KHUC NGOC HIEP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2001/2025

[2025] HKCFI 5593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2001 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 made on 16 June 2023 and 14 July 2025. He has been held in immigration detention since 29 May 2025 pursuant to various sections of the Immigration Ordinance (“Ordinance”). As at the date of the hearing before me, he has been detained for 174 days.

1.2  This is my decision on the Applicant’s application made on 4 September 2025 for a writ of habeas corpus. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Crystal Wong, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Vietnamese national. He entered Hong Kong illegally and was arrested by the police for suspected illegal remaining on 31 May 2022. Thereafter, he was referred to the Immigration Department and released on recognizance on 1 June 2022.

2.2  Whilst on recognizance, on 22 June 2022, the Applicant was convicted of the offence of “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully” and was sentenced to 15 months’ imprisonment.

2.3  On 22 April 2023, the Applicant was discharged from prison and was subsequently released on recognizance on 5 May 2023.

2.4  Whilst on recognizance, on 29 April 2025, the Applicant was convicted of “Dealing with goods to which Dutiable Commodities Ordinance applies” and sentenced to 2 months’ imprisonment.

2.5  On 29 May 2025, the Applicant was discharged from prison upon which the present detention commenced.

2.6  The Applicant has no local connections in Hong Kong. According to the Applicant, his mother, girlfriend and daughter are all non-refoulement claimants in Hong Kong.

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

3.1  The Applicant’s NRC was rejected by the Director on 11 October 2022. His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 1 June 2023 (“TCAB Decision”).

3.2  On 12 September 2025, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 2059/2025). On 11 November 2025, the Court of First Instance dismissed HCAL 2059/2025.

4.  The present detention and its reviews

4.1  Shortly after the commencement of the present detention, the Vietnamese Interview Team (“VIT”) interviewed the Applicant for identify verification. Thereafter, on 25 July 2025, the Consulate General of Vietnam in Hong Kong (“CG”) issued a passport to the Applicant, with validity to 25 July 2026.

4.2  As there was neither legal nor practical impediment to the Applicant’s removal, the Immigration Department then proceeded to make arrangements for the removal of the Applicant. On 3 September 2025, a repatriation flight scheduled to depart on 29 September 2025 was secured.

4.3  However, the Applicant then created legal impediments, first by the issuance on the present application on 4 September 2025 and thereafter commencing HCAL 2059/2025 on 12 September 2025. As a result, the original repatriation flight had to be rescheduled.

4.4  As things presently stand, the repatriation flight has been rescheduled to depart on 24 November 2025, shortly after the present hearing.

4.5  The present detention is, or has been, pursuant to the following sections of the Ordinance:

(1)  From 29 May to 24 June 2025: Pursuant to section 32(3A) pending removal under the Removal Order;

(2)  From 25 June to 14 July 2025: Pursuant to sections 29(1) and 29(2) pending inquiry as to whether the Applicant ought to be deported;

(3)  Since 14 July 2025: Pursuant to section 32(3) pending removal under the Deportation Order.

4.6  Throughout the present detention, the Applicant had persistently expressed his unwillingness to return to Vietnam and refused to cooperate with any removal arrangement.

4.7  In the latest review of the Applicant’s detention conducted on 11 November 2025, the Applicant’s continued detention was considered to be justified for the following broad reasons:

(1)  HCAL 2059/2025 was commenced during the present detention, such legal impediment was self-inflicted;

(2)  HCAL 2059/2025 could be finalized within a reasonable time;

(3)  The Applicant’s removal was going to be possible within a reasonable time;

(4)  The Applicant might abscond as expressed his own unwillingness to return to his home country;

(5)  The Applicant might (re)offend;

(6)  The Applicant was likely to pose a threat to the local community;

(7)  The Applicant did not have close connection or fixed abode in Hong Kong;

(8)  There were no other circumstances in favour of the Applicant’s release.

