ALAN EDWARD VAN LEUVEN v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 838/2022

[2022] HKCFI 2896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 838 OF 2022

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REASONS FOR DECISION

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A. Introduction

1.  This is an application for a writ of habeas corpus, filed by the Applicant filed on 26 August 2022.

2.  The Applicant has been held in administrative detention under section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) since 18 May 2021.  Therefore, up to the date of hearing, the detention was for a total period of 498 days.  In his application, the Applicant said that he would prove that the initially lawful detention has become unlawful, as it falls foul of the ‘Hardial Singh principles’.

3.  In his affirmation filed in support of the application, the Applicant set out further detail of his grounds as follows (square brackets and underlining in original):

(1)  Hardial Singh Principle (1).  The purpose of immigration detention is to effect removal and the power to detain can only be used for that purpose.  It is not used for the protection of public safety which is the duty of the Hong Kong Police Force.

(2)  Hardial Singh Principle (2).  The Detention has continued for a period of time that in all the circumstances is unreasonable.  There are more than several supporting factors that contribute towards immediate release.

(3)  Hardial Singh Principle (3).  Deportation cannot be effected within a reasonable time.  The Respondents cannot say when, or how they will effected.  The evidence as it stands makes the assumption that the tension is indefinite.

(4)  Mandatory Considerations.  The Respondents have failed to acknowledge as well is to take into account relevant considerations, being representations and submissions made on Applicant’s behalf [also by the Applicant himself] throughout 2021 [May 18, 2021] up until the present time.

(5)  Procedural impropriety.  The Respondent has made decisions to detain the applicant on assumptions that his criminal record has convictions of: “Drug Trafficking Offences”.  When in fact he has no “D.D. Trafficking Offences” on his criminal record.  The Director failed to verify the Applicants record with the Criminal Records Bureau prior to notifying the Torture Claims Appeals Board, as well is misusing this information as one of the “factors” when conducting the policy required-Reviews of Detention, under Section 32 of the Immigration Ordinance.

(6)  The Director of Immigration has failed to conduct “regular” reviews of detention, thus indicating a failure by the Immigration Department to adhere to its own published policy without good reason.  Therefore this amounts to an abuse of power which renders the detention itself unlawful.

4.  I gave directions on 30 August 2022, to bring this matter to a hearing on 19 September 2022.  However, unfortunately, the Applicant was unable to be brought to Court for the hearing on that date as a result of being a close contact to a confirmed Covid-19 patient.  The hearing was re-fixed for 26 September 2022.  That hearing date then had to be vacated and re-fixed for a hearing on 28 September 2022.

5.  The hearing was conducted with the benefit of, amongst other things:

(1)  the Applicant’s written submission materials, to which he made reference during the hearing; and

(2)  the initial response to the application filed by the Respondents (“Secretary” and “Director” respectively), which initial response invited me to refuse the application.

6.  The Applicant appeared in person.  The Secretary and Director were represented by Ms Hikki Wong, Senior Government Counsel (who also signed the initial response).  Though Ms Wong had not seen the Applicant’s written submission materials prior to the hearing, she had an opportunity to peruse them during a break in the hearing, and she confirmed that she was content for the hearing to continue to its conclusion.

7.  At the end of the hearing, I announced my decision (with reasons to be delivered later) – namely, that pursuant to RHC Order 54 rule 2 and/or the inherent jurisdiction, the Applicant should be released on terms of recognizance acceptable to the Director.  I made no order as to costs.

8.  These are my Reasons for Decision.

B.      Background

B.1    Applicant’s Status in Hong Kong

9.  The Applicant is an American national.  He previously had a dependant visa issued in November 2002, which permitted him to remain in Hong Kong with limit of stay until 24 December 2003.

10.  He did not apply for extension of stay on his dependant status, but remained in Hong Kong as a visitor intermittently between 2004 and 2005.

11.  As from 22 July 2005, the Applicant overstayed. He only surrendered to the Immigration Department on 16 March 2006.

12.  Subsequently, he entered Hong Kong on 7 May 2006 with a new dependant visa, approved in April 2006, as sponsored by his then wife, a Hong Kong permanent resident (“HKPR”).  The Applicant himself has never acquired HKPR status.

13.  On 13 July 2010, a Deportation Order was made against the Applicant under section 20(1)(a) of the Ordinance, in the circumstances following his conviction earlier that year, as will be outlined below.

