PHUNG THI THUY DUNG v. IMMIGRATION DEPARTMENT

HCAL 971/2026

[2026] HKCFI 4337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 971 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 filed by the Applicant on 26 May 2026 seeking her release from Castle Peak Bay Immigration Centre (“CIC”) where she is presently being detained (“the Application”).  She has been detained since 20 April 2026 making the period of detention to date 102 days (“the Detention”).

2.  On 29 May 2026, I directed the named respondent 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 of the Respondent dated 16 July 2026 (“the Response”) has been lodged. 

4.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  She has confirmed that she has been served the Response and a bundle of document prepared by the Department of Justice (“DOJ”) on behalf of the Respondent.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Ko, Senior Government Counsel for the Respondent.

B.     Background

B1.     Immigration status and stay in HK

6.  The Applicant is a Vietnamese national born on 10 July 1991.

7.  On 22 July 2024, the Applicant was arrested by the Police in Hong Kong for being a suspected illegal immigrant.  She was in possession of Vietnamese passport, valid until 26 April 2027.  She was referred to the Immigration Department (“ImmD”) for investigation.  Upon enquiries, she claimed to have illegally entered Hong Kong on 21 July 2024.

8.  On 15 August 2024, the Applicant was released on recognizance.

9.  On 25 March 2025, a removal order (“RO”) pursuant to s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant. 

10.  The Applicant’s recognizance was ceased on 20 April 2026 and has been detained since then.

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

11.  On 24 July 2024, the Applicant indicated her intention to lodge a NRC. The NRC was rejected by the Director of Immigration (“the Director”) on 19 March 2025 (“the Director’s Refusal”).

12.  On 31 March 2025, 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 29 May 2025 (“the Board’s Decision”).

13.  On 6 June 2025, the Applicant applied for leave to apply for judicial review against and the Board’s Decision (“JR Leave Application”) which was refused by the Court of First Instance on 27 February 2026 (“CFI’s Refusal”).

14.  On 11 March 2026, the Applicant filed an appeal against the CFI Refusal.

15.  By letter dated 10 July 2026, the Applicant wrote to the Director seeking to lodge a subsequent claim.  By letter dated 17 July 2026, the Director informed the Applicant that no further action will be taken in respect of her claim.

B3.     Steps towards the removal of the Applicant

16.  On 27 April 2026, when interviewed by ImmD, the Applicant indicated her refusal to return to Vietnam.  Whilst previously, on 21 April 2026, the Applicant submitted that she wanted to go back to Vietnam as soon as possible, in subsequent interviews by ImmD (on 27 April 2026, 5 May 2026, 15 May 2026, 21 May 2026 and 30 June 2026), she refused to return.

B4.     Reviews of Detention

17.  The last review of detention was conducted by the Director on 6 July 2026.  Having considered and balancing the following factors, it was decided that the release of the Applicant on recognizance was not warranted:

(1)     The JR Leave Application was dismissed and whilst the Applicant has lodged an appeal, there is no legal impediment to her removal and if she cooperates, the Applicant could be removed within a foreseeable future when a removal operation is scheduled for 4 August 2026;

(2)     Having considered the Applicant’s unwillingness to return to her home country, there is a risk of her absconding; and

(3)     The provision of a guarantor, her claimed health concern as well as the length of detention been taken into consideration, but did not outweigh the other factors in support of continued detention.

C.     The Applicant’s Submissions

18.  In the Applicant’s Affirmation and her letter to the court dated 16 July 2026, essentially, the following submissions were made:

(1)     ImmD has failed to give her the time of her removal;

(2)     She is not detained pending removal but awaiting final determination of the NRC;

(3)     She has filed an appeal with the Court of Appeal and she has the opportunity to lodge a subsequent claim;

(4)     She has not committed any offence connected with violence or crimes of a serious nature;

(5)     She is willing to give an undertaking not to commit any offence or engage in illegal activities;

(6)     A Hong Kong permanent resident is willing to act as her guarantor and give various undertakings;

(7)     She can reside with her friend at a fixed place of abode in Hong Kong;

(8)     If returned, she faces the risk of being tortured or killed; and

(9)     She suffers from high blood pressure and previously fainted and has been hospitalized.  Every day she is going through the emotional and psychological trauma of being unlawfully detained and further detention is affecting her physical and mental health.

19.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of her submissions.   She also supplemented that during her stay in Hong Kong she has always abided with the law and has never committed any offence.  She wishes to stay in Hong Kong until her problems with her creditors are resolved and her life is not in danger anymore in her home country.  She repeated that her NRC is still under processing.

20.  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

21.  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).

22.  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.

23.  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.

24.  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(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

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

26.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A) of IO pending her removal under the RO.  There is no dispute that the RO is valid and extant. 

27.  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).

28.  The starting point is that the period of detention to date is 102 days against which the other factors must be weighed and balanced.

29.  Contrary to the Applicant’s submissions, 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.  These are evident from the regular interviews to ascertain Applicant’s willingness to return to Vietnam and the repatriation arrangements.   HS1 and HS4 are satisfied.

30.  Whilst the Applicant has appealed against the CFI Decision, this does not constitute a legal impediment to her removal.  With a valid passport and repatriation scheduled for 4 August 2026, if the Applicant cooperates, no doubt she can be removed within a reasonable period of time.  The Applicant has been explained her uncooperativeness would impede her removal and lengthen her detention.  Any period of detention caused, necessitated or prolonged by her 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.

31.  I also accept the Director’s assessment, given the Applicant’s stated unwillingness to return coupled with the lack of local ties (and bearing in mind she was an illegal immigrant), there is a real risk of the Applicant absconding.  If she were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO.  The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

32.  Although the Applicant says that she cannot go back to Vietnam because her life is in danger, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning her NRC and the court in her application for habeas corpus will not look at the merits of such claims.

33.  In relation to the Applicant’s claimed physical and mental conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required.  There is no record at CIC that the Applicant has suffered from high blood pressure and has been hospitalized during the Detention.  There is also no evidence to suggest that the Applicant is medically unfit for continued detention.  See 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.

34.  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 her release on recognizance.

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

F.     Conclusion

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