms Karen Ngai, Senior Government Counsel (Acting), who has also appeared this afternoon.

5.  The Applicant has appeared in person, with the benefit of a Korean/English interpreter.

6.  Having reviewed the papers and heard the submissions, this is my Decision.

B. Background Facts

7.  The Applicant is a Korean national. He last came to Hong Kong as a visitor on 27 April 2015, and was permitted to remain as a visitor in Hong Kong until 26 July 2015. He did not depart on or before that date, and has since overstayed in Hong Kong.

8.  On 7 September 2021, some 6 years later, the Applicant was arrested by the Police for overstaying in Hong Kong during a joint operation together with the Immigration Department (“ImmD”).

9.  On 10 September 2021, the Applicant was convicted and sentenced to 4 months’ imprisonment for breach of condition of stay.

10.  On 8 October 2021, the Police informed ImmD that the Applicant is subject to an Interpol Red Notice, and that he is wanted by the Korean law enforcement authorities.

11.  By letters dated 9 and 26 October 2021, the Applicant indicated the intention to claim for non-refoulement protection, and his non-refoulement claim (“NRC”) was considered made on 3 November 2021. It is said for the Secretary/Director that the NRC is based on a money dispute, which is not complicated. As will be seen below, the Applicant says otherwise.

12.  On 27 November 2021, the Applicant was discharged from prison and kept under immigration detention, under section 32(2A)(a) of the Immigration Ordinance Cap 115 (“Ordinance”), pending the decision as to whether or not a removal order should be made against him.

13.  In reply to a letter sent by ImmD to the South Korea Consulate, the South Korea Consulate wrote a letter to ImmD dated 1 December 2021, stating that the Applicant “is the most wanted person by the Korean National Police Agency, and the warrant of arrest by Korean court and the Interpol Red Notice for him was issued already”. It was also stated that “it would be appreciated that you could take appropriate action so that he could be deported to Korea immediately to serve the justice, if all the conditions are met”.

14.  In passing, I note from the Red Notice information that the date of the alleged offence in Korea was in the afternoon of 23 April 2015, just a few days before the Applicant arrived in Hong Kong on 27 April 2015. I also note that it states ‘Hong Kong, China’ as the ‘Regions/Countries Likely to be Visited’.

15.  On 11 January 2022, the Applicant’s NRC was rejected by the Director. On the same day, a Removal Order was issued against the Applicant under section 19(1)(b) of the Ordinance.

16.  On 21 January 2022, the Applicant’s notice of appeal/petition was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). The Board was requested to accord priority to the Applicant’s case by letter and reminder dated 24 January and 7 February 2022 respectively. Further chaser letters were also sent to the Board by ImmD on 25 February, 22 March, and 6 April 2022.

17.  The hearing before the Board, originally fixed for 18 May 2022, was rescheduled to 7 June 2022.

18.  Since that hearing, the ImmD has sent 9 letters to the Board – between 21 June and 18 August 2022 – requesting a progress update on the Applicant’s appeal/petition.

C. The Detention and Reviews of Detention

19.  The period of the Applicant’s detention can be broken down into four parts:

(1) 27 November 2021 to 3 December 2021: detention under section 32(2A)(a) of the Ordinance, authorised by the Assistant Director of Immigration (“AD Imm”), pending decision as to whether a Removal Order should be made;

(2) 4 December 2021 to 24 December 2021: detention under section 32(2A)(b), authorised by the Principal Assistant Secretary for Security (“PAS for S”), pending decision as to whether a Removal Order should be made;

(3) 25 December 2021 to 30 December 2021: detention under section32(2A)(c), authorised by the Principal Assistant Secretary for Security (“PAS for S”), pending decision as to whether a Removal Order should be made; and

(4) 30 December 2021 to 25 August 2022 (present date): detention under section 37ZK, authorised by the AD Imm, pending final determination of the Applicant’s NRC.

20.  Again, I expressly note that the period of detention to date totals 272 days.

21.  Reviews of detention have occurred on various occasions, including on 27 November 2021 when the Applicant was first transferred to ImmD upon his discharge from prison, as well as 29 November and 22 December 2021.

