PHAM VAN NGO AND OTHERS v. ATTORNEY GENERAL

1990 No. A4895

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H E A D N O T E

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    Application for an interim payment under Order 29, rule 10 of the Rules of the Supreme Court in an action for damages for false imprisonment.

1990 No. A4895

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an application by the 1st, 2nd, 3rd and 4th plaintiffs for an order for an interim payment of damages pursuant to 0.29, r.10 of the Rules of the Supreme Court.

2. The facts reveal that Pham Van Ngo, the 1st plaintiff, was the Captain of a vessel which arrived in Hong Kong waters from Vietnam on the 1st May 1989, carrying 113 Vietnamese boat people, including the 1st plaintiff's wife, his son, and daughter, who are the 2nd, 3rd and 4th plaintiffs.

3. Officers of the Marine Police boarded the vessel on the 1st May 1989 when it was anchored in Stanley Harbour where the boat people were shown a warning notice which reads :-

"There is a new policy in force in Hong Kong.

Former residents of Vietnam seeking to enter Hong Kong as economic migrants are now treated as illegal immigrants. You are free to leave Hong Kong.

If you choose to continue your journey you will be given food and water and if necessary, your boat will be repaired."

4. It is the plaintiff's case that they did not intend to come to Hong Kong, but intended to travel to Japan where they hoped to become refugees either. permanently or for resettlement elsewhere. As a result, the 1st plaintiff on behalf of the other plaintiffs accepted the offer contained in the warning notice to be supplied with food and water, and for the vessel to be repaired as they wished to continue their journey to Japan. The plaintiffs were then taken to the Green Island Reception Centre where they disembarked and were processed there on the 4th May 1989 by officers of the Immigration Department. Subsequently, they were moved to the Shamshuipo Detention Centre on about the 25th May 1989 where they remained until January 1990 when they were moved to the Whitehead Detention Centre.

5. Meanwhile, the vessel which appears to have been leaking badly was towed to the Government dockyard where an examination was made by a ship inspector of the Marine Department. He estimated that the minimum cost of repairs to the vessel would be between $500,000 to $700,000. As the Government considered that the sum was too high to spend on the repairs, the boat was subsequently destroyed.

6. The plantiffs, however, in the belief that the boat would be repaired, were under the impression that they would only have to remain in Hong Kong for a few days before proceeding on their journey to Japan. Instead, they were detained in the detention centres until the 12th November 1990 when a writ of habeas corpus was granted by Sears, J. Following these proceedings, the plaintiffs were granted refugee status by the Hong Kong Government on the 7th December 1990.

7. The present proceedings were instituted on the 20th July 1990 in which the plaintiffs are claiming, inter alia, damages for false imprisonment together with exemplary or aggravated damages. However, the application e for an interim award only relates to the claim for ordinary damages.

8. The period of wrongful detention alleged by the plaintiffs from the 1st May 1989 to the 12th November 1990 has been admitted, but a second period of detention in respect of the 1st plaintiff from the 12th to the 13th November 1990 is denied.

9. By the amended defence, the plaintiffs have been put to proof with regard to their intention to stay in Japan and as to whether they would have been granted refugee status there to remain permanently or be resettled elsewhere on the assumption that they would have actually reached Japan on the vessel.

10. The trial of this action is due to commence on the 16th June 1992 with 80 days reserved.

11. The application, is supported by an affidavit of the plaintiffs' solicitor, Mr Kerr, who states that the four plaintiffs have now been resettled in England where they are undergoing a familiarization course that includes learning English. He believes that the plaintiffs are receiving welfare payments and assistance from refugee organisations but does not provide any figures or any details as to their present status. He went on to say that in his opinion the plaintiffs will be awarded substantial damages.

12. No evidence was filed by any of the four plaintiffs.

13. The relevant parts of 0. 29 under which the application is made are set out in rules 10 and 11 which provide:

"10. (1) The plaintiff may, at any time after the writ has been served on a defendant and the time limited for him to acknowledge service has expired, apply to the Court for an order requiring that defendant to make an interim payment.

(2)...

(3) An appliction under this rule shall be supported by an affidavit which shall -

(a) verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;

(b) exhibit any documentary evidence relied on by the plaintiff in support of the application; and

(c)...

(4)...

(5)..."

0.29, r.11 reads as follows:

"11. (1) If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied -

(a) that the defendant against whom the order is sought (in this paragraph referred to as 'the respondent') has admitted liability for the plaintiff's damages; or

(b)...

