Muhammad Shehbaz Alias Ghafar Abdul v. Hong Kong Sar Government

HCAL 1037/2023

[2023] HKCFI 1906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1037 OF 2023

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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 made against him on 23 February 2012. Since 20 May 2022, he has been held in immigration detention under section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”), which authorises the detention of a person against whom a removal order has been made pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 428 days, or 14 months.

2.On 27 June 2023, he applied for a writ of habeas corpus seeking his immediate release from detention. On 28 June 2023, I gave leave for the Government to file and serve a written response and the necessary directions to bring the matter to today’s hearing.

3.At the hearing, the Applicant appeared in person with the benefit of an Urdu/English interpreter. The Government was represented by Ms Angel Zhi, Government Counsel, who also signed the written response.

4.This is my Decision.

B.  Immigration Status of the Applicant

5.The Applicant is a Pakistani national whose identity and date of birth have remained unconfirmed as of now.

6.He first entered Hong Kong in October 2000 under the name of “Muhammad Shehbaz” claiming to be born in 1979. He was allowed a short stay as a visitor, but later over-stayed after failing to depart within the limit of stay granted to him. He was convicted of a breach of conditions of stay, leading to the issuance of a removal order and eventually his removal to Pakistan in December 2001.

7.But he re-entered Hong Kong as a visitor again 6 months later, in June 2002. He did so under a second identity, when he claimed to be a “Ghafar Abdul” who was born in 1978. He did not depart within the limit of stay then granted and was only arrested by the police some four years later, in July 2006. Upon arrest, his dual identity was discovered.

8.Also in July 2006, and 3 days after his arrest, he indicated his intention to lodge what has now become a non-refoulement claim (“NRC”). Section 37Z of the Ordinance provides that a claimant may not be removed from Hong Kong to a torture risk State until the claim is finally determined against the claimant. Until December 2022, the Government also adopted the removal policy not to remove a claimant whose NRC or subsequent court proceedings are still afoot. As such, the Applicant, who had maintained various NRC proceedings on-and-off from 2006 to 2020, had been able to stay in Hong Kong unlawfully. The unlawful stay has stretched to over 2 decades, counting from his second entry in 2002.

9.A second Removal Order, being the one identified at the introductory paragraph of this Decision, was later issued on 23 February 2012. That Removal Order was triggered by his committing the offence of making or causing to make false statement to an immigration officer in contravention of section 42.

10.Because of the Removal Order(s), the Applicant is liable to be removed from Hong Kong. The question which falls for determination in this application is whether the Applicant can continue to be lawfully detained pending that removal.

C.  Criminal Record

11.As said, during his first period of stay in Hong Kong from 2000 to 2001, he was convicted to breach of conditions of stay for which he was eventually removed towards the end of 2001. He was sentenced to 2 month’s imprisonment suspended for 2 years.

12.Upon his return in June 2002 and till 20 May 2022 on which date the present immigration detention began, more offences were committed. I take the following conviction and sentencing record from Ms Zhi’s written submission:

(1)  In December 2001, he was sentenced to 2 months’ imprisonment suspended for 2 years for breach of condition of stay;

(2)  In November 2006, he was sentenced to a total of 9 months’ imprisonment for misleading a police officer by giving false information; making or causing to be made false or forged statement or representation to immigration officer; and breach of suspended sentence.

(3)  In December 2011, he was sentenced to 14 days’ imprisonment for possession of a dangerous drug;

(4)  In September 2013, he was fined HK$ 2,000 for possession of a dangerous drug;

(5)  In April 2014, he was sentenced to a total of 2 months’ imprisonment for possession of a dangerous drug and possession of part I poison.

(6)  In January 2016, he was sentenced to 8 month’s imprisonment for theft.

(7)  In March 2019, he was sentenced to one year and 8 months’ imprisonment for burglary.

(8)  In June 2021, he was sentenced to a total of 3 years’ imprisonment for burglary and handling stolen goods.

13.He completed his last prison sentence on 20 May 2022, on which date the immigration detention began.

D.  Absconding Record

14.The Applicant had jumped court bail once. On 6 January 2014, the Applicant absconded while released on bail. He only resurfaced 3 months later, on 7 April 2014, upon arrest by the police.

