TRAN DUC CUONG v. HONG KONG SAR GOVERNMENT

HCAL 169/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 169 OF 2015

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D E C I S I O N

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A. The applicant’s complaints

1.  This is the applicant’s application for leave to apply for judicial review challenging the Director of Immigration’s refusal to grant him recognisance.

2.  The relevant background is as follows.

3.  The applicant is a Vietnamese who came to Hong Kong in 1989 seeking asylum.  He was then kept in the refugee camp.  His application for refugee status was refused in 1991.

4.  At the same time, in 1993, he was convicted (together with his cousin) of murdering another Vietnamese at the refugee camp in 1991.  He was sentenced to life imprisonment.

5.  In January 2015, on the recommendation of the Long-term Prison Sentences Review Board (“the Board”), the Chief Executive commuted the applicant’s life sentence to imprisonment for 35 years and 6 months.

6.  In his review by the Board, the applicant indicated that he intended to return to Vietnam upon release from prison.  In the psychologist report prepared for the Board’s consideration, it was also stated that the applicant intended to be reunited with his family in Vietnam if released from prison.  The psychologist was also of the view that the applicant would benefit further from the family care insofar as his psychological status was concerned.

7.  After the Chief Executive’s decision to commute his sentence, on 3 February 2015, he again indicated to the immigration officer at an interview of an intended deportation of him that he wished to return to Vietnam and had no objection to being deported.

8.  On 7 March 2015, he was discharged from prison and transferred to the Castle Peak Bay Immigration Centre (“CPBIC”) pending the arrangements for his deportation. At that time, the Immigration Department (“the ID”) was liaising with the Consulate General of the Socialist Republic of Vietnam to issue a relevant document to facilitate returning him to Vietnam.

9.  On 25 March 2015, the ID informed the applicant that his laissez-passer had been obtained from the Consulate and the deportation proceedings were re-activated. He would be later informed of the date of his removal.

10.  Then, on 26 March 2015, the applicant by way of a letter indicated for the first time that he would oppose the deportation proceeding as he intended to lodge a non-refoulement claim.

11.  Pursuant to that, the applicant was later provided with the relevant forms to formally lodge his non-refoulement claim.  He was also assigned with a lawyer under the Duty Lawyer Scheme to represent him in the claim.  He eventually formally lodged the claim assisted by the lawyer on 27 May 2015.

12.  On 18 June 2015, the Director informed the applicant that his claim was refused.

13.  On 24 June 2015, the applicant through his lawyer lodged the Notice of Appeal/Petition asking the Torture Claims Appeal Board (“TCAB”) to reconsider his refoulement claim.

14.  During the time after his discharge from prison, the applicant has been detained by the Director in CPBIC pending (initially under sections 32(2A)(b) and (c) of the Immigration Ordinance (Cap 115) (“IO”)) his deportation, and later (under section 37ZK of the IO) the determination of his non-refoulement claim.  He has repeatedly asked to be released on recognizance, but his applications have been refused by the Director.

15.  On 19 August 2015, the applicant applied for a writ of habeas corpus to effectively challenge the Director’s decision not to release him on his own recognizance.

16.  At the hearing of this application on 21 August 2105 (where the Director attended through Government Counsel), this court refused the habeas corpus application on the basis that the detention thus far was lawfully made under the relevant provisions of the IO, and that the various periods of detention could not be said to be unreasonably long when viewed at the relevant time, as it was reasonable for the Director to form the view that the applicant’s deportation and later his non-refoulement claim could be disposed of within a reasonable time.

17.  However, during the hearing, it became clear that the applicant’s real complaint was that when he applied for release on his own recognisance, he had allegedly repeatedly provided to the immigration officer the names and addresses of his relative or friends in Hong Kong who were prepared to provide him with a place to stay and to act as surety.  The applicant therefore said it was wrong for the Director to refuse his recognizance application.  Based on this complaint, I then directed that his application be turned into a leave application to judicially review the Director’s refusal to grant him recognizance.  I further directed the parties to file further affirmations in that respect.

