MAHMOOD AHMED v. PERMANENT SECRETARY FOR SECURITY

HCAL153/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.153 OF 2004

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J U D G M E N T

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1.  The applicant applies to judicially review the deportation order (“the Deportation Order”) issued by the Permanent Secretary for Security (“the Permanent Secretary”) against him on 30 August 2004.

Background

2.  The applicant is a Pakistani national.  He was born in Pakistan on 1 March 1978.  He has three brothers, a sister and six half-brothers.  His father was a Hong Kong permanent resident.

3.  On 17 January 1992, the applicant first entered Hong Kong as a visitor.  On 12 June 1992, he was permitted to remain in Hong Kong as a dependant of his father.  On 5 September 1996, he was given permission to remain unconditionally.  Between 11 July 1998 and 18 June 1999, the applicant was absent from Hong Kong.  On 25 June 1999, the applicant made an application to the Immigration Department for verification of eligibility for permanent identity card.  The application was treated as cancelled in September 1999 because the applicant did not respond to enquiries from the Immigration Department regarding his absence from Hong Kong.

4.  The applicant’s three brothers were also allowed to stay in Hong Kong as their father’s dependants in 1991, 1992 and 1997 respectively. They are living in Hong Kong.  The second elder brother has acquired the status of a permanent resident.  The applicant’s father had died.  The applicant’s mother, sister and half-brothers are all living in Pakistan.

5.  The applicant is married but is estranged from his wife.  The applicant’s wife is not in Hong Kong, but it is not clear from the evidence as to where exactly she is residing.

Facts leading to the Deportation Order

6.  On 14 September 1999, the applicant was convicted of two charges of criminal damage and sentenced to 90 days’ imprisonment and to pay a fine of $2,000.  On 16 November 2000, he was again convicted and sentenced to four months’ imprisonment for the offence of possessing an identity card belonging to another person.  On 6 December 2000, the applicant was further convicted and fined $1,000 for the offence of possession of Part I poison.

7.  On 23 January 2001, the Director of Immigration wrote to warn the applicant that deportation would be sought against him if he were to be convicted of a criminal offence again.

8.  On 28 July 2003, the applicant carried with him a vegetable knife and used it to smash the windows of the ferry in which he was travelling.  As a result, he was convicted on 26 August 2003 of the offences of possession of offensive weapon in a public place and criminal damage (Magistracy case no. ESCC 2420/2003).   The Magistrate, Mr Dufton, called for psychiatric reports about him.  He adopted the recommendations of the psychiatrists and imposed a four-month hospital order by way of sentence.  The applicant’s appeal against sentence was dismissed by Deputy Judge Toh on 13 November 2003.         

9.  By notice dated 5 September 2003, the Director of Immigration invited the applicant to make representation in respect of an intended application for a deportation order against him.  The applicant sent in written representations and his three brothers also made written objections to the Director.

10.  On 17 December 2003, the Permanent Secretary approved the Director’s application and issued a deportation order against the applicant.

11.  By letter dated 9 January 2004, the applicant requested the Permanent Secretary to suspend or rescind the deportation order.  Having considered his representation and after consulting the Director, the Permanent Secretary rejected his request and informed him of the decision by letter dated 10 February 2004.

12.  On 20 March 2004, the applicant commenced HCAL 43/2004 to judicially review the deportation order.  The applicant was represented by Messrs Massie & Clement (“MC”).  Leave to apply for judicial review was granted on 22 March 2004.

13.  Upon obtaining legal advice, the Permanent Secretary decided to reconsider the decision to issue the deportation order.   The decision was communicated to MC by the Department of Justice (“DOJ”) by letter dated 26 April 2004.  The applicant was further invited to make representation regarding the making of a fresh deportation order.

14.  MC wrote to DOJ on 14 May 2004 making representations against the issue of a fresh deportation order.  Among other matters, it was said that on his discharge at the end of the four-month hospital order, the applicant could not be said to pose a threat to the public.