15.The Applicant also failed to report immigration recognizance on 4 occasions. The first 3 occasions occurred before the present immigration detention had begun. On each and every occasion, he went ‘underground’ for a period ranging from months to up to a year, and only reappeared, not by his voluntary surrender but by his being arrested by the police for suspected offences:

(1)  he failed to report recognizance on 10 April 2012, and was eventually arrested by the police on 31 March 2013;

(2)  he failed to report recognizance on 10 January 2014, and was eventually arrested by the police on 7 April 2014;

(3)  he failed to report recognizance on 14 November 2014, and was eventually arrested by the police on 17 March 2015.

16.The fourth failure to report immigration recognizance occurred after the present immigration detention had begun, and during the period when he was technically released on recognizance but for the purpose of receiving quarantine in hospital for Covid-19. On 11 September 2022, the Applicant was identified as a close contact of a Covid-19 patient and was released on recognizance so that he could be quarantined and treated at the United Christian Hospital. He was required to report immigration recognizance on 24 September 2022.

17.However, on 15 September 2022, he escaped from the hospital after having received medical treatment in breach of the quarantine order then imposed on him. He was eventually arrested by the police on 26 September 2022 and was taken to back into immigration custody.

18.The Applicant later explained to the Director in writing that he last absconded because he was feeling sick and took rest at home. He had “no money to recovery of self-surety”. I note the Applicant’s different explanation offered in court today was that he was told on the fifth day that he could go, and that despite investigations by the police no charges were pressed which must mean that he did not commit any offence. However, that no charge was press does not mean that the Applicant did not abscond.

E.  Removal Obstacles

19.As I understand from the Government’s submissions, the obstacles which have been preventing the Director from effecting the removal of the Applicant from Hong Kong have been (a) legal proceedings arising from his NRC and (b) the Applicant’s expired passport which needed replacement.

E1.  NRC and Related Proceedings

20.Since this Court is not tasked with deciding whether the Applicant should be allowed to stay in Hong Kong on the basis of his NRC, and as a matter of fact his NRC and subsequent legal proceedings have ceased to be removal obstacle by the time this habeas corpus application was made, it is sufficient for me to address his NRC-related proceedings briefly.

21.As said, he lodged his NRC in July 2006, a few days after he was arrested by the police. Apparently, the NRC was later treated by the Director as being abandoned after a few years of inaction to pursue the claim by the Applicant.

22.The Applicant reopened his NRC in 2013, when he was transferred to the Director for handling upon his being arrested by the police.

23.After his NRC was reopened in 2013 and before he was taken into immigration detention in 2022, he pursued all available administrative and judicial avenues up to the level of the Court of Appeal (“CA”) and failed at each level. His NRC or subsequent legal proceedings were rejected by the Director in 2016, by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office in the same year, by the Court of First Instance (“CFI”) in 2018 and again in 2019, and by the CA in 2020. The decision by the CA, made in April 2020, was to refuse the Applicant’s application for leave to appeal against the CFI’s decision.

24.On 5 July 2022, 1½ months’ after the Applicant was taken into immigration detention, he applied to the CA for leave to appeal against the CA’s refusal to the Court of Final Appeal. That application, taken more than 2 years after the CA’s decision, was grossly out of time. I think Ms Zhi is correct when she submits that the timing and context of the steps taken by the Applicant in relation to his NRC, usually prompted by being taken into detention, give the appearance of a tactical ploy so as to create an obstacle to removal.

25.The application to appeal to the CFA is yet to be determined. But insofar as the Director is concerned, that application has ceased to be a removal obstacle since 7 December 2022. The Government has changed her removal policy with effect from 7 December 2022 such that once an NRC has reached the stage of its subsequent legal proceedings being rejected by the CFI, it will no longer be treated as a removal obstacle, regardless of the existence of extant further court proceedings.

26.The effect is that the obstacle arising from his NRC was cleared about 7 months after the Applicant was taken into detention.

E2.  Replacement passport

27.It appears that the Applicant held a Pakistani passport under the identity which he used to gain his first entry into Hong Kong in 2000. That passport had expired.

28.The Director’s efforts in liaising with the Pakistani Consulate for verification of the Applicant’s identity and issuance of a travel document was initiated as early as in 2016.

