AKRAM MUHAMMAD v. HONG KONG SAR GOVERNMENT

HCAL 111/2023

[2023] HKCFI 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 111 OF 2023

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BETWEEN

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REASONS  FOR  DECISION

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Introduction

1.  The Applicant, appearing in person, seeks a writ of habeas corpus ad subjiciendum under Order 54 rule 1 of the Rules of the High Court. He seeks his immediate release from unlawful detention by the Director of Immigration (“the Director”) pursuant to a Removal Order under s19(1)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”), dated 23 September 2015. He has been detained by the Director since 19 December 2020. That date being the date upon which he was released from a sentence of imprisonment.

2.  This is the second such application by the applicant this year. On 17 January 2023, the applicant appeared before Coleman J under HCAL 1329/2022 for (a) leave to apply for judicial review of the decision of the Director to detain the applicant at Tai Tam Gap Correctional Institution (“TGCI”) and (b) seeking a writ of habeas corpus.

3.  As both applicants were premised upon the same facts, Coleman J directed that both matters be heard together. The applicant was represented at that hearing by Mr Jeffrey Tam and Mr Albert Wan of Counsel. Having heard the parties, both applications were dismissed with reasons to be handed down.

4.  On 27 January 2023, the applicant filed this renewed application for a writ of habeas corpus. Accordingly, only the one application is before this Court but it will necessarily take into consideration the Decision of Coleman J in order to establish whether there is any evidence to show there has been any material change of circumstances since the hearing on 17 January 2023, which could establish a basis for re-consideration of the application afresh[1].

Background Facts

5.  The applicant is a national of Pakistan, aged 35. He entered Hong Kong illegally on an unknown date in December 2008 and was arrested by the Police on 10 February 2009. On 13 February 2009, the applicant raised a non-refoulement claim and was later released upon his own recognizance.

6.  On 10 September 2012, he was convicted of robbery and sentenced to 5 years and 3 months’ imprisonment under DCCC 423/2012.

7.  Upon release, the applicant submitted a supplementary non-refoulement claim form on 10 December 2014, however he subsequently failed to attend any screening interviews with the Immigration Department. On 24 July 2015, the Director rejected the applicant’s claim and thereafter a Removal Order was issued against him on 23 September 2015 under s19(1)(b) of the Ordinance. That removal order was held in abeyance pending the appeal proceedings in respect of the applicant’s non-refoulement claim, which included any appeal from the Director’s earlier Decision and his decision dated 7 December 2016, in respect of HKBOR 2. The applicant’s appeal against those decisions was dismissed by the TCAB on 26 October 2018.

8.  In the interim, on 9 October 2017, the applicant was sentenced to 11 years’ imprisonment for another robbery under HCCC 115/2017. That conviction was quashed upon appeal on 12 December 2019 and a re-trial was ordered[2]. The applicant subsequently pleaded guilty to handling stolen goods under HCCC 412/2019 and on 18 December 2020 was sentenced to 3 years 45 days’ imprisonment. As the applicant had served his sentence on remand by the time that he entered his plea of guilty to handling stolen goods, he was released from custody on 19 December 2020.

9.  Prior to his release, on 18 December 2020, the applicant sought judicial review of the decision of the TCAB of 26 October 2018. Given his previous offending and risk to the community, the applicant transferred to the custody of the Immigration Department on 19 December 2020 and has been detained by the Director since that date.

10.  On 19 January 2022, DHCJ Bruno Chan refused to grant an extension of time for leave to apply for judicial review[3]. Thereafter, the applicant sought to appeal that refusal to the Court of Appeal, which was also dismissed[4], as was his subsequent appeal to Court of Final Appeal[5]. As of 30 May 2022, the applicant had exhausted all avenues of appeal.

11.  On 13 September 2022, a Deportation Order was issued under s20(1)(a) of the Ordinance. Both the Removal Order and the Deportation Order remain extant.

