NGUYEN TUAN CUONG and Others v. THE DIRECTOR OF IMMIGRATION and Others

IN THE COURT OF APPEAL

1995, No. 196
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. There is no need to rehearse the background to this matter. It may be taken from the advice of the Privy Council delivered on November 21 last year.

2. One issue remains : that of damages.

3. What happened on September 1, 1995, when Mr Justice Sears gave judgment in the High Court was as follows:

(1) He held that the Director of Immigration had failed to deal with the appellants in such a manner as complied with the Director's statutory duty under Part III A of the Immigration Ordinance, Cap. 115.

(2) Nevertheless, the judge exercised his discretion so as to withhhold mandamus: in other words, to decline to order the Director to comply with that statutory duty.

(3) It is agreed that Mr Robert Tang QC for the appellants then reminded the judge that there was the outstanding matter of damages.

(4) Mr Dykes, who was Mr Tang's junior, tells us that their side had in mind nothing more than directions as to the determination of the issue of damages at some future time.

(5) Whether or not the judge appreciated what counsel for the appellants had in mind is not clear. In any event, the judge immediately proceeded to say:

"Mr Tang also makes an application for damages. I have considered this matter. In my judgment, these persons although they were deprived of the opportunity of having their refugees status considered have not been unlawfully detained. They are, therefore, not entitled to damages. I refuse the claim."

4. The judge, we are told, takes the view that he has dismissed the appellants' claims for damages.

5. Plainly, however, he dismissed the same without evidence or argument from either side. In short, he dismissed it without a hearing. And that amounts to his simply withdrawing the issue of damages from himself: which is an obvious and fundamental irregularity in the circumstances.

6. If we were to embark upon a hearing on damages ourselves, we would be doing so, in effect, at first instance. That we should not do.

7. Exercising our appellate jurisdiction, we : (i) set aside the judge's dismissal of the appellants' claims for damages (setting it aside on the ground that such dismissal was without a hearing); and (ii) remit those claims to the High Court for them to be heard there.

8. The issue of damages is, we emphasise, wholly at large. We express no view as to whether the appellants or any of them are entitled to damages. The evidence and argument as to that has yet to come. And they must come for the first time in the High Court.

9. We thank counsel for their assistance, and will now hear them on costs.

[Costs]

10. This matter has occupied us on the following dates this year: January 30, February 21, March 7 and today. Both sides invite us to make no order as to the costs of any of those dates, save an order for legal aid taxation of the appellants' own costs. We so order.