CHAN KAM NUN v. THE IMMIGRATION DEPARTMENT

[English Translation – 英譯本]

HCA 214/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 214 OF 2016

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REASONS FOR DECISION

Introduction

1.  This is the plaintiff’s appeal against the orders made by Master Jack Wong of the High Court on 21 February 2017. Having heard submissions from both parties, I dismissed the plaintiff’s appeal, for reasons which I will now give.

Background

2.  On 22 January 2016, the plaintiff commenced the present action by issuing a writ of summons and a statement of claim against the defendant.  On 7 March 2016, the defendant took out a summons to apply to strike out the plaintiff’s writ of summons and statement of claim and dismiss the present action (hereinafter “D’s striking-out application”).  As the defendant had not been able to serve the summons on the plaintiff, the hearing was adjourned sine die.

3.  In the meantime, the plaintiff took out a summons on 29 September 2016 seeking to enter judgment on the ground that the defendant had failed to file and serve a defence within time. On 27 October 2016, after hearing submissions from both parties, Wilson Chan J dismissed the plaintiff’s application to enter judgment.

4.  On 16 December 2016, the plaintiff took out another summons, seeking to strike out D’s striking-out application (hereinafter “P’s striking-out application”).  On the same day, he also applied to the Court of Appeal for leave to appeal out of time against Wilson Chan J’s decision, and that application was refused by the Court of Appeal subsequently.

5.  On 8 February 2017, P’s striking-out application and D’s striking-out application were heard together by Master Wong.  On 21 February 2017, Master Wong allowed D’s striking-out application and ordered that the plaintiff’s statement of claim be struck out and the present action be dismissed.  He also dismissed P’s striking-out application.  On 28 February 2017, the plaintiff lodged an appeal against the Master’s said decisions.

Plaintiff’s cause of action and case

6.  The main issue in this hearing is whether the plaintiff has any cause of action with a prospect of success.  The plaintiff says in his statement of claim:

“The plaintiff claims in respect of the following: harmful consequences of unlawful or improper execution, physical assault

For nine days in June 2000 I was assaulted by five or six staff members of the Immigration Department at the Hong Kong Victoria Immigration Reception Centre [sic].  Afterwards, I complained to the Correctional Services Department who was on guard, and the Immigration Department secretly repatriated me to the Mainland.  In March 2000, I entered Hong Kong from the Mainland and made a report to the police, but three days later I was forcibly repatriated to the Mainland by the Immigration Department on the ground that I had entered the territory unlawfully.  I requested to stay in Hong Kong to follow up this case, but the Immigration Department said that I had to apply for and obtain a Permit for Travelling to and from Hong Kong and Macau before I could follow the matter up in Hong Kong.  After that, over the years in which my application for the Permit was being processed, I was repeatedly victimized and persecuted by the Mainland.  For these reasons, I claim against the Hong Kong Immigration Department for compensation of 100 million dollars.” 

7.  In addition, he has filed three affirmations to oppose D’s striking-out application.  His statement of claim obviously lacks particulars.  In order to assist him to make amendments so that the statement of claim would meet the requirements of a pleading, I asked him questions.  Putting together these pleadings and his responses to my questions in court, the plaintiff’s case is as follows.  He is a Mainland resident.  He came to Hong Kong twice in 2000 but was repatriated illegally.  The first occasion was in January 2000 when, pursuant to arrangement by a third party, he entered Hong Kong lawfully through an unknown immigration channel.  Subsequently, he was detained in the Hong Kong Victoria Immigration Reception Centre [sic].  During the nine days of detention, he was assaulted by five or six staff members of the Immigration Department who forced him to admit having entered the territory unlawfully, but he did not succumb.  He complained to the staff of the Correctional Services Department who were guarding him.  The immigration staff then forged his signature on a document which stated that he admitted having unlawfully entered the territory and agreed to be repatriated voluntarily.  He was then repatriated to the Mainland illegally and secretly.  In March 2000, he unlawfully entered Hong Kong and complained to the police about having been assaulted by the staff of the Immigration Department.  However, three days later, the Immigration Department forcibly repatriated him to the Mainland illegally on the pretext that he had entered Hong Kong illegally, and refused to allow him to stay in Hong Kong to follow up his complaint of assault.  On 22 January 2016, having come to Hong Kong lawfully, he commenced proceedings in the High Court claiming damages in the sum of 100 million dollars.

