KO KANG SUK v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 260/2024

[2024] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 260 OF 2024

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J U D G M E N T

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A. Application

1.  By an ex parte applicationfiled on 1 February 2024, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). This is the Applicant’s second application for habeas corpus (the “2^nd HC Application”).  The first application was dismissed on 27 September 2023 under HCAL 1437/2023 (the “1^st HC Application”)  by Coleman J.  The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant, Criminal Record, Abscondence Record

2.  I gratefully adopt the background of the Applicant, record of criminal convictions, record of abscondence and the history of his non-refoulement proceedings as set out by Coleman J in his Decision dated 27 September 2023 for the 1^st HC Application.

3.  At the time the 1^st HC Application was dismissed, the Applicant had been detained for 135 days.  From 28 September 2023 to the date of the hearing of the 2^nd HC Application, the Applicant had been detained for a further 167 days.  At the time of the present hearing, the Applicant has been detained for a total of 302 days.

C.  Non-refoulement Claim (“NRC”)  related proceedings

4.  After leave was granted on 21 September 2023 for the Applicant to commence judicial review against the Torture Claims Appeal Board’s (the “TCAB”)  previous decision dated 28 April 2023 (the “TCAB Decision”), the Applicant did not immediately commence judicial review proceedings.  The Immigration Department (the “Department”)  received notice of the Applicant’s request to the Court for an extension of time to file the Form 86A in HCAL 953/2023 within 14 days after issuance of legal aid certificate or refusal of his legal aid application.  An extension to 31 October 2023 was granted by the court for filing the Originating Summons.

5.  On 15 November 2023, the Department of Justice (the “DOJ”)  issued a letter to the Applicant stating that the Director of Immigration (the “Director”)  had not been served with any Originating Summons and the Director will proceed with removal.

6.  On 17 November 2023, the DOJ received a letter from Messrs KCL & Partners acting on behalf of the Applicant that the Applicant would proceed with the judicial review proceedings but he was unable to issue the Originating Summons by himself and he had no money to serve all parties with the Originating Summons.

7.  An Originating Summons with affirmation was eventually filed on 22 November 2023.  The Applicant indicated by letter dated 27 November 2023 that he would proceed with the judicial review and asked for his removal to be withheld.

8.  On 1 December 2023, the DOJ issued a letter to the Applicant proposing to settle the judicial review proceedings by seeking an order by consent that the TCAB Decision be quashed and that the Applicant’s appeal/petition be remitted to the Board for fresh determination.

9.  The Applicant indicated by letter dated 11 December 2023 that he would wait for the decision of his legal aid application before agreeing to any settlement offer.  He had asked to be released on recognizance in the meantime.

10.  The Applicant by letter dated 30 December 2023 indicated that he would only accept the DOJ’s offer to settle his application for judicial review if the Director allowed him to build up grounds for his claim while being released on recognizance.  This was rejected by the DOJ by letter dated 10 January 2024.

11.  The Applicant’s legal aid application was refused on 19 January 2024.

12.  The hearing for the Applicant’s judicial review was originally fixed for 29 February 2024.  By letter dated 31 January 2024, the DOJ invited the Applicant to re-consider the Director’s proposal to settle the judicial review application.

13.  By letter dated 2 February 2024, the court observed that the Director’s settlement proposal was exactly what the Applicant is seeking in his Form 86A.

14.  The Applicant lodged an appeal against the Legal Aid Department’s refusal and as a result the court adjourned the hearing for the judicial review on 29 February 2024.

15.  The DOJ made a request on 16 February 2024 to the Registrar of the High Court and the Legal Aid Department requesting for priority to be accorded to the Applicant’s legal aid appeal.  The DOJ further invited the Applicant to re-consider the settlement of his judicial review application on 20 February 2024.

D.  Steps towards Removal

16.  After the dismissal of the 1^st HC Application, the Director had all along been acting proactively in his efforts to remove the Applicant.  The Director had sought for the Applicant’s judicial review to be resolved earlier by settlement, so as to enable the Applicant’s NRC to be remitted for determination at an earlier date.

E.  Applicable Principles

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

18.  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.

F.  The Applicant’s Submissions

19.  The Applicant has set out his grounds for application in his affirmation filed on 1 February 2024.  In summary, they are as follows:

(1)  The Applicant has been granted leave to apply for judicial review.  It is necessary to consider whether there is any sufficiently clear timescale within which deportation might be possible.  It is estimated that it would take at least 3 months for the judicial review to be completed.

(2)  It is reasonable for the Applicant to pursue legal advice through appealing against the refusal of legal aid.

(3)  The Applicant has not delayed his deportation.

(4)  Despite previous records of abscondence, the Applicant has on the last occasion complied with the stringent bail conditions imposed by the High Court.

