KRISTANTO DONI v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 819/2023

[2025] HKDC 1209

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 819 OF 2023

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BETWEEN

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DECISION

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1.  Since 2014 to date, altogether thousands of claims have been and claims continue to be brought in the District Court for damages for unlawful detention by persons who have no permission to enter and/or remain in Hong Kong and have been detained pending removal or a decision by the authorities whether a removal order would be made, and who claim to have been so detained by the authorities unlawfully in breach of the Hardial Singh principles (“the UD Cases”).

2.  Many of the UD Cases have been settled at different stages of the proceedings. However, in respect of one group of cases so settled, namely cases where the amount of the settlement sum was within the monetary jurisdiction of the Small Claims Tribunal (respectively “the Small Sum UD Cases” or “the SSUD Cases”, and “SCT”), many a time left unable to be agreed on was the matter as to whether the costs to be paid to the plaintiff should be taxed at the District Court scale or taxed as if the claim were brought and proceeded with in the SCT (“the Scale of Costs Issue”); and the issue had to be litigated, which was disproportionate bearing in mind that the claim ended up settled for less than, and often times much less than, HK$75,000.

3.  In 2 reported decisions both handed down on 30 August 2023, namely Govindan Sakhivel v Secretary for Justice sued for and on behalf of the Director of Immigration [2023] 4 HKLRD 721 and Sundari v Secretary for Justice sued for and on behalf of the Director of Immigration [2023] 4 HKLRD 735, HHJ Andrew Li as the then portfolio holder of the UD Cases, elucidated the relevant principles as applied to the SSUD Cases and made a number of pertinent holdings serving as useful guidance and reference. They were considered and applied by HHJ Grace Chow as the succeeding portfolio holder of the UD Cases in Sri Purwati Muhasim v Secretary for Justice sued for and on behalf of the Director of Immigration [2024] HKDC 1314 and then in a number of subsequent SSUD Cases.

4.  Relevant to note for present purposes is that consistently since Sri Purwati Muhasim, in the SSUD Cases where the Scale of Costs Issue was decided in the plaintiff’s favour, the Court has considered the matters in the round and deemed it appropriate to summarily assessed the plaintiff’s costs of the action in a broad-brush manner by a gross sum of HK$15,000. In the recent reported decision of the Chief District Judge Ko in Ghalay Roma v Secretary for Justice sued for and on behalf of the Director of Immigration [2025] 2 HKLRD 562, the learned Chief, having ruled that the District Court scale was to be awarded, also found it appropriate to so summarily assess the plaintiff’s costs of the action in the same gross sum of HK$15,000.

5.  The Scale of Costs Issue is also raised for determination here; and for such costs to be summarily assessed on the same occasion after the determination.

6.  One of the issues raised by the Plaintiff (“P”)’s solicitors is whether such broad-brush gross sum assessment is reasonable or justified.

Background matters

7.  They can be briefly stated as follows.

8.  On 10 November 2022, a pre-action letter was sent by P to the Department of Justice (“DOJ”) on behalf of the Defendant (“D”). D gave no response. This is now criticized by P. Let me state my clear view right here that P’s reliance on this lack of response is misplaced concerning the issues to be decided here.

9.  About 4 months later on 1 March 2023, the Writ herein was issued against D and the Statement of Claim (“SOC”) filed.

10.  On 10 May 2023 and before D filed the Defence, D made a sanctioned payment pursuant to O 22 r 8 of the RDC in the sum of HK$14,300 in full and final settlement of P’s whole claim (“the Sanctioned Payment”) and served a Notice of Sanctioned Payment to P’s solicitors. This was followed shortly by DOJ’s letter of 1 June 2023 to P’s solicitors therein giving notice that should the Sanctioned Payment be accepted, D would invoke the “Otherwise Proviso” under O 22 r 20(1) to apply for an order that the costs of the action be awarded otherwise than at the District Court scale as the amount of the Sanctioned Payment was within the jurisdiction of the SCT.

