AHMED GAMAL IBRAHIM GAD v. HONG KONG SAR GOVERNMENT AND ANOTHER

HCAL 589/2026

[2026] HKCFI 4350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 589 OF 2026

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order made on 4 August 2017.  He has been held in immigration detention since 18 March 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the hearing before me, he has been detained for 501 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus made on 15 March 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Ray Mok, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is an Egyptian national.  On 3 May 2017, he arrived in Hong Kong on the strength of his Egyptian passport (which expired on 27 January 2024)  but was refused permission to land and detained under the Ordinance.  I am told today that the Applicant in fact arrived in Hong Kong on that occasion with his wife and three children but they too were refused permission to land.

2.2  On 8 May 2017, the Applicant summited a written submission to lodge a non-refoulement claim (“NRC”). He was released on recognizance on 9 May 2017.  Subsequently, the Applicant’s NRC was treated as having been withdrawn on 11 July 2017 as he failed to submit a completed form.  The Applicant’s recognizance ceased on 3 August 2017.  I am told today that his wife and three children similarly made NRCs but they were likewise treated as having been withdrawn.

2.3  The Applicant then requested to reopen his NRC, which request was rejected by the Director on 31 August 2017 (“Director’s Decision”). His subsequent appeal/petition against the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”)  was dismissed on 8 November 2017 (“TCAB 1^st Decision”).

2.4  Following the TCAB 1^st Decision, on 19 December 2017, a removal operation was scheduled but had to be called off as a result of the Applicant’s refusal to cooperate.  In contrast, I am told today that the wife and three children voluntarily departed Hong Kong on 30 December 2017 and there is no record of them returning to Hong Kong since their departure.

2.5  On 26 February 2018, the Applicant applied for leave to apply for judicial review against the TCAB 1^st Decision (“1^st Leave Application”).  He was then released on recognizance on 19 March 2018.

2.6  Whilst on recognizance:

(1)  On 18 August 2021, he was convicted of the offences “Assault occasioning actual bodily harm” and “Common assault” and sentenced to 9 weeks’ imprisonment;

(2)  He has a history of failing to report recognizance and jumping police bail.

2.7  The present detention commenced when he was arrested by the police on 17 March 2025 for being a wanted person of the Immigration Department, he having failed to attend the appointment for the resumption of recognizance on 24 February 2025.

2.8  Subject to what I will say below, the Applicant has no family ties in Hong Kong.

3.  NRC and related proceedings

3.1  The 1^st Leave Application was dismissed on 8 October 2019 (“CFI Decision”).

3.2  It was only during the present detention that the Applicant sought to appeal against the CFI Decision on 8 August 2025, which application was, unsurprisingly, dismissed on 29 January 2026.

3.3  In the meantime, on 21 October 2025, the Applicant’s request to make a subsequent claim was allowed.  On 25 February 2025, the Applicant’s subsequent claim was rejected by the Director (“SC Decision”). His subsequent appeal to the TCAB against the SC Decision was dismissed on 6 July 2026 (“TCAB 2^nd Decision”).

3.4  On 23 July 2026, the Applicant made an application for leave to apply for judicial review against the TCAB 2^nd Decision (“2^nd Leave Application”).

3.5  On 26 July 2026, the Department of Justice requested the Court of First Instance to accord priority to the 2^nd Leave Application.

4.  The present detention and its reviews

4.1  Throughout the present detention, the Applicant has persistently indicated his unwillingness to return to his home country.

4.2  As mentioned earlier, the Applicant’s passport had expired in January 2024.  Shortly after the commencement of the present detention, the Immigration Department requested the Consulate General of the Arab Republic of Egypt (“CG”)  to issue a travel document to the Applicant.  The Applicant has throughout refused to cooperate in completing the reentry formalities.  Despite various attempts to seek CG’s assistance to issue a travel document notwithstanding the Applicant’s refusal to cooperate, such attempts have thus far remained unfruitful.

4.3  On 9 February and 13 April 2026, the Applicant assaulted a fellow detainee and had to be separately confined from 11 to 16 February and 14 to 18 April 2026.

4.4  In the latest review of the Applicant’s detention conducted on 28 July 2026, the Applicant’s continued detention was considered to be justified for the following broad reasons:

(1)  It was estimated that the Applicant’s NRC could be determined in the reasonably foreseeable future given that a letter was sent on 27 July 2026 to request the court to accord priority to the 2^nd Leave Application;

(2)  The Applicant’s removal was going to be possible within a reasonable time;

(3)  The Applicant was convicted of “Assault occasioning actual bodily harm” and “Common assault” being crimes of serious or violent nature;

(4)  The Applicant had multiple records of failing to report immigration recognizance and jumping bail;

(5)  The Applicant had been expressing unwillingness to return to his home country;

(6)  The Applicant might abscond;

(7)  The Applicant did not have local connections in Hong Kong; and

(8)  There were no other circumstances in favour of the Applicant’s release.

