Re Romeo Santiago

HCMP002592/1988

HEADNOTE

The applicant had been held in detention, under powers expressed to be conferred by the Immigration Ordinance, Cap. 115, since 24th June 1988. On 22nd December 1988 be initiated these habeas corpus proceedings. On 23rd December 1988 he made an interim application for bail, which was refused, and the proceedings were adjourned until 30th December 1988. On 30th December 1988 he applied for his immediate and unconditional release from detention. The judge refused that application also, but reserved judgment and further adjourned the proceedings, the applicant being released by the immigration authorities in the meantime on recognizance.

HELD : On the evidence, the applicant had in fact at no time been unlawfully detained.

Per curiam : The longer a person is kept in detention "pending his removal" from Hong Kong, the heavier the burden is on the immigration authorities to justify their conduct when it is challenged. The liberty of the subject is a fundamental human right and although there must be times when, in the public interest, the state is justified in curtailing the liberty of its subjects (e.g. imprisonment for a criminal offence) its judicial authorities must be vigilant to see that such curtailment extends not a moment longer than is reasonably necessary.

1988, M.P. No. 2592

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Godfrey in Court

Dates of Hearing: 23 December 1988 & 30 December 1988

Date of Delivery of Reasons for Judgment: 17 January 1989

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J U D G M E N T

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1. This is an application by Romeo Santiago ("the Applicant") in Habeas Corpus proceedings. The Applicant has asked for his immediate and unconditional release from detention. On 30th December 1988, I refused his application, but adjourned the proceedings generally, with liberty to the Applicant to restore them on two clear days' notice to the Director of Immigration (on whose authority it is that he is detained) if so advised. I indicated on 30th December 1988 that I would take time to put my judgment into writing. This is that judgment.

2. The facts are as follows.

3. On 23rd June 1988, the Applicant arrived in Hong Kong from China. When he presented himself for immigration clearance, he tendered a Singaporean passport on which his own photograph had been substituted for the photograph of the person in whose name the passport had been issued. The deception worked. The Applicant was given permission to remain in Hong Kong for three months, until 23rd September 1988.

4. Later the same day, 23rd June 1988, the Applicant applied for an entry visa for Taiwan at Chung Hwa Travel Service, Central, Hong Kong ("CHTS"). CHTS identified the Applicant as a Filipino who had on three occasions been refused an entry visa for Taiwan, for which he had applied, on each occasion, under different names and dates of birth.

5. On 24th June 1988, CHTS informed the Immigration Department of these facts. Upon his attendance at CHTS that morning, the Applicant was escorted back to the Immigration Department for enquiries. He was detained, and lawfully detained, under Section 26(a) of the Immigration Ordinance, Chapter 115. He was found to be in possession of HK$40,000.00, and of various other foreign currencies amounting in value to some HK$10,000.00. Statements were taken from him. In these, he claimed that he was a Filipino whose name was Romeo Santiago and that his Chinese name was Ng Tin-fat. He said he was born in Manila on 10th February 1949, and lived there. He was in the industrial spare parts business, and had to travel to Taiwan frequently. But, as he had been refused a Taiwan visa on three occasions, he accepted an offer from one Lam, a Singaporean, of a Singaporean passport at the cost of US$5,000.00. In November 1987 he received such a passport from Mr. Lam. His own photograph was substituted for the original photograph on the passport. He used this passport on his arrival in Hong Kong on 29th January 1988, on his departure to China on 1st February 1988, and on his arrival in Hong Kong on 23rd June 1988 (to which I have already referred). He said that the purpose of his visit to Hong Kong was to apply for a visa for Taiwan.

6. The Immigration Department checked its records. These showed that the Applicant had used three Philippine passports, in different identities, in 1983 and 1985. (The first passport was in the name of Romeo T. Santiago, born in Manila on 10th February 1949. The second passport was in the name of Ruben G. Dizon, born in Manila on 10th February 1949. The third passport was in the name of Peter M. Lopez, born in Manila on 11th August 1952. He was intercepted on 19th April 1985 by Immigration Officers when he arrived in Hong Kong using the last mentioned passport. At that time there was insufficient evidence to institute legal proceedings against him, although it was believed that all these passports had been unlawfully obtained. He was sent back to the Philippines on 23rd April 1985. He was placed on the Immigration Watch List.)

