Ha Chan Duong v. Immigration Department and Another

HCAL 1146/2025

[2025] HKCFI 2796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1146 OF 2025

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DECISION

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A.  Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 19 May 2025 seeking his release from Castle Peak Bay Immigration Centre (“CIC”) where he is presently being detained (“the Application”).  He has been detained since 16 January 2025 making the period of detention to date 166 days (“the Detention”).

2.On 21 May 2025, I had directed the Director of Immigration (“the Director”) 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.An Initial Response for the Respondent dated 24 June 2025 (“the Response”) has been lodged.  In the Response, it is stated that although only the Director is named as the Respondent, the power to authorize the Applicant’s current detention under s.32(3) of the Immigration Ordinance, Cap. 115 (“IO”) is conferred on the Secretary for Security (“the Secretary”) and the Response is therefore filed on behalf of both the Director and the Secretary (collectively, “the Respondents”).

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

5.This is my Decision having heard the oral submissions of the Applicant and Miss Cheung, Senior Government Counsel, for the Respondents.

B.  Background

B1.  Immigration status and stay in HK

6.The Applicant is a Vietnamese national born on 25 July 1982.

7.On 15 May 2014, the Applicant was arrested by the Police for illegal remaining.  He claimed to have entered Hong Kong illegally on 12 May 2014.

8.On 16 May 2014, the Police referred the Applicant to the Immigration Department (“ImmD”). 

9.On 27 June 2014, a removal order (“RO”) pursuant to s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant. 

10.The Applicant was released on recognizance on 28 July 2014.

11.Whilst on recognizance:

(1)  On 7 May 2015, the Applicant was convicted of “using a forged identity card” and “using a false instrument” and was sentenced to a total of 15 months’ imprisonment;

(2)  On 3 August 2020, the Applicant was convicted of “theft (shoplifting)” and was sentenced to a fine of $700;

(3)  On 4 October 2021, the Applicant was convicted of two counts of “theft”, and one count of: “taking conveyance without authority”; “using a motor vehicle on a road against third party risks”; “driving unlicensed vehicle” and “driving without a licence”.  He was sentenced to 12 months’ imprisonment and disqualified from driving for 18 months; and

(4)  On 18 August 2023, he was convicted of 3 counts of “theft”, 3 counts of “burglary”, 1 count of: “dangerous driving”; “using a motor vehicle on a road against third party risks”; “handling stolen goods”; “forgery of documents”, “driving an unlicensed vehicle” and “driving without a license” and was sentenced to a total of 48 months’ imprisonment and disqualified from driving for 4 years.

12.Whilst on recognizance, the Applicant also failed to report recognizance on 12 September 2019, and was re-arrested by the Police on 17 October 2020.   He was released on recognizance on 8 December 2020.

13.Upon discharge from prison on 16 January 2025, after serving his sentence for the convictions mentioned in paragraph 11(4) above, the Applicant was detained under s.32(3A) of IO at CIC.

14.On 17 June 2025, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of IO.

B2.  The Applicant’s Non-refoulement Claim (“NRC”) and related legal proceedings

15.On 19 May 2014, the Applicant first lodged a NRC which was rejected by the Director on 30 April 2018 (“the Director’s Refusal”).

16.On 14 May 2018, 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 22 May 2020 (“the Board’s Decision”).

17.On 27 November 2020, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”). 

18.By letter dated 13 February 2025, the Department of Justice (“DOJ”) on behalf of the Director wrote to the Registrar of the High Court seeking the court’s assistance to accord priority to the JR Leave Application on the grounds that the Applicant is currently detained pending removal from Hong Kong.

19.By letter dated 2 June 2025, DOJ again sought the High Court’s assistance to accord priority to the JR Leave Application and to update that the Applicant has filed the Application to be heard on 30 June 2025.

20.On 17 June 2025, the JR Leave Application was fixed for hearing on 4 July 2025.

B3.  Steps towards the removal of the Applicant

21.During the Detention, ImmD interviewed the Applicant on 24 January 2025, but he expressed his unwillingness to return to Vietnam.  However, he agreed to attend interview with the Vietnamese Interview Team (“VIT”) for re-entry seeking.

22.When interviewed on 4 February 2025, the Applicant expressed his strong unwillingness to return to Vietnam.

