SUKHBIR SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2002/2025

[2025] HKCFI 5908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2002 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 14 May 2018 and 4 November 2025.  He has been held in immigration detention since 2 August 2025 pursuant to various sections of the Immigration Ordinance (“Ordinance”).  As at the date of the hearing before me, he has been detained for 125 days.

1.2  This is my decision on the Applicant’s application made on　4 September 2025 for a writ of habeas corpus.  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”)  and Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is an Indian national.  He entered Hong Kong illegally from the Mainland on 7 September 2015 and was arrested by the police on the same day.  At that time, he was in possession of his Indian passport which has since expired on 24 September 2023.

2.2  On 9 September 2015, the Applicant was referred to the Immigration Department for investigation.  He was released on recognizance on 7 October 2015.

2.3  On 11 June 2018, the Immigration Department decided not to prosecute the Applicant for illegal remaining.

2.4  On 2 October 2024, the Applicant was arrested by the Immigration Department.  On 4 October 2024, he was convicted of “Taking employment while being a person in respect of whom a removal order is in force” and sentenced to 15 months’ imprisonment.

2.5  On 2 August 2025, the Applicant was discharged from prison upon which the present detention commenced.

2.6  The Applicant has no family ties in Hong Kong.

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

3.1  The Applicant’s NRC was rejected by the Director on 9 January 2018.  His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 9 March 2020 (“TCAB Decision”).

3.2  Thereafter, on 7 April 2020, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 512/2020).  On 30 May 2025, DHCJ Philips Wong dismissed HCAL 512/2020[1] (“CFI Decision”).

4.  The present detention and its reviews

4.1  The Applicant was and is detained pursuant to the following sections of the Ordinance:

(1)  From 2 August to 20 October 2025, under section 32(3A)  pending his removal from Hong Kong pursuant to the Removal Order;

(2)  From 21 October to 3 November 2025, under section 29(1)  for inquiry as to whether a deportation order should be made;

(3)  Since 4 November 2025, under section 32(3)  pending removal from Hong Kong pursuant to the Deportation Order.

4.2  Even prior to the commencement of the present detention, the Immigration Department had been taking active steps in liaising with the Consulate General of the Republic of India (“CG”)  in seeking the Applicant’s reentry to India.

4.3  During the present detention, the Immigration Department has continued to take active steps in seeking the Applicant’s reentry to India.  However, the Applicant has throughout the present detention refused to render his cooperation in completing the reentry formalities.

4.4  By an email dated 7 October 2025, the CG confirmed the details of the Applicant as provided in his (expired)  passport were consistent with its records but stated that his true identity would only be confirmed after an interview with the Applicant.

4.5  On 5 November 2025, the Immigration Department wrote to the CG for possible means to issue to the Applicant a travel document notwithstanding the Applicant’s uncooperative attitude.

4.6  In the latest review of the Applicant’s detention conducted on 4 November 2025, the Applicant’s continued detention was considered to be justified by the following broad grounds:

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

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

(3)  The Applicant might abscond and/or reoffend;

(4)  The Applicant did not have close connection or fixed abode in Hong Kong;

(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 is unlawful because he has further avenues to challenge the CFI decision and he reasons that his removal is not possible within a reasonable time;

(2)  He fears for his own safety if he is now repatriated to India but is willing to return to his home country once his problems are resolved;

(3)  He has already served his imprisonment and promises not to (re)offend;

(4)  In any event, he has not committed any serious crime in Hong Kong;

(5)  He refers to the statistics which purportedly show that crimes committed by “visitors” are low in number and therefore do not justify the concern that he poses a security risk or threat to the community;

(6)  He suffers from emotional or psychological trauma for being unlawfully detained;

(7)  He offers HK$4,000 as bail money and promises to abide by recognizance conditions including regular reporting.

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.  First, he handed up a letter in which he largely repeated the materials (but in summary form)  in support of his application.  However, the position now adopted by the Applicant in the letter is that, were the present application unsuccessful, his preference is to return to his home country. Secondly, he has on 20 November 2025 made a request to make a subsequent claim (“SC Request”).

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 identified sections 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 125 days, against which the various other factors must be weighed and balanced. 

7.3  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.

7.4  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.  The foregoing is amply demonstrated by efforts made by the Immigration Department to liaise with the CG for the purpose of issuance of a replacement travel document to the Applicant and the duration taken for a decision to be made to issue the Deportation Order.

7.5  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 fact that the Applicant’s passport had expired.  It is plain from the chronology 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, the Director had on 28 November 2025 rejected the SC Request, on the basis that the Applicant did not provide any sufficient evidence to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was determined.

7.6  In the light of the nature of the Applicant’s criminal record, I am prepared to proceed on the basis that it does not give rise to a serious concern that he poses a threat or security risk to the community.  However, there remains a risk of (re)offending, which risk, if materializes, may delay his removal by reason of consequential investigations and potential court proceedings.

7.7  Perhaps more significantly, I accept the Respondents’ submission that there is a real risk of the Applicant absconding given his lack of local ties and his professed reluctance to return to his home country. 

7.8  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.  In any event, the Applicant's medical condition, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.9  As noted earlier, the latest position adopted by the Applicant is that, were the present application unsuccessful, his preference is to return to India.  It was explained to the Applicant that his departure from Hong Kong was still dependent on him rendering the necessary cooperation in completing the reentry formalities, which explanation the Applicant said he understood.

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, has been and will remain lawful.

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