SS v. WILLIAM LAM

CACV 95/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2013

(ON APPEAL FROM HCAL NO. 145 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  On 24 October 2014, we allowed the appeal on paper and gave leave to the Applicant to apply for judicial review. The following are our reasons.

2.  The Applicant sought leave to apply for judicial review in respect of the determination of his claim under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Leave was refused by Au J on 15 March 2013.  The main reason for refusing leave was the adoption of the reasoning in the first instance judgment in ST v Betty Kwan HCAL 60 of 2012, 8 March 2013.  As apparent from para 2 of the brief reasons set out in the CALL-1 Form, the learned judge also adverted to the lack of evidence on state acquiescence.

3.  ST v Betty Kwan had been overturned on appeal, see [2014] 4 HKLRD 277.  The Court of Appeal also gave further considerations to the requirement of state acquiescence in Re MI CACV 69 of 2014, 26 September 2014. 

4.  In light of these developments, and mindful that this is an appeal against the refusal of leave (as opposed to an appeal against a substantive decision in a judicial review), directions were given by this court to facilitate the expeditious, economical and just disposal of the appeal.

5.  Pursuant to the directions given on 29 July 2014, the putative respondent (the Adjudicator determining the petition by the Applicant) indicated that he would abide by any order made and does not wish to be heard.  The putative Interested Parties (the Chief Executive of the HKSAR and the Director of Immigration) also indicated through their respective solicitors that they would take a neutral stance in this appeal.

6.  Even so, the Applicant still carries the burden of persuading this court that the appeal should be allowed.  Directions were therefore given on 13 October 2014 to facilitate this court to consider whether the appeal could be satisfactorily dealt with on paper.

7.  Pursuant to these directions, the Appellant lodged skeleton submissions and draft amended Form 86 for this court’s consideration. After reading such documents, this court decided to allow the appeal on paper.

8.  As mentioned the approach adopted by the judge (in following his first instance decision in ST v Betty Kwan, supra) had been overturned.  Applying the approach laid down by this court in ST v Betty Kwan  [2014] 4 HKLRD 277 to the present case, it is reasonably arguable that the Adjudicator should have held an oral hearing to allow the Applicant to address on various aspects of the claim before he rejected it.

9.  At para 12 of the Decision of the Adjudicator, he said:

“12.   All the misfortunes had arisen from a handful of ANP supporters, and the ANP was not the state government of Pakistan.  The mere fact that some supporters of the ANP had resorted to violence is not evidence of the ANP’s official attitude.  There must be hordes of people, other than the Petitioner, who were non-supporters of the ANP.  To say that the official stance of the ANP was to kill everyone who would not support them is simply incredible.  Clearly ZaU and his several accomplices were acting on a frolic of their own.  My finding of their non-official capacity is fortified by the fact that even the Petitioner himself refers to them only as “gangsters” and that ZnU was a fugitive (Record of Interview QA.45).  No aspect of this case has indicated any instigation from or involvement by the national Government of Pakistan or by any person acting in an official capacity.”

10.  With respect, we do not think the Applicant went so far as to allege that the official stance of the ANP was to kill everyone who would not support them.  His claim was based on his allegations that members of the ANP had enlisted his assistance and his refusal was not acceptable to them, thus their alleged threats and ill-treatment of him.

11.  The Adjudicator concluded that “clearly ZnU and his several accomplices were acting on a frolic of their own”.  He regarded this conclusion being fortified by the Applicant referring to these people as “gangsters” and ZnU was a fugitive.  We must say, with respect, it is not entirely clear to us as to why the Adjudicator regarded those attacked or threatened the Applicant acted on a frolic of their own.   Arguably, before such inference is drawn, there should be an oral hearing to give the Applicant an opportunity to explain his choice of description of these people and whether there are additional matters to link the actions of these people to ANP and then linking ANP with a governmental agency.

12.  At para 13, the Adjudicator again drew inference from the fact that the Applicant had not been arrested, detained or imprisoned in his home country and he was able to depart from it twice without being intercepted.

13.  At para 16, the Adjudicator assessed the risk of torture by reference to the lapse of time since the last unhappy encounter between the Applicant and these people.  He made the observation that these gangsters “could easily have been killed by their opponents during these long years”, alternatively “the gangsters could have easily forgotten about him, or have at least lost interest in him”.

14.  Again, before inferences like these were drawn, it is reasonably arguable that the Applicant should be given an opportunity to supplement what were already set out in his written materials.  As Lord Bingham said in R (West) v Parole Board [[2005] 1 WLR 350 at [35]:

“… Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. Whilst the board’s task certainly is to assess risk, it may well be greatly assisted in discharging it (one way of the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. …”

15.  To the same effect in the context of a CAT claim, Cheung CJHC said at para 43 of the ST v Betty Kwan  [2014] 4 HKLRD 277 at p.298:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using the common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is ‘common’ sense in Hong Kong could be ‘uncommon’ sense in another place …”

16.  It is also reasonably arguable that, as contended by Mr Kat, the Adjudicator had misdirected himself on element 3 by failing to consider the proscribed purposes of punishment and coercion.

17.  It is quite plain that the Adjudicator had not dealt with the extended form of state acquiescence.  In light of our conclusions above, we would leave open the question whether there is sufficient material before the Adjudicator to warrant a consideration of that issue, bearing in mind that Au J did not have the benefit of the recent decision of this court in Re MI CACV 69 of 2014, 26 September 2014 when he refused to grant leave.

18.  On the other hand, notwithstanding Mr Kat’s submissions at Section B3 of his skeleton of 21 October 2014, we are not persuaded that the system challenge is reasonably arguable.  In ST v Betty Kwan [2014] 4 HKLRD 277, this court dealt with the system challenge as a system challenge instead of confining its decision to the special facts of that case.  We do not see any material distinction in the present case which takes the matter outside the general applicability of the holdings in that case.

19.  Be that as it may, we would leave it to the Applicant and those advising him to consider whether it is appropriate to pursue those submissions at the substantive judicial review, bearing in mind the merits of the other points taken and the potential costs implications arising from taking unmeritorious points unnecessarily in legal aid taxation (in light of our observation at para 18 above).

20.  In addition to legal aid taxation for the Applicant’s own costs in this appeal (which we had ordered), Mr Kat sought costs here and below against the Adjudicator and the Director of Immigration on the basis that they did not concede the appeal despite being invited to do so on 4 August 2014.

21.  All along, the Adjudicator and the Director did not take active part in the appeal.  Nor did they take active part up to this stage in the court below.  The judge only heard from counsel for the Applicant before leave was refused.  It is in line with well established practice for the Adjudicator to take a neutral stance.  The suggestion that he should adopt any other stance than a neutral one (whether in the judicial review or in this appeal) is untenable and a dangerous proposition.  As regards the position of the Director, in view of its passive role so far, we do not think one can criticise him for not being more proactive in the appeal.

22.  As it had been said in the directions of 13 October, irrespective of the stances of the other parties, the burden is on the Applicant to persuade this court that an appeal should be allowed.

23.  At this stage, we have only decided that leave should be granted for the substantive judicial review application.  We have not decided that the Applicant would succeed in the judicial review application.

24.  In the circumstances, we are of the view that a fair order for costs is that the costs here and below shall be in the cause of the substantive judicial review application.

25.  Having so decided, we would also urge the Applicant and the Director (who indicated that he would play a more active part in the substantive judicial review) to have regard to the underlying objectives in Order 1A Rule 1.  In view of this judgment, we believe there should be scope for the matter to be resolved economically, expeditiously and fairly by adopting the practice in para 23 of practice direction SL3.