15.  On 11 June 2004, the Director of Immigration applied to the Permanent Secretary for a new deportation order be made against the applicant based on his convictions.  The matters considered by the Director and put forward for the Permanent’s Secretary’s considerations include the applicant’s psychiatric reports, the Reasons for Sentence of the Magistrate and the Deputy Judge’s Judgment on appeal as well as the representations and objections made by MC and the applicant.

16.  On 11 June 2004, the applicant through MC was invited to comment on the Director’s recommendation.  After a letter of reminder from DOJ, MC wrote on 19 July 2004 indicating that the applicant’s position was as stated in HCAL 43/2004.

17.  On 30 August 2004, the Permanent Secretary, acting on legal advice, withdrew the deportation order previously issued on 17 December 2003.  On the same day, a new deportation order, which forms the subject matter of these proceedings, was made.  By letter dated 31 August 2004, the Permanent Secretary informed MC of the withdrawal of the 2003 deportation order and the issue of the Deportation Order.  The applicant was released on own recognizance.

18.  On 2 December 2004, the applicant commenced these proceedings.  Leave to apply for judicial review was granted on 14 December 2004.

19.  By order dated 3 January 2005, the application for judicial review in HCAL 43/2004 was withdrawn with costs to the applicant.

20.  The applicant has since been in custody for further offences committed. 

Grounds for judicial review

21.  The application for judicial review is based on two grounds.  The primary ground is that the Permanent Secretary’s decision to issue the Deportation Order was Wednesbury unreasonable.  Specifically, it is said that the Permanent Secretary’s conclusion that the applicant’s continued presence would pose a threat to law and order of Hong Kong is irrational as being contrary to the findings of the psychiatrists, the Magistrate and the Deputy Judge made in connection with the sentence of the applicant and the appeal against sentence. 

22.  Another ground relied upon by the applicant is that the Permanent Secretary had failed to take due cognisance of the hardship caused to him by the Deportation Order in light of his ties to Hong Kong and the less satisfactory medical care and facilities between Hong Kong and Pakistan.

The power to issue a deportation order 

23.  Under section 20(1) of the Immigration Ordinance, the Chief Executive may make a deportation order against an immigrant if: (a) the immigrant has been found guilty of an offence punishable with imprisonment for not less than two years; or (b) the Chief Executive deems it to be conducive to the public good.

24.  Section 2(1) defines an immigrant as a person who is not a Hong Kong permanent resident.  There is no dispute that the applicant is an immigrant.  In this case, the Chief Executive has delegated his power under section 20(1) to the Permanent Secretary.

25.  In respect of the exercise of the power, Keith J (as he then was) held in the case of Dhalinder Singh v. The Secretary for Security (1996) 6 HKPLR 440 that the making of a deportation order involved striking a balance between the threat posed by the potential deportee’s continued presence in Hong Kong and the hardship deportation would cause him and innocent third parties.  It was further held that in assessing the threat to law and order which the continued presence of a potential deportee posed to Hong Kong, it was necessary for the public authority to take into account the nature and gravity of the offences for which the potential deportee was sentenced to terms of imprisonment, his previous convictions, and any information about the likelihood of his re-offending in the future.  

The Permanent Secretary’s decision

26.  The Permanent Secretary’s deliberations leading to the issue of the Deportation Order were explained in his affirmation of 16 March 2005.  They can be summarized as follows.

(1) The factors to be considered by the public authority in assessing whether a person would pose a threat to law and order are not totally the same as those considered by a court of law in making a hospital order with specified term.  In the case of the former, they include the nature and gravity of the offence committed, the person’s propensity to re-offend and his past convictions.  In the case of the latter, the main consideration is at what point of time it will be safe to release the offender from the mental hospital or psychiatric centre to the community.

(2) The applicant is a repeated offender.  In respect of his earlier convictions, the materials do not suggest that the mental illness was an operative factor in their commission.  Following his conviction in 2000, he had been warned of the consequence of deportation should he re-offend.