5.  The Applicant’s submissions

5.1  The Applicant’s grounds in support of the present application set out in his written materials may be summarized as follows:

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

(2)  His mental health is unstable as he worries about his family in Hong Kong;

(3)  His wife and daughter are in Hong Kong and he can offer a friend who is a permanent resident in Hong Kong as his guarantor;

(4)  He has provided a fixed address at which he will reside with his wife and daughter;

(5)  He points out that he never failed to report recognizance;

(6)  He promises not to commit any further criminal offence.

5.2  The Applicant also sent a letter dated 12 November 2025 to court. As the letter was written in Vietnamese, I requested the interpreter to explain the contents of the letter at the commencement of the hearing day. Two main themes are set out in the letter: First, the Applicant says that it is unsafe for him and his family to return to Vietnam and secondly, he complains that he had encountered some difficulties in making his various court applications, as any documents intended to be submitted would be monitored by the Immigration Department.

5.3  At the hearing, the Applicant confirmed that the above matters collectively represent an accurate summary of the grounds of his application. He supplemented as follows: He explains that the timing of commencing HCAL 2059/2025 was due to the fact that he only became aware of the TCAB Decision made in June 2023 during the present detention.

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 174 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.

7.4  I accept that, throughout the period of detention, the intention of the Director and the 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 and the Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the matters set out above, including (1) the arrangements made with the VIT and the CG for the issuance of a passport to the Applicant, (2) the scheduling of the repatriation flights and (3) the efforts made for the speedy resolution of HCAL 2059/2025.

7.5  Had the Applicant not commenced the present application or HCAL 2059/2025 and had he cooperated, the present detention would and could have ceased on 29 September 2025.

7.6  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 he poses a threat or security risk to the community. However, there remains a risk of (re)offending, which risk, if materializes, may delay his removal by reason of consequential investigations and potential court proceedings.

7.7  Perhaps more significantly, I accept the Respondents’ submission that there is a real risk of the Applicant absconding given his lack of local ties and his professed reluctance to return to his home country.

7.8  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, 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  I have considered the fact that the Applicant has a family in Hong Kong, in particular the fact that his daughter is at a young age and the claimed frailty of his wife’s health. However, as the Applicant’s family members are all non-refoulement claimants, it seems to me that any family reunification is best effectuated in Vietnam. As has been pointed out at Ruz Esmiralde Naguimbing v Immigration Director [2023] HKCFI 2384:

“[38] ...Removal will take place tomorrow – and I am not prepared to proceed on the assumption that it will not take place as planned. The benefit to enable the Applicant to reunite with his children for one day in Hong Kong before his departure cannot outweigh the real and substantial risk of his failing to appear at the airport tomorrow.

[39] It may also be important for the Applicant to understand that his natural desire to be reunited with his wife and children is best achieved by reuniting with them outside Hong Kong. The Applicant will be removed/deported. The wife will also be removed, as she is subject to a Removal Order. The children would, presumably, travel as a family with the wife. Facing these inevitable facts, it seems to me that the family as a whole should recognise that the desire to be reunited can and should be achieved outside Hong Kong. It can be achieved quickly, and the Applicant can perhaps be the advance party to facilitate the necessary arrangements. It is in that way that the Applicant can satisfy his desire to spend time with his family and to be a father and husband to them.

[40] Indeed, it is also important for the Applicant to understand that flatly refusing to board the repatriation flight does not improve his chances of being released on recognizance, nor of reuniting with his family. Rather, it might simply prolong his detention and his separation from them. It is partly on that basis that I do not proceed in my consideration of this application on an assumption that the Applicant will refuse the repatriation flight. With respect, it seems to me to be in the interests he asserts for him to take it. Perhaps, on reflection, that point will be seen by the Applicant.”

7.10  I also do not consider that the offer of a guarantor has the effect of outweighing the factors against the Applicant’s release.

7.11  As to any claimed issues affecting the physical and mental health of the Applicant, there can be no suggestion that appropriate medical care pending removal is not available to him.

7.12  I also do not place weight on the Applicant’s assertion that he had encountered difficulties in making his various court applications. Whatever the merits of that assertion, the fact remains that his court applications have been heard in court. For example, at today’s hearing, the Applicant confirmed that he was given the opportunity to, and did, advance all the grounds he wished in support of his application.

7.13  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.