Azam Adeel v. Director of Immigration

HCAL 1119/2022

[2022] HKCFI 3385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1119 OF 2022

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Before:  Hon Coleman J in Court

Dates of Hearing:  4 November 2022

Date of Decision: 4 November 2022

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D E C I S I O N

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A.   Introduction

1.The Applicant is the subject of a Removal Order issued on 19 April 2010 and a Deportation Order issued on 25 October 2022.  He has been held in immigration detention since 24 January 2022, initially pending his removal and now his deportation.  To the date of hearing, the period of immigration detention has lasted 285 days, or about 9½ months.

2.On 21 October 2022, the Applicant applied for writ of habeas corpus on grounds that the present period of detention has become unlawful.

3.I gave directions to bring this matter to a hearing fixed for today, 4 November 2022.  Directions were also given for the filing and serving of an ‘initial response’ by the Respondent.  Leave was also granted for the Applicant to file a reply, but none has been filed.

4.At the hearing, the Applicant appeared in person (with the benefit of an Urdu interpreter).

5.The Director was represented by Ms Karen Ngai, Government Counsel, who signed the initial response/skeleton argument, jointly signed by her and Mr Thomas Tong, Government Counsel, as supplemented by her oral submissions.  Though the Secretary for Security has not been named as a respondent, Ms Ngai has rightly pointed out that the power to authorise detention for part of the period of detention is given to and has been exercised by the Secretary.  For that reason, Ms Ngai has made submissions on behalf of both the Director and the Secretary.

6.This is my Decision.

B.  Background Facts

B.1    Immigration Status

7.The Applicant is a Pakistani national.  On his own account, he first entered Hong Kong illegally by boat on 26 November 2007.

8.As said, he is the subject of both a Removal Order and a Deportation Order.  The Removal Order was issued on 19 April 2010 under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).

9.During his stay in Hong Kong, he has been convicted of 7 offences, leading to the issuance of the Deportation Order on 20 October 2022 under section 20(1)(a) of the Ordinance, which authorizes a deportation order in relation to a non-Hong Kong permanent resident who has been found guilty of an offence punishable with imprisonment for not less than two years.

10.His criminal record is as follows:

(1)  On 19 August 2009, he was fined HK$2,000 for possession of dangerous drugs;

(2)  On 13 November 2009, he was sentenced to 8 months’ imprisonment for trafficking in dangerous drugs;

(3)  On 20 March 2015, he was sentenced to 6 months and 7 days’ imprisonment for theft and resisting a police officer;

(4)  On 3 January 2017, he was sentenced to 6 months’ imprisonment (later reduced to 5 months on review) for theft;

(5)  On 19 October 2021, he was sentenced to 15 months’ imprisonment for remaining in Hong Kong without lawful authority; and

(6)  On 14 December 2021, he was sentenced to 4 months’ imprisonment (with 2 months running concurrently with the previous sentence) for obtaining property by deception.

B.2    Family connection

11.No marriage of the Applicant has been recorded in Hong Kong.  But he has claimed to be married to a Ms Emy Nuryani, who is a non-refoulement claimant, also the subject of a valid removal order.  Ms Emy has confirmed that the “marriage” has been not been registered.  Apparently no child has been born out of the said relationship, but Ms Emy has a son whose registered father is a Chinese national.

B.3    NRC and JR

12.In 2007, the Applicant first raised his non-refoulement claim (“NRC”) on the ground of protection against torture.  In the years that followed, he also raised NRC on other applicable grounds when they became available as the law in this area developed.  In any event, by 2016, the Director had rejected his NRC on all applicable grounds.  He appealed to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal in 17 September 2017 (“Board Decision”).  The Board did so at least in part because the Applicant failed to appear for the Board hearing on 18 July 2017, and (as will be seen below) that was shortly after the Applicant absconded, for what tuned out to be a very lengthy period which began in April 2017.

