RAJA MASIH v. HONG KONG SAR GOVERNMENT

HCAL 392/2026

[2026] HKCFI 3020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 392 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 by the Applicant filed on 12 February 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 17 January 2026 (“the Application”).  The period of detention to date is 126 days (“the Detention”).

2.  On 23 February 2026, I directed the named respondents 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 Director of Immigration and the Secretary for Security dated 15 May 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 2 bundles of documents prepared by the Department of Justice acting on behalf of the Respondents.

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

B.      Background

B1.     Immigration status and stay in HK

5.  The Applicant is an Indian national, born in 1997.

6.  On 27 February 2025, the Applicant took a Hong Kong-Zhuhai-Macao (“HZM”) bus that departed from HZM Bridge (Macao Port) and arrived at HZM Bridge (Hong Kong Port) on the same day.  According to video clips from surveillance cameras, upon getting off the bus, the Applicant climbed over a fence and entered Hong Kong illegally without performing immigration clearance.  The Applicant was later located by the Police and upon investigation, failed to produce any Hong Kong identity card or valid entry record to Hong Kong.  He had produced an Indian passport with validity until 29 March 2027 but a printout of “Notification Slip for Pre-Arrival Registration for Indian Nationals” found and seized was later assessed to be forged.

7.  The Applicant was under police or jail custody from 27 February 2025 to 5 September 2025 until he was convicted of the offences of remaining in Hong Kong without the authority of the Director of Immigration and possession of a forged document intended for the use for the purpose of the Immigration Ordinance for which he was convicted and sentenced to a total of 16 months’ imprisonment on 5 September 2025.

8.  On 7 January 2026, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of the Immigration Ordinance, Cap. 115 (“IO”).

9.  Upon his discharge from prison on 17 January 2026, he was detained at TGCI.

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

10.  On 25 March 2025, the Immigration Department (“ImmD”) received the Applicant’s written signification dated 7 March 2025 via his then legal representative (“LR”) indicating his intention to lodge a NRC.

11.  On 11 April 2025, when the Applicant was interviewed for fingerprints and photo taking, he was given amongst other documents a blank non-refoulement claim form (“NCF”) and was required to return the completed NCF within 28 days i.e. by 9 May 2025.

12.  On 29 April 2025, ImmD informed LR the completed NCF should be returned by 9 May 2025 and the Applicant was required to attend a screening interview on 22 May 2025.

13.  On 10 May 2025, when no completed NCF was received, the Applicant’s NRC was treated as withdrawn.  ImmD informed LR by letter dated 13 May 2025 (“Notice of Deemed Withdrawal”) that the NRC was treated as having been withdrawn on 10 May 2025.

14.  On 11 August 2025, ImmD received the Applicant’s letter dated 8 August 2025, requesting to have a screening interview and be allowed to stay in Hong Kong.

15.  On 3 September 2025, ImmD re-sent the Notice of Deemed Withdrawal to the Applicant.

16.  On 18 March 2026, ImmD received a letter dated 13 March 2026 from the Applicant requesting to re-open his NRC (“the Request”).

17.  On 20 March 2026, ImmD requested the Applicant to submit further information and evidence in support of the Request.

18.  On 2 April 2026, ImmD received the Applicant’s letter dated 30 March 2026 in relation to the Request.

19.  ImmD acceded to the Request on 13 April 2026.  He was required to return the completed NCF by 27 April 2026 and informed that the screening interview would be held on 26 May 2026 (which was later rescheduled to 12 May 2026 upon confirmation the assigned duty lawyer was available to attend).

20.  On 12 May 2026, the screening interview was conducted.

B3.     Steps towards the removal of the Applicant

21.  On 5 February 2026, in view of the then absence of legal impediment to the Applicant’s removal, ImmD commenced repatriation arrangement.

22.  On 12 February 2026. ImmD conducted an interview with the Applicant during which he expressed unwillingness to return to his home country and refused to cooperate with any repatriation arrangement.  He was reminded that his uncooperativeness would impede his removal and lengthen his detention.

