WALLACE SHAUN MARK v. DEPARTMENT OF JUSTICE

HCAL 294/2024

[2024] HKCFI 1032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 294 OF 2024

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 28 February and 28 April 2022.  He has been held in immigration detention since 24 February 2022 (interrupted by a quarantine period from 28 February to 7 March 2022)  pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 776 days.

1.2  On 7 February 2024, the Applicant applied for a writ of habeas corpus.  At the hearing, the Applicant appeared in person.  Ms Wingkie Lam, Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”).

1.3  Previously, on 6 October 2023, the Applicant applied for leave to apply for judicial review under HCAL 1788/2023 to challenge, inter alia, the lawfulness of his detention (“Leave Application”).  By his decision dated 10 November 2023 (“Decision”)[1], Coleman J dismissed the Leave Application.  As noted at Decision §3, the learned Judge observed that the part of the Leave Application challenging the lawfulness of the Applicant’s detention was akin or amounting to an application for a writ of habeas corpus.  By reason of the analysis set out at Decision §§48-61, the learned Judge was of the view that the Applicant’s detention was and continued to remain lawful.

1.4  Whilst I am to assess the reasonableness and lawfulness of the Applicant’s detention in the light of the additional, and therefore the entire, period of his detention, it seems to me that I may, and should, give regard to the analysis carried out by Coleman J.

2.  Background

2.1  The details of the Applicant’s immigration status, conviction and absconding record, non-refoulement claim (“NRC”)  and reviews of his detention up until the hearing before Coleman J and previous removal efforts are set out at section B of the Decision. 

2.2  The following matters are worth reiterating:

(1)  there has been, and is, no practical impediment to the Applicant’s removal arising from any issues relating to his travel document, as his New Zealand passport is valid until 9 February 2031 (Decision §6);

(2)  the Applicant has a history of criminal convictions and failures to report recognizance (Decision §§12-15);

(3)  the Applicant’s NRC was rejected by the Director on 14 July 2022, and his appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”), after multiple requests made by the Immigration Department to TCAB to accord priority to it, was dismissed on 6 January 2023 (“TCAB’s Decision”)  (Decision §§16-18); and

(4)  there were 3 attempts to repatriate the Applicant to his home country, on 23 May 2022, 28 March 2023 and 8 August 2023 but they were all unsuccessful as a result of the Applicant’s strong resistance in behaving aggressively and refusing to cooperate (Decision §28).

3.  Developments since the Decision

3.1  The bases of the Applicant’s detention are set out at Decision §22.  The Applicant’s detention since 10 November 2023 has continued to be pursuant to section 32(3)  of the Ordinance pending his deportation.

3.2  The Applicant has continued to express his unwillingness to return to his home country (Decision §27)  on 10 November and 28 December 2023, 29 January, 19 February and 27 March 2024.

3.3  Since the Decision, there has been two further attempts to repatriate the Applicant to his home country on 23 November 2023 and 29 February 2024, each attempt unsuccessful for different reasons.  The former was unsuccessful as Air New Zealand declined to uplift the Applicant as a result of a risk assessment carried out by it.  Air New Zealand took into account the Applicant’s non-compliance with the removal process, the nature of his criminal history and the request to travel unescorted and declined to uplift the Applicant.  The latter was rendered abortive because of the present application, but it is noted that Cathay Pacific had already given its approval for the Applicant to board the scheduled flight.

3.4  The latest review of the Applicant’s detention took place on 8 April 2024.  The broad bases for his continued detention were: (1)  the Applicant’s removal is going to be possible within a reasonable time, (2)  he poses or is likely to pose a threat or security risk to the community, (3)  he may abscond and/or (re)offend, (4)  he does not have close connection or fixed abode in Hong Kong and (5)  there are no other circumstances in favour of his release.  In other words, the view taken was broadly similar to that taken at the hearing before Coleman J (Decision §25).  

3.5  The next repatriation operation is scheduled to take place on 18 April 2024, for which approval has already been given by Cathay Pacific for the Applicant to board the scheduled flight.

4.  The Applicant’s submissions

4.1  The Applicant’s written materials may be summarized as follows:

(1)  his detention has become unlawful as there was no attempt made on 23 November 2023 to deport him;

(2)  he had been imprisoned and now detained for a lengthy period;

(3)  he submitted that the nature of his criminal offences is not serious, and in particular in relation to the conviction of “possession of offensive weapon in a public place” it was a “technical” transgression as the “weapons” were in fact used for his martial arts training;

(4)  in any event, he promises not to re-offend; and

(5)  he further promises that he will comply with recognizance conditions.

4.2  At the hearing, he supplemented as follows (which matters were already ventilated before Coleman J): (1)  he was detained for a period which was longer than his sentence, (2)  he suffered an accident and was treated poorly at the hospital, (3)  he was tricked into making his torture claim and (4)  it was unfair that the Deportation Order was made against him.