22.  On 23 December 2021, memos were received from the Police, who informed ImmD that, whilst they had no comment on the Applicant’s release on immigration recognizance, it was noted that the Applicant was placed on the Interpol Red Notice since 9 June 2015 for a case of “bodily injury resulting from robbery”, where it was said that the Applicant had invaded the victim’s home and stabbed the victim 20 times with an unknown tool.

23.  Upon review on 30 December 2021, detention under section 37ZK of the Ordinance was recommended for the reasons that (1) the Applicant’s NRC would be finally determined within a reasonable time in the foreseeable future, (2) the Applicant is likely to pose a threat or security risk to the community; and (3) there is no justifying circumstances in favour of his release.

24.  Up to the date of this hearing, 8 reviews of the detention under section 37ZK of the Ordinance have been conducted by ImmD – on 27 January, 25 February, 28 March, 27 April, 25 May, 29 June, 29 July and 19 August 2022. During the same period, ImmD received 8 detainee submission sheets from the Applicant, in the last of which dated 12 August 2022, the Applicant requested the photocopy of his Korean passport for renewal. On 25 July 2022, the Applicant had previously asked for a copy of his passport, as he would like to renew it for his personal issue.

25.  In the last review of detention on 19 August 2022, the Director decided the release of the Applicant on recognizance is not recommended. The grounds for the decision were that (1) the Applicant’s NRC may be decided within a reasonable time in the foreseeable future, (2) the Applicant may pose, or is likely to pose, a threat or security risk to the community, (3) the Applicant may abscond and/or commit an offence which is punishable with a term of imprisonment; and (4) there is no justifying circumstances in favour of his relief, taking into account the various factors.

26.  Those factors included that:

(1) the Applicant’s NRC may be decided within a reasonable time, because the Board has accorded priority for processing the appeal/petition, which was heard on 8 June 2022;

(2) the Applicant poses, or is likely to pose, a threat or security risk to the community, on the basis that he was said to be involved in a “bodily injury resulting from robbery” case in Korea in 2015;

(3) the Applicant has previous conviction for immigration and/or other criminal offences, on the basis of his conviction for breach of condition of stay and 2021;

(4) the Applicant does not have a fixed abode or close connection in Hong Kong, to make it likely that he would easily be located if released; and

(5) the Applicant’s written representations in which he has requested release on recognizance do not outweigh those factors for continuous detention.

27.  I note that in the internal memorandum, each of the officers of ImmD has specifically borne in mind the period of detention of the Applicant to date, against which the various other factors are to be balanced. On that balance, the decision has been made that this is not a case which warrants release on recognizance.

D. Applicable Legal Principles

28.  The relevant legal principles have been recently set out by the Court of Appeal in its Reasons for Judgment in Harjang Singh v Secretary for Security and Director of Immigration [2022] HKCA 781, in particular in the summary at §164.

29.  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.

30.  Though I refer to the summary, I do not lose sight of the underlying details and rationale. But, as stated, the central question is whether there is, and continues to be, lawful authority for the detention. The burden is on the respondent to the application – here the Secretary/Director – to justify that the detention is, and continues to be, lawful.

31.  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances. What is a reasonable time will therefore depend upon the circumstances of the particular case, taking into account all relevant factors, and applying the ‘Hardial Singh principles’ (“HS1”, “HS2”, “HS3”, and “HS4” respectively). Amongst the relevant questions to be addressed are the risks of absconding and/or re-offending, which are of critical and paramount importance in the assessment of the lawfulness of the detention.

E. Is the Detention Lawful?

32.  I have already set out above, the grounds of the Applicant’s application identified by him in his affirmation. In essence, those grounds boil down (1) to the fact that he has been detained for a period of around 9 months, (2) that he wishes to stay in Hong Kong until his NRC is completed and (3) that he cannot go back to his country for fear of risk to his life.

