SULALAH v. HONG KONG SAR GOVERNMENT

HCAL 1463/2025

[2025] HKCFI 3704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1463 OF 2025

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D E C I S I O N

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1.   Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively dated 4 October 2021 and 19 November 2024.  She has been held in immigration detention since 5 December 2024 pursuant to section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, she has been detained for 258 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 25 June 2025.  At the hearing, the Applicant appeared in person with the benefit of an interpreter.  Mr Simon Au, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.   Background

2.1  The Applicant is an Indonesian national.  She arrived in Hong Kong as a foreign domestic helper and her last employment contract was terminated on 15 November 2019. Her limit of stay was valid until 29 November 2019.  She has overstayed since 30 November 2019.  The Applicant’s passport was valid until 16 May 2022.

2.2  On 26 August 2021, the Applicant was arrested by the police and later referred to the Immigration Department for investigation.  On 15 September 2021, the Applicant was released on recognizance.

2.3  Whilst on recognizance, on 20 March 2024, the Applicant was convicted of “Taking up employment while being a person who remains in Hong Kong in breach of the limit of stay” and “Using a forged identity card”.  She was sentenced to a total of 15 months’ imprisonment to run concurrently.

2.4  The present detention commenced upon the Applicant’s discharge from prison.

2.5  The Applicant’s family members are mostly in Indonesia.  She claims to have a younger sister working as a foreign domestic helper in Hong Kong and a friend who is a permanent resident and both are willing to act as a guarantor for her release. However, the Immigration Department has not been able to contact either of them.

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

3.1  The Applicant’s NRC was rejected by the Director on 10 March 2022.  Her subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 13 January 2023 (“TCAB Decision”).

3.2  On 28 April 2023, the Applicant applied (out of time) for leave to apply for judicial review against the TCAB Decision (HCAL 629/2023) which remained extant as at the commencement of the present detention.  Request was made by the Department of Justice to accord priority to HCAL 629/2023 and the Court of First Instance dismissed those proceedings on 3 April 2025 following a hearing held on 6 March 2025.

4.   The present detention and its reviews

4.1  Even prior to the commencement of the present detention, the Immigration Department had begun to liaise with the Consulate General of the Republic of Indonesia in Hong Kong (“CG”) for the issuance of a replacement travel document.

4.2  Throughout the present detention, the Applicant has persistently maintained her reluctance to return to her home country and refused to cooperate in completing the reentry formalities.  Generally speaking, an emergency travel document could be issued in around 2 weeks upon completion of the reentry formalities.  On 6 August 2025, the Applicant refused to attend an in-person interview arranged to take place at the detention centre.

4.3  In the latest review conducted on 4 August 2025 (notice of which was served to the Applicant on 14 August 2025), the Applicant’s release was considered to be unwarranted for the following broad reasons:

(1)  There was no longer any legal impediment to her removal under the Updated Removal Policy following the resolution of HCAL 629/2023;

(2)  Her unwillingness to return to her home country and refuse to complete reentry formalities after directly or indirectly delayed her removal;

(3)  She might abscond or (re)offend;

(4)  Her assertions of having guarantors for her release do not weigh in the factors in favour of her continued detention;

(5)  Despite the health concerns raised by her, there was no reason to believe that she could not receive proper medical treatment if required during her detention;

(6)  There were no other circumstances in favour of her release.

5.   The Applicant’s submissions

5.1  In her written materials, the Applicant puts forward the following grounds:

(1)  Her NRC is still being processed and she has the right to exhaust all appeal avenues;

(2)  She has not committed any serious crime in Hong Kong or any crime associated violence;

(3)  Her removal is not possible within the reasonable time;

(4)  She has a fixed abode and ISS is willing to act as her guarantor;

(5)  Her detention has become unlawful;

(6)  No active steps have been taken to effect her removal;

(7)  She suffers emotional and psychological trauma from being unlawfully detained;

(8)  She promises not to abscond and she had previously complied with her reporting conditions;

(9)  She has a skin allergy which started inside the detention centre and she has pain in her leg which makes it difficult for her to be mobile;

(10)  She is of the view that the medical treatment offered at the detention centre is useless.

5.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of her application.  She supplemented as follows: (1) in addition to the ailments identified in the written materials, she suspects that she has breast cancer and claims to be suffering from urinary tract infection; (2) her mother passed away in March 2025 and she has difficulties in falling asleep; (3) these additional conditions were not raised in the detention centre because she was scolded by the medical officers; (4) she would like to be released so she can be treated, and upon recovery, she would surrender herself to the Immigration Department and (5) she fears for her own safety if repatriated to her home country.

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.”

7.   Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3) 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 258 days, against which the various other factors must be weighed and balanced. 

7.3  As regards the Applicant's fear for her 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 her NRC and the court in her 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/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/Secretary have acted with diligence and expedition to effect the Applicant’s removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the matters adumbrated above, including the efforts made to (1) liaise with the CG to issue a replacement travel document to the Applicant, despite her refusal to cooperate in completing the reentry formalities and (2) expedite the resolution of HCAL 629/2023.

7.5  As at the commencement of the present detention, there were both legal and practical impediments to the Applicant’s removal.  The legal impediment has been removed since the handing down of the decision in HCAL 629/2023.  The Applicant’s understanding that any further legal challenges to the higher courts would create a legal impediment is erroneous by reason of the Updated Removal Policy. The practical impediment has remained due to the Applicant’s refusal to cooperate in completing the reentry formalities, including her refusal to attend the in-person interview arranged at the detention centre on 6 August 2025.  The Applicant was candid at the hearing to admit that she did not want a passport to be issued as it would make her removal possible.  In my view, whilst the period of detention is objectively lengthy, it has been lengthened by the Applicant’s own unreasonable behaviour.

7.6  In any event, even during the period in which the result of HCAL 629/2023 was pending, the Applicant should have cooperated in completing the reentry formalities.  As observed in Johnson Benjamin:

“[37] Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. 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. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

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

7.8  Perhaps more significantly, I accept Mr Au’s submission that there is a real risk of the Applicant absconding given her professed reluctance to return to her home country, which risk, if materializes, will defeat the purpose for which the power for detention is conferred.  I do not regard the offer of a guarantor and the Applicant’s own promise not to abscond have the effect of outweighing the risk of absconding.  In any event, there is no material to suggest that ISS has agreed to act as her guarantor.

7.9  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 does not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.  I also have some doubt on the veracity of the additional medical conditions raised for the first time at the hearing and the truthfulness of the allegation fact the medical officers at the detention centre would act in a way which would deter the Applicant from even raising the conditions.  Where this is now the main plank of the Applicant’s submission, namely she wishes to receive treatment in Hong Kong, there seems to me to be no cogent reason for raising the lesser conditions in the application (§5.1 above) and only to raise the more serious conditions at the hearing (§5.2 above).  In the event, no cogent reason was offered by the Applicant at the hearing.

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.