Bolanos Brudencio Jao v. Secretary for Security and Another

HCAL 837/2022

[2022] HKCFI 2895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 837 OF 2022

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Before:  Hon Coleman J in Court

Date of Hearing:  19 September 2022

Date of Decision:  19 September 2022

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D E C I S I O N

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A. Introduction

1.By his application dated 26 August 2022, the Applicant applies for a writ of habeas corpus. The application does not itself set out the grounds of the application, but the Applicant’s supporting affidavit asserts that:

The present detention is unlawful “unlawful detention”:

1)  I am 72 year old.

2)  I have been detained since December 7, 2020 till now. It is more than 19 months. I am now detained under s32(3A) =, i.e. pending for removal.

3)  I should not leave Hong Kong until all the “claims” are “completed”.

2.I gave directions on 30 August 2022, to bring this matter to a hearing today. That hearing has, amongst other things, been conducted with the benefit of the initial response to the application filed by the Respondents (“Secretary” and “Director” respectively). The initial response invited me to refuse the application.

3.The Applicant has appeared in person. The Secretary and Director have been represented by Ms Hikki Wong, Senior Government Counsel (who also signed the initial response).

B.  Background

4.The Applicant is a Filipino national, born on 27 August 1949.

5.He arrived in Hong Kong on 2 April 2018, and was permitted to remain as a visitor for 14 days until 16 April 2018.

6.However, on 9 April 2018, he was arrested by the police for a suspected offence of using a false instrument. The relevant false instrument was as regards the sum of US$943 billion, which it was claimed was a sum transferred to the Applicant by former President of the Philippines, Ferdinand Marcos. The Applicant was later convicted of that offence after pleading not guilty at trial, and on 30 December 2019 he was sentenced to 4 years’ imprisonment. In passing sentence, the Judge noted that the case involved a joint enterprise, involving some degree of planning, in which the Applicant had flown all the way to Hong Kong to commit the offence, and where the large amount involved and the international element were aggravating factors.

7.I note that by its Reasons for Judgment dated 23 August 2021, the Court of Appeal dismissed the Applicant’s appeal against conviction and sentence. By that time, the Applicant had in fact served his sentence, but he insisted on continuing with his appeal. The Court held that the conviction was neither unsafe nor unsatisfactory. The sentence was described as “robust” but was not considered to be manifestly excessive.

8.On 3 December 2020, a Deportation Order was made by the Permanent Secretary for Security against the Applicant, under section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”).

9.On 7 December 2020, the Applicant was discharged from prison and referred to the Immigration Department (“ImmD”). He was detained under section 32(3) of the Ordinance pending deportation from Hong Kong.

10.On 17 January 2021, whilst in detention, the Applicant lodged a non-refoulement claim (“NRC”). As a result, he was detained under section 37ZK of the Ordinance, from 28 January to 29 March 2021, pending the final determination of his NRC on the ground of torture risk, under Part VIIC of the Ordinance.

11.The Director rejected the Applicant’s NRC by a Notice of Decision dated 15 March 2021.

12.Since 29 March 2021, the Applicant has been detained under section 32(3) of the Ordinance pending his deportation from Hong Kong. From that date, the total period of detention until today’s hearing is 540 days. Added to the prior period of detention, the total period is 652 days.

13.On 4 June 2021, the Applicant filed a Notice of Appeal/Petition out of time to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) against the Director’s rejection of his NRC. On 10 June 2021, ImmD informed the Board that the Applicant was detained and requested the Board to expedite the processing of his application. Further reminders were given to the Board on 15, 23 and 30 July 2021.

14.On 19 August 2021, the Board refused the late filed application.

15.Between August and December 2021, the Director consulted operating airlines to explore the feasibility of forced repatriation because of the Applicant’s expressed unwillingness to return to the Philippines. However, that was not possible given security concerns and the infection control during the Covid-19 pandemic.

16.On 11 December 2021, the Applicant’s travel document expired. Since that month, various contact has been made by ImmD with the local Consulate General of the Republic of the Philippines to seek the issuance of a replacement travel document to the Applicant.

17.On 6 May 2022, in HCAL 310/2022, the Applicant filed an application for leave to apply for judicial review, again out of time, against the Board’s refusal decision (“JR Leave Application”). On 17 August 2022, the JR Leave Application was refused on the basis that the proposed JR had no realistic prospect of success.

