PRAWIT YUSUK v. SECRETARY FOR SECURITY

HCAL 2063/2025

[2025] HKCFI 6259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2063 OF 2025

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively dated 25 September 2014 and 16 November 2021.  He has held in immigration detention since 19 May 2025 pursuant to section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) pending his removal under the Deportation Order.  As at the date of the hearing before me, he has been detained for 211 days.

1.2  This is my decision on the Applicant’s application made on 12 September 2025 for a writ of habeas corpus.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Angela Li, Government Counsel, appeared for the Director of Immigration (“Director”) and Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Thai national.  He arrived in Hong Kong on 28 July 2013 and was allowed to remain as a visitor until 26 October 2013.  He has since 27 October 2013 overstayed in Hong Kong.

2.2  The Applicant’s mother is and his half-sister was Hong Kong permanent resident.  His half-sister passed away in July 2023.

2.3  The Applicant has committed (and has been convicted) the following offences:

(1)  On 17 April 2014, he was sentenced for his convictions of (a) theft, (b) possession of dangerous drug, (c) breach of condition of stay (overstay), (d) 2 counts of possession of an identity card relating to another person to a term of 12 months’ imprisonment;

(2)  On 2 January 2015 he was sentenced for his conviction of assault occasioning actual bodily harm to 2 month’s imprisonment suspended for 12 months;

(3)  On 3 February 2015, he was sentenced for his convictions of (a) theft and (b) breach of suspended sentence to a total of 3 months’ imprisonment;

(4)  On 6 October 2015, he was sentenced for his convictions of 2 counts of assaulting a police officer to a term of 4 weeks’ imprisonment;

(5)  On 5 November 2015, he was sentenced for his convictions of 2 counts of assaulting a police officer to a term of 20 days’ imprisonment;

(6)  On 19 December 2015, he was sentenced for his conviction of theft to a term of 7 days’ imprisonment due to non-payment of fine and compensation;

(7)  On 31 May 2016, he was sentenced for his conviction of loitering to a term of 2 months’ imprisonment;    

(8)  On 25 May 2017, he was sentenced for his conviction for possession of part 1 poison and sentenced to 6 weeks’ imprisonment suspended for 12 months;

(9)  On 15 October 2018, he was sentenced for his conviction of handling stolen goods to a term of 14 months’ imprisonment;

(10)  On 21 October 2020, he was sentenced for his conviction of burglary to a term of 28 months’ imprisonment;

(11)  On 17 October 2024, he was sentenced for his conviction of burglary to a term of 30 months’ imprisonment.

2.4  The present detention commenced upon the Applicant’s discharge from prison having served the last prison term identified in the preceding paragraph.

2.5  The Applicant has also failed to report recognizance on 6 occasions in December 2014, June 2015, January 2016, March 2017, November 2019 and September 2023.  On each occasion, he was arrested by the police. 

2.6  It is pertinent to note that, on 28 February 2023, the Applicant filed his first application for a writ of habeas corpus under HCAL 312 of 2013.  At that time, as Applicant’s half-sister was in poor health, the Applicant was released on recognizance on 11 March 2023 to allow him to take care of his mother and his half-sister and HCAL 312 of 2023 was withdrawn.

3.  Non-refoulement claim (“NRC”) and related proceedings

3.1  On 4 May 2016, the Applicant’s NRC on the grounds of torture, BOR3 and persecution risks was rejected by the Director.

3.2  On 3 October 2017, the Applicant’s NRC on the ground of BOR 2 was further rejected by the Director (“2017 Decision”).

3.3  On 9 November 2017, the Applicant lodged an appeal/petition against the 2017 Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, which application was dismissed on 18 June 2020 (“TCAB Decision”).

3.4  On 4 April 2022, the Applicant’s application for leave to apply for judicial review against the TCAB Decision (HCAL 1689/2021) was dismissed by the Court of First Instance, and the Applicant’s subsequent applications to challenge HCAL 1689/2021 were all unsuccessful, the latest development being the Court of Appeal’s refusal on 27 October 2023 to grant leave for the Applicant to appeal to the Court of Final Appeal.

3.5  During the present detention, on 30 October 2025, the Applicant requested to make a subsequent claim (“SC Request”).

4.  The present detention and its reviews

4.1  As early as in May 2014, the Royal Thai Consulate General (“CG”) confirmed that it stood ready to facilitate the deportation of the Applicant by issuing him a travel document. Since then, the Immigration Department has regularly been in touch with CG by way of letters, emails and telephone to facilitate the Applicant’s reentry.

