MUSHTAQ otherwise known as MAHMOOD RIYASAT v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 1766/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1766 OF 2010

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D E C I S I O N

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1. The plaintiffs in these actions are claimants under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) to resist removal from Hong Kong. They have been subject to administrative detention pursuant to section 32 of the Immigration Ordinance, Cap 115 (“IO”) and released on recognizance. They say the detention then was unlawful; and now claim damages against the Director of Immigration (“the Director”) for their loss and damage.

2. Following the decision on the final appeal in Ghulam Rbani v Director of Immigration [1](2014) 17 HKCFAR 138, the Director now applies to strike out the claims and to dismiss these actions.  The plaintiffs in the present actions respond by applications to amend their statements of claim respectively.  The parties’ applications in both actions have been directed to be heard together.

THE STATEMENT OF CLAIM

3. In DCCJ 1766/2010, the period of detention for which damages are claimed was between 6 June 2006 and 24 July 2006.  The writ was issued on 19 May 2010.

4. In DCCJ 1875/2011, the period of detention for which damages are claimed was between 8 July 2006 and 27 November 2006.  The writ was issued on 18 May 2011.  

5. The nature and basis of the claims in these actions are substantially the same.  Stating the fact of their detention after they have lodged the CAT claim, and without prejudice to the burden of the Director to justify the detention as being lawful, the plaintiffs contend that:

(1)   there was no published policy as to how the power of detention under section 32 of the IO would be exercised; and

(2)   the detention was contrary to Article 5(1), section 8 of the Hong Kong Bill of Rights Ordinance Cap. 383 (“HKBORO”) and thus unlawful. 

6. The plaintiffs have thus sustained loss and damage for loss of liberty, and for which they claim damages for wrongful detention.

7. What are reproduced under paragraphs 5(1) and (2) above can respectively be described as the public law ground and constitutional ground for challenging the lawfulness of the plaintiffs’ detention.  As in Ghulam Rbani, the above grounds are apparently formulated on the basis of the decision of the Court of Appeal in A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752.

8. Ghulam Rbani came on for trial before this court.  In my judgment, I suggested that the case of A (Torture Claimant) should be considered in the light of the subsequent Court of Final Appeal judgment in Ubamaka v Secretary for Justice (2012) 15 HKCFAR 743, including the discussion there of the applicability and application of article 5 of the Hong Kong Bill of Rights (“HKBOR”) in the light of section 11 of the HKBORO in the context of a person with the plaintiff’s status, a point not argued in A (Torture Claimant).  In conclusion, I dismissed the claim in Ghulam Rbani.

9. The plaintiff in Ghulam Rbani appealed to the Court of Appeal, but failed.  On final appeal, the Court of Final Appeal confirmed that article 5 of the HKBOR should be read in light of section 11 of the HKBORO, and the plaintiff in Ghulam Rbani, being a person not having the right to enter Hong Kong, could not bring himself within article 5.  Hence, the ultimate failure of this constitutional ground for challenging the lawfulness of his detention under section 32 of the IO.

10. However, the final court held that the common law principles laid down by Woolf J in R v. Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704[2] nevertheless apply to the Director’s exercise of its powers of detention under section 32 of the IO.  The Director was therefore under the duty to handle the plaintiff’s case with reasonable diligence and expeditiously; but he failed to do so.  That rendered part of the plaintiff’s detention excessive and thus unjustifiable and unlawful.  On such public law ground, the claim in Ghulam Rbani succeeded in part at the end.

11. In Ghulam Rbani, the appellant also raised what was described as an inter-related public law argument, namely, that the Director had failed to publish any statement of policy identifying criteria justifying detention under section 32 of the IO.  However this argument was specifically rejected by the final court.

