由此 - 1 - A A DCCJ 531/2010 B B C IN THE DISTRICT COURT OF THE C HONG KONG SPECIAL ADMINISTRATIVE REGION D D CIVIL ACTION NO. 531 OF 2010 E E ____________ F F BETWEEN G G GHULAM RBANI Plaintiff H and H SECRETARY FOR JUSTICE for and on behalf of I THE DIRECTOR OF IMMIGRATION Defendant I J J K ____________ K L L M Coram: His Hon Judge Leung in court M Date of hearing: 9; 17 June 2011 N N Date of judgment: 13 October 2011 O O P P J U D G M E N T Q Q R 1. This is the claim by the Plaintiff (“G”), a Pakistan national, against R the Director of Immigration (“the Director ”) for damages for false S S imprisonment and breach of his constitutional rights due to his detention in T T the immigration centre in Hong Kong in 2005. The Secretary for Justice is U named as the defendant for and on behalf of the Director. U V V 由此 - 2 - A A Background B B C 2. G first came to Hong Kong in 1992 using a passport bearing the C name of Ghulam Rubbani, born on 15 April 1971. He was allowed to stay D D for 3 months but he overstayed. For that, he was subsequently charged E E with and convicted of breach of condition of stay, fined and repatriated to F the Pakistan in August 1993. He had overstayed for about 10 months. F G G 3. G came to Hong Kong again in 1994 using another passport H bearing the name of Mian Ghulam Rabani, born on 15 April 1970. He was H permitted to stay for 3 months. Again he overstayed; and was convicted I I and fined. He was repatriated to the Pakistan in July 1995. He had J J overstayed for about 5 months. K K 4. In May 1999, G revisited Hong Kong using another passport L bearing the name of Ghulam Rabbani, born in 1967. For once again L overstaying and making false representation to the immigration (as regards M M his date of birth during his last visit), G was convicted and given a N N suspended imprisonment sentence before removal to Pakistan in October O 1999. On this occasion, he had overstayed for about 4 months. O P P 5. G last came to Hong Kong on 24 September 2000 when he used yet Q another passport, this time bearing the name of Ghulam Rbani, born in Q 1971. He was permitted to remain as a visitor until 15 October 2000; but R R he had since overstayed here. On 1 April 2005, G was arrested by the S S police for gambling in a place not being a gambling establishment. He was so charged with the offence together with that of breach of condition of T T stay. Together with the activated suspended sentence (mentioned above), U U G was sentenced to a total of 7 months’ imprisonment. V V 由此 - 3 - A A B 6. After serving slightly less than 5 months in prison, G was B discharged from the prison on 23 August 2005. Since then, G had been C C placed under administrative detention by the Director in the Castle Peak D D Bay Immigration Centre (“the Centre ”) pursuant to section 32 of the E Immigration Ordinance, Cap.115 (“ the IO ”). E F F 7. During the interviews prior to his release from prison in August 2005, not only did G raise no objection to his deportation, but he also G G positively requested to return to Lahore, Pakistan as soon as possible. The H H reasons given were his concern about his family, his aged mother and sick I son. G repeated his request and reasons by his letter to the Department and I during the interview on the day of his release from prison. J J 8. In view of G’s request, the Director wrote to the Consulate General K K of the Republic of Pakistan 2 days after G’s administrative detention to L L seek confirmation for the issue of an emergency passport to G. In the M meantime, G’s detention pursuant to section 32(2A)(a) expired; and was M continued by the Secretary for Security (“ the Secretary ”) under section N N 32(2A)(b) for 21 days from 29 August 2005. G acknowledged receipt of O O the notification of the further detention by signing it on 31 August 2005. P P 9. The Director received a positive reply from the Pakistani Q counterpart on 2 September 2005. An emergency passport of G was issued Q and air ticket was procured. Application for a removal order was made on R R 7 September 2005; and the order was issued on 10 September 2005. S S 10. Unbeknown to the Director, G lodged a claim under the T T Convention Against Torture and Other Cruel, Inhuman or Degrading U Treatment or Punishment (“CAT ”) on 5 September 2005. According to U V V 由此 - 4 - A A him in court, he changed his mind about repatriation upon learning that his B B son had recovered. C C 11. As G confirmed, his written statement containing the CAT claim D D was sent by post. This was received by the Department on 8 September; E and by Removal Sub-division of the Department on 12 September 2005. E The issue of the removal order apparently crossed with G’s letter. F F 12. Service of the removal order, though made, was then withheld and G G eventually withdrawn on 15 September 2005. H H 13. On 16 September 2005, the Secretary authorised the detention of G I I for a further period of 21 days pursuant to section 32(2A)(c). G was given J J the notification of the continued detention on 21 September 2005. But G refused to sign it. K K L 14. Screening interview of G in respect of his CAT claim began. On 7 L October 2005, G was released on recognisance. It was a month and a half M M since his release from prison; and about a month since he lodged the CAT N N claim. O O A (Torture Claimant) v Director of Immigration P P 15. In A (Torture Claimant) v Director of Immigration [2008] 4 Q Q HKLRD 752 (“the case of A”), the applicants were the subjects of removal R and deportation orders under sections 19 or 20 of the IO. They applied for R judicial review challenging the legality of their continued detention by the S S Director under section 32 of the IO since the lodging of their respective T T claims under the CAT. Their applications were dismissed; and they appealed. U U V V 由此 - 5 - A A 16. The relevant provisions of section 32 of the IO read as follows: B B “Detention pending removal or deportation …… C C (2A) A person may be detained pending the decision of the Director of Immigration, the Deputy Director of Immigration or any assistant director of D immigration as to whether or not a removal order should be made under D section 19(1)(b) in respect of that person – (a) for not more than 7 days under the authority of the Director of Immigration, E E the Deputy Director of Immigration or any assistant director of immigration; F (b) for not more than a further 21 days under the authority of the Secretary for F Security; and (c) where inquiries for the purpose of such decision have not been completed, G G for a further period of 21 days under the authority of the Secretary for Security, in addition to the periods provided under paragraphs (a) and (b). H H (3) A person in respect of whom removal order under section 19(1)(b) is in force may be detained under the authority of the Secretary for Security I I pending his removal from Hong Kong under section 25. J (3A) A person in respect of whom a removal order under section 19(1)(b) J is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration K K pending his removal from Hong Kong under section 25. ” L L 17. The Court of Appeal, among other things, had the following M M conclusion: N (1) Under domestic law, the power to detain pending removal N under section 32 is in principle exercisable so long as the Secretary O O is intent upon removing the subject at the earliest possible moment, P and it is not apparent that removal within a reasonable time would P be impossible. This reflects the application of the principles in R v Q Q Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR R R 704 (approved and applied in Tan Le Lam & Ors v Superintendent S Tai A Chau Detention Centre [1997] AC 97; Thang Thieu Quyen & S Ors v Director of Immigration & Anor (1997-98) 1 HKCFAR 167; T T R (Khadir) v Secretary of State for the Home Department [2006] 1 U AC 207). U V V 由此 - 6 - A A (2) However Art.5(1) of the Hong Kong Bill of Rights B B (“HKBOR ”) requires that detention must not be arbitrary and the C grounds and procedures must be certain and accessible. In the C absence of a published policy as to the circumstances under which D D the power to detain would be exercised, the power of detention E E under section 32 were contrary to Art.5(1) of the HKBOR and F hence unlawful.