FAHEEM CHAUDHRY MUHAMMAD v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 60/2026

[2026] HKCFI 1889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 60 OF 2026

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DECISION

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A. Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 7 January 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”)  where he has been detained since 30 June 2024 (“the Application”).  The period of detention to date is 639 days (“the Detention”).

2.  On 9 January 2026, 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.  A Response/Skeleton Submissions of the 1^st and 2^nd Respondents dated 23 March 2026 (“the Response”)  has been lodged.

3.  In the Response, it was stated that it was the Secretary for Security (“the Secretary”)  who authorised the powers of detention under ss. 29 and 32(3)  of the Immigration Ordinance, Cap. 115 (“IO”)  whereas it was the Director of Immigration (“the Director”)  who authorised the power of detention under s.32(3A)  of IO in respect of the Detention.

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

5.  This is my Decision having heard the oral submissions of the Applicant and Miss Zhi, Acting Senior Government Counsel, appearing for the Respondents.

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is a Pakistani national, born on 10 April 1975.

7.  On 18 January 2007, the Applicant was arrested by the Police for illegal remaining.  He claimed to have sneaked into Hong Kong illegally in December 2006.  He was in possession of a Pakistani passport valid until 28 May 2011.

8.  Records of the Immigration Department (“ImmD”)  revealed that the Applicant was a returned removee and had previously arrived in Hong Kong on two occasions in 1997 and 2001 under different identities. On the second occasion, he was convicted of the offences of: (1) misleading a police officer by giving false information for which he was sentenced to 2 months’ imprisonment; and (2)  breach of condition of stay for which he was sentenced to 1 month’s imprisonment.

9.  On 22 January 2007, the Applicant was convicted of the offence of remaining in Hong Kong without the authority of the Director and was sentenced to 15 months’ imprisonment.

10.  On 17 November 2007, the Applicant was discharged from prison and was transferred to the Castle Peak Bay Immigration Centre (“CIC”)  for detention.

11.  On 2 January 2008, a removal order (“RO”)  was issued against the Applicant under s.19(1)(b) of IO.

12.  On 20 February 2008, the Applicant was released on recognizance.

13.  On 2 May 2008, the Applicant was convicted of possession of a dangerous drug and was sentenced to 4 months’ imprisonment suspended for 3 years.

14.  On 1 February 2013, the Applicant was convicted of the offence of taking employment while being a person in respect of whom a removal order was in force and was sentenced to 19 months’ imprisonment.

15.  On 18 November 2013, the Applicant was discharged from prison and detained at CIC until his release on recognizance on 19 December 2013.

16.  On 27 October 2016, the Applicant was convicted of the offence of gambling in a gambling establishment and fined HK$500.

17.  On 21 April 2017, the Applicant was convicted of the offence of gambling in a gambling establishment and fined HK$500.

18.  The Applicant failed to report recognizance since 23 August 2022.  He attended the Ma Tau Kok Recognizance (Reporting)  Office (“Ma Tau Kok Office”)  on 9 September 2022 and requested resumption of recognizance.

19.  From January 2023 to April 2024, multiple attempts were made to contact the Applicant but in vain (save that on 1 March 2023 he was contacted by phone but claimed he did not report recognizance due to sickness).

20.  On 29 June 2024, the Applicant was arrested by the Police for failing to report recognizance and was referred to ImmD on 30 June 2024 and has been detained since then.

21.  On 12 November 2025, a deportation order (“DO”)  was issued against the Applicant under s.20(1)(a)  of IO.

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

22.  On 29 January 2007, the Applicant lodged a torture claim which was withdrawn by the Applicant on 21 November 2013.

23.  On 21 and 27 November 2013, the Applicant lodged a NRC which was refused by the Director on 25 February 2019 (“the Director’s Refusal”).

24.  On 2 April 2019, the Applicant’s lodged an appeal/petition against the Director’s Refusal to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office but this was dismissed on 7 August 2020 (“the Board’s Decision”).

25.  On 23 February 2021, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision but this was dismissed by the Court of First Instance on 20 February 2025 (“CFI’s Decision”).

B3.   Steps towards the removal of the Applicant

26.  Even prior to the Detention, by letter dated 19 October 2022, ImmD wrote to the Consulate General of the Islamic Republic of Pakistan (“CG”)  informing of the intention to deport the Applicant and seeking their assistance in issuing a replacement travel document (“RTD”)  to the Applicant. 

27.  After the commencement of the Detention, on 29 July 2024, ImmD wrote to CG seeking assistance to verify the Applicant’s identity and the issuance of a RTD.