B.2    Applicant’s Criminal Record in Hong Kong

14.  The following table identifies the criminal offences in Hong Kong, of which the Applicant has been convicted since 2010, and the sentences passed for each offence.

Date of Sentence	Offence	Sentence
(i) 20.01.2010	(a)  Possession of offensive weapon in a public place (b)  Possession of arms without a licence (c)  Possession of prohibited weapons (d)  Failing to surrender to custody without reasonable cause	(a)  4 months’ imprisonment (b)  14 months’ imprisonment (concurrent with (a)) (c)  4 months’ imprisonment (concurrent with (a)-(b)) (d)  2 months’ imprisonment (consecutive with (a)-(c)) Total: 16 months’ imprisonment
(ii) 09.02.2012	Criminal damage	14 days’ imprisonment and compensation payment of HK$500
(iii) 23.04.2013	(a)  5 counts of Obtaining property by deception (b)  5 counts of Obtaining property by deception (c)  Possession of a false instrument	(a)  20 months’ imprisonment for each count to run concurrently (b)  20 months’ imprisonment for each count to run concurrently (4 months consecutive with (a)) (c)  12 months’ imprisonment (4 months consecutive with (a)-(b)) Total: 28 months’ imprisonment
(iv) 14.04.2016	(a)  Conspiracy to make counterfeit notes with intent (b)  Possession of a dangerous drug (c)  Possessing of a false instrument	(a)  31 months’ imprisonment (b)  6 months’ imprisonment (2 months consecutive with (a)) (c)  6 months’ imprisonment (3 months consecutive with (a)-(b)) Total: 36 months’ imprisonment
(v) 14.08.2020	(a)  Making counterfeits of currency notes (b)  Having custody/control of counterfeit notes and coins (c)  Possession of an identity card relating to another person	(a)  3 years and 8 months’ imprisonment (b)  3 years’ imprisonment (concurrent with (a)) (c)  12 months’ imprisonment (6 months consecutive with (a)-(b)) Total: 4 years and 2 months’ imprisonment

15.  It is relevant also to note that, prior to the present period of detention which began on 18 May 2021, the Applicant had been subject to various other periods of detention under the Ordinance.  He had been released on recognizance on various occasions, and had on four different occasions failed to report recognizance, most recently on 13 July 2018. The Applicant was re-arrested by police each time, and subsequently convicted of various offences on three occasions.

16.  Records available to the Secretary also indicate the Applicant failed to answer court bail from 31 July 2009 to 31 October 2009, and that he jumped police bail on 11 August 2009.

B.3    Applicant’s Non-Refoulement Claims and Related Proceedings

17.  The Applicant first lodged a torture claim on 11 August 2010 (after the date of the first conviction mentioned above).

18.  That claim was rejected on 28 May 2013, after which the Applicant reserved his right to lodge a non-refoulement claim (“NRC”), which was apparently made on or about 11 June 2013.

19.  On 24 March 2017, the Applicant’s NRC was rejected by the Director on the remaining applicable grounds other than torture risk, including risks of BOR2, BOR3 and persecution.

20.  On 5 April 2017, the Applicant filed a Notice of Appeal/Petition against the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).  The appeal/petition was dismissed by the Board on 6 July 2018.

21.  On 12 August 2021, the Applicant filed an application for leave to apply for judicial review against the Board’s dismissal decision, and for the necessary extension of time for that application.  Leave to apply for judicial review was granted on 25 November 2021.

22.  On 4 April 2022, a Legal Aid Certificate was issued to the Applicant, with the assignment of a legal representative.  With the benefit of that certificate, the originating summons of the Applicant’s judicial review application (“JR Application”) was issued on 18 May 2022.

23.  It seems that from June 2022, there were negotiations between the Applicant and the Director (between their legal representatives) on the potential disposal of the Applicant’s JR application. Attached to the Applicant’s affirmation is a letter from the Applicant’s solicitors dated 5 August 2022, which suggests that the JR Application would soon be settled by remitting the NRC back to the Board for a fresh consideration.  Incidentally, the letter goes on to state that, on the assumption that the Applicant’s fresh appeal/petition would be rejected by the Board, he would still be entitled to make application for judicial review against the Board’s decision.  Therefore, it was said to be clear that physical removal of the Applicant from Hong Kong is not going to be possible within a reasonable period of time.