29.The efforts were resumed after the Applicant was taken into detention in May 2022. I am told that by December 2022, the Director had sent 5 chasers to the Pakistani Consulate to follow up on the matter. But the process was not as smooth as one would have hoped, partly due to the Applicant’s refusal to cooperate.

30.The Applicant has consistently indicated unwillingness to return to Pakistan and refused to go through the necessary application procedures. I note that, in Court today, the Applicant suggested that he has always indicated that he is willing to return to Pakistan, but not yet. I do not accept that, as it is contrary to the contemporaneous record of his indications. In any event, to say he is willing to go but not yet means, as is clear in practical terms, that he is not willing to go at the time that he should go. His lack of cooperation is clear and repeated.

31.On 5 January 2023, the Applicant refused to attend a scheduled interview with the Pakistani Consulate.

32.On 15 February 2023, the Director submitted to the Consulate some re-entry documents (which apparently did not include the Applicant’s completed re-entry application form). The Consulate later replied (at a date not specifically provided to me) that application was under processing.

33.On 6 March 2023, 8 March 2023, 2 May 2023, and 7 June 2023 respectively, the Applicant refused to complete the re-entry form or to attend an interview with the Pakistani Consulate for the second, the third time, the fourth and the fifth time, despite the Director’s reminder to him that that might impede his removal.

34.On 23 May 2023, in view of the Applicant’s refusal to cooperate, the Director started to request the Consulate to verify the Applicant’s identity and to issue him a replacement passport by alternative means. The Consulate replied that verification of the Applicant’s identity was in progress.

35.I am further informed by the Director that, on 11 and 12 July 2023, the Consulate replied that the Applicant’s re-entry application has to be referred to the local authority in Pakistan for further verification given his identity issue, and the Pakistani passport he possessed was handwritten. According to the Consulate, a reply from the local Pakistani authority could be expected in about 3 months and an emergency travel document could be issued 2 or 3 weeks after his identity has been verified by the local authority.

36.It can be noted at this stage that part of the necessary time taken for verification of the Applicant’s identity is precisely because he has chosen to use two different identities in the past, and to use those two identities to enter and then overstay in Hong Kong.

F.  Applicable Principles

37.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.

38.The essence is that an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

G.  The Applicant’s Submissions

39.In the affirmation filed in support of this habeas corpus application, the Applicant exhibited some 46 pages of written materials.

40.The first few pages appeared to be handwritten submissions penned by him. A number of the points made in writing were repeated again orally today.

41.In gist, between the written and oral submissions, he said (in my summary of the points):

(1)  His right eye is already blind and he suffers from strong asthma.

(2)  He has a wife who is a Hong Kong permanent resident with whom he fathered a son. His wife is now remanded in prison and his son is now 6½ years’ old.

(3)  His son is now under Government custody. He requested those in charge of his son to take his son to visit him, but his request was declined.

(4)  He understands that his son was in a child protection place in Causeway Bay, which was the very place where child abuse was reported to have happened some time ago.

(5)  He asked his case officer concerning his son, the case officer told him that his son is now safe and happy.

(6)  His case officer told him that his son is crazy and that he has mental disorder so that they cannot bring his son to visit him. He said it is very unprofessional for the case officer to say that. He knows for sure that his son is normal as other children, and the case officer should not have said that to hurt him.

(7)  He understands that his son is now a hostel in Tuen Mun. He had requested them (which I take it to be a reference to those in charge of the hostel) not to feed his son pork because the family including his son is Muslim. He said the hostel got angry because of this request and said if he was to make the same request was again, he would not be allowed to talk to his son.

(8)  He says he has been told that whether the son eats pork is not a decision for the Applicant or his wife, but for the son.

(9)  His case officer has prevented him from visiting his son by making it extremely difficult to grant him bail or to arrange a visit of his son.

(10)  All he wants is to see his son, and he requests the Court to release him to permit him to do so.

(11)  His wife always sends him letters asking when he would go out to bring their son home. The son always asked him when he would come to visit him over the phone. His son got angry at him because he (the son) thinks the Applicant had lied to him about taking him home.

(12)  He cannot go back to Pakistan because his life will be in danger, and because his wife is in prison and his son is under government care.