28.  However, during the Detention, in all the interviews conducted with the Applicant by the ImmD (on 3 July 2024, 31 July 2024, 25 September 2024, 16 October 2024, 7 November 2024, 22 November 2024, 6 December 2024, 17 January 2025, 4 February 2025, 13 February 2025, 17 April 2025, 30 April 2025, 27 May 2025, 18 June 2025, 29 August 2025, 6 November 2025, 27 January 2026, 11 February 2026 and 5 March 2026), the Applicant expressed strong unwillingness to return to his home country and refused to cooperate with the re-entry formalities (to complete the re-entry application forms, take photos or attend interview with CG)  save that in the interviews on 27 January 2026, 11 February 2026 and 5 March 2025, he said that he would re-consider to complete the re-entry formalities after his Family Court case is finalized.

29.  By letters dated 23 October 2024, 2 December 2024, 25 March 2025, 25 July 2025 and 30 July 2025, ImmD wrote to inform CG that the Applicant remained uncooperative and refused to complete the application form and to attend CG for interview.  Enquiry was made on possible alternative means to verify his identity and issue a travel document regardless of the Applicant’s uncooperative attitude.

30.  On 13 August 2025, the Applicant’s national status was confirmed by CG.

31.  On 6 November 2025, the Applicant was interviewed by CG at TGCI and despite the Applicant’s unwillingness to return, CG required ImmD to submit a copy of the Applicant’s travel document and computerized national identity card for issuance of an emergency travel document (“ETD”).

32.  On 26 February 2026, an ETD was issued to the Applicant by CG with 30 days’ validity which was further extended by CG on 13 March 2026 until 13 August 2026.

B4.   Review of Detention

33.  In the latest review of detention conducted by the Secretary on 18 March 2026 and the Director on 25 March 2026, it was considered that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  With no NRC related impediment to removal after the JR Leave Application was dismissed on 20 February 2025, an ETD issued and with the next hearing of the Applicant’s on-going family court proceedings scheduled for 4 May 2026, there is no indication that his removal cannot be effected within a reasonable period of time if he cooperates;

(2)  The Applicant is the subject of a DO made on the basis of his convictions and given his failure to report recognizance between January 2023 and April 2024 until arrested by Police and his unwillingness to return to Pakistan, there is a real risk of re-offending and / or absconding if he was released;

(3)  The presence of his separated girlfriend and two children in Hong Kong and the family court proceedings, including the length of detention, have been taken into consideration but on balance, release on recognizance is not warranted.

The Applicant’s Submissions

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

(1)  The Detention is unlawful;

(2)  He has been detained for more than 17 months;

(3)  He wishes to stay until all his claims are completed and he is waiting the result of FCMP 224/2025 (“Family Court proceedings”)  and he cannot be removed due to his pending case and therefore the Detention is unlawful;

(4)  He shall not abscond due to the ongoing Family Court proceedings;

(5)  He shall not commit further crimes as it will affect his claim in the Family Court proceedings;

(6)  If he detained it will impact on his prospects in the Family Court proceedings and the Director/Secretary should not ignore the impact on his family rights: see Alan Edward Van Leuven in HCAL 838/2022 at paragraph 56;

(7)  He has a friend who is a Hong Kong resident willing to be his guarantor and provide a place for him to live; and

(8)  He is unwilling to go to CG because once an ETD is issued, ImmD will remove him immediately without waiting for the outcome of the Family Court proceedings.

35.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further submitted a further three-page handwritten document with further submissions (“the Further Submissions”)  and additional documents.  He told me that in March 2022, he had lost his Recognizance Form and it was due to be replaced by phone arrangement.  On 3 August 2022, he received a telephone call from an officer requiring him to attend to sign the Recognizance Form.  He had explained that he could not attend as he was looking after his two children and then he dropped the phone because of one of the children was on his shoulder.  After that he tried to contact that officer but could not and despite that he went back to the Ma Tau Kok Office but only at 5pm when he was told he should go back only after the officer contacted him but he was never contacted even though he had left his contact address.   He submitted documents to show that he had filed an application by a Summons on 12 March 2026 in HCAL 211/2021 which appears to challenge the CFI’s Decision.  He also submitted an Order dated 3 February 2026 requiring his attendance at the next hearing of the Applicant’s Originating Summons filed on 7 November 2025 in relation to the Family Court proceedings.  He also submitted two letters dated 23 May 2025 and 20 June 2025 from the Hong Kong Family Welfare Society and his children’s birth certificates that informed the Applicant to seek assistance from the probation officers for any welfare needs in relation to his request for support in having his children visit him.  In the Further Submissions, essentially, he repeated that the Family Court proceedings as well as the Summons is still being processed so he cannot be removed without a reasonable time.  He also promised not to commit any crime again and it will badly affect his Family Court proceedings.  He mentioned the explanations for not complying with the terms of recognizance.   He also says that he still fears his enemy in Pakistan will harm him and so he sought protection in Hong Kong.  He says that cannot go back without the Family Court proceedings being finalised.

