SUKHPAL SINGH v. HONG KONG SAR GOVERNMENT

HCAL 1686/2024

[2024] HKCFI 3448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1686 OF 2024

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D E C I S I O N

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1.  Introduction

1.1  This is my decision on the Applicant’s second application for a writ of habeas corpus made on 26 September 2024. His first application, made on 12 October 2023, was dismissed by DHCJ Phoebe Man on 8 December 2023 (“Decision”).

1.2  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 4 November 2010 and 26 September 2022. He has been held in immigration detention, for divers periods pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”), since 28 December 2021[1]. As at the hearing before me, he has been detained for 1,071 days, on any view a lengthy period.

1.3  At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Eric Ko, Government Counsel appeared for the Secretary for Justice (“Secretary”) and the Director of Immigration (“Director”).

1.4  The Applicant confirmed that the then relevant facts were accurately set out in the Decision. Those factual matters will be analyzed afresh, in the light of the now lengthier period of detention, together with the developments which have taken place since the Decision.

2.  Relevant factual background

2.1  I refer to Decision §§3 to 25 which set out (1) the Applicant’s immigration status, (2) his criminal and abscondence records, (3) his non-refoulement claim (“NRC”) and related proceedings and (4) the steps previously taken to effect the Applicant’s removal.

2.2  The following are the material developments since the Decision.

2.3  First, as noted at Decision §11-14, HCAL 1919/2023, which is the Applicant’s application for leave to apply for judicial review (against the decision against him made by the Torture Claims Appeal Board (“TCAB”)) then remained extant and therefore presented a legal impediment to the Applicant’s removal. Since the Decision, HCAL 1919/2023 was dismissed by DHCJ KW Lung on 9 January 2024[2].

2.4  Secondly, as noted at Decision §§17-23, the Applicant has since 19 October 2022 refused to cooperate in completing the removal formalities and indicated his unwillingness to return to his home country. His position has remained the same since the Decision. At all interviews conducted with the Applicant, he has expressed his unwillingness and/or refused to complete the re-entry formalities. The Consulate General of India (“IND CG”) has still declined to provide an alternative means to issue an emergency travel document and insisted one would only be issued following an interview with the Applicant. The interview scheduled with the IND CG on 24 October 2024 was frustrated by the Applicant in view of his refusal to cooperate.

2.5  Thirdly, since 6 August 2024, the Applicant started to complain about leg and back pain to the Immigration Department. It appears from the medical records produced by the Applicant that he started receiving treatment from the Queen Mary Hospital as early as June 2022. This has been confirmed by the Applicant at the hearing.

2.6  Fourthly, the latest review of the Applicant’s detention on 20 September 2024 maintains the view that the detention of the Applicant should continue for the following broad reasons: (1) his removal is going to be possible within a reasonable time, (2) he poses or is likely to pose a threat or security risk to the community, (3) he may abscond, (4) he does not have close connection or fixed abode in Hong Kong, (5) his uncooperativeness in complying with the removal formalities is the only reason for the delay of his deportation and (6) there are no other circumstances in favour of his release.

3.  The applicable principles

3.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

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

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

3.4  The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

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

3.5  Pertinently, where, as here, the Applicant has refused to cooperate with the reentry formalities, Johnson Benjamin is an authority for the proposition that this is a factor which may be taken into account in assessing the reasonableness of his detention. At Johnson Benjamin §37, it is stated:

“Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

4.  The Applicant’s submissions

4.1  The Applicant’s written materials put forward the following matters:

(1)  He has been detained for more than 32 months and the present detention has become unlawful;

(2)  He has appealed against the dismissal of HCA 1919/2023 (CACV 23/2024) and he alleges that the Department of Justice may agree to settle the case by remitting it to TCAB for fresh consideration, which process may than take months or even years;

(3)  He is presently detained either pending his NRC or alternatively as a result of his past crimes;

(4)  The detention environment is akin to imprisonment;

(5)  His physical ailments have made navigating around the detention facilities, which have a lot of stairs, difficult; and

(6)  He may be harmed if repatriated.

4.2 At the hearing, the Applicant confirmed that the foregoing represents an accurate summary of the grounds set out in his application. He also handed up to court additional materials, by which he reiterates the above grounds, and emphasizes (1) his life will be endangered if repatriated and this is the reason why he refuses to return to his home country, which reason was communicated at various interviews he attended, (2) he has served the imprisonment for his past wrongdoings, (3) he does not agree that he had legitimate explanations for his previous absconding records, (4) he does have a close connection in Hong Kong in that he will have a fixed abode to be provided with the assistance from ISS and has friends who have become his second family, (5) he has cooperated with reentry formalities but has denied to effect the issuance of an emergency travel document due to his fear for his own safety if repatriated, and (6) he can provide a guarantor and put up $5,000 bail money.

5.  Analysis

5.1  During the present detention, the Applicant for different periods is or has been detained pursuant to sections 32(3A), 37ZK, 29(1) and 32(3) of the Ordinance. It follows therefore that there has been prima facie lawful authority to detain the Applicant.

5.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 1,071 days, against which the various other factors must be weighed and balanced.

5.3  As regards the Applicant’s concern on his safety if repatriated to his home country, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

5.4  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied.

5.5  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. Since the dismissal of HCAL 1919/2023, there has no longer been any legal impediment to the Applicant's removal pursuant to the Update Removal Policy. I also note that CACV 23/2024 was dismissed on 8 November 2024. The Applicant told me that he has filed a Notice of Motion to bring his challenge to the Court of Final Appeal. But as submitted by Mr Ko, such further challenges (including CACV 23/2024 for that matter) do not create a legal impediment by reason of the Updated Removal Policy.

5.6  The only impediment to the Applicant’s removal since the dismissal of HCAL 1919/2023 has been a practical one, namely the Applicant’s lack of cooperation to comply with the reentry formalities. This is the factor to which I attach the greatest weight, applying the guidance set out at Johnson Benjamin set out above. In my view, the length of the present detention since the Decision has been entirely self-induced and the period of detention caused by his own refusal to cooperate should not be regarded unreasonable.

5.7  I acknowledge that the weight attributable to the risks of (re)offending and absconding may erode as his detention lengthens (Harjang §§164(14) to (20)). But in view of the serious nature of the offences previously committed (Decision §15) and the number of occasions the Applicant had absconded (and their length) (Decision §16), it seems to me that the assessment of the existence of the risks of re-offending and absconding remain real, the latter in particular due to the Applicant’s lack of local connection (Decision §39(10) and his unwillingness to return to his home country), cannot be said to have been unreasonably reached. No particulars have been provided by the Applicant on the alleged fixed abode to be obtained with the assistance of ISS and friends who have become his second family.

5.8  In relation to his medical conditions, the evidence shows that, where necessary, the Applicant has since June 2022 received medical treatment at outside facilities (Queen Mary Hospital). In my view, and as previous cases have decided, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required (Mansuri, Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018). Indeed, I am not persuaded by the Applicant that he would receive better care were bail granted. No particulars have been provided by the Applicant, including any details of accommodation and carers, given his lack of local ties.

5.9  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

6.  Conclusion

6.1  For the above reasons, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

6.2  As a result, I dismiss the Applicant's application for a writ of habeas corpus with no order as to costs.