18.  The applicant filed his further affirmation in support on 27 August 2015, while the Director filed a further affirmation in response on 2 September 2015.

19.  In the meantime, the TCAB heard the applicant’s non-refoulement claim on 26 August 2015 and handed down its decision to dismiss it on 9 September 2015.  The applicant has later applied for legal aid to bring a judicial review against the dismissal.  Up to today, the Legal Aid Department has yet to make a decision on the legal aid application.

20.  By a letter dated 6 October 2015, the Director through the Department of Justice (“DOJ”) informed the court that he intended to deport the applicant on 14 October 2015, and therefore asked for the hearing of this leave application to be fixed before then.

21.  The leave application was then heard on 9 October 2015.  At the hearing, from the Director’s then evidence, the court noted that it was recorded on papers that the applicant had complained to the Justices of Peace visiting the CPBIC respectively on 5 June and 11 August 2015 about the Director’s refusal to grant him recognizance, as he could stay at his relative’s home and someone would be prepared to act as his surety if he was granted recognizance.  The JPs had expressly recorded that they had asked the case officer to follow up the complaints.  The hearing was further adjourned to 23 October 2015 to enable the Director to file further evidence explaining what had been done by the ID in following up the applicant’s said complaints.

B. The Director’s various decisions to refuse recognizance

22.  As stated above, the Director has repeatedly refused the applicant’s application for recognizance upon his regular reviews.  The applicant was made aware of these decisions having been served with a Notice of Detention or a Notice of Review of Detention setting out the grounds for his detention.  These Notices are respectively dated 9 and 16 March, 10 and 17 April, 22 May, 24 June, 22 July, and 25 August 2015.  On 28 August 2015, the Director again reviewed and maintained the decision.

23.  In all or most of these decisions, the grounds stated for not granting the applicant recognizance are that:

(1) His non-refoulement claim may be decided within a reasonable time in the foreseeable future.

(2) He may abscond or reoffend.

(3) There are no justifying circumstances in favour of his release.

24.  These grounds are said to have been reached on the basis of the following factors:

(1) He had conviction associated with a crime of a serious or violent nature.

(2) His non-refoulement claim might be one which could be decided within a reasonable time in a foreseeable future.

(3) He had not fixed abode or close connection (eg, family or friends) in Hong Kong to make it likely that he would be easily located if released.

25.  As mentioned above, in this application seeking to challenge these decisions and reasons, the applicant has alleged that he had been repeatedly telling the officers at CPBIC that he had relatives who would be willing to provide a place for him to stay and someone was also prepared to act as a surety if he was granted recognizance.  In the further affirmation he filed on 27 August 2015, the applicant has provided (a) the names of his fiancée (who is a Vietnamese but also a Hong Kong permanent resident) and his cousin[1] as the person who could offer a place for him to stay, and (b) the name of a Dr Siu Yim Kwan who is prepared to act as his surety if he is granted recognizance.  The applicant also said he had in fact provided these names and address to the officers repeatedly even before the filing of this affirmation.  They had just ignored the information.

26.  Further, the applicant also said that the psychologist and psychiatrist reports prepared for the purpose of the Board’s review both confirmed that he has a low risk of reoffending.  This was also reflected in the Board’s deliberation in its minutes.  Thus, he says the Director is wrong in saying that he represented a threat to Hong Kong’s society because of his previous conviction, albeit a very serious one.

27.  On the other hand, the Director has filed evidence denying that, before the filing of the applicant’s affirmation dated 27 August 2015, the applicant had ever provided the names of the fiancée and his cousin as someone who could provide a place for him to stay and the name of Dr Siu as a surety.

28.  Be that as it may, most recently on 15 October 2015, the Director in any event again reviewed his decision to refuse recognizance in light of this new information. The Director had also taken into account the suggestion that the applicant has a low risk of reoffending.