4.3  The “new” matters raised were: (1)  his mother-in-law is Chinese and resides in Shanghai (although the Applicant does not know her current whereabouts), (2)  his biological father and mother-in-law have made significant contributions to the Mainland and Hong Kong and (3)  he has a guarantor, one Mr Susith Perera from church, who can provide an address were he released on recognizance.  Mr Perera did not attend the hearing before me.

5.  The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781.  I have in particular borne in mind the summary set out at §164 thereof.

5.2  I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

5.3  Under section 32(4A)  of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1)  whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3)  whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person's entry to that place and (4)  factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

5.4  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2024] 1 HKLRD 582.  Au JA said §29:

“ Once considered against these primary findings of facts and observations, in our view, it was not sensibly open to the Judge to conclude, after weighing all the relevant factors as he did, that the relevant immigration detention had become unreasonably long and thus unlawful:

(1)  It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant’s own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant’s own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant’s further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2)  In the circumstances, the Judge’s emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3)  In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise.  This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released.  That cannot be the intention of the Hardial Singh principles.”

6.  Analysis

6.1  During the present detention, the Applicant has been detained pursuant to various sections of the Ordinance.  It follows therefore that there has been prima facie lawful authority to detain the Applicant. 

6.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 776 days, against which the various other factors must be weighed and balanced.

6.3  Having carried out my own assessment, I find myself in complete agreement with Coleman J that the Applicant’s detention up to 10 November 2023 was reasonable and hence lawful (Decision §§48-61).

6.4  The key developments since the Decision have been set out at section 3 above.

6.5  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the efforts made to repatriate the Applicant to his home country. 

6.6  It is perhaps unfortunate that the repatriation operation scheduled on 23 November 2023 (referred to at Decision §58)  was abortive.  The contemporaneous documents show that Air New Zealand only requested the Immigration Department to provide information on the Applicant on 21 November 2023, which was duly complied with on the same day.  The airline’s risk assessment was only completed on 22 November 2023, the day prior to the scheduled departure.  In this regard, I am of the view that the Applicant’s position that there was no attempt to deport him on 23 November 2023 to be a mischaracterization of what factually transpired although Ms Lam fairly confirmed that the Applicant was not made aware of Air New Zealand’s refusal to uplift him.

6.7  Thereafter, the repatriation operation on 29 February 2024 was cancelled because of the present application.  But for the legal impediment created by the present application, the Applicant’s detention would have ended upon his removal from Hong Kong on 29 February 2024.  Whilst the court should in general be slow to characterize an applicant’s entitlement to make an application for a writ of habeas corpus as unreasonable, in the particular circumstances of this case, the present application does appear to be a tactic to unreasonably create a legal impediment, bearing in mind that a part of the Leave Application was in substance an application for a writ of habeas corpus (and expressly stated to be so at Decision §3)  which was only recently regarded as having no merit and dismissed.  In so saying, I do point out that Ms Lam, again very fairly, informed me that the Applicant was not told of the repatriation arrangement in February 2024, such that there was a deliberate attempt on the Applicant’s part to thwart the arrangement.

6.8  I do not believe that Coleman J’s assessment (at Decision §§56 and 57)  that there was a high risk of absconding and a risk of (re)offending (with which I agree)  would have taken on less significance given the addition period of detention since the Decision.  In fact, to the contrary, the Applicant’s continued expression of his unwillingness to return to his home country underscores the continued existence of the absconding risks.  I do not regard the Applicant’s offer of an unverified guarantor ameliorates the absconding risks.  Nor do I think that the Applicant’s bare assertion that his family had made significant contributions to the Mainland and Hong Kong to be of relevance.

6.9  The complaints, raised before Coleman J, and repeated before me that: (1)  the Deportation Order against him is unfair was dealt with at Decision §§34-37, (2)  his perceived unfairness that he was detained for a period longer than his imprisonment was dealt with at Decision §46(5)-(6)  and 59 and (3)  his allegation that he was tricked into making his NRC was dealt with at Decision §55.  For the reasons set out therein, I agree that such matters do not have the effect of rending then, and now, his detention unreasonable and hence unlawful.  

6.10  In any event, the next repatriation operation is scheduled for 18 April 2024, only 3 days after today’s hearing.  Therefore, there is a clear time scale for removing the Applicant, as well as the reasonable prospect of doing so, in the near future. 

6.11  In the circumstances, HS2 and HS3 are also satisfied.

7.  Conclusion

7.1  I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (which at present will likely end on 18 April 2024), has been and will remain lawful.

7.2  As a result, the Applicant's application is dismissed with no order as to costs.