PASCUAL JIM LEO OMAGING v. HONG KONG SAR GOVERNMENT

HCAL 1026/2025

[2025] HKCFI 3640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1026 OF 2025

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively dated 18 February and 17 July 2025.  He has been held in immigration detention since 18 January 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 208 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 30 April 2025.  At the hearing, the Applicant appeared in person with the benefit of an interpreter.  Ms Karen Ngai, Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Filipino national.  On 6 February 2019, he arrived in Hong Kong as a foreign domestic helper.  His permission to remain in Hong Kong was last extended until 3 February 2024 or 2 weeks after the termination of his employment contract, whichever was earlier.  His employment contract was terminated on 26 July 2023 and he has overstayed in Hong Kong since 10 August 2023.

2.2  On 16 November 2023, the Applicant was arrested by the police and referred to the Immigration Department. For investigation the following day.   He was released on recognizance the same day,

2.3  Whilst on recognizance, on 7 May 2024, the Applicant was convicted of “taking employment while being a person who, having been given permission to land in Hong Kong, remains in Hong Kong in breach of the limit of stay” and sentenced to 15 months’ imprisonment.

2.4  The Applicant claims that he has a cousin who is a Hong Kong permanent resident.  He has also mentioned a friend who can potentially act as his guarantor for his release. 

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

3.1  The Applicant’s NRC was rejected by the Director on 24 June 2024.  His subsequent appeal/petition to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office was dismissed on 18 October 2024 (“TCAB Decision”).

3.2  The Applicant’s application for leave to apply for judicial review against the TCAB Decision (HCAL 354/2025), filed on 7 February 2025, was refused on 31 July 2025 (“CFI Decision”).  The resolution of HCAL 354/2025 was expedited by a request made to the court to accord priority. 

4.  The present detention and its reviews

4.1  The present detention commenced upon discharge from prison on 18 January 2025.  The divers periods of the present detention are pursuant to the following sections of the Ordinance:

(1)  From 18 to 24 January 2025, pursuant to section 32(2A)(a) pending decision as to whether a removal order should be made;

(2)  From 25 January to 14 February 2025, pursuant to section 32(2A)(b) pending decision as to whether a removal order should be made;

(3)  From 15 to 18 February 2025, pursuant to section 32(2A)(c) of the Ordinance pending decision as to whether a removal order should be made;

(4)  From 18 February to 4 July 2025, pursuant to section 32(3A) of the Ordinance pending removal under the Removal Order;

(5)  From 4 to 17 July 2025, pursuant to section 29(1) of the Ordinance for inquiry as to whether he ought to be deported;

(6)  From 17 July 2025, pursuant to section 32(3) of the Ordinance pending removal under the Deportation Order.

4.2  The Applicant has a passport which is valid until 29 July 2028.  However, throughout the present detention, the Applicant has persistently expressed his unwillingness to return to his home country.

4.3  In the latest review conducted on 16 April 2025, the Applicant’s release was thought to be unwarranted by reason of the following broad grounds:

(1)  There was no reason to believe that HCAL 354/2025 could not be finalized within a reasonable time;

(2)  He posed or was likely to pose a threat to the local community;

(3)  He might abscond and/or (re)offend;

(4)  His claimed local connection could not outweigh the factors against his release.

5.  The Applicant’s submissions

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

(1)  The length of his detention has become unreasonable;

(2)  His NRC is ongoing and he does not understand the reason for his continued detention;

(3)  The condition of detention is akin or worse than imprisonment;

(4)  He is suffering from mental stress whilst being detained;

(5)  He has already served his sentence for his previous offence;

(6)  He promises not to abscond or (re)offend and to abide by any conditions imposed for his release.

5.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application.  He supplemented that he only needs to be released for a few months’ time to make arrangements to sell his property in the Philippines in order to relocate away from the danger he perceives to be a threat upon his return to his 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 the identified sections 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 208 days, against which the various other factors must be weighed and balanced.

7.3  As regards the Applicant's fear for his 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 his NRC and the court in his habeas corpus application will not look at the merits of any such claim.  Insofar as necessary, I note that the TCAB had expressly rejected the Applicant’s claim that the threat of being hunted down and killed anywhere in the Philippines, and I therefore have some doubts on the cogency of the claim that arrangements have to be made to sell his property.

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 to expedite the resolution of HCAL 354/2025.

7.5  As at the commencement of the present detention, there was neither legal nor practical impediment to the Applicant’s removal.  A legal impediment was created by the commencement of HCAL 354/2025 after the commencement of the present detention.  The legal impediment has now been removed following the resolution of HCAL 354/2025 by reason of the Updated Removal Policy.

7.6  In the light of the nature of the Applicant’s criminal record, I am prepared to proceed on the basis that he does not pose a threat or security risk to the community.  I am however satisfied that the risks of reoffending and abscondment are real (especially given his professed unwillingness to return to his home country).  Despite efforts made, the Immigration Department has not been able to contact either the Applicant’s cousin or friend to ascertain his claimed local connections.

7.7  I agree with Ms Ngai’s submission that the provision of treatment to detainees adheres to the Immigration (Treatment of Detainees) Order Cap 115E. In any event, the conditions of the detention facilities do not affect the lawfulness and reasonableness of the Applicant’s current detention.

7.8  In relation to the Applicant’s claimed medical 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 mental conditions, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.9  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.