11.  P did not accept the Sanctioned Payment within time or at all. On 7 June 2023, D filed its Defence.

12.  P’s case is not unlike the other UD Cases, that he was unlawfully detained from about 28 October 2021 to 9 January 2022 (a period of 74 days) and that he was subjected to degrading treatment during the detention as he was forced to strip and pose nude in the sight of other detainees. D’s case is that P overstayed after his employment was prematurely terminated on 29 August 2021, that he was arrested on 26 October 2021 then detained until 9 January 2022 when was released on own recognizance, that the detention was in compliance with the Hardial Singh principles for inquiry and then pending the final determination of his torture claim decision and the decision as to whether a removal order would be made, which was made on 3 December 2021.

13.  P continued to prosecute the action for about another 2 years.

14.  About 2 weeks before the 2-day trial was due to commence on 29 April 2025, and by a consent summons dated 14 April 2025, the parties sought to settle the action and vacate the trial dates by D paying P on a without admission basis the same amount of HK$14,300 (inclusive of interest) to be satisfied by the payment out to P of the Sanctioned Payment, leaving outstanding the Scale of Costs Issue to be determined.

15.  Upon the parties confirming the addition of directions proposed by this Court, including the express direction to summarily assess the costs on the same occasion, an order in terms of the consent summons containing those directions was made on 28 April 2025.

The Parties’ respective stance

16.  P asks for costs of the action to be awarded at District Court scale, relying on the Contention (defined below). The Statement of Costs claims costs totalling HK$144,563.13. On the manner of assessment and as said, P’s solicitors challenge whether a broad-brush gross sum approach of assessment is justified and reasonable.

17.  D submits that P clearly fails flat in showing a reasonable prospect to recover more than the ceiling of the jurisdiction of the SCT at HK$75,000, relying on the earlier decisions, particularly Sundari, that in assessing this “reasonable prospect” in the context of the Scale of Costs Issue (a) a reasonable period of 6 to 8 weeks should be allowed for processing a refoulment claim, and hence this period should not be counted as a period of unlawful detention, and (b) though acknowledging that assessment of damages in the UD Cases is not by a daily rate, the Court could adopt a general sum of $1,000 per day (with a descending sliding scale depending on the length of the detention) in estimating the amount of damages. D emphasizes that the sum likely able to be recovered by P, as well as actually accepted by P for settlement, is grossly below HK$75,000. Thus, the costs should be summarily assessed at SCT scale in the sum of HK$100; and as a fallback in the event the Court awards costs at District Court scale, that the amount so summarily assessed under a broad-brush approach should be much less than HK$15,000, though a proposed figure is not given.

The Scale of Costs Issue

18.  It is well settled and not disputed that the main question affecting how the discretion concerning the scale of costs is exercised is whether it was reasonable for a plaintiff to commence and persist in pursuing the action in the District Court; and in answering it the most important question is whether the plaintiff enjoyed reasonable prospect to recover more that the limit of the SCT; next, the Court must give effect to the underlying objectives as required under O 62, r 5(1) and O 1A, r 2(1) of RDC (Sri Purwati Muhasim at [25-29]).

19.  In his submissions, P does not seek to dispute D’s submissions that P did not enjoy such reasonable prospect and that the holdings in Sundari are applicable, and estimated accordingly the amount of damages that would be recovered would be very much below the limit of the SCT.

20.  Rather, P’s solicitors reiterate and rely heavily on a contention they advanced in Sri Purwati Muhasim when they acted for the plaintiff in that case (”the Contention”), which was accepted by HHJ Grace Chow and based on which the learned judge awarded District Court scale costs there.

21.  In gist, the Contention was that at the time this action was commenced (1 March 2023), P here, like Sri Purwati Muhasim, did not have the benefit of Sundari (handed down on 30 August 2023 and the relevant holdings mentioned in [17] above) and Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 (handed down on 22 December 2023).

