TING KWONG LUN & OTHERS v. SECRETARY FOR JUSTICE

HCA 1202/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1202 OF 2002

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(Consolidated by Order of Mr Registrar C Chan dated 5 June 2002)

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J U D G M E N T

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The actions

1. The Plaintiffs in these three consolidated actions are unsuccessful right of abode seekers in the Hong Kong Special Administrative Region. They are all Chinese nationals who were born in the Mainland to parents at least one of whom is now a permanent resident of Hong Kong. However, they do not fulfil the requirements of article 24(2)(3) of the Basic Law as definitively interpreted by the Standing Committee of the National People's Congress on 26 June 1999 (the "Interpretation"), because when they were born none of their parents had yet become a Hong Kong permanent resident. They therefore do not enjoy the right of abode pursuant to article 24(2)(3) of the Basic Law; nor do they fall within either of the two classes of persons, i.e. persons with a legitimate expectation and persons benefiting from the Government's concession as set out in the Court of Final Appeal judgment in Ng Siu Tung v Director of Immigration [2002] 1 HKLRD 561, qualifying for favourable consideration by the Director of Immigration in relation to their request for remaining in Hong Kong in the exercise of the Director's discretion under the Immigration Ordinance (Cap. 115).

2. By these three actions, the Plaintiffs originally sought a declaration that any removal orders already issued or to be issued against them by the Director of Immigration be quashed and that they be allowed to remain in Hong Kong, as well as damages to be assessed. The ground relied on was that the Government "did not have an administrative measure or procedure put in place to handle or properly handle the Plaintiffs and other right of abode seekers before or after" the various public announcements made by the Chief Executive and his officials following the Court of Final Appeal judgments given in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 and Chan Kam Nga v Director of Immigration (1999) 2 HKCFAR 82; these announcements were said to be to the effect that the Government would abide by and enforce the judgments and amendments would have to be made to certain provisions in the Immigration Ordinance which were in conflict with the Court of Final Appeal judgments.

3. As is now generally well-known, the Court of Final Appeal judgments in Ng Ka Ling and Chan Kam Nga gave the provisions in article 24(2)(3) a wider and more liberal interpretation than that which was subsequently given by the Standing Committee of the National People's Congress in the Interpretation. In a nutshell, the Plaintiffs claimed that they all benefited from the Court of Final Appeal judgments in Ng Ka Ling and Chan Kam Nga but not the subsequent Interpretation by the Standing Committee.

The strike-out applications

4. The Defendant duly took out applications to strike out the essentially identical pleadings in the three actions. On 5 June 2002, the three actions were consolidated by an order made by Mr Registrar C Chan.

The amendments

5. The strike-out applications were however overtaken by subsequent development. On 19 August 2002, prior to the scheduled hearing date of the three strike-out applications, the Plaintiffs in the three consolidated actions amended their Statements of Claim without leave pursuant to O 20 r 3 of the Rules of the High Court (Cap. 4), as this was the first amendment and pleadings had not been deemed to be closed.

6. The amendments comprised the deletion of essentially all material pleas in the original Statements of Claim including the prayer for a declaration that the removal orders be quashed and that the Plaintiffs be allowed to remain in Hong Kong, and the addition of new allegations of material facts cumulating in an amended prayer for relief claiming damages to be assessed.

The application to disallow amendment

7. The Defendant promptly took out a summons under O 20 r 4 applying to the Court to disallow the amendments (from paragraph 3 onward) on 24 August 2002.

8. At the hearing, counsel for the Plaintiffs conceded that the original Statements of Claim disclosed no valid cause of action and were therefore unsupportable. In my judgment, it was a wise concession. For that reason, I need not concern myself with the original pleadings anymore, nor need I concern myself with the original applications to strike out. The focus of attention has therefore shifted to the latest amendments which, with the exception of a few immaterial amendments, the Defendant seeks to persuade the Court to disallow. The Defendant also contends that once the amendments are disallowed, nothing meaningful will be left in the Amended Statement of Claim and therefore the consolidated actions should be dismissed. With this latter proposition, the Plaintiffs do not disagree.