23.  The Applicant maintained his unwillingness to return and refusal to cooperate with repatriation arrangements in subsequent interviews on 16 February 2026, 10 March 2026 and 30 April 2026.

24.  On 6 March 2026, a repatriation flight was scheduled for the Applicant for 28 May 2026.

B4.     Reviews of Detention

25.  The last review of detention was conducted by the Director of Immigration (“the Director”) on 13 May 2026.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)     The Applicant’s NRC could be determined within a reasonable time;

(2)     Given his serious criminal conviction coupled with his expressed unwillingness to return to India and lack of local ties, there exists a real risk of absconding and/or re-offending if released; and

(3)     Having considered all relevant factors including the length of detention, health concerns which had been referred to TCGI officers for their follow up, release on recognizance was not warranted.

C.      The Applicant’s Submissions

26.  In the Applicant’s Affirmation, the following submissions were made:

(1)     He has no record of absconding;

(2)     The Detention has continued for a period that is unreasonable;

(3)     It appears that he is being punished for a second time due to his criminal record when he had already served his sentence for his previous crimes; and

(4)     He should be released as his NRC is being processed.

27.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further supplemented that he is not educated and did not know he was acting contrary to the law.  He will undertake to comply with the law and rules and report to the Director on time as required.   He said that he will not abscond.  He further complained that he has a shoulder fracture but the next appointment at the hospital is not until 2027 and that he has only been given Panadol for his pain. 

28.  I will take the Applicant’s submissions into account, and give them the weight in the balancing exercise as seems to me to be appropriate.

D.      Applicable Principles

29.  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.

30.  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.

31.  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.

32.  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.  In particular, 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.”

E.      Analysis

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

34.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3) of IO from 17 January 2026 to 13 April 2026 and under s.37ZK of IO from 13 April 2026 to present. 

35.  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 for Security (“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).

36.  The starting point is that the period of detention to date is 126 days, against which the other factors must be weighed and balanced.

37.  I am of the view that the Applicant has been detained for the purpose of his removal, and upon the re-opening of the NRC he was detained pending the determination of the NRC and that the power of detention is being used only for those purposes.    I am also of the view that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal and but for the belated request to re-open the NRC, the Applicant would have been removed.  This is evident from interviews to ascertain Applicant’s willingness to return to his home country, the repatriation arrangement, according priority to the Request and advancing the date of the screening interview of the NRC.  Both HS1 and HS4 are satisfied.

38.  The belated request to re-open his NRC and not pursuing his NRC promptly and diligently which necessitated his prolonged detention should be regarded as unreasonable conduct and the period of detention should not be regarded as unreasonable.  Otherwise, it would result in an absurd situation where the more unreasonably or uncooperatively a detainee behaves in seeking to frustrate or delay his removal, the more likely he is to be released.  With the screening interview completed, and the estimate that the NRC would be determined in the week of 26 May 2026, I am of the view that the NRC could be determined within a reasonable period of time and if dismissed, with a valid passport, the Applicant can be removed within a reasonable period of time.  In the event the NRC is not dismissed or there is an appeal, no doubt there will be further reviews of detention if there is a material change of circumstances.

39.  I also accept the Director’s assessment given the Applicant’s conviction records of a serious nature, coupled with his unwillingness to return and lack of local connections, there is a real and substantial risk of the Applicant absconding and/or re-offending.   If he were to abscond 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).

40.  In relation to the Applicant’s claimed physical conditions, in view of previous decided cases, there is no reason to believe that the Applicant has not and 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 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.  The records show that when he was admitted to TGCI, he had a history of left clavicle fracture.  When he requested medical treatment on 30 April 2026, he was referred to a senior medical officer of TGCI who had consulted him and referred him to the Orthopedic Department of the Pamela Youde Nethersole Eastern Hospital with an appointment scheduled for 5 January 2027.  There is no evidence to suggest that the Applicant is medically unfit for continued detention.  

41.  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.

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

F.      Conclusion

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