22.  In Sri Purwati Muhasim (handed down on 12 August 2024), the learned judge, having surveyed a number of authorities then available and having carefully considered the matter, concluded that “I would accept that at the time of commencement of the action, P’s solicitors would not have had the benefit of the decisions such as Sundari and Johnson Benjamin which could have guided their assessment of the reasonable prospects of P’s claim and the costs consequences for commencing the claim in the District Court” (at [41]). The learned judge then held that she was “prepared to be rather indulgent to allow P’s costs to be assessed on a District Court scale of costs” (at [45]).

23.  I understand that D has not sought to challenge the correctness of the decision in Sri Purwati Muhasim by an appeal. Nor does D dispute that in this regard the circumstance in the present case is similar to those in Sri Purwati Muhasim.

24.  I note that one of the conducts of the parties considered by HHJ Grace Chow in Sri Purwati Muhasim was that in that case DOJ has lingered and caused unnecessary costs to be incurred by only offering very late in April 2024 (one month before the trial was to commence) to settle that action. However, the opposite is true here, in that DOJ made the Sanctioned Payment very early before it has even filed the Defence. That said, as the major consideration in the exercise of the discretion on scale of costs is whether there was “reasonable prospect” of recovering an amount over the jurisdictional limit of SCT, I thus understand that the negative conduct of DOJ in Sri Purwati Muhasim was but only of secondary consideration.

25.  I consider that certainty and predictability in this matter concerning the SSUD Cases are particularly important in that the plaintiffs in the other SSUD Cases in similar situation as P here, as well as their legal advisers, would need to know where things stand on this issue so that they would be in a firmer position to decide (or advise) whether to accept settlement on the terms offered. Needless to say, of weight also is the basic tenet of the notion of justice in the common law system that like cases are decided alike. I am thus also prepared to accept the Contention in favour of P here. That however is not the end of the matter.

26.  Not dispute by P, and indeed indisputable, is that P need to justify not only that it was reasonable to commence the action in the District Court, but also that it was reasonable to continue to pursue the action in the District Court.

27.  D submits that once Sundari was handed down on 30 August 2023, the Contention no longer has validity and it would no longer be reasonable for P to continue to pursue this action in the District Court. At the time, this action was still in a very early stage in that pleadings were closed, P has just filed a List of Documents listing 2 documents and just filed his Timetabling Questionnaire and case management summons.

28.  P did not advance any submission disputing this. I have no difficulty or hesitation in accepting D’s said submission as correct.

29.  Thus, I would award costs to P at the District Court scale up to 30 August 2023 only, and thereafter at the SCT scale.

Broad-brush gross sum assessment

30.  This Court appreciates that its decision and observations on this issue might have no less practical significance in the SSUD Cases than the determination of the Scale of Costs Issue.

31.  It is beyond dispute that the Court has power to exercise its discretion on costs by assessing them in a broad-brush manner and awarding a gross sum (M Beraha & Co Ltd v Ng Wai Lun CACV 256/2003 unrep, 18 June 2004, at [27]); and that where so to do would be just and appropriate or would achieve the underlying objectives, including proportionality and economy, it would indeed be the Court’s duty so to do.

32.  As have turned out, the number of the UD Cases brought was and remains large (currently, over 1,200 such cases are being proceeded with in the District Court and over 1,000 pre-action letters have been issued to D) and the legal representation of the UD Cases is concentrated in a handful of solicitors firms with P’s solicitors handling the lion’s share.

33.  Since mid-2016, HHJ Andrew Li has begun to implement various proactive measures and procedures to case manage the UD Cases to maximize cost and time effectiveness and to maintain proportionality. As I understand it, these measures and procedures include adopting and issuing standardized time tables and template directions particularly those for CMC and for PTR, identifying and singling out special individual cases and the categories of cases requiring oral hearing for case management and then arranging the hearings to be conducted en bloc as appropriate and then having all the other UD Cases managed by routine paper disposals in batches according to which firm of solicitors represented the plaintiffs, and so on. In short, and if I may say so with much respect, the learned judge had so effectively and efficiently case-managed the UD Cases, especially the SSUD Cases, with the following 2 costs related results relevant for the present purpose.

