SUKHMANDER SINGH v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

CACV 370/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 370 OF 2005

(ON APPEAL FROM HCAL NO. 68 OF 2005)

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J U D G M E N T

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Hon Stock JA :

Introduction

1. On 14 January 2005 the Permanent Secretary for Security (PSS) made a deportation order pursuant to section 20(1)(a) of the Immigration Ordinance, Cap. 115 by which he required the applicant, Singh, to leave Hong Kong and not thereafter to return.  Through his solicitors, the applicant asked for that order to be rescinded, but by letter dated 27 June 2005 the PSS notified the applicant that that request was denied, so that the deportation order stood.  The applicant then challenged both decisions by application for judicial review and, by order dated 14 September 2005, Reyes J quashed the deportation order. This is the appeal from the decision of Reyes J.

The facts

2. The case has an unusual factual setting.  The applicant is now aged 35 years.  He was born in India where he was schooled and worked as an auto mechanic.  He first entered Hong Kong as a visitor in February 1997.  The previous month he had married Ms Kaur in India.  Ms Kaur is a Hong Kong permanent resident.  They have a daughter, born in 1999.  In 1997 the applicant was permitted to remain in Hong Kong as a dependent of Ms Kaur.

3. However, about one year after his arrival, that is in February 1998, the applicant raped a lady to whom he was distantly related but whom he had only met once before.  She lived in Kowloon with her family but on the day in question her husband was away and the applicant entered her premises and raped her and then threatened her and her family with death if she told anyone what had happened.  It was established that the applicant entered the flat when he knew that the victim's husband and son were away in India.  The offence had been planned.

4. The applicant was granted bail and whilst on bail he was attacked by a number of persons who are believed to have included the victim's husband, a man called Avtar Singh.  The applicant received multiple chop wounds to the neck, back and upper limbs.

5. The applicant contested the charge but was convicted and sentenced at first instance to a term of 4 ½ years' imprisonment.  That sentence was increased upon a review to 8 ½ years' imprisonment, the Court noting the fact that the offence was planned, that it involved an element of breach of trust, and that death threats had been made during and after the rape.  The Court noted that the permanent injury with which he was left affected only his left hand but said that: “He is nevertheless disabled to a large extent in that hand and his future employment prospects will clearly be greatly limited.”

6. Two of the four assailants were arrested and charged and one was convicted, after testimony by the applicant, of wounding with intent, and sentenced to a term of 7 years' imprisonment.  The other was acquitted.  It is accepted that the man Avtar Singh fled the jurisdiction, and that he now lives in India in a village called Minian Village.  Here lies the rub, for the suggestion is that if the applicant is deported to India, the risk to his life at the hands of Avtar Singh and his family or henchmen is real.  That reality is the more apparent because, so it is said, the applicant would have no alternative, given his limited scope for employment, but to live in the house of his mother in law which is in the same village.  As we shall shortly see, the judge took the view that that was indeed so, namely, that the applicant would have to go to that village and that, accordingly, given the likely consequence of that, namely, a substantial risk to life, the decision to send him back to India was one that could not be sustained.  His decision to quash the order was based upon that finding as well as upon the conclusion that the reasoning of the PSS was not susceptible to close examination.

7. Before his arrest, the applicant worked as a construction worker and also as a waiter and a delivery man.  He has two brothers and a sister.  One brother, with whom he says he has lost contact, lives in India, another in Japan, and he has a sister in Canada.  His wife, Ms Kaur, has relatives in Hong Kong: her parents as well as two brothers and a sister.

Representations

8. Well before the applicant was due to be released the Director of Immigration informed him on more than one occasion of his intention to apply for his deportation pursuant to the terms of section 20(1)(a) of the Immigration Ordinance.  That section provides as follows:

“(1) The Governor may make a deportation order against an immigrant if -

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; ”

9. The ground alleged in the Notice of Consideration of Deportation was that the conviction for the offence of rape had led the Director to conclude that the applicant's continued presence in Hong Kong posed a threat to law and order, and the applicant was invited to make such representations as he saw fit in respect of that conclusion and of the proposed application for a deportation order.  

