HARJANG SINGH v. HONG KONG SAR GOVERNMENT

HCAL 2025/2018

[2018] HKCFI 2234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2025 OF 2018

________________________

________________________

___________________

D E C I S I O N

___________________

INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under Section 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”) since 17 August 2018.

BACKGROUND FACTS

2.  The application, made on 24 September 2018, was supported by a short affirmation of the Applicant which did not, however, disclose any, or any substantial, grounds for the relief sought.  On 26 September 2018, the court directed that the application be heard on 28 September 2018, with notice of the hearing being given to the Department of Justice.  On 27 September 2018, the court received the Respondent’s Skeleton Submissions and Chronology of Events which set out some background facts relating to the Applicant’s case.

3.  At the hearing on 28 September 2018, the court heard oral submissions from the Applicant himself, as well as oral submissions from Mr Louie Chan (Government Counsel) on behalf of the Respondent. Mr Chan’s Skeleton Submissions and Chronology of Events, as well as his oral submissions, were interpreted to the Applicant with the assistance of a Punjabi interpreter.

4.  Although the basic facts of the Applicant’s case as related by Mr Chan have not been confirmed by affidavit (understandably in view of the urgency with which the hearing was fixed), as I understand from what the Applicant said at the hearing on 28 September 2018, the following summary is not in dispute.

5.  The Applicant first entered Hong Kong with his mother as visitors in March 1991, and both were subsequently allowed to remain in Hong Kong as dependants of the Applicant’s sister, a Hong Kong resident, in August 1991.  The Applicant was last permitted to remain in Hong Kong with a limit of stay until 28 April 1999.

6.  Prior to the issuance of the deportation order against the Applicant more particularly described below, the Applicant was convicted of the following offences:-

(1)   on 3 June 1994, for making a false instrument with intent, contrary to Section 71 of the Crimes Ordinance; and attempted theft, contrary to Section 9 of the Theft Ordinance and Section 159G of the Crimes Ordinance – he was sentenced to a total of 4 months’ imprisonment suspended for 18 months;

(2)   on 7 October 1996, for wounding or inflicting grievous bodily harm, contrary to Section 19 of the Offences Against the Person Ordinance – he was sentenced to a detention centre order pursuant to the Detention Centres Ordinance;

(3)   on 3 November 1999, for wounding with intent to do grievous bodily harm, contrary to Section 17 of the Offences Against the Person Ordinance; and

(4)   on 8 May 2000, for doing an act tending and intended to pervert the course of public justice, an indictable offence contrary to common law, and for wounding with intent to do grievous bodily harm, contrary to Section 17 of the Offences Against the Person Ordinance.

For (3) and (4) above, the Applicant was sentenced to a total of 5 years’ imprisonment.

7.  As a result of the criminal convictions mentioned in paragraph 6(3) and (4) above, the Permanent Secretary for Security issued a deportation order for life dated 22 July 2003 (“the Deportation Order”) against the Applicant pursuant to Section 20(1)(a) of the Ordinance, requiring the Applicant to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter on the grounds that, amongst other things:-

(1)   the Applicant was not a Hong Kong permanent resident; and

(2)   the Applicant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years.

8.  On 10 May 2004, the Applicant lodged a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.  On 12 November 2004, the Applicant was released on recognizance.

9.  Subsequently, the Applicant was convicted of further criminal offences in Hong Kong, namely:-

(1)   on 15 April 2011, for possession of offensive weapon, contrary to Section 17 of the Summary Offences Ordinance - he was sentenced to 4 months’ imprisonment suspended for 2 years; and

(2)   on 16 August 2017, for blackmail, contrary to Section 23(1) of the Theft Ordinance - he was sentenced to 3 years’ imprisonment.

10.  In the meantime, the Applicant’s torture claim was rejected by the Torture Claim Assessment Section of the Immigration Department on 31 December 2012, and his appeal against the rejection of his torture claim was dismissed after a paper review on 26 March 2013.

11.  On 18 March 2014, the Applicant lodged a fresh claim for non-refoulement protection.

12.  Upon discharge from prison on 17 August 2018 after the Applicant had served his prison sentence for the conviction for the offence of blackmail, the Applicant was detained under Section 32(3) of the Ordinance pending his removal from Hong Kong.  The detention was authorised by the Principal Assistant Secretary for Security.

13.  The Director treated the Applicant’s claim for non-refoulement protection as a claim under all applicable grounds (with the exception of the risk of torture which had previously been assessed and rejected), and processed the claim under the USM.  A screening interview of the Applicant on 19 September 2018 was arranged.  However, the screening interview did not in fact take place because the Applicant insisted that the interview should be conducted with the assistance of a Punjabi interpreter from India, instead of someone from Pakistan as arranged.  No further screening interview of the Applicant was conducted.  The Director assessed the claim based on the available information before him, and eventually rejected it by a Notice of Decision dated 26 September 2018 which was served on the Duty Lawyer Service.

