DARRYL PENRICE v. MR. CHAN KWOK-JI, ERIC, IDSM, DIRECTOR OF IMMIGRATION AND OTHERS

DCCJ2983/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2983 OF 2014

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DECISION

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1. This is the 1^st, 2^nd and 3^rd defendants’ application to strike out part of the plaintiff’s claim and to dismiss the action against them by summons dated 17 September 2014 (“the Summons”) pursuant to O.18 r.19 of the Rules of the District Court, Cap.336.

2. In the late afternoon on Friday (2 January 2015), the court received a letter from the plaintiff asking for the present hearing to be adjourned.  I therefore gave a direction that the adjournment application to be made in open court. 

3. According to the affirmations of service dated 30 September 2014 filed on behalf of the 1^st to 3^rd defendants, the Summons and all the affirmations in support were served on the plaintiff by post to his last known address on 19 September 2014 and 24 September 2014.  In another affirmation of service filed on 6 November 2014, the order of Registrar Lui dated 15 October 2014 was served on the plaintiff on 31 October 2014 by double registered post to the same address.

4. In the premises, I am satisfied that the plaintiff has had notice of the present application by the 1^st to 3^rd defendants.

5. In the present hearing, the plaintiff is unrepresented and has failed to appear. Having considered the plaintiff’s adjournment application carefully, I refuse his application. I conclude that the plaintiff deliberately chose not to attend and the matter should be proceeded with in his absence.

Background  facts

6. The plaintiff, who is a US citizen, arrived in Hong Kong on the strength of his US passport on 9 December 2013 and was permitted to remain in Hong Kong as a visitor until 14 March 2014.  On 15 March 2014, the plaintiff surrendered himself to police station and was arrested by the police for his overstaying.  He was subsequently referred to the Immigration Department (“ImmD”) and was released on recognizance on 16 March 2014.

7. On 1 August 2014, the plaintiff issued a Writ of Summons together with the Statement of Claim against the 1^st to 3^rd defendants claiming among others damages for over HK$77 million, access to the Comprehensive Social Security Assistance (“CSSA”) and legal aid.

8. On 27 August 2014, the plaintiff made an ex-parte application for a mandatory injunction for an order that the Director of Social Welfare to grant him immediate access to CSSA and an injunction to prevent the ImmD from making a deportation order against him. The application was dismissed by court.

9. On 17 September 2014, the 1^st, 2^nd and 3^rd defendants took out a Summons to strike out part of the plaintiff’s Statement of Claim. 

10. On 19 November 2014, the plaintiff made an ex-parte application for default judgment against the 1^st to 3^rd defendants. He was advised by the court that ex-parte application against the government cannot be entertained. Later, the plaintiff applied by inter-parte summons dated 15 December 2014 for, inter alia, leave of court to enter default judgment against the government. The plaintiff did not turn up for the hearing. The court made no order for his leave application on 24 December 2014.

11. The 1^st to 3^rd defendants apply to strike out the action on the grounds that (a) it discloses no reasonable cause of action; (b) it is frivolous and vexatious; and (c) it is an abuse of the process of the court.

The Test for Striking Out

12. It is trite law that the power to strike out on any ground will be exercised only in plain and obvious case.  Cases that require minute examination of the facts or entail protracted argument on the law are normally not considered as plain and obvious. The burden is on the party who seeks to strike out: Hong Kong Civil Procedure 2015 at §18/19/4.

No reasonable cause of action

13. A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered: Hong Kong Civil Procedure 2015 at §18/19/6. 

14. The plaintiff has not lodged any torture claim or application for asylum or refugee status.  His claim is based on a breach of human rights.  The  allegations against the 1^st to 3^rd defendants as disclosed in his Statement of Claim have been summarized succinctly by Miss Lai for the defendants as follows:-

a.   the plaintiff alleged that the ImmD failed to ensure that plaintiff’s basic social welfare needs were met upon the release of the plaintiff on recognizance, refused to return plaintiff’s passport, refused plaintiff’s exit from Hong Kong, coerced the plaintiff to sleep at a beach, and directed the plaintiff to a non-profit organisation for meals, resulting in his homelessness, starvation and health problems.  He alleged that the 1^st defendant violated his rights under Articles 3 and 6 of the Hong Kong Bill of Rights (“HKBOR”), as stated in section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).

b.   the plaintiff alleged that the Social Welfare Department failed to provide Comprehensive Social Security Assistance (“CSSA”) or other assistance to him except referring him to food banks, leaving him homeless and without medical care, thereby violating Article 3 of the HKBOR.

c.   the plaintiff intended to take legal actions against the government departments but the Legal Aid Department improperly rejected his legal aid application.

