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

DCCJ 2909/2021

[2024] HKDC 1529

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2909 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  There is before me a joint application by the parties for a determination by the court of whether the costs of this action should be taxed at the District Court scale or at a level similar to that for cases before the Small Claims Tribunal (“SCT”).

Background and Procedural History

2.  The Plaintiff (“P”) issued a Writ of Summons and Statement of Claim (“SOC”) on 22 June 2021 against the Defendant (“D”). According to the SOC, P claims as follows:

(1) He was born in India on 25 July 1984;

(2) He lodged a claim under the Unified Screening Mechanism on or about 27 January 2017;

(3) He was detained at the Castle Peak Bay Immigration Detention Centre by the Director of Immigration from 27 January 2017 to 21 February 2017, 25 July 2017 to 26 August 2017 and 20 April 2018 to 20 June 2018 (“the Detention”) unlawfully in breach of the Hardial Singh principles;

(4) During the Detention, he was subjected to degrading treatment as he was forced to strip and pose nude in the sight of other detainees;

(5) As a result of the loss of liberty and the degrading treatment, he suffered from adjustment disorder; and

(6) He claims damages for unlawful detention, interest and costs.

3.  On 6 December 2023, the Department of Justice (“DOJ”), on behalf of D, made a sanctioned payment in the sum of HK$53,000 (“the Sanctioned Payment”) in settlement of the whole of P’s claim in this action.

4.  In DOJ’s letter dated 6 December 2023 to P’s solicitors, notice was given, since the Sanctioned Payment was well below the jurisdictional limit of the District Court, if P accepts the Sanctioned Payment, D would apply to the court for an order that P should be awarded costs, up to the date of filing and serving the Notice of Acceptance, on a scale similar to that for cases before SCT or on a taxation basis otherwise than the District Court scale by invoking the “otherwise proviso” under O 22, r 20(1) of the Rules of the District Court, Cap 336H (“RDC”).

5.  On 12 December 2023, P accepted the Sanctioned Payment.

6.  By joint letter dated 3 July 2024, the parties sought the court’s direction on the scale of costs.

7.  On 18 July 2024, His Honour Judge Andrew Li directed parties to lodge written submissions and this matter dealt with by way of paper disposal.

8.  After the lodging of parties’ written submissions on 15 August 2024, I further directed P to lodge his statement of costs and D to lodge any objections for my consideration of whether exceptional circumstances have been established to invoke the “otherwise proviso”.

Applicable Law

9.  O 22, r 20(1) of RDC provides:

“Where a defendant’s sanctioned offer or sanctioned payment to settle the whole claim is accepted without requiring the leave of the Court, the plaintiff is entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the Court otherwise orders.”

10.  In Govindan Sakhivel v Secretary for Justice [2023] 4 HKLRD 721, His Honour Judge Andrew Li (applying the construction of the equivalent provisions in the Rules of the High Court, Cap 4, by Bharwaney J in Wong Chim Hing v Discovery Bay Transit Services Ltd [2016] 1 HKC 491), held that upon the plaintiff’s acceptance of the defendant’s sanctioned payment, the plaintiff is entitled to his costs of the proceedings up to the date of service of his notice of acceptance and further, that he is entitled to have those costs taxed at the District Court scale (see §11).

11.  This prima facie rule in O 22, r 20(1) should apply unless: (1) the defendant discharges the burden of proof of showing exceptional circumstances that justify a departure from the prima facie rule; and (2) the defendant has given a prior warning to the plaintiff that he will apply to invoke the “otherwise proviso” upon acceptance of the sanctioned payment. See Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184 §§20-23 and 26 per Poon J (as he then was) applied in Govindan Sakhivel, §§14-16.

Analysis and Disposition

12.  It cannot and has not be disputed that prior warning for invoking the “otherwise proviso” has been given to P in the present case. The battleground lies on whether the burden of showing exceptional circumstances has been discharged by D.

13.  Mr Fung, counsel for D, has submitted that an example of exceptional circumstances is the acceptance of a sanctioned payment lower than the jurisdiction of a court lower than the court in which the proceedings were brought: see Wong Chim Hing, §20 and Govindan Sakhivel, §21. He submitted that in the present case the Sanctioned Payment of HK$53,000 should be considered to fall within what this court said in Govindan Sakhivel as a sum “fairly below” the jurisdiction of the District Court.

14.  However, as it made clear from the above authorities, D does not discharge his burden simply by establishing a settlement sum below the ceiling of SCT’s jurisdiction. The below jurisdiction settlement sum has to be counter-balanced against any good reason to justify the proceedings being brought in the District Court. See:

(1) Wong Chim Hing at §21:

“Of course, there may be other considerations, such as the complexity of the factual and legal issues involved, which would justify proceedings being brought in the High Court, which was the reason for the decision of Poon J to award costs on the High Court scale in Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd even though the plaintiff in that case before him had accepted the sanctioned payment of only $100,000. One cannot exhaustively state all the circumstances that may arise which may be relevant to the exercise of the court’s discretion to invoke the proviso and make an otherwise order departing from the default position. However, it seems to me that where the sanctioned payment had been accepted is in a sum less than $1,000,000, the defendant enjoys good prospects of obtaining an order for costs to be taxed on the District Court scale, absent some good reason to justify the proceedings being brought in the High Court”;

(2) Govindan Sakhivel, at §§21-22:

“21. I accept the defendant’s submission. I find that a below-jurisdiction settlement sum in a sanctioned payment is an established exceptional circumstances under Wong Chim Hing:

[20] Where the application for an otherwise order is based on the monetary amount of the sanctioned payment, I would apply Poon J’s ‘exceptional circumstance principle’ by ruling that the acceptance by the plaintiff of an amount less than $1,000,000 ($75,000 in this case) would constitute an exceptional circumstance for the exercise of the court’s discretion to make an otherwise order, under O 22 r 20(1) or (2) (of the RDC in this case) that costs be taxed on the District Court scale (at a level similar to actions began in the SCT in this case)…

22. The defendant’s duty does not end here. Given my understanding of the authorities of Etratech and Wong Chim Hing, the defendant also needs to persuade the court that the exceptional circumstances suggested by him should triumph over other unfavourable considerations for the court to invoke the Otherwise Proviso, as explained by Bharwaney J immediately after the above cited paragraph…”.

