SAMSON CLIFARD v. HONG KONG SAR GOVERNMENT

HCAL 1937/2025

[2025] HKCFI 4737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1937 OF 2025

______________

______________

______________

D E C I S I O N

______________

A.  Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 29 August 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 6 November 2023 (“the Application”). The period of detention to date is 698 days (“the Detention”).

2.  On 3 September 2025, I directed the named Respondent to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application. A Response/Skeleton Submissions for the Respondent dated 23 September 2025 (“the Response”) has been lodged.

3.  In the Response, it was stated that the proper respondents to the Application should be the Secretary for Security (“the Secretary”) and the Director of Immigration (“the Director”) as the Secretary exercised the relevant power of detention under s.32(3) of the Immigration Ordinance, Cap. 115 (“IO”) in respect of the detention of the Applicant and the Director decides whether the Applicant should be released on recognizance and executes removal under the Deportation Order made against the Applicant on 26 April 2001 (“DO”). I agree that the proper respondents to the Application should be the Director and the Secretary (collectively, “the Respondents”) and they should be taken as the respondents to the Application.

4.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter (although he acknowledged that he can understand and speak some English). When asked to confirm his receipt of the Response and two bundles of documents and authorities (“the Documents”) prepared by the Department of Justice (“DOJ”) acting on behalf of the Respondents, he said that they were not served on him and that he had not received the same. However, in an affirmation of service filed by a clerical assistant of DOJ on 26 September 2025, it was affirmed that the Applicant had been sent the Documents by post on 23 September 2025. I was also shown a signed record of an officer at TGCI which stated that the Applicant had refused to attend an interview on 25 September 2025 to acknowledge receipt of the Documents. I was satisfied that he had been sent the Documents and it is a matter for him whether to receive and read them when apparently he can read and write a little English.

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

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is a returned deportee with double identities. He first came to Hong Kong in November 2000 as a visitor on the strength of an Indian passport under the name “Samson CLIFARD” with a date of birth of 3 March 1974.

7.  On 29 December 2000, he was convicted of four counts of theft and one count of obtaining property by deception and was sentenced to a total of six months’ imprisonment.

8.  The DO was made against the Applicant on 26 April 2001 and he was deported to India on 7 May 2001.

9.  On 27 June 2006, the Applicant returned to Hong Kong under the identity “Sharfraz AHMED” with a date of birth of 20 January 1974.

10.  On 4 February 2007, the Applicant was arrested by the Police and his status of a returned deportee was unearthed.

11.  On 20 March 2007, the Applicant was convicted of breach of DO, breach of condition of stay and making a false representation to an Immigration Officer. He was sentenced to a total of 18 months’ imprisonment.

12.  On 2 March 2010, the Applicant was convicted of possession of offensive weapon, 2 counts of common assault, criminal damage, 2 counts of criminal intimidation and claiming to be a member of triad society. He was sentenced to a total of 10 months’ imprisonment and compensation of HK$800.

13.  On 29 April 2011, the Applicant was convicted of theft and sentenced to 1 month’s imprisonment suspended for 12 months.

14.  On 7 November 2011, the Applicant was convicted of theft (shoplifting) for which he was sentenced 2 weeks’ imprisonment, attempted theft and breach of suspended sentence and was sentenced to a total of 6 week’s imprisonment.

15.  On 14 September 2015, the Applicant was convicted of two counts of theft (shoplifting) and sentenced to a total of 16 weeks’ imprisonment.

16.  On 12 January 2016, the Applicant was convicted of theft (shoplifting) and was sentenced to 4 months’ imprisonment and compensation of HK$109.90.

17.  On 7 November 2016, the Applicant was convicted of theft (shoplifting), 3 counts of assaulting a Police Officer in the due execution of his duties and possession of equipment fit and intended for the injection of dangerous drugs. He was sentenced to a total of 3 months’ imprisonment.

18.  On 6 February 2017, the Applicant was convicted of theft (shoplifting) and was sentenced to 4 months’ imprisonment.

19.  On 24 September 2018, the Applicant was convicted of theft (shoplifting) and was sentenced to 4 months’ imprisonment.