(13)  If he is released, he can both see his son and visit his wife, and when she is released they can all travel together to Pakistan.

(14)  After that, because the wife’s family is from China, they will probably live together in China.

(15)  There are people who were in even more worse situation than him but were released from immigration custody.

42.He exhibited a few letters, written in either Chinese or a foreign language, apparently signed by his wife, asking the Director to release the husband so that he could see their son again. There is also a letter issued by the Social Welfare Department to the Director dated 28 March 2023, apparently referring to the matter concerning his son, and providing the contact of the responsible social worker from the Family and Child Protective Services Unit to the Director for enquiry.

43.He also handed up in Court today at further letters. One was from his wife, apparently written from custody, explaining that she had been charged with certain drugs offences and may, if convicted, spend some years in prison. Another part letter provided seems to proceed on an assumption that the Applicant had already been released, that he might have returned to the home where he would perhaps have met a daughter and her boyfriend (not otherwise mentioned in proceedings), and identifying how the Applicant should add his name to the birth certificate of the son, identifying him as the father, as well as giving further details of the criminal proceedings she is now facing.

44.The majority of the materials – comprising about 30 pages - exhibited to his supporting affirmation is a set of handwritten notes, perhaps meant to work as rebuttal to the factors which are usually relied upon by the Director to recommend continued detention whenever a detainee’s continued detention is reviewed. Whilst various excerpt from case law or legal instruments, and some statistics related to non-refoulement claimants are recited, there is no explanation how those materials could be applied to the Applicant’s specific factual circumstances.

45.As regards the wife, and as identified below, she is in fact the Applicant’s ex-wife, they having divorced in 2020, apparently on her petition. I note that the Applicant continues to refer to her as his wife (rather than ex-wife), and has offered the explanation in Court today that the reason for the divorce was because the wife was advised that it was better for their public housing for the couple to live together as boyfriend and girlfriend, where the Applicant is not a Hong Kong permanent resident.

46.Further insofar as the Applicant’s family circumstances are concerned, I have gathered the following further information from the materials provided to me by the Director:

(1)  The Applicant married a Hong Kong permanent resident in October 2016.

(2)  According to the wife, they gave birth to a son in December 2015. Thus the son will turn 8 years old the coming December. The Director has obtained a copy of the said son’s birth certificate but no father’s name was registered on it.

(3)  According to the Applicant, the wife is in prison and the son is now taken care of by Po Leung Kuk.

(4)  The Director made contact with Po Leung Kuk. According to Po Leung Kuk: (a) the son is now under their care, for daily care, residential care and medical attention; (b) the Applicant had divorced his wife in November 2020; (b) custody of the son was granted to the wife; (c) the Applicant was not granted supervised access; (d) the Applicant had written to them requesting to see his son; (e) a staff from Po Leung Kuk had come to the detention centre to visit the Applicant to explain to him that he was not granted supervised access.

H.  Whether Detention has become unlawful

47.The Applicant has been detained under section 32(3A) of the Ordinance pursuant to an extant Removal Order. Therefore, it could not be disputed that there was and remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

48.The starting point is that the Applicant has been detained up to today for a period of 428 days, or 14 months. It is against that period that the other factors are to be weighed and balanced.

49.I can address and apply the Hardial Singh principles broadly in turn, as follows.

50.I accept that the Director has always been using the detention powers for the purpose of deportation. There is nothing to suggest otherwise. HS1 is satisfied.

51.I have no doubt that the Director has been acting with reasonable diligence and expedition in removing the Applicant. This is evident the Director’s diligence and persistence in obtaining a replacement passport for the Applicant, despite his consistent refusal to cooperate. I can easily accept that HS4 is satisfied.

52.I recognize that 14 months is a substantial period. But it would not be unfair in context to say that the Applicant’s removal – and thus to an extent his being released from immigration detention – has been deliberately delayed by his own conscious actions.

53.When the detention began on the 20 May 2022, there were no extant NRC-related legal proceedings. The last decision, issued by the CA, had been made more than two years before, in April 2020. Yet, the Applicant decided to seek to take the proceedings further on 5 July 2022, only after and about 1½ months after he was taken into immigration custody. As I have indicated above, the timing of the late application tends to suggest the legal proceedings were re-activated as a response to his being taken into detention. In any event, this obstacle was quickly cleared by the change of removal policy on 7 December 2022.

