Deportation order – Judicial review – Liability of applicant being charged with criminal offence upon return – Double jeopardy in practical terms – Prohibition of torture – Whether administrative detention pending deportation wrongful – Extension of time to apply for judicial review

UBAMAKA v SECRETARY FOR SECURITY [2009] 3 HKC 461

Court of First Instance
Constitutional and Administrative Law Case No 77 of 2008
Reyes J
5 May 2009

Hectar Pun (Tso Au Yim & Yeung) for the applicant.
Nicholas Cooney (Department of Justice) for the respondents.

The applicant, a Nigerian national, was arrested upon arrival at Hong Kong airport in 1991 and consequently convicted of drug trafficking and sentenced to 24 years’ imprisonment. Despite his repeated requests prior to July 1997, the applicant was not removed to Nigeria because there was no agreement to transfer prisoners from Hong Kong to Nigeria. A deportation order was issued on 5 July 1999. After he realised that he might be imprisoned for a further five years under s 22 of the Nigerian National Drug Law Enforcement Agency Act, he ceased to pursue repatriation to Nigeria. Instead, he applied to the UNHCR for refugee status, but was refused. He also made a claim with the Director of Immigration (the Director) under the United Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that he risked further imprisonment and torture if returned to Nigeria. The applicant was released from prison for good behaviour in 2007, and immediately placed under administrative detention by the Director pending deportation. He applied repeatedly for release on his own recognisance, and brought an application for judicial review when this was refused. The judicial review sought to quash the Deportation Order and Declaration that his administrative detention by the Director between December 2007 and August 2008 pending deportation was wrongful. The CAT application was refused, but he was released on recognisance once leave to apply for judicial review was granted.

The judicial review raised three main issues. First, whether the long interval between the making of the Deportation Order and the start of the judicial review would prove fatal to the applicant’s application. Second, as the applicant had already served a prison sentence in Hong Kong for drug trafficking and there was a risk of double jeopardy if he was to be deported to Nigeria, whether the Deportation Order would amount to a breach of his fundamental human rights. Third, whether the administrative detention by the Director pending deportation and initial refusal on recognisance was unlawful.

Held, allowing the application:
The delay in making the application for judicial review of the deportation order was not fatal to the application. The appropriate period of delay to be considered was not the delay between the making of the deportation order in 1999 and the notice of application for judicial review in 2008, but between the making of the deportation order and the application to the UNHCR in 2006. This delay would ordinarily mean that the application would be out of time, but the alleged grave consequences of the removal mandated that the application be considered on its merits. The removal to Nigeria would allegedly infringe on his liberty and dignity in part by requiring him to serve another five years’ imprisonment for the same crime for which he had already served 16 years in Hong Kong. In such circumstances, it would be unjust not to exercise discretion and extend the time to apply for judicial review.

The deportation order was quashed because the applicant risked being jailed in Nigeria for at least five more years for the same acts for which he was imprisoned in Hong Kong, which would give rise to double jeopardy and violate his fundamental human rights. Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR) referred to double jeopardy using the words ‘for the same offence’, which was distinct from the phrase for ‘the same acts’ in Art 54 of the Convention Implementing the Schengen Agreement (CISA). If Art 14(7) of the ICCPR was phrased in the same way as Art 54 of the CISA, it would be clear that there was a situation of double jeopardy. However, any distinction between the two was artificial, in part because the wording in the ICCPR may possibly be more ambiguous than that in the CISA. Where basic human rights were at stake, the application of a covenant should depend on a generous construction of its text in light of its objectives. Fundamental rights should not depend on semantics. Section 36(9) of the Nigerian Constitution was not clear on which interpretation of double jeopardy it adopted. Therefore, a practical risk of double jeopardy arose.

The deportation order could not be quashed on the basis of the common law. The prohibition against double jeopardy under Art 11(6) of the Hong Kong Bill of Rights Ordinance (BORO) or Art 14(7) of the ICCPR did not apply to persons without the right to enter or remain in Hong Kong. The deportation order could be struck down on the basis of the prohibitions against torture in art 3 of the BORO, art 7 of the ICCPR, and art 16(1) of the CAT. In applying these provisions, regard should be had to the circumstances of the situation. In this case, the applicant had ‘paid’ his dues to society through his long sentence and showed evidence of a change in character. To deport him would amount to an inhuman treatment of a severity proscribed by the BORO, ICCPR and CAT. Even though it did not directly mandate a violation of the prohibition against double jeopardy, in all the circumstances the deportation would lead to such a situation, and so it should be quashed.

The detention of the applicant between his release from prison in December 2007 and his release on recognisance in August 2008 was unlawful. Although his offence was serious, it was committed 16 years ago, and he was a reformed man who exhibited no evidence that he was a threat to law and order. There was no evidence of a real risk of the applicant absconding as he had applied to remain in Hong Kong and not be deported. Absconding would end his chances of doing so. The delays in processing his deportation meant it was unlikely he would now be deported in a reasonable amount of time. Although the applicant had been released, the question of whether the detention was lawful is not academic because a finding of unlawfulness could give rise to a civil claim for false imprisonment by the applicant.