SHIV KUMAR v. DIRECTOR OF IMMIGRATION

HCAL 940/2026

[2026] HKCFI 4020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 940 OF 2026

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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 20 May 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 28 January 2026 (“the Application”).  The period of detention to date is 168 days (“the Detention”).

2.  On 22 May 2026, I directed the named respondent to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation in support of the Application.  An Initial Response for the Respondents dated 7 July 2026 (“the Response”) has been lodged.

3.  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 by the Department of Justice (“DOJ”) acting on behalf of the Respondents, the Director of Immigration (“the Director”) and the Secretary for Security (“the Secretary”).

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

B.      Background

B1.     Immigration status and stay in HK

5.  The Applicant is an Indian national, born on 2 November 1984.

6.  The Applicant was arrested by the Police on 15 April 2015.  He claimed to have entered Hong Kong illegally from Shenzhen on 8 April 2015.  He was referred to the Immigration Department (“ImmD”) for investigation.

7.  On 9 May 2015, the Applicant was released on recognizance.  However, he failed to report recognizance on 4 occasions, jumped court bail and police bail on multiple occasions.

8.  On 29 May 2017, a removal order (“RO”) was issued against the Applicant under s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”).

9.  On 16 August 2017, the Applicant was convicted of the offence of theft (shoplifting) and fined HK$200.

10.  On 11 December 2017, the Applicant was convicted of the offence of unlawful possession of dutiable goods and was sentenced to 6 days’ imprisonment.

11.  On 11 December 2018, the Applicant was convicted of the offence of possession of a dangerous drug and was sentenced to 2 weeks’ imprisonment suspended for 24 months.

12.  On 14 May 2019, the Applicant was convicted of the offences of possession of a dangerous drug and breach of suspended sentence.  He was sentenced to 2 months’ and 2 weeks’ imprisonment to run consecutively.

13.  On 5 August 2019, the Applicant was convicted of the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong and sentenced to 15 months’ imprisonment.

14.  On 13 March 2020, a deportation order (“DO”) under s.20(1)(a) of IO was issued against the Applicant.

15.  On 31 December 2020, the Applicant was convicted of the offences of possession of an identity card relating to another person and theft.  He was sentenced to a total of 18 months’ imprisonment.

16.  On 26 September 2025, the Applicant was convicted of the offences of possession of a dangerous drug and theft.  He was sentenced to 8 months’ imprisonment and 1 month and 2 weeks’ imprisonment to run consecutively and ordered to pay compensation of HK$712.

17.  Upon and since his discharge from prison on 28 January 2026, he has been detained.

B2.     The Applicant’s NRC (“the NRC”) and related legal proceedings

18.  On 18 April 2015, the Applicant lodged the NRC but this was refused by the Director on 21 June 2017 (“the Director’s Decision”).

19.  On 26 July 2017, the Applicant lodged an appeal/petition against the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) which was dismissed on 31 August 2018 (“Board’s Decision”).

20.  On 9 April 2020, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision which was allowed by the Court of First Instance on 7 September 2022.

21.  On 18 February 2025, the NRC was remitted to the Board for fresh determination but was dismissed on 18 July 2025 (“Board’s Fresh Decision”).

22.  On 25 June 2026, the Applicant filed an application for leave to apply for judicial review against the Board’s Fresh Decision (“JR Leave Application”).

23.  On 26 June 2026, DOJ wrote to the High Court requesting the JR Leave Application be accorded priority.

B3.     Steps towards the removal of the Applicant

24.  Even before the commencement of the Detention, on 4 August 2025, a letter was sent by ImmD to the Consulate General of India (“CG”) to informed of the intended repatriation and for issuance of a replacement travel document (“RTD”) to the Applicant as the Applicant’s passport had expired.

25.  During the Detention, when the Applicant was interviewed by ImmD (on 11 February 2026, 18 March 2026, 14 April 2026, 16 April 2026, 1 June 2026 and 11 June 2026), he consistently expressed his refusal to return to India and refused to cooperate with the re-entry application.  He was explained that his uncooperativeness would impede his removal and prolong his detention.

26.  As of result of his lack of cooperation, ImmD wrote to CG (by letter and/or email on 26 February 2026, 16 April 2026, 22 April 2026, 20 May 2026 and 22 June 2026) seeking alternative means to issue a travel document to the Applicant regardless of his uncooperative attitude. 