10. According to the evidence, the applicant refused to respond for a while but by letter dated 2 October 2003 he made written representations.  In that letter there is not a hint of concern about the risk to his life should he be returned to India.  It is a letter that concentrates upon the compassionate circumstances said to arise from the presence of his wife and child in Hong Kong.  He talks of the fact that whilst living in Hong Kong he was in employment, and that members of his wife's family living in Hong Kong were all working, and that “throughout my stay in Hong Kong … I have done my best to obey and respect the law of Hong Kong.  I've never gone about to hurt/harm anybody nor got involved into anything that would've let me to go against the law of Hong Kong” – a surprising contention, one might think – and he adds that: “I think I must impress upon you and others in the authority that I had never intended to commit the offence in the first place”.

11. A number of letters had been written by members of his family to the immigration authorities prior to that date and these, too, were placed before the Director of Immigration.  In her letter dated 21 December 1999, the applicant's wife prayed in aid a number of factors including the fact that the applicant and herself had been threatened by the complainant's family and that “I would not like him to be so far and yet me be in worries all the time”.  She asserted that “The people there will not let him live”.  She included the suggestion that if he returned to India there was nothing there to support him and that she herself would have to support him financially since he was not fit to do farming work by reason of his injuries.  In a further letter, written from India, she said that her monthly income was $5,500 per month plus overtime but that she received financial support from her father, two brothers and sister.  In a letter dated 4 March 2000 the applicant's father-in-law, who resides in Hong Kong, said that his family intended to continue support until the applicant was released from prison and until he obtained a permanent job.  They expressed concern that if the applicant returned to India anything could happen to him there because “if he stays in India and he would get killed any time because anyone can do anything by paying a certain sum of money”.  In a letter of the same date the applicant's sister-in-law said that her family would support the applicant and his wife in any way.  It was not asserted in any of these letters that if he was returned to India, he, the applicant, would be compelled to live in the same village as that in which the complainant's husband and alleged assailant, Avtar Singh, or his family, resided.

12. Further representations were made in 2004, in the main by solicitors acting for the applicant.  At that stage the applicant's wife was still in employment.  The solicitor said that the applicant had no connection with India anymore and that his father-in-law, mother-in-law, brother-in-law, and his brother-in-law's family all lived in Hong Kong.  They asserted that Avtar Singh had fled to India and “may kill our client if our client is sent back to India.”  Again, there was no contention that if he returned to India he would have to live in or near the same place as Avtar Singh, the village called Minian Village.  The solicitors subsequently submitted documentation from India suggesting that Avtar Singh was living there.  There was submitted in support of that contention a certificate from a village head person and from a couple of police posts. 

The decision maker's approach

13. Given the fact, as we shall see, that the decision at first instance is one that turns the decision maker's assessment of the facts, one is bound to examine that assessment in some depth.

14. The appellant has explained the route to his conclusion in two affirmations filed for the purposes of the judicial review application.  He took into account the medical condition of the applicant which was that although some permanent weakness of both upper limbs had been noted when the applicant was examined in September 1998, his general health was said, in another medical report in December 2004, to be satisfactory.  He noted the various compassionate circumstances put forward as constituted by the presence in Hong Kong of the applicant's wife and daughter, and the difficulties that would be incurred were they to be uprooted from Hong Kong and go to India to live with the applicant.  He noted the assertions made thus far as to the threat posed to the applicant were he to be returned to India.  In this regard, we see in his affirmation (page 83 appeal bundle A) his note that the applicant's family had asserted that “As the family of the victim lived close to their home in India and as anything could happen in India, the Applicant would get killed if he returned to India.”  He noted as well the contention that the applicant had been badly injured and would not be able to work as a farmer again in India.  He informed the court of assessments made by the Director of Immigration.  There, the considerations put forward included the fact that the offence of which the applicant had been committed was of a very serious nature; that deportation would not deprive the applicant and his family members of reuniting elsewhere; that financial support presently afforded to the applicant from his extended family could continue; and the Director's opinion that it would not be in the public interest to allow the applicant to remain in Hong Kong.  The appellant studied a copy of the judgment of the Court of Appeal and he noted therefrom not only the circumstances of the rape but also the references of that Court to the injury sustained by the applicant, references that included the fact that the permanent disability, such as it was, was one that affected only his left hand.