7. On 24th June 1988, the Applicant was informed that a removal order would be made against him and was asked if he had any grounds for objection. He replied that he was aware that had no right to remain in Hong King, and that he hoped that he would be repatriated to the Philippines as soon as possible.

8. On 26th June 1988 the Applicant was detained, and lawfully detained, for further enquiries under Section 26(b) of the Immigration Ordinance.

9. On 29th June 1988, the Applicant was charged with three offences, including the use of an unlawfully obtained travel document.

10. On 30th June 1988, the Applicant was brought before a magistrate. His case was adjourned for two weeks. Meanwhile he was remanded in custody. His trial was fixed for 14th July 1988.

11. On 14th July 1988 he pleaded guilty to the offence of using an unlawfully obtained travel document, contrary to Section 42(2) (b) of the Immigration Ordinance. With the consent o f the magistrate, no evidence was offered an the other two charges. On the charge to which he had pleaded guilty, he was convicted. He was sentenced to twelve months imprisonment, suspended for two years, and to a fine of HK$5,000.00. The Singaporean passport which he had unlawfully used in order to obtain entry into Hong Kong was expressed to be forfeited by the Court (there is some doubt as to what power, if any, the Court had to effect such a forfeiture).

12. After the Applicant had been convicted and sentenced, he was detained, but not, of course, because of his sentence of imprisonment; that had been suspended. He was detained, and lawfully detained, under the authority of the Deputy Director of Immigration, under Section 32(2A)(a) of the Immigration Ordinance. This enables a person to be detained pending the decision of the Director of Immigration or Deputy Director of Immigration as to whether or not a removal order should be made under Section 19(1)(b) of the Immigration Ordinance in respect of that person.

13. On 20th July 1988, the Applicant was further detained, and lawfully detained, under the authority of the Secretary for Security under Section 32(2A)(b) of the Immigration Ordinance, pending the decision as to whether or not a removal order should be made against him.

14. On 9th August 1988, the Applicant way further detained, and lawfully detained, under the authority of the Secretary for Security, under Section 32(2A)(c) of the Immigration Ordinance. This enables a person to be detained for a further (and final) period of 21 days pending the decision of the Director of Immigration or Deputy Director of Immigration as to whether or not a removal order should be made under Section 19(1)(b) in respect of that person, where enquiries for the purpose of such decision have not been completed.

15. I pause there. By now, the Applicant had been in custody, or detention, since 24th June 1988. Enquiries into his case were taking a considerable time. I am not able, on the material before me, to come to any view as to whether this period, although long, was unreasonably long. Certainly, I have no reason to criticize the conduct of the Immigration Authorities.

16. By 25th August 1988, the Applicant had been in custody or detention for some eight weeks. On that day, a removal order in respect of the Applicant was approved by the Deputy Director of Immigration under Section 19(1)(b)(iia) of the Immigration Ordinance and the Applicant was further detained, and lawfully detained, under Section 32(3A) of the Ordinance. This provides that the person in respect of whom a removal order under Section 19(1)(b) is in force may be detained under the authority of the Director of Immigration or Deputy Director of Immigration pending his removal from Hong Kong under Section 25 of the Ordinance. On 25th August 1988, accordingly, the Applicant became such a person and was detained, and lawfully detained, under this power.

17. On 30th August 1988, a notice of the removal order was served on the Applicant and he signed a declaration of intention not to appeal against it. He remained a person liable to be detained "pending his removal" from Hong Kong. It would, however, not be lawful for him to be kept in detention further if it became apparent that there was no reasonable prospect of success of his removal from Hong Kong being effected within what, in all the circumstances the case, was a reasonable period: see my decision in the case of Liew Kar Seng in which I delivered judgment earlier today.

