IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 80 OF 2012
Before : Hon Au J in Court
Dates of Hearing : 29 June and 11 July 2012
Date of Judgment : 11 July 2012
Date of Reasons for Judgment : 13 July 2012
REASONS FOR JUDGMENT
1. This is the applicant’s application for a writ of habeas corpus.
2. The applicant is a Pakistani and has been detained by the Immigration Department (“the Department”) at Castle Peak Bay ImmigrationCentre (“the Centre”) since March 2012.
3. He made an ex parte application on 28 June 2012 for a writ of habeas corpus, which was supported by a short affirmation. In the application, he asked the court to grant him “bail”.
4. The court arranged a first hearing of the application on 29 June 2012 and also directed the Director of Immigration (“the Director”),as the putative respondent, to attend.
5. At the end of the first hearing, the court further directed the parties to file evidence in relation to the application and adjournedthe application to 11 July 2012.
6. The Director has since filed two affirmations in opposition to the application. The applicant has not filed any reply evidence. Ms Choi for the Director also filed her skeleton submissions on 10 July 2012 as directed.
7. The court was told at the substantive hearing on 11 July that an interpreter arranged by the Department had orally interpreted theseaffirmations and the skeleton to the applicant. The applicant confirmed that these had been orally interpreted to him, althoughhe said he wanted to have written interpretation. However, it is not his position that he could not understand what has been saidin the affirmations and the skeleton.
8. After hearing submissions by the Director and the applicant, I dismissed the application with reasons to follow.
9. These are my reasons.
B. THE FACTS
10. With the unchallenged evidence from the applicant and the Director before me, the relevant background facts are as follows.
11. The applicant entered into Hong Kong on 8 December 2009 and was arrested for the offence of “illegal remaining” upon his arrival.
12. On 11 December 2009, he was refused permission to land in Hong Kong and had been detained under s 26(a) and s 32(1)(a) of the Immigration Ordinance, Cap 115 (“the IO”).
13. He made a claim (“the torture claim”) under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment on 11 December 2010. He was later released on recognizance on 5 February 2010.
14. The Director refused the torture claim on 26 April 2010. A removal order (“the removal order”) was thus in the meantime issuedagainst the applicant and was served on him on 21 July 2010. There was no appeal against the removal order.
15. The applicant’s petition (issued on 2 July 2010) against the said refusal of the torture claim was also dismissed by an adjudicatoron 25 August 2010 after an oral hearing. There are no more pending legal challenges against the dismissal of the torture claim.
16. Air ticket for the repatriation of the applicant was confirmed and the removal of the applicant was scheduled on 28 September 2010.
17. However, after the service of the removal order, the applicant refused to attend the Centre for interviews. In particular, on 21September 2010, the applicant was informed of his scheduled removal on 28 September 2010 and was asked to report to the Centre on27 September 2010. He did not show up.
18. The applicant then went underground until he was arrested by the Police on 7 March 2011 for the offences of (a) “using an identitycard relating to another person”, and (b) “taking employment while being a person in respect of whom a removal order is in force”. He was convicted of these offences on 23 March 2011 and sentenced to 18 months’ imprisonment.
19. While serving his term of imprisonment, the applicant applied for asylum with the local office of the United Nation High Commissionerfor Refugees (“UNHCR”). The Director was informed of this UNHCR application on 6 July 2011.
20. The applicant was discharged from imprisonment on 7 March 2012. Since then he has been detained by the Director at the Centre underss 29(1) and 32(3) of the IO, pending initially a decision on whether a deportation order will be made against him and, after a deportationorder has been issued, pending deportation.