15. The appellant stated in his first affirmation that: “The offence of rape is repugnant to the generally accepted standard of morality of the community.  The continued presence of the offender in the community would not be acceptable, irrespective of whether or not the Applicant has the propensity to commit further offences in the future”; that there were aggravating features to the rape, including the fact that the applicant had acquired keys and gained access to the private premises of the victim without her prior knowledge or permission.  He took the view that “the community in Hong Kong could not afford giving the Applicant a second chance.”  He noted as well that the applicant had previously resided in India for something like 26 years and had been in Hong Kong for only a short time and had not the right of abode here.  He said that in considering the deportation order he was sensitive to the fact that the applicant's wife and daughter and his in-laws were in Hong Kong, and he considered the disruption to the family life enjoyed by the applicant and his family members in Hong Kong and the hardship that the applicant might face in India.  He concluded as follows: “On balance, given the serious nature of the offence committed and the aggravating features in the offence, I was not satisfied that the above facts and the objections raised by the Applicant, his wife and his extended family outweighed the need to protect law and order in Hong Kong and the well-being of the local residents.”

16. In the same affirmation, the PSS, Mr Ying, informed the court of further representations received after the making of the deportation order and these included the assertion that: “The victim's husband who is one of the attackers is in India [and that] the Applicant's safety will be in serious jeopardy [and the assertion that] the police in India are unable to provide continuous protection to him”, and the allied contention that the wife and daughter had also been subjected to threats.  The PSS said that he had received further representations from the Director of Immigration who did not think “that there was any overwhelming factor which justified rescission of the deportation order.”  As to his decision to maintain the deportation order, he said:

“I was not able to find sufficient justification for rescinding the deportation order ….

When implementing immigration control in the public interest in accordance with law, decision-makers will, unless there are unusual situations of concern or crisis that require immediate decisions, consider on an extra statutory basis, whether there are compelling or exceptional humanitarian considerations or exceptional hardship which justify an exception to policy in an individual case.  In making deportation decisions it is my practice to weigh disruption to the deportee and his family or third parties as well as to consider the public interest.  For example, in a case where there was serious disruption and where the offence attracted a light sentence and was a first conviction, a warning might be sent instead.  In other cases where the sentence is heavier, the offence committed is of serious nature or there is more than one offence on the record, I would tend to attach more weight to what the public interest and public protection required and, correspondingly, less weight to disruption and hardship.

Our law allows new alien residents the right to acquire permanent residence, which provides immunity from deportation.  I have no doubt that a fair and lawful decision to deport serves as a reminder and a deterrent to other new residents and sometimes from the same immigrant community assisting them to settle into Hong Kong on the basis of good behaviour and the avoidance of involving with criminal activities.  However the deterrence of others in my view, while a factor to be taken into account, is never a reason for making a deportation order.”

17. By affirmation dated the 31 August 2005, the applicant asserted that if deported he would be forced to live in the same village where his assailant Avtar Singh resided.  What he said was this:

“Avtar and my wife are distant cousins but hail from the same village in Punjab, that is, Minian.  After attacking me on 27^th  August 1998, Avtar fled from Hong Kong.  He had initially escaped to Japan where he worked and resided unlawfully, until his deportation to India approximately eighteen months ago.  Since then he has resided in Minian.  In the circumstances since I do not have a home or a house in India, I would be forced to live the village home of my mother-in-law in Minian where Avtar resides with the victim and the rest of his family.

The other two assailants are living in villages [which are] at a distance of about five kilometers from Minian.”

He then produced a number of threatening letters received in 1998.  Accordingly, he contended, the risk to his life was real and imminent. 

