PHAM MANH CUONG v. IMMIGRATION DEPARTMENT

HCAL 2901/2025

[2026] HKCFI 1149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2901 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 30 December 2025 seeking his release from Castle Peak Immigration Centre (“CIC”) where he is presently being detained (“the Application”).  He has been detained since 9 September 2025 making the period of detention to date 168 days (“the Detention”).

2.  On 5 January 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.  A Response/Skeleton Submissions for the Respondent dated 9 February 2026 (“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 was 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 Miss Sung, Government Counsel for the Respondent.

B.     Background

B.1    Immigration status and stay in HK

6.  The Applicant is a Vietnamese national born on 6 May 1965.

7.  On 11 January 2014, the Applicant was arrested by the Police in Hong Kong for illegally remaining.  He was in possession of a Vietnamese identity card.  He was referred to the Immigration Department (“ImmD”) for investigation.  Upon enquiries, he claimed to have illegally entered Hong Kong on 11 January 2014.

8.  On 29 January 2014, the Applicant was released on recognizance.

9.  On 18 May 2020, a removal order (“RO”) pursuant to s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant.

10.  On 3 September 2025, the Applicant was convicted of gambling in a gambling establishment and was sentenced to 1 week’s imprisonment.

11.  Upon discharge from prison, he was detained at CIC from 9 September 2025 until present.

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

12.  On 24 January 2014 and 17 March 2014, the Applicant indicated his intention to lodge a NRC but by letter dated 10 April 2014 from ImmD to the Applicant, he was informed that his claim for non-refoulement protection was not made.

13.  By letter dated 28 May 2014 and written signification dated 5 June 2014, the Applicant indicated his intention to lodge a NRC but his NRC was refused by the Director of Immigration (“the Director”) on 9 January 2018 (“the Director’s Refusal”).

14.  On 22 January 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 on 24 May 2019 (“the Board’s Decision”).

15.  On 8 July 2019, 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 26 September 2024 (“CFI’s Decision”).

16.  On 21 October 2024, the Applicant applied for extension of time to appeal against CFI’s Decision but this was refused on 21 November 2024 (“CFI’s Refusal”).

17.  The Applicant applied for leave to appeal against CFI’s Refusal in 2025.

B.3    Steps towards the removal of the Applicant

18.  On 16 September 2025, the Applicant was interviewed and informed the re-entry seeking arrangements with the Vietnamese Interview Team (“VIT”).  He agreed to attend interview with VIT.

19.  On 25 September 2025, the Applicant was interviewed with VIT for identity verification and VIT approved his return to Vietnam on 26 September 2025.

20.  On 11 November 2025, the Applicant was interviewed by ImmD but he expressed unwillingness to return to Vietnam.

21.  On 25 November 2025, the Vietnamese Consulate General (“CG”) issued to the Applicant a passport that is valid until 25 November 2026.

22.  On 15 December 2025, the Applicant was interviewed and he maintained his refusal to return to Vietnam.  He was reminded that there was no legal impediment to his removal and that his uncooperativeness would impede his removal and lengthen his detention.

23.  In subsequent interviews on 16 December 2025, 14 January 2026 and 20 January 2026, the Applicant maintained his unwillingness to return to Vietnam.

24.  A repatriation flight is scheduled for 25 February 2026.

B.4    Reviews of Detention

25.  The last review of detention was conducted by the Director on 4 December 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’s JR Leave Application was dismissed on 26 September 2024 and irrespective of further appeals, there is no legal impediment to his removal.  With a valid Vietnamese passport, his removal is going to be possible within a reasonable period of time;

(2)     The Applicant was convicted of the offence of gambling in a gambling establishment whilst released on recognizance and it is considered that he is likely to pose a threat to the community and there is a risk of re-offending;

(3)     The Applicant’s unwillingness to return to Vietnam and lack of local ties may cause a substantial risk of absconding. Whilst the Applicant had mentioned that his ex-wife and his son were also in Hong Kong, upon record check both of them are non-refoulement claimants who are released on recognizance but subject to removal orders; and

(4)     The Applicant’s health concerns has been taken into consideration as well as the length of detention but did not outweigh the other factors in support of continued detention.

C.     The Applicant’s Submissions

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

(1)     The purpose of detention is to effect removal and not to protect the public;

(2)     His detention has continued for a period of time that is unreasonable;

(3)     The Director cannot say when or how they can effect his removal within a reasonable time;

(4)     The Director failed to take into account relevant considerations in particular his representation and submissions;

(5)     He has filed an appeal in CAMP 217/2025 and is waiting for a decision. He can challenge the decision through further appeals;

(6)     He has never committed any crime of a serious nature and do not intend to harm any other person.  He is willing to give an undertaking not to commit any offences or engage in illegal activities;

(7)     He has a friend who is a Hong Kong permanent resident willing to stand as his guarantor and can reside with her at a fixed place of abode;

(8)     His detention was unlawful when he was not being detained pending removal but to await the final determination of his NRC;

(9)     If he is returned to Vietnam, he faces to risk of being tortured or killed by his creditor;

(10)     The Director has not taken active steps to effect his removal; and

(11)     Every day he is going through the emotional and psychological trauma of being unlawfully detained and this is affecting his physical and mental health.

27.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He also supplemented that he has a son who is attending primary school but there is no one to take care of him.  He has divorced his wife who is now married to a Hong Kong resident.  He wishes to be released so that he can take care of his son and seek treatment for his illness.

28.  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

29.  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).

30.  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.

31.  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.

32.  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

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 under s.32(3A) of IO pending his removal under the RO.  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 168 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.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the steps taken to verify his identity and seeking a passport from CG and the regular interviews to ascertain Applicant’s willingness to return to Vietnam.  Therefore HS1 and HS4 are satisfied.

38.  Under the prevailing removal policy, upon the dismissal of the JR Leave Application, there is no legal impediment to the Applicant’s removal.   Even though he has taken out an appeal to the Court of Appeal or may appeal further, it does not constitute a legal impediment to removal.  With a valid passport and a flight scheduled for 25 February 2026, there is no reason to believe that the Applicant’s removal cannot be effected within a reasonable period if the Applicant cooperates.

39.  Insofar as the Applicant had refused to cooperate with removal arrangements when there is no legal impediment to his removal, and despite warnings that this would prolong his detention, 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.

40.  I also accept the Director’s assessment, given the Applicant’s stated unwillingness to return and refusal to cooperate with the repatriation arrangements coupled with the lack of local ties (his ex-wife and son are non-refoulement claimants who are liable to be removed), there is a real risk of the Applicant absconding.  If he 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).

41.  Although the Applicant says that he cannot go back to Vietnam 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 claims.

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.  From the records, the Applicant has been referred for in-house medical treatment for fatty liver and Psoriasis but his health condition is stable.  There is 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.

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 his 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.