8.  According to the affirmations filed by the defendant, between 2000 and 2003 the plaintiff had on five occasions entered Hong Kong unlawfully and been repatriated to the Mainland.  In February 2001, he applied to the Legal Aid Department for legal aid to enable him to seek damages for having been assaulted by officers of the Immigration Department.  While being detained for his fifth unlawful entry into Hong Kong, he was charged with common assault (as he had assaulted staff member(s) of the Immigration Department) and with unlawfully remaining in Hong Kong.  He was convicted on both charges and sentenced to imprisonment for 14 days and 15 months respectively, with the two sentences to run concurrently (case no: WSC 189/2003).  The plaintiff takes issue with the above allegations.  As this is an interlocutory hearing, I am not going to make any finding of fact.  As to the issues of fact, I have to base my determination on the version most favourable to the party sought to be struck out.  I do not intend to rely on the affirmations filed by the defendant.

9.  The plaintiff’s cause of action rests upon alleged tortious acts.  The factual basis of his claim is that he had entered the territory lawfully but had been illegally repatriated, and he had been assaulted and hence injured by staff members of the Immigration Department.  He claims compensation of 100 million dollars.  The main grounds on which the defendant seeks to strike out the plaintiff’s statement of claim are the Limitation Ordinance (Cap. 347 of the Laws of Hong Kong), namely that the plaintiff’s claim is time-barred; and O. 18 r. 19 of the Rules of the High Court (Cap. 4A of the Laws of Hong Kong) and the inherent jurisdiction of the court, namely that the plaintiff’s claim discloses no reasonable cause of action, lacks reasonable evidence, lacks factual and legal basis, is frivolous and vexatious, and/or is an abuse of the process of the court.

Legal principles applicable to the appeal

10.  In hearing an appeal against an order made by a Master upon an application, the Judge shall treat the appeal as a rehearing of the original application; the Judge may give due consideration and weight to the Master’s decision but is not bound by the decision; see Hong Kong Civil Procedure 2017 [1].

Legal principles applicable to striking out

11.  In respect of an application to striking out a pleading or the indorsement of any writ, O. 18 r. 19 provides that the court may at any stage order any pleading or the indorsement of any writ to be struck out and may order the action to be stayed or dismissed if:

(1) the pleading or indorsement or anything therein discloses no reasonable cause of action or defence; or

(2) the pleading or indorsement or anything therein is scandalous, frivolous or vexatious; or

(3) the pleading or indorsement or anything therein may prejudice, embarrass or delay the fair trial of the action; or

(4) the pleading or indorsement or anything therein is otherwise an abuse of the process of the court.

D’s striking-out application is made on the basis of items (1), (2) and (4) above.

12.  It is only in plain and obvious cases (eg when it is clear that the claim cannot possibly succeed) that the court may exercise the power to strike out.  Where there is an issue as to fact, the court should assume that the fact is in favour of the party sought to be struck out: see Hong Kong Civil Procedure 2017 [2].

13.  “Disclosing no reasonable cause of action” means that, in light of the allegations set out in the statement of claim alone, the claim has no reasonable prospect of success: see Hong Kong Civil Procedure 2017 [3].

14.  “Being scandalous, frivolous or vexatious” refers to circumstances such as: a claim cannot possibly succeed because it lacks a reasonable foundation or cause, or a claim is an abuse of court process, or allegations of misconduct or dishonesty are made against the opposite party which are irrelevant to the claim against that party: see Hong Kong Civil Procedure 2017 [4].

15.  “May prejudice, embarrass or delay the fair trial of the action” includes raising in the pleading any matter irrelevant to the claim or cause of action, which may cause the other party to incur additional costs and time in defending the claim and may also prejudice or delay fair trial: see Hong Kong Civil Procedure 2017 [5].

