Ruud Klinsman v. The Secretary for Security and Another

HCAL000052/1999

1999 HCAL No. 52

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Keith in Court

Date of Hearing: 4 June 1999

Date of Handing Down of Judgment: 17 June 1999

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J U D G M E N T

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Introduction

1. On 3rd October 1998, the Applicant completed a term of imprisonment which he was serving. But he was not released. A deportation order had been made against him, and he continued to be detained pending his removal from Hong Kong. However, he has remained in detention to this day. He now applies for a writ of habeas corpus to secure his liberty. His principal reason for saying that his detention has now become unlawful is that the immigration authorities have done nothing like enough to effect his speedy removal from Hong Kong.

2. In the light of this complaint, it is necessary to look at the facts surrounding the Applicant's detention with some care. Most of the primary facts are not in dispute, though some of the inferences which I have been asked to draw from the primary facts are more contentious.

The facts

3. According to the records of the Department of Immigration, the Applicant first arrived in Hong Kong on 9th December 1997. He was travelling on a Ghanaian passport and was using the name Gilbert Magamson. He made a number of trips out of Hong Kong, until finally returning to Hong Kong on 18th April 1998. A few days later, he was arrested, and charged with possession of a forged Canadian passport. He pleaded guilty to that offence, and was sentenced to 8 months' imprisonment. He was still thought to be Gilbert Magamson, a Ghanaian national.

4. The Director of Immigration was considering applying for an order for the Applicant's deportation to Ghana. For that purpose, the Applicant was interviewed in prison by an immigration officer on 28th May 1998. At no time during the interview did the Applicant suggest that he was not Gilbert Magamson from Ghana. Indeed, he claimed to have been born in Kumasi and to have been a footballer by occupation. Eventually, on 29th September 1998, the Secretary for Security ordered the deportation of the Applicant from Hong Kong for life.

5. The Applicant was due to be released from Pik Uk Prison on 3rd October 1998. However, he was taken to Victoria Prison that day, and he has been detained there ever since. Section 32(3) of the Immigration Ordinance (Cap. 115) ("the Ordinance") provides that a person in respect of whom a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong. It is common ground that the Secretary for Security gave his authority for the Applicant's detention under section 32(3) at the same time as he made the deportation order.

6. The implementation of an order for deportation is left to the Department of Immigration. If there is no reason to doubt that the deportee is who he says he is, the permission of the country to which the deportee is to be returned is not sought. A ticket is purchased for a flight to that country, and the deportee is put on the aircraft. Since there was at that stage no reason to suspect that the Applicant's country of origin was not Ghana, it was proposed to put him on a flight to Ghana.

7. That was when the difficulties with which his case has been bedevilled began. In order to purchase a ticket for his flight to Ghana, the Department of Immigration needed his passport. That was being held by the prison authorities, amongst the Applicant's other personal effects, for safe-keeping. Accordingly, a few days before he left Pik Uk Prison, he was visited by an immigration officer, who asked the Applicant to authorise the release of his passport. The Applicant refused to do so, though it has to be said that there is no evidence before me as to whether the Applicant was told why the Department of Immigration wanted it.

8. The Applicant was visited by immigration officers a couple of times after he had been transferred to Victoria Prison. On the first occasion (which was about 10th October 1998), he was again asked for his passport, but the Applicant refused to authorise its release. He said that he wanted to arrange his departure from Hong Kong himself. On the second occasion (which was on 5th November 1998), I assume that he again refused to authorise the release of his passport, and that was why he was told that he would be visited by a representative of the Consulate of Ghana.

9. That visit took place on 14th November 1998. An immigration officer was present. On that occasion, the Applicant was told (as was indeed the case) that he had to give up his passport in order to secure his release from detention. On this occasion, he authorised the release of his passport, and two days later on 16th November 1998 the Consulate informed the Department of Immigration that the Applicant was not from Ghana at all.

10. The next time the Applicant was seen by an immigration officer was a few days later on 21st November 1998. According to the Applicant's affirmation, the immigration officer who visited him

"... said that they could not deport me as I had not lived in Ghana. I told him that I was afraid of being prosecuted because of the Ghanaian passport and that I just wanted to leave Hong Kong. He said that I was not to be prosecuted and told me to answer his questions truthfully, which I did. He asked me a few questions and I answered them and then he left."

The Applicant says that he was not asked who he really was or where he actually came from, but he concedes that he did not volunteer that information. The Respondents do not have a record of what was said at this meeting, and they are not in a position to confirm or deny whether he was asked who he was or where he came from.

