Edward Lui on Administrative Detention and Unreasonable Applicants: What Can Hong Kong Administrative Law Offer (HKLJ)

"Administrative Detention and Unreasonable Applicants: What Can Hong Kong Administrative Law Offer"
Edward Lui
Hong Kong Law Journal, Vol. 54, Part 3 of 2024, pp.599 - 612

Abstract: The Hardial Singh principles (derived from R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704) are a well-established feature of Hong Kong administrative law, in the context of administrative detention. In Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582, the Court of Appeal discussed how these principles were to be applied — when the applicant had conducted himself unreasonably, and had thereby contributed to his own prolonged detention. This investigation of the Hardial Singh principles will be divided into two parts. First, concerning Benjamin itself: it will be suggested that the Court of Appeal’s analysis deserves significant attention for considering how the Hardial Singh principles will be applied in future cases, and may contain some interpretive ambiguities in this regard. Second, this article will then extend beyond Benjamin — and reflect more generally on the broader merits of the Hardial Singh principles. It will be contended that it may be opportune for the place of the Hardial Singh principles within Hong Kong administrative law to be reconsidered - and some arguments on either side of this possibility will be examined.