HOANG VAN NANG v. DIRECTOR OF IMMIGRATION

HCAL 39/2026

[2026] HKCFI 1022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 39 OF 2026

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 6 January 2026, the Applicant seeks leave to apply for judicial review so as to challenge the 23 December 2025 decision (“Impugned Decision”) of the Director of Immigration (“Director”) to maintain and proceed with the prosecution against the Applicant on the charge of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

2.  The Form 86 is made in a recognizable standard form, nearly identical to a number of similar recent applications.

3.  Having considered the Form 86 together with the supporting affirmation filed by the Applicant, I am satisfied that it is appropriate to deal with the application on the papers.

4.  This is my Decision.

B.  Background

5.  The Applicant has previously made applications for leave to apply for judicial review in HCAL 1319/2019 and HCAL 2533/2023, and some of the following background matters are taken from the decisions made in those proceedings, twice refusing leave to apply for judicial review.

6.  The Applicant is a Vietnamese national. He says he entered Hong Kong illegally on 22 March 2015, and surrendered to the Immigration Department on 24 March 2015.

7.  At the same time, he raised a non-refoulement claim (“NRC”). His claim was made on the basis that, if returned to Vietnam, he would be harmed or killed by his creditor. On 28 August 2017, the Applicant’s NRC was dismissed by the Director on all grounds.

8.  The Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision. He attended an oral hearing before the Board on 19 March 2019, when he gave evidence and answered questions raised by the Adjudicator for the Board. On 10 May 2019, the appeal was dismissed by the Board. The Board found the Applicant’s claims to be not credible.

9.  On 16 May 2019, the Applicant filed a Form 86 in HCAL 1319/2019, seeking leave to apply for judicial review of the Board’s decision. The supporting affirmation did not set out any specific ground. On 24 February 2024, Deputy High Court Judge KW Lung refused leave to apply for judicial review: see [2024] HKCFI 329.

10.  On 10 May 2024, the Court of Appeal dismissed the Applicant’s appeal from the decision of the Deputy High Court Judge: see [2023] HKCA 415. On 8 August 2024, the Court of Appeal refused the Applicant’s application for leave to appeal to the Court of Final Appeal: see [2024] HKCA 731. On 20 June 2025, the Court of Final Appeal later dismissed a further application for leave to appeal.

11.  On 23 June 2025, the Applicant applied to the Director for making a “subsequent claim” for non-refoulement protection. That claim was refused by the Director on 3 September 2025.

12.  On 17 November 2025, the Applicant filed an application in HCAL 2355/2025 seeking leave to apply for judicial review so as to challenge the Director’s decision. Leave was refused by DHCJ KW Lung on 4 February 2026. At the same time, the Court made a Restrictive Proceedings Order (“RPO”) against the Applicant.

13.  In the meantime, in 2018, the Applicant was charged with the offence of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, in case number STCC 1008/2018. The matter was last adjourned until 18 March 2026.

14.  The Applicant apparently applied to the Immigration Department to withdraw the prosecution against him for that charge. On 23 December 2025, the Director informed the Applicant that, after consideration, the request could not be acceded to, and the Director would proceed with the charge against him (i.e. the Impugned Decision). The Impugned Decision letter refers to the forthcoming hearing on 18 March 2026.

C.  This Application

15.  By his Form 86 dated 6 January 2026, the Applicant commenced these proceedings seeking leave to challenge the Impugned Decision. The ‘grounds’ on which relief is sought can be summarised as follows:

(1)  Although he has broken the law in Hong Kong and entered the country illegally many times, he had no choice but to flee to Hong Kong because his life was in real danger.

(2)  He would like to provide further evidence that his creditor in Vietnam is still searching for him and harming him and his family.

(3)  He also served his sentence for a previous sentence of possession of stolen property, but the value of goods was not high and does not cause serious consequences or seriously affect or harm the community.

(4)  The charge now faced is too serious for his case, and his request to withdraw and cancel the prosecution is reasonable.

(5)  Since being prosecuted, he has been deeply aware of the need to be careful and comply with the law. Since then, he has never violated anything again, and he has no intention of reoffending.

(6)  He has always reported to the Immigration Department on time and on schedule, and to the Magistrates’ Court in respect of the immigration charge.

(7)  His girlfriend and he have a child together in Hong Kong. The possibility that he will be convicted and sentenced to time in jail would likely affect the mental and physical health of his child as well as his girlfriend.

(8)  He has learned from some of his fellow Vietnamese, who had committed offences and fully served their sentences, that they were prosecuted for the immigration offence, but that charge was later withdrawn.

(9)  Therefore, because of the similarities with those people, he hopes that the Court and the Immigration Department will consider and cancel the prosecution of him.

16.  The relief sought is (1) an order of certiorari to quash the Impugned Decision, and (2) an order of mandamus to compel the Director to reconsider his decision.

D.  No Merit

17.  With respect, the Applicant’s application has no merit.

18.  It is trite that an applicant for leave to apply for judicial review must identify on the Form 86 the public law grounds which the applicant says are of sufficient merit for the grant of leave. It is not for the Court to try to identify grounds for an applicant. However, the Applicant’s Form 86 has failed to identify any proper reasonably arguable public law grounds of review, on which the relief is sought. The Applicant sets out some background circumstances and merely expresses a request or hope that the prosecution against him can be withdrawn. No public law error on the part of the Director is suggested. This is a breach of the mandatory requirements in Order 53 rule 3 of the Rules of the High Court, and is also fatal to the application.

19.  Secondly, the attempt to re-run arguments as to non-refoulement protection will not be entertained, not least in light of the RPO and also because in any event that is irrelevant to the prosecution decision.

20.  Further, it is very rare for a Court exercising its judicial review jurisdiction to intervene in a prosecutorial decision. As the law now stands in Hong Kong, and by virtue of Article 63 of the Basic Law, prosecutorial decisions made by the Department of Justice (or Immigration Department) are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality.

21.  Nothing in the materials filed by the Applicant puts forward any alleged ground of unconstitutionality. Seeking to compare his situation with that of others, or referring to humanitarian or compassionate circumstances, or expressing the hope that the Impugned Decision might be reviewed, does not identify any such ground.

E.  Result

22.  The Applicant has failed to identify any reasonably arguable public law ground of review with any realistic prospect of success.

23.  Therefore, I dismiss the Applicant’s application for leave to apply for judicial review. I make no order as to costs.