11. It is common ground that an important meeting between the Applicant and an immigration officer took place on 22nd March 1999, but there is a dispute as to whether he had been seen before then. He claims that no-one came to see him between 21st November 1998 and 22nd March 1999. The Respondents say that he was seen on 9th March 1999, but no record was made of what was said. However, it is common ground that the meeting on 22nd March 1999 was the first occasion on which the Applicant gave what he now claims to be his name and where he now claims he came from. He gave his name as Ruud Klinsman, and he claimed that he had been born in 1974 in Guyana.

12. I use the words "what he now claims to be his name" advisedly. The Respondents have proceeded on the assumption that he is indeed Ruud Klinsman from Guyana, but followers of football will have noticed that this name is an amalgam of the names of two European football superstars: Ruud Gullit (the Dutchman who now manages Newcastle United) and Jurgen Klinsmann (the German who had a well-publicised spell with Tottenham Hotspur). It may be that those who had been handling the Applicant's file within the Department of Immigration were not soccer fans, but when it is recalled that the Applicant claimed to be a footballer when he was interviewed on 28th May 1998, one is entitled to be sceptical as to whether he is even now telling the truth.

13. On the other hand, even if he chose the name Ruud Klinsman himself, there is nothing necessarily sinister in that. In his affirmation, he spoke of how he was orphaned at an early age and never knew his parents, of how he was taken care of by an old woman in Georgetown in Guyana who he knew as Mum Theresa, of how in 1992 (when he would have been 11 or 12 years old) he was taken to Jamaica by a Rastafarian couple who subsequently treated him as their son, and how years later he lost touch with them. If he never knew his real name, he was, of course, entitled to take any name he chose, and to a football fan, Ruud Klinsman, I suppose, is as good a name as any. For the purposes of this case, I shall assume that there is nothing sinister in his use of the name Ruud Klinsman, and that the immigration authorities had no reason to doubt, from 22nd March 1999, that he came from Guyana.

14. Following the Applicant's revelation on 22nd March 1999 that he came from Guyana, the following attempts were made to procure the issue to the Applicant of travel documents to enable him to be deported to Guyana:

(i) Guyana does not have any representation in Hong Kong, and accordingly on 29th March 1999 the Director of Immigration wrote to the Embassy of Guyana in Beijing. The assistance of the Embassy was requested to verify the Applicant's identity and to issue him with the necessary travel documents for his repatriation to Guyana. The Embassy did not reply until 20th May 1999. They said that inquiries were being made in Guyana to verify the Applicant's claim to be Guyanese. They confirmed that if his claim turned out to be true, the Embassy would issue the appropriate travel document to enable him to be returned to Guyana. The result of these inquiries is still awaited. No point was taken by Mr. David Tolliday-Wright for the Applicant that, if Ruud Klinsman was not the Applicant's original name, the authorities in Guyana would effectively be chasing their tail. It may be that neither Mr. Tolliday-Wright nor any of the Applicant's advisers had thought of the football connection.

(ii) On 14th May 1999, a similar letter to the one sent to the Embassy of Guyana in Beijing was sent to the British Consulate General in Hong Kong. They replied on 17th May 1999 that they needed confirmation that the Applicant was a Guyanese citizen. They suggested that the Director of Immigration get in touch with the Embassy of Guyana in Beijing.

(iii) Attempts were made to gather more information from the Applicant over and above what he had said when interviewed on 22nd March 1999. Initially, though, what the Director of Immigration wanted to talk to him about was the Ghanaian passport. Information about that did not help in the request to find a country willing to accept him, and knowing that he was liable to be prosecuted in connection with the Ghanaian passport, the Applicant understandably refused to answer questions about it. However, when he was interviewed on 19th May 1999 in the presence of his solicitors, although some of the questions went to the question of his Ghanaian passport, other questions went to the question of his true identity and nationality. The Applicant declined to answer these questions. However, it is true to say that he had, on 17th May 1999, made the affirmation in these proceedings in which he had set out a brief history of his life before first coming to Hong Kong in December 1997.

The Hardial Singh principles

15. The Applicant's case is that although his detention would initially have been lawful (having been duly authorised under section 32(3)), his detention has now become unlawful. In Re Chung Tu Quan [1995] 1 HKC 566, it was doubted at p.592D-F

"... whether this argument could have been maintained in the past. Although the courts have for centuries jealously maintained their right to determine whether the facts of a particular case justify the initial detention of a detainee, the willingness of the courts to monitor the progress of a valid order for detention is a relatively recent judicial development. It has found its most articulate expression in the decision of Woolf J. (as he then was) in R. v. Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704."

The principles have come to be known as the Hardial Singh principles, though I do not suppose that Lord Woolf M.R. (as he now is) realised that his short ex tempore judgment in the Hardial Singh case would be remembered in the way it has been.