The Amended Statement of Claim

9. It is useful to set out in full here the Statement of Claim as amended. I will skip the deleted words from the following extract:

No loss

10. Mr Joseph Fok SC, leading counsel for the Defendant, attacks the amendments on a number of grounds. First and foremost, he argues that the Amended Statement of Claim in the consolidated actions does not disclose a valid cause of action based on misfeasance in public office because there was patently no loss or causation of loss.

11. It is clear from the above extract from the Amended Statement of Claim that the latest cause of action relied on by the Plaintiffs is the tort of misfeasance in public office. The reference to "breach of trust" in paragraph 6 does not add anything new to the misfeasance plea as is accepted by counsel for the Plaintiffs. It is also not in dispute that to constitute a valid cause of action based on misfeasance in public office, the Plaintiff needs to plead and be in a position to establish, amongst other things, a causal link between the alleged misfeasance and the alleged loss.

12. The law on the tort of misfeasance in public office has been authoritatively examined by the House of Lords in the recent case of Three Rivers District Council v Bank of England (No. 3) [2000] 2 WLR 1220 which was adopted and applied by our Court of Appeal in Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324. I need not go into details of the tort at this stage. Suffice it to say (or repeat) that a causal connection between the alleged misfeasance and the alleged loss in respect of which damages are being sought is required to be pleaded and established.

13. On this front, Mr Fok submits forcefully that there was no loss suffered by the Plaintiffs. Regardless of whether one should categorise this as a "no causation" point or "no loss" point, it boils down to the same thing, i.e. that the Plaintiffs have suffered no loss by reason of the alleged misfeasance on the part of the Defendant. The argument is simple. As I said, the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga gave the relevant provisions in article 24(2)(3) a wider and more liberal interpretation than the subsequent Interpretation made by the Standing Committee of the National People's Congress. According to a subsequent Court of Final Appeal decision in Lau Kong Yun v Director of Immigration [1999] 2 HKCFAR 300, 326D to 327B concerning the Interpretation and the legal effects thereof, the true position is as follows:

14. Of significance in the present context also is what the late Ching PJ said at page 341E-F:

15. Sir Anthony Mason NPJ expressed similar views at page 346C-E as follows:

16. In my judgment, the Interpretation rendered by the Standing Committee simply set out and declared the correct interpretation of the relevant provisions in articles 22(4) and 24(2)(3). No new meaning has been ascribed to the provisions, which was not there in the articles when properly construed. No right or interest based on article 24(2)(3) as properly understood and interpreted was taken away, or for that matter, created, by the Interpretation. All that the Interpretation did was to set out the true legislative intent and therefore true interpretation of the relevant provisions in article 24(2)(3).

17. Regardless of any constitutional law theory about a "living" constitution or the "evolution" of a constitution, I have no doubt whatsoever that at all material times - and in particular during the period between 1 July 1997 and 26 June 1999 - there was and is always only one true interpretation of these provisions and it has been authoritatively and finally set out and declared by the Standing Committee in the Interpretation pursuant to the provisions in the Constitution of the People's Republic of China and the Basic Law. As the Basic Law took effect in Hong Kong as from 1 July 1997, the Plaintiffs' entitlement, or more correctly, lack of entitlement, under article 24(2)(3), when properly and correctly understood and interpreted, has always been and remained the same, whether before or after the decisions of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga in January 1999, and whether before or after the Interpretation by the Standing Committee in June 1999.

18. The situation might have been different - and I put it no higher than that - if there had been an amendment to the Basic Law following the Court of Final Appeal decisions in Ng Ka Ling and Chan Kam Nga, thereby curtailing the scope of application of the relevant provisions in article 24(2)(3) of the Basic Law as interpreted by the Court of Final Appeal in those two decisions; but that never happened and is therefore wholly academic.

19. In the circumstances, Mr Fok must be totally right with his submission that whatever misfeasance that the Plaintiffs may be complaining about in the Amended Statement of Claim (see below), it did not cause the Plaintiffs any loss, whether in terms of any unspecified "loss of livelihood" (paragraph 7) or otherwise; or put another way, the Plaintiffs simply suffered no loss.