12. In view of the Court of Final Appeal decision in Ghulam Rbani, the plaintiffs in the present actions and the Director must have reckoned that neither the constitutional nor the public law ground currently pleaded in the statements of claim in these actions has real chance of success in impeaching the lawfulness of their administrative detention.  The Director acted first.  Hence his applications to strike out.  The sole ground of the Director’s applications is that the statements of claim disclose no reasonable cause of action.

13. The plaintiffs in the present actions then took out their respective applications to amend their statements of claim.  The proposed amendments are essentially to replace the constitutional and public law ground currently pleaded by the contention that the Director has been in breach of the Hardial Singh principles in his exercise of the power of detention under section 32 of the IO and thus rendering their detention unlawful.

STRIKING OUT

14. The applications for striking out were taken out pursuant to O.18, r.19(1)(a) of the rules of court.  The pleading will be looked at without evidence: O.18, r.19(2).  An order will be made only if the pleading is clearly and obviously liable to be struck out.

15. Ms Lau appearing for the plaintiffs in these actions argues that the statement of claim is not liable to be struck out, even assuming the constitutional and public law ground currently pleaded are unsustainable.  First and foremost, she argues that the burden is on the Director to justify detention as being lawful.  She goes so far as stating that all sorts of detention are unlawful unless justified.

16. As far as the burden of justifying detention in a case of alleged false imprisonment is concerned, the law is trite and Ms Lau is right.  I am also prepared to understand the further statement of Ms Lau in the same sense.  As I see it, Ms Tong appearing for the Director never disputes that.  However, it is how one pleads his cause of action that is in question.

17. A cause of action comprises the facts that need to exist for entitling the plaintiff to the relief claimed: see Letang v Cooper [1965] 1 QB 232 at 242-243, per Diplock LJ; Coburn v Colledge [1897] 1 QB 702 at 706, per Lord Esher MR; Paragon Finance plc v DB Thakear & Co [1999] 1 All ER 400 at 405, per Millett LJ.

18. Supposing one pleads the mere fact of detention and nothing more, and claims damages on such basis, I take the view that a cause of action in the tort of false imprisonment is not properly made out on pleading.  The reason is that the plaintiff fails to at least put in issue the lawfulness of the detention.  It is not the mere fact of detention but also its lack of justification that constitutes an actionable tort: see R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 at 162; R(Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 at §40; R(WL(Congo)) v Home Secretary (SC(E)) [2012] 1 AC 245 at §65; Ghulam Rbani at §9.

19. I do not lose sight of the rule, which provides for striking out on the ground that the statement of claim discloses no reasonable cause of action, not merely a cause of action.  A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered: see Hong Kong Civil Procedure 2015 (Vol.1) at 18/19/6.

20. However, in view of the incidence of the burden to justify the detention, any complaint by the receiving end of a statement of claim that pleads no more than the fact of detention with the contention that the detention was unlawful (or that it was false imprisonment), will be a matter of particulars of pleading, not the integrity of a cause of action.  Nor can it be said that he has no reasonable cause of action, without reference to what he may say in respect of what the defendant would seek to justify the detention.

21. The plaintiff may of course make further assertions as to how his detention is said to have been unlawful.  He who pleads has the burden of proving the pleaded.  If the plaintiff does so, it forms part of his pleaded case, which he takes upon himself the burden to prove.  To avoid such situation, the plaintiff may protect himself from reversing the burden of proof by pleading specifically that those assertions are made without prejudice to the burden on the defendant of justifying the plaintiff’s detention: see Bullen & Leake & Jacobs’s Precedents of Pleadings (17^th ed) Vol.1 at §2-22.

22. This was exactly how the plaintiffs in these actions have pleaded[3].

23. Brief as they may be, the statements of claim in these actions leave the Director in no doubt that the lawfulness of the detention is put in issue; and damages are claimed for wrongful detention.  That the grounds of challenge against the lawfulness of the detention currently pleaded may have become unarguable does not mean the whole basis of the claim falls away.  The plaintiffs’ primary contention that it is the Director who has the burden of justifying the detention was lawful remains.  In defence, the Director will justify the detention, and to which the plaintiffs would still be entitled to reply as mentioned.