16. The Hardial Singh principles were approved in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1997] AC 97, which was the name which the Chung Tu Quan case had acquired by the time it got to the Privy Council. At p.111B-C, Lord Browne-Wilkinson summarised the Hardial Singh principles as follows:

"The principles enunciated by Woolf J. in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain 'pending removal' their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time."

The Privy Council went on to decide that these were questions for the court, and not for the person authorising the detention, to decide.

17. The Hardial Singh principles are not written in stone. They can be modified by legislation. Thus, Lord Browne-Wilkinson continued at p.111D-E:

"Although these restrictions [on the power of detention] are to be implied where a statute confers simply a power to detain 'pending removal' without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge ... the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships' view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances."

Although the Ordinance has not modified the Hardial Singh principles, it has sought to legislate in the area. Section 32(4A), which was added to the Ordinance in 1998, provides:

"The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention including, in the case of a person being detained pending his removal from Hong Kong -

(a) the extent to which it is possible to make arrangements to effect his removal; and

(b) whether or not the person has declined arrangements made or proposed for his removal."

This is identical to the second limb of the provision relating to Vietnamese asylum-seekers in section 13D(1A). These sections do not conflict with the Hardial Singh principles. Talking about section 13D(1A), but in circumstances in which his comments could apply equally to section 32(4A), Lord Browne-Wilkinson said at p.111F-H:

"What section 13D(1A) does is to provide expressly that, in deciding whether or not the period is reasonable, regard shall be had to all the circumstances including (in the case of a person detained pending his removal from Hong Kong) 'the extent to which it is possible to make arrangements to effect his removal' and 'whether or not the person has declined arrangements made or proposed for his removal'. Therefore the subsection is expressly based on the requirement that detention must be reasonable in all the circumstances (the Hardial Singh principles) but imposes specific requirements that in judging such reasonableness those two factors are to be taken into account."

18. However, there is an important refinement to the Hardial Singh principles. It was referred to in Chun Tu Quan at p.595B-F:

"Is delay caused by factors beyond the control of the person in whom the power of detention is vested a relevant factor in deciding whether removal can be achieved within a reasonable time? Godfrey J. [in Liew Kar Seng v. Governor-in-Council [1989] 1 HKLR 607] obviously thought not: note the phrase 'even though it be through no fault of theirs'. The Court of Appeal in England, however, recently took a different view. In Cartwright v. Secretary of State for the Home Department (15th August 1994, English Court of Appeal, unreported), the court was considering the legality of the detention pending the removal to Jamaica of a woman who had obtained a British passport in the name of someone else and had pretended to be a British citizen. Her removal to Jamaica had been delayed by what the court regarded as factors outside the control of the Secretary of State, namely, her own action in refusing to abandon her false identity and the handling of her case by Interpol. The court held that in those circumstances her detention was not unlawful. In other words, in determining whether removal can be achieved in a reasonable time, a relevant consideration is whether the delay was caused by factors beyond the control of the person in whom the power of detention was vested. I prefer that view to that of Godfrey J."

Reasonable steps

19. The main argument developed on the Applicant's behalf is that the immigration authorities did not take all reasonable steps within their power to effect the Applicant's removal from Hong Kong within a reasonable period. Three different periods can be identified:

(a) the period from 3rd October 1998 (when his detention under section 32(3) began) to 16th November 1998 (when it was discovered that he could not be returned to Ghana),

(b) the period from 16th November 1998 to 22nd March 1999 (when the Applicant claimed for the first time that he came from Guyana), and

(c) the period from 22nd March 1999 until the hearing.

20. No complaint can fairly be made about the first period. During that period, the immigration authorities had no reason to suppose that the Applicant was not Ghanaian. They were prevented from purchasing a ticket for his flight to Ghana as a result of his refusal to release what was then believed to be his passport to them. To use the language of section 32(4A) of the Ordinance, it was not possible to make arrangements to effect his removal during that period (because those arrangements were dependent on his passport), and he had declined the arrangements proposed for his removal (by refusing to take the one step on which the success of the arrangements depended, namely authorising the release of his passport).

21. Nor can any complaint fairly be made about the last period. Within a week of the Applicant's claim that he came from Guyana, steps had been taken to persuade the Guyanese authorities to issue the necessary travel document to him. The time it takes for the Guyanese authorities to respond to that request is beyond the control of the immigration authorities in Hong Kong.