24.  At the hearing, I was told by the parties that an agreement in principle had indeed been reached that the JR Application would be compromised by remitting the Applicant’s NRC to the Board, and that a consent summons would soon be filed in those proceedings, so that the Board could in due course commence its fresh consideration.

B.4    Detention and Periodic Reviews

25.  On 18 May 2021, at the end of the Applicant’s last period of imprisonment, he was discharged from prison and detained under section 32(3) of the Ordinance.

26.  Since that time, the Director has sought a review of detention authority from the Secretary on several – 6 – occasions, being: 11 August 2021, 17 August 2021, 11 October 2021, 16 March 2022, 23 May 2022, 29 July 2022.

27.  As a result of the requests, reviews were undertaken by the Principal Assistant Secretary for Security on: 16 August 2021, 24 August 2021, 18 October 2021, 28 March 2022, 30 May 2022, and 1 September 2022.  On each occasion, the Permanent Assistant Secretary for Security considered that there were grounds for continued detention.

28.  Further, the Director also considered on various occasions that releasing the Applicant on recognizance was not warranted.

29.  The grounds for continued detention and the basis for the view that releasing the Applicant on recognizance was not warranted has consistently been on the following grounds: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant poses, or is likely to pose, a threat or security risk to the community; (3) the Applicant may abscond and/or (re)offend; and (4) there are no other circumstances in favour of the Applicant’s release.

30.  In the last review of detention, those points were elaborated on, including as follows:

Regarding the subject’s judicial review in relation to his non-refoulement claim, the settlement negotiation between the Department of Justice and the subject’s legal representatives is underway.  Approval / Order from the Court will be sought upon reaching an agreement to remit the case to [the Board] for re-assessment.  Once the case is remitted to the [Board] for re-assessing, request will be made by ImmD to expedite the processing of the appeal/petition.  Regarding the outstanding family court case of the subject, a hearing has been scheduled on 11 October 2022.

The subject has been convicted of various criminal offences in 2010, 2012, 2013, 2016 and 2020.  He was re-arrested by the Police and committed multiple offences while being released on recognizance for four times.  For the latest convictions and 2020, he was sentenced to 4 years and two months’ imprisonment, which the seriousness is reflected by the heavy sentence passed by the Court.

The subject was convicted of multiple the portable offences of serious nature, including “Possessing false instrument”; “obtaining property by deception”; “Possession of a dangerous drug”; “Having custody/control/making of counterfeit currency notes”.  In addition, he was convicted of “Possession of an offensive weapon in a public place / arms without licence / prohibited weapons”, which are of violent nature as the unlawful use of those items may inflict serious bodily harm to others in the community.

The subject had failed to report recognizance on four occasions during 2010 to 2018.

The subject jumped police bail on 11 August 2009. He also jumped court bail from 31 July 2009 to 31 October 2009 and was convicted of the offence of “Failing to surrender to custody without reasonable cause”.

While being released on recognizance, the subject was arrested by the Police in January 2012, September 2012, April 2015 and August 2018.  He was convicted of multiple criminal offences after arrest.

The fact that the subject claimed that he has a Hong Kong permanent resident friend who can act as his guarantor has been taken into consideration.  Furthermore, the subject’s legal representatives’ request for releasing the subject on recognizance is noted.  However, the above do not outweigh those factors which are in support of the subject’s continued detention pending deportation.

31.  The Recommendation section of the Director’s last internal consideration on 7 September 2022 of whether or not to release on recognizance states as follows:

Recommendation

2.  Subject has been detained for over one year and three months since 18 May 2021 pending removal from Hong Kong.  Regarding his judicial review in relation to his non-refoulement claim, active liaison has been made by RLS counterpart to expedite settlement after which case would be remitted to the TCAB / NCPO for fresh determination.  Should subject’s appeal / petition be remitted to TCAB / NCPO, request would also be made by ImmD to TCAB / NCPO to accord priority for subject’s case.  In general, TCAB / NCPO would take a few months to reach a decision on the determination of the appeal / petition, if any, given that priority is accorded.  Accordingly, with expedition on settlement on subject’s JR case coupled with the estimated processing time of subject’s coming appeal / petition as remitted to TCAB / NCPO, it is estimated that subject’s case could be completed within a few months.