13.The three-month period within which the Applicant could apply for leave for judicial review (“JR”) expired on 17 December 2017.  But the Applicant did not file his leave application until 8 February 2022, more than 4 years late.  As the chronology indicates, the leave application was filed shortly after the present detention had commenced, and can be seen as a reaction to detention.  

14.The leave application was rejected on 13 July 2022 (“CFI Decision”).  That followed a hearing scheduled for 12 May 2022, at which the Applicant failed to appear.  On 20 May 2022, the Court gave him directions by letter to file a statement within 14 days stating the reasons for not attending the hearing and for the more than 4-year delay in making the leave application.  As recorded in the CFI Decision, in letters dated 6 and 18 June 2022, the Applicant had stated his wish to withdraw his leave application, and to return to Pakistan “as his problem there was already solved”.  He did not offer any explanation for the delay.  Nevertheless, the CFI Decision did contain an assessment of the Board Decision, which it held to be “utterly without fault”, and the application for the necessary extension of time was refused in the overall circumstances.

15.In the context of one of the submissions made this morning by the Applicant (see below), it is important to record that the CFI Decision was an assessment of the application for an extension of time on its merits, and the CFI Decision was not simply based upon either (a) the Applicant’s non-appearance at the hearing or (b) the Applicant’s stated wish to withdraw the leave application.  This is also made clear by the CFI’s subsequent letter dated 18 August 2022, sent to the Applicant apparently in response to his own letter to the CFI on 11 August 2022.

16.The 14-day period within which the Applicant could appeal against the CFI Decision expired on 10 August 2022.  I had thought it unsurprising in the circumstances that no such application had been taken out. But, at the hearing this morning, the Applicant informed the Court and thereby the Director/Secretary for the first time that he had made an application to the CFI by summons dated 3 October 2022 but apparently issued on 6 October 2022, seeking leave out of time to appeal from the CFI Decision to the Court of Appeal.  On its face, the summons does not identify any grounds which might properly support the application.  As I understand it, no affirmation has been filed in support of that application.

B.4    Periods of Detention and Reviews

17.Prior to the present detention, there were 4 periods of detention under the Ordinance, each lasting about 2 weeks to 1 month: (a) from 28 November 2007 to 18 December 2007; (b) from 30 March 2010 to 30 April 2010, (c) from 14 July 2015 to 31 July 2015; and (d) from 27 February 2017 to 7 March 2017.

18.The present detention, which commenced on 24 January 2022, was immediately preceded by the Applicant’s release from prison for his criminal conviction on unlawfully remaining in Hong Kong and obtaining property by deception.

19.He has been detained under various powers under the Ordinance:

(1)  From 24 January 2022 to 5 October 2022, he was detained under section 32(3A) pending his removal pursuant to the Removal Order.

(2)  From 6 October 2022 to 25 October 2022, he was first detained under section 29(1) and then section 29(2), both authorizing detention pending inquiry as to whether a deportation order ought to be issued.

(3)  From 26 October 2022 – the day after the Deportation Order has been issued – onwards, he has been detained under section 32(3) pending his deportation.

20.The texts of the relevant detention authorizing sections are as followed.

21.Section 32(3A):

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.

22.Section 29(1) and (2):

(1)  If it appears to the Secretary for Security—

(a)  that there are reasonable grounds for inquiry as to whether a person ought to be deported under section 20; and

(b)  that such person should be detained for the purposes of or during such inquiry,

he may issue a warrant in the prescribed form authorizing the detention of such person for a period of 14 days.

(2)  If it appears to the Secretary for Security that it is desirable that a person detained under a detention warrant should be further detained—

(a)  for the purposes referred to in subsection (1);

(b)  for the purpose of inquiries into activities of that person which are prejudicial to the security of Hong Kong, being inquiries which in the opinion of the Secretary for Security should be conducted before the proceedings for the deportation of such person are completed; or

(c)  while proceedings for his deportation are completed,

the Secretary for Security may issue not more than 2 further warrants in the prescribed form authorizing the detention of such person for a further period of 7 days in each case.

23.Section 32(3):

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.