Current Detention

12.  The present period of detention commenced on 19 December 2020. Throughout the detention period, the applicant’s detention has been subject to review[6]. There has been no legal impediment to his removal since 30 May 2022. As of that date, the Director sought to obtain appropriate documentation from the Consulate of Pakistan to allow the applicant to be returned to Pakistan. That included verification of the applicant’s identity as a citizen of Pakistan. The Consulate finally issued an emergency travel document (“ETD”) on 2 December 2022, which was valid for 30 days. However, the applicant was not deported within that period as he issued proceedings under HCAL 1329/2022. By the date of hearing of that application on 17 January 2023, the ETD had been extended to 5 February 2023 and a repatriation flight booked for 1 February 2023.

13.  By reason of these proceedings the applicant seeks to avoid deportation on 1 February 2023.

Applicable Principles and Analysis

14.  The relevant applicable principles have been canvassed by Coleman J[7] and do not need repeating herein. This Court’s concern is twofold. Was there anything which should have been raised before Coleman J and which, for good reason, was not placed before him such that the applicant should now be heard upon it rather than seek to appeal the Decision and/or whether the applicant can point to anything which has occurred since 17 January 2023, which would enable this Court to revisit the applicant’s position?

15.  As to the former, the applicant submitted a letter to the Court dated 31 January 2023. In it he complains that the respondent had misled the Court at the hearing on 17 January 2023, when it suggested that delay in obtaining the necessary documentation to give effect to the Deportation Order had been incurred as a result of the non-cooperation of the applicant. He maintained that he had not understood this allegation at the time of the hearing and had only become aware of its substance after the hearing when he discussed events with his instructing solicitor. The applicant now submits that at no time had the Director approached the applicant to obtain his assistance to verify his identity in order to obtain a passport.

16.  Mr Lok, who appears on behalf of the respondent today and did so before Coleman J, denies the allegation and points to the evidence contained within the original bundle wherein the relevant parties affirmed that the applicant had been uncooperative and the manner in which that had been occasioned. Mr Lok submits that the evidence was clear upon the papers as served upon the applicant and that no issue was taken at the previous hearing as to it despite the applicant being represented by two counsel. Mr Lok further submits that it is not open to the applicant to take the point now. He has provided no reason for why it was not taken at the appropriate time and, so Mr Lok says, amounts to an abuse of the process.

17.  Two principles apply to a consideration of this argument. The first is s23(1) of the High Court Ordinance, Cap 4, which precludes the making of subsequent applications for habeas corpus on the same terms as have been previously refused, unless fresh evidence is adduced in support. The second can be found at 1422H-1423B of R v Governor of Pentonville Prison, ex parte Tarling [1979] 1 WLR 1417 which states:

“…it is clear to the court that an applicant for habeas corpus is required to put forward on his initial application the whole of the case which is then fairly available to him. He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the court.

The true doctrine of estopple known as res judicata does not apply to the decision of this court on an application for habeas corpus…There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings: see the judgement of the Privy Council, Lord Morris, Lord Cross and Lord Kilbrandon, in Yat Tung Investment Co.Ltd v Dao Heng Bank Ltd [1975] A.C. 581. In our judgment, that principle is applicable to proceedings for habeas corpus, whether under Act of 1967 or under general jurisdiction of the court, although no doubt, the stringency of the application of the principle may be different in cases concerning the liberty of the subject from that in cases concerning such matters as disputes on property.”[8]

18.  In Xie Jing Feng v HKSAR Government [2021] HKCA 467, the Court of Appeal stated that “…while it is right that the courts be vigilant in relation to the rights of the individual, especially when the liberty of the subject is at stake, it is equally necessary for the court to be astute in protecting from abuse its own processes…”. I agree with Mr Lok. The applicant was previously represented by two counsel. He had the hearing bundle in his possession and the benefit of an instructing solicitor. The issue of delay was paramount to his case, in particular the delay between 30 May 2020 and December 2022. The affirmations in respect of dealings with the Consulate of Pakistan went directly to this issue. The allegation of non-cooperation was an important one, which no competent counsel would have overlooked. If that allegation was not specifically denied, then it must be assumed it was acceded to. There can be no question that the applicant was unaware of it nor that he was not required to give his instructions upon it. It is not open to him to seek to advance this point at this stage when he should have done so earlier. To do so would be ab abuse of process.