3.  Regarding subject’s re-entry to USA, with constant liaison with the USA CG, the USA CG has confirmed on multiple occasions that they would issue a travel document to subject upon completion of re-entry application formalities.  In addition, the USA CG has stated that it would take only a few days to issue a travel document to subject once he had completed the formalities.  in the premises, it is believed that there is a reasonable prospect of effecting subject’s deportation subject to no other unusual circumstances or impediment hindering his deportation.

4.  Subject is a serious crime offender, a repeated offender and a subject of deportation order.  He is likely to pose a threat and security risk to the local community.  The offences committed by subject as listed above are considered to be serious as they are deportable offence (except “Failing to surrender to custody without reasonable cause”) under section 20 of the Ordinance. Against the previous history of convictions and numerous prison sentences imposed, the risk of subject’s re-offending is real and substantial and the potential consequences are of certain seriousness as well.  After his previous release on recognizance, subject had failed to report for recognizance on four occasions and jumped bail on two occasions.  On the facts, there is a real possibility that subject, if released, will not only abscond but also commit criminal offence(s) as supported by his previous records.

5.  The fact that there is HKPR male who is willing to subject’s guarantor and both subject and subject’s legal representative requesting subject to be released on recognizance have been taken into consideration but these factors do not outweigh the factors against release of subject as stated above.

6.  Notwithstanding subject has been detained for over one year and three months for the present detention, with the settlement negotiation being underway and a hearing in relation to his family court case being scheduled on 11-10-2022 and there is no sufficient reason to believe that his legal proceedings cannot be finalized within a reasonable time, there is reasonable prospect of effecting his deportation within reasonable time in the foreseeable future.  As mentioned above, there is a real and substantial risk that subject may abscond and commit criminal offence(s) if released on recognizance.  The potential gravity of offence(s) committed, if subject is released, is high as supported by his previous records.  Should subject’s non-refoulement claim be finalized, arrangement will be made to effect his deportation as soon as practicable, subject to no other unusual circumstances and balancing all factors including the time of detention of subject over one year and three months and the above-mentioned PAS’s conclusion on the review of subject’s detention, this is not a case warranting release of subject on recognizance in lieu of his detention under section 32(3) of the Ordinance pending his deportation from Hong Kong.

32.  The recommendation was supported by each of the officers in ascending seniority who added their comments in handwriting on 7 or 8 September 2022.  Each officer has apparently expressly balanced the period of detention to date against the other relevant factors, before agreeing with the recommendation.  The most senior officer, PIO(RAL), stated:

Subject has been detained for over 15 months.  He is a subject of D.O. who has committed serious criminal offences repeatedly with absconding history in HK.  Having balanced relevant factors, including duration of the tension, gravity and frequency of criminal offending, record of failure to report recognizance/bail, case progress of NRC, re-entry situation and effort to remove obstacles, risk of posing threats to community, etc, I consider this is not a case warranting release of recognizance.

33.  I also note from the chronology provided by Ms Wong that the Director has been in contact with the Consulate General of the United States of America (“USCG”) on various occasions, requesting assistance for the necessary travel document for the Applicant.  Despite the USCG stating that it would not take many days for the provision of such a document, that would not be possible in light of the Applicant’s refusal to so far to make the required application for documents.

34.  In connection with that point, it seems that on 24 November 2021 the Applicant stated in writing that he was willing to return to his home country and would withdraw his then application for leave to apply for judicial review.  At the hearing, the Applicant asserted that he had only done so as a result of being put under real pressure by ImmD officers.  Indeed, by written submission dated 26 November 2021, the Applicant stated he had changed his mind, that he was unwilling to return to his home country, and that he intended further to pursue the JR Application (for which, by that date, leave had been granted).

C.      Applicable Legal Principles

35.  In its recent Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

36.  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.

37.  Though I refer to the summary, I do not lose sight of the underlying details and rationale.  It may be necessary to return below to some of that detail.

D.      Applicant’s Submissions

38.  The Applicant has filed lengthy and well-prepared written submissions in support of his application.  The documents appear to have been prepared on a rolling or updating basis, in part for earlier submission to other persons and bodies, as the Applicant has sought release on recognizance.  I do not mean any disrespect to the Applicant or his industry that I shall not rehearse the totality of them.  Instead, I shall offer a summary of the key points made by the Applicant as the following:

(1)  First, it should be borne in mind throughout that the longer a person is kept in detention pending his or her removal from Hong Kong, the heavier is the burden on the immigration authorities to justify their conduct when it is challenged.

