HARPAL SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1687/2024

[2024] HKCFI 3266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1687 OF 2024

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BETWEEN

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JUDGMENT

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A. Application

1.  By an ex parte application filed on 26 September 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 9 August 2023 under HCAL 1238/2023 (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 9 August 2023 for the 1^st HC Application.

3.  At the time the 1^st HC Application was dismissed, the Applicant had been detained for 223 days. From 10 August 2023 to the date of the hearing of the 2^nd HC Application, the Applicant had been detained for a further 461 days. At the time of the present hearing, the Applicant has been detained for a total of 684 days.

C. Steps towards Removal

4.  After the dismissal of the 1^st HC Application, the Director of Immigration (the “Director”) conducted 10 interviews with the Applicant on 6 September 2023, 18 October 2023, 6 December 2023, 8 March 2024, 10 April 2024, 5 June 2024, 3 July 2024, 2 August 2024, 20 September 2024 and 24 October 2024 respectively.

5.  During all these interviews, the Applicant consistently expressed strong unwillingness to return to India and refused to cooperate with any re-entry formalities, including completing the re-entry application form, taking photos and attending an interview with the Indian Consulate. The Applicant was repeatedly reminded that his uncooperativeness would impede his removal and prolong the detention. While he showed understanding, he reiterated that he would not cooperate with any immigration removal arrangement.

6.  In view of the Applicant’s refusal to co-operate, the Director continued to seek assistance from the Indian Consulate for alternative means for the issuance of a travel document. The Director was informed that a completed re-entry application form, a recent photo, and an in-person interview at the Indian Consulate are necessary for the issuance of the replacement travel document.

7.  Despite eventually arranging for an in-person interview with the Indian Consulate on 24 October 2024, the Applicant refused to attend.

D. Applicable Principles

8.  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.

9.  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.

E. The Applicant’s Submissions

10.  The Applicant has set out his grounds for application in his affirmation filed on 26 September 2024. As is typical with many similar habeas corpus applications, the content is non-specific and seems to be from a template. In summary, they are as follows:

(1) The Applicant has applied to appeal against the refusal of leave to commence judicial review proceedings.

(2) His removal cannot be effected within a reasonable time.

(3) His past criminal convictions cannot be considered as relevant.

(4) His medical condition concerning his disability has worsened since he was detained.

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

(1) His life is in danger and he cannot go back to India.

(2) He will make a new claim and he has to obtain documents which would only be possible if he is released on recognizance.

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

F. Lawful Authority for Detention?

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

14.  After the 1^st HC Application was dismissed on 9 August 2023, the Applicant continued to be detained under section 32(3) of the Ordinance from 10 August 2023 pending his removal under the Deportation Order issued on 8 May 2023.

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

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

G. Whether Detention has become unlawful

17.  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 for Security (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”).

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

HS1

19.  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

20.  The starting point is the length of the current detention – about 461 days – against which all the other factors must be weighed and balanced.

21.  For the following reasons, I am of the view that HS2 and HS3 are satisfied:

(1) 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.”

(2) The whole period of detention since the 1^st HC Application was caused by the Applicant’s deliberate refusal to co-operate and will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful.

Risk of abscondence

(3) It is not disputed that the Applicant had absconded twice in the past, for extended periods of time of 10 months and 6 months respectively. His resurfaces were only due to arrest by the police. In view of his unwillingness to return to India, I consider that the risk of abscondence is high.

(4) 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 25 previous criminal convictions, the risk of re-offending is substantial. In these circumstances, any assurance from the Applicant that he would not commit further crimes again would ring hollow.

Medical Condition

(6) There is no evidence that the Applicant cannot receive proper medical care whilst in detention.

New Claim

(7) Despite the Applicant’s assertion, there is no “new claim” commenced and no particulars were provided by the Applicant.

(8) Overall, weighing the period of detention – around 461 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

22.  Based on paragraphs 4 – 6 above, HS4 is satisfied as the Director had continued in his efforts with the removal of the Applicant throughout from 9 August 2023 to date.

H. Result

23.  Based on the above, and the fact that Coleman J had held that the previous detention was lawful, 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.

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

25.  I make no order as to costs.