18. In the light of the views I express in my judgment in the case to which I have just referred, I turn to examine what has happened in the present case since 30th August 1988. But first I must recall that between 30th August 1988 and 30th December 1988 (the date of the substantive hearing of this matter before me) was a period of four months. That is a very long time for a person to be kept in detention "pending his removal" from Hong Kong; and the Applicant had in fact been kept in detention under the relevant powers conferred by the Immigration Ordinance ever since 14th July 1988. There is no room for generalizations in this field. Each case must depend upon its own facts. But the longer a person is kept in detention "pending his removal" from Hong Kong, the heavier the burden is upon the Immigration Authorities to justify their conduct when it is challenged. The liberty of the subject is a fundamental human right. There must be times when in the public interest, the state is justified in curtailing the liberty of its subjects. (Imprisonment for a criminal offence is an obvious example.) But its judicial authorities must be vigilant to see that such curtailment extends not a moment longer than is reasonably necessary. Having regard to the length of time the Applicant has been kept in detention, the facts of this particular case do require careful scrutiny.

19. It will be recalled that the Applicant entered Hong Kong on 23rd June 1988. Within 3 days, on 27th June 1988, he was escorted to the Philippine Consulate-General in Hong Kong. He was interviewed by one Alex Chua ("Mr. Chua") , the Legal Assistant and Chancellor there. He was advised by Mr. Chua to contact his wife in the Philippines, to sponsor his application for re-entry to the Department of Foreign Affairs in the Philippines, so as to co-ordinate with the vertification process being undertaken by the Immigration Department here for the purpose of vertifying the Applicant's identity. Nothing further seems to have happened until 27th July 1988, when a brief history of the Applicant was obtained, and forwarded do the Philippine Consulate-General, to assist in confirming the Applicant's identity.

20. On 28th July 1988, the Applicant was escorted to a further interview with Mr. Chua.

21. On 10th August 1988, the Immigration Department was contacted by a friend of the Applicant in Hong Kong, Mr, So King-shing. Mr. So telephoned the Immigration Department, and offered his assistance in expediting the issue of re-entry facilities for the Applicant. He was told to approach the Applicant's wife in the Philippines, to speed up her sponsorship there.

22. On 15th August 1988, Mr. So approach the Immigration Department and handed in a brand-new Philippine passport, no. G290204, bearing particulars of the Applicant. Mr. So explained that he had received the passport by post from the Applicant's wife in the Philippines. That passport had been issued in Manila on 8th August 1988, when the Applicant was still in detention in Hong Kong. In those circumstances, the Immigration Department was (understandably) doubtful about its legality.

23. On the same day, 15th August 1988, the Immigration Department telephoned Mr. Chua about the Applicant's case. Mr. Chua said that he had not yet received any reply from the Philippines.

24. On 16th August 1988, the Applicant was escorted for a further interview with Mr. Chua. The newly received Philippine passport, no. G290204, was submitted to Mr. Chua for inspection. Mr. Chua orally expressed the view that the passport might have been obtained unlawfully, and that the proper way for the Applicant to secure re-entry to the Philippines was through the sponsorship of his representative there.

25. On 30th August 1988, the applicant wrote to the Immigration Department, asking for an early release for his return to the Philippines, or to be sent to Singapore, Thailand or China, as he could not be detained for life in Hong Kong.

26. On 31st August 1988, the Applicant wrote to the Immigration Department again, asking the Department to let him return to the Philippines without taking heed of the advice of the local Philippine Consulate-General.

27. On 2nd September 1988, an officer of the Immigration Department interviewed the Applicant about his two letters. The Applicant was informed that the Immigration Department had no intention of detaining him for life, and that he and his wife should approach the proper authorities about his re-entry to the Philippines as advised by the Philippine Consulte-General.

28. On 10th September 1988, the Applicant was again interviewed by an officer of the Immigration Department to check his progress on his wife's sponsorship in the Philippines. The Applicant said that his wife was going to mail him a Philippine passport for his return to the Philippines.

29. On 16th September 1988, another brand-new Philippine passport, no. G149896, issued in Manila on 16th June 1988, was received by the Applicant through the post. It was sent to the Applicant by his wife in the Philippines. However, it bore a different name, Roy T. Santiago; and a different date of birth, 18th February 1951 (instead of Romeo T, Santiago, 10th February 1949). In these circumstances, the Immigration Department felt some doubt (in my view, a reasonable doubt) about the authenticity of this second passport.