24. For the above reasons, it cannot be said that the statement of claim in either action clearly and obviously lacks a reasonable cause of action, even assuming that the grounds of unlawfulness of the detention currently pleaded are unarguable.

THE PROPOSED AMENDMENTS

25. By the proposed amendments[4], corrections are made to the relevant period of alleged wrongful detention and name of the detention facility[5]. No argument arises out of such amendments.

26. In both actions, the current plea of the constitutional and public law ground for challenging the lawfulness of the detention[6] mentioned above will be removed.  Instead, the plaintiffs plead reliance on the Hardial Singh principles.

27. In the amendments in DCCJ 1766/2010, the plaintiff set out a chronology of the steps taken by the Director at each juncture of his detention since he has lodged the CAT claim[7] until his release.  They are pleaded as events according to the Director[8] and thus presumably undisputed.  In DCCJ 1875/2011, the plaintiff essentially refers to the time lapse between his lodging of the CAT claim and his eventual release.

28. The plaintiffs in both actions then plead the Hardial Singh principles[9] and how the Director is said to have failed to exercise his power of detention in these cases respectively under section 32 of the IO with reasonable diligence and expedition in breach of these principles[10]. This rendered the periods of detention of the plaintiffs respectively unlawful[11].

29. In DCCJ 1875/2011, the plaintiff also pleads additional complaints, namely: (i) lack of interpreter during the detention[12]; and (ii) degrading treatment received during detention that caused him intense mental sufferings[13].  (i) relates to the contention that the detention was unlawful.  (ii) seems to be accepted as a factual allegation relevant to the assessment of damages for the alleged unlawful detention.  The Director does not argue that this constitutes a distinct cause of action independent of whether the detention was unlawful or not.

30. There is difference in how the qualifying plea as to the burden of the Director to justify that the detention was lawful is treated by the plaintiffs in their respective amendments.  The qualifying plea would cease to exist in the amended statement of claim in DCCJ 1766/2010, whereas the same would be retained in the amended statement of claim in DCCJ 1875/2011 (but apparently for the purpose of the further plea of additional complaint about the degrading treatment the plaintiff has allegedly received during his detention).

DISCUSSION

31. Section 35 of the Limitation Ordinance, Cap 347 (“LO”) says:

“……

(3) except as provided by section 30 or by rules of court, the court shall not allow a new claim within subsection (1)(b), other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Ordinance which would affect a new action to enforce that claim.

……

(5) Rules of court may provide for allowing a new claim to which subsection (3) applies to be made as there mentioned, but only if the conditions specified in subsection (6) are satisfied, and subject to any further restrictions the rules may impose.

(6) The conditions referred to in subsection (5) are –

(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment; and

(b)   ……”

32. The relevant rules of court are under O.20, r.5:

“(1) Subject to Order 15, rules 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleadings, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

……

(5)   An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”

33. The court has a wide discretion in allowing amendments under O.20, r.5(1). Generally, amendment to pleading will be allowed, if no injustice or prejudice will be caused to the other side that cannot be compensated in costs.

34. However, where the effect of the amendment is to add or substitute a new cause of action which is time-barred, O.20, r.5(5) (in line with section 35(5) and (6) of the LO) provides that the court has discretion to allow the amendment if the new cause of action arises from the same or substantially the same facts as an existing cause of action in respect of which relief has already been claimed in the action.

35. Counsel’s arguments focus on the applicability and, if applicable, the application of O.20, r.5(5) to the proposed amendments.  Specifically the questions are:

(1)   Whether the amendments amount to a new cause of action;

(2)   If yes, whether it arises from the same or substantially the same facts as the existing cause of action already pleaded;

(3)   If the answer to (1) is no or that to (2) is yes, whether the amendments should be allowed;

(4)   If the answer to (2) is no, whether the court nevertheless retains residual discretion to allow the amendments.

