ABID SAEED v. SECRETARY FOR JUSTICE

DCCJ 562/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 562 OF 2011

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JUDGMENT

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INTRODUCTION

1. This is a case brought by the plaintiff for damages, including aggravated and/or exemplary damages and/or constitutional damages (if any), for:-

(1)   unlawful detention;

(2)   unlawful handcuffing; and/or

(3)   unlawful strip searches,

of him during the period from 4 October 2006 to 18 January 2007 (“the Detention Period”).

BACKGROUND

Statement of the agreed facts

2. Following my directions given at the Pre-trial Review, the following facts have been agreed by the parties:-

“1.  The Plaintiff is a Pakistani, who entered Hong Kong illegally from mainland China on or around 4 October 2006.  On the same day, he was arrested by the Police for illegal remaining and detained for enquiry.  When interviewed by the police, the Plaintiff, under caution, told the police that he came to Hong Kong to protect his life and his purpose of coming to Hong Kong was “seeking protection”（庇護）.  The Plaintiff requested the HKSAR Government not to send him back to Pakistan.

First Period of Detention

2.  From 4 October 2006 to 8 October 2006, the Plaintiff was detained at the Lantau South Police Station.

3.  The Plaintiff was subsequently referred to the Immigration Department on 8 October 2006.  He had since 8 October 2006 been detained at the Reception Office of Castle Peak Bay Immigration Centre (“CSRO” – managed by the Immigration Department) during daytime and at various police stations at night until 25 October 2006, at Ma Tau Kok Detention Centre from 25 October 2006 to 17 November 2006 and at the 5^th Floor of Castle Peak Bay Immigration Centre (managed by the Correctional Services Department) from 17 November 2006 to 18 January 2007.  The list of various police stations can be found at the Flow Chart filed with the Court on 5 August 2014.

4.  In an Interview Report (Grounds for non-removal) dated 9 October 2006, the Plaintiff stated that:-

“I have danger to my life in Pakistan, therefore I don’t want to go back to my country. I belong to Pakistan Peoples Party and at present the govt. is of Muslim league and they are against me. Twice they attack me and I was saved and now I have come here to save my life.”

5.  In an “Immigration Interview Report – CIC” dated 9 October 2006 recording the content of an interview conducted on 9 October 2006, the Plaintiff stated that his reason for coming to Hong Kong was “To take assylum [sic]” and that:-

“I belong to Pakistan Peoples Party and at present Muslim League is in Power and I have danger of my from them.”

6.  The Plaintiff’s torture claim was later referred to the then Special Assessment Section of the Immigration Department for processing.  The “Questionnaire for Persons who have made Claims under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” was completed by the Plaintiff on 22 November 2006.

7.  The Plaintiff also registered his refugee claim with the United Nations High Commissioner for Refugees on 1 February 2007.  His case was closed on 2 May 2007.

8.  On 18 January 2007, the Plaintiff was released on recognizance.

Body/Strip Searches

9.  Body searches[1]were conducted on the Plaintiff between 8 October 2006 and 17 November 2006 including: (i) once upon his initial admission to the daytime detention at the CSRO; (ii) upon each admission to the various police stations for overnight detention as stated in §3 above and as specified in the said Flow Chart; and (iii) on 27 October 2006 and 13 November 2006 after each return to Ma Tau Kok Detention Centre.

10.   Strip searches were conducted on the Plaintiff on the following two incidents; (i) once upon his initial admission to Ma Tau Kok Detention Centre on 25 October 2006; and (ii) again upon his admission to 5^th Floor of Castle Peak Bay Immigration Centre on 17 November 2006.

Handcuffing

11.   There is no record that during the period between 8 October 2006 to 25 October 2006, every time when the Plaintiff was transferred from the CSRO to the relevant police station and from the relevant police station back to CSRO, he was handcuffed.  As a matter of practice, handcuffs will be used during the escort of a detainee who does not have legal stay in Hong Kong.

Second Period of Detention

12.   On 4 September 2008, the Plaintiff was arrested by the police for the suspected offence of “breach of condition of stay by taking up unapproved employment”.  On 6 September 2008, he was charged with the offence of “unlawful landing and remaining in Hong Kong without the authority of the Director of Immigration” pursuant to s.38(1)(b) of the Immigration Ordinance, Cap. 115.

13.   The Plaintiff was brought to Shatin Magistracy on 8 September 2008 at which no plea was taken.  Since then, the Plaintiff was detained by orders of the Magistrate at Lai Chi Kok Reception Center until he was released on 9 January 2009 upon court bail granted by the Shatin Magistracy.

14.   On 27 July 2010, the prosecution offered no evidence against the Plaintiff and the Plaintiff was unconditionally discharged.”

3. For the sake of completeness, I should add that the screening interview for the plaintiff’s torture claim was resumed under the revised screening mechanism on 20 January 2010.  His torture claim was rejected by the Director of Immigration (“the Director”) on 10 January 2011.  The plaintiff appealed against that decision by way of a petition dated 24 January 2011 to the Chief Executive of the Hong Kong Special Administrative Region.  His petition was rejected on 11 February 2011.

4. On a date disputed between the parties[2], a non-refoulement claim on the basis of the cruel, inhuman or degrading treatment or punishment (“CIDTP”) risk and persecution risk was lodged with the Immigration Department (“ImmD”) on behalf of the plaintiff.  The processing for the non-refoulement claim is still in progress. 

5. A Removal Order was issued against the plaintiff on 25 February 2011.  The Removal Order was served on the plaintiff on 15 March 2011.  On 23 August 2011, the plaintiff applied for leave for judicial review, inter alia, to challenge the lawfulness of the removal order served on the plaintiff under s19(1)(b)(ii) of the Immigration Ordinance, Cap. 115 (“the IO”).  Leave was refused by the Court of First Instance (“CFI”) and the plaintiff appealed against the refusal to the Court of Appeal (“CA”).  The CA handed down its judgment on 11 June 2011 dismissing the appeal[3].

6. To date, the Removal Order has not been executed.  The plaintiff is still in Hong Kong on his own recognizance.

Simplified chronology

7. Pursuant to my directions given at the Pre-trial Review, the following simplified chronology has been prepared by the defendant and agreed by the plaintiff in relation to the places of his detention.  I shall re-produce the part concerning the Detention Period only:-

Date	Place of detention
1st period of Detention (Between 8.10.2006 and the Plaintiff’s detention at Ma Tau Kok Detention Centre on 25.10.2006, he was detained at the Reception Office of Clearance Section of ImmD during daytime and the police stations mentioned below are for overnight detention only)
4.10.2006	Plaintiff was arrested by the Police
4.10.2006 – 8.10.2006	Lantau South Police Station
8.10.2006 – 9.10.2006	Shatin Police Station
9.10.2006 – 10.10.2006	Yuen Long Police Station
10.10.2006 – 11.10.2006	Tuen Mun Police Station
11.10.2006 – 12.10.2006	Tin Shui Wai Police Station
12.10.2006 – 13.10.2006	Tsing Yi Police Station
13.10.2006 – 14.10.2006	Kwai Chung Police Station
14.10.2006 – 15.10.2006	Kwai Chung Police Station
15.10.2006 – 16.10.2006	Yuen Long Police Station
16.10.2006 – 17.10.2006	Sheung Shui Police Station
17.10.2006 – 18.10.2006	Tsing Yi Police Station
18.10.2006 – 19.10.2006	Lantau North Police Station
19.10.2006 – 20.10.2006	Ma On Shan Police Station
20.10.2006 – 21.10.2006	Sheung Shui Police Station
21.10.2006 – 22.10.2006	Sheung Shui Police Station
22.10.2006 – 23.10.2006	Tin Shui Wai Police Station
23.10.2006 – 24.10.2006	Sheung Shui Police Station
24.10.2006 – 25.10.2006	Tin Sum Police Station
25.10.2006 – 17.11.2006	Ma Tau Kok Detention Centre (“MTKDC”)
17.11.2006 – 18.1.2007	Castle Peak Bay Immigration Centre (“CIC”)

Agreed issues to be tried

8. The following are the agreed issues filed by the parties on 19 September 2014 (“Agreed Issues”) pursuant to the directions I made at the Pre-trial Review:-

“(1) False Imprisonment

1. Whether the defendant failed to justify the detention of the plaintiff from 4 October 2006 to 18 January 2007 (“the 1^st Period of Detention”) as lawful. More specifically:-

(a) whether there was proper authorization by the Director authorizing the detention of the Plaintiff during the 1^st Period of Detention;

(b) whether the detention of the Plaintiff during the 1^st Period of Detention was unlawful under the Hardial Singh principles1;

(c) whether the detention of the Plaintiff during the 1^st Period of Detention was unlawful because the grounds and procedures for the detention were not sufficiently certain and accessible as is required by law and/or there was no accessible and certain policy on how the discretion to detain would be exercised;

(d) whether the Director, having refused the Plaintiff’s permission to land in Hong Kong under section 11 of the Immigration Ordinance on 4 October 2006 and having detained him under section 32(1) pending his removal from Hong Kong, had power to invoke section 19(1)(b)(i) and section 32(2A) to detain the Plaintiff again for further periods of time.

2. Whether the detention of the Plaintiff from 4 September 2008 to 9 January 2009 (“the 2^nd Period of Detention”) was unlawful; and/or

(2) Usesof Handcuffs

3. Whether the uses of handcuffs against the Plaintiff during transfer between different police stations and detention centres amounted to trespass to the person at common law;

4. Whether the uses of handcuffs against the Plaintiff during transfer between different police stations and detention centres were unconstitutional in that such uses of handcuffs violated Article 10.1 of the International Covenant on Civil and Political Rights / Article 6(1) of the Hong Kong Bill of Rights (“HKBOR”) and Article 39 of the Basic Law; and/or

(3) Body/Strip Searches

5. Whether the body/strip searches against the plaintiff amounted to trespass to the person at common law;

6. Whether the body/strip searches against the plaintiff were unconstitutional in that such body/strip searched violated:-

(a) Article 28 of the Basic Law read together with Article 41 of the Basic Law;

(b) Article 7 of the ICCPR/Article 3 of the HKBOR and Article 39 of the Basic Law;

(c) Article 10.1 of the ICCPR/Article 6(1) of the HKBOR and Article 39 of the Basic Law; and/or

(d) Article 17 of the ICCPR/Article 14 of the HKBOR and Article 39 of the Basic Law.

(4) Section 9 of the HKBORO

7. In respect of the issues in paragraphs 4, 6(c) and 6(d) above, whether the Defendant can invoke section 9 of the Hong Kong Bill of Rights Ordinance, Cap 383 as a defence.

(5) Quantum

8. If the answer(s) to the above issue(s) is/are in the affirmative:-

(a) the quantum of the damages (including constitutional damages, if any); and/or

(b)   whether or not exemplary and/or aggravated damages should be awarded (taking into account, inter alia, the conditions of the detention during the 1^st Period of Detention), and if so, the quantum.”

Outstanding issues

9. By an open letter dated 7 October 2014, the Department of Justice (“DoJ”), who represents the defendant, made an admission to §23(b)(iv) of the re-re-amended statement of claim and agreed that the detention during the Detention Period was unlawful.

10. By a consent summons dated 10 October 2014, the defendant conceded that the plaintiff was unlawfully detained by the Secretary for Security (“the Secretary”), the Director and/or the Commissioner of Police (“the Commissioner”) from 4 October 2006 to 18 January 2007, ie during the Detention Period.  The concession was apparently made in the light of the Court of Final Appeal’s (“CFA”) decision in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (“Ghulam Rbani”).  Hence, judgment on liability for the detention of the plaintiff during the Detention Period was entered against the defendant as a result.

11. By a letter dated 10 October 2014, solicitors for the plaintiff informed DoJ that the plaintiff no longer peruses his claim for false imprisonment in respect of the detention from 4 September 2008 to 9 January 2009 (“2^nd Period of Detention”).

12. In view of that, I shall disregard the facts pertaining to that 2^nd Period of Detention from this point onwards.

13. Also, in view of the concession made by the defendant, it is no longer necessary for the court to deal with §§1 and 2 of the Agreed Issues.  The court only needs to decide how far the conditions of the detention would affect the quantum in this case.

14. Further, the issue set out in §7 of the Agreed Issues will no longer be a live issue due to fact that section 9 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBORO”) only applies where a person is “lawfully detained in penal establishments” [emphasis added].

15. Hence, the remaining issues left to be tried before this court are those as set out in §§3–6 and §8 of the Agreed Issues. 

16. Those issues can be summarized under the following headings:-

(1)   the conditions of the unlawful detention; 

(2)   the uses of handcuffs;

(3)   the body/strip searches; and

(4)   quantum for the above.

17. In this judgment, I shall examine each of those issues in turn and would analyze the law and the evidence pertaining to those issues as presented by the parties during the trial.

DISCUSSION

Some undisputed facts or indisputable facts

18. At the end of the 12-day hearing, where 1 witness  was called on behalf of the plaintiff (the plaintiff himself) and 22 witnesses were called on behalf of the defendant, the following facts appear to be undisputed or indisputable by the parties:-

(1)   The plaintiff entered Hong Kong illegally at about 22:00 on 4 October 2006 together with 3 other Pakistani males.  They were arrested by the police at about 22:20 on the same day.