5.  The Applicant’s submissions

5.1  The Applicant’s written materials may be summarized as follows:

(1)  His NRC has not concluded and as such poses a legal impediment to his removal;

(2)  He has been detained without notice and without any reason;

(3)  He has never been convicted of any serious crime in Hong Kong;

(4)  His removal is not going to be possible within a reasonable time;

(5)  He will apply to ISS for accommodation to be provided, if released, and promises to reside at that location;

(6)  He is willing to comply with recognizance conditions, including weekly reporting;

(7)  He offers HK$4,000 as bail money;

(8)  He fears for his safety if repatriated to his home country and that provides the explanation for his refusal to cooperate in completing the reentry formalities;

(9)  He suffers emotional and psychological trauma from being unlawfully detained.

(10)  He explains that as he had been hospitalized from 18 to 28 February 2025, he was unable to report recognizance[1] but he did try to contact the case officer during his hospitalization.

5.2  At the hearing, the Applicant confirmed the accuracy of the above summary.  He supplemented as follows.  He asserted that he had seen his wife in Hong Kong 2 days prior to the present detention and he assumed that his children are with the wife.  He made a scathing attack on his wife’s character and he claimed that his daughter had been raped and his son sexually assaulted in Egypt.  He wished to be released from detention to protect his children.  However, when I asked him whether he knew the children’s whereabouts, he said that he would ask the police to assist him in locating them.

6.  The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  I have in particular borne in mind the summary set out at §164 thereof.

6.2  I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3  Under Section 32(4A)  of the Ordinance, 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, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3)  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 and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.4  The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention.  It is stated 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 behaviours or conducts 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 and 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.”

6.5  In particular, on the issue of a detainee's refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… In our view, even if there is an 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…”

7.  Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to the following sections of the Ordinance:

(1)  Section 32(3A)  from 18 March to 21 October 2025 pending his removal under the Removal Order;

(2)  Section 37ZK from 21 October 2025 to 6 July 2026 pending the determination of the subsequent claim;

(3)  Section 32(3A)  since 6 July 2026 pending his removal under the Removal Order.

7.2  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 501 days, against which the various other factors must be weighed and balanced.

7.3  I accept that, throughout the period of detention, the intention of the Director is to remove the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.  I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by (1)  the efforts made for the issuance of a travel document to the Applicant, (2)  the speedy resolution of the subsequent claim and (3) the requests made to expedite the resolution of the 2^nd Leave Application.

7.4  As regards the Applicant’s fear for his 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 his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

7.5  It is acknowledged that a legal impediment has been created since October 2025 when the Applicant was allowed to make a subsequent claim.  However, as has been observed at Johnson Benjamin §37 (cited above), the existence of an ongoing non-refoulement does not excuse a detainee from rendering cooperation in completing the reentry formalities.

7.6  Given the nature of the convictions (associated with violence), I am of the view that the Applicant does pose a threat or security risk to the community.  Such risk has been exacerbated by the recent incidents of the Applicant assaulting his fellow detainees.  Such incidents also clearly justify an inference of risk of the Applicant (re)offending, which risk, if materializes, may delay the Applicant’s removal due to consequential investigations and potential court proceedings.

7.7  I further accept the Respondent’s submissions that considerable weight should be given to the assessment of the risk of absconding, given the Applicant’s lack of local ties, his previous history of failing to report recognizance and jumping police bail and his professed unwillingness to return to his home country.  I do not place weight on the Applicant’s explanation for failing to attend the appointment for the resumption of recognizance on 24 February 2025 which led to his arrest on 17 March 2025 and the commencement of the present detention.  The fact of the matter is that the Applicant did not report recognizance even after he was discharged from the hospital on 28 February 2025 and was only arrested as a wanted person on 17 March 2025.  In any event, even prior to this incident, there was already an adverse history.

7.8  I also do not attach any weight to the Applicant’s wish to protect his children whom he claims to be in Hong Kong.  I have no reason to doubt the (lack of)  arrival records of the children (or the wife)  since 30 December 2017 and, as noted above, the Applicant does not even know the present whereabouts of his children (if in Hong Kong)  and requires the assistance of the police to locate them.  In any event, given the centrality of this matter, raised for the first time at the hearing today, it is surprising that there was only a fleeting mention of his children in his written materials.  His professed wish to care of his children is also inconsistent with his reluctance to be returned to Egypt, since he confirmed in court today that he would return to Egypt were his children there.

7.9  In relation to the Applicant’s claimed health conditions, the Applicant's medical conditions do not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.10  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the determination of the 2^nd Leave Application)  has been and will remain lawful.

8.2  I therefore dismiss the present application with no order as to costs.