(2)  The Applicant has already been held in detention for over 16 months, or 498 days.

(3)  The “major point in time” when his detention became unlawful pursuant to the Hardial Singh principles, was 25 November 2021, when he was granted an extension of time for applying for leave to apply for JR, and was at the same time granted leave.  From that point, there was no realistic prospect of removal in the foreseeable future – and that fact ought to have been obvious to the authorities.

(4)  His detention has not been kept under “regular” review, as the reviews have not been evenly spaced or performed frequently.  Nor has the period of detention been “closely” monitored.  That is a breach of ImmD’s own published policy.  The procedure for detention has not been upheld and has therefore it has become uncertain.

(5)  He has been subject to numerous notices of detention and to reviews which merely restate matters already stated in earlier materials, often simply copied and pasted from those earlier materials.

(6)  What is in the materials even seems almost exactly the same as similar materials given to other people (as can be seen from reports of other cases).

(7)  That gives rise to the same concerns and criticisms expressed in the judgment the Court of Appeal in the Harjang Singh case (see above), in particular at §§139-141.

(8)  The approach to the last review of his detention may have been influenced by points made in that judgment, as its structure has changed.  But, that does not assist in justifying past conduct, which is part of the challenge.

(9)  More weight should be given to detention during the period when he is pursuing an apparently meritorious appeal (as opposed to detention during a period when he is pursuing a hopeless one).

(10)  Because it is not possible to predict when the NRC claim might be resolved (even ignoring any subsequent Court proceedings), he is now being detained pending the final determination of his NRC but not pending for removal.

(11)  As to release on recognizance, the Applicant criticises the use of the phrase “threat or security risk” to the community. He says he is obviously not a terrorist nor an insurrection is that any level. Further, the use of the ‘tick box’ form has not identified the weight and balance of various factors at various points of time over the months and years of detention.

(12)  As to his previous offending, he is not violent, and he has harmed no-one.  Nor was anyone financially harmed by the matters on which he was convicted.

(13)  Anyway, he has paid his debt to society by the sentences already served, which were themselves in part enhanced as a result of his immigration status.  To continue to hold him in immigration detention is tantamount to duplication.  Further, there must come a time when even a risk of reoffending no longer justifies continued detention, and that point must have been reached.

(14)  He has also sought to make up for his previous offending, by acting as a police informer.  Information provided by him has led to the arrest of other people, which has been recognised as deserving of thanks.

(15)  He has a clear disciplinary record throughout his period of administrative detention.

(16)  Anyway, on the Government’s own figures, the statistical chance that he would reoffend is extremely low.

(17)  The Applicant has a medical history of suffering from “cluster headaches”.  The continued detention puts his physical and psychological well-being into an unwarranted state of stress and anxiety.  He has even had to be hospitalised in May 2022.

(18)  The Applicant is involved in Family Court proceedings in FCMP 230/2021, a matter involving his daughter, who has been under the supervision and care of the Social Welfare Department - Child Protective Services Unit, due to having been taken from her mother for various reasons of failing to comply with welfare standards regarding childcare.

(19)  He has throughout made clear that his main focus is to obtain custody of his daughter, upon successful completion of which he would willingly make representations to ImmD to be deported together with his daughter.

(20)  The next hearing date is on 11 October 2022, and a social welfare investigation report has been called for.  He has tried to file affirmation and other materials for that hearing, but has so far been unable to do so (even via a third party) because he is in detention.

(21)  His application for legal aid has been twice refused, so he has to conduct the proceedings in person (as is his right).

(22)  If the Applicant is to be granted custody of his daughter, as he seeks, it would require him to be at liberty, and so the failure to obtain liberty before the Family Court proceedings would deny him the opportunity to gain custody of his daughter.

(23)  That would trigger further civil proceedings in court, which would itself cause even longer delays and support the fact that removal is not possible within a reasonable time.

(24)  Though the mother of his daughter is not claiming custody (and she is herself held in detention pending removal from Hong Kong), it may be necessary for (or the Court might order) a DNA test to prove paternity, and that could not be performed from detention.

(25)  If a new birth certificate is to be granted, that would also require the personal attendance of the Applicant.

