GURDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1357/2025

[2025] HKCFI 3712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1357 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 13 June 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 24 May 2025 (“the Application”).  The period of detention to date is 88 days (“the Detention”).

2.  On 19 June 2025, I directed the Director of Immigration (“the Director”) named as the 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.  An Initial Response of the Respondent dated 8 August 2025 (“the Response”) has been lodged. 

3.  In the Response, it was stated that the proper respondents to the Application should be the Director and the Secretary for Security (“the Secretary”) as they exercised the relevant statutory powers relating to the detention of the Applicant.  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.  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.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Hor, Acting Senior Government Counsel, appearing for the Respondents.

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is an Indian national, born on 4 January 1983.

7.  The Applicant arrived in Hong Kong from India on 1 October 2005, on the strength of his Indian passport and was permitted to remain as a visitor for 14 days.  However, he did not depart and overstayed since 16 October 2005.

8.  On 5 October 2006, the Applicant was arrested by the Police for breach of condition of stay by overstaying and taking up unapproved employment.  On 11 October 2006, he was sentenced to 6 weeks’ imprisonment.

9.  After completing his prison term, he was referred to the Immigration Department (“ImmD”). 

10.  On 7 December 2006, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of Immigration Ordinance, Cap. 115 (“IO”).

11.  The Applicant was released on recognizance on 26 January 2007.

12.  On 30 November 2009, the Applicant was convicted of theft and sentenced to 4 weeks’ imprisonment suspended for 18 months.

13.  On 8 January 2010, the Applicant was convicted of possession of dangerous drugs and sentenced to conditional discharge at HK$2,000 for 2 years to be on good behaviour.

14.  On 12 March 2010, the Applicant was convicted of theft (shoplifting) and was fined HK$500.

15.  On 11 July 2011, the Applicant was convicted of 3 counts of theft and was sentenced to a total of 10 weeks’ imprisonment.

16.  On 27 June 2012, the Applicant was convicted of the offence of theft (shoplifting) and was sentenced to 14 days’ imprisonment.

17.  On 5 January 2013, the Applicant was convicted of the offence of theft (shoplifting) and was sentenced to 4 weeks’ imprisonment.

18.  On 7 March 2013, the Applicant was convicted of the offences of theft and willfully obstructing a police officer in the due execution of his duty and was sentenced to 4 week’s imprisonment.

19.  On 28 June 2013, the Applicant was convicted of the offence of theft (shoplifting) and was sentenced to 8 weeks’ imprisonment.

20.  On 13 January 2014, the Applicant was convicted of theft (shoplifting) and was sentenced to 3 months’ imprisonment.

21.  On 24 February 2014, the Applicant was convicted of the offence of theft (shoplifting) and was sentenced to 8 weeks’ imprisonment.

22.  On 20 June 2014, the Applicant was convicted of the offence of theft (shoplifting) and was sentenced to 10 weeks’ imprisonment.

23.  On 22 December 2014, the Applicant was convicted of two counts of theft (shoplifting) and was sentenced to a total of 4 months’ imprisonment.

24.  On 3 December 2015, the Applicant was convicted of the offence of inhaling a dangerous drug and was sentenced to 6 months’ imprisonment.

25.  On 27 October 2016, the Applicant was convicted of the offence of theft and was sentenced to 3 months’ imprisonment.

26.  On 14 March 2019, the Applicant was convicted of theft (pickpocket) and was sentenced to 18 months’ imprisonment.

27.  On 25 January 2021, he was convicted of possession of dangerous drugs and was sentenced to 4 months’ imprisonment.

28.  On 14 July 2023, the Applicant was convicted of the offences of trafficking in dangerous drugs, using a false instrument, misleading a police officer by giving false information and conspiracy to trafficking in dangerous drugs and was sentenced to a total of 75 months’ imprisonment.

29.  The Applicant also failed to report recognizance or jumped court bail on the following occasions:

(1)  On 16 October 2012 (for 80 days);

(2)  On 24 October 2014 (for 13 days);

(3)  On 30 September 2016 (for 3 days);

(4)  17 August 2018 (for 113 days);

(5)  18 August 2020 (for 142 days); and

(6)  23 September 2020 (for 106 days).

