China Jianxin Credit Services Ltd v. China Wah Yan Healthcare Ltd

HCAL 432/2024

[2024] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 432 OF 2024

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D E C I S I O N

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1.Introduction

1.1The Applicant is subject to a Removal Order and a Deportation Order respectively made on 16 September 2014 and 24 April 2024. He has been held in immigration detention since 25 October 2023 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 225 days.

1.2This is my decision of the Applicant’s application made on 7 March 2024 for a writ of habeas corpus. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Augusta Wong, Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.Background

2.1The following background matters are taken from the Respondents’ Initial Response. At the hearing, the Applicant confirmed their accuracy.

2.2The Applicant is a Thai national born on 16 February 1978. He was first approved to join his mother, who was a Hong Kong Resident (“HKR”), as a dependant in October 1996, and which approval was subsequently extended to 1 April 2002.

2.3On 25 June 2002, the Applicant solemnised a marriage with Madam Luagsuk, a Hong Kong Permanent Resident (“HKPR”). On 26 June 2002, the Applicant submitted an application for change of status to join his wife as a dependant in Hong Kong. The application was approved on 2 August 2002, and subsequent extension of stay was last granted until 30 October 2009. The Applicant did not depart and had overstayed since 31 October 2009. On 16 June 2012, the Applicant departed from Hong Kong.

2.4On 9 October 2013, the Applicant arrived in Hong Kong again on the strength of his Thai passport, and was permitted to remain as a visitor until 8 November 2013. However, he did not depart as required and had overstayed in Hong Kong since 9 November 2013. On 5 June 2014, the Applicant surrendered to the Immigration Department and claimed that his Thai passport was lost. He was released on recognizance on the same day.

2.5On 16 September 2014, the Removal Order was made against the Applicant, and it remains valid and subsisting. The Applicant was subsequently released on recognizance on 27 September 2014.

2.6The Applicant’s son, who is a HKR, was born in Hong Kong on 20 October 1999. The Applicant’s wife, son and his brother, who is a HKPR, are now living in Hong Kong. According to the information provided by the Applicant, his widowed father and two sisters are in Thailand.

2.7On 23 January 2024, the Immigration Department contacted the Applicant’s wife who expressed willingness to act as his guarantor in Hong Kong. On 13 May 2024, the Applicant’s son was contacted and he also expressed willingness to act as the Applicant’s guarantor in Hong Kong.

2.8While remaining in Hong Kong as a dependant, and also while released on recognizance, the Applicant was convicted of the following offences:

(1)  On 15 June 2001, he was convicted of “Possession of offensive weapon in a public place” and “Possession of a dangerous drug” and was sentenced to a total of 4 months' imprisonment;

(2)  On 21 June 2005, he was convicted of “Wounding or inflicting grievous bodily harm” and was sentenced to 2 months’ imprisonment and was ordered to pay compensation of HK$3,000;

(3)  On 22 February 2006, he was convicted of “Possession of a dangerous drug”, and a probation order of 12 months was made against him;

(4)  On 23 November 2006, he was convicted of “Breach of probation order” and was ordered to be detained at Drug Addiction Treatment Centre;

(5)  On 19 October 2010, he was convicted of “Possession of a dangerous drug” and was sentenced to 3 months’ imprisonment;

(6)  On 12 November 2010, he was convicted of “Assaulting a police officer”, “Escaping from lawful custody” and “Breach of condition of stay” and was sentenced to a total of 4 weeks’ imprisonment and fined HK$1,000;

(7)  On 3 January 2012, he was convicted of “Breach of condition of stay” and was sentenced to 2 months’ imprisonment suspended for 2 years;

(8)  On 8 July 2014, he was convicted of “Breach of condition of stay” and “Breach of suspended sentence” and was sentenced to a total of 2 months and 2 weeks’ imprisonment;

(9)  On 28 August 2017, he was convicted of “Possession of a dangerous drug” and was sentenced to 6 months' imprisonment;

(10)  On 10 October 2017, he was convicted of “Using a false instrument”, “Theft”, “Forgery” and “Resisting a police officer” and was sentenced to a total of 8 months’ imprisonment;

(11)  On 5 January 2023, he was convicted of “Possession of a dangerous drug” and was sentenced to 8 months' imprisonment;

(12)  On 13 January 2023, he was convicted of “Possession of a dangerous drug” and “Using a false instrument” and “Giving false information to wilfully mislead or attempt to mislead a police officer with intent” and was sentenced to a total of 8 months’ imprisonment;

(13)  On 10 July 2023, he was convicted of “Possession of a dangerous drug” and “Doing an act tending and intended to pervert the course of public justice” and was sentenced to a total of 12 weeks’ imprisonment.

