KARTININGSIH v. HONG KONG SAR GOVERNMENT

HCAL 1215/2025

[2025] HKCFI 2892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1215 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 by the Applicant filed on 26 May 2025 seeking her release from Nei Kwu Correctional Institution where she is presently being detained (“the Application”). She has been detained since 26 February 2025 making the period of detention to date 128 days (“the Detention”).

2.  On 28 May 2025, I directed the Director of Immigration (“the Director”) named as the respondent in the Application (“the Respondents”), to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.

3.  The Respondent’s Response to the Applicant’s Habeas Corpus Application dated 17 June 2025 (“the Response”) has been lodged.

4.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter. She confirmed that she has been served the Response and a bundle of documents prepared on behalf of the Respondent.

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

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is an Indonesian national born on 22 December 1979. She was formerly a foreign domestic helper in Hong Kong. Her last employment contract was prematurely terminated on 2 June 2015. Her limit of stay was last extended to 3 July 2015. However, she did not depart and overstayed since 4 July 2015.

7.  On 3 November 2015, the Applicant surrendered herself to the Immigration Department (“ImmD”) for having overstayed and was released on recognizance on the same day.

8.  On 6 July 2016, the Applicant was convicted of breach of condition of stay by overstaying and was sentenced to 7 days’ imprisonment suspended for 24 months.

9.  On 20 July 2016, a removal order (“RO”) was issued against the Applicant under s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”).

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

10.  On 31 July 2017, the Applicant first lodged a NRC which was rejected by the Director on 30 November 2018 (“the Director’s Refusal”).

11.  On 12 December 2018, the Applicant appealed against the Director’s Refusal but the appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 25 June 2019 (“the Board’s Decision”).

12.  On 2 July 2019, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”).

13.  On 16 September 2024, the JR Leave Application was refused by the Court of First Instance (“CFI Decision”).

14.  On 30 September 2024, the Applicant filed a notice of appeal against the CFI Decision (“the CA Appeal”).

B3.  Steps towards the removal of the Applicant

15.  Even before the Detention, ImmD sent letters (dated 26 October 2022, 26 January 2024 and 17 October 2024) to the local Consulate General of the Republic of Indonesia (“CG”) seeking assistance for the issuance of a replacement travel document to the Applicant to facilitate her repatriation.

16.  In an interview with the Applicant on 12 February 2025, the Applicant expressed her willingness to return to Indonesia.

17.  On 18 February 2025, the Applicant’s travel document application form, photos and consent letter were secured.

18.  On 28 February 2025, the Applicant changed her mind and insisted on staying in Hong Kong.

19.  On 17 March 2025, ImmD sent a letter to CG seeking alternative means to facilitate the issuance of a travel document to the Applicant.

20.  On 26 March 2025, when interviewed, the Applicant refused to leave Hong Kong and to attend an interview with CG. It was then (and on subsequent occasions) explained to her that pursuant to s.32(4A) of IO her detention shall not be regarded as unlawful if she prevents or delays the removal.

21.  On 28 April 2025, the Applicant maintained her refusal to leave and refused to cooperate with the re-entry formalities including attending interview with CG.

22.  On 19 May 2025, ImmD sent a letter to CG seeking alternative means to facilitate the issuance of a travel document to the Applicant.

23.  Mr Cheung further informed this court by way of update that on 27 May 2025 and 26 June 2025, the Applicant was again interviewed by ImmD. She maintained her refusal to return to Indonesia, refusal to fill the form, take photos and attend an interview with CG.

B4.  Reviews of Detention

24.  The last review of detention conducted by the Director was on 26 May 2025. Having considered and balancing the following factors, it was decided that the release of the Applicant on recognizance was not warranted:

(1)  The Applicant is liable to be removed under the updated removal policy as the JR Leave Application was dismissed;

(2)  With ongoing liaison with CG, it is expected that a travel document can be secured in the foreseeable future. If the Applicant cooperates, an emergency travel document can be issued in around 2 weeks such that removal can be completed within a reasonable period of time;

(3)  Based on the Applicant’s previous conviction of breach of condition of stay, there is a risk of re-offending and given her unwillingness to return and non-cooperation with re-entry seeking formalities, there is a risk the Applicant will abscond;

(4)  The fact she has a Hong Kong permanent resident husband and may provide a guarantor has been taken into account; and

(5)  There are no other circumstances in favour of release.

C.  The Applicant’s Submissions

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

(1)  There has yet to be a hearing or decision for the CA Appeal and she may further appeal so removal is not possible within a reasonable period of time;

(2)  She has never committed any offence of serious nature or connected with violence, and she is willing to given an undertaking she will not commit any offence. She will therefore not pose any risk or threat to the community if released;

(3)  She would not abscond or re-offend as she has never committed any serious crime;

(4)  She will reside with her Hong Kong permanent resident husband at a fixed place of abode;

(5)  She has a Hong Kong permanent resident friend and her husband willing to act as her surety/guarantor and will comply with any conditions of the Director;

(6)  The Director has not taken active steps for her removal including the issuance of a travel document;

(7)  She was not being detained for the purpose of deportation;

(8)  She is going through emotional and psychological trauma of being detained unlawfully which has affect her physical and mental health; and

(9)  She cannot go back to her country because her life is in danger.

26.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of her submissions. She also confirmed that she had no further submissions to make.

27.  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

28.  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).

29.  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.

30.  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.

31.  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.”

32.  Furthermore, in Johnson Benjamin at §37, it was observed that even if there is an 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. Such uncooperative behaviour is relevant to the question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.

E.  Analysis

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

34.  There is clear prima facie authority for the detention of the Applicant throughout the Detention. From 26 February 2025 to present, the Applicant was detained under s.32(3A) of IO pending her removal from Hong Kong. There is no dispute that the RO is valid and extant.

35.  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).

36.  The starting point is that the period of detention to date is 128 days against which the other factors must be weighed and balanced.

37.  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. This is evident from the Director’s efforts in seeking assistance from CG for issuance of a travel permit for the Applicant’s return and seeking the Applicant’s cooperation to return to Indonesia. Therefore HS1 is satisfied.

38.  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 pro-active steps to secure a travel permit for her return to Indonesia even prior to the Detention and continued liaison with CG seeking alternative means to do so notwithstanding the Applicant’s lack of cooperation. HS4 is also satisfied.

39.  Although the CA Appeal is not yet determined, this is not a legal impediment to the Applicant’s removal under the prevailing policy of the Government, and given a travel document can be secured within a reasonable period of time if the Applicant cooperate, removal can be effected within a reasonable period. Whilst the Applicant suggests that she may further appeal, this will not constitute a legal impediment to removal. Any period of detention caused by her uncooperative behaviour with the authorities in the re-entry seeking formalities, despite the CA Appeal has not been determined, resulting in prolonged detention would not turn otherwise reasonable period of detention into an unreasonable one.

40.  I also accept the Director’s assessment that with the Applicant’s previous convictions of breach of condition of stay and unwillingness to return to Indonesia, and even taking into account her local ties, 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 risks of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.

41.  As regards the Applicant’s fear of 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 such claim.

42.  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: see e.g. 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.

43.  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.

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

F.  Conclusion

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