14.  On 27 September 2018, following a review of the Applicant’s detention, the Principal Assistant Secretary for Security decided that it should be maintained on the grounds that (i) the Applicant’s removal was going to be possible within a reasonable time, (ii) he might constitute a threat or security risk to the community, (iii) he might abscond and/or re-offend, and (iv) there were no other circumstances in favour of his release.

DISCUSSION

15.  The legal principles governing an application for the issue of a writ of habeas corpus are well settled.  The central question is whether the detention is unlawful (see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was).

16.  An unlawful detention is one that is made without proper lawful authority.  An initially lawful detention can be turned into an unlawful detention if it fails to meet the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at paragraph 46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at paragraph 23), as follows:-

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

17.  In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at paragraph 17, is applicable:-

“The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than ‘until’ deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

18.  The applicant is currently detained under Section 32(3) of the Ordinance, which provides as follows:-

“A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

19.  The Applicant’s current detention is, prima facie, lawful because:-

(1)   a deportation order under Section 20(1)(a) of the Ordinance in respect of the Applicant is in force; and

(2)   the applicant is being detained pending his removal from Hong Kong under Section 25 of the Ordinance.

20.  On the question of whether the Applicant has been detained for a period that is reasonable in all the circumstances, there is nothing in the evidence before the court to show that the Director is using the power of detention for any purposes other than for removal of the Applicant, or it has become apparent to the Director at any time that it would not be possible to effect the Applicant’s removal within a reasonable time. The Applicant has been detained since 17 August 2018, for a period of less than 1.5 months up to the present moment.  The Applicant’s non-refoulement claim has been rejected by the Director.  He has not yet lodged any appeal or petition against the Director’s rejection of his non-refoulement claim to the Torture Claim Appeal Board/Non-Refoulement Claims Petitions Office.  Should he decide to do so, Mr Chan has informed the court that the Torture Claim Appeal Board/Non-Refoulement Claims Petitions Office will be requested to accord priority to the Applicant’s appeal or petition.  There is no reason to believe that such appeal or petition will not be heard and disposed of expeditiously. In any event, since the Applicant has not yet lodged any appeal or petition, the court should assess the reasonableness of the Applicant’s detention on the basis of the existing facts, and not on what may happen in future.

21.  There is nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  It is reasonable of the Director to take the view that the Applicant can be removed within a reasonable period of time.  I consider that the Applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

22.  I shall now deal with a few points raised by the Applicant in support of his application.

23.  First, the Applicant refers to his personal circumstances and family background, including the fact that his family members are Hong Kong permanent residents.  While these matters are relevant to the assessment of whether the Applicant ought to be detained pending his removal (which is primarily a matter for the Secretary for Security, and not for the court, to decide), they do not, as pointed out by Mr Chan, go to the question of legality of his current detention.

24.  Second, the Applicant says that he stayed out of trouble between 2004 and 2016 and that, in respect of his conviction in 2017 for the offence of blackmail, he is appealing against that conviction and has obtained legal aid to do so.  The same comment in paragraph 23 above applies to these matters.  I would add that the fact that the Applicant has a pending appeal against his conviction for the offence of blackmail, the sentence for which he has already served, does not require the Applicant to be released from detention, or indeed to be present in Hong Kong.

25.  Third, the Applicants says that he has not yet received the Notice of Decision rejecting his claim for non-refoulement protection, and that he is entitled to challenge the decision by appeal or petition, and ultimately by judicial review.  I shall not repeat the comment in paragraph 20 above.  It needs to be emphasised that the focus of the present application is the legality of the Applicant’s current detention.  If and when the Applicant lodges an appeal or petition against the rejection of his claim for non-refoulement protection, it will be up to the Secretary for Security to review the Applicant’s detention in light of the prevailing circumstances. 

26.  Lastly, the Applicant says that he does not present any threat or security risk to the community, and will not abscond or re-offend. In response, Mr Chan points out the very serious nature of the Applicant’s criminal convictions, including for the offence of wounding with intent to cause grievous bodily harm which carries a maximum sentence of imprisonment for life.  Again, this is a matter which is primarily for the Secretary for Security, and not for the court, to assess.  The Secretary for Security’s assessment cannot be said to be unreasonable in the public law sense.

27.  In all, none of the grounds relied upon by the Applicant can justify the issue of a writ of habeas corpus in the present case. 

DISPOSITION

28.  The application for the issue of a writ of habeas corpus is dismissed, with costs to the Respondent to be taxed if not agreed.