Tran Trong Dai v. Immigration Department

HCAL 1027/2025

[2025] HKCFI 2545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1027 OF 2025

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BETWEEN

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D E C I S I O N

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A. Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 30 April 2025 seeking his release from Castle Peak Bay Immigration Centre (“CIC”)  where he is presently being detained (“the Application”).  He has been detained since 14 January 2025 making the period of detention to date 155 days (“the Detention”).

2.On 6 May 2025, I directed the Immigration Department named as the respondent in the Application (“the Respondent”), to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application. 

3.A Response/Skeleton Submissions for the Respondent dated 30 May 2025 (“the Response”)  has been lodged.

4.By letter dated 13 June 2025 from the Department of Justice, representing the Respondent, it was stated inter alia that by a Notice of an Application for Legal Aid dated 10 June 2025 the Applicant has applied for legal aid.  Pursuant to s. 15(3)  of the Legal Aid Ordinance, Cap. 91 and regulation 7A of the Legal Aid Regulations, Cap. 91A, a 42-day stay of these proceedings has been triggered.  However, the Respondent sought to lift the stay. 

5.As directed on 16 June 2025, I lifted the stay and ordered today’s hearing to proceed as scheduled.  My reasons for doing so are similar to those as stated by Coleman J in Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602 (see §7):

(1)  Applications for a writ of habeas corpus are to be heard as soon as is practicable;

(2)  But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded allow the detained person to be removed from Hong Kong: see s.22A(11)  of High Court Ordinance, Cap.4;

(3)  Hence, the practical effect of making an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong;

(4)  There is an inherent inconsistency between: (1)  making an application which seeks immediate release from detention, and which should be heard as soon as practicable; and (2)  making another application (here, an application for legal aid which has the effect of triggering an automatic stay of 42 days)  which by its nature would prevent or delay release from detention;

(5)  There is also inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged;

(6)  In this case (see below), the Applicant is scheduled to be release from detention in 2 day’s time, on 19 June 2025, upon his repatriation;

(7)  Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – might cause him real unfairness and prejudice;

(8)  The counter risk of prejudice is in depriving the Applicant of the potential opportunity to obtain legal representation is significantly less likely to give rise to any real prejudice;

(9)  This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances;

(10)  It is not incumbent on the applicant to demonstrate unlawfulness;

(11)  The burden of showing that detention is lawful lies upon the respondent, but the Court is the primary decision maker as to the reasonableness of the detainee’s continued detention;

(12)  Either continuing detention is reasonable and so lawful, or it is not;

(13)  Further, on a habeas corpus application, the Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should not be removed from Hong Kong;

(14)  Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.

6.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  He has confirmed that he was been served the Response and a bundle of documents prepared on behalf of the Respondent.

7.This is my Decision having heard the oral submissions of the Applicant and Miss Lai, Senior Government Counsel for the Respondent.

B.  Background

B1.  Immigration status and stay in HK

8.The Applicant is a Vietnamese national born on 25 October 1985.

9.He surrendered to the Respondent on 12 May 2014 claiming to have entered Hong Kong illegally from Mainland China on 20 April 2014.  On the same day, he indicated his intention to lodge a NRC by way of written signification.

10.On 20 August 2015, the Applicant was convicted for using a copy of false instrument and prohibition of taking employment and establishing business.  He was sentenced to a total of 15 months’ imprisonment.

11.On June 2016, a removal order (“RO”)  pursuant to s. 19(1)(b)  of the Immigration Ordinance, Cap. 115 (“IO”)  was issued against the Applicant.

12.On 10 October 2017, the Applicant was convicted of possession of a dangerous drug (cannabis).  He was fined HK$700.

13.On 18 August 2023, the Applicant was convicted of 12 counts of theft, 1 count of driving without a valid driving licence and 1 count of using a motor vehicle without third party insurance.  He was sentenced to a total of 50 month’s imprisonment.

