AKHTER RANA SHAHID v. IMMIGRATION DEPARTMENT AND OTHERS

CACV 8/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 8 OF 2015

(ON APPEAL FROM HCMP NO. 3094 OF 2013)

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REASONS FOR DECISION

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Hon Chu JA (giving the Reasons for Decision of the Court):

1. By summons issued on 9 May 2016, the 1^st to 4^th defendants applied for security for their costs in this appeal brought by the plaintiff against the decision given by Chow J (“the Judge”) on 22 December 2014. At the hearing of the application, we granted the application. Our reasons appear below.

HCMP3094 of 2013

2. By a previous order dated 17 November 2015, this court granted a similar application by the 5^th defendant, and ordered the plaintiff to give security for the 5^th defendant’s costs of the appeal in the sum of $60,000 within 28 days.  Upon the plaintiff’s failure to comply with the order, the plaintiff’s appeal against the 5^th defendant was dismissed.

3. In our decision given on 17 November 2015, we had set out the background of the plaintiff’s claim against the defendants in the action below (HCMP 3092 of 2013), and the litigation history (see §§3 to 8).  We will not repeat them here.

The1st to 4^th defendants’ application

4. By letter dated 1 January 2016, the 1^st to 4^th defendants requested the plaintiff to provide security for costs of the appeal and enclosed a skeleton bill of costs.  The plaintiff has not replied to it.

5. By their summons filed on 9 May 2016, the 1^st to 4^th defendants apply for orders that: (1) the plaintiff provides within 28 days security for their costs of the appeal in the sum of HK$99,951; (2) all proceedings in this appeal in relation to the 1^st to 4^th defendants be stayed until the plaintiff has provided the security; (3) dismissal of the appeal against the 1^st to 4^th defendants with costs in the event the plaintiff fails to provide security as ordered; and (4) costs of the application.  The application is made on the basis that the plaintiff is impecunious and has no ability to meet any costs order that may be made against him in this appeal.

6. The 1^st to 4^th defendants had in fact filed affirmation in the 5^th defendant’s application for security for costs to provide information supporting the 5^th defendant’s contention that the plaintiff is impecunious.   

7. By letter dated 30 June 2016, the plaintiff requested to adjourn the present application for five years, referring to financial and other difficulties he has encountered while staying in Hong Kong.  The request was refused as there was no proper ground to adjourn the application. 

The applicable legal principles

8. Under Order 59 rule 10(5) of The Rules of the High Court, Cap. 4A, the Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just. 

9. The legal principles relevant to an application for security for costs have been set out in our decision dated 17 November 2015 (see §§14 and 15), which we need not repeat. 

The plaintiff’s impecuniosity

10. The 1^st to 4^th defendants rely on the following matters as showing the plaintiff is impecunious and will be unable to pay the costs of the appeal if he is unsuccessful:

(1)   The plaintiff is an asylum seeker and is not permitted to take up employment while in Hong Kong. 

(2)   The plaintiff is admittedly destitute and heavily in debt. 

(3)   The plaintiff fails to respond to the 1^st to 4^th defendants’ proposal as to payment of their costs ordered in the action below, and that the plaintiff stated in a letter to the Chief Executive dated 19 October 2015 that he owed debts to the tune of some HK$400,000.

(4)   The plaintiff fails to provide security for the costs of the 5^th defendant of the appeal as ordered by this court.  

11. The plaintiff was absent at the hearing.  He has not filed any evidence to dispute the 1^st to 4^th defendants’ case that he is impecunious and cannot pay any costs ordered against him if his appeal was unsuccessful.

12. On the materials available before the court, we are satisfied that there are special circumstances for ordering security for costs against the plaintiff in that the plaintiff, through impecuniosity, will be unable to pay costs ordered against him, if his appeal was unsuccessful, and/or the 1^st to 4^th defendants will be put to undue difficulty in enforcing any costs order against the plaintiff.

The merits of the plaintiff’s appeal

13. We will next consider the merits of the plaintiff’s appeal so as to see whether this may amount to countervailing factor militating against making an order for security for costs.  In this regard, it is neither necessary nor desirable for us to embark upon a detailed examination of the arguments in the appeal: see Chung Kau v. Hong Kong Housing Authority & Ors at 656D-G.  We need only make a preliminary assessment of the strength of the grounds of appeal.  

14. In his Notice of Appeal, the plaintiff asks that the Judge’s decision be set aside and that compensation be ordered against the 1^st to 4^th defendants in the sum of HK$30 million.  In the attachment to the Notice of Appeal, the plaintiff makes the following points against the 1^st to 4^th defendants:

(1)   The Legal Aid Department combined the plaintiff’s two legal aid applications for two compensation claims.  The plaintiff has only received compensation for unlawful detention, but not for the injury to health claim.

(2)   The Immigration Department unlawfully detained the plaintiff on 12 September 2012 and closed his case for a CAT claim.  The immigration officer(s) injured the plaintiff’s health by hiding his medical record when he was unwell and taken to see doctors at hospital and clinic(s), and not giving him his medicine.  The plaintiff’s home was burgled and money was stolen from it.  When he was detained by the Immigration Department, somebody again broke into his home.  The immigration officer does not care even though the plaintiff’s life is in danger at his home country. 

(3)   The Social Welfare Department did not give the plaintiff fee waiver for seeing doctor on 29 September 2012, and damaged his health by not providing him with basic assistance. 

(4)   All the defendants were helping each other to damage the plaintiff’s health and try to kill him. They always create troubles for him and give support to the 5^th defendant by hiring people to kill him.   

15. The Judge had considered these points and rejected them for the reasons that he gave in §§8 to 20 of his Decision.  The plaintiff’s Notice of Appeal merely repeats the complaints, but has not identified any mistake in the Judge’s reasoning.  It is, however, not the function of an appellate court to reconsider the case afresh or to re-determine the defendants’ applications to strike out. 

16. In our view, the plaintiff’s appeal has no prospect of success.  There are also no other circumstances that would justify the court in not making an order for security of costs against the plaintiff. 

17. As regard the amount of security to be ordered, we have regard to the short history of the action below, the issues involved in the appeal, which are largely repetitions of matters already canvassed before the Judge, and that very little paper is involved in the appeal.  In our view, HK$60,000 will be a sufficient security for the 1^st to 4^th defendant’s costs in this appeal.  The plaintiff will have 28 days from being served with the court’s order to provide the security by making payment into court.

18. As to costs of the two applications, applying the normal rule of costs follow event, we order the plaintiff to pay the 1^st to 4^th defendants’ costs of this application for security for costs.  

Dispositions

19. The orders we make are as follows:

(1)   The plaintiff shall within 28 days from being served with this order give security for the 1^st to 4^th defendants’ costs of this appeal in the sum of HK$60,000, by making payment into court of the said sum;

(2)   Until the plaintiff has given the security ordered in (1) above and notice thereof is given to the 1^st to 4^th defendants’ solicitors (such notice to be given on the same day as the lodgement is made), all proceedings in this appeal are to be stayed as against the 1^st to 4^th defendants;

(3)   In default of the plaintiff giving security as ordered in (1) above, this appeal do (upon the solicitors for the 1^st to 4^th defendants certifying such default to the Registrar of High Court) stand dismissed out of this court as against the 1^st to 4^th defendants without further order;

(4)   In the event that the appeal is dismissed in the circumstances provided for in (3) above, the plaintiff shall pay the 1^st to 4^th defendants the costs of this appeal, such costs to be taxed if not agreed; and 

(5)   The costs of the 1^st to 4^th defendants’ application for security for costs be paid by the plaintiff in any event.