AHMED SIDDIQUE v. HONG KONG SAR GOVERNMENT

HCAL 1805/2025

[2025] HKCFI 4889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1805 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 made on 29 November 2016 and 6 June 2025.  He has been held in immigration detention pursuant to sections 29 and 32(3)  of the Immigration Ordinance Cap 115 (“Ordinance”)  since 3 June 2025.  As at the date of the hearing before me, he has been detained for 134 days.

1.2  This is my decision on the Applicant’s application made on 14 August 2025 for a writ of habeas corpus.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Ray Mok, Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”). 

2.   Background

2.1  The Applicant is an Indian national.  He entered Hong Kong on the strength of his passport on 6 August 2015 and was permitted to remain in Hong Kong as a visitor until 20 August 2015.  Since 21 August 2015, he has overstayed in Hong Kong.  On 24 August 2015, he surrendered to the Immigration Department and was subsequently released on recognizance on 22 September 2015.

2.2  The Applicant’s passport expired on 17 June 2024.  He has no family ties in Hong Kong.

2.3  On 3 August 2024, the Applicant was arrested by the police.  On 28 October 2024, he was convicted of “Dealing with goods to which the Dutiable Commodities Ordinance applies” and “Prohibition of taking employment and establishing business while being a person who remains in Hong Kong in breach of the limit of stay imposed in relation to the permission given to land” and was sentenced to a total of 15 months’ imprisonment.

2.4  On 3 June 2025, the Applicant was discharged from prison, upon which the present detention commenced.

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

3.1  The Applicant’s NRC was rejected by the Director on 24 September 2018.  His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 14 September 2020 (“TCAB Decision”).

3.2  On 22 September 2020, the Applicant filed an application for leave to apply to judicial review against the TCAB Decision (“JR Leave Application”).

3.3  Following the commencement of the present detention, a request was made to the Court of First Instance to accord priority to the JR Leave Application, and the application was heard on 12 September 2025.   The result of the JR Leave Application is pending but is expected in the near future.

4.   The present detention and its reviews

4.1  Even prior to the commencement of the present detention, the Immigration Department had since March 2025 begun to liaise with the Consulate General of the Republic of India (“CG”)  to issue a replacement travel document to the Applicant and requested the Applicant to complete the reentry formalities.

4.2  However, the Applicant had all along and throughout the present detention expressed his unwillingness to return to his home country.  Whilst the Applicant understands that his passport has expired and it is necessary for him to cooperate in completing the reentry formalities, he has throughout refused to comply. 

4.3  The Immigration Department has enquired with the CG as to any alternative means to issue a replacement travel document.  However, the CG has maintained the need for the Applicant to complete the reentry formalities, upon which a replacement travel document would be issued in about one month.

4.4  In the latest review of the detention conducted on 26 September 2025, the Applicant’s release was considered unwarranted for the following broad reasons:

(1)  There was no reason to believe that the JR Leave Application could not be resolved in the near future;

(2)  The Applicant did not have local connections in Hong Kong and had expressed unwillingness to return to India;

(3)  The Applicant posed, or was likely to pose, a threat or security risk to the community;

(4)  The Applicant might abscond or (re)offend.

5.   The Applicant’s submissions

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

(1)  The JR Leave Application has yet to be determined;

(2)  He cannot be removed from Hong Kong within a reasonable time;

(3)  He can provide a fixed address to enable the Immigration Department to locate him easily;

(4)  He is suffering from stress, high blood pressure and mental disorder for which he needs to visit a doctor, which conditions have been unattended to at the detention centre;

(5)  He fears for his own safety if repatriated to his home country;

(6)  He promises not to (re)offend and he will abide by any recognizance conditions imposed;

(7)  He offers HK$1,000 cash as bail money and to report recognizance once a week;

(8)  He also has friends in Hong Kong who are willing to act as his surety if required.

5.2  At the hearing, save one aspect, the Applicant confirmed that the above was an accurate summary of the grounds of his application.  He told the court that he in fact does not have any friends who are willing to act as his surety if required but he receives financial support from the ISS.

5.3  The Applicant further supplemented as follows.  First, he was suffering from chest pain yesterday and was taken to the Queen Elizabeth Hospital.  Secondly, he had applied for legal aid in respect of the JR Leave Application and even were the JR Leave Application determined against him, he has further legal avenues in the form of appeals and a request to make a subsequent claim.  Thirdly, he has family in India including 3 children and once his problems are resolved, he fully intends to return to India to reunite with his family.  Fourthly, he does not pose a threat or security risk to the community, and he had always complied to his recognizance condition prior to the present detention.  Fifthly, as an asylum seeker in Hong Kong, the lack of close connection here cannot be held against him. 

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."

6.5  In particular, on the issue of a detainee’s refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… In our view, even if there is an ongoing non-refoulement claim, 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 non-refoulement claim is disposed of…”

7.   Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to section 29 and 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 134 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 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 the liaising with the CG to issue a replacement travel document and the attempt to expedite the resolution of the JR Leave Application.  As regards the Applicant’s application from legal aid made on 4 August 2025, the materials before me show that the hearing of the JR Leave Application did proceed on 12 September 2025 and there is no reason to believe that a result cannot be expected in the near future, especially when the court has been requested to accord priority to it.

7.5  As at the commencement of the present detention, there are both legal and practical impediment to the Applicant’s removal.  The Director/Secretary have made efforts to proactively deal with the legal impediment in expediting the resolution of the JR Leave Application.  Yet, the Applicant has since March 2025 refused on cooperate in completing the reentry formalities.  The Applicant admitted today that he did not cooperate in completing the reentry formalities because he did not want to return to India.  However, as observed at Johnson Benjamin §37, the fact that there is an ongoing refoulement claim does not provide an excuse for the Applicant’s refusal to complete the reentry formalities.  I should further point out that by reason of the Updates Removal Policy, were the JR Leave Application determined against him, any appeals therefrom does not give rise to a legal impediment.  The request to make a subsequent claim, on its own and unless accepted by the Director, also does not create a legal impediment either.

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, the Applicant did appear to be frail and out-of-breath at the hearing today.  However, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained, and indeed, he was taken to the hospital yesterday,  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  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 (at least until the resolution of the JR Leave Application)  has been and will remain lawful.  I have no doubt that the Applicant’s detention will be further reviewed when the result of the JR Leave Application becomes known.

8.2  I therefore dismiss the application with no order as to costs.