20. At the hearing, counsel for the Plaintiffs apparently sought to particularise on the loss alleged as the Plaintiffs' loss of their right to stay in Hong Kong pursuant to the provisions in article 24(2)(3) of the Basic Law as interpreted by the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. In my judgment, viewed in the light of the authoritative interpretation of the relevant provisions in articles 22(4) and 24(2)(3) by the Standing Committee in its Interpretation, in truth and in law, the Plaintiffs never had any right of abode in Hong Kong under the relevant provisions of the Basic Law when properly understood and construed at any material time. This being the case, the cause of action based on the tort of misfeasance in public office must fail for want of a causal connection between the alleged misfeasance and the alleged loss or, put another way, for want of any loss.

21. For this reason, I am of the view that the amendment was a futile exercise and the amended pleading does not disclose a reasonable cause of action. It is incurable and therefore the amendments must be disallowed. It must also follow that the consolidated actions must be dismissed.

No causation of loss

22. Having reached that conclusion, I need only briefly deal with the other arguments raised by Mr Fok. On the question of causation, Mr Fok also argues by way of a related though different point that whatever loss suffered by the Plaintiffs was not caused by the alleged misfeasance on the part of the Defendant. This is only a relevant argument if somehow one can say that arguably, the Plaintiffs have lost a right, interest or something else protected by law as a result of the Interpretation, which they used to have prior to the Interpretation.

23. Mr Fok is embarrassed by the state of the pleading when he runs this alternative argument. This is because the pleading, in particular, the new paragraph 6, does not clearly identify what act or acts the Plaintiffs are relying on in support of their case based on misfeasance. Paragraph 6 pleads to the Defendant's reliance upon "the results of the study" pleaded in paragraph 2a "together with its subsequent course of action" as constituting the tort of misfeasance. What the Defendant's "subsequent course of action" was has not been specifically pleaded, nor have any particulars been supplied. Counsel for the Plaintiffs orally informed the Court at the hearing that this included everything that happened subsequently leading to the Interpretation made by the Standing Committee so far as it was attributable to the Defendant as its act or omission.

24. The second reason why Mr Fok or the Defendant is embarrassed by the amended pleading is that it does not plead any causal connection between the misfeasance complained of (regardless what it actually comprises) and the resulting "loss of livelihood and consequential damages" (paragraph 7), apart from saying that the same happened "by reason of the matters set out above [i.e. the matters pleaded prior to paragraph 7]". Needless to say, all this is wholly unsatisfactory if not fatal.

25. Be that as it may, all these glaring deficiencies in pleading do not prevent Mr Fok from arguing that regardless what the missing links may have been intended to be, the Defendant did not cause the Plaintiffs the alleged loss. The Interpretation was made by the Standing Committee of the National People's Congress of the People's Republic of China pursuant to the provisions in the Constitution and the Basic Law. The history and events leading to the Interpretation were clearly set out in the majority judgment in Lau Kong Yun (supra) at pages 318G-319F, and the content of the Interpretation at pages 319G-321B. I need only extract the preamble to the Interpretation here:

26. Mr Fok argues that the Government study or the results thereof that are complained of in the Amended Statement of Claim, or for that matter, the Chief Executive's eventual report made to the State Council "seeking assistance of the Central People's Government in resolving the problems encountered in the implementation of the relevant provisions of the Basic Law" under articles 43 and 48(2) of the Basic Law, were several steps removed from the Interpretation itself.

27. As has been clearly set out in the preamble of the Interpretation, the Standing Committee's decision to interpret the relevant provisions in the Basic Law was made pursuant to a motion made by the State Council regarding the request made by the Chief Executive seeking assistance in resolving the problems encountered in the implementation of the Basic Law. In a nutshell, Mr Fok argues that if the Interpretation did cause the Plaintiffs any loss recognised and protected by law, the loss was really caused by the Standing Committee's interpretation or at most, the State Council's motion submitted to the Standing Committee regarding the request for an interpretation of the provisions in the Basic Law. It was not caused by the Government study or the results thereof complained about in the Amended Statement of Claim, or - as counsel for the Plaintiffs orally suggested at the hearing - the eventual request made by the Chief Executive (as to which, insofar as it is intended to include the same as comprising part of the misfeasance complained of by the Plaintiffs, there is absolutely no such averment in the Amended Statement of Claim, thereby constituting an additional source of embarrassment to Mr Fok and the Defendant in this regard).