4.2  Throughout the present detention, at interviews conducted on 12 June, 13 June, 9 July, 15 July, 11 August, 25 August, 26 August, 15 September, 28 October and 26 November 2025, the Applicant has steadfastly indicated his unwillingness to return to his home country and refused to cooperate in completing the reentry formalities.  Despite efforts made by the Immigration Department to explore alternative means, the CG has reiterated the need to complete the reentry formalities before a replacement travel document would be issued to the Applicant.

4.3  In the latest review of the Applicant’s detention conducted on 3 December 2025, the Applicant’s continued detention was considered to be justified by the following broad grounds:

(1)  The SC Request could be determined within a reasonable time;

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

(3)  The Applicant posed or was likely to pose a threat or security risk to the community;

(4)  The Applicant might abscond and/or (re)offend;

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

5.  The Applicant’s submissions

5.1  The Applicant's grounds in support of the present application set out in his written materials may be summarized as follows:

(1)  The present detention has continued for a period which has become unreasonable;

(2)  His SC Request is still being processed and his removal in the meantime cannot be effected;

(3)  He is suffering from hyper tension and his continued detention is affecting his physical, mental and emotional health;

(4)  He promises not to abscond;

(5)  He asserts that he does not pose a threat or security risk to the community as he had never committed any offence involving violence;

(6)  Her mother is willing to act as his guarantor.

5.2  At the hearing, the Applicant confirmed that the above matters represent an accurate summary of the grounds of his application.  He supplemented as follows.  He said that his mother is suffering from HIV and he wishes to take care of her and the two children left behind by his late half-sister.  Upon being informed of the fact that his SC Request was rejected on 11 December 2025, he submitted that he wished to remain in Hong Kong for around 2-3 years to take care of his mother and for his nephews who are now aged 12 and 10 to reach a more mature age and in the position to take care of themselves.  His mother, who was in court, also urged the court to release the Applicant.

5.3  Upon the court’s query, the Applicant said that he was aware that his mother was not well in 2023 when he was released on his previous application for a writ of habeas corpus although he was not aware of the full extent of his mother’s illness.

6.  The applicable principles

6.1  he 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 section 32(3) of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2  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 211 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 and the Secretary 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 and the Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.

7.4  As at the commencement of the present detention, there was no legal impediment to the Applicant's removal by reason of the Updated Removal Policy. The only impediment was a practical one due to the need for a replacement document to be issued to the Applicant.  It is plain from the above that the present detention has been, and continues to be, lengthened due to the Applicant's refusal to render cooperation in completing the reentry formalities.  That there is no legal impediment to the Applicant's removal is not changed by the SC Request.  First, a legal impediment would not arise unless a request is granted to the Applicant to make a subsequent claim. Secondly, whilst as an act of indulgence, the Applicant will not be removed until the determination of the SC Request, it was anticipated that that process would be completed 8 weeks from the time when the SC Request was made on 30 October 2025, ie by the end of December 2025.  At the hearing, I was informed that the SC Request was rejected on 11 December 2025.  Thirdly, and importantly, parallel to the determination of the SC Request, as observed at Johnson Benjamin §37, it is unreasonable for the Applicant in the meantime not to cooperate in completing the reentry formalities.

7.5  In the light of the history and nature of the Applicant’s criminal record, I agree with the Respondents’ submission that he does present a threat or security risk to the community.  The risks of (re)offending are also real, and if materialize, may delay his removal by reason of consequential investigations and potential court proceedings.

7.6  In the light of the Applicant’s absconding records, I also accept the Respondents’ submission that there is a real risk of the Applicant absconding given his professed reluctance to return to his home country. 

7.7  I do not regard the fact that Applicant’s mother is willing to act as his guarantor ameliorates the foregoing risk.

7.8  I do not accept that the Applicant’s wish to take care of the mother and the nephews outweigh the factors against his release.  In particular, as mentioned at §2.6 above, the Applicant was previously released to take care of his family in March 2023 and one would have thought that the burden on him to look after his mother and his nephews crystallized in July 2023 when his late half-sister passed away.  Yet, in 2024, he committed burglary and was sentenced to a term of 30 months’ imprisonment.  In my view, the Applicant’s promise that he will try his best to fulfill his duties to his family on this occasion if released is entirely suspect.  I also take note of the fact that the allegation that his mother is suffering from HIV was only disclosed at the hearing today and there is no formal medical records in support of the same.

7.9  In relation to the Applicant's claimed health conditions, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained.

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, has been and will remain lawful.

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