(2)   The plaintiff was 26 years old at the time and had been educated up to matriculation level in Pakistan.  He could understand and speak simple English.  He allegedly could not remember how to spell but could write.

(3)   In terms of occupation, the plaintiff was working as a supervisor in the irrigation department of a construction company, although he had told the police that he was working at a trading agency.

(4)   The plaintiff came to Hong Kong allegedly for the purpose of seeking asylum.  The plaintiff raised this matter with the authority in the first available opportunity.  When he was first interviewed by the police on 5 October 2006, he told the police that he came to Hong Kong to protect his life and his purpose of coming to Hong Kong was “seeking protection”.

(5)   The police swiftly referred the plaintiff to the ImmD and it was recorded by the police as early as on 5 October 2006 at 02:12 that “Immigration Department will be informed”[4] and that at 22:00 on the same day the assistant duty officer of CIC had “replied that they would receive the case when Pol. 857 of all APs completed.”[5]   

(6)   The plaintiff allegedly had never been detained by the Pakistan government and had never been in prison in Pakistan or anywhere before.  While the plaintiff admitted that he was once arrested and detained at a police station for about one day, he was not sure whether it was for overnight detention.

(7)   The plaintiff was unlawfully detained for 107 days during the Detention Period.

(8)   From 8 October 2006 to 25 October 2006, the plaintiff was detained at the Reception Office situated at 1/F of CIC during daytime and was transferred to various police stations in the New Territories for overnight detention.  (In his evidence, the plaintiff describes this as the Ground Floor of the CIC but in fact the Reception Office was situated on the 1^st Floor of the building.  I shall refer the Reception Office as “1/F of CIC” throughout this judgmentin order to avoid any confusion).

(9)   It has been accepted by senior officers from the ImmD and the police that both the 1/F of CIC and the detention cells at the police stations are not designed for long-term detention.

(10)  Due to the overcrowded condition, the plaintiff had to sleep on the floor in Yuen Long Police Station (on 9-10 October and 15-16 October 2006) and Tsing Yi Police Station (12-13 October 2006).

(11)  At the 1/F of CIC, the plaintiff was detained with about 70 to 80 detainees in 2 detention cells during the day.  The total size of the 2 detention cells was at 50.58m² and the area per detainee was calculated at 0.63m².

(12)  During the transfer from the 1/F of CIC to the police stations and the return journeys (which is estimated by the plaintiff to be between 2.5 and 3 hours each and estimated by the defendant between 1 and 1.5 hour, depending on which station he would be dropped off or picked up), the plaintiff would be handcuffed.

(13)  There are occasions where the plaintiff was detained overnight in police stations, where detainees might have had to sleep on the floor and the conditions were not so spacious.  It might even be so that unpleasant smells emanated from the built-in toilet after use[6].

(14)  From 25 October 2006 to 17 November 2006, the plaintiff was detained at MTKDC.  The centre is also not designed for long-term detention.

(15)  From 4 October 2006 to 17 November 2006, there is no record to show that the plaintiff had changed his clothing; took any shower (except once on 25 October 2006 at MTKDC) and brushed his teeth.

(16)  From 17 November 2006 to 18 January 2007, the plaintiff was detained on the 5^th floor of CIC (“5/F of CIC”), which was designed for long-term detention and was managed by the Correctional Services Department (“CSD”) on behalf of the ImmD at the time.

(17)  It is accepted that the conditions at the 5/F of CIC were much better than those at 1/F of CIC, the detention cells at the various police stations and MTKDC.  

The plaintiff’s otherwise status of detention

19. According to the defendant, the plaintiff had been aware or informed of his detention status all along during the Detention Period as supported and/or demonstrated by the documents/events detailed in the defendant’s closing submissions[7].

20. Thus, but for the CFA decision in Ghulam Rbani which upheld the Hardial Singh principles, the defendant says that the detention of the plaintiff during the Detention Period would have been all lawful and done in accordance with the letters of the law.

Comments on the plaintiff’s credibility

21. Before I go into the specific complaints made by the plaintiff, perhaps it will be apt for me to give my general impression of the plaintiff as a witness.  As said, the plaintiff is not uneducated.  He was educated up to pre-university level in Pakistan. He could speak and read a bit of English but not fluently.  But judging from the response to the questions asked of him in English in court, I think he can understand a lot more than he is prepared to admit.  He obviously could not speak or understand the local Chinese dialect, at least not when he first arrived here.

22. My impression of the plaintiff is that he is a very smart and intelligent individual.  He is relatively young (at 26 when he first arrived Hong Kong and is now at 34) and able to think and respond very swiftly as a witness.  In my view, he is someone who knows what he wants in life and is not afraid to act or speak out in order to get them.  He is very clear of his intention of why he wanted to come to Hong Kong in the first place ie allegedly to seek for asylum.  He is someone not shy to speak his mind.  He is also very astute when it comes to making use of the system to his advantage. 

23. Overall, I do not find the plaintiff as an incredible witness as suggested by the defendant -- at least not totally.  But I do find him to be deliberately vague and confusing in certain areas of his case.  I also agree with Ms Abigail Wong, counsel for the defendant, that he demonstrated a propensity for embellishing his case as the action proceeded.  I also think that the plaintiff is prepared to exaggerate his claims whenever it suits him.  This is particularly so on matters where he realizes that the defendant may not have any documentary evidence in support of his case. I shall pay particular attention to those matters when assessing the evidence.

24. However, in my view, in areas like the conditions of the detention and body/strip searches, the plaintiff was able to give a consistent and clear account throughout the trial.  This is despite of being subjected to some very vigorous and thorough cross-examination over 4½ days by the defendant’s counsel.  In areas like handcuffing, there are clearly elements of exaggeration and inconsistencies of which I shall deal with in detail below.  In some other areas like non-pork food, I am of the view that he has deliberately kept matters vague and confusing, making it difficult for the defendant to rebut his rather generalized claims. 

25. I note in particular that in this case it seems none of the plaintiff’s repeated oral complaints were recorded in any of the defendant’s records or documents. However, I believe the reason for that is that most, if not all, of his complaints were being ignored by the authorities.  This partly explains why he had refused to sign on the “Declaration of Treatment Received Under Supervision/Enquiry” form[8] and someone else had printed his name on the signature column. 

26. The principles in relation to assessment of credibility of witnesses have been helpfully summed up by Recorder Eugene Fung SC in the recent case of Hui Cheung Fai and another v Daiwa Development Limited HCA 1735/2009 (unreported; 8 April 2014) at §§76-83.  I shall bear those principles in mind when assessing the credibility of the witnesses including that of the plaintiff in this case. 

Comments on the defendant witnesses’ credibility

27. A total of 17 witnesses have testified on behalf of the police.  Amongst them included a few relatively senior officers.  They included Superintendent Paul Andrew Hobson (DW1) (“SPT Hobson”) and Chief Inspector Wong Shek Kee (DW3) (“CI Wong”). SPT Hobson has testified in relation to the detention conditions of the 7 police stations in the New Territories South Region.  CI Wong, who was the Assistant Divisional Commander (Operations) of Sheung Shui Division, has testified in relation to the remaining 4 police stations in the New Territories North Region. They also testified in relation to the general searching and handcuffing policy of the police.

28. Besides, Inspector Chan Chun (DW15) (“Insp Chan”) testified on behalf of Sheung Shui Police Station; Senior Inspector Tam Tsz Wai (DW11) (“SI Tam”) testified on behalf of Yuen Long and Tin Shui Wai Police Stations; Senior Inspector Tong Moon Kun (DW8) (“SI Tong”) testified on behalf of Tuen Mun Police Station. 

29. The remaining officers, ranking from constables to station sergeants, who are familiar with the detention facilities of the respective police stations where they were posted to at the time of the plaintiff’s detention, testified to the practice and procedures of the reporting rooms and detention cells at the different stations.

30. A total of 3 officers have testified on behalf of the Director.  They included Chief Immigration Officer Wong Tak Fai (DW2) (“CIO Wong”), Senior Immigration Assistant Lee Kwok Man (DW19) (“SIA Lee”) and Senior Immigration Officer Law Yee Shing (DW20) (“SIO Law”).  They testified to the conditions of the 1/F of CIC and MTKDC.  They also testified to matters like the alleged body/strip searches and handcuffing of the detainees like the plaintiff while under their detention.

31. 2 officers testified on behalf of the CSD in relation to the conditions of the 5/F of the CIC which was managed by them on behalf of the ImmD.  They are Correctional Services Officer Chan Yiu Tung (DW21) (“CSO Chan”) and Principal Officer Wong Nai Man (DW22) (“PO Wong”). 

32. Save with a few exceptions, I find the defendant witnesses’ evidence on the whole to be helpful and have contributed to the court’s understanding of the general conditions at the various stations and centres from the perspective of the authority and the practice and procedures at the different police stations, the 1/F of CIC and MTKDC. 

33. I find most of the officers, whether they are from the police, ImmD or CSD, as truthful witnesses.  They were able to give the court a fair and detailed account on matters of practice and procedures at the station or centre where they worked.  However, one of the prominent features which stands out in the defendant’s case is that none of the officers have any particular recollection of any direct dealing with the plaintiff.  Given the number of detainees the different departments were dealing with at the time, perhaps that is not surprising.  But the weakness of the defendant’s case lies with the fact that some of the important documents had gone missing without satisfactory explanations.  Further, the defendant’s case is hampered by the fact that it has failed to call any officers who might have direct dealing with the plaintiff in areas like body/strip searches.  I shall comment on these matters further when dealing with the specific issues below.

Issue 1: Conditions of the unlawful detention

(i)  The defendant’s concession

34. The defendant’s concession on §§1 & 2 of the Agreed Issues was made on the basis that the plaintiff’s detention during the Detention Period was unlawful “because removal of the plaintiff would not have been possible within a reasonable time, given that the plaintiff’s torture claim was still pending”: See DoJ’s open letter to the plaintiff’s solicitors dated 7 October 2014.  The concession was made in accordance with the 3^rd Hardial Singh[9] principle: See Ghulam Rbani, supra at §§23-24 & 59.

35. In light of the defendant’s concession, it is no longer in dispute that the plaintiff’s detention during the Detention Period, which had lasted for approximately 3.5 months, was unlawful.  What is left for this court to consider are the conditions in relation to the plaintiff’s detention which would have a direct bearing on the amount of damages to be awarded in this case: see the approach in A v Director of Immigration (False Imprisonment: Damages) [2009] 3 HKLRD 44 at §§42-53, 88 & 111 (CFI) and Ghulam Rbani, supra at §§101-107.

36. In this regard, the defendant denies that the plaintiff’s constitutional rights have been infringed during the Detention Period and also disputes the veracity of the complaints raised by the plaintiff in his witness statements and in his evidence. 

(ii)   The plaintiff’s complaints against conditions of detention

37. The plaintiff’s complaints regarding the conditions of detention at the 1/F of CIC, the detention cells in various police stations and MTKDC are extensive and wide-ranging. They covered almost the entire Detention Period.  Some complaints are more serious than others but not all of them in my view are relevant.  They can perhaps be summarized under the following heads used by the plaintiff’s counsel in his closing submissions for discussion purposes:-

(a)   Overcrowding;

(b)   Prolonged detention in places not designed for long-term detention;

(c)   No change of clothing, shower or brushing of teeth;

(d)   Sleeping on floor;

(e)   Lack of internal toilet flush and foul smell; and

(f)   No pork-free meals 

(a)   Overcrowding

38. The plaintiff complains that when he was being detained on the 1/F of CIC, he was detained in one of the 4 small rooms of about 200 square feet each in size.  There would be 20-30 detainees being placed in one room, sometimes up to 30-40 detainees.  He claims that they were required to sit on the floor and were not allowed to stand up, walk or lie down.  According to the plaintiff, talking and sleeping were also not allowed.  The detainees were required to sit there the whole day starting from around 9:00 am to 8:00 pm until they finished their dinner.  They had to sit on the floor to take lunch or dinner.  They were required to sit still for at least 9 to 10 hours a day without any “big movements”.  If they talked, the immigration officers would shout at them and ask them to stop.

39. Further, the plaintiff claims that there was only one toilet situated on the 1/F of CIC and all detainees there had to share the same toilet.  They had to raise their hands and asked for permission from the security guard first before being allowed to go.  He claims that there would be 2 security guards in each room.  He also complains that there was no television or clinic there.

40. Under cross-examination, the plaintiff admits that there were in fact 3 detention cells situated on the 1/F of CIC where 2 were reserved for male detainees and 1 for female detainees.  He disagrees that Cell 1 could accommodate up to 30 people sitting on plastic benches.  However, contrary to his evidence-in-chief, he agrees that there were in fact plastic benches provided for detainees to sit on in those cells and Cell 1 could accommodate 10 or more of such benches.  He also accepts that up to 3 persons could sit on each bench. 

