Sherpa Shove v. Hong Kong Sar Government

HCAL 180/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 180 OF 2012

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J U D G M E N T

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1.The applicant applies for a Writ of Habeas Corpus. He is now detained by the Director of Immigration at the Castle Peak Bay Immigration Centre (“CIC”). The application is opposed by the putative respondent.

2.The applicant says that he wants to be released from detention so that he can prepare his appeal against the refusal of legal aid for him to pursue a judicial review of the deportation order made against him by the Permanent Secretary for Security on 28 July 2005.  The question for me to decide on this application is whether the detention is pursuant to lawful authority[1].

3.The applicant was born in Hong Kong on 27 February 1981 to Nepalese parents.  He and his family returned to Nepal for settlement in 1986.  He applied on 21 June 1999 for verification of Hong Kong permanent identity card.  He came to Hong Kong as a visitor on 29 August 2000 and submitted a second application for verification of Hong Kong permanent identity card on 2 September 2000.

4.The Director of Immigration considered his application and took the view that he did not become a permanent resident of the Hong Kong SAR upon the commencement of the Immigration (Amendment) (No. 2) Ordinance 1997.  The reason being that he could not fulfil paragraph 6(1) of Schedule 1 to the Immigration Ordinance, Cap. 115.  His claim to right of abode was not established but he enjoyed the right to land by virtue of section 2AAA of the Ordinance.

5.On 1 December 2000, he was informed by a letter of the Immigration Department that his claim to a permanent residency status could not be established since he did not return to settle in Hong Kong on or before 31 December 1998 and had been absent from Hong Kong for a continuous period of 36 months or more.

6.On 15 December 2000 he was given a further letter by the Department advising him of the Director’s decision and made an appointment for him to register for a Hong Kong identity card.

7.Between 5 August 2002 and 24 November 2003, he was arrested and convicted of five offences of possession of dangerous drugs, theft and failing to surrender to custody without reasonable cause. 

8.On 20 February 2004, a deportation warning was served on him.  The notice told him that it was not then the intention to make an application for a deportation order against him, but such action would be reconsidered should he be convicted of criminal charges in court again.

9.On 4 October 2004 he was arrested for theft.  He was convicted of the charge on 28 January 2005 and sentenced to 15 months’ imprisonment.  

10.On 28 July 2005 a deportation order was issued by the Permanent Secretary for Security under section 20(1)(a) of the Immigration Ordinance.  A Principal Assistant Secretary for Security authorised his detention under section 32(3) of the Immigration Ordinance on the same day.

11.On 3 August 2005 he was discharged from prison and transferred to the then Victoria Prison for further detention under section 32(3) pending deportation.

12.He made many requests for rescission of the deportation order to the Security Bureau, the Chief Executive and the Government Secretariat.  He also applied for legal aid to challenge the deportation order which was refused by the Legal Aid Department on 4 October 2005.  His appeal against the refusal was dismissed on 30 January 2007.

13.On 2 May 2007, he made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

14.The Director arranged passage for him to leave Hong Kong on 8 May 2007, but he refused to take it.  He wished to stay in Hong Kong to apply for judicial review against the deportation order through legal aid. 

15.On 20 September 2007 he was released from detention on his own recognisance. 

16.He was arrested for burglary without break-in on 29 October 2008.  He was convicted of the charge on 14 April 2009 and sentenced to 2 years’ imprisonment.  His recognisance was revoked.

17.On 4 March 2010 he was discharged from prison and transferred to CIC for further detention under section 32(3) of the Ordinance pending execution of the deportation order. 

18.By reason of the pending CAT claim, he was not deported then, but was released again on his own recognisance on 1 June 2010. 

19.His CAT claim was rejected by the Director of Immigration on 4 March 2011.

20.He was arrested for theft on 22 May 2011.  He was convicted of the charge on 15 June 2011 and sentenced to 42 days’ imprisonment.  His recognisance was revoked for the second time.  After discharge from prison he was again detained under section 32(3) of the Ordinance.

21.On 4 July 2011 the Director advised him of intended deportation on 5 July 2011.  He refused and wanted to wait for the result of his petition against refusal of his CAT claim. 

22.He applied for legal aid for an application of judicial review of the deportation order. His application was refused by the Legal Aid Department.  His appeal against the refusal was fixed to be heard on 2 August 2012. 

23.The Bar Free Legal Service Scheme of the Hong Kong Bar Association granted him free legal assistance for the appeal.  However, the assigned counsel, Mr Tang, was not free on 2 August 2012.  The hearing of the appeal was then vacated and to be re‑fixed.

24.On 2 August 2011 he made a request to the United Nations High Commissioner for Refugees (“UNHCR”) for asylum and requested the Director to withhold the deportation order pending the process of his request. 

25.His petition against refusal of his CAT claim was rejected on 17 August 2011. 

26.He was released again on 28 June 2012 on his own recognisance pending his request to the UNHCR.

27.On 4 September 2012 he was arrested for theft.  He was convicted of the charge on 6 September 2012 and sentenced to 4 weeks’ imprisonment.  His recognisance was revoked again. 

28.On 12 September 2012 the UNHCR closed his case. 

29.On 29 September 2012 he, upon discharge from prison, was transferred to CIC and detained there under section 32(3) of the Ordinance pending deportation. 

30.On 10 October 2012, he requested the UNHCR to reopen his case.  He asked the Director to withhold his deportation pending the request.  On 11 October 2012 the UNHCR refused the request.

31.On 25 October 2012 the Director tried to execute the deportation order, but the attempt failed because he refused to board the plane and the airline did not allow him to board the plane for security reasons.

32.On 3 December 2012, the Director was advised that the hearing of the applicant’s appeal against the refusal of legal aid was re‑fixed to 29 January 2013. 

33.On 6 December 2012 the Director made a second attempt to execute the deportation order, but failed again for the same reasons.

34.On 14 December 2012, he made another application to the UNHCR to re‑open his case.  On 18 December 2012 the UNHCR refused to re‑open his case. The UNHCR further advised that the rejection of his request to re‑open his case was final and his case remained closed.

35.I am of the view that the deportation order was made by a proper authority.  The detention pending removal was properly authorised.  As matters stand, both the applicant’s CAT claim and request for asylum have been rejected.  There is only an appeal against refusal of legal aid for him to apply for judicial review of the deportation order.  But there is no application for leave to apply for judicial review.  There is, therefore, no outstanding legal proceedings that would impede the execution of the deportation order.

36.It is clear that the Director intends to execute the deportation order as soon as possible.  There is no apparent reason why this cannot be done within a reasonable time[2]. 

37.The Director is also not in favour of releasing the applicant on the grounds that:

(1) his removal is possible within a reasonable time;

(2) he may constitute a threat or security risk to the community;

(3) he may abscond and/or commit an offence again; and

(4) there are no circumstances in favour of his release.

38.Since there is no outstanding claim impeding removal, and in the light of his previous convictions of crimes of a serious or violent nature, and he was arrested while on recognisance, I do not think there is anything unreasonable in the Director’s decision.  I do not think there is any ground for the Writ of Habeas Corpus to issue.

39.I therefore dismiss the application.

The applicant appearing in person

Ms Audrey Parwani, Government Counsel, of the Department of Justice, for the putative respondent