NGUYEN LE HOAN v. SECRETARY OF SECURITY AND ANOTHER

HCAL 2517/2025

[2025] HKCFI 6384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2517 OF 2025

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BETWEEN

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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 13 November 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is presently being detained (“the Application”). He has been detained since 12 July 2025 making the period of detention to date 161 days (“the Detention”).

2.  On 17 November 2025, I directed the named Respondents to the Application, to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.

3.  An Initial Response/Skeleton Submissions for the Respondents dated 3 December 2025 (“the Response”) has been lodged. By letter dated 15 December 2025 from the Department of Justice (“DOJ’s Letter”) acting on behalf of the Respondents, an update was provided to this court of the various events since the lodging of the Response.

4.  By a handwritten letter in English, received by the High Court on 16 December 2025, the Applicant further made submissions to this court (“Applicant’s Letter”).

5.  At today’s hearing, the Applicant has appeared in person with the benefit of interpreters. He has confirmed that he was served the Response, a bundle of documents prepared by DOJ and DOJ’s Letter (the latter which I had summarised and my summary was interpreted to him). He also confirmed that, whilst the Applicant’s Letter was written in English, it was written for him having told his friend what to write and he signed the same.

6.  This is my Decision having heard the oral submissions of the Applicant and Miss Lai, Acting Assistant Principal Government Counsel for the Respondents.

B. Background

B1. Immigration status and stay in HK

7.  The Applicant is a Vietnamese national born on 2 August 1982.

8.  He claimed to have illegally entered Hong Kong by boat on 5 October 2020. He was arrested by the Police on 6 October 2020 for being a suspected illegal immigrant.

9.  On 15 October 2020, a removal order (“RO”) pursuant to s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant.

10.  On 29 September 2023, the Applicant was convicted of the offence of remaining in Hong Kong without the authority of the Director of Immigration (“the Director”) after having landed unlawfully in Hong Kong and was sentenced to 15 months minus 11 days’ imprisonment.

11.  On 19 April 2024, the Applicant was convicted of the offences of forgery and possessing equipment for making false instrument and was sentenced to a total of 2 years and 3 months’ imprisonment.

12.  Upon discharge from prison, he was detained at TGCI from 12 July 2025 until present.

13.  On 29 September 2025, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of IO.

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

14.  On 20 October 2020, the Applicant lodged a NRC which was refused by the Director on 30 August 2021 (“the Director’s Refusal”).

15.  The Applicant appealed against the Director’s Refusal but the appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on 30 March 2023 (“the Board’s Decision”).

16.  On 10 September 2025, during the Detention, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”). According to DOJ’s Letter, the JR Leave Application was heard by DHCJ Levy on 4 December 2025 but a decision is pending.

B3. Steps towards the removal of the Applicant

17.  The Applicant’s Vietnamese passport is valid until 4 October 2029.

18.  Since the Detention, regular interviews (on 5 August 2025, 7 August 2025, 17 September 2025, 30 October 2025, 7 November 2025 and 21 November 2025) were conducted with the Applicant but he expressed unwillingness to return to his home country.

B4. Reviews of Detention

19.  The last review of detention conducted by the Secretary for Security (“the Secretary”) was on 9 December 2025. Having considered and balancing the following factors, it was decided that the release of the Applicant on recognizance was not warranted:

(1) As the JR Leave Application has been heard on 4 December 2025, it is believed that JR Leave Application will be finalized within a reasonable period of time and with a valid Vietnamese passport, his removal is going to be possible within a reasonable period of time;

(2) A DO has been made against the Applicant and with the previous convictions of deportable offences of a serious nature it is considered that the Applicant constitutes a threat / security risk to the community and coupled with his unwillingness to return to his home country and lack of local connections, there is a real risk he may abscond/re-offend;

(3) The request for release on recognizance to take care of his girlfriend and sick son (but without medical proof), who are both non-refoulement claimants, were taken into consideration but did not outweigh the other factors in support of continued detention.

C. The Applicant’s Submissions

20.  In the Applicant’s Affirmation, apart from citing various legal principles and citations from cases clearly copied from previous similar applications, essentially, insofar as relevant to the Applicant, the following submissions were made:

(1) He has been detained for a very long time and the period is unreasonable;

(2) His removal cannot be effected within a reasonable time and the Respondents cannot say when or how they will effect removal when there is an ongoing JR Leave Application; and

(3) The Respondents have failed to take into account relevant considerations: he has a Hong Kong resident guarantor and his wife and son live in Hong Kong (their details were provided) “to overcome the risk of absconding”.