28. Moreover, Mr Fok points out that the preamble clearly suggested that the main reasons why the Standing Committee decided to make the Interpretation were that the Court of Final Appeal ought to have sought the interpretation of the Standing Committee before rendering its judgments in Ng Ka Ling and Chan Kam Nga and that "the interpretation of the Court of Final Appeal [was] not consistent with the legislative intent", and "therefore" the Standing Committee eventually decided to make the Interpretation.

29. Mr Fok therefore argues that this clearly shows that the Interpretation had really little if anything to do with the Government survey or the results thereof complained about in the Amended Statement of Claim. As to any other possible but as yet unpleaded complaint(s) against anything or anyone else that could be attributable to the Defendant, Mr Fok argues that whatever it might be, it had nothing to do with the decision of the Standing Committee to make the Interpretation.

30. I must say that these are very forceful arguments. But in my judgment, as Mr Fok rightly calls them, they are arguments going to the causation issue. They all boil down to this, i.e. whether the chain of causation between the alleged misfeasance and the alleged loss has been broken by the subsequent actions of the State Council and the Standing Committee of the National People's Congress leading to the making of the Interpretation.

31. If the answer is 'yes', then of course Mr Fok is correct in saying that the alleged loss suffered by the Plaintiffs was not caused by the alleged misfeasance of the Defendant.

32. However, if the chain has not been broken, or to use language more familiar in the area of tort law, if there was no novus actus interveniens, then the causal connection between the alleged wrong and the alleged damage has not been broken, and Mr Fok's point will be gone. Put another way, the real question here is: Did the act of the State Council or the Standing Committee constitute a novus actus of such impact that it obliterated the wrong-doing of the Defendant, since vis-à-vis the Defendant, the State Council and the Standing Committee may be regarded as third parties? In other words, one is really here concerned with when the intervening conduct of a third party will constitute a novus actus interveniens sufficient to relieve the defendant of liability for its original wrong-doing.

33. As has been wisely pointed out by the learned editors of Clerk & Lindsell on Torts (18th ed), "no precise or consistent test can be offered to define when the intervening conduct of a third party will constitute a novus actus interveniens" and "the question of the effect of a novus actus 'can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event'". See paragraph 2-41 and generally paragraph 2-36 et seq.

34. Given the context of the present hearing, I am not prepared to base my decision to disallow the amendments and dismiss the consolidated actions on this alternative argument of Mr Fok. In other words, I am prepared to conclude, at this stage and in the absence of relevant evidence, that on the question of whether the alleged loss of the Plaintiffs was caused not by any alleged misfeasance committed by the Defendant, but rather by the act of the Standing Committee or State Council, the Plaintiffs have an arguable case - and I put it no higher than that - that the alleged loss was indeed so caused by the Defendant.

No pleading of mental element

35. Mr Fok also argues correctly, in my judgment, that in order to rely on the tort of misfeasance in public office, the Plaintiffs have to plead or more correctly be in a position to plead the necessary mental element against the Defendant. In this regard, Mr Fok argues that first, the Plaintiffs must identify the individual public officials within the Government who were guilty of the alleged misfeasance; secondly, the Plaintiffs must be in a position to plead against those officials the necessary mental element.

36. In this regard, Ribeiro JA (as he then was) has set out the requisite mental element in the Court of Appeal decision in Tang Nin Mun (supra), which as I said adopted and applied the House of Lords decision in Three Rivers District Council (supra). The relevant passages can be found on pages 328J-329J of the law report:

37. Mr Fok argues that the decision of the Court of Appeal demonstrates that it is extremely difficult to plead such an allegation of the necessary mental element against a public official. As pointed out by Clerk and Lindsell in para 17-135: "the court's strict approach to what claimants must prove by way of the defendant's state of mind acts as a formidable practical constraint on the tort's actual development".