(26)  The matter of obtaining US citizenship for his daughter would also the personal attendance of both of them together at the USCG.

(27)  Though the Applicant accepts that he has failed to report recognizance on various separate occasions, he says he will modify his behaviour in future, especially because his efforts to gain custody of his daughter are of such paramount importance that he would not put himself at risk to jeopardise that.  It would make no sense for him to abscond.

(28)  He has a guarantor, willing to stand surety for him, with whom he will live and who will support him.  The guarantor – a manager of a medical practice married to a doctor and with children – has provided letters confirming this.

(29)  There is no benefit to the ImmD or anyone else to keep him in detention.

39.  The Applicant also made a number of submissions relating his temporary removal from TTGI to Stanley Prison, after he was identified as a close contact of a confirmed Covid-19 patient.  He has complained of being treated as a prisoner, rather than someone held on administrative detention, with various details which he says are in breach of the Nelson Mandela Rules.  Further, when he was returned to TTGI, he found that many of his belongings – including court papers, and his prepared submissions – had been lost or destroyed.  Those matters are at least unfortunate, and whilst I take them broadly into account, I do not think that they are potentially determinative of the current application so as to require any more detailed consideration.  They are probably better dealt with under the complaints to the relevant authorities which he has already made.

E.      Respondents’ Submissions

40.  In her initial response and submissions, Ms Wong addresses the central question as to whether there is, and continues to be, lawful authority for a detention, where the burden is on the Secretary and/or the Director to show that the detention is and remains lawful.

41.  Her submission (in summary) is that the continued lawfulness of detention is demonstrated by the following:

(1)  The original detention was plainly prima facie lawful.

(2)  The Director has taken active steps to effect removal, including liaison with USCG regarding the issuance of a travel document for the Applicant (which he has in effect blocked by refusing to apply for one), and by seeking financial provision for an air ticket.

(3)  Therefore, the Secretary and Director plainly intend to deport the Applicant, and he is detained for that purpose.

(4)  The Applicant’s NRC was dismissed by the Board on 6 July 2018, but he only sought leave to apply for JR on 12 August 2021. In any event, following the grant of leave, there has been active negotiation for the disposal of the JR Application, so that it is not unreasonable to take the view that the JR Application will be concluded within a reasonable time and would no longer constitute an impediment to the Applicant’s removal.

(5)  Even if the Applicant were to seek adjournments of the fresh consideration by the Board, so as to obtain further evidence or documentation, there is an ascertainable and foreseeable timescale for those proceedings which would be no longer than between 6 and 9 months.

(6)  The refusal of the Applicant to cooperate in obtaining a travel document is a self-imposed obstacle.  Even if removal cannot yet be effected (because of the outstanding NRC), there is no reason not at least to obtain a travel document to permit removal when it might be able to be effected.

(7)  It is also considered that the Applicant is a recidivist, having been convicted of a number of serious criminal offences in Hong Kong, so that he poses, or is likely to pose, a threat to the community.

(8)  It would be wrong to say there is no security risk or threat to the community simply because there may not have been a conviction based on violence having happened.  First, the weapons offences may have led to conviction before any violence could have happened.  Secondly, offences such as circulating counterfeit currency is damaging to society.

(9)  Given the assessment that removal of the Applicant is possible within a reasonable time, and the risk of absconding and/or reoffending could be said to be high given the previous adverse records, considerable weight should be given to the Director’s assessment of those risks and the fact weight.  The potential gravity of offences, if committed upon release, is not a low one as supported by his previous convictions and sentences imposed by the Courts.

(10)  The attempted reliance upon general statistics are of no relevance, where the relevant consideration must be of the Applicant’s own circumstances, and the perceived particular risks of his reoffending and absconding.

(11)  The criticism that the ‘recommendation’ sections of the reviews and internal minutes has ‘cut and paste’ repetition is misplaced.  Where the subject of review will not change much, logically the recommendation will be more or less the same.  The same is true across different individuals, where similar cases will be treated alike.  Further, the recommendation is based on the prior stated facts, which are varying from review to review.  The point is to look at how the recommendation arrived at, not focus simply on the wording of the recommendation itself.

(12)  An illegal immigrant in Hong Kong cannot rely on family rights as a reason against removal.

(13)  As to the Family Court proceedings, the Applicant can obtain legal representation, and can conduct those proceedings from outside Hong Kong.