34.  First, unless there are exceptional features existing in a particular case, the UD Cases, especially the SSUD Cases, are suitable for, and would have been handled in the predominant majority of the work, and in party and party taxation would only be awarded costs of handling of such work, by legal executives or other general staff of the solicitors firms.

35.  Second, in view of the fact that the UD Cases, particularly the SSUD Cases, are, save the exceptional cases, handled in batches, in the statement of costs lodged in respect of any one of these run-of-the-mill cases, any attempt trying to itemize document by document the time spent on preparing or perusing each of most, if not all, of the documents is, in my judgment, intrinsically an artificial exercise and does not at all reliably reflect the actual time spent thereon.

36.  This, however, allows for opportunities to lodge claims of costs that are wholly unrealistically and disproportionately excessive. For instance, in Sri Purwati Muhasim, costs in the sum of HK$90,655.33 were claimed while the settlement sum was HK$20,000 and in Ghalay Roma, costs in the sum of HK$274,350 were claimed while the settlement sum was HK$55,055.

37.  The Statement of Costs I am asked to tax now is a good illustration. Let me begin my comments thereon by stating clearly that there is not even a suggestion by P’s solicitors that there is any special or exceptional feature in the present case, making it not one of the run-of-the-mill UD Cases. As said, costs in the sum of HK$144,563.13 are claimed while the settlement sum was HK$14,300. In this Statement of Costs, there is no itemized allocation of time of work for any one document, all the documents were listed in the section with a lump-sum time claimed for work covered in that section. This precisely illustrates the point I made above that itemization is evidently not suitable or rather impossible.

38.  In respect of specific figures in the Statement of Costs, (a) in Section C covering communications, P’s solicitors claim 9 hours 25 minutes of work by the handling solicitor as opposed to a mere 15 minutes by the legal executive, (b) in Section D1 on professional work of preparation of documents, the predominant majority of which were standard straight forward documents, P’s solicitors claim 20 hours by the handling solicitor and a mere 45 minutes by the legal executive, and (c) in Section D2 on professional work of perusal of documents, P’s solicitors claim 5 hours and 30 minutes by the handling solicitor and nil for the legal executive. Tallying them up, 34 hours 55 minutes was claimed for work by the solicitor and in incredible contrast merely 1 hour was claimed for work by the legal executive. I would try to state my view mildly that the costs claimed in this Statement are ludicrously excessive, artificial (if not entirely untrue) and disproportionate. It illustrates that it would be an evident mis-application of precious judicial resources to try to grapple with, not to say meaningfully tax, this Statement, even summarily.

39.  By reason of all the matters I allude to above, and in my judgment, it is amply appropriate and suitable in the SSUD Cases, save those where special and exceptional features are shown to exist, to summarily assess the plaintiff’s costs by a broad-brush and rather standardized gross sum award. By “rather standardized”, I mean the parties can expect the norm to be around HK$15,000, as hitherto been awarded by different judges at District Court scale for a SSUD Case processed up to very close to trial. The plaintiffs and D in the SSUD Cases therefore should expect that the costs in the SSUD Cases would be so assessed.

Amount of costs so assessed here

40.  For P’s costs up to 30 August 2023, I summarily assess them in a broad-brush manner in the gross sum of HK$7,000, and the costs thereafter in the gross sum of HK$300, making P’s costs so assessed at HK$7,300.

Disposal and remarks

41.  The Scale of Costs Issue is determined as above said and P’s costs of the action accordingly assessed and ordered at HK$7,300, payable by D forthwith. I do not need to deal with the costs of this contest as the parties have sought in their said consent summons and I have already ordered in terms that there be no order as to the costs incurred thereafter.

42.  The other plaintiffs and D in the SSUD Cases are encouraged, if and when they are settling the case, to give serious consideration to attempt to also agree on the sum of the plaintiff’s costs by reference to what I said above.