30.  On 23 May 2025, a deportation order (“DO”) under s. 20(1)(a) of IO was issued against the Applicant.

31.  On 24 May 2025, the Applicant was discharged from prison and he was transferred to TGCI and he has since been detained under s.32(3) of IO.

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

32.  On 18 November 2005, the Applicant made a refugee claim with the United Nations High Commissioner for Refugees in Hong Kong but his case was closed on 23 November 2006.

33.  The Applicant lodged a torture claim on 13 November 2006 but his torture claim was refused by the Director on 19 September 2012.  His petition against the Director’s refusal was dismissed on 30 November 2012. 

34.  On 22 February 2013, the Applicant lodged a NRC under the Unified Screening Mechanism but this was refused by the Director on 14 December 2016 (“the Director’s Decision”).

35.  On 9 January 2017, the Applicant applied for late filing of his appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office against the Director’s Decision but this was refused on 23 June 2017 (“the Board’s Decision”).

36.  On 9 January 2020, 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 22 July 2025.  The Applicant was required to issue the Originating Summons on or before 5 August 2025.

B3.  Steps towards the removal of the Applicant

37.  Even prior to the Detention, on 5 October 2012, a letter was sent by ImmD to the Indian Consulate General of Hong Kong (“CG”) to seek assistance in issuing a travel document to the Applicant for his return to India.

38.  By letter dated 24 December 2015, CG confirmed the Indian nationality of the Applicant and stated that the Applicant may be brought to CG for interview along with photographs for issue of a travel document.

39.  On 30 September 2022, a letter was sent by ImmD to CG seeking assistance in issuing a travel document to the Applicant for his return to India with a copy of his expired Indian passport enclosed.

40.  By email on 3 November 2022, CG confirmed the Applicant’s identity and re-entry was assured.

41.  During the Detention, the Applicant was interviewed by ImmD (on 5 June 2025, 12 June 2025, 11 July 2025, 24 July 2025, 28 July 2025 and 6 August 2025) but expressed his unwillingness to return to India and unwillingness to comply with the re-entry application formalities.  He was reminded that his uncooperativeness would impede his removal and potentially prolong his detention.

42.  Given the Applicant’s uncooperativeness, ImmD issued a further letter to CG on 26 June 2025 seeking alternative means of re-entry to India.  CG reiterated that a 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

43.  The last review of detention was conducted by the Secretary on 8 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 given the court has granted leave to the Applicant to apply for judicial review in relation to his NRC on 22 July 2025 and the Applicant is required to commence proceedings by 5 August 2025.  It is expected that those proceedings will be settled and should the Applicant’s appeal/petition be remitted it is expected to be processed by the Board expeditiously and determined within a reasonable period of time;

(2)  The Applicant is a serious recidivist with over 20 convicted offences between 2006 and 2023 most committed while he was released on recognizance.  He was convicted of offences of a serious or violent nature and poses a threat or security risk to the community;

(3)  The Applicant had failed to report recognizance on 4 occasions with the longest having gone underground over 4 months and jumped bail on 2 occasions, coupled with his unwillingness to return and comply with the re-entry seeking formalities and lack of local connections, record of taking up unlawful employment, there was a real and substantial risk of his absconding or re-offending if released; and

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

C.  The Applicant’s Submissions

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

(1)  The Applicant believes that the Director cannot effect his removal or deportation within a reasonable time as his judicial review has not been determined.  He may further appeal all the way to the Court of Final Appeal and may lodge a subsequent claim later;

(2)  The Director cannot say when or how he will be removed;

(3)  The Director has not taken active steps to effect his removal including liaising with CG regarding issuance of a travel document;

(4)  The Director cannot and do not intend to deport him;

(5)  The period of detention has become unreasonable and unlawful;

(6)  He is not being detained for the purpose of deportation;

(7)  He can provide self-surety in the sum of HK$4,000 and is willing to report recognizance and comply with any conditions as the Director thinks appropriate;

(8)  His medical and physical health is suffering from the stress and pressure of the unlawful detention.  Although there is a doctor or medical officer, he has been given the same medicine (Panadol) for his problems which has a severe side effect to his health; and

(9)  He has unresolved issues which can lead to serious harm or death if he is returned.