21. The applicant now asks this court to issue a writ of habeas corpus to release him from detention.
C. THE PRESENT APPLICATION FOR A WRIT OF HABEAS CORPUS
C1. The issue
22. As said by Cheung J in the often cited case of Re Ogunade (HCAL20/2005, 8 February 2005) at para 13, a habeas corpus application is an extraordinary remedy. The fundamental question that should be determined by the court in considering whether toissue a writ of habeas corpus is whether it can be shown that the detention is unlawful. See Fidelis AQhuwaraezeama Emem v Superintendent of Victoria Prison  2 HKLRD 488 at 453C-D and 455A-B where Stock J (as he then was) said:
23. After hearing the applicant at the hearing and reading his supporting affirmation, the grounds relied on by him in support of thisapplication can be summarised as follows:
24. In my view, none of the above grounds has merits. I will explain why.
25. The applicant has been detained since 7 March 2012 under ss 29(1) and 32(3) of the IO.
26. S 29(1) of the IO provides that:
27. S 32(3) provides that:
28. Moreover, s 20(1) of the IO provides that:
29. A deportation order was issued against the applicant under s 20(1) of the IO on 14 March on the basis that the applicant:
30. There is no dispute that the offences that the applicant was convicted of are ones that are punishable with no less than two yearsof imprisonment. The deportation thus is one which can be issued under s 20(1) of the IO. In any event, there is also no challengethat the deportation order is not valid or unlawful.
31. In the premises, the applicant’s detention since 7 March 2012 is made under lawful authority: the applicant was first detainedbetween 7 and 14 March 2012 under s 29(1) of the IO pending a deportation order decision, and thereafter under s 32(3) pending hisdeportation.
32. However, the applicant’s first ground as mentioned at paragraph 23 above further raises the subsidiary issue as to whether thedetention has been unreasonably long which renders it unlawful.
33. The legal principles governing whether a detention is unlawful as it has been made for an unreasonably long period are well established,and can be summarised as follows.
34. The statutory power of detention is generally one which is impliedly limited to a period which is reasonably necessary for thatpurpose: R v Governor of Durham Prison, ex p Hardial Singh  1 WLR 704 at 706D-F.
35. The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation meansno more than “until” deportation, and so long as the Director is intent upon removing a person at the earliest possible momentand the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossiblefor him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exerciseof his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at para 12; A (Torture Claimant), supra, at para 31.
36. What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paras 16-17.
37. Applying these principles, it is clear to me that the period of the applicant’s detention so far is reasonable viewed in the circumstancesof the present case:
38. Further, Ms Choi also submitted at the hearing that the handling officer of the Department was on the day before the hearing informedover the phone by UNHCR staff that the applicant’s UNHCR application had been refused and the case was closed. There are thereforeno more impediments in deporting the applicant. She further said upon instructions that the UNHCR would confirm with the Directorin writing that the applicant’s case is closed.
39. In relation to this, the applicant disagreed at the hearing and said that he had an interview with the UNHCR scheduled to take placeon 6 August 2012 in relation to his UNHCR application. He then produced a small piece of paper which was written with the referencenumber of his UNHCR application and stated to the effect that an interview was to be held on 6 August 2012. It must however be notedthat this paper does not bear the letterhead of UNHCR nor is it signed or chopped with a UNHCR seal.
40. In light of this piece of paper, during a short adjournment of the hearing, the officer of the Department attending the hearingthen made a telephone enquiry with the UNHCR office on this. He then informed the Court through Ms Choi that the UNHCR staff toldhim that there was no information of such scheduled interview.
41. On the face of the verbal information alone, the court could not resolve the questions of whether the UNHCR application has beenclosed and whether there is in fact an interview in relation to this application scheduled to take place on 6 August 2012.
42. However, in light of these disputes, the Director through Ms Choi has made the following undertakings to court:
43. In light of these undertakings, I can see no merits in the applicant’s above grounds in support of this application. I am satisfiedthat the detention is and has been lawful and is of a reasonable period necessary for pending the removal of the applicant underthe deportation order.
44. Finally, the applicant’s grounds that it is unbearable for him to remain under detention and that he has a relative in Hong Kongto stand as surety do not in any way show that his detention is or has become unlawful.
45. For these reasons, the applicant’s application for a writ of habeas corpus has no merits and must be dismissed.
46. I also make an order that there should be no order as to costs.
47. Lastly, I thank Ms Choi for her helpful submissions.
The applicant, appearing in person
Ms Bethany Choi, Senior Government Counsel of the Department of Justice, for the respondent