18. In his response to that affirmation, the decision-maker pointed out that the assertion that the applicant would have no choice but to live at the village home of his mother-in-law in Minian had never previously been put to him.  We pause to comment that this is evidently correct and in so far as it was heavily relied upon both in the court below and here, it is difficult to see by what token it can be utilised to attack the legality of the decision to deport when it was not an assertion before the decision maker either at the time of his decision or at the time when he was asked to rescind it.  This fact in itself would suffice to defeat an application for judicial review in so far as it rested upon that assertion.  Be that as it may, in his affirmation in reply, Mr Ying said that:

“The information provided in the 3^rd Affirmation of the Applicant does not alter the substance of the representations which he made himself or through his solicitors or family over a 5 years' period.  … I note that the Applicant claimed that if deported, he would be forced to live at the village home of his mother-in-law in Minian where the husband of the victim resides with the victim and the rest of his family.  In this connection, I also note the following:

(a) The Applicant was born and grew up in the village of Takhandwadh in Punjab.

(b) The Applicant has spent almost 26 years in India whereas he has only lived in Hong Kong for about 27 months prior to his imprisonment.

(c) The wife of the Applicant would support him financially if he is deported.  It is also clear that the Applicant's extended family are willing to support him.

(d) From their movement records, the wife and the daughter of the Applicant spent about one month away from Hong Kong each year for the years 2001, 2002 and 2004.  As I note that the Applicant's daughter had been to India previously, the trips, or some of the trips, were apparently to India where the alleged threat existed.  …

(e) … [threats [thus far] received] were received both in Hong Kong and India.  Any risk of attacks exists both in Hong Kong and India.

(f) One of the assailants has been released from prison and from his movement records, he is still in Hong Kong.

(g) The Director of Immigration would inform the consulate of India in Hong Kong of the Applicant's return and alleged threat when he returns to India and would ask them to provide whatever assistance they think appropriate to the Applicant.  Being an Indian national, the Applicant may always resort to the Indian authorities for protection of his personal safety.  The Indian police in the same district of the village of the victim's husband are aware of the conflict between the Applicant and the victim's husband.

In the circumstances, I have weighed the above considerations in the light of the further information provided by the Applicant in his 3^rd Affirmation and all the previous representations. … I remain of the view that a deportation order should be made against the Applicant and the order should not be rescinded.”

The judgment

19. There are, so it seems to me, two limbs to the decision of the learned judge at first instance to quash the determinations of the Permanent Secretary.  The first is his acceptance of the contention that the applicant would upon deportation be compelled to live in Minian Village.  The second is his dissatisfaction, in any event, with the appellant's reasoning process.

20. As to the first, the judge said this at para 26 of the judgment:

“26. I accept that as a result of the attack on him Mr. Singh's capacity to take on future employment as a construction worker, farm hand or auto mechanic has been severely constrained.  His family's economic circumstances are such that he has no real option other than to live for the time being in his mother-in-law's home in Minian Village if deported to India.

27.  Ms. Chung (appearing for the PSS) faintly suggests that Mr. Singh may have unidentified relatives living in India outside of Minian Village. 

28.  She relies for this submission on a letter dated 8 March 2000 from Ms. Kaur to the Government.  That letter states:

‘(1) Singh Sukhmander's mother, brothers, sister are all in India.

(2) They are staying with relatives except the elder brother who is married staying with his own family.

(3) Since his mother got tumour which is inoperable she wants to stay in India.  Therefore the younger brother and sister has to stay there to take care of her.'

29.  I do not find the letter helpful.  It describes the situation in 2000 long before Mr. Singh's mother died in December 2000.  It is evident that matters have moved on considerably between the time when the letter was written and January 2005 when the deportation order was made.  After the death of Mr. Singh's mother, Mr. Singh's siblings have dispersed.  It does not seem that the immediate family maintains a home in the Punjab or elsewhere in India.  No relative (whether near or distant) having a home in India has been identified in the evidence.

30.  In my view, the threat to Mr. Singh's life if he returns to Minian Village is credible and serious.  This is demonstrated by 2 facts.  First, Mr. Singh has already been savagely attacked once.  Second, 2 of his attackers have fled the jurisdiction to escape the reach of Hong Kong law.  Plainly, they show no remorse for what they have done and it must be assumed that they are prepared to inflict more violence.” (Emphasis added).