15. Article 3 of the HKBOR provides:-

“No torture or inhuman treatment and no experimentation without consent

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

16. Article 6 of the HKBOR provides:-

“Rights of persons deprived of their liberty

(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(2) …

(3) …”

17. Miss Lai submits that the breach of the obligations under the HKBOR is not per se an actionable cause of action.  She refers to Tsui Kin Kwok Johnnie v Commisioner of Police, CACV 38/2010, (29 July 2011) where Stock VP(as he then was) said:-

“21. Persons affected by a breach or breaches of any one or more of those obligations have the right to pray in aid such a breach in a number of circumstances, just as they might in relation to breaches by public authorities of other statutory obligations. So, to use the examples deployed by Mr Dykes in “Content of the Hong Kong Bill of Rights Ordinance” in “The Hong Kong Bill of Rights: A Comparative Approach” (1993) at p 45, an individual might bring an action claiming relief for a violation or threatened violation of one of the statutory protections such as an action for damages for wrongful arrest and malicious prosecution; or where a violation or threatened violation is relevant in the course of litigation but is not the subject matter of the action – for example, where a defendant in a criminal trial seeks to exclude evidence on the basis that there has been a violation.

22. In some jurisdictions the subject matter with which this Ordinance deals, namely, fundamental rights, is reserved for certain courts. What section 6 does is to make clear that a claimant or defendant may take a Bill of Rights points in any court, so long, however, as it is taken "in proceedings within [that court's] jurisdiction." and so long as the remedy, relief, or orders which a court makes are those which it already "has power to grant or make in those proceedings". The section does not create a new jurisdictional regime or alter procedural principles. In particular, it does not alter the rule which requires those who launch proceedings in order to assert a public law wrong to proceed by way of judicial review.” (my emphasis)

18. It follows that the HKBOR does not create an independent cause of action and a plaintiff has to rely on some existing cause of action in the course of what he may pray in aid a breach of HKBOR.

19. In any event, Miss Lai submits that the plaintiff’s allegation of the ill-treatments do not constitute “torture” or “cruel, inhuman or degrading treatment or punishment” for the purpose of Article 3 of the HKBOR.  She relies on  Ubamaka v Security for Security (2012) 15 HKCFAR 743 where  Ribeiro PJ  explained at paragraph 173 that the types of ill-treatments falling within the scope of Article 3 of the HKBOR require to meet the “minimum level of severity.” Reference was made to the decision of the House of Lords in R (Limbuela) v Secretary of State for the Home Department, [2006] 1 AC 396.

20. As to what constitutes “minimum level of severity”, the decision in GA v Director of Immigration (2014) 17 HKCAR 60 provides much guidance.  Ma CJ held at paragraph 49 that the correct approach is to examine the relevant facts, circumstances and context of a particular case and the particular person concerned in order to arrive at a conclusion. It is impossible to formulate a simple factual test applicable to all cases.

21. In the present case, the plaintiff entered Hong Kong at his own free will as a visitor.  During the period when he was released upon recognizance, he chose to reject the assistance that could be provided by the US Consulate General in returning to the US but made a decision to stay in Hong Kong.  Upon the referral of the Social Welfare Department (“SWD”), the plaintiff got food assistance from food banks. 

22. Taking into account all the circumstances of the case and putting the facts pleaded by the plaintiff to the highest, Miss Lai submits that they do not attain the minimum level of severity to constitute cruel, inhuman or degrading treatment or punishment, let alone the higher threshold of torture, and hence do not fall within the ambit of Article 3 of the HKBOR.  The alleged suffering cannot be said to be attributed to the acts of the 1^st to 3^rd defendants.  The plaintiff’s claim must fail.

23. The plaintiff was arrested on 16 March 2014 and released on recognizance on the same day.  Miss Lai correctly points out that the plaintiff’s present complaints did not arise from the circumstances when he was under detention.  Therefore, Article 6 of the HKBOR, which applies to a person deprived of liberty, is not engaged. 

24. The plaintiff mentioned in passing in paragraph 8 of the Statement of Claim that he had been subjected to race discrimination of the ImmD.  However, the plaintiff did not plead in the Statement of Claim as to how a comparator (ie a person not of the same race of the plaintiff) would have been treated differently.  Miss Lai submits that a different and more favourable treatment of the comparator is an essential element of race discrimination: see section 4(1) of the Race Discrimination Ordinance (Cap 602). 

25. Miss Lai further submits that the breach of the relevant provisions of the Legal Aid Ordinance (Cap 91) cannot form any actionable cause of action against the 3^rd defendant.  The proper relief against any refusal of legal aid by the 3^rd defendant is a legal aid appeal under section 26 of the Legal Aid Ordinance instead of a private law action. She relies on Lau Mei Wai v HKSAR [2013] 1 HKLRD 1232 at §27. 

26. I would agree and accept Miss Lai’s submission in its entirety. 

27. For the reasons stated above, I find that there is no chance of success when only the allegations in the pleadings are considered.  As such, the action has no reasonable cause of action.

Scandalous, frivolous or vexatious

28. If any unnecessary matter in a pleading contains any imputation on the opponent, or makes any charge of misconduct or bad faith against the opponent, it will be struck out on the ground of scandalous: Hong Kong Civil Procedure 2015 at §18/19/7. 