29.  However, the Director has maintained his decision.  The reasons stated in the internal memo and elaborated by Mr Chan for the Director at this hearing to support the latest decision are:

(1) The applicant’s removal is considered to be possible within a reasonable time even though he is contending his release from detention by this leave application (“the removal time reason”).

(2) The applicant has no willingness to leave Hong Kong and refused to accept the ID’s deportation arrangement.  Hence, he is likely to go underground if he is released from detention on recognizance (“the likelihood to abscond reason”).

(3) There are no circumstances in favour of his release (“the no other outweighing factors reason”).

30.  The Director has also indicated that he has arranged to remove the applicant to Vietnam on 30 October 2015 subject only to the result of this leave application.

C. This leave application

31.  The court will not grant leave to apply for judicial review unless it is satisfied that the intended judicial review is reasonably arguable with a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs 14 - 17, per Li CJ.

32.  In light of the latest decision made on 15 October 2015, the challenge premised on the allegations that the Director had failed to take into account relevant considerations, such as the information related to (a) the surety and the applicant’s fiancée or cousin who would provide a place for him to stay, and (b) that it was the view of the Board (relying on the reports) that there was a low risk that the applicant will reoffend is no longer relevant.  This is so as, by this latest decision, the Director has taken into account these factors in his consideration.  Thus, subject to any arguments based on Wednesbury unreasonableness (see below), it would be futile to remit the decision to the Director to reconsider by taking into account these factors, as the result would have been the same.

33.  In the premises, the only live and relevant question in the proposed judicial review is whether the Director’s decision is Wednesbury unreasonable in light of all the materials presented before him.  In other words, can it be said that the decision is one that no reasonable person in the position of the Director would have come to.

34.  In my view, it is not reasonably arguable that the Director’s latest decision is Wednesbury unreasonable.  I will explain why.

35.  First, in relation to the removal time reason, given that at the time of the decision (ie, 15 October 2015), the adjourned hearing of this judicial review leave application was only about a week away, it must be reasonable for the Director to be of the view that the leave application would be determined shortly after the hearing. It is therefore also reasonable for the Director to believe at that time that it was possible to remove the applicant within a short period of time if the applicant failed in this leave application.

36.  Second, in relation to the likelihood to abscond reason, the Director was of view that the risk of the applicant going underground is relatively high because the applicant “has no willingness to leave Hong Kong and refused to accept the ID’s deportation arrangement”.  As submitted by Mr Chan, this has to be understood in the context of the present case.

37.  As I mentioned above, the applicant initially repeatedly indicated to the psychologist and the Board that he was intending to return to Vietnam if his sentence was to be commuted and if he was released from prison.  He confirmed that intention with the ID when his sentence was in fact commuted by the Chief Executive. That was why arrangements for his deportation were made.  However, after he was released from prison and transferred to CPBIC pending deportation, he changed his position and claimed for non-refoulement.  In gist, the bases of his fear for returning to Vietnam are that, if he goes back to Vietnam, (a) he would be subject to “double-jeopardy” as he would effectively be prosecuted again by the Vietnamese Government for the murder of the Vietnamese he was convicted of in Hong Kong; and (b) he and his family are subject to the risks of being killed by the family of the Vietnamese he killed in Hong Kong.  The applicant has also said in support of the refoulement claim that he has got used to the life in Hong Kong and it would be very difficult for him to live in Vietnam.[2]

38.  At the same time it must be noted that it is recorded in the psychologist report that, while in prison, the applicant had regular mail correspondence with his family members in Vietnam, and his family members had in fact come to Hong Kong to visit him in prison a number of times.  His mother had also written to the Board asking for his release so that he could go back to Vietnam to reunite with the family.  However, it is now the applicant’s case in the refoulement claim that, after his sentence was commuted, it is his mother who now has asked him not to return to Vietnam because of the fear that he and the family would be subject to the above risks.