21. As to the second of the judge's concerns, namely, the reasoning advanced by the decision-maker, the judge referred in particular to that part of the first affirmation in which the Permanent Secretary for Security said that “the interference with the Applicant's family in Hong Kong and the potential threat to the Applicant in India should not outweigh the need to protect law and order in Hong Kong and the interest of Hong Kong residents”; and, further, to the second affirmation of the Permanent Secretary in its recitation of the various factors that he had noted and the conclusion that “I have weighed the above considerations … and I remain of the view that a deportation order should be made … and the order should not be rescinded.”  What the judge then said was this:

“46. The passage which I have quoted from his 1^st Affirmation simply restates the exercise to be conducted.  The factors pointing to deportation should be weighed against the potential threat to Mr. Singh's life if deported.  The PSS says that the latter element “should not outweigh” the former.  But he does not articulate why. 

47.  This is troubling when according to the 7 January 2005 memo, in the Government's own assessment, the risk that Mr. Singh will re-offend is most likely “low”.  Given a low risk of re-offending, how precisely does the need “to protect law and order in Hong Kong and the interest of Hong Kong residents” in the future “outweigh” threat to Mr. Singh's life?  There is only an assertion that such is the case.”

22. The judge then went on to deal seriatim with the various factors said by the Secretary to counterbalance the points made by the applicant, the judge commenting that they did not “answer the question why the real threat to Mr Singh's life is counterbalanced”.

23. The judge concluded, at para 58:

“58. It consequently does not seem to me that the PSS rigorously weighed the factors for and against deportation, in light of the serious threat to Mr. Singh's.  In my judgment, in the exceptional circumstances of this case, especially given the threat to life and the likely low risk of re-offending, the only reasonable decision would have been to allow Mr. Singh to remain in Hong Kong on compassionate grounds.”

Analysis

24. There is much in the grounds of appeal that it is not necessary for this court to address.  The contention was advanced that the learned judge erred in law in holding the respondent to a balancing exercise in the making of a deportation decision, whereas, it was argued, the dominant, if not the only, consideration is that of Hong Kong's public interest.  Then it was contended that the judge further erred in applying in the case of deportation the principles in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 in so far as that decision, in the context of a claim founded upon the rights and obligations arising under the Convention against Torture, insisted upon heightened levels of scrutiny by the courts and of procedural fairness by the decision-maker.  The argument presaged by the skeleton submissions was that torture for the purpose of Convention cases was directed at torture inflicted by or with the acquiescence of the State though its public officers, whereas in cases where the threat was said to come from private persons and, assuming that such a threat was at all relevant to a deportation decision, there had at least to be established not only the real risk of harm but also that the receiving country was not in a position to provide a reasonable degree of protection from harm.  For this proposition, we were referred to R (Bagdanavicius) v Home Secretary [2005] 2 WLR 1359 and HLR v France (1997) 26 EHRR 29.  It was further argued that the judge erred in his reading of the Secretary's testimony in so far as the judge assumed that the Secretary had concluded that the risk of further offending in this case was in fact low, whereas in truth the Secretary came to no such conclusion saying merely that the risk may or may not be low, but that such chance as existed was not one that should be taken. 

25. It seems to me unnecessary for this court to engage these issues.  It is unnecessary because in this case it is accepted that an issue was validly raised for consideration, namely, whether the deportation constituted a real threat to the life of the deportee.  I say ‘validly' raised because it is easy enough for anyone to make a bland assertion of such a threat, whereas in this case there was a real enough foundation in fact – questions of weight apart – for such an allegation.  That foundation was the attack to which the applicant had already been subjected, as well as the nature of the grievance harboured by the man who arranged that attack.  Given that the issue was one that touched upon the life itself of the applicant, I cannot think other than that it – the threat to life – was an assertion that was relevant to the deportation decision and that a decision made in the face of such an assertion in the context of such a background requires anxious and close scrutiny by a reviewing court.  Mr Chow SC, for the appellant, concedes that when making a deportation decision, the decision-maker is bound to consider compassionate circumstances, by which is most frequently meant family circumstances.  That is well-established and that being so, it must also follow that risk to life, if established – and the burden is always upon the proposed deportee to show substantial grounds for concluding that there is such a real risk – is a relevant consideration.  It matters not that it is a non-Convention case.  What matters is that any real risk to life, if demonstrated, is perforce a factor that the decision-maker cannot ignore.  What weight the risk, if shown, carries is another matter altogether and can only properly be assessed in all the circumstances of the particular case.