24.During the currency of the present detention, the Applicant’s detention has been reviewed 4 times, on 1 April 2022, 13 May 2022, 8 June 2022 and 15 July 2022 respectively.  On every occasion, continued detention was recommended.  The grounds for the continued detention are that: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he may abscond and/or (re)offend; (c) he poses, or is likely to pose, a threat or security risk to the community; and (d) there are no other circumstances favouring his release.

25.Relevant to ground (c) is his previous record of absconding.  He absconded on two occasions in the past.  In October 2011, he failed to report recognisance and was only arrested by the Police in January 2014, having absconded for more than 2 years. In April 2017, he failed to report recognizance again and only made his reappearance about 4½ years later, when he was arrested for obtaining property by deception in October 2021.

26.Also relevant to that ground, which I note and take into account, is that the Applicant has stated that his biological uncle is prepared to act as guarantor if the Applicant were to be released on recognizance.  The uncle has been in Court this morning.  I also acknowledge that the Applicant’s former solicitors have previously written to the Director pointing out that the Applicant could provide that guarantor, and that if released on recognizance the Applicant would reside with his “family members” at the uncle’s residential address.

B.5    Steps towards Removal

27.During the present period of detention, the main obstacles to deportation have been (a) the Applicant’s attempt to overturn the Board Decision by way of JR, and (b) the need to replace his expired Pakistani passport.

28.As indicated above, his JR leave application which required a lengthy extension of time was refused, on its lack of merit, on 13 July 2022.  Until the hearing and the new information provided by the Applicant, it seemed that thereafter there was no outstanding legal proceedings except this habeas corpus application.

29.As for the Applicant’s expired passport, the Director has been actively liaising with the Consulate General of the Islamic Republic of Pakistan (“Pakistan Consulate”), resulting in the issuance of an Emergency Travel Document (“ETD”) with a validity period of 30 days on 18 August 2022.  The validity of the ETD has been extended to 27 November 2022.

30.Repatriation has already been scheduled for 9 November 2022, with a seat on a return flight secured for the Applicant.

31.It can also be pointed out that, on various occasions in June and July 2022, the Applicant expressed a willingness to return to his own country, and indeed sought early repatriation.  However, he changed his mind in mid-August 2022, from which time he has expressed unwillingness to return to his home country.

C.  Applicable Principles

32.In its 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.

33.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.

D.  Applicant’s Submissions

34.On the same day as he filed this habeas corpus application, the Applicant has submitted more than 100 pages of handwritten materials. Most of the materials are merely recitation or excerpts of judgments of cases on habeas corpus applications, law textbooks, provisions of the Basic Law, Hong Kong Bill of Rights or other human rights instruments, without any real attempt to apply those principles to his particular facts.  There are also references related to NRC claimants generally, but with no apparent relevance in the context of a habeas corpus application, e.g. that NRC claimants statistically make up what the Applicant says to be a disproportionally high percentage of those arrested by the Police.

35.Selecting and summarizing the parts which could be read as some sort of submissions, he says:

(1)  He has been detained for about 10 months, which is unreasonable.

(2)  He wants to stay with his wife and son – presumably referring to Ms Emy and her son.  He says the separation has been mentally harmful both for him and for his family.

(3)  The Director did not take into account his disability.  He refers to an incident where the sink in the bathroom fell on his foot and he was then treated in hospital.

(4)  Being detained for such a long time has also caused some harmful mental effects on him.

(5)  Tai Tam Gap Correctional Institution (“TGCI”) – where has been detained – is a prison facility and he has been in effect treated or detained as a prisoner during his detention in the institution for no crimes.  He refers to “double jeopardy” – supposedly suggesting that he is now being punished a second time for the crimes he had committed.

(6)  Extensive references are made to the detention conditions in TGCI.  He says the conditions fail to meet the Nelson Mandela rules, the international standards for imprisonment.  He also says– as a detainee pending deportation – he should be treated as a person in custody pending trial.  He says it was wrong for the Director to claim that detainees’ treatment in TGCI is largely in line with those in Castle Peak Bay Immigration – the other place of detention – when in fact the conditions in TGCI are much less favourable.