19.  In addition, and presumably in the alternative, the applicant now submits that his position stands on all fours with other decisions of Coleman J[9], where other applicants for a writ of habeas corpus have been released in the face of allegations of non-compliance. This issue was not taken before Coleman J. It is a wholly novel submission and one, which if it had legs, should have been dealt with on 17 January. I can see no reason why it should be considered now given that the learned judge did not rely upon this point when making his determination.

20.  Looking at the whole of the circumstances affecting the detention of the applicant and the manner in which he has been dealt with over a period of time, it would appear that he has been given every opportunity to avail himself of the protection of the government of Hong Kong and the rule of law. The Director has progressed matters expeditiously. The original EDT has been extended in order to allow for the hearing of the proceedings under HCAL 1329/2022, which took place on 17 January 2023. In that hearing both applications were dismissed. In the interim, and in anticipation of the outcome of those proceedings, the Director applied for and obtained an extension to the EDT and arranged for repatriation on 1 February 2023. The period of further detention between 17 January and 1 February 2023 was therefore wholly reasonable. The applicant does not suggest otherwise. Other than a minor complaint about not attending a medical appointment, the applicant takes no issue with this save that he denies he is merely seeking to delay the inevitable.

Conclusion

21.  In applying the principles in Harjang Singh v Secretary for Security [2022] HKCA 781 where applicable and having considered s23(1) of the High Court Ordinance, Cap 4, I find the following:

(1) There is no reasonably arguable case for revisiting the decision of Coleman J;

(2) The decision of the applicant on 17 January 2023 and thereafter has been lawful;

(3) The continued detention of the applicant from 17 January to 1 February 2023 in order to give effect to the Deportation Order is not unreasonable in all the circumstances;

(4) The Director has shown that he intends to deport the applicant on 1 February 2023 and any delay in carrying out his original intent to deport came about as a result of the applicant’s actions in seeking judicial intervention, which were unsuccessful;

(5) Given the lengths to which the applicant has gone to remain in Hong Kong since 2009 and his prior criminal record, the risk of absconding if released is high compared with the length of detention which is minimal.

(6) The interests of justice require the continued detention of the applicant until such time as he can be repatriated to Pakistan.

Accordingly, the applicant’s summons is dismissed.

Costs

22.  Mr Lok applies for the costs of this application under the principles enunciated in Tong Ying Kit v HKSAR (No 2) [2020] 5 HKLRD in respect of applications for habeas corpus. In considering this application I have taken into account that there is no general or prima facie rule that a costs order should be made against an applicant in habeas corpus and that an application which seeks to test the legality of detention should be approached more liberally than may otherwise be the case when costs fall to be considered. The Court has a discretion as to whether to order costs against an unsuccessful applicant which will be fact and circumstance specific.

23.  In response, the applicant maintains he is impecunious. Indeed, if the Deportation Order is carried out, it is highly unlikely that any costs will be recovered but that is a matter of administration rather than one of principle. In this case, the applicant has been in Hong Kong since 2008 when he entered illegally. It was only upon arrest in February 2009 that he submitted a non-refoulement claim. That claim was not progressed with any fervour. Admittedly, its course was interrupted by two periods of imprisonment for robbery but nevertheless the applicant has taken advantage of the system in that he applied for leave for judicial review out of time and appealed that refusal to both the Court of Appeal and Court of Final Appeal without grounds. Today, he complained that this Court should at least have adjourned this hearing for a month to allow the parties to prepare and that listing the matter on an urgent basis was unfair to him. Given what has been canvased above, there was no proper basis for this renewed application and it was clearly a delaying tactic.

24.  Taking everything into account, the applicant should bear the respondent’s costs of resisting this application which have been summarily assessed at $51,213. This application was wholly without merit and made in a last ditch effort to delay his repatriation to Pakistan. It may be that he is without financial resources but it is important to make it clear that unmeritorious applications of this type will likely be met with orders as to costs. The impecunious may not abuse legal process with impunity without risks of costs.