Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Ghulam Rbani v Secretary For Justice For And On Behalf Of The Director Of Immigration

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date13 October 2011
Year2011
Judgement NumberDCCJ531/2010
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ531/2010 GHULAM RBANI v. SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF IMMIGRATION

DCCJ 531/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 531 OF 2010

____________

BETWEEN
GHULAM RBANI Plaintiff
and
SECRETARY FOR JUSTICE
for and on behalf of
THE DIRECTOR OF IMMIGRATION		 Defendant
____________

Coram: His Hon Judge Leung in court

Date of hearing: 9; 17 June 2011

Date of judgment: 13 October 2011

____________

J U D G M E N T

____________

1. This is the claim by the Plaintiff (“G”), a Pakistan national, against the Director of Immigration (“the Director”) for damages for false imprisonment and breach of his constitutional rights due to his detention in the immigration centre in Hong Kong in 2005. The Secretary for Justice is named as the defendant for and on behalf of the Director.

Background

2. G first came to Hong Kong in 1992 using a passport bearing the name of Ghulam Rubbani, born on 15 April 1971. He was allowed to stay for 3 months but he overstayed. For that, he was subsequently charged with and convicted of breach of condition of stay, fined and repatriated to the Pakistan in August 1993. He had overstayed for about 10 months.

3. G came to Hong Kong again in 1994 using another passport bearing the name of Mian Ghulam Rabani, born on 15 April 1970. He was permitted to stay for 3 months. Again he overstayed; and was convicted and fined. He was repatriated to the Pakistan in July 1995. He had overstayed for about 5 months.

4. In May 1999, G revisited Hong Kong using another passport bearing the name of Ghulam Rabbani, born in 1967. For once again overstaying and making false representation to the immigration (as regards his date of birth during his last visit), G was convicted and given a suspended imprisonment sentence before removal to Pakistan in October 1999. On this occasion, he had overstayed for about 4 months.

5. G last came to Hong Kong on 24 September 2000 when he used yet another passport, this time bearing the name of Ghulam Rbani, born in 1971. He was permitted to remain as a visitor until 15 October 2000; but he had since overstayed here. On 1 April 2005, G was arrested by the 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 stay. Together with the activated suspended sentence (mentioned above), G was sentenced to a total of 7 months’ imprisonment.

6. After serving slightly less than 5 months in prison, G was discharged from the prison on 23 August 2005. Since then, G had been placed under administrative detention by the Director in the Castle Peak Bay Immigration Centre (“the Centre”) pursuant to section 32 of the Immigration Ordinance, Cap.115 (“the IO”).

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 positively requested to return to Lahore, Pakistan as soon as possible. The reasons given were his concern about his family, his aged mother and sick son. G repeated his request and reasons by his letter to the Department and during the interview on the day of his release from prison.

8. In view of G’s request, the Director wrote to the Consulate General of the Republic of Pakistan 2 days after G’s administrative detention to seek confirmation for the issue of an emergency passport to G. In the meantime, G’s detention pursuant to section 32(2A)(a) expired; and was continued by the Secretary for Security (“the Secretary”) under section 32(2A)(b) for 21 days from 29 August 2005. G acknowledged receipt of the notification of the further detention by signing it on 31 August 2005.

9. The Director received a positive reply from the Pakistani counterpart on 2 September 2005. An emergency passport of G was issued and air ticket was procured. Application for a removal order was made on 7 September 2005; and the order was issued on 10 September 2005.

10. Unbeknown to the Director, G lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) on 5 September 2005. According to him in court, he changed his mind about repatriation upon learning that his son had recovered.

11. As G confirmed, his written statement containing the CAT claim was sent by post. This was received by the Department on 8 September; and by Removal Sub-division of the Department on 12 September 2005. The issue of the removal order apparently crossed with G’s letter.

12. Service of the removal order, though made, was then withheld and eventually withdrawn on 15 September 2005.

13. On 16 September 2005, the Secretary authorised the detention of G for a further period of 21 days pursuant to section 32(2A)(c). G was given the notification of the continued detention on 21 September 2005. But G refused to sign it.

14. Screening interview of G in respect of his CAT claim began. On 7 October 2005, G was released on recognisance. It was a month and a half since his release from prison; and about a month since he lodged the CAT claim.

A (Torture Claimant) v Director of Immigration

15. In A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752 (“the case of A”), the applicants were the subjects of removal and deportation orders under sections 19 or 20 of the IO. They applied for judicial review challenging the legality of their continued detention by the Director under section 32 of the IO since the lodging of their respective claims under the CAT. Their applications were dismissed; and they appealed.

16. The relevant provisions of section 32 of the IO read as follows:

“Detention pending removal or deportation

……

(2A) A person may be detained pending the decision of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration as to whether or not a removal order should be made under section 19(1)(b) in respect of that person –

(a) for not more than 7 days under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration;

(b) for not more than a further 21 days under the authority of the Secretary for Security; and

(c) where inquiries for the purpose of such decision have not been completed, 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).

(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 pending his removal from Hong Kong under section 25.

(3A) A 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, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

17. The Court of Appeal, among other things, had the following conclusion:

(1) Under domestic law, the power to detain pending removal under section 32 is in principle exercisable so long as the Secretary is intent upon removing the subject at the earliest possible moment, and it is not apparent that removal within a reasonable time would be impossible. This reflects the application of the principles in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 (approved and applied in Tan Le Lam & Ors v Superintendent Tai A Chau Detention Centre [1997] AC 97; Thang Thieu Quyen & Ors v Director of Immigration & Anor (1997-98) 1 HKCFAR 167; R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207).

(2) However Art.5(1) of the Hong Kong Bill of Rights (“HKBOR”) requires that detention must not be arbitrary and the grounds and procedures must be certain and accessible. In the absence of a published policy as to the circumstances under which the power to detain would be exercised, the power of detention under section 32 were contrary to Art.5(1) of the HKBOR and hence unlawful.

18. The Court of Appeal granted the declarations that the detention of each of the applicants in the case of A was illegal for breach of Art.5(1) of the HKBOR: see further judgment dated 18 July 2008. The case reverted to the Court of First Instance where each of the applicants was awarded damages: see A (Torture Claimant) v Director of Immigration [2009] 3 HKLRD 44 (“the case of A (damages)”).

The dispute

19. As pleaded, based on the judgment in the case of A, G now claims that his detention after release from prison until his release on recognizance was unlawful as there was at the time no certain and accessible policy on how the discretion to detain under section 32 of the IO would be exercised. For alleged false imprisonment, G claims basic damages, aggravated damages and exemplary damages.

20. G also claims that the detention was in violation of his constitutional rights guaranteed under Art.9(1) of the International Covenant on Civil and Political Rights (“ICCPR”), Arts.28 and 39 of the Basic Law, and/or Art.5(1) of the Hong Kong Bill of Rights Ordinance, Cap.383 (“HKBORO”). He claims constitutional damages pursuant to Art.35 of the Basic Law and section 6(1) of the HKBORO.

21. The Director’s primary contention is that because of section 11 of the HKBORO, Art.9 of the ICCPR or Art.5 of the HKBOR does not affect the application of section 32 of the IO to G. The secondary contention is that in any event, the judgment in the case of A has no application to the application of section 32 to the detention of G in the present case. Therefore the detention of G was not unlawful.

22. In the premises, the Director says that G’s claim should be dismissed. However, in the event that this court finds that the detention of G in the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT