GHULAM RBANI v. SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF IMMIGRATION

DCCJ 531/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 531 OF 2010

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BETWEEN

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REASONS FOR DECISION

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1.  On 13 October 2011, I handed down the judgment in the present case (“the Judgment”) whereby I dismissed the claim of the plaintiff (“G”) against the defendant (“the Director”). By summons dated 9 November 2011, G applied for leave to appeal, which I gave after the hearing on 25 November 2011. The notice of appeal dated 2 December 2011 was filed on 9 December 2011. I do not intend to repeat here the Judgment or the grounds of appeal by G.

2.  By summons filed on 8 December 2011, the Director sought, among other things, leave to file and serve the supplemental respondent’s notice and, if necessary, extension of time to do so.

3.  Point was taken that as termed in the summons, what was sought was not really leave to appeal from this court pursuant to O.58, r.2(4).  However I think this point serves neither party any good when they in substance did argue the major question of whether leave to the Director to lodge a cross appeal on the grounds proposed in the draft respondent’s notice.  I proceeded to consider the application as one for leave to appeal from the Judgment.  I refused leave.  As indicated, I now give my reasons.

THE PROPOSED APPEAL BY THE DIRECTOR

4.  I found against G on liability on the ground that the application of the Immigration Ordinance (“the IO”), including the power to detain under section 32(2A), is excepted from the Hong Kong Bill of Rights Ordinance (“HKBORO”) by virtue of section 11 (see Judgment at §§23-85).  This will be the major issue on appeal by G pursuant to the leave of this court last December.

5.  There are 2 major points in the draft respondent’s notice: (i) the applicability and, if yes, the application of the so-called Hardial Singh principles in the present case; and (ii) causation and hence recoverability of more than nominal damages.

6.  Regarding the first point, while I gave my views on the application of the Hardial Singh principles (assuming that they apply) (§89 of the Judgment), I did not, as it was not necessary to, draw any conclusion (§90 of the Judgment).

7.  The second point was argued in the context of quantum, which I considered for completeness in the event that I was wrong on liability.  I found that G has discharged his burden to prove the causal link between the breach of Art.5(1) of the HKBORO (for the lack of a certain and accessible policy for the exercise of the power to detain under section 32(2A) of the IO) and his detention or his detention for the period of actual detention.  Therefore G was entitled to more than nominal damages.

LEAVE TO APPEAL

Whether leave is required

8.  It was common ground that the appeal in respect of both points mentioned above will be cross appeal and hence leave to appeal would be required.  I do not share that view.  O.59, r.6 of the Rules of the High Court (“RHC”) provides that a respondent notice could be served in response to a notice of appeal on any of 3 bases, namely:

(1)   to contend on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part, or

(2)   to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or

(3)   to contend by way of cross-appeal that the decision of the court below was wrong in whole or in part.

9.  For an appeal on the basis of (1) or (3) above, it would in substance be a cross-appeal: see Common Luck Investment Ltd v Director of Legal Aid [2002] 3 HKLRD 81.  Leave to lodge such a cross-appeal would be required: see Thanakharn Kasikorn Thai Chamkat (Mahachon) v Akai Holdings Ltd (No 1) (2010) 3 HKCFAR 283; Ng Hong Ki v Leung Fong Kiu, CACV 94/2011 (8 November 2011).

10.  The first point above was argued at the trial as an issue of liability.  In the absence of a conclusion or a ruling against the Director on this issue, the Director could not be making a contention in respect of this point either under basis (1) or (3) above under O.59, r.6 of the RHC.  In my view, the Director is entitled to ask the Court on appeal to rule on the applicability of the Hardial Singh principles as a further ground for affirming this court’s decision on liability against G.  This will be a matter of amendment of the respondent’s notice.

11.  The second point concerns quantum.  The Director proposes to ask the appellate court to vary this court’s decision on quantum, in the event that the appeal on liability is allowed.  No doubt this is in substance a cross-appeal and leave to appeal is rightly required.

Whether application within time

12.  There is dispute whether the application for leave to appeal (by way of cross-appeal) was taken out within time.

13.  O.58, r.2(4)(b) of the RDC provides that application for leave to appeal from the District Court should be made within 28 days from the date of the judgment.  In the present case, the last day for doing so fell on 10 November 2011.  In that case, the Director was 4 weeks late in taking out the application now before me.

14.  However, it was submitted on behalf of the Director that O.59, r.6(3)(b) of the RHC, read with r.1(2), allows a respondent notice to be filed and served within 21 days after the service of the notice of appeal.  The Director should have 21 days after the notice of appeal was served on 2 December 2011 to take out the application.  In that case, the application now before me was taken out within time.