38. But each case depends on its own facts. In Tang Nin Mun, the difficulty facing the plaintiff there was that he had to plead that the defendant constable was subjectively aware that his fabrication of evidence (i.e. the misfeasance complained of in that case) would "in the ordinary course of events, lead to the plaintiff suffering psychiatric disorders of the type of which he complain[ed]" (page 329J). One can immediately see why even at a strike out stage the Court of Appeal found it unrealistic to say that the plaintiff was in a position to make such an allegation in his pleading. It was indeed difficult for a police constable (or anyone else) to imagine or foresee subjectively how his fabrication of evidence would "in the ordinary course of events" lead to a crime victim developing and suffering a serious psychiatric condition.

39. In the present case, however, the situation is rather different. The allegation against the Government in the Amended Statement of Claim, as amplified and supplemented orally by counsel during the hearing, is basically that the whole exercise of conducting the study was designed or calculated to bring about a reversal of the Court of Final Appeal decisions in Ng Ka Ling and Chan Kam Nga and thus a drastic reduction of the number of potential beneficiaries under the judgments. The facts are very different from that obtaining in Tang Nin Mun.

40. Again given the present context, I am not prepared to accede to the application to disallow the amendments on this argument.

Pleading defects

41. Mr Fok also justifiably raises a number of complaints about the pleading, which was not signed by counsel. I have already alluded to the embarrassment faced by Mr Fok and the Defendant arising from the defective pleading in relation to the scope of misfeasance complained of by the Plaintiffs and the causation of loss. I shall not repeat myself here. Mr Fok also complains about the absence of a specific plea that the results of the study were false or incorrect, the total absence of particulars relating to the allegations of knowledge and recklessness which are themselves pleaded as particulars of misfeasance under paragraph 6 of the Amended Statement of Claim, and the lack of a plea of knowledge or foreseeability of the type of loss allegedly suffered by the Plaintiffs.

42. I must say that I agree with most if not all of these complaints, but putting them in the right context, this would only mean that I should disallow the amendments themselves. In my judgment, it does not have the effect of preventing the Plaintiffs from, subject to the Court's leave, having a third bite of the cherry by presenting to the Court a new set of amendments and particulars so as to fill in the pleading gaps. Indeed at the hearing counsel for the Plaintiffs did ask the Court to allow the Plaintiffs to re-amend their pleading. Without seeing any draft re-amendments, I do not wish to say anything about whether all these pleading defects can be cured by suitable re-amendments or whether the Plaintiffs would be in a position to plead those necessary re-amendments.

43. All that I would like to say in relation to these pleading complaints made by Mr Fok is that they provide an additional reason for my disallowing the amendments. However, as to my decision to dismiss the consolidated actions, I base it on my earlier holding that on the Plaintiffs' own case, they have suffered no loss recognized or protected by law as a result of the alleged misfeasance.

Outcome

44. For all these reasons, I order that the amendments (from paragraph 3 onward) made by the Plaintiffs under O 20 r 3(1) be disallowed pursuant to O 20 r 4(1). I further order that the consolidated actions be dismissed.

45. Save as to costs, I make no order in respect of the three applications to strike out.

46. As regards costs, I make an order that the costs of the consolidated actions, whether incurred before or after the consolidation, and including the costs of the three applications to strike out and the costs of the present application to disallow the amendments, be paid by the Plaintiffs to the Defendant, to be taxed if not agreed. I also grant a certificate for two counsel.

47. For the avoidance of doubt, I should clarify that for those Plaintiffs who have already withdrawn their claims against the Defendant prior to the present hearing, they shall only be responsible for costs incurred up to the withdrawal but not beyond.

48. As to the enforcement of my costs order, it is of course a matter for the Defendant to decide.

49. In view of the public interest in the subject matter of these consolidated actions and applications, I adjourn the present hearing from chambers into court, so as to enable this judgment to be handed down in open court.

50. Lastly, I would like to thank counsel for their helpful assistance.