GURDEEP SINGH v. SECRETARY OF SECURITY AND ANOTHER

HCAL 59/2026

[2026] HKCFI 1527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 59 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 7 January 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is currently being detained (“the Application”).  He has been detained since 24 May 2025 making the period of detention to date 294 days (“the Detention”).

2.  This is the second application for writ of habeas corpus by the Applicant.  The first was filed on 13 June 2025 (“the 1^st Application”) and was dismissed by me following the hearing on 19 August 2025 (see [2025] HKCFI 3712 (“1^st Decision”)).

3.  On 9 January 2026, I directed the named respondents to the Application inter alia to lodge and serve their response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response/Skeleton Submissions for the Respondents dated 27 February 2026 (“the Response”) has been lodged on behalf of the Respondents.  

4.  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 two bundles of documents prepared by the Department of Justice (“DOJ”) acting on behalf of the Respondents.

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

B.      Background

6.  In sections B1-B3 of the 1^st Decision (see §§5-26), I had set out the background which shall not be repeated herein.   For convenience and ease of reference, unless otherwise indicated herein, I shall adopt the same definitions and abbreviations as the 1^st Decision.

7.  The salient events which occurred after the 1^st Application are as follows:

(1)     On 4 August 2025, the Legal Aid Department issued a Notice of an Application for Legal Aid stating that the Applicant has applied for legal aid in relation to his application for judicial review (“JR”);

(2)     On 21 August 2025, the Applicant was interviewed and enquired why he had not filed the Originating Summons (“OS”) by 5 August 2025 as scheduled.  The Applicant stated that he wished to proceed with the JR but needed more time to file the Originating Summons;

(3)     On 26 August 2025, the Applicant was interviewed and reminded to file the OS as soon as possible;

(4)     On 27 August 2025, DHCJ Michael Wong extended the time for the Applicant to issue the OS to 24 September 2025 pending the outcome of the Applicant’s legal aid application (which was extended to 25 September 2025 as the court was closed due to Typhoon Signal No.8);

(5)     When the extended deadline to file the OS had passed on 25 September 2025, when interviewed, the Applicant stated that he had not filed the OS because he was still waiting for legal advice and update from the Legal Aid Department;

(6)     On 26 September 2025, a legal aid certificate was issued to the Applicant in relation to the JR and a solicitor (“KCL”) was assigned to act for the Applicant;

(7)     Following correspondence between DOJ and KCL, an extension of time was agreed for the filing of the OS;

(8)     On 27 October 2025, DHCJ Michael Wong granted leave for the Applicant to issue the OS by 10 November 2025;

(9)     On 4 November 2025, the OS was served on DOJ;

(10)     On 10 November 2025, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) indicated its neutral stance to the OS.  However, KCL stated that the Applicant would only agree to conduct a fresh hearing with the Board by physical attendance before the Board;

(11)     On 11 November 2025, DOJ issued a letter to KCL proposing settlement with terms as sought by the Applicant in the OS;

(12)     On 17 November 2025, KCL replied to DOJ that they have to seek instructions on the proposed settlement;

(13)     On 22 December 2025, DOJ sent a chaser to KCL;

(14)     On 5 January 2026, KCL proposed that the hearing of the Applicant’s late-filing application be remitted to Board for fresh determination with physical attendance before the Board;

(15)     Between 7 January 2026 and 24 February 2026, there were rounds of correspondence between DOJ and KCL but parties could not reach agreement on settlement of the OS with KCL insisting that the fresh hearing before the Board should not be by way of video recording but by a physical hearing;

(16)     Meanwhile, ImmD continued to conduct interviews with the Applicant (on 21 August 2025, 26 August 2025, 9 September 2025, 25 September 2025, 10 October 2025, 7 November 2025, 11 December 2025, 14 January 2026 and 16 February 2026) but he maintained his unwillingness to return to India and refused to complete the re-entry seeking formalities. He was informed that his uncooperativeness would prolong his detention which would not be regarded as unreasonable detention;

(17)     ImmD also continued to liaise with CG by writing to CG on 1 September 2025, 25 September 2025, 31 October 2025, 27 November 2025 and 30 January 2026, for alternative means to issue the Applicant a travel document regardless of his uncooperative attitude;

(18)     The last review of detention was conducted by the Director on 26 January 2026.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(a)     The JR is expected to be finalized within a reasonable time;

(b)     The Applicant is a repeat offender who committed 25 counts of serious offences with drug and violence related nature between 2015 and 2023 with numerous absconding and jumping bail records.  It is assessed that he posed a threat/security risk to the community and may re-offend or abscond if released;

(c)     The fact that two Hong Kong permanent resident friends are willing to act as his guarantor and the length of detention have been taken into account but do not outweigh other factors against release stated above.

C.      The Applicant’s Submissions

8.  In the Applicant’s Affirmation, in gist, the following submissions were made:

(1)     The present detention is unlawful;

(2)     He has been detained since May 2025;

(3)     As he has been granted leave to proceed with the JR, it is clear that he cannot be deported from Hong Kong within a reasonable period of time and HS1 cannot be satisfied;

(4)     He is being detained pending the JR and not pending deportation;

(5)     In the 1^st Decision, the Court assumed that the substantive JR can be dealt with within three months but it is clear that the three months have passed, the JR has not been determined and will take much longer than three months.  HS2 and HS3 cannot be satisfied; and

(6)     He has no wish to abscond and must be physically present to conduct the fresh appeal before the Board and he has provided a guarantor to the Director.