(3) The risk of the applicant re-offending or relapsing depends on a number of factors, including his compliance with medical advice and treatment.  The materials reveal that he had defaulted follow-up treatments since 2001.

(4) On the other hand, the fact that he suffered from mental illness was only one of the factors to be considered by the public authority in assessing whether the applicant would pose a threat to law and order of Hong Kong. 

(5) Except in severely mentally ill cases, the mere fact that the potential deportee suffers from mental illness is not a reason for not issuing a deportation order.  There was no medical evidence showing that the applicant was severely mentally ill or that his mental problem necessitated his stay in Hong Kong.

(6) The Permanent Secretary noted that the applicant had lived in Hong Kong since 1992, the disruption deportation would cause to himself and his three brothers in Hong Kong and he may face challenges in Pakistan. He was, however, not satisfied that these factors outweighed the need to protect Hong Kong and its residents.

The effect of a hospital order with specified duration

27.  The primary challenge of the applicant to the Deportation Order is that the Permanent Secretary’s conclusion that his continued presence posed a threat to law and order in Hong Kong was Wednesbury unreasonable.  The applicant’s arguments run as follows.  A hospital order for a specified period is only made when the psychiatrists who examined the patient were of the view that the patient could be confidently expected to be fit for release within the specified period.  Accordingly, when the psychiatrists, who examined the applicant in connection with his sentencing in 2003, recommended a four-month hospital order, they were satisfied that the applicant would not pose any threat to the public upon his release at the end of the four-month term.  Their view was accepted and shared by the sentencing Magistrate and approved by the Deputy Judge who upheld the sentence on appeal.  It follows that upon his discharge at the expiration of the hospital order, the applicant would not be a danger to the public, which is materially indistinguishable from a threat to law and order.   In the circumstances, the Permanent Secretary’s conclusion that the applicant’s continued presence would pose a threat to law and order in Hong Kong was contrary to the findings of the psychiatrists, the Magistrate and the Deputy Judge and is therefore irrational.   

28.  Pivotal to the applicant’s arguments is the effect of a hospital order with specified term.  It is the applicant’s contention that a hospital order with specified term connotes that the patient is considered by the psychiatrists who recommended the order, to be fit for release at the end of the specified term, hence not a danger to the public.  Mr Thomson cited the cases of R. v. Tsui Chung Leung [1977-1979] HKC 419, R. v. Chan Kin unreported Crim. App. No.421 of 1989 and R. v. Lam Yuet Siu [1993] 2 HKC 272 in support of this contention.

29.  In R. v. Tsui Chung Leung, which was an appeal against a sentence of hospital order with no period specified, the Court of Appeal held that it was proper for a court to make what was then called a mental health order without specifying the period, unless the psychiatrists who had examined the patient, were of the opinion that he could confidently be expected to be fit for release within a specified period. A similar view was expressed by the Court of Appeal in R. v. Chan Kin: see also HKSAR v. Poon Suet Ming unreported CACC 265 of 2000.

30.  In R. v. Lam Yuet Siu, the Court of Appeal held that it was wrong to equate the period of a hospital order with the term of imprisonment that the court would have imposed.

31.  In a more recent decision in HKSAR v. Lam Chung San unreported CACC 93 of 2004, the Court of Appeal (at paras.8 & 10) held that a convicted person who is sentenced to serve a hospital order is treated as a patient who is suffering from mental illness and requires treatment in a secure setting either as protection for himself or for the protection of the general public.  For a patient detained under a hospital order with a specified term, he can be discharged at the end of the term, or if the superintendent considers him to be not sufficiently well for discharge, he can be certified under section 36 of the Mental Health Ordinance for continued treatment in the institution.

32.  In my view, what these authorities show are that:

(1) A hospital order is made where the patient requires treatment in a secure setting either as protection to himself or for the protection for the public.

(2) A hospital order with specified term is only appropriate where the psychiatrists form the view that the patient can confidently be expected to be fit for release from the institution to the community at the end of the specified term.

