SAMUEL v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 5724/2017

[2021] HKDC 1322

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5724 OF 2017

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BETWEEN

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REASONS FOR DECISION

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INTRODUCTION

1.  This is a case aborted by the plaintiff on the first day of the trial without any prior notice to the court or to the defendant.

2.  After the plaintiff had failed to appear at the hearing, I dismissed his claim with costs awarded in favour of the defendant.

3.  I have given some brief reasons for my decision at the end of the hearing and said that I would provide more detailed reasoning for my decision in writing in due course. Here are the reasons.

BACKGROUND

4.  The plaintiff came to Hong Kong by plane on 27 July 2015 from Delhi, India. He was denied permission to land and detained pending removal from Hong Kong. He was detained by the Immigration Department and until he was subsequently transferred to Castle Peak Bay Immigration Centre (“CIC”) on 28 July 2015. He was detained at the CIC until his release on recognizance on or about 15 January 2016.

5.  The plaintiff lodged a claim for protection from refoulement on the basis that there is a danger to his life in India against the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) by was of a written representation on or about 27 July 2015 upon arrival in Hong Kong.

6.  The plaintiff through a firm of solicitors issued the present proceedings against the defendant, namely, the Director of Immigration, on 21 December 2017. He claims that his detention under ss 26, 32(2A)(a), 32(2A)(b), 32(2A)(c) and 32(3A) of the Immigration Ordinance, Cap 115 were unlawful on the grounds as spelt out in the amended statement of claim. The plaintiff further claims he had received unconstitutional and/or unlawful treatment at the CIC in support of his claim for aggravated and/or exemplary damages.

7.  The defendant denies all the allegations of unlawful detention and unconstitutional/unlawful treatments at the CIC.

8.  The case was running its normal course while he was still being represented by his former solicitors.

9.  The case management conference (“the CMC”) was disposed of on paper by way of a Consent Summons dated 27 April 2020. A pre-trial review (“the PTR”) was fixed on 27 November 2020 with trial dates provisionally fixed on 15 January 2021 with an estimated length of 3 days. At that time, the plaintiff was still being represented by his former solicitors.

10.  On 12 November 2020, the plaintiff decided to act in person and filed a notice for that purpose.

11.  On 20 November 2020, just a few days before the first scheduled PTR, the plaintiff applied for legal aid and a memorandum of notification was filed by the Director of Legal Aid in relation to the application. The case was thus automatically stayed for 42 days and the PTR was adjourned to 15 January 2021 with the provisional trial dates vacated.

12.  At the PTR on 15 January 2021, the plaintiff turned up late and had not asked the court to arrange an interpreter for him as he does not speak English or Chinese. However, the plaintiff was very insistent that he would like to pursue the case himself even without the help of any lawyers.

13.  I adjourned the PTR to 29 January 2021 in order to allow the court to arrange a Punjabi interpreter for the plaintiff.

14.  At the adjourned PTR on 29 January 2021, Mr Herbert Leung represented the defendant. Having sorted out all the pre-trial case management issues with the parties, I re-fixed the case for trial to commence on 12 October 2021 with an estimated length of 5 days. The plaintiff confirmed that he understood the importance of those dates. He also confirmed that he understood the issues involved. He mentioned that he could not fight the case by himself and that was the reason why he had applied for legal aid.

15.  The court reminded the plaintiff on that occasion that the trial would proceed at the scheduled trial dates whether he was able to successfully apply for legal aid or not as they were “milestone dates”. He was directed to lodge his opening submissions with the court on or before 14 September 2021 with copy served on the defendant. The defendant was directed to lodge his opening submissions with the court on or before 28 September 2021 with copy served on the plaintiff.

16.  Eventually legal aid was not granted to the plaintiff. The plaintiff continues to act in person.

DISCUSSION

Events on the first day of the trial

17.  On the first day of the 5-day trial, the plaintiff did not turn up at the hearing.

18.  Attempts to contact the plaintiff on his mobile phone by the clerk of this court was met with no response despite the normal ringing tone.

19.  This is perhaps not surprising given the fact that the plaintiff had indicated to the clerk on that day before, ie on 11 October 2021, when she made enquiries with the plaintiff as to the whereabouts of his opening submissions which he was supposed to file by 14 September 2021.

20.  The plaintiff had answered the call on that occasion and identified himself as the plaintiff in this case. The clerk asked if the plaintiff would file his opening submissions because the trial would take place in the following day and, according to the court’s record, we still had not received his opening submissions by then.

21.  The plaintiff then indicated for the first time that he wanted to withdraw his claim and he would therefore not file the opening.