Question (1)

36. The definition of a cause of action was discussed above.

37. Ms Lau submits that in deciding whether the proposed amendments introduce a new cause of action for limitation purposes, the material facts selected to define the cause of action must be made at the highest level of abstraction.  The bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading: see Paragon Finance Plc (above) at 405; Moulin Global Eyecare Holdings Ltd v Olivia Lee Siu Mei [2013] 1 HKLRD 744 at §37.

38. Ms Tong submits that a cause of action is not so much the label attaching to the claimant’s claim, for instance, breach of duty, breach of contract or payment of money under a mistake of law: see Hoechst UK Ltd v IRC [2004] STC 1486 at §24.  It is not enough to say that both the original and the amended statements of claim assert claims for breach of contract or duty: see Arta Properties Limited v Li Fu Yat Tso, HCA 2741/1998 (5 January 2007) at §24.

39. In my view, counsel differ merely in emphasis.  While a cause of action could be defined by facts selected at the highest level of abstraction, it does not exist in the abstract.  Therefore reference to no more than a label such as breach of contract or duty will no doubt be too high a level of generality in defining a cause of action.  Assertion of breach of a contract different from that pleaded in the original claim gives rise to a different cause of action, albeit also claim in contract (as in Arta Properties Limited, at §24).  Likewise, assertion of a different duty, or the same duty as that originally pleaded but different nature and extent of breach or damage may well give rise to a different cause of action, albeit also claim in negligence (as in Hydrocarbon Great Britain v Cammell Laird Shipbuilders (1991) 25 Con LR 131; Moulin Global Eyecare Holdings Limited, at §§38-42).

40. In the context of the present actions, what constitute a cause of action for wrongful/unlawful detention (or false imprisonment) are the fact of the detention and the lack of justification.  Wrongful/unlawful detention currently pleaded is not a mere label, but specifically that over the periods as pleaded in the actions respectively.  By the proposed amendments, the plaintiffs do not seek to assert any other period of wrongful detention than what are currently pleaded[14].

41. Strictly it is not necessary to plead the Hardial Singh principles, which are matters of law.  Yet by doing so in the proposed amendments, the plaintiffs are not asserting a duty on the part of the Director, the alleged breach of which gives rise to a distinct cause of action, in tort or otherwise, entitling the plaintiffs to relief.  Nor are they asserting right to relief for unreasonable or excessive but lawful detention.  The principles govern the exercise the power of detention by the Director as a matter of public law, the alleged breach of them rendered the detention of the plaintiffs unlawful.  The cause of action remains one for damages for loss and damage occasioned by the same period of unlawful detention.

Question (2)

42. In the event that I am wrong above, I proceed to consider this further question.  The parties do not dispute that if the proposed amendments amount to a new claim, it would be time-barred.

43. The assumption behind the exception provided in O.20, r.5(5) is that the party, against whom the proposed amendment is directed, would not be prejudiced because that party, for the purpose of the pre-existing matters in issue, will already have had to investigate the same or substantially the same facts: see Moulin Global Eyecare Holdings Ltd at §47; WDA Architects Ltd v MHS Planners, Architects & Engineers & Anor, HCCL 43/2007 (11 March 2014) per Bharwaney J at §10.

44. It has been said whether the new cause of action arose out of the same or substantially the same facts is a matter of impression: see Welsh Development Agency [1994] 1 WLR 1409 per Glidewell LJ at p.1418D; Sun Focus Investment Ltd v. Tang Shing Bor & Anor [2012] 2 HKC 316 (CA) at §35.  In Paragon Finance plc, Millett LJ observed (at p.418) that this might be so in borderline cases; and that in other cases it must be a matter of analysis.