41. According to CIO Wong (DW2), who was then the Senior Immigration Officer in charge of the Reception Office at the 1/F of CIC at the time, when he took up his post at CIC in August 2006, there was an influx of non-ethnic Chinese illegal immigrants and the CIC began to run out of space.  For those who could not be accommodated in the long-term detention facilities situated on 5/F to 10/F of CIC, they would be detained on the 1/F Reception Office during the day and would be transferred to police stations for detention during the night.  CIO Wong states that there was on average about 75 detainees detained on the 1/F of CIC during the day.  Upon further enquiry from the court, CIO Wong accepts that, although the number varies, in October 2006, the number during the entire time would not exceed 100 and that would be the most they had at that time. 

42. According to the floor plan produced by the defendant, Cell 1, where the plaintiff was detained most of the time when he was there, was about 6.6 metres x 3.3 metres.  Cell 2, which was also reserved for male detainees, was slightly larger at 6.4 metres x 4.5 metres.  Cell 3, which was sometimes opened for use for male detainees when there was no female detainee there, was at 4.7 metres x 4.1 metres.    

43. CIO Wong states that Cells 1 & 2 together would able to accommodate around 70-80 detainees.  If there were more detainees, Cell 3 could always be opened for use of male detainees.  As far as he could remember, there was always sufficient space for female detainees on the long-term facilities on 5/F to 10/F of CIC where 128 were allocated for females and 256 for males, out of a total capacity of 384. Thus, Cell 3 could be easily made available for the male detainees.  

44. On this issue, I accept CIO Wong’s evidence that the detainees were allowed to talk to other detainees, walk around and take a rest/nap on the bench freely within the cells. They were also allowed to pray within the cells as and when they wish.  In other words, their movements within the cells were not restricted unless they acted in any dangerous or strange ways, shout at or fight with each other.  I further accept CIO Wong’s evidence that detainees were allowed to eat, chat, sleep and move around the cells freely during the day.  They were also allowed to go to the toilet, making phone calls and meeting their visitors if they have visitors visiting them from outside.  In short, this is not a high security detention facility where the detainees were not permitted to mingle or even talk with one another.

45. As the plaintiff accepts in his evidence, there was a large number of detainees from Pakistan who had been detained with him in Cell 1 together.  As such, I simply do not see any good reason, whether from an operational or practical point of view, of why they would be prohibited from even speaking to each other.  Similarly, I do not see why they would be prohibited from moving around within the cell itself, given the fact that they were not handcuffed once they arrived back in CIC.  In this area, as in several different areas in his case, I find the plaintiff has exaggerated his evidence in order to paint a much more dire picture in relation to the conditions of his detention than as in fact was the case.  I have no hesitation to reject the plaintiff’s evidence in this respect. As accepted by CIO Wong, I find the conditions at Cells 1 & 2 were crowded, in fact to the extent of being overcrowded.  I further accept CIO Wong’s very fair comment at the end of his cross-examination that the conditions at the detention centre were pretty poor (「環境比較差」).  However, I do not believe they were so poor that the detainees would not be allowed to move around, to chat and to sleep.

46. Another complaint made by the plaintiff is that the toilet facilities at the 1/F of CIC were inadequate.  His complaint is that there was only one toilet situated on 1/F of CIC for the use of the male detainees and all the detainees would have to share that single toilet amongst them.  Further, he complains that he had to raise their hands and asked for permission from the security guard who would then have to seek permission before being allowed to use the toilet.  During cross-examination, the plaintiff while on one hand agrees that 2 male detainees could use the metal urinal at the same hand, he disagrees that another person could use the toilet situated next to it which was separated by a low wall. His reason being that the person standing at the urinal “could see the person who is on the other side”.  The plaintiff further disagrees with the suggestion that the female toilets could be made use of by the male detainees when no female detainees were being detained on that floor.  However, the plaintiff accepts the fact that he had never left the 1/F of CIC without having had the opportunity to make use of the toilet and before he was transferred to the police stations for overnight detention.  The plaintiff also accepts the proposition put to him by the defendant counsel that he did have the chance to use the toilet while at the 1/F of CIC.  He accepts that he “can use but a bit difficult”.  In any event, the plaintiff accepts that the toilet situated at 1/F of CIC was cleaned regularly and maintained to an acceptable standard of hygiene. 

47. It is accepted by the defendant there were only toilet facilities but no showering facilities on 1/F of CIC.  However, contrary to the plaintiff’s assertion that there was no hand-washing facilities, CIO Wong testified that there were washing basins located to the left of the entrance (which was not shown in the photo) and that 2 to 3 male detainees could make use of the toilet at the same time.

48. I accept CIO Wong’s evidence that the detainees would be arranged to go to the toilet in an orderly fashion after having their meals each day while at the 1/F of CIC. They would usually be escorted by the ImmD’s staff and sometime would be assisted by the security guard.  I further accept CIO Wong’s evidence that while there might be occasions where a detainee could not use the toilet immediately, it is not true to say that there would be no one to escort the detainees to the toilet.  I accept that during busy time (usually from noon to 3:00 pm when the police brought in new cases to the centre), the security guard might have to assist the immigration officers to escort the detainees to the toilet.  However, generally speaking, the staff from the ImmD would able to attend to the needs of the detainees in this regard.  I further accept CIO Wong’s evidence that the detainees could ask for and help themselves with the government-issued toilet paper that were placed on top of the metal cabinets on their way to the toilet.   

49. I also accept CIO Wong’s evidence that due to the fact that there were relatively less female detainees at the time and who would be processed and handed over to the CSD staff for long-term detention at the 5/F to 10/F of CIC swiftly in any event, there would hardly be any female detainees detained on the 1/F at any given time.  Thus, the female toilet would be empty most of the time and could be made use of by the male detainees there. 

50. I therefore would reject the plaintiff’s evidence insofar as his complaints against the toilet facilities at the 1/F of CIC are concerned.

51. In the aforesaid premises, I find as a fact that while the toilet facilities on 1/F of CIC were basic and sometimes under great demand, they were reasonable and adequate and generally met the needs of the all the male detainees, including the plaintiff, while they were being detained there.

52. Mr Hectar Pun, counsel for the plaintiff, submits that even according to the evidence of CIO Wong, on average there would be about 80 detainees detained in Cells 1 & 2 at the 1/F of CIC during the 18 days, when the plaintiff was being detained there.  According to the measurements provided in the floor plan, the total area of the 2 cells added together is at 50.58m^{2 [10]}. In other words, during the 18 days when the plaintiff was being detained there during the day, he was confined to a space measuring 0.63m² per detainee only.

53. In the European Court of Human Right’s (“ECtHR”) decision in Peers v Greece (2001) 33 EHRR 51, the ECtHR found that the very poor conditions in which the prisoner was held undermined his dignity and engendered feelings of humiliation, even if it was not intended.  A cell of 7m² for two inmates was considered a relevant factor in finding a violation of Article 3 of the European Convention on Human Rights (“ECHR”), ie inhumane or degrading treatment.

54. In Kalashnikov v Russia (2003) 36 EHRR 34, where the applicant was confined to a space measuring less than 2m², the ECtHR held that such a degree of overcrowding in itself raised an issue under Article 3 of the ECHR. 

55. In Khudoyorov v Russia (2007) 45 EHRR 5, the ECtHR considered the lack of space to be “the focal point of its analysis and found that “[t]he fact that the applicant was obliged to live, sleep and use the toilet in the same cell with so little personal space was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse within him feelings of anguish and inferiority capable of humiliating and debasing him.”” (at §107).

56. In Abdolkhani v Turkey (2008) 31 BHRC 1, the ECtHR held that even assuming that the respondent state’s account regarding the number of persons held in the facility was accurate, holding 42 people in an area of 70m², even for a duration as short as one day, constituted severe overcrowding.  The court held that state of affairs in itself raised an issue under Article 3 of the ECHR. 

57. While Article 3 of ECHR does not apply in Hong Kong, when it comes to matters concerning an individual’s dignity, I consider there is very little difference between a detention cell in Russia or Turkey and a detention cell in Hong Kong.

58. In my judgment, placing 70 to 80 detainees in 2 cells of a total area of 50.08m² for most of the day, ie between mid to late morning to early evening each day for 18 consecutive days will clearly amount to an unacceptable overcrowding condition.

59. For his detention at MTKDC from 25 October to 17 November 2006, the plaintiff complains that there were around 5 to 6 detainees being detained in one cell.  He also claims that the hygiene condition there was intolerable. No mattress was provided and he had to sleep on the floor with dirty blankets.  He also complains that the toilet inside the cell was very dirty with choking smell.

60. The plaintiff’s complaints regarding the conditions of the MTKDC has been contradicted by the evidence of SIO Law (DW20) and SIA Lee (DW19).  In his evidence, SIO Law stated that the hygiene condition at MTKDC was kept at a very high standard with cleaning done on daily basis.  Each detention cell is built with a set of flushing toilet facilities that is to be shared by detainees inside the same cell.  Each detainee is provided with a clean pillow and blanket and extra blankets would be provided upon request.  He claims that all the pillow cases and blankets would be sent to the laundry for cleaning after use.

61. In terms of size of the detention cells at MTKDC, each cell is approximately 25m² in size and can accommodate a maximum of 8 to 10 detainees.  According to SIA Lee (DW19), there would be long plastic benches provided for the detainees to sleep on and there was no need for any of them to sleep on the floor.

62. In respect of the alleged overcrowding conditions at MTKDC, I do not find that as bad as those on 1/F of CIC or at the detention cells in some of the police stations.  I do not accept the plaintiff’s evidence that there was overcrowding situation at the cells at MTKDC.  In my view, each cell of around 25m² could comfortably accommodate up to 5 to 6 detainees.  I also would reject the plaintiff’s claim that he had to sleep on the floor while he was detained in the cells at MTKDC as I accept SIA Lee’s evidence that long plastic benches were provided to the detainees for sleeping purposes.  I also would reject the plaintiff’s evidence that the toilet facilities inside the cells at MTKDC were inadequate as internal flushing mechanism was installed within the cells.

63. I note that the plaintiff has no real complaints regarding the condition for the 5/F of CIC which was managed by the CSD on behalf of the ImmD.

(b)   Prolonged detention in placed not designed for long-term detention

64. It is accepted by the defendant that both the 1/F of CIC and the detention cells at the various police stations were not designed for long-term detention.  It is also accepted that MTKDC was not designed for long-term detention.  However, despite of that, the plaintiff, together with other detainees, were detained at the 1/F of CIC (during the day) and at the various police cells (during the night) from 8 to 25 October 2006 and at MTKDC from 25 October to 17 November 2006.

65. The plaintiff’s complaints about the police stations’ cells included the fact that the cells on average were around 50 to 70 square feet with concrete bench that had to accommodate up to 4 to 5 detainees. The plaintiff had to sleep on the concrete bench with dirty blankets.  He had to put one blanket on top and one on the floor or on the concrete bench as bedding. In Yuen Long and Tsing Yi Police Stations, 10 detainees were being kept in one single cell.  He had to sleep on the concrete floor sometimes near to the open toilet.  Further, he complains that there was no flushing water for the toilet inside the cell as the switch for the flushing mechanism was located outside the cells.  He also complains that there was also no shower facility located inside the cell.  There was also no television and no water supply.  He had to press the bell and asked the police officer on duty if he wanted to drink water.

66. At MTKDC, the plaintiff’s complaint is that he was asked to take shower with another person together at the same time and the shower was to last for 3 minutes only.  His request for change of clothing was denied.  He was also strip searched on that occasion[11]. He also complains about the hygiene standard at the MTKDC was intolerable.  He was only allowed to take 1 shower during the 3 weeks’ detention in MTKDC.  He was wearing the same clothes and underwear during his entire detention there. He says the blankets provided to him were very dirty.  He does not think that they had ever been cleaned or washed at all.  As a result, most of them got skin problems as fleas could be found on the blankets.  No mattress was provided.  He had to sleep on the floor with dirty blankets. 

67. The plaintiff also complains that the temperature of the air-conditioners at MTKDC was always kept at a very low level.  When he asked the officer to turn it higher, he was told that the temperature was fixed.  As a result, the plaintiff says that he had experienced problems with his legs due to the low temperature.  He asked for medication but was given only pain killer.  He asked to go to the hospital but was asked to wait until he was transferred to the CIC (presumably meaning the long-term facilities at the 5/F to 10/F there).  He says that he could not sleep most of the time because the blankets were not warm enough.  He also complains about the toilet within the cell that was so dirty that it gave out “choking smell”. 

68. The plaintiff also claims that around 5 to 6 detainees were being detained in one cell. Although television was provided, it was placed outside the cell at the corridor and the detainees had to stay behind the metal bars in the cell to watch it.  It was only turned on for 2 hours from 4:00 pm each day only.    

69. The plaintiff says that the detention conditions at the various police stations, MTKDC and the 1/F of CIC were worse than a refugee camp.  They were not designed for long-term detention and no basic facilities such as showers, change of clothing and immediate access to drinking water.  He describes the treatments given by the ImmD at those 3 places were worse than prisons.  I note however that for someone who claims that he had never been imprisoned in his own country or anywhere else before, I do not know where did the plaintiff get his idea about conditions of a refugee camp or prison from.  

