Messrs Chan & Associates v. Director of Immigration and Another

HCZZ 146/2020

[2024] HKCFI 402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INTENDED ACTION NO 146 OF 2020

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R U L I N G

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1.This is an application for a writ of habeas corpus to be issued by the High Court to bring forward an individual, a Mr Tian Xuan Ming, who the Applicant, a law firm that says it acts for Mr Tian on the instructions of a third party, thought was being detained in the custody of the Immigration Department.

2.It seems that Mr Tian together with another gentleman, Mr Chiu, were arrested together by officers of the Immigration Department on the morning of 29 June 2020 at a serviced apartment in Pacific Place, Admiralty, Hong Kong.

3.The matter first came before me yesterday evening and, in my role as the Duty Judge, I declined to deal with the substance of the matter pending attempts by the Applicant to give better or further notice to the respondents to enable them to make an appearance and whatever submissions they felt appropriate. I adjourned the matter to a hearing before me at 2.30 pm today. I did, however, grant an interim injunction so that pending today’s hearing, the respondents should take no steps to remove Mr Tian from Hong Kong.

4.As it turns out, the Applicant has now been informed that Mr Tian not only is not in the custody of the Immigration Department in Hong Kong, he is not in Hong Kong at all, having agreed voluntarily to be removed on the day of his arrest, 29 June 2020. He apparently left at around 7.30 pm that evening.

5.Notwithstanding being provided with that information, against the background that previously the Immigration Department had simply refused to either allow a legal visit or to say where Mr Tian was being detained other than that he was not being detained at the particular main immigration centre, the Applicant has proceeded with the application today. But Mr So, in his typically fair submissions, accepts of course that if it is true that Mr Tian has been removed or is no longer in Hong Kong, and more particularly no longer in detention in Hong Kong, then the application, as he put it, would be academic, although strictly I think a better description would be that it must fail.

6.Understandable caution on the part of the Applicant aside, the relevant immigration officer is present in court and, at my invitation, Mr Felix Lee of the Department of Justice volunteered that he might give evidence to confirm on oath or affirmation, live in court, the facts that Mr Tian was not in detention in Hong Kong and in fact had voluntarily left Hong Kong on evening of 29 June 2020.

7.The immigration officer, a Mr Siu Wai-wang Derek, gave evidence confirming those facts which, again with his typical fairness, Mr So accepted he could not properly challenge. In those circumstances, it seems to me that it is not possible for me to say that there is any substance in the allegation that the applicant is being unlawfully detained because it is now clear that the applicant is not being detained at all. Therefore, none of the possible remedies available under section 22A of the High Court Ordinance relating to applications for, and the issue of, writs of habeas corpus come into play.

8.For that reason, it seems to me that the correct order to make on the application formally is to dismiss it, but that may not be the end of the matter because Mr So makes an application for costs. He points out that it is deeply unsatisfactory that it is only in the face of this application that the Applicant has been able to learn that Mr Tian was not only not detained but was no longer in Hong Kong and had agreed voluntarily to be removed.

9.Mr So suggests that Mr Tian might not have agreed voluntarily to be removed had he been afforded legal advice before he gave that agreement. I think, with respect, that is entirely speculative. It was entirely open to Mr Tian not to choose to retain legal advisers, and it was entirely open to him voluntarily to agree to removal on a rapid basis if he saw fit.

10.There is something of a mismatch between the fact that the Applicant firm says it has been retained on behalf of Mr Tian when he himself has been in no way in contact with the firm or apparently with the third parties who say they instructed the firm on his behalf. Be that as it may, Mr Lee explains, as I anticipated he might, that there was no particular reason for the Immigration Department to disclose to the Applicant law firm any individual piece of information or data about Mr Tian when it would not have been clear to them that the Applicant was in fact instructed by Mr Tian or that the Applicant firm was for some other reason entitled to information which might otherwise be regarded as private to Mr Tian.

11.There is a small dispute as to whether the Applicant firm was told yesterday that Mr Tian was not in the custody of the Immigration Department or whether the Applicant firm was simply told that he was not in custody at a particular place. That is unfortunate, but I do not propose to resolve that dispute because I do not think it determinative of the issue of costs.

12.Mr Lee says certainly they do not ask for costs and he suggests that the correct order is no order. In my view, that is the correct order in the current circumstances. The Applicant firm might well properly have thought that it was being instructed to act in the best interest of Mr Tian, but those instructions came from the third parties and it seems that Mr Tian himself, even if previously he might have been heard to indicate a request for legal assistance at some point, did not pursue that request but instead volunteered to leave Hong Kong, which he then did.

13.So my formal orders are to dismiss the application with no order as to costs.

Mr Simon So, instructed by Chan & Associates, for the applicant

Mr Felix Lee, of the Department of Justice, for the respondents