45. Ms Tong refers to WDA Architects Ltd (at §11) and submits that in order to fall within the ambit of Order 20 r.5(5), the new facts pleaded to support the new causes of action must involve something going no further than minor differences from the facts originally pleaded.  But the court in Arta Properties Limited (at §32) and WDA Architects Ltd (endorsing the same at §12) also said that all would depend, among other things, on the nature of the causes of action concerned and the nature and importance of the new facts averred.

46. It has also been said that O.20, r.5(5) should not be narrowly construed but a broad and liberal interpretation should be given to attain the objective of the rules: see Arta Properties Limited at §28, citing Leung Kin Fook v Eastern Worldwide Co Ltd (No 2) [1997] 1 HKC 524 at 528C-D, per Litton VP (as he then was).  The question will have to be addressed on a case by case basis.  It is not mechanical; and there is no hard and fast rule.  A common sense approach should be adopted: see Arta Properties Limited at §§27; 32; Paragon Finance plc at p.418g-h; and WDA Architects Ltd at §12.

47. Ms Tong submits that the references to each juncture of the detention and the public law argument about the unreasonable exercise of the power of detention asserted in the proposed amendments are new, and cannot be said to arise substantially from the facts already pleaded in the statement of claim.

48. As mentioned, there is no hard and fast rule; the necessary analysis is more than mere mechanical comparison of the facts expressly asserted in the current and amended pleadings.  This is particularly true, in view of the nature of the cause of action in these actions.

49. In these actions, the plaintiffs have pleaded the relevant detention and put in issue its (un)lawfulness.  They have specifically pleaded the constitutional and public law grounds in support of the alleged unlawfulness.  However, this was without prejudice to their primary stance that it is the burden of the Director to justify that the relevant detention was lawful.  The plaintiffs would have been entitled to raise other facts and arguments in respect of whether their respective periods of detention was justifiable.

50. In defence, the Director has averred that he had all along acted with all reasonable expediency to move towards the purpose for which the plaintiff was detained, ie whether a removal order should be made, at each juncture of the detention period; and that it was not unreasonable for him to believe that such a decision could be made within a reasonable time at each stage of the process[15].

51. The Director has further averred that steps had been taken to review the plaintiffs’ detention; and upon consideration of all the relevant circumstances, the decision was made to release the plaintiffs on recognizance eventually[16].  Of the two, the defence in DCCJ 1875/2011 gives an even more detailed account of such steps allegedly taken at each juncture of the detention of the plaintiff there.

52. In the circumstances, whilst the Director argues that the facts and public argument now raised by the proposed amendments are new to the claim, he has in fact already put in issue such facts and arguments that would become part and parcel of the consideration of the Hardial Singh principles, even in the absence of the proposed amendments.

53. To such issues raised in defence, the plaintiffs would have been entitled to reply by reference to essentially the arguments as to the reasonableness of the detention and period of detention, and hence the alleged unlawfulness.  The plaintiff in DCCJ 1875/2011 has indeed done so.  Among other things, the plaintiff there actually averred that the relevant period of detention was not reasonable for the purpose of determining whether a removal order should be made.  By the proposed amendments, the plaintiffs in these actions essentially seek to raise such argument by reference to these facts in their statement of claim either instead or as well.

54. In the cases cited above, the court asked whether or not the defendant would already have had to investigate the same or substantially the same facts for the purpose of the pre-existing matters in issue.  In the present actions, what the Director has pleaded in defence provide an affirmative answer to such a question.

55. In the cases cited above, the court asked whether or not the new facts pleaded go further than minor differences from those originally pleaded.  This is not a hard and fast rule; and the applicability of this kind of comparison will have to depend on the nature of the cause of action and the new fact averred.  As to that, I need not repeat the nature of the cause of action for unlawful detention and how the assertions as to the lawfulness of the detention could come to be made in these actions.

56. Applying the principles to the circumstances of these actions, I answer this question in favour of allowing the amendments.

Question (3)

57. It remains the court’s discretion whether it is just to allow the proposed amendments, even assuming the conditions of O.20, r.5(5) are met: see O.20, r.5(2).