33.  It follows that the term specified under a hospital order represents the period, which in the professional opinion of the examining psychiatrists, the patient is required to be confined for the purpose of being treated for his mental illness.  Accordingly, the fact that a patient is released at the end of the specified term only indicates that he is not required to receive treatment for his mental illness in a secure setting either because he is completely cured or because his mental illness is in remission.  It does not necessarily mean that the patient who is released at the end of the term specified in the hospital order will no longer be or cannot be a threat to the public.  For a patient who is released because his mental illness is in remission, he may pose a threat to the public when he relapses.     

34.  The authorities do not support the contention that upon his release at the end of the term specified in the hospital order, the patient could not be regarded as posing a threat to the public such that it cannot be said that his continued presence would pose a threat to law and order of Hong Kong.

35.  Mr Thomson argues that “threat to the public” is materially indistinguishable from, or alternatively, a wider notion than “threat to law and order”.   As Mr Li submits, this does not address the fundamental question of how the power to issue a deportation order should be exercised.  In assessing whether the potential deportee’s continued presence will pose a threat to law and order of Hong Kong, the Permanent Secretary must also consider, among other factors, the potential deportee’s likelihood to re-offend.  Where the materials before the Permanent Secretary show that the potential deportee’s transgression of the law was related to his mental illness, the risk of his relapse is clearly a relevant consideration.  The fact that the potential deportee was released upon the expiration of the term specified in a hospital order does not preclude the Permanent Secretary from assessing and taking into account the risk of his relapse and re-offending, hence any consequential threat to law and order.

36.  Thus analysed, the Permanent Secretary’s view that the factors to be considered by the public authority in assessing whether a person would pose a threat to law and order are not totally the same as those considered by a court of law in making a hospital order with specified term cannot be faulted.  It also cannot be said that the Permanent Secretary’s conclusion that the applicant’s continued presence would pose a threat to law and order of Hong Kong is incompatible with or contrary to the psychiatrists’ recommendation of a four-month hospital order or the hospital order imposed by the Magistrate and upheld by the Deputy Judge.  It follows that the applicant’s complaint that the Permanent Secretary’s decision is Wednesbury unreasonable cannot be sustained.

Hardship to the applicant

37.  The applicant’s other ground of challenge is that the Permanent Secretary had failed to take due cognisance of his ties to Hong Kong and the hardship deportation would cause to him, including the less satisfactory medical care and facilities in Pakistan.

38.  The evidence before the court shows before the decision was made, officers of the Immigration Department had interviewed the applicant’s brothers in Hong Kong to obtain updated personal information of the applicant.  The information as well as the representations of the applicant and his brothers were placed before and considered by the Permanent Secretary.  The Permanent Secretary had also said in his affirmation that he was sensitive to the disruption deportation would cause to the applicant and his brothers in Hong Kong as well as the challenges the applicant may face upon returning to Pakistan.  It also did not escape the Permanent Secretary’s attention that the applicant had been residing in Hong Kong since 1992.  In the end, he came to the conclusion that these factors could not outweigh the threat to law and order posed by the applicant’s presence in Hong Kong.

39.  As to the less satisfactory medical care and facilities in Pakistan, Mr Li has rightly pointed out that this is not a relevant factor having regard to the applicant’s primary contention that upon his release at the end of the four months term specified in the hospital order, he no longer poses a threat to the public because he is not suffering from mental illness.  That said, however, this cannot be an overwhelming factor in the Permanent Secretary’s balancing exercise.

40.  It is trite that the Court exercises a supervisory role in judicial review jurisdiction.  In the present case, there is no complaint of any procedural irregularity or unfairness.  On the evidence, the Permanent Secretary had conducted a balancing exercise and come to a conclusion that he was entitled to, it is not for this court to interfere or substitute its view for his conclusion, irrespective of the sympathy one may have for the applicant.                                                       

Conclusion

41.  For the above reasons, the application for judicial review is dismissed.  Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed, and that the applicant’s own costs be taxed under the Legal Aid Regulations.