54.The major removal obstacle featuring in the Applicant’s case is the need to replace his expired passport. As I have already set out above, the application process has been unnecessarily complicated and lengthened by the Applicant’s own consistent and conscious decisions to obstruct rather than to facilitate the process. Had he chosen to cooperate, a replacement travel document might have been issued long ago and, thus, he might have been released from detention upon his return to Pakistan by now.

55.When I specifically pointed out to the Applicant today that, if he is right in that he is willing to return to his country then he should cooperate in obtaining the necessary travel document, the Applicant said he was willing to return but not yet, implying that he was still unwilling to cooperate with obtaining the necessary travel document.

56.I note that according to the timeline provided by the Pakistani Consulate, a replacement passport could be expected in about 3 to 4 months’ time, of which period, 3 months will be taken for the local Pakistani authority to verify his identity. As Ms Zhi says, that gives a real sense of the timescale within which the Applicant could be removed. Also, I am told that that period is apparently the longest likely period, and it could of course be significantly shortened were the Applicant to cooperate. Further, I have already mentioned that the need for his identity to be verified by the local authority in Pakistan at all is at least partly caused by his using two identities with different dates of birth to enter Hong Kong.

57.I agree with the Director that at least a significant part of the delay in effecting removal is self-inflicted by the Applicant. I can and do take this into account, in accordance with section 32(4) of the Ordinance. The Applicant cannot complain about the lengthy period of detention and yet at the same time do whatever he can to obstruct his removal.

58.I also accept Ms Zhi’s submissions that there is plainly a serious risk of absconding and re-offending which is a matter of paramount importance in considering whether the Applicant should be released from detention on recognizance.

59.The Applicant has 11 previous convictions, including serious crimes such as burglary for which he was sentenced to more than 2 years’ imprisonment. The possibility of re-offending is not low, and the potential impact from committing a further serious crime is also not low.

60.Even if the most recent absconding from quarantine is ignored (though I do not think it should be), the Applicant absconded on numerous previous occasions and went underground for up a year. He is clearly unwilling to return to his own country, at least in the near future. In Court today, he went so far as to say that he would never leave without his son and wife. I am wholly satisfied that there is a real and substantial risk that he will abscond if released on recognizance, which will frustrate the very purpose for which the detention power is granted.

61.The Applicant’s family circumstances are noted. But I do not think it a weighty factor indicating support for his release from detention. The son is now under the care of the Social Welfare Department and there is no reason to doubt that the care arrangement now implemented by the Government is not in the son’s best interest. The Applicant, having been divorced by his wife, was in any event not granted custody. He was not even granted the right to supervised visit by the Family Court. I also accept Ms Zhi’s submissions that the Applicant’s conviction and sentence record would suggest that the Applicant could not have been a significant carer for the son after he was born in December 2015, given the Applicant spent a substantial portion of time thereafter in prison.

62.Whilst I can understand some concerns that a father would have about the way in which his son might be treated, or what his son might be given to eat, I do not think those matters are of significant weight in the current balancing exercise. The Applicant’s previous level of care towards his son is not impressive, when the Applicant has spent a considerable part of his son’s life in prison as a result of repeated offences.

63.It is also correct that the Applicant is liable to removal from Hong Kong in any event, pursuant to the valid and extant Removal Order. Therefore, the claim to family connection in this context is not strong. Indeed, if the Applicant is correct that his wife (strictly his ex-wife) and son would wish to live with him, there is no reason why they could not travel to do so (once the wife is released from custody and, presumably, can resume custody care and control of the son).

64.I place very little weight on the Applicant’s medical conditions. I accept Ms Zhi’s submissions that sufficient medical care has been and could in future be provided to the Applicant whilst in detention. He has been taken to a public hospital for medical appointments regularly for his eye condition and asthma.

65.Looking at matters overall, and weighing all the other factors against the detention period of 428 days, I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful. HS2 and HS3 are satisfied.

I.  Result

66.For these reasons, I dismiss the Applicant’s application for writ of habeas corpus.

67.I make no order as to costs.

The applicant, acting in person

Ms Angel Zhi, Government Counsel, of the Department of Justice, for the respondent