22. The critical period for present purposes is the period from 16th November 1998 to 22nd March 1999. Although the Respondents cannot confirm that the Applicant was asked during this period who he was or where he came from (because no record was kept of the meetings with him), Mr. Wesley Wong for the Respondents argued that the court could infer that the Applicant was asked those questions, and that the Applicant refused to answer them. They were, after all, the most obvious questions to ask him. What reason would there have been for not asking them? And if they were asked, the Applicant did not answer them, because he admitted that he did not give his name or country of origin until 22nd March 1999.

23. I do not think that I can draw the inference which Mr. Wong argued that I should draw. On both 21st November 1998, and on at least the first time that the Applicant was interviewed after 22nd March 1999, the questions he was asked related to his Ghanaian passport. That could therefore have been what the immigration authorities wanted to talk to him about in the critical four months before 22nd March 1999. I agree with Mr. Wong that one might have expected them to ask him who he was and where he came from, but it is quite possible that that was overlooked. For example, there is no evidence before me that other steps which might have been taken to establish his identity were taken, for example, to send his fingerprints to Interpol to see if they were on file there. In addition, it is not without significance that the occasion on which he was undoubtedly asked who he was and where he came from, namely 22nd March 1999, was within a few weeks of the Director of Immigration discovering that the Applicant had applied for legal aid to take proceedings to secure his release from detention. That suggests that it was only then that the question of how to effect the Applicant's removal from Hong Kong was addressed again.

24. For these reasons, I must proceed on the assumption that during this period the Applicant was not asked who he was or where he came from. If, in future cases, the immigration authorities want the court to proceed on a different assumption, they would be well advised to ensure that records are kept of what is said at meetings of the kind which occurred in the present case.

25. However, even though I must proceed on the assumption that during this period the Applicant was not asked who he was and where he came from, the fact remains that he did not volunteer that information. He could have done. He must have known that without it he could not be deported. He does not say that, because he was not asked for that information, he assumed that they did not need it. Indeed, even if he had said that, I would have been very sceptical of such an assertion. In short, the Applicant, in my view, was the person primarily responsible for the inactivity during this period. To use the language of the Cartwright case, his removal from Hong Kong was delayed by factors outside the control of the immigration authorities, i.e. his own action in failing to volunteer his name and country of origin. His detention during that period, to use Lord Browne-Wilkinson's expression, was "self-induced". In the language of section 32(4A), it was not possible to make arrangements to effect his removal without the information which he failed to volunteer. In summary, although the failure to ask the Applicant what his name was and where he came from was a departure from the third of the Hardial Singh principles, it was not that which caused the Applicant to remain in detention longer than would otherwise have been the case. What has caused the Applicant's detention to be prolonged was the fact that he did not volunteer the information himself.

The other Hardial Singh principles

26. I can deal with the other Hardial Singh principles briefly. There has been no departure from the first of the Hardial Singh principles. The phrase "in all the particular circumstances of the case" includes the Applicant's failure to volunteer information about himself. Nor has there been a departure from the second of the Hardial Singh principles. In the circumstances of the case, the words "a reasonable time" mean "a reasonable time from when the Applicant give information about himself". The immigration authorities would be well advised to think what else they can now do. Sending his fingerprints to Interpol is one thing. Informing the Guyanese authorities that Ruud Klinsman may only be a name he has assumed (since he claimed not to know his real name) is another. All that the court can say is that at present it has not become clear that it is not going to be possible to effect his removal within a reasonable time.

Conclusion

27. For these reasons, the Applicant's detention continues to be lawful for the time being, and his application for a writ of habeas corpus must be dismissed. At present, I see no reason why costs should not follow the event, and the order nisi I make as to costs is that the Applicant must pay to the Respondents their costs of the application, to be taxed if not agreed. However, because the Applicant is legally aided, and because the immigration authorities were at fault in not asking relevant questions of the Applicant, the order nisi as to costs will include an order for the taxation of the Applicant's costs under the Legal Aid Regulations, and an order that the order for payment of the Respondents' costs may not be enforced without the leave of the court.

28. Finally, I should add that the 1st Respondent to the application was originally the Director of Immigration. The respondents to an application for a writ of habeas corpus should be the person who is detaining the applicant (in this case the Superintendent of Victoria Prison), and the person on whose authority the applicant is detained (in this case the Secretary for Security). The fact that the Department of Immigration was the department responsible for putting the deportation order into effect did not justify making the Director of Immigration a party to the proceedings. Accordingly, with the consent of all parties, the Secretary for Security was substituted for the Director of Immigration at the hearing as the 1st Respondent to these proceedings. Fortunately, Mr. Wong's instructions were sufficiently wide to cover his representing the Secretary for Security as well.

Representation:

Mr. David Tolliday-Wright, instructed by Messrs. Peter Barnes & Co., for the Applicant.

Mr. Wesley Wong, of the Department of Justice, for the Respondents.