33.  The first ground is a significant factor to be taken into account, as whenever there is a deprivation of liberty it is necessary for the Court to give careful scrutiny to the circumstances. The second ground is to an extent moot, as it is the practice of the Director not to remove a person from Hong Kong pending completion of that person’s NRC (and related court proceedings). It does not of itself answer the question about release from detention, and the real question is as to the impact of the period for determination/completion of the claim on the lawfulness of the continued detention. The third ground is the matter which is the subject of the NRC, and it is not centrally relevant to the current application for habeas corpus.

34.  At the hearing, the Applicant’s submissions and points were, in summary, that:

(1) the Applicant’s continued detention is in breach of the Hardial Singh principles;

(2) though he was detained for about 80 days for the offence of breach of condition of stay, he has now been detained for a further 280 or so days – more than three times the period for the offence;

(3) he denies that he has ever committed robbery as is alleged in the Interpol Red Notice, nor any other crime in his 36 years;

(4) rather, he has been framed by a friend who was/is a gangster in Korea, who had asked him to deliver a package of drugs to Hong Kong, which the Applicant refused to do;

(5) that is why, the Applicant says, he got rid of the drugs in Korea and returned to Hong Kong, where he had spent considerable time in 2014 and 2015;

(6) but the result is that he is being chased by his friend, who might catch him and cause him or others harm, and that was the reason why the Applicant overstayed in Hong Kong;

(7) the friend has also used Interpol to look for him, without having to spend any money of his own, through the assistance of corrupt police in Korea;

(8) the Applicant had seen many instances of corruption, which was why he had lived for some time in Australia seeking immigration, before coming to Hong Kong;

(9) if he had really committed the robbery, it is likely that he would have committed other offences, including whilst overstaying, but the fact is he has not;

(10) the Applicant wants to prove his innocence, but he cannot do that whilst under detention;

(11) he was arrested for overstaying when he was trying to find evidence about a connection between his friend and a gang group in Hong Kong;

(12) whilst the Board suggested that it would give its decision within two weeks, he has now been waiting for 2½ months;

(13) he has to wait for the Board’s decision and then any judicial review proceedings and also the appeal;

(14) that will take significant time, and if he is detained until the processes are completed, it is not possible to say when his removal could be conducted;

(15) the Applicant disagrees that he had no close local ties in Hong Kong, in that the case officer contacted only two of the three suggested guarantors, and that a fourth guarantor has now been identified;

(16) he has a girlfriend of three years – a Ms Fung – who has written over 200 pages in letters to him in the past seven months, showing the close connection and their relationship;

(17) he has no intention to abscond, even though he overstayed for more than 6 years.

35.  I think it fair to say that some of those submissions relate specifically to the NRC, which is a matter being dealt with by the Board, and not a matter for me to resolve in these proceedings. Further, there is no challenge to the removal order itself, so there is no basis at present to assume that removal would not be effected; the relevant question is when. Nevertheless, I take the Applicant’s submissions and points into account, and I have already noted that the burden is on the Secretary and Director (as respondents to the application) to justify that the detention is, and continues to be, lawful.

36.  The material statutory provisions for present purposes include sections 32(2A), 32(4A) and 37ZK of the Ordinance.

37.  Under section 32(2A), a person may be detained pending the decision of the Director (amongst others) as to whether or not a removal order should be made under section 19(1)(b). Section 32(4A) sets out the circumstances that identify when the detention of a person under section 32 shall not be unlawful. Section 37ZK provides that, without limiting any other power conferred by the Ordinance, a claimant may be detained under the authority of the Director (amongst others) pending final determination of the claimant’s torture claim. Section 37ZK(2) sets out the circumstances under which the length of detention would be considered as reasonable and lawful.

38.  The Applicant’s original detention was under section 32(2A) and later detention was under section 37ZK, pending final determination of his torture claim. Both sections confer discretionary executive detention powers on the Secretary/Director to detain the Applicant for the purpose identified in the relevant sections. In my view, there was prima facie lawful authority for the detention of the Applicant.

39.  Therefore, the question arises as to whether the originally lawful intention has become unlawful.

40.  It seems to me that the Secretary/Director does/do intend to deport the Applicant, and are using the power to detain him only for that purpose. Therefore, HS1 is satisfied.