(7)  He has an explanation for his previous records of absconding.  He says did not know failing to report recognizance would be treat as absconding and promises not to do it again.

36.In the oral hearing, the Applicant has further submitted (mainly with the benefit of further hand written submissions which he handed up to the Court) that:

(1)  He does not pose and is not likely to pose a threat or security risk to the community, as evidenced by previous occasions when no such threat was identified in notices of review of detention. 

(2)  He has previously been released on recognizance notwithstanding his past criminal record.

(3)  Previous reviews and notices of detention did not suggest he had convictions of crimes of a serious or violent nature or that he might abscond and/or reoffend. 

(4)  The Director has failed to adhere to his own published policy to conduct “regular” reviews of detention.

(5)  It is incorrect to say that he has no fixed abode, as he as identified the address of his proposed guarantor (his uncle) as that address.

(6)  The reason why he was absent from the CFI hearing on 12 May 2022 was because he was in detention, and that is what led to the dismissal of his application. 

(7)  It is incorrect to say that there are no extant proceedings which act as an impediment to his removal, because on 6 October 2022 he has issued an application in his JR proceedings HCAL 123/2022 asking for leave to appeal out of time from the CFI Decision.  The summons suggests that the Applicant will also seek to advance a “new sole ground of appeal”, though that is not identified.

(8)  He has on 19 October 2022 applied for legal aid in respect of his NRC proceedings, and has received a reply from the Legal Aid Department dated 25 October 2020 giving a reference number and seeking various documents.

(9)  He wishes to stay in Hong Kong until his claims are completed, and “will automatically exercise [his] legal rights of attempted review and further appeals, in effect so as to maintain a legal impediment to removal”.

(10)  Therefore, it is impossible for him to be removed within a short reasonable period.

(11)  There is no benefit to the Immigration Department or anyone else to keep him in detention.

(12)  He is still in danger if he is returned to Pakistan.

37.I will take these matters into account as seems fit in my consideration of the merits: see below.

E.  Merits of Application

38.The starting point is that there is an extant Removal Order and an extant Deportation Order, both of which have remained in force at all times.  For the period during which he was detained for inquiry as to the issuance of deportation order, such inquiry was made and did result in the issuance of the Deportation Order.  Thus, the detention of the Applicant under various sections of the Ordinance clearly provides prima facie lawful authority to detain the Applicant.

39.Whilst the Applicant has been detained in a prison facility, he was not committed to imprisonment, nor was he detained pursuant to any authority to imprison him.  There is no concern about double jeopardy or his being punished twice for the crimes he had committed.

40.TGCI is specified in the Schedule to Prisons Order, Cap 234B, thus falling within Schedule 1 of the Immigration (Places of Detention) Order Cap 115B, making it one of the specified places for detention under the Ordinance.  Therefore, there was prima facie authority to detain the Applicant in TGCI pending his deportation.

41.Given that the detention was prima facie with lawful authority, the question raised by this application was whether the detention had become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

42.For the Director, Ms Ngai submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 285 days.  I agree.

43.I accept that HS1 is satisfied.  Throughout the present period of detention, the Director has intended to remove or deport the Applicant, or make inquiry for the issuance of the deportation order – as the case may be – and has only used (and continues to use) the detention powers for those purposes.  When the detention commenced, there was no outstanding JR proceedings.  Whilst one was instituted on 8 February 2022 shortly after he was detained, that leave application appears to have been a cynical reaction to being detained, and it had already been disposed of on 13 July 2022.  As already noted, the application was dealt with on its merits, and not simply because the Applicant failed to appear or had suggested he wished to withdraw it.

44.Active steps were also taken to obtain a replacement travel document and to ensure that the validity of the replacement remains current.

45.Indeed, as Ms Ngai submits, the Applicant’s detention might have ended much earlier had he not submitted his NRC leave application – which was an application with no merit and plainly a reaction to his detention, and which was in any event one he subsequently expressed he wished to withdraw.  It could end by 9 November 2022, unless it is extended by the applicant’s own choice in making the renewed application.