16.  “Abuse of the process of the court” means that both parties should properly use the process of the court.  Bringing an action with no locus standi or having no prospect of success is an abuse of court process: see Gurdas S Choithramani v Hong Kong and Shanghai Banking Corp Ltd [6].

Striking out on the basis of the Limitation Ordinance

17.  The plaintiff pleads in his statement of claim that he was assaulted in January 2000 and repatriated illegally to the Mainland in January and March of the same year. The defendant submits that the limitation period should start to run therefrom.  The plaintiff has reiterated the arguments already raised before the Master, namely that the suffering caused to him by the assaults remains in existence up to now, and hence the cause of action still exists and time should not run from January 2000.  In rejecting this argument, the Master pointed out that section 4(1) of the Limitation Ordinance clearly provides the limitation period ran “from the date on which the cause of action accrued”, and so the limitation period of the cause of action for the alleged assault must run from the date on which the alleged assault took place.  The limitation period for bringing any action on that cause had already expired by the end of January 2006.  For the same reason, the limitation periods for the causes of action on the two alleged illegal repatriations had also expired by late January and late March 2006 respectively.

18.  The plaintiff claims that he had been in the Mainland and unable to come to Hong Kong to proceed with any litigation, nor did he have money to instruct a lawyer to deal with any litigation here on his behalf, and so his case was one of “disability”.  In such a case, he contends that pursuant to section 22(1) of the Limitation Ordinance, the limitation period should not start to run until he resumed ability.  Section 22(1) provides as follows:

“22. Extension of limitation period in case of disability

(1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Ordinance, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired:”

This point was also raised before the Master but was rejected.  The Master found that the “disability” in the provision referred to physical (disability) and/or mental problems and not to matters such as money or inability to come to Hong Kong.

19.  I have to adopt an even narrower interpretation.  The English equivalent of the term “無行為能力” is “disability”.  Both the Chinese term and its English equivalent have a very broad meaning, including a lack of ability to act, such as lack of money, physical power, physical fitness, intellectual ability and mental ability, and also covering people like minors, mentally handicapped, mentally disabled, physically disabled and physically handicapped.  However, as a legal term or expression, it carries a relatively narrow meaning.  Whether under the criminal law or the civil law, an act comprises two elements: the act itself and the intention to carry out the act.  Except in cases of strict liability, an act not accompanied by an intention to carry it out does not bring about any legal consequence.  For example, a minor is generally not bound by a contract he has entered into.  A contract made by a person who has been coerced, unduly influenced or misled into doing so may be rescinded.  The basis of this legal principle is that the minors and those under coercion or influence have no intention to do the act, not that they lack physical strength or financial ability to do so.  Therefore, “disability” refers to a lack of mental ability, that is to say, not having sufficient intellectual ability to make a rational decision, by reason of being a minor or mentally disabled or suffering from mental disorder.

20.  Order 80 of the Rules of the High Court sets out the provisions applicable to cases of “disability” within the meaning of the rule.  The Order is headed “無行為能力” in Chinese and “disability” in English. Rule 1 lays down the following definitions:

“1. Interpretation (O. 80, r. 1)

In this Order -

‘the Ordinance’ (條例) means the Mental Health Ordinance (Cap.136);

‘person under disability’ (無行為能力的人) means a person who is a minor or a mentally incapacitated person;

‘mentally incapacitated person’ (精神上無行為能力的人) means a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance (Cap.136)) who, by reason of mental disorder or mental handicap, as the case may be, is incapable of managing and administering his property and affairs.” 

Being applicable to O. 80 of the Rules of the High Court, this definition nonetheless reflects the meaning of “disability” or “person under disability” as a legal term.  I have never come across any judicial precedent or legal authority in which these two terms as legal terms are given any other meaning.

21.  In my view, on the correct interpretation of the Limitation Ordinance, a person under “disability” in section 22(1) refers to a minor or mentally incapacitated person.  A mentally incapacitated person refers to someone who suffers from mental disorder or mental handicap, such that he does not have sufficient intelligence to make rational decisions on the affairs that he has to manage and administer.  Disability does not include inability to act by reason of lack of physical strength or money or due to geographical location or other factors.