20.  On 2 June 2020, the Applicant was convicted of 2 counts of theft (shoplifting) and criminal intimidation. He was sentenced to a total of 8 months’ imprisonment.

21.  On 30 September 2023, the Applicant was convicted of theft (shoplifting) and was sentenced to 2 month’s imprisonment.

22.  The Applicant also failed to report recognizance on 7 occasions and has a record of jumping police bail:

(1)  On 26 October 2010, the Applicant failed to report to recognizance for medical reasons and reported to Immigration Department (“ImmD”) on 9 November 2010;

(2)  On 19 July 2012, the Applicant absconded until arrested by the Police on 12 September 2012;

(3)  On 31 May 2013, the Applicant went underground for around 4 months until arrested by the Police on 3 October 2013;

(4)  On 20 November 2013, the Applicant went underground until he surrendered to ImmD on 25 August 2014;

(5)  On 26 August 2014, the Applicant failed to report recognizance and only reported to ImmD on 15 April 2015;

(6)  On 16 December 2016, the Applicant absconded until arrested by the Police on 14 January 2017;

(7)  On 9 April 2020, the Applicant jumped police bail; and

(8)  On 20 January 2023, the Applicant went underground until arrested by the Police on 27 September 2023.

23.  On 6 November 2023, the Applicant was discharged from prison and he was transferred to TGCI where he has since been detained under s.32(3) of IO.

B2.  The Applicant’s Torture Claim, Non-Refoulement Claim (“NRC”) and other related legal proceedings

24.  On 26 March 2007, the Applicant lodged a torture claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment with ImmD but the claim was refused on 24 October 2012.

25.  The Applicant lodged a NRC on 16 January 2013 which was treated as withdrawn by the Director on 22 December 2016 due to the Applicant’s failure to return the completed supplementary claim form.

26.  On 26 April 2017, the Applicant requested to reopen his NRC but the request was refused on 23 March 2017 (“the Director’s Decision”).

27.  On 9 April 2018, the Applicant applied for late filing of his appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) against the Director’s Decision but this was refused on 22 November 2018 (“the Board’s Decision”).

28.  On 31 January 2019, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”). The JR Leave Application was allowed on 18 May 2021.

29.  On 24 June 2021, the Applicant submitted a request for making a subsequent claim. The request was refused by the Director on 19 August 2021.

30.  The Applicant’s late filing of Notice of Appeal/Petition in relation to his request to re-open his NRC was remitted to the Board for fresh determination but was refused on 11 January 2024.

B3.  Steps towards the removal of the Applicant

31.  During the Detention, ImmD attempted to conduct 53 interviews with the Applicant to ascertain his willingness to return to India but the Applicant refused to attend 38 of them. During the 15 interviews conducted, he expressed his willingness to return on 2 occasions but quickly changed his mind and refused to cooperate with the removal arrangements. He was reminded that his uncooperativeness would impede his removal and potentially prolong his detention.

32.  Given the Applicant’s uncooperativeness, ImmD sought assistance from Consulate General of India (“CG”) by sending 2 letters and 13 emails during the Detention. The provision of a completed application form, recent photo as well as attending interview with CG are necessary for the issuance of an emergency travel document (“ETD”) which would normally be issued after 1 month of all formalities are met.

B4.  Reviews of Detention

33.  The last review of detention was conducted by the Director on 29 August 2025. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  The removal of the Applicant is possible within a reasonable time;

(2)  The Applicant is a returned deportee who breached DO and is a repeated offender with convictions for which immediate custodial sentence was imposed. He poses a threat or security risk to the community;

(3)  The Applicant had failed to report recognizance on 7 occasions coupled with his unwillingness to return and comply with the re-entry seeking formalities and lack of local connections, there was a real and substantial risk of his absconding if released;

(4)  The mental health concern does not outweigh other factors in support of continued detention and there is no reason to believe that the Applicant would not receive proper medical treatment at TGCI or other medical institution if required; and

(5)  There are no other circumstances in favour of the Applicant’s release.