26. One starts in all such cases with a recognition that sovereign States (and in this case, a Region authorized by the sovereign State to control its own regional immigration) ‘have the right, as a matter of well-established international law and subject to their treaty obligations … to control the entry, residence and expulsion of aliens.': see Chahal v European Court of Human Rights (1996) 23 EHRR 413, 454.  In the case of those with no right of abode, there is no right to enter this Region save with leave of the Director of Immigration and no right, having been granted that leave, to remain longer than prescribed by such leave as has been granted, or for purposes other than the purpose for which permission to stay has been given.  That is the position in which this applicant has at all material times found himself.  It is the position in which he found himself before he planned and executed a rape on a resident of Hong Kong, and the absence of any right to be here without the consent of the Director, which is a matter within the Director's discretion, and the gross abuse of the permission that was granted, puts in proper context the burden which he must discharge in showing that the decision of the Secretary to deport him is one outwith the range of reasonable decisions open to the decision-maker.

27. Some emphasis was placed in the court below on the suggested low risk of re-offending.  It is said by the appellant that the Director came to no such conclusion but merely said that he was not prepared to take such risk as existed, low or otherwise.  Be that as it may, it seems to me that the nature and facts of some offences may be such that propensity to commit a further offence becomes a matter of secondary significance.  There is certain conduct that discloses on the part of a visitor such lack of character and disregard for the honour of others that the host is entitled to decide that the visitor's presence is no longer acceptable.  A host is entitled to set his own standards, reflecting those by which his society lives, and to set also an example to others who would become visitors.  And that is what happened in this case.  The Secretary has said in terms that: “The continued presence of the offender in the community would not be acceptable, irrespective of whether or not the Applicant has the propensity to commit further offences in the future.”  I do not think that he can be faulted for that approach.  Although propensity is generally a relevant consideration “… cases do arise, exceptionally, where the personal conduct of a proposed deportee has been such that, whilst not necessarily evincing any clear propensity to re-offend, it causes such deep public revulsion that public policy requires deportation.  Convictions for importing or supplying dangerous drugs for example, or for rape, incest, violent robbery and arson have been held to be in themselves a sufficient threat to public order as to give rise to the exercise of the power, although human rights, compassionate or other relevant circumstances may outweigh the public good.” See Macdonald's Immigration Law and Practice 6th ed. Para 15.14.  A footnote to that passage mentions the case Galoo, with a reference that no-one has been able to decipher or trace, with its comment that “rape strikes at the roots of society, including the sanctity of the family”.  Similarly, in Secretary of State for the Home Department v JN [2004] UKIAT 00009, the Tribunal said, at para 37 :

“The public interest element in a deportation decision is constituted not only by the need to secure the safety of the citizens of this country from future criminal acts by the Claimant himself: it consists also for the need for a decent society to express its revulsion at crimes of this sort and to make it clear that the full rigour of the law will be unleashed on those who commit them.”

I would add this – and it reflects a sentiment in the Court of Appeal's decision in JN above [2004] EWCA Civ 1094 – that there is in such considerations an important deterrent element too.  That is a factor to which the PSS alludes in his second affirmation wherein he suggests that a deportation order in such cases ‘serves as a reminder and a deterrent to other new residents and sometimes from the same immigrant community in assisting them to settle into Hong Kong on the basis of good behaviour.'  That is not the be-all and end-all of such a decision making process, but it is a valid factor.