36.  I will take into account all the Applicant’s submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

C.  Applicable Principles

37.  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.

38.  I also remind myself that the burden is on the respondents to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

39.  Under s.32(4A)  of IO, 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, 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.

40.  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.”

41.  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.

D.  Analysis

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

43.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under: (a)  s.32(3A)  (from 30 June 2024 to 29 October 2025); (b)  s.29(1)  (from 30 October 2025 to 12 November 2025); and (c)  s.32(3)  (from 12 November 2025 to present)  of IO.  There can be no dispute that the RO and DO made against the Applicant are valid and extant. 

44.  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 Secretary/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 Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Secretary / Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

45.  The starting point is that the period of detention to date is 639 days, which no doubt is a long period of time, against which the other factors must be weighed and balanced.

46.  I accept that the Applicant has been detained for the purpose of his removal from Hong Kong and that the power of detention is being used only for that purpose.  This is evident from the Director’s efforts to seek issuance of a RTD to the Applicant from CG long before the Detention, the continued liaison with CG and the numerous interviews with the Applicant in hope that he would express willingness to return to Pakistan.  HS1 is satisfied.

47.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the frequent interviews with the Applicant, active liaison with CG and DOJ writing to the High Court to seek priority to the JR Leave Application.  HS4 is also satisfied.

48.  With no legal impediment to the Applicant’s removal under the prevailing removal policy, even if he appeals against the CFI Decision, there is no reason to believe that his removal cannot be effected within a reasonable period if the Applicant cooperates.  Insofar as the Applicant has refused and continues to refuse to cooperate with the removal arrangement and despite warnings that this would prolong his detention, the prolonged period of detention as a result of his unreasonable conduct should 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. The fact that the Family Court proceedings and his challenge to the CFI Decision have not been resolved cannot excuse any failure to cooperate with the removal formalities given those proceedings do not give rise to any legal impediment to the Applicant’s removal.

49.  I also accept the Director’s and the Secretary’s assessments that with his past convictions of offences of a very serious nature which led to the issuance of the DO, coupled with his history of not reporting recognizance (despite what the Applicant asserted, ImmD’s records demonstrate that he was not contactable between January 2023 and April 2024 save on one occasion by phone on 1 March 2023)  and the Applicant’s stated unwillingness to return, there is a real risk of the Applicant absconding and re-offending.  Even taking into account if he were to re-offend, this may jeopardize his intention to seek custody of his children, it does not remove all risk.  If he were to re-offend and/or abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the DO.  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).

50.  Although the Applicant relies heavily on the decision of Coleman J in Alan Edward Van Leuven v Secretary for Security & Anor [2022] HKCFI 2896, the assessment of the lawfulness of the detention must necessarily be facts sensitive and each case is decided upon its own facts.  The present case is distinguishable from that case.  Firstly, in that case, the learned judge was concerned whether the Secretary/Director had fully appreciated the practical and realistic ability for the applicant to conduct proceedings from detention or from overseas when he was acting in person (see §54).  In the present case, the Applicant has been granted legal aid in October 2025 and is legally represented by KCL & Partners in the Family Court proceedings.  Secondly, the learned judge referred to the fact that the applicant had been unable to file further evidence and submissions in the family proceedings (see §§38(20)&54).  In the present case, there is no suggestion that evidence and submissions could not be filed on behalf of the Applicant and in fact he had attended a hearing in the Family Court on 3 February 2026.  Thirdly, in that case, the learned judge took the view that there was a significant impact on the applicant’s child if he was detained and unable to seek custody where the mother was not seeking custody and the child would remain cared for by Social Welfare Department (see §§38(18)  and 55).  In the present case, the contest is between both parents so regardless of who wins the custody battle, the impact on the child is not so stark.  Fourthly, the learned judge considered an important consideration was the fact there was a legal impediment to removal in that case as the applicant’s NRC had to be remitted to the Board for fresh consideration such that the period of detention was no longer reasonable (see §60).  In the present case, as mentioned there is no legal impediment to the Applicant’s removal.

51.  No doubt there is some adverse effect of the Detention on the Applicant’s family but this has been taken into account.  However, given that the Applicant is subject to a valid and extant DO, the Applicant entered into the relationship with his ex-girlfriend and together had two children when the RO had already been issued against the Applicant, the Applicant’s family circumstances is of little significance when weighed against the other factors overall (see Hardial Singh, §156).

52.  Although the Applicant says that he cannot go back to Pakistan 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.

53.  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.

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

E.  Conclusion

55.  By reasons of the above, I dismiss the Application with no order as to costs.