(c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent ....the Court may, if it thinks fit ...., order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely."

(2)..."

The application for the interim payment for the period of false imprisonment that is admitted is provided for under 0.29, r.11(1)(a) and for the second period in dispute under 0.29, r.11(1)(c).

14. Mr McCoy, counsel for the plaintiffs, said that as the trial has been set down for several months, it is unlikely that judgment will be delivered for some considerable period of time so that it is reasonable to make an interim award. Although he submitted that hardship does not have to be proved, Mr McCoy argued that the plaintiffs must necessarily be suffering hardship following their resettlement in the United Kingdom as they do not speak English and do not possess any particular skills for employment purposes. He further contended that an application for an interim payment can be made at any time after the writ has been served.

15. The summons in this case seeks an order for payment of $250,000 for each of the four plaintiffs which, Mr McCoy said, was based on a sum of about $460 per day for each day of the plaintiffs' detention. However, he indicated that a lower figure of $100 per day might be considered appropriate. In fact he put his case on the basis that some award would alleviate the plaintiffs' hardship.

16. With regard to quantum, Mr McCoy in support of his proposition that substantial damages will be awarded relied on Harnett v. Bond & another [1925] AC 669 where the plaintiff, while a sane man, was detained in a private lunatic asylum for 9 years and was awarded £25,000 for false imprisonment

17. In his submission, Mr Mitchell, counsel for the defendant submitted that the application should not be entertained as there is no precedent for an interim payment to be awarded in a case alleging false imprisonment, and that all precedents for interim awards have been in respect of liquidated damages and personal injury claims where there is a tariff, whereas there is no tariff for damages for false imprisonment. He went on to say that the damages that would be awarded to the plaintiffs in this case upon the evidence will be nominal, submitting that the detention was technical. Mr Mitchell also submitted that the application has been brought too late, being a matter of only three weeks before the trial is due to start. He also contended that the affidavit in support of the application lacks particularity for it does not set out the amount of damages to which the application relates nor does it provide any information as to the plaintiffs' financial position.

18. Mr McCoy responded by submitting that justice should be seen to be done on the basis that the plaintiffs will, in any event, succeed and that on any concept of proportionality, it is necessary to look at the wrong that has been done and that even if the defendant's actions were well intentioned, damages will be awarded sooner or later. He also poured scorn on the suggestion that the detention was technical. However, I do not agree for Mr Mitchell was merely describing the detention as technical in the sense that the defendant contends that any award of damages must be nominal.

19. In considering whether an interim payment should be made, my attention was drawn by counsel to my own decision in Yeung Sek-sung v. Cheuna For-minx and another [1991] 1 HKLR 1, where at 5 I said:-

"In another authority that was cited: Shanning International Ltd. v. George Wimpey International Ltd. (1988]3 All ER 475 held that when an application is made for an interim payment, the court is required to approach the matter in two stages, first, by deciding that if the action went to trial, the plaintiff would obtain judgment for a substantial sum and, second, to determine whether in the exercise of its discretion, an order should be made, and if so, for what amount."

Later on the same page, I said:-

"The object of an application for an interim payment is to alleviate hardship or prejudice to the plaintiff during the period from the institution of proceedings up to the date of trial, see Ricci Burns Ltd. v. Toole and Another [1989]3 All ER 478 at 485F. However in my judgment, an interim award should normally be considered when the trial is unlikely to take place for a long period of time."

20. The object of the rule was adverted to in Shearson Lehman Inc. v. Maclaine, Watson Ltd. [1987]1 WLR 480 by Nicholls L.J. at 492 where he said :-

"...., the underlying purpose ..... is ....: to mitigate hardship or prejudice to a defendant which may exist during the period from the commencement of an action to the trial. Further, the underlying task of the court ..... is ..... ordering an interim payment of such amount as is just, having regard to all the circumstances."

21. In respect of his argument to which I have referred earlier that it is not necessary for the plaintiffs to establish hardship, Mr McCoy cited Schott Kem Ltd. v. Bentley and others [1990]3 WLR 397 where it was held that there is no restriction upon making an award by establishing hardship. In this case at 406 Neill, L.J. had this to say:-

"Counsel for Schott Kem, on the other hand, relied on the fact that in Shearson Lehman [1987] 1 WLR 993, Lloyd L.J. rejected an argument on behalf of the defendants that this Part of Order 29 was only intended to apply in very special circumstances where the plaintiff can show real hardship.

As I understand the present practice, it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payments in such cases may lead to difficulties if an order for repayment is subsequently made under Ord. 29, r.17.