28. Where, primarily, I find myself in respectful disagreement with the reviewing judge is in his acceptance that the applicant's circumstances were such that he had no choice other than to live in Minian Village.  That, it seems to me, is a vital finding and is the cornerstone of all else that follows; for if there was no such compulsion, then it must follow that the nature of the threat is altogether different.  I accept that if the applicant has to live in Minian, or even nearby, it is of scant comfort that the police may be a source of protection, for none could suppose that were he intent upon availing himself of the opportunity, Avtar Singh could, absent a twenty-four hour watch, be prevented from doing so if the applicant were readily to hand.  True it is that Avtar Singh has contacts in Hong Kong who could, upon instruction, venture further harm upon the applicant.  But that has, thankfully, not happened and no doubt such a route carries with it, as was evident from the criminal episode that took place here, a significantly greater risk of apprehension in a place as geographically confined as is Hong Kong.  One must assume, so it seems to me, that if the applicant were compelled to live in Minian the temptation and opportunity for further revenge by unlawful means would be real indeed.  But that is something of which this applicant is well aware, and as a matter of common sense and self-preservation there can surely be no doubt but that he will do what he can to avoid that risk.  In other words, he will not go there.  Why should he?  It is suggested that he has to go there because that is the only place where there is a house available for him to live.  That may be, and it will no doubt be less convenient for him to restart his life somewhere in India where there is no house for him.  But he is, in relative terms, a young man.  He is aged 35 years and is in good health, despite the disability to his left hand, and can work, albeit not in the occupations to which he was used when he lived in India, and financial support from Hong Kong is available to him.  In these circumstances, I simply fail to see upon what basis he is compelled to shun the vastness of his home country in favour of the one village in the whole of India – not even his home village – where resides the man who it is said will kill him.  It is also difficult to accept that such a person as the applicant who has lived in India for 26 years and who has family there, and friends too no doubt, has nowhere else from which to make a start.  There is no evidence filed by him that he is bereft of all contacts, even with former friends and if so, why.  The onus is on him to show a substantial risk; and it is an onus said to be discharged by reason of the fact that it is to one village to which he must go.  This court is in as good a position as was the learned judge to say whether the evidence so established, and I am satisfied that that finding of fact was erroneous.

The reasons provided

29. There arises then a further and important question which is whether there is any other ground upon which to upset the decision of the PSS; for if there is, then it may be incumbent upon the court, depending on the nature of the ground, to remit the matter to him for further consideration.

30. The only other possible basis is the suggested false reasoning of the PSS in arriving at his decision.  The judge was particularly concerned that the Secretary had not explained why the policy considerations to which he had referred, in particular the interests of Hong Kong residents, were not outweighed by the potential threat in India and the judge viewed as non-compelling other reasons put forward holding, for example, that in so far as the Secretary had taken into account the fact that the applicant's wife had visited India several times in recent years, that was not to the point given that it was unclear whether she visited Minian and given also that it was only in 2004 that Avtar Singh returned to India from Japan only in 2004.  As for the suggestion that the Indian police would be informed and that the Indian police in or near Minian were aware of the conflict, the judge suggested – and I respectfully agree – that there would not in real terms be much they could do if Avtar Singh set his mind to do the applicant real harm there.

31. It has not been suggested by the appellant that in this case the applicant was not entitled to reasons for the decision taken.  Where reasons are required or given, how detailed the reasons must be depends upon the case.  In some cases the reason or reasons may be short, speaking for themselves.  Where reasoning is provided it should be ‘adequate and intelligible'.  See: De Smith, Woolf and Jowell ‘Judicial Review of Administrative Action' 5^th ed., para 9-052, and upon review the courts will consider the substance of the reasoning rather than its format, so that where a particular case requires more, an incantation by the decision maker that he or she has taken into account all the circumstances may not be enough.  A case such as the present concerns a decision by a public body that is said to affect the very survival of the proposed deportee against a factual background where there has, unusually, been established a clear factual basis for his fear of an attack on his life.  The key question for the decision maker was therefore one that had to address, in so far as it was reasonably possible to do so, the level of that risk.  That, so it appears to me, is what this case was all about and, that being so, a set of reasons that did not state what conclusion had been reached as to the level of risk is a set of reasons that was inadequate to the case at hand.  Like the judge in the court below, I do not see the decision adequately explained, and I would respectfully echo the suggestion at para 9-052 of De Smith to which I referred above that ‘it is ... essential that the courts do not allow the duty to give reasons [where it exists] to atrophy.'