22.  The clerk asked if the plaintiff would write to the court and file a formal court document to withdraw or discontinue his case. The plaintiff said that he would not do so as he did not have time.

23. The clerk said to the plaintiff that if he does not write to the court, the court would not know of his intention. He was reminded that everything must be done in writing.

24.  The plaintiff then suddenly claimed that he was sick and he was not going to attend court the day after. He further claimed that he does not understand English and he will withdraw the case.

25.  The clerk warned the plaintiff that the trial would proceed in his absence. The plaintiff insisted that he would not come.

26.  The Department of Justice (“DOJ”) who represents the defendant was informed of the above events by my clerk on the telephone in the same afternoon.

27.  Then at 20:18 on the same day, DOJ sent a letter to the court by fax (which was only received by the court in the morning of the trial), asked the court to proceed with the case despite of the plaintiff’s intention to withdraw his claim.

28.  Mr Eric Kwok SC has tried to persuade me to do the same at the hearing by repeating the points raised by the defendant in the letter.

Order 35, rule 1 of the Rules of the District Court, Cap 336H

29.  Order 35, rule 1(2) of the Rules of the District Court, Cap 336H (“RDC”) provides that where “(I)f, when the trial of an action is called on, one party does not appear, the judge may proceed with the trial of the action or any counterclaim in the absence of that party.”.

30.  Under §35/1/11, it states that “if the plaintiff does not appear at the trial, his claim shall be dismissed and the defendant may proceed to counterclaim (if any).” The case of Chan Yuet Ying v Wong Choi Hung, unrep., HCA 3800/2003, 2893/2004, [2016] HKEC 78 was cited as an example.

31.  Mr Kwok SC has cited several more cases involved with public law and/or judicial review in the administrative law context to try to convince me that, despite the absence of the plaintiff, the court can still proceed as there are some important points of law which involve public interests, at least according to the defendant, that the court should proceed to hear the case.

32.  With respect, I do not see the general rule that a defendant is “entitled to judgment dismissing the claim” (as cited by Deputy High Court Judge Marlene Ng (as she then was) in Chan Yuet Ying at § 102) with costs against the plaintiff should be departed in this case.

33.  First, this is not a public law case. This is an ordinary general civil claim. The plaintiff in his claim seeks damages resulting for the alleged unlawful detention, false imprisonment, improperly handcuffed, poor treatments, etc. during his detention by the Immigration Department. Thus, in my view, there is no reason why the usual rule should not apply and that the court should instead borrow some principles in public law cases like those cited by Mr Kwok in his submissions.

34.  Second, once the plaintiff withdraws his claim or, as in this case, does not appear in person and participate in it any more, despite of repeated confirmation that he would do so during the previous PTR hearings, there is no subject matter (or lis pendens) for the parties to litigate upon. In other words, there is a vacuum left by the plaintiff which the defendant cannot fill by simply insisting to proceed with the claim. There is no counterclaim made by the defendant. There is no declaration which the defendant has asked the court to make in his defence. The defendant will have his entitlement to judgment and to have the plaintiff’s claim dismissed with costs in his favour. There is nothing more which the court can do for the defendant in the circumstances.

35.  Third, this is a highly fact sensitive and individual claim. While the facts of such cases may be similar, they are slightly different in each case. It will be difficult if not impossible for the court to simply rely on the defendant’s witnesses alone to form the factual basis in order to make certain findings to base on in the judgment. In my judgment, it will not be right for the court to hear those evidence in the absence of the plaintiff and not to afford him the opportunity to cross-examine those witnesses.

36.  Fourth, while this case may concern some important points of law (as claimed by the defendant), like any other civil cases, the defendant will just have to wait for the right opportunity when both parties appear before the court and when both sides have the full opportunity to put forward all the evidence and arguments before the court to do so. Once the plaintiff does not pursue the case, as is apparent in this case, it will not be right for the court to hear one side’s arguments only and make an important decision on law based on them alone. This is how our adversarial system works. The court cannot argue the case or cross-examine the defendant’s witnesses on behalf of the plaintiff in his absence.

37.  In the above circumstances, pursuant to Order 35, rule 1(2) of the RDC, I dismissed the plaintiff’s claim with a costs order nisi in favour of the defendant, such costs to be taxed if not agreed at the District Court scale on a party and party basis, with certificate for 2 counsel. In the absence of any application by the parties to vary the same within 21 days, the order nisi will become absolute.

38.  It remains for me to thank all the hard work the defendant’s team has put in this case in preparing for the trial.