42.  Ms Wong submits that the overall balance of the various factors identifies that continued detention is lawful, and there is a proper basis for no release on recognizance.

F.      Analysis

43.  It is not in dispute that the detention pending removal from Hong Kong, in accordance with the Deportation Order, is prima facie lawful.

44.  In its assessment of the continued lawfulness of detention, the Court acts as the primary decision maker as to the reasonableness of that continued detention.  That involves an exercise of judgment and the balance of different factors.  The Court is entitled to place some reliance and weight on a properly careful and robust up-to-date consideration by the Secretary/Director, but is not bound to accept the balance there adopted.

45.  In my assessment, I do not intend to canvass all of the points made by the parties, but shall focus on those aspects which seem to me to be more important, or more determinative of the ultimate question.

46.  The starting point is to identify, and keep firmly in mind, that the period of administrative detention to the date of the hearing was for 498 days.  It is against that period, and any reasonably anticipated future period of detention, that the other factors need to be weighed and balanced.

47.  I accept that the Secretary/Director obviously do intend to deport the Applicant and have only been seeking to use the power to detain for that purpose, so that HS1 is so far satisfied.

48.  I also accept that the Secretary/Director have acted with reasonable diligence and expedition to effect removal.  Though there have not been the fastest dealings in relation to the JR Application, and remitting the NRC back to the Board, I take into account that the Applicant and his lawyers have not been rushing.  The Secretary/Director have sought to arrange travel documents and the reason why none have been obtained is because the Applicant has chosen not to make the necessary application.  In my view, HS4 is satisfied.

49.  I take into account the Applicant’s recidivism, and that amongst the list of criminal offences committed by him, several were committed whilst previously released on recognizance.  Connected to that are the failures to have reported for recognizance and the failure to keep to his bail conditions.

50.  Recognising that the risks of absconding and reoffending are important in the weighing exercise, I am afraid I think that the risks have been insufficiently covered in the Secretary/Director’s consideration as revealed from the various minutes.  I accept the force in Ms Wong’s submission that when looking at the reviews, and the similarity from one review to the next, the fact that there is similarity should not be taken too far.  As she says, the recommendation is ultimately based upon the other materials which are identified in each review, which have been updated.

51.  But I think there is also force in the view that, whilst it may be identified from those matters what has been taken into account, it is not sufficiently clear how it has been taken into account.  In other words, it is not clear what weight is given to any particular fact, and what impact is that said to have on the balance as against other factors.  Nor is it clear how the balance might have shifted over the period of detention – or, if it is not shifted, why it has not.

52.  It also seems to me that some aspects of the factors have not been taken into account at all, or not been given sufficient weight, in the Secretary/Director’s analysis.

53.  In particular, the consideration of the impact of the Family Court proceedings appears to have focused on the ability of the Applicant to conduct those proceedings, either from detention or from overseas after deportation.  I think the impact is of real weight in the overall consideration of the continued lawfulness of detention.

54.  First, from the materials, I am not sure that there has been a real grasp of the Applicant’s level of practical or realistic ability to conduct proceedings from detention, or from overseas.  He is acting in person (as is his right, and as is the natural consequence of the failure to obtain legal aid), and that fact has already impacted his ability to take the proper role in the proceedings.  Whilst I asked at the hearing for further enquiries to be made as to why the Applicant has been unable to file his further evidence and submissions, notwithstanding the leave to do so, it may be because of the very nature of the proceedings themselves; proceedings relating to children are ordinarily kept extremely private, and participation strictly limited in all respects to the parties to the proceedings and/or those legal representatives on the record as acting for the parties.

55.  Secondly, the nature of the proceedings – a claim to parental rights and to custody of a child – are such that the Applicant’s prospects in the proceedings might be significantly affected by whether he is or is not in detention.  That is a potentially significant impact not just on the Applicant, but also on the child – where the child’s mother is apparently not seeking custody and the real contest in the proceedings seems to be between the Applicant and the Social Welfare Department, as to whether the Applicant is a person with parental rights and, if so, whether he is able to provide appropriate care to the child.