70. The defendant’s case on the other hand is that all the detention cells in the police stations where the plaintiff was detained overnight contained a built-in toilet and benches for detainees to sit/sleep on.  Showers were available on request. Blankets were available at all police stations and various basic necessities were provided for the detainees’ hygiene and comfort.  Free meals and drinking water were also provided.    

71. In my judgment, it is wrong for the authorities to detain the plaintiff and other detainees in facilities that are not designed for long periods of detention.  Such facilities, like those at the 1/F of CIC, lacked basic amenities like showers, change of clean clothes, and adequate space.  In the case of the detention cells at the various police stations, they lacked showers (at least showers that were readily made available to the plaintiff and other detainees for use), adequate bedding, clean blankets and internal flushing toilets. 

72. However, I do not find the conditions at the MTKDC, eventhough not designed for long term detention, were as bad as those found on 1/F of CIC and the police cells.

73. I agree with the plaintiff counsel’s submission that the period of time spent by detainees in such establishments should be kept to the absolute minimum: See Abodolkhani v Turkey, supra at §31. 

74. Further, in my judgment, the repeated transfer between the 1/F of CIC and the various police stations between 8 and 25 October 2006 would create particular hardship to the plaintiff and his fellow detainees in that they would not know which station they would be placed during each night.  This could only create a sense of uncertainty and insecurity in the minds of the detainees.  In this regard, I also note that police cells are designed for detention of suspects or persons under questioning for no longer than 48 hours generally.  However, the plaintiff was effectively being placed in such facilities for overnight detention for 17 consecutive nights.  

(c)   No change of clothing, showers or brushing of teeth

75. It is not disputed by the defendant that during his detention from 4 October to 17 November 2006 at the 1/F of CIC (including at various police stations for overnight detention) and MTKDC, there is no record to show that the plaintiff had any change of clothing or had any shower (save on one occasion on 25 October 2006 at MTKDC) or had brushed his teeth.

Taking of showers

76. The plaintiff claims that he was not allowed to take showers while being detailed at the police stations and had to wear the same clothes from 4 October to 25 October 2006 until he was transferred to MTKDC.  While at the MTKDC where he was allowed to take a shower (for the first time in 21 days), the plaintiff requested for a change of clothes but was told by the officer that he was “requesting too much”.  Thus, he had to wear the same clothes from the time when he was detained in the 1/F of CIC until the time when he was transferred from MTKDC to the 5/F of CIC on 17 November 2006.

77. It is not disputed that showers facilities were available at each of the police stations where the plaintiff was detained, the plaintiff’s case is that he was simply not allowed to use them.  When he asked to use the showers, “the officer replied me that I could take shower only when I was transferred to the CIC”[12]. In relation to the Lantau South Police Station, the plaintiff believes that there should be some shower facilities somewhere in the police station but he was simply not allowed to use them.

78. During cross-examination, he says that in every station he would make the request to a senior police officer to let them to have showers in the station, but such requests had never been entertained.  When he made the request at the Lantau South Police Station, the reply he received from the police officer was that as they were “guests” of the ImmD, they should make such request to the ImmD when they reach there. 

79. CI Wong (DW3) who gave evidence on behalf of the police, states that if the detainees of the ImmD requested the use of the shower facilities, they would be allowed to use them. In this regard, he disagrees with the plaintiff counsel’s suggestion that just because the detainees were “clients” from the ImmD, they would not be expected to take showers.  According to CI Wong, the facilities are built for their use and the police would not make a distinction between the detainees of the ImmD and those detained by the police.  However, he accepts that the “Notice to Persons under Investigation by or Detained in the Custody of, the Police”[13] does not mention anything about the detainees’ right to take shower at the station and it was also not part of the briefing of the Duty Officer (“DO”) to inform a detainee his right that he can take a shower at the station.  It is however not disputed that there would be soaps and towels available if a detainee is allowed to take shower at the police stations.

80. CI Wong accepts that there was no record to show that the plaintiff had ever taken a shower at any of the police stations during his overnight detention there.

81. In this aspect of the case, I accept the plaintiff’s evidence that he was never offered the opportunity to take any showers during his 44 days detention from 4 October 2006 (most of the time when he was detained at the 1/F of CIC during the day and at various police stations during the night) to 17 November 2006 (when he was transferred from MTKDC to the 5/F of CIC) save from the single occasion when he was first transferred to MTKDC on 25 October 2006.

82. I believe the plaintiff had made requests to the police officers to have shower at the various police stations (though not necessary at all the stations as claimed by him) but his requests were never acceded to.  May be the frontline police officers treated the detainees referred to by the ImmD differently as “clients” or “guests” from another department.  May be they simply did not want to go through the trouble of providing such facilities to detainees for use who would be there for overnight stay only.  May be they considered giving showers to such detainees was the responsibility of the ImmD rather than the police and they should be taking showers at the ImmD’s facilities rather than at the police’s facilities. May be there was a breakdown in the communication or simply no communication at all between the two government departments. Whatever the true reasons may be, I do not believe the plaintiff was ever allowed to take a shower during those 17 nights when he was detained in the police stations.

83. I consider it is primarily the responsibility of the Director to ensure that all the detainees under his charge should be afforded basic rights like taking a shower at least on a regular if not daily basis.  When shower facilities are not available at the Reception Office of the 1/F of CIC’s due to the fact that they are not designed for long-term detention purpose, a formal request should have been made to the police by the Director to ensure that the detainees can take a shower at the various police stations where they were detained overnight.  The Director should also ensure that such shower facilities at police stations are made available, via the police, to all such detainees.  Further, proper records should be kept to ensure that all the detainees are afforded such basic needs.  In my judgment, it should not be encumber on the detainees to make the request themselves and least for the frontline police officers to make the decision as to whether to allow the detainees to have the shower at a certain police station or not.  After all, there is not much point to have the shower facilities installed at the police stations if they are not going to be made available for the use of detainees like the plaintiff.

84. I have no hesitation to reject the defendant’s submission in this aspect of the case when it says that the plaintiff did not take any shower at the police stations probably due to the onset of the cool weather during that time of the year or due to the lack of hot water available back in 2006.  With respect, there is simply no evidence on this.  Besides, I take note of the fact that the average temperature in October/November will remain in the high 20 degree Celsius.  I think nobody who has a choice will refuse the offer of having a shower on a regular basis in such hot weather. 

85. Insofar as his stay at MTKDC is concerned, I also reject the defendant’s submission that due to the missing form ID 896 (which will be discussed in detail below), the defendant is unable to put up a positive case as regards to whether the plaintiff had only taken one shower, refused to take any shower or did in fact take more than one shower.  I find such argument to be rather absurd as the defendant alone would have access of all the relevant records of the defendant during his detention.  The fact that they have not been able to locate those relevant records, including ID 896, which should have been in their custody at all material times in my view does not entitle them to make speculation like this.  In the absence of such record, I would prefer the evidence of the plaintiff and accept his case that he was only allowed to take shower once while being detained at MTKDC.    

86. In the aforestated premises, I find the defendant has failed to afford the plaintiff the opportunity to take a shower during the first 44 days of his stay, save for once at MTKDC.

Change of clothes

87. Similarly, I accept the plaintiff’s evidence that he was not afforded the opportunity to change his clothes during his detention at 1/F of CIC (with overnight detention at police stations) and MTKDC from 8 October 2006 to 17 November 2006. 

88. The defendant tries to rely on the fact that in his personal property as listed out in the “Detained Person Property Receipt”, a black colour bag contained “some clothings” (sic) could be found.  Therefore, it was always opened for the plaintiff to make a request to the immigration officers to have items of clothing taken out from his personal property for his change or for his own use. 

89. Much time has been spent during the trial by the defendant to try to establish what items of clothing might have been contained in the bag and whether the plaintiff could have asked for such items of clothing for change.  I have no difficulty in rejecting the defendant’s argument on this for the following reasons.  First, I accept the plaintiff’s evidence that the bag (including the items of clothing inside) in fact belonged to another Pakistan male who was arrested at the same time as the plaintiff by the police.  Second, there is no evidence that even if those items of clothing contained in the bag belonged to the plaintiff, they contained change of underwear, trousers or shirts which were items of clothing the plaintiff needed.  Third, the fact that there might be items of clothing in the detained person’s property does not mean that the plaintiff had in fact been given the opportunity to change his clothes during that period of time.  There is simply no evidence to suggest that the Director or the Commissioner had a system to allow detainees like the plaintiff to have a regular change of clothes, whether from their own personal belongings (if they have them in their possession) or from the supplies of the authorities while in those facilities.

90. In this regard, I note SIO Law (DW20) has stated in his evidence that the detainees at MTKDC are allowed to wear their own clothes and are entitled to receive additional clothing from outside for replacement subject to inspection.  Further, request for washing one’s own clothes would normally be allowed.  He also stated that the detainees may request for provision of clean clothes from MTKDC for free.

91. Under cross-examination, SIO Law admitted that there was no record of the plaintiff having ever been provided with clean clothes while at MTKDC.  However, he claims that the ImmD had prepared clothing at the centre and if the detainees requested for them, his front line colleagues would easily able to obtain and provide for them without seeking further permission from their superiors. 

92. In this aspect of the case, the defendant’s difficulty is that there was no record to show in fact change of clothes were provided by the authorities to the plaintiff; nor items had been taken out from his personal property nor that any of his friends from outside (I note that he had no relatives or friends in Hong Kong at that time) had brought him any change of clothing during his stay at the 1/F of CIC and MTKDC.

93. In the circumstances, I accept the plaintiff’s case that during his first 44 days of detention in the above facilities, he was never afforded the opportunity to change his clothes.   

Arrest/Detention Form (ID 896)

94. SIO Law added that the detainees at MTKDC are arranged to have showers on a regular basis as there is a shower room located outside their detention cell.  However, he admitted that there is no record to show that the plaintiff had ever taken a shower at MTKDC.  Those records, including matters like taking of showers or taking of meals, should have been recorded on the “Arrest/Detention Sheet” ID 896 form that would have a detailed record of each detainee’s daily activities while under the detention of the ImmD.  In this case, the ImmD somehow had misplaced or lost those records and was not able to produce them during the trial.  SIO Law stated that those records would accompany each detainee’s movement while they are still under the detention of the ImmD.  Thus, on the day the plaintiff left the detention of MTKDC on 17 November 2006, the ID 896 records would go with him to his next place of detention.  In his case, it would go to the Clearance Section Case Officer at the CIC.  However, neither SIO Law nor any of his colleagues from the ImmD was able to give a satisfactory explanation as to what had happened to the plaintiff’s ID 896.

95. However, SIO Law was certain that when the plaintiff left MTKDC, the ID 896 would still be in the plaintiff’s personal “case file” as the officer-in-charge would have to sign on that form to allow the detainee to be transferred to another facility. SIO Law fairly accepts that he could not say whose responsibility it was that the ID 896 had gone missing.  However, he accepts that had the ID 896 still exists today, it will able to reveal all such important matters like whether the plaintiff had taken any showers, made any telephone calls to outside and whether he had any change of clothes supplied from friends and relatives from outside.

96. As it is, we find ourselves in the unfortunate situation that a clearly important document, which would have been able to assist the defendant’s case, somehow went missing in circumstances that could not be explained by its own witnesses.  In this case, as far back as on 18 April 2011 and 26 May 2011, the solicitors for the plaintiff had requested the DoJ to provide them with a copy of ID 896.  However, no positive reply was ever received by them.  It was only on day 6 of the trial when CIO Wong was being cross-examined by the plaintiff’s counsel that it was revealed for the first time that this important document somehow could not be found in the present case.  All along, the defendant had advanced his case on the basis that there was no record to show certain events might have happened to the plaintiff.  All their witness statements were prepared on such basis.  However, what they have failed to mention is the fact that an important document like the ID 896, which would record virtually all aspects of the plaintiff’s detention (including whether the plaintiff was subjected to searches while under the detention of the ImmD or taken any showers while at MTKDC), could no longer be found and therefore they could not be able to consult such an important document to tell whether a certain event like the plaintiff having taken any shower or have any change of clothes had happened or not.    

97. Ms Wong submits that it cannot be said that the missing ID 896 was convenient to the defendant.  She submits that the matters recorded in the form could cut both ways.  It could serve to prove the plaintiff’s case but could also defend the ImmD’s position that the plaintiff had not been mistreated in any way.  Ms Wong also says that in this case only what happened to the plaintiff during his detention at MTKDC would be recorded in the ID 896.  Thus, this record would not be able to say what treatment the plaintiff had received while he was detained at the 1/F of CIC and overnight at the police stations. 

98. I am afraid I cannot agree with such submissions.  In my judgment, it is the responsibility of the public authority to keep a proper record of a detainee during his entire period of detention.  When important documents like ID 896 or similar documents used at the 1/F of CIC, which would have been able to reveal the details of his treatment records while under detention, went missing without any satisfactory explanations (as in this case) and when circumstances would have expect them to be produced, I am of the view that it is open to the court to draw adverse inference against the authority: See PC International Marketing Limited v Best Power Enterprises Limited (unreported, CACV 208 of 2004 10 May 2005) at §11, per Rogers VP. 