41.  As to HS3, I do not think it can be said that it has become apparent to the Secretary/Director, before the expiry of any reasonable period, that they will not be able to effect deportation within that reasonable period:

(1) The Director proceeded with some expedition in determining the Applicant’s NRC. The Applicant’s screening interview was conducted on 20 December 2021, and the claim was determined (by its rejection) within one month. That was only two months or so from the commencement of detention.

(2) Following the Applicant’s appeal/petition to the Board, ImmD has pushed for it to be accorded priority, and priority was indeed accorded by the Board.

(3) The appeal/petition was heard on 7 June 2022 (following rescheduling from a slightly earlier date).

(4) The ImmD has pushed for progress on the appeal/petition by its various letters sent to the Board, which has acknowledged the priority status of the case.

(5) In the circumstances of an appeal/petition which was heard more than 11 weeks ago, it was and is entirely reasonable to anticipate that the Board would give its determination within a relatively short period of a few months.

(6) Indeed, I note that the Applicant says that the Board suggested to him that the Board’s decision would be made available within two weeks of the hearing, which also suggests that the Board did not anticipate taking very long in order to make its determination of the appeal/petition.

(7) I do not think it is appropriate to second guess the Board’s decision, or to assume that there would be any judicial review proceedings or any further appeal (or take any view as to what might be the merits of any such proceedings). Those are matters which can be considered, if appropriate, in due course.

42.  Further, the Applicant is a deliberate overstayer in Hong Kong since July 2015 (for more than 6 years until his arrest in September 2021). It was only after his arrest that he raised his NRC for the first time, alleging that he was involved in a dispute in Korea. In the meantime, the Applicant has been on the Interpol Red Notice since June 2015. Even if – particularly if – there is any merit in the Applicant’s suggestion that he has been framed, and that he has been at risk of harm since he came to Hong Kong in April 2015, the delay before he raised his NRC does not seem to me to have been adequately explained.

43.  Further, the fact is that the Applicant is on the Interpol Red Notice, and it is a matter for the Secretary/Director – and now the Court – as to what weight to give to that fact. I do not think it unreasonable to proceed on the basis that the Applicant is wanted for a serious crime of violence, albeit that he denies it, where it is not practically open to the Hong Kong authorities or this Court to decide the merits of the criminal charge. Quite simply, the internal documents, including the letters from the South Korea Consulate, are contemporaneous evidence showing the basis of the Director’s consideration that the Applicant poses a security risk to the community. That view seems to me to be entirely reasonable, namely that the Applicant poses, or is likely to pose, a threat or security risk to the local community, and that the potential gravity of an offence is not low.

44.  The Applicant does not seem to me to have convincingly demonstrated any local ties in Hong Kong. Assuming for present purposes that it is correct that there was a third named potential guarantor who has not been contacted, one of the persons named as a potential guarantor could not be contacted, whilst the other person named who was contacted refused to disclose her address or to provide any residential address for the Applicant. That person was Ms Fung, the Applicant’s girlfriend, and her refusal to disclose her address or provide an address for the Applicant does not provide any real comfort against the potential absconding.

45.  In those circumstances, the risk of absconding should the Applicant be released on recognizance seems to me to be high.

46.  Keeping firmly in mind that the period of detention to date is 272 days (around 9 months), and that that is the period of detention against which the other factors are to be weighed and balanced, it seems to me – exercising my primary decision-making powers on an application such as the present application – that the detention to date, and for the immediately foreseeable future, is a period that is reasonable in all the circumstances under HS2.

47.  It is also clear that the Secretary/Director has acted with reasonable diligence and expedition to effect removal, and to assist in the expedition of the progress of proceedings which otherwise currently provide any legal impediment to removal, so that HS4 is also satisfied.

F. Conclusion

48.  I have no hesitation in concluding that the Applicant’s detention so far is under lawful authority and remains Hardial Singh compliant.

49.  In the circumstances, the Applicant’s application for a writ of habeas corpus is dismissed.

50.  I make no order as to costs.