BENARD MUGISHA BGOYA v. SECRETARY OF SECURITY

HCAL 2697/2025

[2026] HKCFI 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2697 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 filed by the Applicant on 5 December 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is presently being detained (“the Application”).  He has been detained since 18 October 2025 making the period of detention to date 112 days (“the Detention”).

2.  On 10 December 2025, I directed the named putative respondent and putative interested party to the Application, to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  I extended the time to do so on 23 January 2026.

3.  A Response/Skeleton Submissions for the Putative Respondent and Putative Interested Party dated 30 January 2026 (“the Response”) has been lodged. 

4.  By letter dated 2 February 2026 (“the Applicant’s Letter”) but only received by the High Court on 5 February 2026, the Applicant wrote seeking an adjournment of today’s hearing on the basis that having granted the extension of time to the Respondents to file a response, he would like more time to prepare for the hearing of the Application.  He also mentioned that “some unexpected and unusual activities” have occurred concerning his “overall situation” he is facing in detention which means he needs time to get legal advice before the hearing.  However, I did not accede to the request to adjourn today’s hearing for the reasons to be given below.

5.  At today’s hearing, the Applicant appeared in person with the benefit of an interpreter. He confirmed that he was served the Response and the bundle of documents prepared by the Department of Justice (“DOJ”).

6.  This is my Decision having heard the oral submissions of the Applicant and Miss To, Government Counsel, on behalf of the Director of Immigration (“Director”) and Secretary for Security (“Secretary”).

B.      Background

B1.      Immigration status and stay in HK

7.  The Applicant is a Tanzanian national born on 29 October 1976.

8.  On 17 July 2016, the Applicant arrived in Hong Kong on the strength of his Tanzanian passport and was permitted to remain as a visitor until 31 July 2016.  He did not depart and has overstayed since 1 August 2016.

9.  On 3 November 2016, the Applicant surrendered to the Immigration Department (“ImmD”) and handed over his Tanzanian passport.

10.  On 6 February 2017, the Applicant was convicted of breach of condition of stay.  He was sentenced to four weeks’ imprisonment suspended for three years.  He was then released on recognizance

11.  On 13 February 2017, a removal order (“RO”) pursuant to s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant. 

12.  On 28 February 2025, the Applicant was convicted of the offence of theft and was sentenced to 13 months’ imprisonment.

13.  On 19 March 2025, the Applicant was convicted for theft and was sentenced to 12 months’ imprisonment and compensation of HK$7,000.

14.  On 16 September 2025, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of IO.

15.  Upon discharge from prison, he was detained at TGCI from 18 October 2025 until present.

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

16.  On 27 March 2017, the Applicant lodged a NRC which was refused by the Director on 31 May 2018 (“the Director’s Refusal”).

17.  On 14 June 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 on 21 December 2020 (“the Board’s Decision”).

18.  On 22 March 2021, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”).

19.  Upon the instruction of the Director, on 8 December 2025, DOJ issue a letter to the Registrar of the High Court requesting for priority to be given to the JR Leave Application

20.  By a second letter to the High Court dated 7 January 2026, DOJ informed that the Applicant had made the present application and made enquiry as to the estimated period of time required to determine the JR Leave Application.

21.  The JR Leave Application was heard on 22 January 2026 and was dismissed by the Court of First Instance on 28 January 2026.

B3.    Steps towards the removal of the Applicant

22.  The Applicant’s Tanzanian passport is valid until 16 February 2026.

23.  During the Detention, interviews (on 17 November 2025, 6 January 2026, 27 January 2026, 30 January 2026 and 3 February 2026) were conducted with the Applicant but he expressed unwillingness to return to his home country.  He has been informed that if he did not cooperate with the removal arrangements, it would hinder his removal and his detention will not be unlawful if he prevents or delays the removal.

24.  ImmD has arranged a repatriation flight for the removal of the Applicant scheduled for 9 February 2026.

B4.     Reviews of Detention

25.  The last review of detention was conducted by the Secretary on 20 January 2026 and by the Director on 29 January 2026.  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 period of time given the JR Leave Application was dismissed on 28 January 2026 and the Applicant holds a valid Tanzanian passport;

(2)     A DO has been made against the Applicant and with the previous convictions of deportable offences of a serious nature, it is considered that the Applicant constitutes a threat / security risk to the community and coupled with his unwillingness to return to his home country and lack of local connections, there is a real risk he may abscond/re-offend;

(3)     The Applicant claimed that he was suffering from mental stress due to the detention but there is no reason to believe that he could not receive proper medical treatment if required; and

(4)     Balancing and considered all relevant factors including the length of detention, the Applicant’s release on recognizance is not warranted.