18.On 23 August 2022, the Philippines Consulate issued an emergency travel document to the Applicant (valid until 23 November 2022). Though the Applicant’s signature on that document was required, he has refused to sign it, it seems in part awaiting the result of this habeas corpus application. Nevertheless, on 1 September 2022, the Philippines Consulate confirmed in writing that the emergency travel document was still valid even without the Applicant’s signature.

19.The Director has arranged a forced repatriation flight for 20 September 2022.

C.  Reviews of Detention

20.Since 29 March 2021, when the detention under section 32(3) pending deportation began, the Applicant’s detention has been subject to periodic reviews.

21.From the documentation, including relevant internal minutes, it can be seen that the Permanent Assistant Secretary for Security considered that the Applicant should continue to be detained pending his deportation, and that the Director did not recommend the release of the Applicant on recognizance, consistently on the following grounds that: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant poses, or is likely to pose, a threat or security risk to the community; (3) the Applicant may abscond and/or (re)offend; (4) the Applicant does not have close connection or fixed abode in Hong Kong; and (5) there are no other circumstances in favour of the Applicant’s release.

22.The last review conducted by the Permanent Assistant Secretary for Security was dated 7 September 2022. Amongst other things, the review noted that: (1) the Applicant has a valid emergency travel document, and that the only outstanding legal proceedings is the present application for habeas corpus; (2) a removal flight has been arranged for 20 September 2022; (3) the gravity of the original offence was reflected by the heavy sentence passed; (4) there is no close connection or fixed abode in Hong Kong, such that there is a risk of absconding if release is allowed on recognizance; and (5) the Applicant’s claimed medical condition does not outweigh the other factors in support of his continued detention.

23.The last consideration by the Director that release of the Applicant on recognizance was not warranted was dated 9 September 2022. Amongst other things, the review noted that: (1) the Applicant had been detained for over one year and nine months since 7 December 2020; (2) the Director had proceeded with expedition in determining the NRC and exercised due diligence and expedition to effect removal; (3) there was no outstanding legal impediment to removal; (4) there is a reasonable prospect of effecting deportation on the flight arranged, namely within a reasonable time; (5) the gravity of the Applicant’s offence reflected the potential gravity of risk of commission of further offence(s) if he were to be released on recognizance; (6) the Applicant has no local ties or family connection, raising the risk of absconding; and (7) there is no reason to believe that the Applicant would not receive proper medical treatment in detention if it were to be required.

24.The internal recommendation not to release on recognizance has been considered at various ascending levels of seniority within ImmD. Each officer has expressly balanced the period of detention to date against the other relevant factors, before agreeing with the recommendation.

D.  Applicable Legal Principles

25.In its recent Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

26.The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) 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; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

27.Though I refer to the summary, I do not lose sight of the underlying details and rationale.

E.  Submissions

28.In her initial response and submissions, Ms Wong addresses the central question as to whether there is, and continues to be, lawful authority for a detention, where the burden is on the Secretary and/or the Director to show that the detention is and remains lawful. Her submission is that the continued lawfulness of detention is demonstrated by the facts that:

(1)  there is no dispute as to the validity of the Deportation Order;

(2)  nor is there any dispute as to the prima facie lawful authority to detain the Applicant under section 32(3) of the Ordnance;

(3)  the Director (a) has taken active and timely steps to liaise with the Philippines Consulate, (b) has actively and repeatedly requested the Board to expedite its decision, (c) has responded promptly to the Court’s request for relevant documents to facilitate the Court’s determination of the Applicant’s JR Leave Application, and (d) has made enquiries on the feasibility of and arrangements for forced repatriation;

(4)  the Director plainly intends to remove the Applicant as soon as possible and has detained him for that purpose;

(5)  there are no outstanding legal proceedings (other than this habeas corpus application);

(6)  the Applicant would have been removed earlier, except for the problems arising from the Covid-19 situation, and the Applicant’s own uncooperative attitude;

(7)  the Applicant committed a serious offence with an accomplice just 7 days after he came to Hong Kong and had been permitted to remain as a visitor, and the circumstances of the offence and consequent sentence identify that the Applicant poses or is likely to pose a threat or security risk to the community;

(8)  there is an absence of any close connection or fixed abode in Hong Kong, and the risk of absconding if released on recognizance is such that the proposed removal on 20 September 2022 might be frustrated, and the purpose of the Deportation Order defeated.

