SHAHZAD FAISAL v. SECRETARY FOR JUSTICE

DCCJ 3746/2022

[2026] HKDC 635

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3746 OF 2022

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DECISION

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1.  This is one of the many claims brought by non-refoulment claimants against the Director of Immigration for allegedly having been unlawful detained in breach of the Hardial Singh principles.

2.  This action has been settled amicably at a very early stage when an order in terms of the parties’ consent summons dated 11 October 2023 was made. At the time, the Case Management Summons was filed but not yet heard.

3.  The principal terms of settlement were that the Defendant do pay to the Plaintiff a sum of HK$33,000 (inclusive of interest)  and costs of the action to be taxed at a scale to be determined by the Court, which Registrar Soong so determined by making the costs order that

“The costs of this action be paid by the Defendant to the Plaintiff to be assessed by the District Court on a level similar to claims began in the Small Claims Tribunal, if not agreed”.

4.  There was no appeal by the Plaintiff against Registrar Soong’s determination.

5.  On 22 December 2025, Master Louise Chan summarily assessed the Plaintiff’s costs of the action at $11,580 (“the Master’s Assessment”)  after reviewing the Statement of Costs claiming solicitors’ costs and counsel fees totalling HK$54,224 and disbursements of HK$5,060 and considering the Lists of Objection which contended that the Plaintiff was only entitled to disbursement at HK$500.

6.  On 5 January 2026, the Defendant lodged a Notice of Appeal against the Master’s Assessment.  By consent, the appeal is to be disposed of on papers, which I now do.

7.  First of all and just to be abundantly clear, I note that there is no dispute by the parties that when the terms of the present costs order stated that the costs are “to be assessed by the District Court on a level similar to claims began in the Small Claims Tribunal”, it meant that the District Court should assess the costs likely to be awarded as if the action were commenced in the Small Claims Tribunal (“SCT”).

8.  Section 24(1)  of the Small Claims Tribunal Ordinance (“SCTO”)  sets out the costs that may be awarded by the SCT:

“24. Costs

(1)  Subject to subsection (2), the tribunal may award to a party costs and expenses, which may include—

(a)  any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party; and

(b)  any reasonable sum paid to a witness for expenses necessarily incurred and any loss of salary or wages suffered by him,

  in attending the hearing.”

9.  In So Sai Ming v The Kowloon Motor Bus Co (1933)  Ltd & Another [1997] HKLRD 909, Deputy High Court Judge Pang held (at p  912D)  that:

“… as s.19 [of the SCTO] precludes legal representation, the term “reasonable expenses” could not have included legal fees. The tribunal’s discretion to award costs and expenses must therefore be restricted to those heads which are stipulated in ss.24(1)(a)  and (2).”

10.  In Farman v Secretary for Justice [2024] 4 HKLRD 566, and in the context of an unlawful detention claim brought by a non-refoulment claimant, HHJ Andrew Li also held that

(a)  Although “costs” is not expressly defined in s 24 of the SCTO which empowers the SCT to award to a party costs and expenses, having regard to the main purposes of the establishment of the SCT and its exclusive jurisdiction, and the statutory prohibition by s 19 of the SCTO of legal representation in actions in the SCT, such costs shall not include legal costs of the party (at §23);

(b)  Under s 24 of the SCTO, the costs may include reasonable expenses necessarily incurred and any loss of wage suffered by the party, or any reasonable sum paid to a witness for testifying in the case, but definitely not the legal costs paid by the party to a solicitor or a barrister (at §29); and

(c)  The assessment of costs at “the Small Claims Tribunal scale” is not a taxation exercise as that in the High Court (at the High Court scale)  or in the District Court (at the District Court scale), and that a broad brush approach should be adopted (at §25).

11.  Mr Tong, for the Defendant, in his submissions refers to the general level of the amounts of costs so assessed and awarded by the Court under “the SCT scale” in different cases by way of illustration : HK$1,000 in M Beraha & Co Ltd v Ng Wai Lun (DCCJ 3811/2002 affirmed in CACV 256/2003), HK$1,000 in Fu Tor Loy Sun Chuen Stage 1 (IO)  v Foeng Houw Liam Steven  [2016] 2 HKLRD 339, HK$500 in Farman (supra)  and HK$300 (being costs from 30 August 2023 to 14 April 2025)  in Kristanto Doni v Secretary for Justice [2025] 4 HKLRD 182.

12.  For the Plaintiff, the only submission put forth is that the Court should ensure that the Plaintiff “shall be fairly compensated for [his] legal expenses, thereby serving the interest of justice”.

13.  This submission boldly asserts without any basis that despite the present claim having fallen within the exclusive jurisdiction of the SCT (where legal representation is prohibited and no legal fees could be awarded by way of costs)  and the present costs order so termed, it would nevertheless be fair and serving the interest of justice to compensate the Plaintiff the costs he might have paid to his legal representatives.  Such submission only needs to be stated to be rejected.

14.  It is trite that this appeal from a Master to a Judge in chambers is to be conducted by way of a de novo hearing, equally trite is that costs is a matter of discretion which should not be lightly disturbed on appeal, even on a de novo hearing.

15.  However, by looking at the amount of the Master’s Assessment, it is without doubt that the Master has awarded to the Plaintiff by way of his costs of the action the costs or fees of his solicitors and/or counsel, which would be contrary to s 24 of the SCTO as held by the cases, and the Master therefore has erred in law and the assessment was plainly wrong.

16.  I would thus allow the appeal and set aside the Master’s Assessment.  As mentioned, this action only progressed to an early stage, and assessing the costs under “the SCT scale” and in a broad-brush manner, I assess the Plaintiff’s costs at HK$500.  I so order.  On a nisi basis, the Plaintiff do pay the Defendant the costs of this appeal, which nisi order shall become absolute unless any party applies to vary within 14 days.  After the lapse of 14 days and if there is no application for variation, the Plaintiff do lodge and serve his List of Objections to the Defendant’s Statement of Costs dated 20 February 2026 within 14 days thereafter and this Court will summarily assess the Defendant’s costs on paper.