DEWEY ALICE SITO v. HONG KONG SAR GOVERNMENT

HCAL 1486/2025

[2025] HKCFI 3522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1486 of 2025

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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 27 June 2025 seeking her release from Nei Kwu Correctional Institution (“NKCI”) where she is presently being detained (“the Application”).  She has been detained since 10 December 2024 making the period of detention to date 240 days (“the Detention”).

2.  On 2 July 2025, I had directed 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.  The “Respondent’s Response to the Applicant’s Habeas Corpus Application” dated 25 July 2025 (“the Response”) has been lodged by the Respondent.

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

5.  This is my Decision having heard the oral submissions of the Applicant and Miss Tang, Government Counsel for the Respondent.

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is a national of the Philippines born on 11 March 1964.

7.  On 12 April 2007, the Applicant arrived in Hong Kong and was permitted to remain for employment as a foreign domestic helper until 19 April 2008 or two weeks after the termination of contract, whichever was earlier.

8.  On 12 September 2007, the Applicant was convicted of gambling and fined $300.

9.  On 21 April 2008, upon the termination of her employment contract, the Applicant applied to the Immigration Department (“ImmD”) for an extension of stay.  She was permitted to remain as a visitor until 3 May 2008 but she did not depart and overstayed since 4 May 2008.

10.  On 1 May 2009, the Applicant was arrested for overstaying.

11.  On 3 May 2009, the Applicant was referred to ImmD and was detained.

12.  On 6 May 2009, the Applicant was charged with breach of condition of stay and convicted on 7 May 2009.  She was sentenced to 28 days’ imprisonment suspended for 18 months.  She was transferred to ImmD for detention.

13.  On 8 June 2009 a removal order (“RO”) pursuant to s. 19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant.

14.  On 30 June 2009, the Applicant was released on recognizance.

15.  Whilst on recognizance:

(1)  The Applicant failed to report recognizance on 13 March 2018;

(2)  On 28 June 2018, the Applicant resurfaced and explained in written submissions that she forgot that she should continue to report;

(3)  On 22 August 2023, the Applicant failed to report recognizance;

(4)  On 30 August 2023, the Applicant resurfaced and explained in written submissions that she failed to report because she had severe back pain;

(5)  On 9 January 2024, the Applicant failed to report recognizance; and

(6)  On 11 January 2024, the Applicant resurfaced and explained in written submissions that she misunderstood the dates for reporting.

16.  The Applicant’s recognizance was ceased on 10 December 2024 and she has been detained thereafter under s. 32(3A) of IO.

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

17.  On 14 May 2009, the Applicant first lodged a torture claim which was rejected by the Director of Immigration (“the Director”) on 30 May 2013 (“the Director’s Refusal”).

18.  On 13 June 2013, 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 27 November 2013 (“the Board’s Decision”).

19.  On 17 September 2013, the Applicant made a NRC but this was dismissed by the Director on 25 May 2018 (“the Director’s 2^nd Refusal”).

20.  On 7 June 2018, the Applicant appealed against the Director’s 2^nd Refusal but the appeal was dismissed by the Board on 31 December 2018 (“the Board’s 2^nd Decision”).

21.  On 28 February 2019, the Applicant applied for leave to apply for judicial review against the Board’s 2^nd Decision but this was refused by the Court of First Instance on 26 September 2024.

B3.  Steps towards the removal of the Applicant

22.  Even prior to the Detention, on 7 October 2022, ImmD issued a letter to the Consulate General of the Republic of the Philippines (“CG”) requesting the issuance of a replacement travel document (“RTD”) to the Applicant as soon as possible to facilitate repatriation. Another letter dated 17 October 2024 was issued to CG seeking issuance of RTD for the Applicant as soon as possible.

23.  On 10 December 2024, the Applicant was interviewed by ImmD but indicated her refusal to leave and to attend interviews with CG. The Applicant’s recognizance was ceased after review and she was detained as already mentioned.

24.  In subsequent interviews on 2 January 2025, 27 February 2025, 28 February 2025, 11 March 2025, 1 April 2025, 7 May 2025, 13 June 2025 and 9 July 2025, when interviewed by ImmD, the Applicant maintained her unwillingness to return and refused to cooperate with re-entry seeking (completing application form, taking photos and attending interview with CG for issuance of RTD).

25.  On 7 March 2025, ImmD sent a letter to CG requesting the issuance of a RTD as soon as possible and seeking possible alternative means to issue a travel document despite the lack of cooperation of the Applicant.