46.I would also point out that the clearly stated purpose of automatically pursuing proceedings, irrespective of their merit, so as to create a legal impediment to removal is deeply unimpressive.  Perhaps it is high time that that message is made absolutely clear. 

47.It should be made absolutely plain to persons in the position of the Applicant that if they choose to bring unmeritorious applications solely for the purposes of seeking to create a legal impediment to removal, that is not a weighty factor in support of an application for release where it is argued that the period of detention has become unreasonable, and so unlawful.  Bringing applications which have no merit simply as an attempt to delay removal can, and in most cases will, be treated as that applicant’s own decision to remain in detention and to prolong that detention until the removal.  Whilst I acknowledge the legal right to make applications and to seek leave to appeal, there is no obligation to do so.  Doing so is a choice, and the making of such unmeritorious applications will in general not “buy” a release on recognizance, nor persuade the Court that release is appropriate.  In fact, it will likely point in precisely the opposite direction. 

48.This case is particularly clear.  In this particular case, the Applicant has still not provided any explanation for the significant delay following the Board Decision (which seems in reality to have been caused by the fact that the Applicant absconded and disappeared for the more than four years until he was re-arrested).  The underlying challenge to the Board Decision has been held to be of no merit at all, because the Board Decision is “utterly without fault”.  The summons seeking leave to appeal is also one made out of time, even beyond the time permitted if one starts from the date the Applicant says he received the CFI Decision on 5 September 2022. That application identifies no proper grounds and seems to me to be one likely wholly without merit, and any renewed attempt to pursue the matter to or beyond the Court of Appeal also likely without merit.

49.HS4 is also satisfied, in that the Secretary has acted with reasonable diligence and expedition to effect removal, evident by the efforts in obtaining the replacement travel document until one was issued on 18 August 2022, the renewal of the validity period and the schedule of a repatriation flight.

50.I also acknowledge – as suggested by the Director – that considerable weight is to be placed on the Applicant’s criminal history and absconding record as factors favouring continued detention.  The convictions include trafficking of dangerous drugs, theft and obtaining property by deception.  These are crimes of a serious nature.  Against the history, the risk of further offending is not low, and the potential gravity of offences if committed is also not low.  Given his history in absconding for months and years, and his stated unwillingness to return home, I also agree with the Director that substantial weight should be given to the risk of absconding – which would frustrate removal, the very purpose of his detention.

51.I would give very little weight to physical and mental health related submissions.  There is no evidence substantiating that his conditions have rendered him unsuitable for detention.

52.I would also give very little weight to his suggestion that separation from Ms Emy and her son has been harming them and the Applicant.  There is no evidence, but mere assertion on his relationship with Ms Emy and her son.  In any event, he is due to be removed from them, and Ms Emy is herself due to be removed to Indonesia.

53.Whilst recognizing that the conditions of detention are a relevant factor in measuring the deprivation of liberty suffered by the Applicant, I do not believe they are determinative or weighty in this application.  But I bear them in mind in the overall balancing exercise.

54.Bearing in mind the period of detention – 258 days – against which all other factors must be balanced, I think HS2 and HS3 are satisfied. Currently there are no obstacles to removal.  The Applicant has a valid travel document and a repatriation flight is scheduled for 9 November 2022.  I am not at present prepared to proceed on the basis that the latest application to seek leave out of time to go to the Court of Appeal will not be able to be dealt with before 9 November.  There is at present, therefore, no reason to think he would not be released from detention in a matter of days, albeit upon deportation.  However, even if that repatriation attempt is somehow frustrated, there is no reason to believe that the application will be determined within a very short period of time.

F.  Result

55.For the above reasons, I dismiss the application.

56.I make no order as to costs.

The applicant, acting in person

Ms Karen Ngai, Government Counsel and Mr Thomas Tong, Government Counsel, of the Department of Justice, for the respondent