14.After serving his sentence on 14 January 2025, the Applicant was discharged from prison and detained at CIC.

15.On 14 April 2025, a deportation order (“DO”)  was issued against the Applicant under s.20(1)  of IO.

B2.  The Applicant’s NRC and related legal proceedings

16.On 6 January 2017, the Director of Immigration (“the Director”)  refused the Applicant’s NRC (“the Director’s Refusal”).

17.On 19 January 2017, the Applicant appealed against the Director’s Refusal but the appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  on 3 January 2018 (“the Board’s Decision”).

18.On 28 September 2018, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”). 

19.The JR Leave Application was dismissed by the Court of First Instance on 12 January 2023 (“the CFI Decision”).

20.On 18 March 2025 the Applicant applied for extension of time to appeal against the CFI Decision but the application was refused on 20 May 2025.

B3.  Steps towards the removal of the Applicant

21.The Applicant was interviewed by the Respondent on 17 January 2025. He expressed his unwillingness to return to Vietnam.

22.Whilst on 24 January 2025 when interviewed, he had agreed to attend the interview conducted by the Vietnamese Interview Team (“VIT”)  for re-entry seeking arrangement, he maintained his unwillingness to return to Vietnam.

23.On 13 February 2025, the Applicant was interviewed by VIT for verifying his identity. 

24.On 14 February 2025, VIT granted approval for the Applicant’s return to Vietnam.  The Applicant’s passport was then pending to be issued by the Vietnamese authorities.

25.In subsequent interviews with the Respondent on 24 February 2025 and 14 March 2025, the Applicant reiterated that he was not willing to return to Vietnam.

26.On 21 March 2025, the Applicant’s emergency travel document was issued with validity until 21 March 2026.

27.On 25 April 2025, the Respondent received a submission from the Applicant which stated inter alia that “Now I am sage (safe)  to go back to Vietnam.”  However, on 2 May 2025, he requested bail as he had made the Application.

28.When interviewed on 9 May 2025, the Applicant expressed his unwillingness to return to Vietnam.

29.A repatriation flight to Vietnam has been scheduled for the Applicant on 19 June 2025.

B4.  Reviews of Detention

30.The last review of detention conducted by the Director was on 24 April 2025.  Having considered and balancing the following factors, it was decided by the Director that the release of the Applicant on recognizance was not warranted:

(1)  The Applicant’s removal is going to be possible within a reasonable time.  The Applicant’s removal is imminent and/or immediate repatriation is being arranged for his departure;

(2)  There is no outstanding claim and legal proceedings impeding removal;

(3)  The Applicant may abscond and/or re-offend and pose a threat to or security risk to the community.  He has convictions associated with crimes of serious nature.  He failed to comply with the terms/conditions of recognizance and was re-arrested during recognizance;

(4)  The Applicant is likely to engage in unlawful employment or business if released from detention; and

(5)  There are no other circumstances in favour of release.

31.In the Applicant’s Affirmation, essentially the following submissions were made:

(1)  Removal is not going to be possible within a reasonable time because no time of removal is given by the Respondent and he has filed an application to the Court of Final Appeal for which no hearing has been fixed;

(2)  He has an opportunity to lodge a subsequent NRC;

(3)  He has a mother who is a Hong Kong permanent resident who is willing to stand as his surety/guarantor and he will reside with her at a fixed abode and can be easily located;

(4)  He will undertake to comply with any conditions and will not engage in any illegal activities if released;

(5)  The Director has not taken active steps to effect his removal including in liaising with the Consul General of Vietnam regarding issuance of a travel document; and

(6)  He suffers emotional and psychological trauma and stress which affects his physical and mental health.

32.At today’s hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He also supplemented that he has a letter written by his mother to the court as “mitigation” for his release.  He also mentioned that last Friday, he has lodged a subsequent claim.  From the documents submitted, it would appear that the Applicant has filed an application for extension of time to appeal against the CFI Decision on 13 June 2025 but it is not a subsequent NRC.