(5)  The Applicant has provided a guarantor who is a permanent Hong Kong resident.

20.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  He had settled the claim with the Interpol.

(2)  He had not delayed taking out the judicial review.  It was the procedure for obtaining the funds to pay the fee that took nearly a month and thereafter, he applied for legal aid as it is his legal right to seek legal advice.

(3)  He had not settled the judicial review proceedings as he did not know what the consequences of settlement were and he wished to obtain legal advice before agreeing to it.

(4)  He will not abscond as he had been co-operative with re-entry formalities and he is willing to go back to Korea if his NRC fails, as the consequences of the charges by Interpol and the Korean police are not that severe.

21.  I have borne these points in mind as appropriate in my analysis below.

G.  Lawful Authority for Detention?

22.  In the 1^st HC Application, Coleman J was satisfied that the detention had been lawful. 

23.  After the 1^st HC Application was dismissed on 27 September 2023, the Applicant continued to be detained under section 32(3)  of the Ordinance from 28 September 2023 to 12 March 2024 pending his removal under the Deportation Order issued on 19 July 2023.

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

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

H.   Whether Detention has become unlawful

26.  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”). 

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

HS1

28.  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

29.  The starting point is the length of the detention – about 302 days – against which all the other factors must be weighed and balanced.

30.  For the following reasons, I am of the view that HS2 and HS3 are not satisfied:

Unreasonable delay of the Applicant in the disposal of the judicial review

(1)  I agree with Ms Hui’s submission that the Applicant had deliberately delayed the remittance of his NRC back to the TCAB for determination by unreasonably refusing to settle the judicial review proceedings:

(a)  He was granted leave to commence judicial review against the TCAB Decision on 21 September 2023, yet he only filed the Form 86A two months later on 22 November 2023.  I reject the explanation that he could not file the Originating Summons earlier due to a lack of funds.  The fact that he had instructed solicitors to write to the DOJ and the fact that he had funds to commence the 2^nd HC Application are clear indications that the Applicant was not so short of funds as to prevent his filing of the Originating Summons.  The Applicant had also admitted that he could approach his parents for living expenses.  There is thus no reason why his filing of the Form 86A was delayed.

(b)  Leaving aside the time lag in the filing of the Form 86A, there is no legitimate reason as to why the Applicant would refuse to accept the DOJ’s settlement proposal in relation to the judicial review proceedings, when effectively the DOJ has proposed to accept all of the reliefs sought by the Applicant.  The terms of the settlement proposal are simple and clear.  I reject the Applicant’s assertion that he did not understand the effect of the DOJ’s settlement proposal.

(c)  I reject the Applicant’s explanation that he needed to await for the outcome of his legal aid appeal before he could decide if he should agree to the settlement proposal: he applied for legal aid for conducting his judicial review.  The DOJ has already indicated that it is willing to settle the judicial review which effectively means that the reliefs sought by the Applicant are all acceded to.  I do not see any justification for the Applicant to insist on waiting for the result of the legal aid appeal, the hearing of which had not yet been scheduled.

(d)  From the exchange with the Applicant at the hearing, it is obvious that he is a sophisticated individual. He must be well aware that such unreasonable refusal to settle the judicial review proceedings will necessarily delay the remittance of his NRC to the TCAB for determination.

(e)  The irresistible inference from his actions is that he had deliberately delayed the judicial process. 

(2)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“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.”

(3)  The period of detention that the Applicant has prolonged by his deliberate refusal to co-operate (at least between the time when the DOJ proposed settlement of the judicial review application on 1 December 2023 and the eventual conclusion of the judicial review)  will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful.

Risk of abscondence

(4)  It is not disputed that the Applicant had complied with the stringent bail conditions as imposed by the High Court pending the determination of the trial of his criminal charge, namely surrendering his passport and reporting every Monday, Wednesday and Friday to a police station for a period of over 70 weeks.  It is also accepted that the Applicant had co-operated in obtaining a replacement travel document.  However, I am still of the view that there is a high risk of abscondence for the Applicant:

(a)  The Applicant remains a wanted person in Korea, both by the Korean court and the Interpol.  The charge against the Applicant in Korea has recently been updated to include fraud involving a billion won.  He will have plenty of reasons to resist being deported back to Korea.  This significantly increases his risk of abscondence.  

(b)  In his desperate attempt to persuade the court that his risk of abscondence is low, he alleged that he is now willing to go back to Korea and would withdraw his NRC.  However, when the court suggested that in that case, he could likely be repatriated with a week’s time, he immediately retracted by saying that he would still insist on going through with his NRC.  The Applicant’s assertion that he is willing to go back to Korea as he would not face any dire consequences (whether due to the claims in his NRC or the warrant of arrest by the Interpol or the Korean Police)  if he is repatriated is contradicted by his insistence on continuing with his NRC.  I also reject his bare assertion that he had settled with the Interpol or that his mother had settled the claim in Korea for him. 