15.  It was submitted on behalf of the Director that the latter deadline was more apposite given that in most cases, the winning party would not consider lodging an appeal against a favourable judgment unless and until the losing party seeks leave to appeal against the adverse judgment.  If the losing party chooses to make the application for leave just before the deadline expires (as in the present case on 9 November 2011), the winning party will be left in an almost impossible position to apply for leave to appeal by way of cross appeal within time.

16.  I do not agree with this argument.  Otherwise, the court will be accepting different approaches to the same time limit for application for leave to appeal against the same judgment or decision.  I do acknowledge the reality of the situation of a winning party as mentioned above, particularly, when he is normally not expected to take out academic appeal in the absence of the losing party appealing.

17.  But even short of a decision to appeal or not, the legal representatives of the winning party by reading the judgment should be in a position to form their view about the court’s decision on the issues in dispute as measured against their contentions during the trial.  Whether they would wait to see if the losing party would appeal should not prevent the forming of such a view.  This was particularly true in the present case which forms one of a series of hundreds of similar actions now pending.

18.  More importantly, I would have thought that the fact that the winning party had insufficient time to apply for leave to make a cross-appeal within time because of the above situation will be a relevant consideration of the court in exercising its discretion to extend the time for the cross appeal.

19.  Reference was also made to the fact that the proceedings in the present action have at one stage been stayed due to G’s application for extension of legal aid.  What happened was that after this court gave leave to G to appeal on 25 November 2011, G applied for extension of legal aid.  Upon notification of the application, legal proceedings were stayed until 11 January 2012.  However the fact was that the extension of legal aid was certified on 2 December 2011.  The notice of appeal was then served on the Director.  The stay of legal proceedings, in my view, has no real bearing.

20.  There was a period of 2 weeks between the service of G’s summons for leave to appeal and the last hearing before me.  Any application by the Director for leave to lodge a cross-appeal during that period, however close to the actual hearing, would have caused both the parties’ applications to be adjourned to be heard at the same time.  However no indication of such intention to lodge a cross-appeal was hinted in the actual hearing of G’s summons.  The present application was taken out 1 week after the service of the notice of appeal.

21.  In conclusion, the application for leave to appeal (to the extent necessary) by the Director is out of time.

Whether leave out of time should be given

22.  The starting point is section 63A(2) of the District Court Ordinance which provides that no leave to appeal should be given unless the proposed appeal has a reasonable prospect of success or for some other reasons in the interest of justice the appeal should be heard.  The prospect of success has to be real in the case of a proposed appeal out of time: Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

23.  As mentioned, the proposed appeal relates to this court’s finding that G has discharged his burden to prove the causal link between the breach of Art 5 of the HKBORO and his situation.  The Directors seeks to argue that I have asked the wrong question in considering whether G has discharged such burden.

24.  The question, I stated (at §94 of the Judgment), is whether the person detained would have been lawfully detained due to the following of the proper procedures that should have been followed or an alternative basis whereby he could have been lawfully detained. I then discussed the authorities on this point and the burden of proving causation (at §§95-101 of the Judgment).  By finding that it was the burden of G to prove the causal link, I expected that it was G who should establish that he would not have been detained or detained for the period of actual detention in the present case, had there been a certain and accessible detention policy or alternative procedure applicable to him at the time of his detention.

25.  If there is evidence of the policy or criterion under section 32 or some other alternative lawful procedure at the material time upon which G would have been detained lawfully, then G, in discharge of his burden, would have to establish that he nevertheless would not have been detained, or detained for so long, under such policy (had they been followed) or the alternative procedure.  Only when he manages to discharge such burden would be entitled to more than nominal damages.

26.  But it is not realistic to expect the person detained to suggest and to come up with evidence of such detention policy or alternative procedure for the purpose of showing that he nevertheless would not have been detained or detained for so long under such policy or procedure.  This was why I said (at §102 of the Judgment) that it should not be difficult for G to discharge the burden in practice; and (at §103) that between G and the Director, it should be the latter who would be in a position to provide evidence of the policy or criterion that would have been applied in line with Art 5(1) of the HKBORO or the alternative procedure for G’s lawful detention.  All these do not change the overall burden of proof of causation which has always been on G.

27.  I do not see how I have asked the wrong question in this part of the Judgment.  I am therefore not satisfied that the proposed appeal on this point has a real prospect of success.

28.  On the other limb under section 63A(2), it was submitted that the point bears public importance as there are over 270 similar cases pending.  As I do not find the argument as one on principle has a real prospect of success, what remains is a matter of application of the principle which must depends on the facts of each of these cases.  I am not satisfied by the argument on public importance under the other limb.

CONCLUSION

29.  I therefore refused leave to appeal (to the extent that leave is required) and dismissed the Director’s application with costs.