C.      The Applicant’s Submissions

26.  In the Applicant’s Affirmation, apart from citing various legal principles and citations from cases clearly copied from previous similar applications, essentially, insofar as relevant to the Applicant, the following submissions were made:

(1)     He has been detained since 18 October 2025;

(2)     The Detention has greatly distressed him and he has suffered from mental stress due to the Detention;

(3)     Under s.20 of IO, the Chief Executive of Hong Kong may make a DO against an immigrant if he is found guilty of an offence punishable with imprisonment for not less than 2 years but he was only sentenced to 13 months’ imprisonment so the DO was unlawful;

(4)     The Detention is in violation of the law and he is being detained without cause/grounds and without explanation.

27.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He also supplemented that he was shocked and his mental health deteriorated when he was detained after serving his imprisonment as he has done nothing wrong.  He further mentioned that he was not taken to hospital for his mental stress and depression but only took some medication.  As for other matters concerning the law, he was not able to make further submissions and that is why he wanted to seek legal advice.

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

D.      The Adjournment Application

29.  In Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602, in a similar context where the applicant had applied for a writ of habeas corpus but at the beginning of the hearing the applicant applied for adjournment on the basis that he had made an application for Legal Aid, Coleman J refused to adjourn and observed as follows (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 5 days’ time, on 18 October 2025, upon his deportation;

(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 – and seeking an adjournment 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 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.

30.  In the present case, the above observations are apposite.  There is an internal inconsistency is making an application which seeks immediate release from detention, and which should be heard as soon as possible, and making another application which by its nature would prevent or delay release from detention (in the Applicant’s Letter he requested a hearing to be fixed on or after 16 February 2026).  There is also the further inconsistency or tension between the application which seeks immediate release and a collateral application for adjournment which frustrates an imminent release in fact already arranged.  In this case, the Applicant is scheduled to be released in just three days’ time upon his deportation. 

31.  Furthermore, if the Applicant is correct and his detention has become and/or will become unlawful, his own action in applying for an adjournment would cause real unfairness and prejudice.  It also causes real prejudice to the Court in potentially frustrating the Court’s ability to require a person’s immediate release from unlawful detention.  On the other hand, there is unlikely to be any real risk of unfairness and prejudice to the Applicant in not adjourning today’s hearing because the principles for assessing the lawfulness of detention are well-established and it is not incumbent on the Applicant to demonstrate unlawfulness but it is for the Respondents to demonstrate lawfulness (see above at paragraph 29 and Section E below).

32.  I also take into account that if a hearing is vacated at short notice or adjournment is granted at the hearing, there will be a potential waste of Court time and other resources.  That obviously would have a potentially adverse impact on other Court users including possibly other habeas corpus applicants. 

33.  In the present case, having regard to the above matters, the circumstances of this case and also my provisional view of the merits of this application, I refused to adjourn today’s hearing.  The Court is in the proper position to decide the question of the lawfulness of the Detention now.  If the removal of the Applicant is imminent and the Applicant is lawfully detained pending that removal, I think that it would be an abuse to permit an adjournment that would frustrate that removal.

E. 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 unders.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.”

F.  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 under s.32(3) of IO pending deportation.  There can be no dispute that the DO is valid and extant.  The Applicant has clearly misunderstood s.20 of IO.  As stated in the Explanatory Note to the DO, s.20(1)(a) provides that the Chief Executive may make a DO against an immigrant if the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years.  The offence of theft is an offence punishable with imprisonment of not less than 2 years[1] notwithstanding the Applicant was sentenced to a lesser term of imprisonment.   Besides, to date, there is no challenge to the DO by the Applicant.

40.  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).

41.  The starting point is that the period of detention to date is 112 days against which the other factors must be weighed and balanced.

42.  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.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the regular interviews to ascertain Applicant’s willingness to return to Tanzania, writing to the High Court to seek to accord priority to the determination of the JR Leave Application and the repatriation arrangements.  Therefore HS1 and HS4 are satisfied.

43.  With a valid passport and repatriation flight scheduled 3 days from today and there being no legal impediment to removal under the prevailing removal policy, there is no reason to believe that the Applicant’s removal cannot be effected within a reasonable period if the Applicant cooperates.

44.  Insofar as the Applicant had refused and refuses to cooperate with removal arrangements despite warnings that this would prolong his detention, any prolonged period of detention as a result of his unreasonable conduct should also not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one. Otherwise, the more unreasonably and uncooperatively he behaves in seeking to frustrate or delay his removal, the more likely he is to be released which the Court of Appeal in Johnson Benjamin held cannot be the intention of the Hardial Singh principles. 

45.  I also accept the Director’s and Secretary’s assessment that with his past conviction of offences of sufficient serious nature (evident from the sentences imposed) which led to the issuance of the DO, coupled with the Applicant’s stated unwillingness to return and refusal to cooperate with the repatriation arrangements as well as the lack of local ties, there is a real risk of the Applicant absconding and/or re-offending.  If he were to abscond and/or re-offend, 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).

46.  In relation to the Applicant’s claimed physical and mental conditions, there is no record of him having requested medical treatment.  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.   There is also no evidence to suggest that the Applicant is medically unfit for continued detention.  See 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 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.

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 his release on recognizance.

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

G.   Conclusion

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