Wanted Korean national granted habeas corpus in Hong Kong

A wanted person in Korea, both by the Korean court and Interpol, was granted a petition for writ of habeas corpus on Wednesday at the High Court.

The 42-year-old Korean national Ko Kang Suk arrived in Hong Kong in August 2018 on his Korean passport but did not leave the city, though his permission to remain as a visitor expired on November 26 of the same year.

In June 2019, he was convicted of breaching a condition of stay and sentenced to 12 days’ imprisonment, suspended for two years.

The Korean was later issued a notice requiring him to leave Hong Kong on or before June 20, 2019, but he did not depart. 

Ko was later located after more than a year when the police arrested him in August 2020 for conspiracy to cheat and defraud. He was sentenced to 23 months and three weeks’ imprisonment. During his detention, the Removal Order and then Deportation Order were made.

A month later, the Consulate General of the Republic of Korea informed the Hong Kong Immigration Department (ImmD) that Ko is wanted by Korean police and subject to a warrant of arrest issued by the Korean court and an Interpol Red Notice. It also requested that Ko be deported back to Korea.

However, Ko raised a Non-refoulement Claim in September 2020. The ImmD rejected his application on January 19, 2021, and the appeal was also dismissed in April last year. He then proceeded with the judicial review and asked for his removal to be withheld.

He also applied for habeas corpus for the second time, after his first application was dismissed on September 27, 2023. 

Deputy Judge of the Court of First Instance of the High Court Phoebe Man Ho-yee said Wednesday that Ko has been detained for a total of 302 days since his first habeas corpus application was dismissed.

She added that the Director of Immigration and Secretary for Security bear the burden to demonstrate that the period of detention is reasonable and that Ko can be removed in a reasonably foreseeable future. 

Man said it is almost certain that the Non-refoulement Claim would be remitted to the Torture Claims Appeal Board for determination, and it could take at least another six months before a determination will be given by the Court of First Instance on an application for leave to commence judicial review, before Ko could be removed under the current policy, as assuming his application is unsuccessful.

“This would bring his detention to a total of nearly 1.5 years,” Man said. “only a limited part of this period can be attributed to the Applicant’s (Ko) deliberate delaying tactic and should be discounted.”

Man said it is no doubt that the risk of abscondence and risk of re-offense are critical factors to be taken into account in this case. “However, I am of the view that those alone are insufficient in the present circumstances to justify further detention of at least 6 more months, especially in light of the 302 days that the Applicant (Ko) had already been detained.”

Man then ruled to allow Ko’s application for writ of habeas corpus and direct that Ko be released on recognizance, on terms satisfactory to the Director of Immigration.