22.  On the above interpretation, even if the plaintiff did lack money to engage a lawyer in Hong Kong to conduct litigation on his behalf or was indeed unable to obtain a permit to come to Hong Kong to conduct litigation in person, he is not a “disabled” person within the meaning under section 22(1) of the Limitation Ordinance.  The Ordinance does not apply to his case.  The limitation period for bringing proceedings in respect of the alleged assaults and illegal repatriations, which took place between January and March 2000, expired in 2006 already.  By the time he brought the present action, there had already been a lapse of over 10 years.  He could not bring any action on these causes.  On this ground alone, even if he had a reasonable cause of action, he could not bring any action by reason of the time bar, and his action cannot possibly succeed.  To proceed with the action would be frivolous, vexatious and an abuse of the process of the court.  I still have to strike out his statement of claim and dismiss his action.  Having said that, I will now briefly address his three causes of action.

Cause of action based on illegal repatriation

23.  The purported cause of action based on illegal repatriation in January 2000 must rest upon the basis that the plaintiff had lawfully entered Hong Kong and then been repatriated illegally.  The legality (or otherwise) of the plaintiff’s entry is in dispute.  In dealing with an application to strike out a statement of claim on the ground that it discloses no reasonable cause of action, the court can only determine the application by reference to the allegations contained in the statement of claim and cannot rule on the facts disputed by the parties.  For this reason, the plaintiff submits that I cannot strike out his statement of claim and should allow the case to go to trial.  I agree with these principles.  However, on the other hand, the plaintiff has to particularize in the statement of claim the facts he seeks to rely on.  If his statement of claim fails to satisfy this requirement and cannot be remedied, then the court must strike it out.

24.  As can be seen from the plaintiff’s statement of claim, to which reference has been made in para 6 above, the plaintiff has never claimed that he had come to Hong Kong lawfully, nor has he disclosed any fact sought to be relied on for lawful entry.  Therefore, the Master’s ruling that he has no cause of action for illegal repatriation is completely proper.  The plaintiff is now claiming before me that he had been illegally repatriated after entering Hong Kong lawfully.  If he seeks to rely on this new allegation, his statement of claim is seriously wanting in the requisite particulars and has to be amended.  According to section 7 of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong), a person may not land in Hong Kong without the permission of an immigration officer or immigration assistant unless he enjoys the right of abode in Hong Kong or was a certain type of Hong Kong permanent resident, a certain type of serviceman or a crew member of a certain type of aircraft immediately before 1 July 1997.  In order to assist the plaintiff in amending the statement of claim, I asked him questions in relation to the basis of his lawful entry.  He admitted that he was a Mainland resident with no right of abode in Hong Kong.  However, he failed to clearly state the basis of his lawful entry; all he disclosed was that, pursuant to arrangement by a third party, he had entered Hong Kong lawfully through an unknown immigration channel.  Nor did he know what travel document he had used for his entry.  Particulars like these are simply insufficient.  Based on an unknown date 17 years ago, an unknown immigration channel and an unknown travel document, the defendant cannot possibly find any record to rebut the plaintiff’s allegations.  Even if the plaintiff were allowed to amend the statement of claim, the defendant would still not have sufficient particulars to put forward a defence.  The statement of claim so amended would be frivolous and vexatious and would not disclose a reasonable cause of action.  His statement of claim is irremediable and stands to be struck out.