B4.     Reviews of Detention

27.  The last reviews of detention were conducted by the Secretary on 29 June 2026 and the Director on 3 July 2026.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)     Given that the High Court’s assistance is sought to accord priority to the JR Leave Application, there is no sufficient reason to believe that it will not be determined within a reasonable period of time and given the close liaison with CG, his removal is possible within a reasonable period of time;

(2)     The Applicant is subject of a DO based on convictions for offences of a serious nature, such that he constitutes a threat/security risk to the community.  Given his history of absconding, jumping bail, his unwillingness to return to India and his refusal to cooperate with the re-entry application and the lack of local connections, there is a risk of re-offending and/or absconding; and

(3)     Having considered all relevant factors including the length of detention, release on recognizance was not warranted.

C.      The Applicant’s Submissions

28.  In the Applicant’s Affirmation, apart from citing legal authority and quotations, in gist, the following submissions were made:

(1)     The period of the Detention is long and unreasonable;

(2)     There is no reasonable prospect that the JR Leave Application can be finalized within a reasonable period of time when no hearing dates have yet to be fixed;

(3)     He should be entitled to rely on the reasons given during interviews by ImmD that his life is in danger in his home country, he is waiting for final outcome of his NRC and there are outstanding legal proceedings; and

(4)     The Director does not intend to deport him and he is not being detained for the purpose of deportation.

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

(1)     As he has filed the JR Leave Application, which the Government allows him to do so, and it is not known when it will be finalized, he should not be detained until it is finalized;

(2)     Although he had previously jumped bail, he has not done so after 2022;   

(3)     He has injuries to his toes but not receive any proper treatment.  He made a complaint to his case officer on 10 July 2026.  He only received a walking aid to assist him to attend Court but not whilst in Detention.  He needs to climb stairs in order to go to the toilet, make telephone calls or go to the hospital which he cannot do so without a walking aid;

(4)     There is no television and no air-conditioning at TGCI;

(5)     The quantity of drugs he was in possession was small and he did not sell them; and

(6)     He filed the JR Leave Application late because he did not receive the Board’s Fresh Decision as he moved house and was serving imprisonment.  He only received the Board’s Fresh Decision after he wrote to the Board and it was sent to him at TGCI on 3 March 2026.  He also had to borrow money to file the JR Leave Application.

30.  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

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 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.

33.  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.

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:

“(1) It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant’s own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant’s own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant’s further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2) In the circumstances, the Judge’s emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(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, 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

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(3) of IO.  There is no dispute that the RO and DO made against the Applicant are 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 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 168 days, against which the other factors must be weighed and balanced.

40.  Contrary to the Applicant’s submissions, I am of the view 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 am also of the view that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the proactive efforts and continued liaison with CG to secure a travel document for his return, the frequent interviews to ascertain Applicant’s willingness to return to his home country and DOJ writing to the High Court to seek priority to be accorded to the JR Leave Application.  Both HS1 and HS4 are satisfied.

41.  Although there currently is a legal impediment to his removal, upon the JR Leave Application being determined (if priority is accorded, I have no doubt it will be determined within a reasonable period of time) and if rejected, there is no reason to believe that the Applicant cannot be removed within a reasonable period of time if he cooperates.  In so far as the Applicant had not previously cooperated with the re-entry seeking formalities and did not pursue his NRC promptly (the JR Leave Application was filed 8 months late, almost one year after the Board’s Fresh Decision and only after the commencement of the Detention, and even given the Applicant’s explanation, there is no good reason why he did not promptly and pro-actively write to the Board to inform of his change of address and/or him being held in custody), the prolonged period of detention as a result of his unreasonable conduct should 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. 

42.  Upon the dismissal of the JR Leave Application, under the prevailing removal policy, there is no legal impediment to his removal even if he further appeals.  If the JR Leave Application is not dismissed or determined within a reasonable period of time, no doubt there will be further reviews of detention.

43.  I also accept the Director’s and the Secretary’s assessments given the Applicant’s unwillingness to return, history of absconding and jumping bail, coupled with his lack of local ties, there is a real and substantial risk of the Applicant absconding.  If he were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effects of the RO and the DO.  Furthermore, given his previous serious convictions, resulting in issuance of the DO, there is also a real risk of re-offending.   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).

44.  Although the Applicant says that his life is in danger in his home country, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his application for habeas corpus will not look at the merits of such claim. 

45.  As for his claimed injuries, Ms Wong confirmed that prior to today’s hearing, no complaints had been received from the Applicant.  In any event, in view of previous decided cases, there is no reason to believe that the Applicant cannot seek medical assistance at TGCI and would not receive proper medical treatment, if required. There is no evidence to suggest that the Applicant is medically unfit for continued detention.   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 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.

46.  I do not believe that the Applicant’s other submissions, which I have taken into account, can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release.

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

F.      Conclusion

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