99. According to the maxim ominia praesumuntur contra spoliatorem (everything is presumed against he who destroys), a court is entitled to draw adverse inference against the party who has failed or produce or destroyed the documents where there is “insoluble doubt between any two possible versions or assessments, when the tribunal of fact is pursuing the factual issues”: See Winn LJ in Seager v Copydex Ltd (no 2) [1969] 1 WLR 809 at 815A-B.  It has been said that the above maxim can be applied where the court is entitled to expect the party in question has retained the relevant documents: See Charles Hollander QC, Documentary Evidence (11^th ed) at §§11-29.

100. Further, I agree with the plaintiff’s counsel that the court is entitled to rely on the principle that, as a matter of practical reality, facts will be presumed against a person who does not produce information or a document in circumstances where he should do so: See Incorporated Owners of Million Fortune Industrial Centre v Jikan Development Ltd & Another [2003] 1 HKLRD 455 at §23, per Rogers VP and Hong Kong and Shanghai Banking Corp v Chan Yiu Wah & Another [1988] 1 HKLR 457 at 510G-H per Hunter JA.   

101. In the aforesaid premises, I consider that the court is entitled to draw an adverse inference against the defendant in this case for the loss or destruction of documents, for the failure to keep proper records and for the failure to produce the relevant documents.  I would so draw such adverse inference against the defendant where the missing document ie ID 896 should have been kept or produced by the authorities.

Brushing of teeth   

102. The plaintiff claims that during his detention at the 1/F of CIC (and overnight detention at the various police stations) and at the MTKDC, he was never given any toothbrush or toothpaste to clean his teeth. 

103. CI Wong accepts that there was no record showing that the plaintiff was ever given any toothbrush or toothpaste to brush his teeth when he was being detained at the various police stations.  His explanation is that minor issues such as asking for drinking water, tissue paper and requesting for shower and other needs may not be recorded. 

104. SPT Hobson (DW1) mentioned in his evidence that there was plenty of stock of toothpaste and toothbrushes at different police stations under his charge.  I have no doubt about that. However, in my view, there is not much point in having a stockpile of toothbrushes and toothpaste placed in the store rooms of the different police stations when they were not given to the detainees for their use. 

105. In the absence of any record from the defendant, I prefer to accept the plaintiff’s case and find that he was never given any toothbrush or toothpaste for use during the 44 days when he was first detained at the 1/F of CIC (including the overnight detention at various police stations) and at MTKDC. 

(d)   Sleeping on Floor

106. The plaintiff alleges that he had to sleep on the floor when he was being detained in Yuen Long Police Station (9-10 October 2006 and 15-16 October 2006) and Tsing Yi Police Station (12-13 October 2006).

107. Originally the defendant claims that the plaintiff had never been detained with 10 detainees in one cell as alleged by the plaintiff[14]. However, according to the Case Details Reports produced by station sergeant Fung Kwok Tai (DW4) (“St Sgt Fung”), the plaintiff was actually detained at Cells No 3 & 4 of Yuen Long Police Station with 9 other detainees on 9-10 October and with 9 other detainees on 15-16 October.  

108. According to the statement of PC Wong Lun Tak (DW12) (“PC Wong”), who was working at the report room of Tsing Yi Police Station at the material time, the plaintiff was detained with 7 other detainees at Cell No 2 of the station on 12-13 October 2006. 

109. Further, according to PC So Shu Kwun (DW7) (“PC So”), the plaintiff was detained with 4 other detainees at the Tuen Mun Police Station on 10-11 October 2006. 

110. SPT Hobson accepts that in order to give each detainee sufficient space, a cell with 4 benches is designed for 4 detainees to sleep in only.  This is consistent with the evidence given by SI Tong (DW8) who holds the post of Administration and Support Sub-Unit Commander, Tuen Mun Division of New Territories North Region.  SI Tong confirms that the cells are designed for 4 detainees and there should not be more than 4 detainees being detained in one cell.  He accepts that if there are more than 4 detainees being locked up in one cell, then one of them will have to sleep on the floor.  He further confirms that according to the police guidelines, the bench is not designed to sleep more than one person and two detainees should not be slept on the bench together.

111. PC So claims that one bench could provide sufficient space for 2 detainees to sleep on.  PC Wong went even further to say that the plaintiff and his fellow detainees, due to the fact that they were away from their own country, might be prepared to lower themselves to sleep rough by sleeping 8 persons on 4 benches.  He used the derogatory Chinese phase of 「人離鄉賤」 to describe the plaintiff and his fellow detainees’ predicament as a reason why they were prepared to sleep on the benches together.

112. I find such remarks to be rather degrading if not insulting to the plaintiff and his fellow detainees.  I have no hesitation to reject such an appalling excuse in putting 10 detainees in a cell that was designed to sleep 4 only.  Regrettably, I think it reflects the rather discriminatory attitude of some of the frontline police officers towards detainees who had come from similar ethnical background as the plaintiff and who had found themselves in the same plight as him.

113. According to PC So’s estimate, the bench size is about 6 ft x 3 ft.  At the end of hearing the oral evidence, I asked the defendant to take measurements of the benches at those 3 police stations.  The benches at Tuen Mun and Tsing Yi stations were measured at 0.78 m x 1.8 m in size and the undivided long benches built along the 3 sides of the wall in Yuen Long station was measured at 0.7 m in width.    

114. In my judgment, it is difficult to imagine that for someone who is as well built as the plaintiff[15] could sleep together with another person on a concrete bench as narrow as 0.7 or 0.78 metre in width.  I therefore would reject PC Wong and PC So’s evidence that the plaintiff could sleep on the concrete bench with another person while being detained at the above stations. 

115. I accept the plaintiff’s evidence that he was required to sleep on the floor during the 2 occasions when he was detained at Yuen Long Police Station.  The defendant submits that his evidence on this is not clear as he only mentioned in his witness statement that “We had to sleep on the concrete bench or on the floor with dirty blankets” and he “put one blanket on top and one on the floor or the concrete bench”[16] [emphasis added].  I am of the view that this is really a matter of semantic rather than substance.  If his evidence is not clear during his evidence-in-chief or cross-examination, he has put this beyond any shadow of doubt during re-examination when he says that he had to sleep on the floor.  With 10 detainees locked in a cell with only 4 concrete benches, it was more probable than not that the plaintiff had to sleep on the floor. 

116. On a balance of probabilities, I also find that he was required to sleep on the floor while being detained at the Tsing Yi Police Station.

117. For his stay in Tuen Mun Police Station, there is no direct evidence that he had to sleep on the floor when there were 5 persons being detained in the same cell.  I therefore refuse to find that he had to sleep on the floor in that particular station.

118. I find therefore that out of the 17 nights when the plaintiff was detained at the cells of the various police stations, the plaintiff was required to sleep on the floor for 3 nights (twice in Yuen Long and once in Tsing Yi Police Stations).  However, one has to put this in context.  And the context is that out of the total of 44 days of detention at the 1/F of CIC (including overnight detention at police cells) and MTKDC, he was required to sleep on the floor on 3 nights only.  And this was out of the total 107 days Detention Period.   

119. While on his sleeping arrangements in the police stations, I also accept the plaintiff’s evidence that the blankets provided to him for use for sleeping purposes were dirty with foul smell.  Despite the evidence of SPT Hobson and CI Wong saying that each prisoner was given a clean blanket to use, I do not think that reflects the actual situation.  Given their relatively senior position in the force, I do not think they knew what actually took place in the cells.  In this respect, I find the plaintiff’s case is consistent throughout in his complaints about the dirty blankets.  I accept his evidence that the blankets given to him at the police stations had been repeatedly used and had not been washed for a long time before they were given to him.  I also accept his evidence that the blankets at the MTKDC were of similar dirty state and might have even been infested with fleas that caused itchiness to his body.     

120. On the overall condition of the cells, despite the tidy and spotless conditions shown in the photographs produced for the purpose of the trial, I accept the plaintiff’s evidence that they did not reflect the actual conditions back in 2006.  SPT Hobson states in his evidence that there was a force wide detention facility upgrade programme in 2011 that would include substantial renovation and improvement projects to the detention cells in all the police stations in the New Territories.  Hence, the photos showed the improved conditions after the major renovation.  I believe that the conditions of the cells are generally rather dirty and poor, particularly in Yuen Long Police Station where 10 detainees had to stay overnight in a cell designed for 4 persons. 

(e)   Lack of internal toilet flush and foul smell

121. Another complaint made by the plaintiff is the foul smell in the police cells due to the lack of flushing toilets back in 2006.  The plaintiff’s complaint is that each time after the meals were served, the detainees would use the toilet but there was no flushing mechanism situated within the cells itself.  They had to ask the police officers to flush the toilet for them from the flushing mechanism placed outside.  Since the officers usually did not attend to their requests immediately, the foul smell within the cells became intolerable.  The plaintiff describes in his evidence that the foul smell was the worst part of his police cell experience.  The plaintiff says that they had no option but to use the toilet one by one without waiting for the officers to flush the toilet.  He says that the smell would persist in the cell and never disappeared.  It made sleeping very difficult with such foul smell lingering around.

122. It is not disputed by the defendant that back in 2006, the flushing mechanism of the toilet was located outside the detention cells and had to be operated by the police officers on duty.  The defendant’s case on this is that the plaintiff could have made use of the intercom located inside each of the detention cell to summon the police officers to flush the toilets on their behalf.  The defendant also says that the police officers patrolled the cells at regular intervals in all police stations, usually at 25 to 30 minutes intervals. According to SPT Hobson, the internal flush system was only installed in 2011.

123. I do not accept the defendant’s case on this for several reasons.  First, human nature as it is, I do not think the police officers would respond to the requests of the detainees each time they pressed the intercom to ask them to flush their toilets.  Second, it is not difficult to imagine the stink and the extreme foul smell in the confined space of a detention cell when the toilet is not flushed immediately after use.  This is particularly so when the cell was shared by up to 10 detainees.  Third, even assuming that the police patrolled the cells at 25 to 30 minute intervals, there is no evidence to suggest that they would flush the toilets from outside each time they walked past.  Fourth, the fact that the force has upgraded all the cell toilets with internal flush mechanism since 2011 shows that they themselves realized that there was such a practical need.

124. I thereafter accept the plaintiff’s case that there was no internal flushing mechanism of the toilets situated within the detention cells at the police stations and that they produced persistent foul smell in the cells.

125. Associated with the toilet and the bad smell is the complaint that the height of the privacy wall of the built-in toilet facilities was so low that he could be seen clearly when he stood up after use.  He says there was no privacy at all. 

126. The evidence reveals that the privacy wall at the Tuen Mun station was around 80 cm while the one in Kwai Chung station was at 78 cm in height.  There is no evidence about the height of the walls at other stations but they are believed to be of similar height.  The height of the privacy walls were raised by a little bit in the region of 15 cm in the 2011 forcewide renovations. 

127. I do not consider this as a legitimate ground of complaint at all as I agree with SPT Hobson that a balance has to be struck between the detainees’ privacy and the security of the cells as the patrolling officers need to have an unobtrusive view of what is going on within the cells itself.

128. The plaintiff also complains about the lack of toilet tissues paper for use after toilet.  He claims that he was only given a few pieces to use each time and he says it was not enough.  He also complains that he was not given any water to wash his hands which for him as a Muslim will post a particular problem as he is supposed to wash his hands before eating according to his religion.  He was told that he was not allowed to go outside the cell to wash his hands.

129. On this matter, I do not consider that this will amount to a legitimate complaint as I do not think the officers would specially cut down the number of tissues paper to the detainees for use.  After all, there would be plenty of supply for the use of the detainees at the stations and the detainees could always ask for more that would be provided on request.  Further, I do not think that for security reason they could release the detainees from the cell for washing of hands each time after they use the toilet.  I therefore do not find these complaints have been made out against the defendant.

130. Similarly, for drinking water, they are supplied upon request.  The plaintiff himself accepted that he could request for drinking water by using the intercom and his requests were always entertained.  So nothing comes out of this complaint. 

(f)  No pork-free meal

131. The plaintiff is a Muslim and does not eat pork for religious reasons. 

132. The plaintiff’s initial complaint recorded in his witness statement regarding the meal arrangements was that at “some of the police stations”, he was provided with sandwich with ham eventhough he allegedly had told them that he was a Muslim and could not eat pork.  He therefore only had water and 2 pieces of white bread for breakfast.  The plaintiff did not however say at which police stations he had allegedly received such treatment[17].

133. Then in his supplemental witness statement, he claims that he had been provided noodles with pork for breakfast at the Lantau South Police Station.  When he complained, the officer simply took away the pork from the noodles.  He returned the food but was not given any other food in its place.  He continued to be given noodles with pork for 3 days.  And for lunch, he was only given rice and with water[18].

134. The plaintiff complains that while at the 1/F of CIC, lunch boxes with chicken or duck with rice were provided.  He asked the officers if the food was “halal” but was told that he should know the answer[19].

135. The plaintiff further alleges that while at the MTKDC, only fired rice, white rice or curry rice could be chosen.  He says that no one had ever asked him for his choice of food or what kind of food he could not take due to his religion.  The officers had allegedly told him that he had to eat whatever was provided.  He went on a hunger strike for 1 day to protest against such treatment at MTKDC[20].