32. The decision maker in this case says in terms that the (new) assertion that the applicant has to live in the village of his assailant is one that does not alter the substance of the former representations.  It seems to me to alter the substance in a most radical way, and the assertion he has thus made raises a material question: Has he previously proceeded on the basis that the applicant would be living nearby the man Avtar Singh and if so, what assessment has he made of the level of the risk?  On the one hand he seems not to accept that the applicant will be forced to live in Minian or nearby, in that he refers to the fact that it is not the applicant's home village and that the applicant has lived in India for 26 years (by which he may mean that he must have access to contacts elsewhere), but in the same breath he talks of the suggested ability of the Indian police to provide protection in Minian, an assessment which, if it was important to the decision, is not in my judgment rational.  Since risk to life was a highly relevant factor for the Secretary to address and since undoubtedly he addressed it, it is not good enough, in my opinion, for him to tell the court that he has addressed it.  What the court is entitled to know is his assessment as to the level of that risk, for if that basic fact is not provided, how is any assessment to be made by the court as to the rationality of the decision or as to whether the relevant fact has in truth been taken into account?  He says in the first affirmation that ‘the potential threat to the Applicant in India should not outweigh the need to protect law and order in Hong Kong and the interest of the Hong Kong residents', yet he does not say what was his assessment of the level of that threat.  Is he saying that it matters not as far as he is concerned how great the threat is, or is he saying that the threat is the same here as there, or is he saying that he does not consider the threat to be great?  I do not know the answer to these questions, which are fundamental questions and I do not see why this court must start guessing what the assessment was.  It is after all not a difficult matter for the PSS to explain.

33. That being so, the question that arises is whether to quash the decision and to require a fresh one or whether, on the other hand, to order provision of the reasons for this decision in so far as they are presently lacking.  This choice is not one in respect of which we have been addressed, though the existence of that choice is the subject of discussion in the texts and cases: see De Smith para 9-055 and Fordham ‘Judicial Review Handbook' 3^rd ed., para 62.5.  

Conclusion

34. Given my assessment that the reasoning is not only inadequate in so far as it does not reveal the conclusion as to the level of risk but is also tainted by material flaws in such reasoning as is given – for example by the suggestion that the police could even in the village of Minian provide adequate protection; the suggestion that the risk in that village is no greater than in Hong Kong; and the failure to take into account that when the wife visited India, Avtar Singh was not there – I agree with the judge at first instance that the decisions challenged should be quashed, but I do not agree with him that the matter is not open for fresh consideration.  The judge at first instance concluded that the only reasonable determination would be to allow the applicant to remain in Hong Kong.  The basis for that conclusion was his finding that the applicant was bound to return, if he was deported, to Minian Village and I have explained why I cannot agree with that finding.  In summary therefore, I do not agree with the judge's finding that the only reasonable decision, on the facts before the decision maker, was to permit the applicant to remain in Hong Kong, but I do take the view that the reasoning provided by the PSS is so lacking as to cause material doubt whether the decision maker has properly addressed a key factor relevant to his decisions, for which reason alone I would dismiss the appeal, though this does not preclude the decision maker from making a fresh decision.

35. In that the dismissal of the appeal means that the decisions remain quashed, the appellant has not succeeded; yet has succeeded in challenging a central finding of the court below, so that the PSS is now enabled to make a fresh decision, whereas before the appeal he was not.  Accordingly, I would make a costs order nisi that there be no order as to the costs of the appeal, save for legal aid taxation of the respondent's costs in accordance with the Legal Aid Regulations.

Hon Sakhrani J:

36. I agree with the judgment of Stock JA and the order that he proposes.  There is nothing that I can usefully add.

Hon Ma CJHC:

37. I agree for the reasons provided by Stock JA that this appeal be dismissed to the extent contained in his Judgment and also to the proposed order as to costs.  Accordingly, the appeal is dismissed.  There will be a costs order nisi that there be no order as to the costs of the appeal, save that the respondent's costs be taxed in accordance with the Legal Aid Regulations.