29.In his oral submissions at the hearing, backed by a handwritten letter which he handed up to the Court, the Applicant emphasized that:

(1)  he is an old man of 73 years;

(2)  he has already served his sentence, which ended as long ago as 7 December 2020, and he did not commit any crime;

(3)  nevertheless, he has been held for 640 days, which is unreasonable and unlawful;

(4)  he suffers from a “heart enlargement” ailment, and has done since 2010;

(5)  his “last request” is to allow him to have “bail”, and for him to be transferred to an NGO headed by Father Francisco Malle, who is willing to help him and to take care of him.

30.Father Malle was in Court today, and confirmed that another priest would be able to provide some care for the Applicant if he were to be released on recognizance, instead of being detained in conditions where the Applicant is suffering. He also suggested that it would be better for the Applicant to be, as he put it, out in society.

31.Also handed up to the Court by the Applicant was a further handwritten document, addressed to each of the Li Ka Shing Foundation, the Chief Executive of Hong Kong, and President Xi Jin Ping, stating that:

(1)  he can prove – by various documents listed – that former President Ferdinand Marcos of the Philippines transferred to him US$943 billion, and that

(2)  he is willing to transfer

(a)  US$100 billion to the Foundation, for “humanitarian projects”,

(b)  US$100 billion to the CE for “Hong Kong humanitarian projects”, and

(c)  US$100 billion President Xi for “Belt and Road initiatives”.

32.But in his oral reply, he suggested that his London bank account where the US$943 billion funds were held had been hacked by an Indian person, using a powerful supercomputer, to transfer those funds to India, and that the hacker or mastermind had paid someone to kill the Applicant. As I left court at the end of the hearing, the Applicant handed up a further piece of paper on which he had written those matters.

F.  Assessment of Merits

33.In its assessment of the continued lawfulness of detention, the Court acts as the primary decision maker as to the reasonableness of that continued detention. That involves an exercise of judgment and the balance of different factors, but the Court is entitled to place some reliance and weight on a properly careful and robust up-to-date consideration by the Secretary/Director – of the kind which is evident from the papers in this case (see above).

34.I acknowledge the force in Ms Wong’s various submissions, which I broadly accept. In any event, the answer to the current application seems to me to be plain. Of course, I acknowledge the lengthy period of detention to date, and I take into account the Applicant’s age and his stated health condition. But, to be weighed and balanced against that are the following factors:

(1)  the detention pending removal from Hong Kong, in accordance with the Deportation Order, is prima facie lawful;

(2)  the Secretary/Director obviously do intend to deport the Applicant and are only using the power to detain for that purpose, so that HS1 is satisfied;

(3)  the Secretary/Director have acted with reasonable diligence and expedition to effect removal, in making and pursuing and facilitating expedited decisions, and in arranging emergency travel documents and an appropriate flight, so that HS4 is satisfied;

(4)  indeed, the Applicant might already have been removed had he not been uncooperative, and had the pandemic situation not caused logistic problems;

(5)  it cannot be said that, before the expiry of the reasonable period, it has become apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, so that they should not seek to exercise the power of detention, and to the contrary it is clear that there is no legal impediment to the Applicant’s removal which can be affected very soon, hence HS2 is satisfied;

(6)  in fact, the Applicant is due to be released from detention tomorrow, albeit that the release is for the purpose of his forced repatriation;

(7)  the Applicant is only detained for a period that is reasonable in all the circumstances, so that HS3 is satisfied.

35.As to the various submissions made by the Applicant relating to the alleged funds, his proposed use of some of them, and the alleged hacking of his account, I do not think those are matters of any particular weight for the context of the current habeas corpus application (and there are no other ongoing legal proceedings which might otherwise raise a legal impediment to removal). As stated, in this hearing, the real focus is on whether there is and continues to be lawful detention. In my view, there is. But, it is also clear that the detention can cease very shortly, tomorrow, upon the intended repatriation of the Applicant.

G.  Result

36.Therefore, I dismiss the Applicant’s application for writ of habeas corpus.

37.I make no order as to costs.

The applicant, acting in person

Ms Hikki Wong, Senior Government Counsel, of the Department of Justice, for the 1^st and 2^nd respondents