MANE HAMIROU v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2576/2025

[2026] HKCFI 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2576 OF 2025

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D E C I S I O N

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A. Introduction

1.  I have before me an application for writ of habeas corpus filed by the Applicant on 21 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 21 June 2025 making the period of detention to date 199 days (“the Detention”).

2.  On 25 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.  A Response for the 1^st and 2^nd Respondents dated 22 December 2025 (“the Response”) has been lodged.

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 2 bundle of documents prepared by the Department of Justice (“DOJ”) on behalf of the Respondents.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Hung, Government Counsel for the Respondents.

B.     Background

B.1    Immigration status and stay in HK

6.  The Applicant is a national of Guinea born on 3 June 1990.

7.  The Applicant arrived in Hong Kong on the strength of his Guinean passport on 30 November 2014 and was permitted to remain as a visitor until 3 December 2014.  He did not depart and overstayed in Hong Kong since 4 December 2014.

8.  On 8 December 2014, he surrendered to the Immigration Department (“ImmD”) and was released on recognizance on 16 January 2015.

9.  The Applicant did not report recognizance on 1 April 2015 and it was only upon arrest on 4 September 2015 was he referred by the Police to ImmD for investigation.

10.  On 21 September 2015, a removal order (“RO”) pursuant to s. 19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant.

11.  On 21 August 2017, the Applicant was convicted of the offence of trafficking in purported dangerous drug and was sentenced to 16 months’ imprisonment which was substituted by 6 months’ imprisonment on review on 22 August 2017.

12.  On 2 May 2024, the Applicant was convicted of the offence of possession of dangerous drug and was fined HK$3,000.

13.  On 26 November 2024, the Applicant was convicted of two counts of trafficking in dangerous drug and was sentenced to 16 months’ imprisonment for each count running concurrently.

14.  Upon discharge from prison, he was detained at TGCI from 21 June 2025 until present.

B.2    The Applicant’s Non-refoulement Claim (“NRC”) and related legal proceedings

15.  On 7 September 2015, the Applicant lodged a NRC which was refused by the Director of Immigration (“the Director”) on 24 October 2017 (“the Director’s Refusal”).

16.  On 31 October 2017, 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 15 February 2018 (“the Board’s Decision”).

17.  On 23 February 2018, the Applicant applied for leave to apply for judicial review against and the Board’s Decision (“JR Leave Application”).

18.  On 11 January 2019, the JR Leave Application was dismissed (“CFI’s Decision”).

19.  On 7 January 2021, the Court of First Instance refused the Applicant’s application to seek extension of time to appeal against the CFI’s Decision.

20.  On 6 September 2021, the Court of Appeal dismissed the Applicant’s renewed application for extension of time to appeal against the CFI’s Decision (“CA’s Decision”).

21.  On 29 April 2022, the Court of Appeal dismissed the Applicant’s notice of motion for leave to appeal to the Court of Final Appeal against the CA’s Decision.

22.  On 11 May 2023, the Applicant’s application for leave to appeal to the Court of Final Appeal was dismissed by the Appeal Committee of the Court of Final Appeal.

23.  On 29 May 2023, the Applicant made a written request to make a subsequent claim but this was rejected by the Director on 3 August 2022.

24.  On 4 September 2025 and 10 September 2025, the Applicant made a second written request to make a subsequent claim but this was rejected by the Director on 5 November 2025 (“SC Refusal”).

25.  On 10 December 2025, the Applicant filed an application (HCAL 2729/2025) for leave to apply for judicial review against the SC Refusal (“SC JR Leave Application”).

26.  By letter dated 10 December 2025, the Registrar of the High Court wrote to the Applicant noting that the Applicant had already filed a similar application in HCAL 294/2018.  He was directed to show cause in writing within 7 days from the date of the letter why his SC JR Leave Application should not be struck out on ground of abuse of court process.

27.  By letter dated 15 December 2025, DOJ sought assistance from the Registrar of the High Court for priority to be accorded to the SC JR Leave Application.

B.3    Steps towards the removal of the Applicant

28.  Even prior to the Detention, by letter dated 25 September 2017, ImmD sought assistance from the Honorary Consul of Republic of Guinea (“CG”) for confirming the Applicant’s nationality and issuing a travel document to the Applicant for his return to Guinea.

29.  By letter dated 15 January 2021, ImmD sought assistance from the Embassy of the Republic of Guinea, Beijing (“Embassy”) to issue to the Applicant a replacement travel document and to confirm his re-entry to Guinea.  Follow-ups by emails and letters were made on 17 May 2022, 29 June 2023, 1 December 2023 and 29 April 2024.  On 11 December 2024, the Embassy replied that phone interview with the Applicant was required for verification of identity.