30. On 28th September 1988, the applicant wrote to the Immigration Department again. He asked the Department to let him leave for the Philippines on the strength of either of the two Philippines passports that had been sent to him by post.

31. On 3rd October 1988, the newly arrived Philippine passport, no. G149896, was submitted to the Philippine Consulate-General for inspection. Mr. Chua expressed the view that the second passport had apparently been obtained by fraudulent means. He called for its return, for cancellation, and investigation in the Philippines. The Immigration Department returned both these passports, G290204 and G149896, to the Philippine Consulte-General. This seems to me to have been a perfectly reasonable thing to do.

32. On 28th October 1988, the Immigration Department telephoned Mr. Wu Chia-Chen, who apparently olaimed to be a cousin of the Applicant, in order to obtain such detail about the real identity of the Applicant as would allow diplomatic representations to be made about the Applicant with a reasonable chance of success. However, Mr. Wu was out and the Immigration Department left a message for him to call back.

33. From 15th October 1988 to 13th November 1988, the Immigration Department contacted Mr. Chua three times by telephone to enquire about the progress of vertification of the Applicant's status in the Philippines. Mr. Chua informed the Immigration Department that a telex had been sent to the Philippines and that he was still waiting for the reply.

34. On 14th November 1988, the Immigration Department tried to contact Mr. So, the Applicant's friend, about the sponsorship by the Applicant's wife for the Applicant's re-entry to the Philippines. On the same day, an officer of the Immigration Department went to see Mr. Chua about the progress of the vertification of the Applicant's status in the Philippines. Mr. Chua said that there was still no reply. He further said that he had received a letter, dated 31st October 1988, from the Applicant, which had stated that the Applicant was not a Philippine citizen.

35. On 15th November 1988, an officer of the Immigration Department interviewed the Applicant again, about his wife's sponsorship, and about the letter dated 31st October 1988 to which I have referred. The Applicant confirmed to the officer that a letter had indeed been sent by him to the Philippine Consulte stating that he was not a Philippine citizen but a Chinese citizen. He told the officer that he was in fact born in the Philippines, but that he anticipated that he would not be issued with a travel document for returning to the Philippines, as his family in the Philippines was unable to pay for one. He said that he was brought back to China by his Chinese mother, and that he had remained in China from 1962 to 1965. He said that he had an investment in a factory in China, and had asked Mr. So to explore the feasibility of obtaining a travel document for him to go to China, as an additional way of obtaining a travel document which would get him out of Hong Kong.

36. On 2nd December 1988, an officer of the Immigration Department contacted Mr. So by telephone. Mr. So told the officer that an application on behalf of the Applicant for a travel permit from the People's Republic of China had been sent to the Chinese Embassy in Manila to enable the applicant to go to China, and that he was awaiting the outcome of this.

37. On 5th December 1988, the Immigration Department gave internal consideration to the Applicant's case. The view was taken that the Applicant could not be released, nor allowed to enter into a recognizance under Section 36 of the Immigration Ordinance, because of his uncertain identity, adverse immigration record, formerly holding five unlawfully obtained passports, and the current likelihood of his absconding or going underground. But, at the same time, it was accepted that immediate action had to be taken to expedite his removal from Hong Kong.

38. On 7th December 1988, an officer of the Immigration Department contacted Mr. Chua by telephone. Mr. Chua told the officer that no reply from the Philippines had yet been received.

39. On 14th December 1988, an officer of the Immigration Department contacted Mr. Chua yet again. But, once more, Mr. Chua said that he was still waiting for a reply from the Philippines. Mr. Chua expressed the opinion that the delay in the reply might have been caused by some concealment, by the Applicant himself, of his real name or address in the Philippines.

40. On 16th December 1988, an officer of the Immigration Department interviewed the Applicant again. The officer was concerned to ascertain the Applicant's real name, and address in the Philippines, which he had given to the Philippine Consulate. The Applicant insisted that the information he had earlier given was true, and said that his friends and relatives in the Philippines had applied on his behalf for a travel permit for the People's Republic of China in early December 1988, and that he was waiting for that document to enable him to leave Hong Kong.