25.  As for the illegal repatriation in March 2000, since the plaintiff admits that he had entered Hong Kong unlawfully, repatriation would have been inevitable.  However, he presses the point that he was coming to Hong Kong to complain about the alleged assault by staff members of the Immigration Department, and in the interests of justice, the authority should have deferred the repatriation, collected evidence, conducted investigation and allowed him to stay in Hong Kong to handle the litigation.  Repatriating him was, he submits, oppressive, obstructive of justice and illegal.  His argument is, in my view, sheer sophistry and wholly unmeritorious.  With no prior permission from an immigration officer or immigration assistant in accordance with section 7 of the Immigration Ordinance, his entry into Hong Kong was unlawful.  His entry being unlawful, there was nothing illegal in deporting him and repatriating him to his country of origin in accordance with Hong Kong law.  Furthermore, according to his statement of claim, the cause of his suffering was that “over the years in which [his] application for the Permit [for Travelling to and from Hong Kong and Macau] was being processed, [he] was repeatedly victimized and persecuted by the Mainland”, and this has nothing to do with the repatriation whatsoever.  Therefore, besides disclosing no reasonable cause of action, the purported cause of action is also frivolous, vexatious and an abuse of the process of the court.

Cause of action based on assault

26.  The plaintiff alleges that during the nine-day detention period he had been punched and kicked by five or six staff members of the Immigration Department.  He said before me that his injuries were not serious and he did not seek medical treatment after he was repatriated to the Mainland.  Subsequently, he noticed some problem with his hearing, and the diagnosis was that his inner ear bone was damaged.  He delivered the medical report to the Legal Aid Department but they lost it. On the basis of the three causes of action, he claims compensation totalling 100 million dollars.  He has not specified the injuries suffered and compensation claimed in respect of each cause of action.  However, it appears that his major suffering was that “over the years … [he] was repeatedly victimized and persecuted by the Mainland”.  In respect of this cause of action, his statement of claim is seriously lacking in particulars.  The claim is one for personal injuries, and for this type of claim, Practice Direction 18.1 has laid down strict requirements for the pleadings and procedure, including (inter alia) the need to file a statement of claim containing full particulars, and a report/reports and a statement of damages as referred to in O.18, r 12(1C) of the Rules of the High Court.  The statement of damages should also set out a summary of the plaintiff’s injuries, treatments received, prognosis, and so on.  Although amendments may be made, they will serve no purpose because the limitation period has already expired.  This cause of action also stands to be struck out.

D’s striking-out application – conclusion

27.  In view of the above, the plaintiff’s action is already time-barred.  His statement of claim should be struck out and his action dismissed.  Therefore, I uphold the Master’s decision and dismiss the plaintiff’s appeal.

P’s striking-out application – conclusion

28.  As I am upholding the Master’s decision allowing D’s striking-out application and dismissing the plaintiff’s action, it necessarily follows that the Master’s order dismissing the plaintiff’s summons for striking out must stand.  In para 22 of his judgment, the Master briefly stated the plaintiff’s grounds of application and the reasons for dismissing his striking-out summons.  The Master said:

“Given I have allowed D’s striking-out applications, it must follow that the plaintiff’s striking-out summons is to be dismissed; but I will comment briefly on the grounds put forward by the plaintiff, none of which I accept, as follows:

In making the striking-out application, the defendant did not necessarily have to submit a “supporting affirmation” at the same time, all the more so as Master Katherine Lo had subsequently given directions on affirmations[7];

That the defendant did not submit any “affirmation in reply” was the defendant’s choice and does not constitute a reason for dismissing its application;

Both parties are preparing for the hearing of D’s striking-out application, and the Master has granted leave to the defendant to file and serve a defence within 28 days after the determination of D’s striking-out application. This being the case, the court would of course not enter interlocutory judgment for the plaintiff “in default of defence”. On this matter, Deputy High Court Judge Wilson Chan (as he then was) already gave his judgment on 27 October 2016, and even if the plaintiff were still lodging an appeal[8], this would not lead to dismissal of D’s striking-out application.”

I fully agree with the Master’s reasons for decision. I therefore uphold his decision and dismiss the plaintiff’s appeal.

Conclusion

29.  For the above reasons, I dismiss all of the plaintiff’s appeals, uphold the Master’s decisions striking out the plaintiff’s statement of claim, dismissing his action and dismissing the plaintiff’s summons for striking out, and uphold the Master’s decision on costs.  I also order the plaintiff to pay the defendant costs of this appeal, assessed summarily at $10,000.