136. The defendant’s case on this is that while practice at different police stations and 1/F of the CIC varied, the request of a detainee’s special dietary requirements would always be respected and entertained.  In the case of the police, the DOs would ascertain the wishes of the detainees when they first arrive the stations and where they would be interviewed by the DO.  At some, but not all, the stations the detainees would be asked again before the order for meals were taken. Further, as a matter of custom and through their experience in dealing with detainees from ethnic background like the plaintiff, egg-based or vegetable based meals would be provided.  In the case of the Reception Office at 1/F of CIC, food from outside restaurants with no pork or beef was ordered.

137. Due to the rather vague and non-specific nature of the plaintiff’s complaints in this regard, the defendant has to call officers from each and single police stations where the plaintiff had been detained from 4 October to 25 October to rebut the plaintiff’s case.  The defendant also has to call officers from the ImmD to deal with his complaints regarding food at the 1/F of CIC and at MTKDC. 

138. On this issue, I much prefer the evidence of the different police officers and officers from the ImmD on the food arrangements for ethnic minority detainees like the plaintiff.  I find the plaintiff’s evidence on this issue was deliberately kept vague and non-specific.  In any event, if there were occasions when the plaintiff was offered food with pork, I find them to be few and far between and any of such incidents were quickly addressed and dealt with by the authorities in a suitable manner.  In my judgment, the plaintiff is trying to make a mountain out of a molehill by amplifying the isolated incidents as equals to the general treatment received by him when it comes to food.  I have no difficulty to reject his evidence in this part of his case.   

139. Under cross-examination, at first the plaintiff was adamant that “halal” food, ie food contained animal killed or prepared in manner prescribed by Islamic law, should be given to him to eat.  He says that such food could be found outside of his country and certainly in a place like Hong Kong.  He agrees that pork is the only kind of meat that he is not permitted to eat due to his religion.  However, he accepts that when he came to Hong Kong to seek asylum, he would be submitting to the authorities and that his freedom would be restricted once he submitted himself to the authorities.  He also agrees that insofar as food is concerned, there is no guarantee that he would get halal food once he is placed in detention in a non-Muslim country.  But he disagrees with the suggestion that eating halal food is in reality a best practice and not a matter of necessity.

140. The plaintiff claims that during his detention, he could eat fish, vegetables, beans, bean curry, rice and chapattis on the 5/F of CIC.  He therefore cannot understand why they could not provide such food at the police stations and by implication at the 1/F of CIC and at MTKDC.

141. According to CIO Wong, at the beginning when the ImmD had to transfer detainees to the police for overnight detention in 2006, they would require their staff canteen on 4/F of CIC to prepare lunch boxes for the detainees for their consumption during the day.  However, they soon realized that they did not have the capacity to cope with the demand.  Therefore, they started to look for cafés or restaurants nearby to provide delivery services.  Since they knew that most of the detainees are Muslims, no pork or beef was ordered.  Instead, only chicken, fish or vegetables with rice cooked in Chinese style were provided.  However, soon the detainees from South Asia complained that not sufficient choices were given to them and they also wanted to have curry in their meals.  Thus, curry chicken, curry fish and curry vegetables with rice were later ordered from outside restaurants.  Later on, at the beginning of 2007, flat bread or chapattis was also added due to demand made by the detainees. 

142. CIO Wong added that they would always ordered an extra 5 to 10% portion of food in case new detainees may arrive.  Thus, the detainees would always be given sufficient amount to eat as long as they have any spare.  The detainees would also be given a bottle of 350 ml water to drink.  Extra water from a dispensing machine will be available if they needed more to drink.   

143. I have no reason to doubt what CIO Wong told the court regarding this matter at all.  I find as a fact that every effort for non-pork diet had been made by the ImmD to provide him with such meals while he was detained at the 1/F of CIC during the Detention Period.  I reject the plaintiff’s contention that the authority should or ought to have provided him with halal food.  In my view, it is unrealistic to expect that an authority in a non-Muslim country should be placed under such a burden as to provide food from animals killed or prepared according to a certain religious belief or law.  To do so will place an insurmountable burden, whether from a financial or practical point of view, on an authority.  While every respect should be paid to the special dietary needs of the detainees, like providing pork-free meals to Muslim detainees (which I believe the ImmD and the police did in this case), I do not think the law requires the public authority to observe the strict religious requirements of all the detainees under its charge.

144. Regarding the meal arrangements at different police stations, I accept the evidence given by the police officers from the various stations.  I believe that pork-free meals were given to the plaintiff as a rule for detainees from South Asia.  I also believe that there might be on isolated occasions where meals with pork were given to the plaintiff, whether through ignorance or innocent mistakes, they were quickly addressed by the officers-in-charge.  I believe that during the vast majority of time when he was detained at the police stations for overnight detention, he was provided with pork-free meals. 

145. My belief above was based on the evidence given by the following police officers.  

146. SPT Hobson stated in his witness statement that the DO at the police stations would make special arrangements for detainees who request a special diet whether for health or religious reasons.  Such request would be recorded by the DOs on the occurrence book.  But such books would be destroyed regularly and would only be kept for 7 years.  When he stated in his witness statement that according to the available records, the plaintiff was served with pork-free breakfast on 13 and 18 October 2006, he clarified it by saying under cross-examination that he personally had not checked the records himself but relied on the details supplied to him by his predecessor, a lot of which have already been checked before he came into his post.  SPT Hobson also stated in his evidence that there is no record to show that the plaintiff had any complaint regarding arrangements for meals during his detention in the stations under his jurisdiction.

147. I have no reason to disbelieve SPT Hobson on this matter, as I am sure the police had had a lot of experience in dealing with detainees from South Asia who require a special diet due to their religious background.  I trust that his predecessor must have checked the records on the computer before passing him with the knowledge of what the plaintiff might have for breakfast on those 2 days.  However, the more important thing is that the DOs are all experienced officers of sergeants or station sergeants’ ranks.  They are used to deal with the special dietary needs of detainees from that part of the world.  As the police have allocated budgets for meals for the detainees and it would not cause them extra work since the DOs will have to order meals for all the detainees anyway, I simply cannot see any good reason, fall short of malice (and there is no evidence of any malice in this part of the defendant’s case), why the police had to provide the plaintiff with meals with pork.

148. SPT Hobson’s evidence in this regard is supported by other frontline officers’ evidence. According to PC Lau Kit Wai (DW13) (“PC Lau”) from Kwai Chung Police Station, the detainees would be brought before the DO when they arrive the station. They would be asked if they would have any special request or complaint.  This would include their special needs for meals, including what they would take or would not take.  It will then be recorded by an unofficial note book known as the “Handover Book” 「手尾簿」.  He agrees that if a detainee made such a request, this could be recorded by way of insertion under the remarks column of the computer record.  However, he said that he has not seen the request for pork-free or beef-free meals had been written down before on this column of the computer record.  However, he did stress that some of his colleagues would write down the meal requests by pen and papers on the handover books.  In such a case, he was not certain whether the DO would put the request on the computer again.

149. PC Lau’s evidence is consistent with the evidence given by other frontline police officers who worked at the report rooms at the different stations.  This includes St Sgt Fung (DW4) who was the DO at Yuen Long Police Station at the time.  He testified that he was requested to interview the detainees when they arrived the station.  This was to find out, amongst other things, if the detainees would have any special request for meals.  Any special request, such as pork free meals, would be written down in the handover book (「手尾簿」) and also on a whiteboard hanged in a prominent place inside the report room.    

150. St Sgt Fung’s evidence in fact have been repeated by almost all the frontline officers from different stations when they say that the detainees’ meal request would inevitably recorded on the handover book and/or the white board inside the report rooms.  While the manner of record and the amount of record varied, they are always recorded in some temporary recording devices like the handover books or the whiteboards.  Mr Pun submits this as a “blatant collusion between the police witnesses concerned”.  I do not agree.  I do not see recording the request of a detainee for pork-free meal is such an important matter that they have to be recorded in the police’s computer system.  As long as the DO has ascertained the request from the detainee in regard to his meal and able to communicate the request effectively to his subordinates on the same shift or relate the same to his colleagues on the next shift, I do not see why such request must be put in the computer system.  I do not see anything sinister in putting them in a handover book or writing them on a whiteboard. 

151. In this regard, I accept the evidence of SI Tong when he said that the DO would not write down the request for pork free meals on the computer.  The FICs computer record would only denote which detainee ate what meals but would not mention details like “pork-free meal”.  He said that the DOs would write down such details on the handover books and in some stations they would place them on the whiteboards.  He says different stations would have different practice when it comes to writing down such a request.  To me, this makes a lot of practical sense and I believe this was what actually happened in the various report rooms at the time.

152. Based on the above, save from perhaps on a few isolated occasions, I find that the plaintiff was provided with pork-free meals during the Detention Period.

(iii)   Conclusion on the conditions of the unlawful detention

153. In conclusion, on the conditions of the unlawful detention, I find that:-

(i)  there was overcrowding conditions in places like the 1/F of CIC and the detention cells at Yuen Long and Tsing Yi Police Stations where the plaintiff was detained between 8 and 25 October 2006 but not at MTKDC;  

(ii)   the plaintiff was detained in places not designed for long-term detention between 8 October and 17 November 2006 (although the conditions in MTKDC was not as bad as those at 1/F of CIC and at the police detention cells);

(iii)  he was deprived the opportunity of taking showers (save for once), change of clothing and brushing of teeth during his 44 days detention while at 1/F of CIC, police stations and MTKDC;

(iv)  he had to sleep on the floor for a total of 3 nights at the Yuen Long and Tsing Yi Police Stations out of the 107 days Detention Period;

(v)   some of the police cells where he had to stay overnight during the 17 nights, particularly those which were overcrowded, had foul smell due to the external flushing toilet system; and

(vi)  save on a few isolated occasions, he was provided with pork-free meals during his detention.

154. Other than the above, as far as detention facilities go, I find the conditions of his detention during the Detention Period were reasonable and acceptable.  After all, one has to bear in mind that these are detention facilities and not 5 star hotels. While the detainees should never be subjected to any inhumane and degrading treatments, they should not expect such facilities would be anything other than basic and functional.  Further, while the plaintiff’s detention has now been accepted to be unlawful as a result of the CFA’s decision in Ghulam Rbani, it certainly was not the case according to the understanding of the defendant back in 2006.  I consider all such matters should be taken into account and put in the balance when assessing the damages in this case.

Issue 2: Uses of handcuffs

155. There are 2 issues to be decided under this head.  They are:

(1)   whether the uses of handcuffs against the plaintiff during transfer between different police stations and detention centres amounted to trespass to the person at common law; and

(2)   whether the uses of handcuffs against the plaintiff during transfer between different police stations and detention centres were unconstitutional.

(i)  The plaintiff’s allegations

156. As said, from 8 October 2006 to 25 October 2006, the plaintiff was detained during the day at the Reception Office on the 1/F of CIC and at night at the various police stations as stated in the simplified chronology. According to the plaintiff, the detainees would be handcuffed when they were transferred to and from the police stations each day during the above period.

157. The plaintiff claims that they would usually be handcuffed in pairs.  If there was an odd number out, then the remaining person would be handcuffed alone.  He cannot remember how many times he was being handcuffed alone.  He says that he sometimes would be handcuffed in front and sometimes from the back. The handcuffs used were the metal type.  The plaintiff says that he had asked the immigration officers of why they had to be handcuffed and allegedly no reply was given.  He was just told to keep quiet and sit down.  During the 17 times when he was being transferred to the different police stations, it has been alleged that no immigration officers had ever explained to him why he had to be handcuffed.

158. The plaintiff alleges that during the time when he was detained at 1/F of CIC, there were about 100 detainees being detained there.  In other words, about 100 detainees would be transferred to different police stations situated at different parts of the New Territories in the evening for overnight stay during that particular period of time.  According to the plaintiff, the detainees would be transferred from CIC to the different police stations in either big buses (45 seaters) or mini vans (24 seaters) arranged by the ImmD.  They would be separated into different groups, the size of which would depend on the capacity of the buses or mini vans.  The duration of the journeys would depend on which station they would be dropped off on a particular evening.  On average, the plaintiff says that he had to spend something between 2½ hours and 3½ hours during such a single journey.  Throughout the journeys, all the detainees would be handcuffed. 

159. The plaintiff also claims that when the immigration officers arrived at the various police stations to collect the detainees back to the 1/F of CIC the next morning, they would be handcuffed on the wrists again in the same manner as before.  They would then walk onto either the big buses or mini vans in order to return to the CIC.  According to the plaintiff, there would be 2 to 3 big buses every morning arranged by the ImmD to pick up all the detainees.  During the 18 days when the plaintiff was detained at the 1/F of CIC, after dinner each evening and at around 8:00 pm, the plaintiff along with other detainees would be handcuffed by the immigration officers and would then be sent back to different police stations for overnight stay. 