2.9In addition to the above convictions, the Applicant also has a history of absconding.

2.10After the making of the Removal Order, on 27 September 2014, the Applicant was released on recognizance. Since 24 March 2016, the Applicant had failed to report recognizance for nearly 1 year and 4.5 months until he was re-arrested by Police on 12 August 2017 for “Using a false instrument”, “Theft”, “Forgery” and “Resisting a police officer”.

2.11On 4 August 2018, the Applicant was released on recognizance. Since 11 January 2021, the Applicant had failed to report recognizance for nearly 1 year and 11 months until he was re-arrested by Police on 9 December 2022 for “Possession of a dangerous drug” and for being a wanted person.

2.12The Applicant jumped court bail resulting in the issuance and execution of arrest warrants in the following periods: (1) From 22 March 2016 to 12 August 2017 and (2) From 23 December 2020 to 9 December 2022.

2.13Also, the Applicant jumped police bail (1) from 24 June 2010 to 3 October 2010 and (2) from 30 March 2022 to 9 December 2022.

3.Non-refoulement claim (“NRC”) and related proceedings

3.1On 2 September 2014, the Applicant indicated in writing his intention to lodge a NRC which was, after a period of inaction by the Applicant but then reactivated, eventually rejected by the Director on 27 December 2017.

3.2The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) subsequently dismissed the Applicant's appeal/petition on 9 July 2018.

3.3On 13 July 2018, the Applicant applied for leave to apply for judicial review against TCAB’s decision of 9 July 2018 under HCAL 1386/2018 (“2018 JR Leave Application”).

3.4On 31 March 2021, Deputy High Court Judge KW Lung dismissed the 2018 JR Leave Application.

3.5During the present detention, on 18 January 2024, the Applicant filed another application for leave to apply for judicial review against TCAB’s decision of 9 July 2018 under HCAL 178/2024 (“2024 JR Leave Application”).

3.6On the same day, the High Court wrote to the Applicant stating that he had already filed a similar application in HCAL 1386/2018 (ie 2018 JR Leave Application) and requesting him to show cause in writing why his 2024 JR Leave Application should not be struck out on ground of abuse of court process.

3.7On 5 February 2024, the High Court estimated that the decision in HCAL 178/2024 would be ready for handing down as soon as possible or in late March 2024.

3.8On 19 March 2024, Deputy High Court Judge KW Lung dismissed the Applicant's 2024 JR Leave Application as the learned Judge found that it overlapped with HCAL 1386/2018 which the court had dismissed for having no merits.

4.Present detention and its reviews

4.1On 25 October 2023, the Applicant was discharged from prison and was transferred to the Immigration Department upon which the present detention commenced.

4.2The Applicant’s current detention was and is currently pursuant to the following sections of the Ordinance: (1) section 32(3A) of the Ordinance from 25 October 2023 to 5 April 2024, (2) section 29(1) of the Ordinance from 5 to 18 April 2024, section 29(2) of the Ordinance from 19 to 24 April 2024 and section 32(3) of the Ordinance from 24 April 2024 to 5 June 2024.

4.3In the review of detention conducted on 23 January 2024, the Director considered that release on recognizance was not warranted in the Applicant's case on the following broad grounds: (1) his removal was going to be possible within a reasonable time, (2) he posed, or was likely to pose, a threat or security risk to the community, (3) he might abscond or (re)offend, (4) there were no other circumstances in favour of his release and (5) his local family connections and his wife’s willingness to act as his guarantor did not outweigh factors against his release.

4.4There has been no further reviews, but I am told by Ms Wong that in the process of considering whether a Deportation Order should be made, the Applicant’s circumstances had been duly further considered in the process.