56.  Ms Wong’s submission that family rights are irrelevant to the status of an illegal immigrant is misdirected.  I accept that an illegal immigrant who is pending deportation cannot rely on any family rights by reason of the operation reason of the ‘immigration reservation’ under section 11 of the Hong Kong Bill of Rights Ordinance.  Nor can he get around section 11 by relying on the family rights of the child (who may be a Hong Kong resident): see Comilang v Director of Immigration (2019) 22 HKCFAR 59.  But, with respect, if it is the view of the Secretary/Director that they can in effect ignore matters such as the impact on family and family rights in detention cases, that is incorrect.

57.  In the consideration of whether an initially lawful detention has become unlawful – and in any related habeas corpus application – the detained person is not claiming residency or permission to stay, and he is not advancing his family rights as an impediment to his removal.  The question is whether he should be held in detention or be released on recognizance while he remains in Hong Kong pending his deportation.  In that context, the appropriate weighing and balancing obviously permits, and in fact requires, appropriate consideration of the impact of continued detention on the applicant and his family.  Indeed, it is settled that a review of what might be regarded as a reasonable period of detention will include the effect of detention on him and his family (see above).

58.  Thirdly, there is much force in the Applicant’s statement that it makes no sense for him to abscond, when he is fighting for custody of his daughter in court proceedings which require his attendance. That seems to me to identify that, notwithstanding his previous poor record, the present risk of absconding is relatively low.

59.  Fourthly, the adverse impact of a further conviction on the Applicant’s claim to custody in the Family Court proceedings also seems to me to make the likelihood of reoffending somewhat lower than might otherwise appear to be the case looking merely at his past record.  Nor does the potential gravity of reoffending seem to me to be as high as the Secretary/Director think.  Further, I think the fact that the Applicant has acted as a police informer also comes into account.  Without in any way downplaying the seriousness of the offences as was reflected in the sentences, it is correct that the Applicant has not been convicted of an offence of violence.  Further, whilst the commission of crime is generally not conducive to the best for society – and not in any way to undermine the decision reflected in the Deportation Order – I am also not convinced that it can really be said that the Applicant poses, or is likely to pose, a real threat to the security of the community.

60.  Importantly, the legal impediment to removal in this case is significant in the consideration of what might be a reasonable period of continued detention.  That is because the process frequently seen is, in effect, being restarted by the agreement that the Applicant’s NRC should be remitted to the Board for fresh consideration.  It can also be said that more weight is to be given to an application which appears to be recognised as having some merit, than to one which obviously has no merit. 

61.  I should say that I am not particularly impressed by the Applicant’s simultaneous assertions – even in advance of seeing the basis of the Board’s decision upon fresh consideration – that:

(1)  he will automatically exercise his legal rights of attempted review and further appeals, in effect so as to maintain a legal impediment to removal; whilst

(2)  he would be willing to resolve things in a different way by negotiating his own removal once he has obtained (as he hopes) custody of his daughter, so that they can leave together.

62.  Not only does that seem to be an unattractive ‘working of the system’, there is at least a potential mismatch between an NRC (which is put forward on the basis that it is not safe for him to be refouled) and the stated willingness nevertheless to be refouled, so long as that can be delayed until he has achieved a different aim of obtaining custody of his daughter.

63.  Nevertheless, even ignoring potential further Court proceedings, and whilst it is possible to identify some timescale for the potential resolution of matters before the Board, that period is likely to be one of several, perhaps 6, months (albeit Ms Wong has fairly sought to identify what might be called a worst-case scenario of 9 months).

64.  In the particular circumstances of this case, weighing that matter against the other factors I have already canvassed, I think it can now be said that the further period of detention which would undoubtedly occur, unless the Applicant is released on recognizance, would be or become unreasonable.  In other words, it is possible to say that it has by now become apparent that the Secretary/Director will not be able to effect deportation before the expiry of any reasonable period, so that they should not now seek to exercise the power of detention.  Hence – even if the view is taken that the Applicant has only been detained to date for a period that is reasonable in all the circumstances, so that HS3 is satisfied – it can now be said that HS2 is not satisfied.

65.  In short, on the overall balancing of factors in accordance with the weight which I think should be attributed to them, the originally lawful detention has at this point become unlawful, and it must cease.

G.      Result

66.  Therefore, for the above reasons, I allowed the Applicant’s application for writ of habeas corpus, and ordered that pursuant to RHC Order 54 rule 2 and/or the inherent jurisdiction, the Applicant should be released on terms of recognizance acceptable to the Director.

67.  I made no order as to costs.