I am not satisfied, however, that there is any restriction implicit in the rules which prevents an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words 'if it thinks fit' both rules 11 and 12 confer a discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be 'of such amount as [the court] thinks just,' with the additional limitation in the case of damages that the amount is not to exceed 'a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff' after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payments other than those set out in Order 29 itself.

I would therefore reject the argument that it is necessary for Schott Kem to produce evidence of need or prejudice."

Kaplan, J. followed this decision in Paul Y Construction Co. Ltd. v. The Attorney General of Hong Kong, Construction List No. 2 of 1992, (unreported 26th March 1992).

22. Although Mr McCoy indicated that I had in Yeunq sek-sung v. Cheung For-ming and another said that hardship had to be established before an interim award could be made, in fact I said that the provision for an award is intended to alleviate hardship. If any confusion has arisen as a result of my decision, I hasten to say that I agree with both the above decisions, but although hardship does not have to be proved, it is a matter to be taken into consideration when the court is asked to exercise its discretion.

23. If the court should decide to exercise its discretion in favour of a plaintiff to make an interim award, the court's approach to this question is set out in Newport (Essex) Engineering Co. Ltd. v. Press & Shear Machinery Co. Ltd. [1983] 24 BLR 71 where O'Connor, L.J. said at 76:

"Lastly, if the court decides to make an order, the amount is to be such

'as it thinks just'.

The court has to make an estimate of the damages which are

'likely to be recovered';

that is, when the issue is finally determined. The ease or difficulty in making such an estimate will vary enormously from case to case. In some cases it is quite impossible to make a useful estimate without hearing the case out. Are plaintiffs in such cases to be excluded from obtaining an interim payment? I think not, for, on the material available to the court hearing the application, the court may be in a position to say 'the plaintiff should recover at least £X and is likely to recover more or a great deal more'."

24. I accept that the plaintiffs are entitled to make a claim for an interim award of damages at any time after the issue of the writ provided that they can establish they will be entitled to a substantial sum by way of damages. However, apart from a bare assertion by Mr Kerr that the plaintiffs will be awarded substantial damages, there is no evidence upon which to base this contention. The facts in Harnett v. Bond bear no relevance to the facts of the present case and I derive no assistance from this authority. In a case of damages for false imprisonment, there is no tariff as in some personal injury actions so that it will necessarily depend upon the facts of each individual case as to the amount of damages that will be awarded, see Abbassy and another v. Commissioner of Police of the Metropolis and others [1991] All ER 193, Purchas, L.J. at 204 said:-

".... As with cases involving damages for defamation, so with awards of damages in cases of physical insult and restraint involved in wrongful arrest or malicious prosecution; these are areas where the question of damages is sb utterly subjective to the individual facts involved that I think it would be wrong to attempt to influence by judicial interference consideration of damages by the jury."

The submission made by Mr McCoy that a sum of about $460 per day should be awarded was wholly unrealistic and was based upon no evidence, so that it could only have been a figure plucked out of the air particularly as he went on to say that the award could be $100 per day. There was, in fact, no basis upon which the plaintiffs can show that they will succeed in an award for substantial damages having regard to the issues advanced in the defence upon which Mr Mitchell submits only nominal damages will be awarded In particular, a fundamental part of the defendant's case is that the plaintiffs' vessel, when it arrived in Hong Kong, was unseaworthy and did not have a reasonable chance of reaching Japan so that had the plaintiffs continued their journey,.they could have perished at sea. The issue of intention and the willingness of the Japanese Government to accept the plaintiffs as refugees, if established, are also very strong factors that mitigate against a claim for substantial damages.

25. Upon the facts of this case, I am far from satisfied that substantial damages will be awarded. With regard to the period in dispute, I consider that it is highly unlikely that judgment, if given in favour of the 1st plaintiff, will result in a substantial award of damages.

26. I also accept the defendant's submission that the present application was made far too late for I am satisfied that the legislation was not passed to enable a plaintiff to seek an interim award when the trial is a matter of a few weeks hence.

27. Further the plaintiffs' evidence in support of the application was singularly lacking in particularity as to the individual circumstances of the plaintiffs and their present situation whilst the mete assertion by Mr Kerr that substantial damages will be awarded had no material basis in fact.

28. In all the circumstances, and for the reasons that I have given, I am quite satisfied, in the exercise of my discretion, that the application for an interim award of damages should be refused. In handing down this judgment I shall make an order nisi for costs in favour of the defendant and certify fit for two counsel.