33.I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

C.  Applicable Principles

34.The applicable principles to be applied in an application for habeas corpus are well-established.  They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99 (see in particular, the summary of the principles at §164).

35.I also remind myself that the burden is on the respondent to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

36.Under s.32(4A)  of IO, the detention of a person under s.32 shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including:

(1)  Whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

37.Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention.  See at §29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviour or conduct should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably or uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

D.  Analysis

38.With the above principles in mind, I consider whether the Detention is lawful.

39.There is clear prima facie authority for the detention of the Applicant throughout the Detention.  When discharged from prison on 14 January 2025, he was detained under s.32(3A)  of IO pending removal pursuant to the RO.  On 25 March 2025, he was detained under s.29(1)  of IO pending inquiry as to whether the Applicant ought to be deported under s.20 of IO.  On 8 April 2025, the Applicant was detained under s.29(2)  of IO pending inquiry as to whether the Applicant ought to be deported under s. 20 of IO. When the DO was issued against the Applicant, from 14 April 2025 until now, the Applicant was detained under s.32(3)  of IO pending his removal from Hong Kong.

40.There is no dispute that, at all material times, the RO and DO were valid and extant. 

41.The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful.  That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The Director must intend to deport/remove the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee/removee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Director will not be able to effect deportation/removal within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

42.The starting point is that the period of detention to date is 155 days, against which the other factors must be weighed and balanced.

43.I accept that the Applicant has been detained for the purpose of removal, and that the power of detention is being used only for that purpose.  This is evident from the Director’s efforts in seeking approval for his return to Vietnam, obtaining a travel document for the Applicant and the repatriation arrangements.  Therefore HS1 is satisfied.

44.I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal contrary to the Applicant’s assertions.  This is evident from the Director’s proactive steps to verify the Applicant’s identity, seek approval for his removal, securing an emergency travel document for his return to the Vietnam and the repatriation arrangements.  HS4 is also satisfied.

45.Although the Applicant says that he has an application pending before the Court of Final Appeal, this is confirmed by Miss Lai as not being the case.  However, there is now an application pending before the Court of Appeal.  Nonetheless, this is not a legal impediment to the Applicant’s removal under the Director’s prevailing removal policy.  Miss Lai also confirmed that no subsequent NRC has been received by the Respondent.  Besides, any prolonged detention caused by the belated steps to impede removal by raising claims which he had not pursued with any reasonable diligence would not turn an otherwise reasonable period of detention into an unreasonable one.  See Johnson Benjamin, §§25, 26 and 29(3).

46.In all, it is reasonable to think that with no legal impediments to removal, a travel document having been secured and a flight scheduled for the Applicant’s return in 2 days’ time, deportation can be effected within a reasonable period if the Applicant cooperates.  Any unreasonable behaviour which prolongs detention will not be regarded as an unreasonable period of detention.

47.I also accept the Director’s assessment that with the Applicant’s history of convictions, whilst on recognizance, coupled with the Applicant’s stated unwillingness to return to Vietnam, there is a real risk of the Applicant absconding and re-offending.  This is so even taking into account his local ties.  If he were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO and the DO.   Furthermore, contrary to the Applicant’s assertion, he has been convicted of serious crimes which is reflected in the length of imprisonment for which he was sentenced.  If he were to re-offend, the potential gravity will not be a low one given the nature of the offences he had previously committed. The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention.  

48.I do not think that Applicant’s undertakings can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release.

49.In relation to the Applicant’s claimed physical and mental conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required: see e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep)  HCAL 2428/2018, 6 November 2018, per Chow J (as he then was)  at §27.

50.Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

E.  Conclusion

51.Accordingly, I dismiss the Application with no order as to costs.

The Applicant, appeared in person

Miss Liesl Lai, Senior Government Counsel of Department of Justice, for the Respondent