(c)  Despite the Applicant’s submissions, I do not believe that the he would simply agree to be sent back to Korea should the outcome of his upcoming NRC prove unfavourable.

(d)  The fact that he has previously absconded twice before and had managed to stay under the radar for more than a year also lends support to the DOJ’s submission that the risk of abscondence is high.

(e)  The risk of abscondence is of critical importance in assessing lawfulness of the detention.  If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred and for which the detention order was made.

Risk of Re-Offence

(5)  With the Applicant’s previous criminal convictions for two counts of conspiracy to defraud and two counts of conspiracy to steal, the risk of re-offending is substantial.  As the Applicant is not allowed to take up employment, it is likely that he would be forced to resort to theft/fraud again.  In these circumstances, the Applicant’s empty assurance that he had learnt his lesson and not to commit further crimes again ring hollow.

Reasonable Period of Detention?

(6)  I am of the view that the likely further period that the Applicant will be detained for is not reasonable or lawful:

(a)  With the remittance of the Applicant’s NRC back to the TCAB, there is a legal impediment to the Applicant’s removal.

(b)  By the DOJ’s estimation, the period from the time the Applicant’s NRC is remitted back to the TCAB and the determination would be about 8 – 10 weeks.  However, if the Applicant’s NRC were to be rejected by TCAB on this occasion, and if the Applicant were to apply for leave to commence judicial review against that decision (which the Applicant already confirmed at the hearing that he would), that would take a minimum of a further 5 – 6 months.

(c)  Ms Hui for the DOJ confirmed and accepted that the current removal policy of the Department dictates that if the Applicant applies for leave to commence judicial review proceedings against an unfavourable determination by the TCAB, he would not be removed until the dismissal of such application by the Court of First Instance.   It is also accepted that this is a right that he is entitled to under the present policy.  However, Ms Hui submitted that it is uncertain at this juncture that the Applicant would apply for leave to commence judicial review against an unfavourable outcome and the Department would re-assess the situation should the eventuality arises.

(d)  I decline to adopt this approach: the Applicant has already confirmed at the hearing that he would apply for leave to commence judicial review if the outcome of his NRC were to be unfavourable.  It would thus be inappropriate for me to pretend that we do not have any indication that the Applicant is inclined to do so.

(e)  The Applicant has already been detained for 302 days.  His detention commenced before his previous leave application was even determined.  The fact that leave was eventually granted demonstrates that the previous assessment of the Department that the Applicant could be removed within a reasonable time was erroneous.  This highlights the danger in the Department’s practice of detaining such applicants before the result of an application for leave to commence judicial review is even available.  This is an important factor that I took into account.

(f)  It needs to be borne in mind that the Respondents bear the burden to demonstrate that the period of detention is reasonable and that the Applicant can be removed in a reasonably foreseeable future. Now that it is almost certain that the NRC would be remitted to the TCAB for determination, it would take at least another 6 months before a determination will be given by the Court of First Instance on an application for leave to commence judicial review, before he could be removed under the current policy (assuming his application is unsuccessful).  This would bring his detention to a total of nearly 1.5 years.  As explained above, only a limited part of this period can be attributed to the Applicant’s deliberate delaying tactic and should be discounted.

(g)  Ms Hui accepted that a risk of abscondence, no matter how high, does not justify an indefinite period of detention.  However, it is submitted that in view of the high risk of abscondence in the Applicant’s case, a further period of 6 months of detention should still be considered as reasonable.  No further elaboration was given and no authority is cited or relied upon for this proposition.

(h)  There is no doubt that the risk of abscondence and risk of re-offence are critical factors to be taken into account.  However, I am of the view that those alone are insufficient in the present circumstances to justify further detention of at least 6 more months, especially in light of the 302 days that the Applicant had already been detained.

(7)  Overall, weighing the period of detention – around 302 days – against all the other factors, I am not satisfied that HS2 and HS3 are met and the Applicant ought to be released on recognizance.

HS4

31.  For completeness, HS4 is satisfied as the Director had continued in his efforts with the removal of the Applicant throughout from 28 September 2023 to date.  However, this does not outweigh the fact that it cannot be demonstrated that the Applicant can be removed within a reasonable time-frame.

I.  Result

32.  Based on the above, despite the many factors weighing in favour of continual detention as discussed above, I eventually come to the conclusion that the Respondents have failed to demonstrate that the period of detention to date has remained lawful and will remain lawful for the foreseeable future.

33.  For these reasons, the Applicant’s application for writ of habeas corpus is allowed.

34.  I direct that the Applicant be released on recognizance, on terms satisfactory to the Director.

35.  I make no order as to costs.