26.  On 24 June 2025, ImmD again requested CG for issuance of a RTD and alternate means to issue a travel document.

B4.  Reviews of Detention

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

(1)  Her NRC has been disposed of and there is no legal impediment to her removal;

(2)  The only obstacle is the issuance of a travel document by CG;

(3)  The removal is directly or indirectly prevented or delayed by the Applicant’s persistent and demonstrated uncooperativeness to complete re-entry seeking formalities; and

(4)  Given her lack of local connections, record of absconding and persistent refusal to return, there is a real risk of absconding if released on recognizance.

C.  The Applicant’s Submissions

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

(1)  She still has the opportunity to file appeals to the court and it is difficult to pursue legal claims in detention;

(2)  ImmD had not made any decision to release or send her back and she is being detained unlawfully without reasons given;

(3)  She is 61 years old and has back pain and the medicine given to her is of very low quality;

(4)  The Respondents cannot say when or how she will be removed;

(5)  She has never committed any serious crime in Hong Kong and will give an undertaking not to engage in illegal activities and hence she will not pose a security risk or threat to the community if released;

(6)  She has a fixed abode in Hong Kong and her guarantor is “ISS Welfare”;

(7)  The Director has not taken active steps for her removal including liaising with the CG for a travel document; and

(8)  The Director does not intend to deport her and she was not detained for that purpose.

29.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of her submissions save that she now accepts that she is being detained “for deportation”.  She also added that every 3 months ImmD would simply call her to ask if she is willing to leave and for conducting a review of her detention.   She further submitted a letter to this court which apart from repeating some of the matters I have summarised above also submitted:

(1)  She is suffering from stress, physically and psychologically;

(2)  Apart from back pains, she suffers from migraine most of the time, cannot sleep at night and the medication does not work for her;

(3)  It is not safe for her to return to her hometown because of her problem with the loansharks and her problem is not over yet; and

(4)  She is willing to go home if ImmD can give her time to connect with her family or relatives for them to help her prepare and make arrangements before she goes back and she has not place to stay if she goes back so suddenly.

30.  I will take into account these 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.”

35.  Furthermore, it was held at §37 that:

“… In our view, even if there is ongoing non-refoulement claim, 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 non-refoulement claim is disposed of…”

E.  Analysis

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

37.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s. 32(3A) of IO pending her removal.  There is no dispute that the RO is valid and extant.

38.  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).

39.  The starting point is that the period of detention to date is 240 days against which the other factors must be weighed and balanced.

40.  I accept that the Applicant has been detained for the purpose of removal[1], and that the power of detention is being used only for that purpose.  This is evident from the Director’s efforts in obtaining an emergency travel document for the Applicant’s return and seeking her cooperation to return to the Philippines.  Therefore HS1 is satisfied.

41.  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 seek a RTD for her return even prior to the Detention and continued liaison with CG to explore alternative means for a travel document to be issued despite the lack of cooperation of the Applicant.  I have no reason to believe there would have been greater haste to effect her removal if the Applicant had cooperated.  To that end, the Applicant was interviewed regularly (see paragraph 24 above) in the hope to secure her cooperation.  HS4 is also satisfied.

42.  With no legal impediment to the Applicant’s removal under the prevailing policy of the Government, if the Applicant cooperates I cannot see why removal cannot be effected within a reasonable period.  Generally, a travel document could be issued within 1 week upon completion of the re-entry formalities required by CG if the Applicant cooperates.  Given that there is no outstanding NRC, her refusal to cooperate with the re-entry formalities is plainly unreasonable and any prolonged detention caused as a result will not be regarded as an unreasonable period of detention.

43.  Whilst the Applicant submits that she may make a subsequent NRC or further appeal, any detention prolonged by the Applicant’s delay in taking such steps, should not be regarded as unreasonable detention.   I do not attach any significant weight to the Applicant’s suggestions that being held in detention prevents or prevented her from taking legal proceedings.  This is evident from the fact the Detention has not prevented her from making the present application.

44.  I also accept the Director’s assessment that with the Applicant’s stated unwillingness to return, coupled with her history of absconding and lack of local ties, there is a real risk of the Applicant absconding.  If she 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.  The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

45.  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.

46.  As regards the Applicant’s fear of her own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning her NRC and the court is a habeas corpus application will not look at the merits of any such claim. 

47.  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 her release on recognizance.

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

F.   Conclusion

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