4.5Before and during the Applicant's present detention, the Immigration Department has been actively following up with the local Royal Thai Consulate General (“Thai CG”) regarding the issuance of a replacement travel document to the Applicant for his re-entry to Thailand.

4.6In all the interviews conducted by with the Applicant during his present detention, on 3, 8, 16 November 2023, and 2, 26 January 2024, 9 February 2024, 14 March 2024 and 9 May 2024 respectively, the Applicant expressed unwillingness to return to his home country. Despite his unwillingness to return to Thailand, the Applicant was willing to complete the re-entry formalities.

4.7As things presently stand, a repatriation flight has been scheduled on 6 June 2024 to deport the Applicant to Thailand (ie the day after the present hearing). On 16 May 2024, Thai CG issued an emergency travel document, which is valid until 15 June 2024 for the Applicant's re-entry to Thailand.

5.The Applicant’s submissions

5.1The Applicant’s written materials put forward the following matters:

(1)  Although it was stated in the review conducted on 23 January 2024 (the Applicant was notified of the result on the following day) that his removal was possible within a reasonable period, by the time he submitted the present application on 7 March 2024, his removal was still not effected;

(2)  He was of the view that he was detained for offences he had previously committed;

(3)  The assessment that he would likely abscond or (re)offend was a speculation;

(4)  HCAL 178/2024 was a meritorious application;

(5)  His family members would act as his guarantors;

(6)  Generally, the length of his detention had become unreasonable.

5.2At the hearing, the Applicant confirmed the above is an accurate summary. The Applicant’s wife and son attended the hearing and the Applicant also submitted a letter from his wife with supporting documents. The wife’s letter points to her ailments and stress due to the Applicant’s detention, and promises, on behalf of the Applicant, that he will commit misdeeds again, for which he is remorseful. A permanent address is provided, with various material to show that she is gainfully employed. The wife also fears for the Applicant’s safety if repatriated to Thailand and offers a sum of HK$10,000 as security for the Applicant’s release from detention.

5.3The Applicant asks to be released, as he would like to be with his family and also his brother who has suffered a stroke.

6.The applicable principles

6.1The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

6.2I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

6.4The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

6.5Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim. The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

7.Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to various sections of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 225 days, against which the various other factors must be weighed and balanced.

7.3I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by arrangements made for his repatriation. There is no longer any legal impediment to the Applicant’s removal pursuant to the Updated Removal Policy. Neither, as stated above, is there any practical impediment as there is now a valid Emergency Travel Document. Short of any unforeseen circumstances, or the Applicant’s own refusal to cooperate, the Applicant is scheduled to depart on the day immediately following the present hearing.

7.4In the foregoing regard, the length of the detention must be viewed in the light of the Applicant’s own action. After the commencement of the present detention, he commenced HCAL 178/2024 which was not resolved until, but was resolved swiftly, on 19 March 2024. Prior to that, the Applicant commenced the present proceedings. The Applicant’s view that HCAL 178/2024 is meritorious and should be regarded as such is without basis, it being an attempt to relitigate HCAL 1386/2018. It seems to me that the period taken for the resolution of HCAL 178/2024 should be regarded as having caused by the Applicant’s own unreasonable behaviour.

7.5In the light of the Applicant’s history of convictions and failures to report recognizance, I am satisfied that the Director’s assessment on the existence of a real risk of absconding and reoffending is reasonable. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.6I acknowledge the fact that the Applicant’s family members have come forward to act as his guarantors. However, I do not believe that the view that that should not outweigh the other factors can be said to have been unreasonably taken, and in the circumstances where the Applicant is to be removed imminently, I further do not place significant weight on it. I am cognizant that the Applicant’s immediate family in Hong Kong and of his professed wish to remain with them, but in this application, I am not concerned with the validity of the Removal Order and the Deportation Order or the decisions made to repatriate him pursuant thereto.

7.7I also do not place weight on the late assertions made by the Applicant’s wife of his remorse over his past misdeeds, or her assertion that he would be harmed if repatriated.

7.8Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.Conclusion

8.1Therefore, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

8.2For the above reasons, I dismiss the Applicant’s application for a writ of habeas corpus with no order as to costs.

The Applicant, acting in person

Ms Augusta WONG, Senior Government Counsel (Ag.), of the Department of Justice, for the Respondents