41. On the same day, 16th December 1988, an officer of the Immigration Department attempted to locate Mr. Wu to obtain deatils of the Applicant's true identity; but he was unable to do so.

42. On 21st December 1988, Mr. Wu reported to the Immigration Department. He agreed to furnish a detailed family background of the Applicant. He also said that he would contact the Applicant's wife in the Philippines to expedite the matter, while he would check, with his own father, the family background of the Applicant, and also with the China Travel Service (the latter might, he thought, be prepared to issue a home visit permit for China for the Applicant).

43. On 23rd December 1988 (this was the date on which the Applicant first appeared before me in these proceedings asking, unsuccessfully, for bail), an officer of the Immigration Department contacted the Philippine Consulate by telephone. He spoke to a Mr. Yabes. Mr. Yabes said that no reply on the Applicant's case had yet been received. Mr. Yabes promised to inform the Immigration Department of the position in writing in a week's time.

44. On the same day, 23rd December 1988, the Immigration Department sent a telex to the British Embassy in Manila, enlisting their assistance in the Philippines to expedite the Applicant's re-entry to the Philippines.

45. On 28th December 1988, the Philippine Consulate-General wrote to the Immigration Department, to say there had still been no reply from Manila regarding the true identity of the Applicant and his claim to be a citizen of the Philippines. On the same day, the Immigration Department made attempts to locate Mr. Wu, for an interview relating to the Applicant's application for entry to China, and to enquire if Mr. Wu was willing to provide accomodation to the Applicant if he were to be released on bail or recognizance. An officer of the Immigration Department visited Mr. Wu's place of employment but was informed that Mr. Wu was away in Shenzhen.

46. On 29th December 1988 (the day before the date of the substantive hearing of the matter before me), the Immigration Department conducted another internal review of the Applicant's situation. It was decided to offer to put the Applicant on recognizance. The Immigration Department took this decision principally for two reasons. First, if a person is detained only for a reasonable time for effecting removal, each new day creates a new situation. The present position was that the Applicant had been detained since 25th August 1988 under Section 32(3A) of the Immigration Ordinance, a period of four months. There remained real risks of the Applicant absconding from Hong Kong illegally, or going to ground in Hong Kong, or otherwise frustrating the proper execution of the removal order. However, that had to be balanced against the fact that a considerable period of time had now elapsed. The second reason related to the prognosis for early resolution of the matter through the proper channels. It was accepted that this was not a case where one could be hopeful of a resolution within days, even weeks. In that situation, a change from detention to recognizance was considered appropriate.

47. On those facts, I concluded, on 30th December 1988, that the Applicant had at all times been lawfully detained under Section 32(3A) of the Immigration Ordinance. I also concluded that at no time had the Immigration Authorities improperly or unreasonably exercised, or improperly or unreasonably failed to take exercise, in the Applicant's case, any of the powers conferred on them under the Immigration Ordinance. I indicated that I was not satisfied that the allegations of the Applicant made to the contrary had any justification. (I indicated also, however, that I remained concerned about the length of time that the Applicant had been kept in detention; but that concern was allayed by the offer made by the Director of Immigration, immediately before the hearing, to exercise his power under Section 36(1) of the Immigration Ordinance to release the Applicant from detention if the Applicant entered into his own recognizance in the sum of HK$5,000 to report once a week to the Immigration Authorities, and the further offer, also made by the Director of Immigration, to issue the Applicant with such proof of his identity as would satisfy the Police and Immigration Authorities of his right to be at liberty in Hong Kong. I did not and do not feel it necessary or desirable to speculate on what view of the case I might have formed if those offers had not been forthcoming.)

48. I will hear counsel now, or (if they prefer) on a date to be fixed through the usual channels, on what should be done either by way of further adjournment of these proceedings, or by way of finally disposing of them, I will also deal similarly with the costs of these proceedings.

Representation:

Mr. G.J.X. McCoy instructed by Messrs. Chan & Kong assigned by Director of Legal Aid for the Applicant.

Mr. W. R. Marshall, Deputy Crown Solicitor and Ms. Helen Chan, Crown Counsel, for the Respondent.