29. A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed.  A proceeding is vexatious when it is oppressive and/or lacks bona fides.  Frivolous or vexatious proceedings include those which are an abuse of the process.  The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material: Hong Kong Civil Procedure 2015 at §§18/19/8 and 18/19/10.

30. By his Statement of Claim, the plaintiff complained that the ImmD failed to return his passport.

31. According to affirmation of Yuen Hiu Fung of ImmD, the plaintiff’s US passport was detained in March 2014 as evidence of his overstaying offence and to facilitate his removal/voluntary repatriation from Hong Kong.  The plaintiff showed no complaint all along for such an arrangement and he expressed his willingness to return to the USA.  In April 2014, the plaintiff changed his position.  He requested for the return of his passport and expressed his intention to depart for the Mainland China though he had no valid visa for the Mainland.  His request was not acceded to by the ImmD as the plaintiff was an overstayer and he has failed upon request to provide further information regarding his proposed itinerary and onward facilities.

32. The plaintiff was in breach of his condition of stay in Hong Kong. He is liable to be charged under s. 41 of the Immigration Ordinance, Cap 115 (“the Ordinance’).   In my view, the act of the ImmD to keep the plaintiff’s passport was a necessary measure to exercise immigration control to facilitate for the plaintiff’s repatriation arrangement back to his home country.  Further, the ImmD is empowered by law to seize his passport which contains evidence of commission of an offence under s.56(1)(e) of the Ordinance. The plaintiff’s complaint that the ImmD failed to return his passport is obviously without foundation. In any event, the passport was returned to him for his application for legal aid to take legal action against the various government departments.

33. The plaintiff further sought to say that he, as a non-Hong Kong resident and an overstayer, was entitled to CSSA. 

34. It is an administrative decision of the SWD to grant the CSSA only to the Hong Kong resident.  The plaintiff should seek judicial review instead of commenced the present action if he is aggrieved with the SWD’s refusal to provide him with the CSSA. 

35. According to the affirmation of Kwan Yuen Yuk of the SWD, the assistance offered to the plaintiff includes temporary accommodation, food, clothing and other basic necessities. In my view, the allegation of the plaintiff that he is subject to starvation and left homeless is unfounded.

36. Furthermore, the plaintiff is claiming a huge sum of damages (HK$630,152 per day, accumulating of over HK$77 million up to 17 July 2014).  He did not elaborate on how he comes up to this extravagant sum.  His claim obviously lacks bona fides.

37. Having taken into consideration of the findings including paragraphs 14 to 26 above, in my judgment, the plaintiff’s claim is clearly scandalous, frivolous and vexatious.  It has no proper basis in law and facts.  He cannot possibly succeed, the continuation of his claim is oppressive to the 1^st to 3^rd defendants

Abuse of process

38. An “abuse of the process of the court” connotes that the process of the court must be used bona fide and properly and must not be abused.  The court will prevent the improper use of its machinery, and will, in a proper case (eg where an action is absolutely groundless) summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation: Hong Kong Civil Procedure 2015 at §18/19/10.

39. It would as a general rule be contrary to public policy, and as such an abuse of the process of the court to permit a person to initiate private law proceedings for adjudication of public law issues: Hong Kong Civil Procedure 2015 at §53/14/27.

40. The plaintiff’s claim involves public law matters.  As a general rule, where the subject matter of an action involves public law, judicial review proceedings should be the norm: Leung v Secretary for Justice [2006] 4 HKLRD 211 at §21.

41. In O’Reilly v Mackman [1983] 2 AC 237 at p. 285D, it was held by Lord Diplock that:-

“… it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means evade the provisions of Order 53 for the protection of such authorities.”

42. The plaintiff should proceed by way of judicial review and seek leave from court under section 27K (3) of the High Court Ordinance and Order 53. Now the plaintiff issued the writ in this action and it is an abuse of the process of the court. 

43. In respect of the 3^rd defendant’s decision to refuse plaintiff’s application for legal aid, section 26 of the Legal Aid Ordinance (Cap 91) already provides an appeal mechanism for a person aggrieved by a decision of the Director of Legal Aid.  The plaintiff did lodge a Notice of Appeal under the said section 26 on 14 August 2014. Having given particular regards to the underlying objectives under Order 1A, there is no reason why this court should permit the present action against the 3^rd defendant to continue.

Conclusion

44. In the light of my above findings, I conclude that the plaintiff’s claim is obviously unsustainable. It disclosed no reasonable cause of action; is scandalous, frivolous and vexatious; and is an abuse of process of court.

Order

45. I order part of the Statement of Claim of the plaintiff filed on 1 August 2014  be struck out as per the parts deleted in red of the copy Statement of Claim attached with the Summons. The plaintiff’s action in this case as against the 1^st to 3^rd defendants shall be dismissed.

46. I make a nisi order that the plaintiff shall pay the 1^st to 3^rd defendants’ costs of this action including the costs of and occasioned by this application, such costs shall be taxed if not agreed.