160. Under cross-examination, the plaintiff admits that the detainees would be transferred from the 1/F CIC to the various police stations in mini vans (with estimated capacity of 16 to 18 detainees by him) or big buses (with estimated capacity of 35 to 40 detainees by him).  He further admits that, besides the driver, there would be only 4 to 6 immigration officers travelling with the detainees on the big buses; while there would only be 3 to 4 of such officers on the mini vans. Some of those officers would be sitting in front while others would be sitting at the back with the detainees being handcuffed.  The plaintiff claims that sometimes there would be more than one person who would be handcuffed on his own, depending on how many of them would be dropped off at the different stations. The plaintiff also admits that there was no wire fencing separating the driver from the detainees.  Only a glass panel with metal bars would be used to separate the driver and the detainees.  The immigration officers were not armed. 

161. According to the plaintiff, the defendants had come from different countries.  They mainly consisted of men but sometimes women would also travel on the same buses. While the plaintiff considers himself not being an escape risk, he says that he cannot speak on behalf of others.  He does not think that back in 2006, the detainees had the courage to plan an escape as all of them were scared.  The plaintiff disagrees with the suggestion that handcuffing detainees like him for the duration of transfer is a necessary safety precaution because he thinks that he did not commit any crime at all and he had only come to Hong Kong to claim for refugee status.  He does not agree with the suggestion that the use of handcuffs was justified and not arbitrary.  He, however, agrees that he was not particularly singled out in term of being handcuffed because, as far as he could see, everybody was handcuffed during transit.  This included women and young people under 18.  The plaintiff also disagrees with the suggestion that the use of handcuffs in this case during the transit journeys was neither undignified nor inhumane.  He regards it was wrong for the authority to do so. His reason being that he was here to seek asylum and not here to “get handcuffed again and again”.

162. When it was put to him that he had not suffered any hardship during the transfer when being handcuffed, the plaintiff’s answer is the hardship was when people was able to see them while being handcuffed.  He claims that, it would affect “our emotions and our minds”.  When it was put to him that, during those journeys on the buses or vans, only the immigration officers and other detainees were able to see him, the plaintiff disagreed.  He says that when they come out from CIC, a lot of visitors would be standing outside CIC and they could see them being handcuffed.

163. Only on the 5^th day of the trial and towards the end of the cross-examination, when photos of the main entrance of CIC were shown to the plaintiff, he claims that the visitors could only see them from the pavement while the bus was waiting to get into the holding area of the building.  The plaintiff however admitted that there would only be 3 to 5 people standing around there.  They would be either coming or going and they were not friends of this.

(ii)   The defendant’s case on handcuffing

164. The defendant’s case on handcuffing mainly comes from the evidence of CIO Wong and PO Wong (DW22).

165. CIO Wong, who is a senior immigration officer holding the post of “Senior Immigration Officer (Clearance Section) Re-entry” during the Detention Period, explained to the court the needs of using handcuffs for detainees in the plaintiff’s situation. According to the guidelines governing the use of handcuffs issued by the ImmD[21], handcuffs will be used during the escort of a detainee who does not have legal stay in Hong Kong, ie an illegal immigrant, an overstayer or a passenger using or holding suspected fraudulent travel documents.  However, handcuffs would not normally be used on a female or juvenile unless the circumstances warrant the use of them.  At the material time when the plaintiff was being detained on the 1/F of CIC, according to the records, there were about 75 detainees detained together during daytime and they would be taken to the various police stations for overnight detention and brought back to the 1/F of CIC during the day.  If transferred on a big bus, about 50 detainees would be transported together, with 3 to 4 escorting officers (excluding the driver).  During the transfer, the escorting officers would guard against the door as well as the emergency exit of the bus.  They were not issued with any firearm or defensive weapon. Hence, the defendant says that the use of handcuffs on the plaintiff was reasonable and necessary for safety reasons and to preclude any possibility of escape from legal custody.

166. Further, according to CIO Wong, a pair of handcuff would be used on 2 detainees, ie the left hand of detainee A would be handcuffed to the right hand of detainee B, with the other hand of the detainee stayed free.  Only those who are left on their own would be handcuffed with both hands together.  They would be handcuffed in front and never at the back as they would not able to maintain their balance when walking.  Hence, the defendant says that the use of handcuffs on detainees only limits the detainees’ movement to a reasonable degree.  The defendant says that the extent of use of the handcuffs was reasonable in the circumstances.

(iii)    The police’s policy & practice on handcuffing

167. On the issue of handcuffing, as a general practice of the police, I accept the defendant’s witness SPT Hobson that, due to insufficient detention facilitates in other law enforcement departments during night time, the police has assisted by providing temporary detention facilities or short term detention.  Hence, it was not unusual for detained persons to be placed in different police stations to stay overnight as the availability of such temporary detention facilitates at individual police stations may vary from time to time.  SPT Hobson states that, as a normal practice, when the detained person is removed from the cell at the police station, he/she would be informed of the purpose of movement and the destination.  The witness states that the use of handcuffs during the time may be justified depending on the circumstances.  In his main witness statement, SPT Hobson states that according to the police’s record, no handcuff was used on the plaintiff during his transfer from police’s custody into ImmD’s custody. However, in his supplemental witness statement, SPT Hobson emphasized the fact that while the police had never handcuffed the plaintiff during the transfer from various police stations to the custody of the ImmD (or vice versa) in respect of the overnight detention requested by the ImmD, he might had been handcuffed by the ImmD’s officers.  This was because the escort to and from various police stations was undertaken by the ImmD and not the police. 

(iv)   Findings on the handcuffing issue

168. On the issue of handcuffing, I do not find the plaintiff’s evidence that he would be seen by visitors to the CIC to be credible at all.  As a matter of fact, I find the chance of him being seen handcuffed by others while travelling on the big buses or mini vans to be rather slim and the possibility of his feelings being injured as a result to be rather remote.  There are a number of reasons leading to my finding.

169. First and foremost, the fact that he felt humiliated because he was seen being handcuffed by others while travelling on the buses/vans and thus causing him hardship and affecting his emotions and mind are matters never pleaded by the plaintiff.  They were matters only mentioned by the plaintiff for the first time during cross-examination when the defendant was putting his case to him. It was from that point onwards that the focus of the evidence shifted to whether he could be seen from where he was sitting; the chances of the plaintiff might have been seen handcuffed while he was being transported in the buses/mini-vans; from where he would be seen; by whom and the window of opportunities that he would be seen and for how long, etc. 

170. What is clear to me is that, due to the visiting hours at the CIC only lasted from 9:00 am to 5:00 pm, the only possibility that the visitors to the CIC might able to see the plaintiff being handcuffed would be during his transfer from the police stations to the 1/F of CIC in the morning.  There would be no visitors around during his transfer from the 1/F of CIC to police stations in the evenings.  Further, due to the fact that the plaintiff would only leave the police stations after breakfast and arrive back at the CIC in time for lunch, the usual hours of arriving the CIC would be during late morning to around noon.

171. According to PO Wong, whose evidence I accept, back in 2006, the number of visitors in the morning was at most around 10.  For those who arrived earlier, they would be queuing up to get into the visitor’s area at the main entrance of the CIC before the door was opened.  Otherwise, the visitors would be coming in groups of 1-2 or 3-4 throughout the morning.  They would come sporadically and at no set time at all.  It was never that busy in the morning that they had to stop receiving visitors.  In any event, there would be sufficient booths/cubicles within the visiting room for receiving visitors.  From the windows of the visiting room, the CSD officers could see if there are people loitering around outside and would clear them away if necessary.  Thus, there is never a case where the detainees would be able to be seen by a group of visitors waiting outside the door on the pavement of the CIC as alleged by the plaintiff.   

172. Further, I accept PO Wong’s evidence that there would be no chance that the visitors would able to see the detainees after they had entered the small metal door of the main gate and while they were in the holding area in the carpark area.  In this respect, I accept PO Wong’s evidence that once the visitors rang the bell to the small metal door, the CSD officer who stationed behind the door, would let them in very quickly.  They would then be ushered into the visiting room and the door would be locked behind them.  Thus, there would be practically no chance that the visitors would able to see the detainees being handcuffed while they were in the holding area.

173. In my judgment, it is clear from where the plaintiff and other detainees were sitting on the mini vans, due to the angle from the pavement and the height of the mini vans, the visitors standing outside the pavement would not be able to see whether they were handcuffed or not.  The plaintiff’s suggestion that sometimes they would raise up their hands or placed them at the back of the seat in front is clearly not credible.  It would also be in the case when the detainees were being transferred in the big buses as the windows would be located at a much higher position and therefore pedestrians standing on the pavement would not be able to see whether the detainees were being handcuffed or not unless they deliberately raised up their hands. 

174. During cross-examination, the plaintiff tried to demonstrate with his right hand raised up close to the window and he said that in this position the visitors to CIC could see them being handcuffed inside the bus clearly.  I have no hesitation to reject such bizarre suggestion.  As accepted by the plaintiff himself, the detainees were either handcuffed together with another person when one detainee’s right wrist would be handcuffed to another detainee’s left wrist or they would be handcuffed on their own with both wrists together.  As such, either their left hand or right hand (which is not handcuffed) would be situated next to the window.  If they raise up their left or right hand when sitting next to the window seat, the visitors from outside would have no idea whether they were handcuffed or not. 

175. Further, I reject the plaintiff’s suggestion that people from outside could see them handcuffed when they raised up their hands and placed them at the back of the front seat together.  I simply cannot see why either the plaintiff or other detainees would have to do that.  In any event, I accept the defendant witnesses’ evidence that it would normally only take a few seconds for a bus or van to wait outside the front gate to get into the restricted area.  By this time the visitors to CIC would be allowed in through the small metal door already.  In my view, the chance of any visitors to CIC would able to see the detainees being handcuffed are extremely remote if not completely negligible.

176. I also reject the plaintiff’s evidence given during re-examination that the visitors waiting behind the small door to the visiting room would be able to see the detainees being handcuffed while they were on the mini vans or buses through the small viewing window.

177. I find that on this issue the plaintiff has grossly exaggerated his case in order to try to convince the court that visitors to the CIC could see him and hence his feelings were injured as a result.  I find as a fact that, save from the immigration officers and his fellow detainees, nobody from outside could see him from being handcuffed during his transfer to and from the 1/F of CIC.

178. I also accept CIO Wong’s evidence that since the escorting officers were not armed with any defensive weapons, the use of handcuffs on the plaintiff and his fellow detainees was reasonable and necessary for safety reasons and to preclude any possibility of escape from legal custody.  I also accept his evidence that the use of handcuffs only limited the movement of the detainees to a reasonable and the extent of use was kept to a reasonable and minimal level in the circumstances.

179. Thus, but for the unlawful detention as conceded by the defendant under the Hardial Singh principles, the handcuffing of the plaintiff would in my view have been lawful and legitimate during the Detention Period. 

(v)   Whether the handcuffing amounted to trespass to the person

180. It is trite that an assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on another person while a battery is the actual infliction of unlawful force on another person: see for example Collins v Wilcock [1984] 3 ALL ER 374.  So long as the act is intentional, such interference, however slight, constitutes trespass to person: see Clerk & Lindsell on Torts, 12^th ed at §15-01.  Further, it has been well established that actual injury or damage is not an essential ingredient to an action for trespass to the person, ie it is actionable per se: see Clerk & Lindsell on Torts, 12^th ed at §15-03 & 15-09.  Although it has been said that an element of hostility is required for battery, such hostility is not to be equated with ill-will, but evidence is required of an act contrary to the claimant’s right to freedom from unwarranted physical contact: see Wilson v Pringle [1987] QB 237.

181. In an action of trespass to person, once the trespass is admitted or proved, it is for the defendant to justify the trespass by showing that he acted with lawful excuse. In this regard, the defendant fairly accepts that it has difficulty in doing so in light of the “tainting effect” of the unlawful detention. 

182. I do not think one can dispute that handcuffing a person without the person’s consent or other lawful justification amounts to battery as submitted by the plaintiff: see Hayward v O’Keeffe [1993] 1 NZLR 181 at pp 191-193.  However, it is important to bear in mind that there was no “parading” of the plaintiff handcuffed across a busy shopping centre, in front of “thousands of people”, as in Hayward v O’Keeffe, supra in our case.

183. The defendant relies on rule 67 of the Prisons Rules, Cap. 234A (“PR”) which provides that “mechanical restraint can be used for the purpose of, inter alia, “to ensure the safe custody of prisoners during removal or while outside any prison and in legal custody, when handcuffs may be used.”: see §24 (axii) of the re-re-amended defence and r 67 of PR. 

184. The defendant submits that rule 67 of the PR applies to the plaintiff, being a person detained under the IO and hence “a prisoner awaiting trial” for the purposes of the PR: see r 188 of PR.  There is of course no question that the metal handcuffs used belonged to a type of mechanical restraint.  The plaintiff’s complaint however is the repeated use of the device and not the device itself.

185. The plaintiff’s case is that there was no consent or any lawful justification for the handcuffing.  Since the plaintiff was handcuffed during the Detention Period, which has now been accepted by the defendant as unlawful, the plaintiff submits that this “statutory defence” obviously does not apply.  In other words, the plaintiff says that it is unlawful to handcuff a person in order to effect or assist in effecting a false imprisonment.  Therefore, the handcuffing of the plaintiff, while he was unlawfully detained, had no legal basis or justification and would constitute to battery at common law.