30.  However during regular interviews both before and after the commencement of the Detention (on 19 January 2021, 4 January 2024, 6 May 2024, 15 July 2025, 28 July 2025, 18 August 2025, 28 August 2025, 16 September 2025, 10 October 2025, 18 November 2025, 11 December 2025 and 19 December 2025) conducted with the Applicant, he expressed unwillingness to return to his home country and refused to comply with the re-entry seeking formalities.  He was informed that his uncooperativeness would impede his removal and prolong his detention.

31.  Given the Applicant’s uncooperativeness, ImmD sought assistance from the Embassy for any possible alternative means to issue a replacement travel document and confirm the Applicant’s re-entry regardless of his uncooperative attitude.  On 29 August 2025, it was confirmed with the Embassy that recent photos of the Applicant and attendance at a phone interview was required, and subject to the Applicant’s cooperation, it is anticipated that a travel document could be issued to the Applicant in around 1 month.

B.4    Reviews of Detention

32.  The last review of detention conducted by the Director was on 16 December 2025.  Having considered and balancing the following factors, it was decided that the release of the Applicant on recognizance was not warranted:

(1)     His application for leave for judicial review in relation to his NRC was refused by the Court of First Instance on 11 January 2019 and further legal proceedings have all been refused.  Whilst the Applicant filed an application for leave to apply for judicial review in relation to the refusal to lodge a subsequent claim, it is believed that it will be determined within a reasonable period of time and the Applicant’s removal is going to be possible within a reasonable period of time;

(2)     With the previous convictions of offences of a serious nature, history of absconding, unwillingness to return to his home country and lack of local connections, it is considered that there is a real risk he may abscond/re-offend; and

(3)     There are no other factors in support of termination of detention.

C.     The Applicant’s Submissions

33.  In the Applicant’s Affirmation, essentially, the following submissions were made:

(1)     He has a right to raise a subsequent claim and the application for leave to apply for judicial review is pending which is a legal impediment to his removal.  He can still pursue subsequent appeals and application for judicial review;

(2)     The assertion that his removal is possible within a reasonable time frame is unfounded;

(3)     His detention does not have a time and date of release.  ImmD cannot give him a time for his removal;

(4)     He has never committed any crimes of a violent or serious nature and is willing to give an undertaking not to commit any offence or engage in illegal activities.  He does not pose a security risk or threat to the community;

(5)     He does not have a history of absconding and is willing to report to ImmD and comply with any conditions as the Director thinks appropriate and provide self-surety of HK$4,000;

(6)     The Director has not taken active steps to liaise with the Embassy;

(7)     There is a risk to his life if he is returned to his home country; and

(8)     The continued detention poses a significant threat to his health.

34.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He also supplemented that he wished to be released to await the result of the SC JR Leave Application and so that he can pay the fine in relation to his conviction mentioned above within the deadline which had been extended for 3 months to January 2026.

35.  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

36.  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).

37.  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.

38.  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.

39.  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.”

40.  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

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

42.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s. 32(4A) of IO pending his removal from Hong Kong. There is no dispute that the RO is valid and extant.

43.  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).

44.  The starting point is that the period of detention to date is 199 days against which the other factors must be weighed and balanced.

45.  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 proactive efforts and continued liaison with the Embassy to secure a travel document for his return and the regular interviews to ascertain Applicant’s willingness to return to his home country as well as writing to the High Court to seek priority to have his application for judicial review determined.  I am of the view that both HS1 and HS4 are satisfied.

46.  Whilst the SC JR Leave Application has not been determined, if accorded with priority, I am confident that it will be determined within a reasonable period of time.  If dismissed and the Applicant cooperates, he can be removed within a reasonable time.  In any event, in the meanwhile, there will no doubt be further reviews of detention conducted by the Director.

47.  Furthermore, as held by the Court of Appeal in Johnson Benjamin, even if the Applicant takes the view that he has outstanding legal proceedings in relation to his NRC, there is no reason why he should not be expected to cooperate with the relevant authorities to obtain the travel document to facilitate his removal once his NRC is determined.  His failure to do so should be regarded as unreasonable conduct and 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.

48.  I also accept the Director’s assessment that with his past conviction of offences of serious nature, as demonstrated by the sentences imposed, his absconding record coupled with his unwillingness to return and refusal to cooperate with the re-entry formalities and lack of local ties, 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 RO.  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).

49.  Although the Applicant says he cannot go back to Guinea because his 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 his NRC and the court in his application for habeas corpus will not look at the merits of such claim.

50.  As for the Applicant’s claimed risk to his well-being if he is further detained, there is no evidence to suggest that he is not medically fit for continued detention or that he will not receive adequate medical treatment whilst being detained (if necessary).  At today’s hearing, records were submitted which showed that the Applicant had received various medical treatments for his complaints whilst in Detention and has been referred to the public hospital to receive treatment.

51.  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 on recognizance.

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

F.     Conclusion

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