15.  Whilst one cannot exhaustively state all the circumstances constituting good reason to justify the proceedings being brought in the District Court, as the examples given in the above cited passage, these may include the reasonable prospect of recovering a sum of money more than the SCT’s jurisdictional limit and the complexity of the factual and legal issues. See Wong Chim Hing §21 and Govindan Sakhievel, §§22 and 31.

16.  Furthermore, as I have recently held in Sri Purwati Muhasim v Secretary for Justice sued for and on behalf of Director of Immigration [2024] HKDC 1314, in the exercise of the court’s discretion to order costs at a level similar to cases before the SCT, the court must give effect to the underlying objectives under O 62, r 5(1) and O 1A, r 2(1) of RDC (see §§25-29). In my view, these are also matters relevant to the consideration of whether exceptional circumstances have been established.

17.  In the present case, P’s solicitors submitted that it was reasonable to commence this action in the District Court relying on the following cases:

(1) MD Tanjer v Secretary for Justice sued for and on behalf of Director of Immigration (unrep), DCCJ 3804/2011, 24 January 2017 at §22, where His Honour Judge Andrew Li held that: “Generally speaking, ‘for a short period of false imprisonment, the award can be, relatively speaking, substantial, while for any further period of unlawful detention, the progressive reducing scale will be very steep” quoting the learned judge’s decisions in Mohammad Iftikhar v Secretary for Justice for and on behalf of the Secretary for Security and Another, unrep, DCCJ 2188/2013, 5 September 2016 at §18 and Saeed v Secretary for Justice [2015] 1 HKLRD 1030 at §276;

(2) A v Director of Immigration [2009] 3 HKLRD 44 where “A” who was detained for 3 months was awarded HK$80,000 and “YA” who was detained for 156 days was awarded HK$100,000; and

(3) Saeed where the applicant was detained for 107 days and was awarded HK$100,000.

18.  Secondly, it was submitted that a pre-action letter was sent to the DOJ on 4 June 2021 stating, “We would advise our client to enter into negotiations for settlement at this stage by all suitable means whether by way of without prejudice negotiations and/or other mode(s) of ADR”. However, DOJ did not respond and had DOJ responded these proceedings could have settled as early as the pre-action stage. It was further asserted against DOJ that there was no reasonable justification “for lingering the captioned matter and incurring unnecessary costs and disbursements before deciding to make the sanctioned payment to settle the captioned matter.”

19.  I note these were the exact same grounds put forward by the plaintiff’s solicitor in Sri Purwati Muhasim.

20.  Like in Sri Purwati Muhasim, I would accept that at the time of commencement of this action, P’s solicitors would not have the benefit of the decisions I referred to in Sri Purwati Muhasim at §§33-36 to guide their assessment of the reasonable prospects of P’s claim and the costs consequences for commencing P’s claim in the District Court.

21.  In D’s objections to P’s Statement of Costs, it was further submitted that in light of the amount of costs and disbursements sought by P’s solicitors being more than double the settlement sum, if the costs and disbursement is taxed at the District Court scale, P’s costs would be disproportionately more than the settlement sum. This goes against the underlying objectives of the RDC in O 1A, r 1(c) (“to promote a reasonable proportion and procedural economy in the conduct of proceedings”).

22.  However, as I am of the view that given P’s solicitor did not have the benefit of the more recent cases and that has a bearing on this court’s view on P’s conduct in these proceedings, overall, I am not satisfied that D has satisfied the burden of establishing exceptional circumstances to depart from the prima facie rule under O 22, r 20(1) of RDC.

23.  Mr Fung invited me to take into account the recent decision of Farman v Secretary for Justice sued for and on behalf of Director of Immigration [2024] HKDC 1438. It was a case where the plaintiff’s claim was settled at HK$48,000 and costs were summarily assessed at HK$500 by His Honour Judge Andrew Li. However, in that case the parties had reached a settlement and, as found by the learned judge, the parties were prepared to sign the Consent Summons on the basis that costs to be paid by D were at the SCT level or at a level similar to costs recoverable as if the case was commenced at the SCT (see §§42-44.) The learned judge held that he could not see how the plaintiff could get out of that agreement to have costs paid at the SCT level. Thus the learned judge did not have to decide whether costs should be recoverable at the District Court scale or SCT scale.

24.  For all the above reasons, in the particular circumstances of this case, I will not exercise my discretion to order costs at a level similar to that recoverable in the SCT. However, given that P’s Statement of Costs and D’s objections have already been submitted to me, so as not to incur further unnecessary costs and use of judicial resources, the costs of this action should be summarily assessed, rather than to be taxed, at the District Court scale.

25.  The claimed costs and disbursements by P totaling HK$109,307.33 (which as mentioned are over 2 times the monetary amount of the Sanctioned Payment) appear to me to be wholly disproportionate. The hours spent also appear to me to be excessive in light of the large number of similar cases handled by P’s solicitors and apparent repetition of the submissions and/or court documents in other cases handled by the same solicitors. Furthermore, in the exercise of my discretion, I should have regard to the underlying objectives and view of the parties’ conduct in persisting in litigating in the District Court. Adopting a broad-brush approach, I have summarily assessed P’s costs at HK$15,000.