21.  In the Applicant’s Letter, he submitted:

(1) He wished to make “compassionate submissions” given that he has already lived in Hong Kong from 2020 to present, has established a family with his wife and son (although recognizance holders) in Hong Kong. He has already served his sentence for the criminal offences and the Detention is making his wife and children also “hard time” and they are suffering; and

(2) He has a Hong Kong resident friend who will act as his guarantor.

22.  At today’s hearing, the Applicant confirmed the preceding two paragraphs represents an accurate summary of his submissions. He further submitted in court that:

(1) His wife and son attended court today but his son being rather noisy due to his mental condition was advised to stay outside the courtroom;

(2) He and his family believe that this court would consider their circumstances and identity as non-refoulement claimants;

(3) He has been detained for 5 months and 7 days;

(4) The JR Leave Application has not yet been refused; and

(5) He has made numerous applications to the Respondents to be released to take care of his family. In particular, he mentioned that his son suffers from a mental illness which requires medical treatment at the hospital. However, his wife cannot speak Cantonese whereas he can speak Cantonese and write Chinese (having lived in Hong Kong for the past few years) and can solve the problem of seeking medical treatment and the needs of the family.

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

D. Applicable Principles

24.  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).

25.  I also remind myself that the burden is on the respondent to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

26.  Under s.32(4A) of IO, the detention of a person under s.32 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.

27.  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 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. … 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

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

29.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under: (a) s.32(3A) of IO pending his removal under the RO from 12 July 2025 to 16 September 2025; (b) s.29(1) of IO for making inquiry as to whether the Applicant ought to be deported under s.20 of IO between 17 September 2025 to 29 September 2025; and (c) s.32(3) of IO pending deportation between 29 September 2025 to present. There is no dispute that the RO and DO are valid and extant.

30.  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 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 Director will not be able to effect deportation/removal within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4) The Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

31.  The starting point is that the period of detention to date is 161 days against which the other factors must be weighed and balanced.

32.  I accept 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 also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evident from the regular interviews to ascertain Applicant’s willingness to return to Vietnam. Therefore HS1 and HS4 are satisfied.

33.  Whilst under the prevailing removal policy there is currently a legal impediment to the Applicant’s removal by the belated taking out of the JR Leave Application, I am confident that the JR Leave Application having been heard on 4 December 2025, a decision will be forthcoming within a reasonable period of time. By letter dated 15 December 2025, the clerk to DHCJ Levy has informed parties that it is estimated that judgment in respect of the JR Leave Application will be ready for handing down as soon as possible or in mid-January 2026. In any event, there will no doubt be further reviews of detention by the Director and Secretary in the interim period.

34.  Given that I have every confidence that the JR Leave Application could be determined within a reasonable period of time, and if dismissed, with a valid passport, there is no reason to believe that the Applicant’s removal cannot be effected within a reasonable period if the Applicant cooperates. Any further appeals upon the dismissal for leave to apply for judicial review do not constitute legal impediment to removal.

35.  Furthermore, given the serious delay and failure by the Applicant to promptly take out any NRC-related proceedings (the JR Leave Application was made more than 2 years out of time) which clearly contributed to the delay in its determination, any period of detention caused or prolonged by such unreasonable conduct should not be regarded as unreasonable. No doubt if the JR Leave Application was promptly taken out, there is a real possibility that it would have been determined prior to the commencement of the Detention and if determined against him, the Applicant removed long ago.

36.  Insofar as the Applicant had refused to cooperate with removal arrangements when there was no legal impediment to his removal (i.e. before the JR Leave Application was filed), and despite warnings that this would prolong his detention, the prolonged period of detention as a result of his unreasonable conduct should also 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.

37.  I also accept the Director’s and Secretary’s assessment that with his past conviction of offences of sufficient serious nature to lead to the issuance of the DO, coupled with the Applicant’s stated unwillingness to return and refusal to cooperate with the repatriation arrangements and lack of local ties (his wife and children are non-refoulement claimants with extant removal orders made against them), there is a real 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).

38.  I do not believe that the Applicant’s other submissions (including the effect of the Detention on him and his family) can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release on recognizance.

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

F. Conclusion

40.  Accordingly, I dismiss the Application with no order as to costs.