58. Considering the circumstances of these cases, including what the Director has already pleaded in justification of his exercise of the power of detention and the reasonableness of the relevant periods of detention, I do not see such prejudice as would have deprived the Director of a fair trial as a result of the amendments.  This becomes even clearer, if one also consider the witness statements already filed by the Director.

Question (4)

59. Ms Lau submits that even assuming the proposed amendments in these actions do not fall within O. 20, r.5, the court nevertheless retains a wide discretion to allow the amendments.  She relies on the obiter in Hong Kong Island Shipping Co Ltd v Castle Insurance Co Ltd  Ltd & Ors [1981] HKLR 510 per Sir Alan Huggin, VP at 520A-E.

60. Ms Tong argues to the contrary, citing Global Bridge Assets Limited v. Sun Hung Kai Financial Ltd [2012] 4 HKLRD 474 at §21; Arta Properties at §18; Paragon Finance at p.404c-d; Brickfield Properties Ltd v. Newton [1971] 1 WLR 862 (CA) per Edmund Davies LJ at 879; per Cross LJ at 881.

61. In my view, the current sections 35(3) and (5) of the LO (above) make it clear that the court shall not allow a new claim that is time barred, except as provided by, among others, the rules of the court; and the rules may provide for the allowance of such a new claim if and only if the conditions under section 35(6) are fulfilled.  The condition under section 35(6)(a) relevant for the present purpose is effectively O.20, r.5(5).  Therefore, in Moulin Global Eyecare Limited, the Court of Appeal held (at §65) that it is an abuse of process to seek to introduce new claims which are time-barred into an existing pleading when s.35(5) and (6) of the LO are not satisfied.

62. I do not agree with Ms Lau that the current statutory provisions and the recent case law above should be read subject to the obiter in the 1981 case that she relies on.

CONCLUSION AND ORDER

63. In terms as proposed by the plaintiffs’ summonses, I order in respect of each action that there be:

(1)   leave to the plaintiff to file the amended statement of claim as per copy attached to the summons within 14 days with service thereof dispensed with;

(2)   leave to the Director to file and serve amended defence within 21 days thereafter;

(3)   leave to the plaintiff to file and serve reply (in DCCJ 1875/2011, amended reply), if any, within 14 days thereafter.

64. This effectively disposes of the Director’s applications for striking out.  Yet since I do not find that the statements of claim in their current forms are liable to be struck out, even in the absence of the amendments, I would also dismiss the Directors’ summonses.

65. As sought by the plaintiffs, I order that the costs of the plaintiff’s summons to be in the cause.  However, I do not see why the plaintiffs should not bear the Director’s costs occasioned by the amendment.  I so order.

66. As to the Director’s summons, there seems to be no reason why costs of that should not follow the event.  I therefore order in respect of each action that the costs of and occasioned by the Director’s summons be to the plaintiff.

67. All costs shall be taxed, if not agreed, with certificate for counsel.  The plaintiff’s own costs shall be taxed in accordance with legal aid regulations in each action.

68. The above costs orders are nisi; and the parties in each action have 14 days to apply for variation, or the same shall become absolute.

69. The Director has included in his striking out summons in DCCJ 1875/2011 certain relief consequential upon the striking out and dismissal of the action, which by its nature should be withheld from the trial judge.  I therefore make an administrative direction that until the conclusion of this action, the striking out summons should be separately kept (except for the use in any further pursuit in respect of this decision) with only copy of this summons with the relevant part[17] redacted to remain in the main file of the court.

POSTSCRIPT

70. This court was informed that some 369 similar actions are pending.  The implication of this decision, as the aftermath of the Court of Final Appeal judgment in Ghulam Rbani, on the conduct of these pending cases is obvious.  The Secretary for Justice for the Director as the common defendant in these actions is in a position of considering global case management with a view to saving costs, which is essentially public fund, and the better use of judicial resources.

71. I thank counsel for their assistance.