9.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further submitted a 8-page handwritten document to this court.  In summary, it was stated:

(1)     He has been detained since 24 May 2025 purely pending the determination of the JR but not deportation and hence the Detention is unlawful;

(2)     His lawyer only received the legal aid certificate on 3 October 2025 and issued the OS on 3 November 2025 which was served on DOJ and the Board on 4 November 2025;

(3)     DOJ proposed settlement of the OS on 11 November 2025 and there were negotiations thereafter. However, there are two points that he insisted on: (a) the old version of s.37ZT(2) of IO need to be adopted: and (b) there be an oral hearing by the Board either on the 30^th Floor of the Immigration Tower or at TCGI because if the appeal is conducted by video he will be “under pressure and influence”, he cannot express his views and give evidence freely and the interpreter will be at the Board’s office;

(4)     It is not understood why DOJ says that they have no authority to agree on behalf of the Board on the mode of the hearing (when they are negotiating the settlement of the OS) so it is DOJ who delayed the settlement not him;

(5)     Even if the JR can be settled within a few months it does not mean he can be deported immediately as his claim has to be remitted to the Board for a fresh hearing and it should not be assumed that his appeal must be rejected.  Furthermore, even if it is rejected, he is entitled to apply for judicial review against the fresh decision and no one can say when it will be determined;

(6)     He has already been punished for his previous convictions and should not be further detained just for the prevention of crime;

(7)     He was previously released on bail sometime in 2020 despite his previous convictions and it is unfair that ImmD rely on his previous conviction prior to 2020 to now say that he is a repeat offender;

(8)     The risk of absconding and risk of re-offending cannot justify the length of indefinite detention;

(9)     The original lawful detention may cease to be lawful if continued for an unreasonable period;

(10)     He has provided details for his guarantor to ImmD on 21 October 2025; and

(11)     He does not recall that there were screening interviews for his NRC and given the Board had refused his application to file an appeal without enquires, his request for an oral hearing of the fresh appeal is reasonable.

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

D.      Applicable Principles

11.  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.

12.  I also 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.

13.  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.

14.  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.”

15.  Furthermore, at §37, it was held that even if there are ongoing NRC, 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 NRC is disposed of. 

E.      Analysis

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

17.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3) of IO pending his removal from Hong Kong.  There is no dispute that the DO made against the Applicant is valid and extant. 

18.  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/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).

19.  The starting point is that the period of detention to date is 294 days, against which the other factors must be weighed and balanced.

20.  I accept that the Applicant has been detained for the purpose of his removal from Hong Kong and that the power of detention is being used only for that purpose.  This is evident from the Director’s proactive efforts to seek re-entry assistance from CG long before the Detention and the continued liaison with CG to secure the ETD during the Detention.  There were also numerous interviews with the Applicant in hope that he would express willingness to return to India.  Therefore, HS1 is satisfied.

21.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the Director’s proactivity to seek ETD from CG, the regular interviews with the Applicant to seek his co-operation, and following up on the OS and its disposal.  I do not accept that DOJ had delayed the settlement of the OS as it is clear that it was the Applicant who been insisting on matters that was beyond the relief sought in the OS when the Director and the Board had in November 2025 already agreed to the relief sought in the OS.  It is unreasonable for the Applicant to insist on an oral hearing when s.37ZT(2) of IO provides that the Board must decide as a preliminary decision without a hearing whether to allow the late filing of the notice of appeal.   I am of the view that HS4 is also satisfied.

22.  Whilst the JR has not yet been disposed of, the Applicant has clearly acted unreasonably in delaying the filing of the OS and the disposal of the JR.   In these circumstances, it lies ill in his mouth to rely on the fact that the JR has not now been disposed of (notwithstanding in the 1^st Decision I expressed the view that it could reasonably be expected the JR could be determined within three months) to argue that his removal is not possible within a reasonable period of time.  The prolonged period of detention as a result of his unreasonable conduct should 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.

23.  Furthermore, I take into consideration the previous unreasonable inaction to file the JR Leave Application (made more than 27 months out of time against the Board’s Decision which whilst granting leave to JR, DHCJ Michael Wong commented that “the delay in the present case was substantial and the reasons the applicant provided were unsatisfactory”) which clearly contributed to the delay in the determination of his NRC. No doubt if the JR Leave Application was promptly taken out, there is a real possibility that the JR and any fresh consideration by the Board would have been determined prior to the commencement of the Detention.

24.  If the Applicant diligently pursues the disposal of the OS and not delay any fresh determination by the Board, I have no reason to believe that his NRC would not be determined within a reasonable period of time and if determined against him, there will be no legal impediment to his removal.  If, as I already have held in the 1^st Decision that he should, he cooperates with the re-entry formalities, there is no doubt that he can be removed within a reasonable period of time once his NRC is determined.   Whilst the Applicant submits that his appeal may succeed, as there no doubt will be interim reviews of detention triggered by any relevant change of circumstances or continuing length of detention, I do not have to speculate on the outcome of the Board’s fresh determination.

25.  I also accept the Director’s assessment that with his past convictions of offences of very serious nature, record of absconding, coupled with the Applicant’s stated unwillingness to return and lack of local ties, there is a real risk of the Applicant re-offending and/or absconding.  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).

26.  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.

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

F.      Conclusion

28.  By reasons of the above, I dismiss the Application with no order as to costs.