39.  Given the nature of the alleged risks and the fact that the applicant had been in regular communications with his family members in Vietnam, it is not unreasonable to suspect that at least some of these alleged bases (if true) said to support the applicant’s non-refoulement claim should have been known to the applicant when he expressly and clearly indicated to the psychologist and the Board respectively in August and October 2014 that he intended to return to Vietnam.  As such, it would not be unreasonable to have doubt on whether the applicant genuinely intended to return to Vietnam even when he expressly stated to be so.  When all these are looked at together, it is in my view reasonable (or at the least it cannot be said to be Wednesbury unreasonable) for the Director to come to the view that there is a higher risk for the applicant to abscond if he is granted recognizance as he has intentionally refused to accept the deportation arrangements which were made given his earlier repeatedly expressed intention to go back to Vietnam.

40.  I therefore also do not find it to be arguable that the likelihood to abscond reason is Wednesbury unreasonable.

41.  I now come to look at the no other outweighing factors reason.

42.  Insofar as the favourable factors are concerned, the most significant ones that the applicant can rely on are that his fiancée and his cousin could offer him a place to stay and that Dr Siu is prepared to act as his surety.  The Director in his latest evidence shows that on 13 and 15 October 2015, an ID officer tried unsuccessfully to contact the fiancée through the mobile phone number provided by the applicant.  Upon inquiry, Dr Siu had said to the ID officer that the fiancée was in Vietnam now and would return to Hong Kong by the end of October.  Dr Siu thus offered to allow the applicant to stay at his place in the interim if he was granted recognizance.[3]

43.  The Director has taken all these factors into consideration but does not think that they outweigh the considerations he has under the removal time reason and the likelihood to abscond reason.

44.  Given in particular the likelihood to abscond reason, which I have already said to be reasonably justified in the above context, I also cannot say that the no other outweighing factors reason is Wednesbury unreasonable.  In my view, it is within a reasonable range of opinions for the Director to form the view that these other factors[4] do not so significantly outweigh the Director’s concern of the risk of absconding.

45.  For all the above reasons, I do not think there are any reasonably arguable grounds to challenge the Director’s latest decision not to grant the applicant recognizance pending determination of the non-refoulement claim and this leave application.  I therefore would refuse to grant leave to apply for judicial review.

D.     The applicant’s new application for leave to apply for judicial review challenging the TCAB’s decision

46.  As stated above, after the rejection by the TCAB of his non-refoulement claim appeal, the applicant has since 21 September 2015 applied for legal aid to bring a judicial review against the TCAB’s decision.  The Legal Aid Department has not decided whether to grant legal aid or not.

47.  After the hearing of this leave application on 9 October 2015, which was then adjourned to 23 October 2015, the applicant decided not to wait for the legal aid result and on 15 October 2015 filed a leave application to apply for judicial review against the TCAB decision by himself under HCAL 202/2015.

48.  Mr Chan for the Director confirmed at this hearing that the Director in his latest review decision not to grant recognizance to the applicant made on 15 October 2015 did not have the chance to take into account the fact that the applicant has filed the HCAL 202/2015 leave application.  However, counsel further on instruction undertook that the Director would by 27 October 2015 review his decision to remove the applicant on 30 October 2015 in light of this new leave application.

49.  Given this undertaking, and given that this leave application is not seeking to challenge the pending removal order but only the decision not to grant the applicant recognizance pending the result of his non-refoulement claim, I therefore do not think it is necessary or relevant for me to take into account the HCAL 202/2015 leave application for the present purposes.

50.  When the Director by 27 October 2015 reviews his decision on the plan to remove the applicant on 30 October 2015, it would then be up to the applicant to decide what further legal actions, if any, he may wish to take in light of the Director’s new decision vis-à-vis the existence of the HCAL 202/2015 leave application.

E. Conclusion

51.  I would dismiss this leave application.

52.  The Director has fairly indicated that he would not seek any costs against the applicant if his application fails.  I would further make no order as to costs to this application.