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

24.On 14 February 2025, VIT granted the Applicant approval to return to Vietnam.

25.On 14 March 2025, a travel permit, valid until 14 March 2026 was issued by the Vietnamese Consulate General (“CG”). 

26.The Applicant continued to express unwillingness to return to Vietnam when interviewed by telephone on 14 March 2025, 1 April 2025, 3 April 2025.

B4.  Reviews of Detention

27.The last review of detention conducted by the Secretary was on 17 June 2025.  Having considered and balancing the following factors, it was decided 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 as there is no sufficient reason to believe that his outstanding legal proceedings could not be completed within a reasonable period of time;

(2)  The Applicant poses, or is likely to pose, a threat or security risk to the community given his previous convictions of serious or violent nature;

(3)  The Applicant may abscond, as he has a record of failing to report;

(4)  The Applicant may re-offend as he has a series of previous convictions and re-committed the same offences; and

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

C.  The Applicant’s Submissions

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

(1)  There has yet to be a hearing or decision for the JR Leave Application, if dismissed he may still appeal, and he has also the opportunity to lodge a subsequent claim;

(2)  He has never been associated with crime of a serious nature and will give an undertaking not to engage in illegal activities and hence he will not pose a security risk or threat to the community if released;

(3)  His fiancée is a Hong Kong permanent resident and they have two young children, one of whom has intellectual disabilities and as his fiancée is facing serious health issues, he wish to help take care of the family;

(4)  His fiancée is willing to stand as his surety/guarantor and he will live with her at a fixed place of abode so that he can be easily located;

(5)  He is willing to report recognizance and comply with conditions imposed if released;

(6)  The Director has not taken active steps for his removal;

(7)  He was not being detained for the purpose of deportation; and

(8)  He is going through emotional and psychological trauma of being detained unlawfully which has affect his physical and mental health.

29.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He mentioned that his fiancée was in court today and can provide any necessary documents if required.

30.I will take into account the Applicant’s submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.  Applicable Principles

31.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).

32.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.

33.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.

34.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.”

E.  Analysis

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

36.There is clear prima facie authority for the detention of the Applicant throughout the Detention.  From 16 January 2025 to 28 May 2025, the Applicant was detained under s.32(3A) of IO pending his removal from Hong Kong.  From 29 May 2025 to 11 June 2025 and from 12 June 2025 to 16 June 2025, the Applicant was detained under s.29(1) and s.29(2) of IO respectively for inquiry as to whether a DO should be made against him.  From 17 June 2025 to present, the Applicant was detained under s.32(3) of IO pending his removal from Hong Kong.  There is no dispute that the RO and DO are valid and extant.

37.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 Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee 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 Secretary/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 Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

38.The starting point is that the period of detention to date is 166 days against which the other factors must be weighed and balanced.

39.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 permit for the Applicant’s return and seeking the Applicant’s cooperation to return to Vietnam.  Therefore HS1 is satisfied.

40.I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the Director’s pro-active steps to verify the Applicant’s identity, seek approval for his removal, securing a travel permit for his return to the Vietnam and writing to the High Court to accord priority to the JR Leave Application.  HS4 is also satisfied.

41.Although the JR Leave Application is not yet determined, with the hearing date fixed 4 days after today’s hearing, it is reasonable to think that with no legal impediment to the Applicant’s removal under the prevailing policy of the Government if the JR Leave Applicant is dismissed, and with a travel permit secured, deportation can be effected within a reasonable period if the Applicant cooperates.  Whilst the Applicant suggests that he may further appeal, this will not constitute a legal impediment to removal.  Furthermore, any unreasonable behaviour, including not pursuing any claims with reasonable diligence which further prolongs detention will not be regarded as an unreasonable period of detention.

42.I also accept the Director’s assessment that with the Applicant’s previous convictions of serious nature (contrary to the Applicant’s submissions) as evident from the lengthy sentence imposed and going underground for a long period of time, whilst on recognizance, coupled with the Applicant’s stated unwillingness to return to Vietnam (and even taking into account his claimed local ties of having a girlfriend and two children who are Hong Kong permanent residents), there is a real risk of the Applicant absconding and/or re-offending.  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 DO.  The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention.

43.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.  

44.I do not believe that the Applicant’s other submissions can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release on recognizance.

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

F.  Conclusion

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