GURNINDER SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1380/2023

[2023] HKCFI 2347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1380 OF 2023

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BETWEEN

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J U D G M E N T

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A. Application

1.  By an ex parte application dated 9 August 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.  However, about half an hour into the hearing, the Applicant handed up a letter to the Court which indicated that he wished to have the application dismissed and requested to go back to India.

3.  After confirmation, the Applicant’s stance was that if his application were refused, he wished to be able to go back to India to tend to his sick mother as soon as possible.

B. Background of Applicant

4.  The Applicant is an Indian national born on 20 April 1981 who entered Hong Kong illegally on 13 April 2015. He surrendered to the Immigration Department on 15 April 2015 and raised a non-refoulement claim (“NRC”) in September 2015.

5.  The Applicant claimed to be married but he had refused to disclose particulars of his family. He has confirmed that he has no local connections in Hong Kong. At the hearing, he disclosed that he has a mother who lives in India.

6.  The Applicant’s Indian passport had expired on 10 January 2018.

C. NRC related proceedings

7.  The Applicant’s NRC was based on alleged fear of being killed by his brother over land disputes in their home village.

8.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 6 October 2017 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 7 May 2018 (the “TCAB Decision”).

9.  The Applicant’s applications to the Court of First Instance for: i) an extension of time for the application for leave to apply for judicial review of the TCAB Decision; and ii) the application for leave to apply for judicial review were dismissed by the Form CALL-1 in HCAL 3404/2019 dated 26 July 2023 (the “JR Decision”).

10.  The Applicant had on 3 August 2023 lodged a Notice of Appeal against the JR Decision in CACV 245/2023. However, this is irrelevant for present purposes, as due to a change of the Immigration Department’s removal policy since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

D. Criminal Record & Sentencing Record

11.  The Applicant’s criminal and sentencing records are as follows:

Date of Sentence	Offence	Period of Sentence
28 April 2017	Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully	15 months
22 March 2021	Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully	15 months
16 August 2022	Taking employment while being a person in respect of whom a removal order is in force	16 months

12.  The Applicant was released on recognizance on and off previously, but as set out above, he had committed two counts of “taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully” and one count of “taking employment while being a person in respect of whom a removal order is in force” whilst on recognizance.

13.  After serving his imprisonment terms, the Applicant was discharged from imprisonment and was transferred to the Tai Tam Gap Correctional Institution on 4 May 2023. He was initially detained from 4 May 2023 to 25 July 2023 under section 32(3A) of the Immigration Ordinance (Cap 115) (the “Ordinance”) pending removal under a removal order. From 26 July 2023 to 2 August 2023, he was detained under section 29(1) of the Ordinance pending inquiry as to whether he ought to be deported.

14.  On 3 August 2023, a deportation order was made against the Applicant (the “Deportation Order”) and he has since then been detained under section 32(3) of the Ordinance, pending removal from Hong Kong. The Applicant is liable to be deported under the Deportation Order, which remains valid. The question which arises on this present application is whether the Applicant can continue to be lawfully detained until he is deported.

15.  Up to the date of the hearing, the Applicant would have been in custody for 4 months and 10 days (133 days).

E. Steps towards Removal

16.  The Applicant’s identity had been verified by the Consulate General of India (the “IND CG”) on 29 June 2023. An interview at the IND CG was originally scheduled for 21 July 2023 for the issuance of a replacement travel document. However, the Applicant indicated his refusal to attend the interview during a pre-interview conducted at the Tai Tam Gap Correctional Institute on 21 July 2023 and the interview with the IND CG was called off.

17.  On 4 September 2023, during another pre-interview conducted at the Tai Tam Gap Correctional Institute, the Applicant once again expressed unwillingness to attend the interview with the IND CG, originally scheduled for 6 September 2023.

18.  There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s passport which had expired in 2018.

19.  Prior to today’s hearing, the Applicant had on multiple occasions indicated his unwillingness to return to India. He had also failed to co-operate in completing the necessary formalities in relation to re-entry into India.

20.  The Immigration Department had explained to the Applicant that his failure and refusal to co-operate would impede his own removal and would inevitably lengthen the period of detention.

F. Applicable Principles

21.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

22.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G. The Applicant’s Submissions

23.  The Applicant has set out his grounds for application in his affirmation dated 3 August 2023. In summary, they are as follows:

(1) The Applicant said that an initially lawful detention can become unlawful if it falls foul of the Hardial Singh principles. The length of the detention since 4 May 2023 has become unreasonably long.

(2) The Director has failed to give proper consideration to whether removal can be effected within a reasonable time, and there is no concrete assessment of when he can be removed.

(3) The Director has failed to give reason why no weight is attached to the effect of detention on the detainee and the detainee’s family.

(4) The Applicant is deprived of quick medical attention to is high blood pressure and diabetes medical condition, especially in the middle of the night. It is alleged that his conditions have worsened after having been transferred to Tai Tam Gap Correctional Institute due to the uncomfortable facilities and an inability to take medication in a timely manner. The Applicant suffers from claustrophobia having been locked up for 23 hours or more per day.

