Caroline Waithera Wanjiku v. Hong Kong Sar Government

HCAL 1183/2026

[2026] HKCFI 5073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1183 OF 2026

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BETWEEN

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D E C I S I O N

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1.I have before me an application for writ of habeas corpus filed by the Applicant on 26 June 2026 seeking her release from Nei Kwu Correctional Institution (“the Application”).  From the Applicant’s Affirmation and documents filed in support of the Application, it appears that the Applicant was detained from 10 February 2026 under s.32(3A) of the Immigration Ordinance, Cap 115 (“IO”) pending her removal from Hong Kong.  She requested release “on recognizance arrangement with the Immigration Department”.

2.On 2 July 2026, I directed the Director of Immigration inter alia to lodge and serve a response to the Application.

3.On 10 August 2026, by letter from the Department of Justice (“DOJ”), I was informed that the Immigration Department was in the course of arranging for the release of the Applicant on recognizance under s.36(1) of IO and therefore would not be filing any response/affirmation as directed.

4.By DOJ’s further letter dated 18 August 2026, I was informed that the Applicant has been released from detention on 13 August 2026 and a copy of the Applicant’s recognizance form was enclosed.  DOJ submitted that as the Application has become academic, invited this court to dismiss the Application with no order as to costs and to vacate the hearing scheduled for 25 August 2026.

5.Given that the writ of habeas corpus is a remedy intended to seek release of persons actually detained in unlawful custody and it is the fact of detention which gives the Court its jurisdiction (see e.g. Barnardo v Ford [1892] AC 326 at 333-334 per Lord Watson), and as the Applicant was no longer being detained, on 19 August 2026, I directed that the scheduled hearing be vacated. I also indicated that the Application ought to be dismissed with no order as to costs which I now formally so order.

The Applicant was not represented

Mr Cliff Chan, Government Counsel of Department of Justice, for the Respondent