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

(1)  He can provide a guarantor if released;

(2)  He has injury to his right leg which was fractured and nerves of his left leg are blocked which required medical attention from doctors at the hospital outside TGCI.  He has difficulties climbing stairs in TGCI;

(3)  He suffers from mental problems which also require medical attention from doctors outside TGCI but he has yet to been seen by them;

(4)  He has applied for legal aid for his judicial review and it will take time to go through the procedures and he will be detained for a long time; and

(5)  He has already served the sentence for the crimes he had committed.  He was not able to appeal because he is not educated and could not find anyone to help him.   

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

D.  Applicable Principles

47.  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.

48.  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.

49.  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.

50.  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.”

51.  Furthermore, at §37, it was held that 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. 

E.  Analysis

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

53.  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. 

54.  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).

55.  The starting point is that the period of detention to date is 88 days, against which the other factors must be weighed and balanced.

56.  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 proactive efforts to seek re-entry assistance from CG long before the Detention and the continued liaison with CG to secure the ETD. There were also numerous interviews with the Applicant in the hope that he would express willingness to return to India.  Therefore HS1 is satisfied.

57.  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 proactivity to verify the Applicant’s identity and seeking issuance of a travel document from CG, the regular interviews with the Applicant to seek his co-operation, the continued liaison with CG as well as DOJ, acting on behalf of the Director, writing to the High Court on 24 June 2025 seeking priority to be accorded to the JR Leave Application.  I take the view that HS4 is also satisfied.

58.  Whilst the Applicant’s application for judicial review has not been determined, the Director has proposed on 4 August 2025 that the Originating Summons to be filed by the Applicant be disposed of by consent by quashing the Board’s Decision and remitting the Applicant’s appeal to a differently constituted Board.  As was held by Coleman J in Ko Kang Suk v Director of Immigration & Anor [2023] HKCFI 2461, where leave to apply for judicial review has been granted and if accorded priority, it can reasonably be expected that the substantive judicial review application would be dealt with or determined within a matter of weeks or at most perhaps three months.  If there is agreed compromise and the applicant’s appeal/petition is remitted to the Board for determination, it is not necessary or appropriate at this stage to second-guess what will be the outcome and to estimate what time might be taken to reach a new decision by the Board.  Reviews of detention would continue in the interim and any relevant change of circumstances would be taken into account in light of the length of the detention.  See §§39-44.  

59.  I therefore take the view that, at the moment, it is not apparent that the substantive judicial review or a fresh determination by the Board cannot be determined within a reasonable period. The potential delay from the application for legal aid needs not to be taken into account for the reasons explained in Ko Kang Suk at §40.  If the judicial review or the appeal to the Board is determined against the Applicant, if the Applicant cooperates, he can be removed within a reasonable period of time.   Any attempts to delay the determination of the outstanding legal proceedings and/or failure to act promptly in respect of any steps required to be taken which prolongs his detention should not be regarded as unreasonable detention.  However, as mentioned, it is expected there would be further reviews of detention and any relevant change of circumstances will be considered in light of the length of the continuing detention.

60.  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.  Even if the Applicant takes the view that he has outstanding legal proceedings relating to his NRC, as held by the Court of Appeal in Johnson Benjamin, there is no reason why he should not be expected to cooperate with the relevant authorities to obtain travel documents to facilitate his removal once his NRC is determined.  His failure to do so should be regarded as unreasonable conduct.

61.  Whilst the Applicant also submits that he may make a subsequent claim, again, any detention prolonged by the Applicant’s delay in making such claims should not be regarded as unreasonable detention.

62.  I also accept the Secretary’s assessment that with his past convictions of very serious offences, mostly committed on recognizance, record 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 effects of the RO and 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).

63.  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.   From the records, it would appear that the Applicant was seen by the medical officers of TGCI in May and June 2025, and received necessary treatment for the complained injuries or conditions relating to his foot and groin.  He also attended follow-ups at the Government hospitals.  His request for X-rays was entertained and is pending. 

64.  Although the Applicant says that he cannot go back to India because his life is in danger, 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. 

65.  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.

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

F.  Conclusion

67.  By reason of the above, I dismiss the Application with no order as to costs.