(5) The Applicant said that there is no reasonable prospect of his removal. The Director fails to pinpoint exactly when and how he would be removed. The reference to “within a reasonable time” is insufficient.

(6) The Applicant is being detained in the same way as a convicted prisoner and was made to wear electronic tags and is subjected to CCTV surveillance.

24.  The Applicant relied on various quotes from the Administrative Law volume of the Halsbury’s Laws of Hong Kong as well as certain habeas corpus cases.

25.  At the oral hearing, the Applicant relied upon his earlier written materials and made further submissions. In addition to his submissions made in his affirmation, the Applicant stated the following:

(1) His friends who had committed much worse crimes had been granted bail.

(2) He has a pending appeal to the Court of Appeal.

(3) If he is not released, he wished to go back to India as soon as possible.

26.  I have borne these points in mind in my analysis below.

H. Lawful Authority for Detention?

27.  At all times, the Applicant was detained under various sections of the Ordinance:

(1) From 4 May 2023 to 25 July 2023 (83 days), the Applicant was detained under section 32(3A) of the Ordinance, which authorises the detention of a person against whom a removal order is in force pending his removal from Hong Kong. The Removal Order remains extant.

(2) From 26 July 2023 to 2 August 2023 (8 days), the Applicant was detained under section 29(1) which permits the detention of a person for the purpose of making enquiry as to whether a deportation order should be issued.

(3) The Deportation Order was issued on 3 August 2023. Thereafter, the Applicant has been detained from 3 August 2023 to 13 September 2023 (42 days) under section 32(3) which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

28.  Thus, there was and remains clear prima facie lawful authority for the detention.

29.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I. Whether Detention has become unlawful

30.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1) The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2) The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3) 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 (“HS3”);

(4) The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

31.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

32.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

33.  The starting point is the length of the detention – about 4 months and 10 days - against which all the other factors must be weighed and balanced.

34.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1) There is no dispute that at least from July 2023 onwards, the Applicant has refused to co-operate in obtaining a valid travel document to enter India.

(2) There is nothing to indicate that but for the Applicant’s refusal to co-operate in obtaining travel documents, there is any further obstacle to his repatriation, hence release from detention.

(3) I thus agree with Mr Fung that the length of the current detention was at least partly attributable to the Applicant’s self-inflicted hindrance. He had consciously and deliberately refused to cooperate, which led to the impossibility of deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(4) It is anticipated by the Immigration Department that if the Applicant were co-operative in completing the re-entry formalities, the travel document can be issued in about one month’s time, after which, a repatriation flight can be arranged within a short time. I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(5) I agree with Mr Fung that the risk of re-offending is real. Whilst the criminal record of this Applicant is not amongst the most serious that this Court has seen, the fact that the Applicant had repeatedly committed the same or similar offences despite having been previously convicted for such offences speaks volumes. Presumably, if not repatriated, once out of detention, the Applicant would find it necessary to seek employment (illegally) to maintain a living. The Applicant explained that his friends would give him financial support indefinitely so that he would not need to work illegally again. I do not accept this assertion. It is thus not unreasonable to guard against the risk that the Applicant, if released on recognizance, might engage in unlawful employment again which would lead to terms of imprisonment which might delay further repatriation operation, because each of them had in the past attracted an imprisonment term of 15 or more months.

(6) Given the Applicant has repeatedly refused to co-operate in obtaining the necessary travel documents and has indicated his unwillingness to be repatriated (before today’s hearing), the risk of absconding is also real.

(7) The family factor is of very little weight in the present case as the Applicant has confirmed that he has no local connection and he has so far refused to provide any details as to his family situation, save that he is married and has a mother living in India. No fixed place of abode has been provided by the Applicant.

(8) As to his health and medical conditions, the medical notes indicate that the Applicant’s conditions have been documented with medication prescribed. It is thus clear that medical attention was provided to him while in detention. There is also nothing to substantiate the allegation that medication was not provided in a timely manner.

(9) Overall, weighing the period of detention – around 4 months and 10 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

35.  I am satisfied that HS4 is satisfied for the following reasons:

(1) The Director had, in as early as 3 October 2017 sought the assistance of the IND CG to issue the Applicant with a travel document upon discovering that his passport would expire upon his discharge from his then term of imprisonment. Such request was renewed in January 2019, January 2022 and June 2023.

(2) The Director had written to the IND CG to verify the Applicant’s identity as an Indian national, which was confirmed on 29 June 2023.

(3) The Director had proactively asked the Court to expedite the Applicant’s application for leave to commence judicial review (which was at the time one of the obstacles in removing the Applicant).

(4) I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

36.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J. Result

37.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus with no order as to costs.

38.  Given the Applicant’s indication that he wished to be repatriated to India as soon as possible if his application is refused, the Immigration Department should proceed with the necessary procedures promptly.