C.  The Applicant’s Submissions

34.  In the Applicant’s Affirmation, it was stated that it is the second time that he has been detained in TGCI, where he has been detained since 6 November 2023, which is “unfair and just” [sic]. He also stated that he “would like to talk in person”.

35.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions. He further supplemented the following:

(1)  He has now been detained for 23 months after serving one month of imprisonment but he has not committed any crimes justifying the detention. He does not know why he is being detained and was not given reasons;

(2)  He was detained even though the JR Leave Application was allowed and he had not been interviewed in relation to his NRC;

(3)  He received 3 bullet wounds and fled India to seek justice here;

(4)  He should not be sent back forcefully when he has not been interviewed and to send him back would be against the law of Hong Kong;

(5)  He wish to seek damages for the previous unlawful detention but his lawyer did not respond to him. If he receives money from the damages claim then he can go back to India;

(6)  He does not pose any threat to the community or security risk as he have been living in Hong Kong for 20 years and knows that the Police will do their work and he believes in the justice system here;

(7)  TGCI is like a prison. Previously, when he was detained at the Castle Peak Bay Immigration Centre, he was released without having to apply to the Court for “bail out” and pay court fees for filing this application;

(8)  He is being detained indefinitely; and

(9)  He can provide self-surety of HK$500, provide an address proof of his friend and is willing to comply with other requirements or conditions imposed by the Director if released.

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

D.  Applicable Principles

37.  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.

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

39.  Under s.32(4A) of IO, the detention of a person 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.

40.  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.”

41.  Furthermore, at §37, it was held that even if there are ongoing NRC, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the NRC is disposed of.

E.  Analysis

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

43.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3) of IO which provides that in respect of a person whom a deportation order is in force, he may be detained under the authority of the Secretary pending his removal. There can be no dispute that the DO made against the Applicant is valid and extant.

44.  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 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).

45.  The starting point is that the period of detention to date is 698 days, no doubt a very long period, against which the other factors must be weighed and balanced.

46.  I accept that the Applicant has been detained for the purpose of his deportation from Hong Kong and that the power of detention is being used only for that purpose. This is evident from the Director’s continued liaison with CG to secure the ETD and numerous and regular interviews (or attempts to conduct interviews) with the Applicant in the hope that he would express willingness to return to India. Therefore HS1 is satisfied.

47.  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 efforts to seek issuance of the ETD from CG, the numerous attempts to conduct interviews with the Applicant to seek his co-operation, the continued liaison with CG and seeking assistance from the Board by letter dated 10 November 2023 for expediting the determination of Applicant’s Notice of Appeal/Petition (which was refused on 11 January 2024). I take the view that HS4 is also satisfied.

48.  In so far as the Applicant has refused and continues to refuse to cooperate with the re-entry seeking formalities, and despite warnings that this would prolong his detention, any prolonged period of detention as a result of any unreasonable conduct should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one. As mentioned from the authorities cited upon, even if there is an ongoing NRC, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the NRC is disposed of. Since his request to re-open his NRC was rejected, there is no outstanding NRC or related claims and no legal impediment to his removal. If the Applicant cooperates with the re-entry seeking formalities, there is no reason to believe he cannot be removed within a reasonable period of time.

49.  As has been stated and repeated in many previous decisions, an application for writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

50.  I also accept the Director’s and the Secretary’s assessments that with the Applicant’s past convictions of serious offences committed on recognizance, records of absconding and jumping bail for substantial periods of time, coupled with the Applicant’s unwillingness to return and lack of local ties, there is a real and substantial risk of the Applicant re-offending and/or absconding as well as him posing a threat or risk to the community. 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. See Harjang Singh at §164(14).

51.  In relation to the Applicant’s 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. From the records, it can be seen that he had been informed that if he requested for medical treatment regarding his claimed mental health problem, this could be arranged and he had previously been transferred to Siu Lam Psychiatric Centre on 11 July 2024 but was transferred back to TGCI on 17 July 2024.

52.  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.

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

F.  Conclusion

54.  For all the above reasons, I dismiss the Application with no order as to costs.