186. I agree with the plaintiff’s submission and find that the unlawful handcuffing of the plaintiff during his transfer between different police stations and detention centres amounted to trespass to person at common law.

(vi)   Whether the uses of the handcuffs were unconstitutional

187. The plaintiff submits that the handcuffing of the plaintiff, like the body/strip searches done on him, was in violation of his constitutional rights, namely, they were in breach of Article 28 of the Basic Law (“BL”), Article 3 of HKBOR, Article 6(1) of HKBOR and Article 14 of HKBOR.

188. In the recent cases of Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743 and GA v Director of Immigration (2014) 17 HKCFAR 60 §§47-51, the CFA laid down some principles on what might constitute to cruel, inhuman or degrading treatment or punishment (commonly known as “CIDTP”) under Art 3 of HKBOR.  In both cases, the CFA referred extensively to the House of Lords decision in R v Secretary of State for the Home Department ex parte Limbuela [2006] 1 AC 396. 

189. In Ubamaka, the CFA held that for a person alleging CIDTP, “he must meet two main requirements: he must establish (i) that the ill-treatment which he would face if expelled attains what has been called a “minimum level of severity” and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment”.  The CFA stated that it is clear that “a very high threshold must be surmounted to establish each of those requirements.”: See Ubamaka, supra at §172. 

190. Citing Lord Hope of Craighead in Limbuela, who in turn cited decisions of the Strasbourg Court, the CFA described what was required to meet the “minimum level of severity”, pointing out that it generally involves bodily injury or intensive physical or mental suffering and that its assessment is ultimately a matter of judgment: See Ubamaka, supra at §173. 

191. In Borough v Australia (1184/03, 13 March 2006), the United Nations Human Rights Committee (“UNHRC”) stated that “(I)nhuman treatment must attain a minimum level of severity to come within the scope of article 10 of [the ICCPR].  The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of victim.”: §9.2 of Judgment.

192. In light of my finding on fact on this issue, I agree with the defendant that the plaintiff’s case on his handcuffing has not met the high threshold laid down by the CFA.  I do not agree that the handcuffing, which was extremely unlikely to have been seen by anybody other than the ImmD staff and his fellow detainees, would affect his “feelings and mind” to the extent as the plaintiff alleges.  I do not consider that there was any breach of his constitutional rights and that the uses of the handcuffs in the circumstances as found above have violated Article 10.1 of the ICCPR / Article 6(1) of the HKBOR and Article 39 of the BL.

193. I shall discuss what would be the appropriate amount under the heading of damages below.   

Issue 3: Body/strip searches

194. Again, 2 issues will have to be decided under this head as per the Agreed Issues.  They are:

(1)   whether the body/strip searches against the plaintiff amounted to trespass to the person at common law; and

(2)   whether the body/strip searches were unconstitutional.

(i)    The plaintiff’s complaints

195. The plaintiff’s case on body/strip searches is that he is not complaining about the first time when he was searched by the police during his arrest on 4 October 2006.  He considers that was necessary for security reason.  His complaint is that from 8 October 2006 to 25 October 2006, when he was detained at the 1/F of CIC during the day and at the various police stations for overnight detention, he was searched both in the morning and in the evening.  He also complains about the subsequent body/strip searches at the various detention centres run by the ImmD and/or CSD.

196. There is also a dispute as to what type of searches had been conducted by the police officers and the immigration officers on the plaintiff.  The plaintiff alleges that all the body searches conducted on him during the time when he was detained at the 1/F of CIC (the searches allegedly all took place at the various police stations) were strip searches, ie all his clothing, included most of the time his underwear, were removed from him before the searches were carried out. 

197. In his main witness statement, the content of which has been adopted as evidence-in-chief, the plaintiff describes the searches in detail.  During the period when he was detained at the 1/F of CIC, the plaintiff claims that when the immigration officers arrived at the police stations in the morning to take him back to the 1/F of CIC, they would conduct body searches on him while at the police stations.  He claims that sometimes the search was conducted inside the cell while sometimes was conducted at the corner of the office.  He claims that normally two detainees would be asked to stand together with all the clothes including underwear to be taken off.  The clothes would then be placed on the floor where the immigration officers would pick them up and search them.  After the plaintiff and his co-detainees put back the clothes on, the immigration officers would then put handcuffs on their wrists. 

198. When he was transferred back to the police stations in the evening, usually at around 8:00 pm after the immigration officers had checked which police stations would be available for the night, he had to take off his clothes so that body search could be conducted on him again.  This time it was done by the police officers.  He claims that sometimes this was done individually and sometimes with 2 persons in the same room.  He says different police stations would have different practice.

199. The plaintiff in particular mentioned in his witness statement that while at the Yuen Long Police Station, he was searched at the same time with 10 other detainees.  They were ordered to stand in line and take off their clothes including their underwear at the same time.  His request to be searched alone due to his religion was allegedly being ignored.  They were ordered to sit down and stand up and to repeat the action several times.  They were then ordered to put both hands on the table to do push up for checking.

200. When he was transferred to stay in MTKDC on 25 October 2006, the plaintiff alleges that he was strip searched again.  He was ordered to take a shower before the search. After the shower, they were being strip searched by the immigration officers. It was done two by two and he could see other detainee being strip-searched at the same time as him.  He was asked by the officer to take off all his clothes, to turn around and to turn his head left or right for checking.  The officer allegedly also ordered him to sit on the floor and stand up, and to repeat it several times.  He says that eventhough they were all males, he felt embarrassed and humiliated.

201. On one occasion, when the ImmD brought him back to the CIC for interview, body search was conducted on him again after he was transferred back to MTKDC.  He says that such body search was totally unnecessary as he had always been under the supervision of the immigration officers. 

202. In his oral evidence, the plaintiff filled in more details regarding the searches that had not been previously mentioned in his witness statements.

203. For example, on his first search when he arrived the 1/F of CIC on 8 October 2006, the plaintiff says that he was taken inside a room where he was asked to take off all his clothes, including his pants, shirt, underwear, shoes and socks.  He was asked to put up both of his hands and placed his fingers together at the back of his head as he has demonstrated in court.  He was then asked to sit down and stand up.  He was searched by hands on his whole body, including the front and back.  His clothes were searched by the officers by squeezing them from top to bottom.  He thinks there were 3 officers involved in the search but he could not remember the exact number, although he thinks there were a least 2 officers present.  They were all wearing gloves.  He says it was at strip search and the officers had touched him.  He was alone in the room when he was searched by the officers.  In cross-examination, he agreed that the search was conducted inside a windowless room where nobody from outside could see him. 

204. In respect of the searches conducted at the various police stations, the plaintiff claims that on each occasion when he was brought to the station, he would be searched by the police officers.  He was not told why they had wanted to search him.  He accepts however that there were occasions when he was not touched eventhough they all involved strip searches.  However, he was not sure in how many stations this had happened, ie when he was not touched while being strip-searched.

205. Out of the 16 times when he was searched at the police stations, he estimates that at least on 10 occasions he was touched while only on 5-6 occasions when he was not. Under cross-examination, on at least 10 out of 16 occasions, he was asked by the police officers to take off his clothes completely and he had to sit down and stand up.  On the other 5-6 occasions, he was asked to take off his pants and shirts and they touched his body with their hands.  He did not agree with the suggestion that he was not touched on his bear skin by the police officers.  But he was allowed to keep his underwear on during those occasions. He claims that the police officers were wearing their gloves when they searched him.  He cannot remember the number of officers involved in the searches but believed to be 2.

206. The plaintiff gave a particular unpleasant experience he encountered in the Yuen Long Police Station in his evidence-in-chief.  Not only he was asked to take off all his clothes, he was touched by the police officers on his whole body.  He demonstrated this in court by showing that he was touched under his armpits and on his upper thighs.  He confirmed that this was all done while he was naked. 

207. For the occasion on 25 October 2006 when he was brought to MTKDC for detention, he added in his oral evidence that he was not told why they had wanted to search him again.  He confirms that not only it was a strip search involved the taking off of his underwear, it also involved with him being touched by the officers.  Under cross-examination, he admitted that he was searched while in a guard room although he was not sure whether the door was closed during the search. On this occasion, he alleges that he was asked to remove 2-3 pieces of clothing before the search.  He was first returned his underwear and then his shirt and his pants. He claims also that his palms and his sole would be searched for concealed items. 

208. A similar strip search was done while he was at MTKDC on 13 November 2006.  It involved taking off of all his clothing including underwear.  He was touched and asked to sit down and stand up.  He disagrees with the suggestion under cross-examination that the search only involved with turning of his collar but he agrees that after removal of his clothing, the immigration officers would check the pockets.  He further disagrees that the search involved officers patting down from his collar down to the rim of his pants only. 

209. For the search done on 17 November 2006 at the 5/F of CIC managed by the CSD (which was not mentioned in his witness statements), the plaintiff claims that it was also a strip search.  He was not told why they had wanted to search him.  He was asked to take off all his items of clothing including his underwear.  He claims that he was touched again by the officers during the search.  However, on this occasion, he agrees that while he was searched inside a room, the sliding doors were not closed.  He also says that there was another person being searched at the same time so the other person could see him.  

(ii)    The defendant’s case on body/strip searches

210. The defendant’s case on this issue is mainly contained in the frontline officers’ witness statements and also has been summarized at §§9 & 10 of the agreed facts[22].

211. In essence, the defendant’s case is that those searches were both necessary and justified in the circumstances.  They were done with due regard to the decency and self-respect to the plaintiff.  Further, there is no record indicating that the plaintiff had made any complaint in relation to the body search done on him. Also, the defendant denies that the body search was unconstitutional as alleged by the plaintiff or at all.

212. There is no dispute that the immigration officers had conducted a search on the plaintiff at his initial admission to the 1/F of CIC.  The plaintiff agrees that the search took place inside a room with no window and people outside the room could not see what happened inside.  The only material dispute in regard to this search is whether it involved with removal of all his clothing and whether the officers had physically touched him during this search.  CIO Wong in his witness statement describes how, on 8 October 2006, upon the plaintiff’s first admission to the 1/F of CIC, a body search was conducted on him pursuant to section 56(1)(g) of the IO.  CIO Wong claims that no further body search was conducted on the plaintiff during his detention at the Reception Office, ie the 1/F of CIC.  CIO Wong says that in 2006, upon each transfer from ImmD to different police stations, the police would have conducted searches on the detainees upon their admission to the stations for overnight detention.  As the public would not visit the detainees during overnight detention, he believes that they would not be searched upon the return to 1/F of CIC unless the escorting officers had reasons to believe that the detainees were in possession of any unauthorized articles like cigarettes.  He claims that should body searches be conducted (which is not considered as part of the routine) record would have to be entered in the search register of occurrence book properly.  According to him, no such record of the plaintiff being searched upon their return to the 1/F of CIC after his overnight detention at the police stations could be found.

213. CIO Wong was never cross-examined on the type of search done on the detainees like the plaintiff upon first admission to the 1/F of CIC.  He was merely asked if there was any written record that he was searched.  CIO Wong accepted that there was no such record but he believes that the plaintiff was searched according to the usual practice and in accordance with the guidelines. 

214. According to CIO Wong, there was a search register situated at the 1/F of CIC in 2006.  However, the register would only state who was searched, their information, when they were searched and who searched them.  The manner in which the detainees were searched ie whether it was a strip or pat-down search would not be written down in the record.  Such register was also an unofficial record that would not be kept in accordance with the usual rules on official records.  CIO Wong believes that it would be kept for less than one year but he accepts that he does not know how they would be dealt with.

215. According to CIO Wong, the purpose of the search on the initial admission was to make sure that the detainees did not have danger items on them and to categorize and pack their belongings accordingly.  Thereafter, when the ImmD sent them to different police stations, they would not have the opportunity to come into contact with outside people, so there would be no need for conducting any further body searches again.  He added that should his colleagues find anything suspicious, they would seek directions from their superiors to see if any searches would be required.  If they do so, such searches would be recorded down in the search book of the occurrence book.  As they would be detained with other ImmD detainees, CIO Wong considers that there was no reason why the plaintiff had to be searched again.  Another reason relied on by CIO Wong that each body/strip search would take somewhere between 3 to 5 minutes and two immigration officers would have to be deployed for such purpose.  He further added that the police would not even allow them to conduct the searches at the police stations as it would be “their territory”.

216. Under cross-examination, CIO Wong also added that the searches would be brief when compared with the searches done by the police because the time they spent at the detention cells at the police stations would be much longer in comparison with the time of their transit from CIC to the police stations.  From the 1/F of CIC to the police stations, CIO Wong estimated that the most it would take only 1 to 1½ hour.  Therefore, the risk of the detainees of obtaining any illegal items on them during such journey would be negligible.  And after their overnight stay at the police stations and before they would be sent back to 1/F of CIC, CIO Wong believes that the detainees would not be searched again.  One reason is that they simply would not have the manpower to do so.

217. Another reason given by CIO Wong is that during the 8 to 10 hours detention at the CIC, the immigration officers would closely monitor them while they were inside the detention cells.  They were also closed circuit televisions where the officers would monitor the movements of the detainees.  Therefore, there was no risk of them of ever coming into contact with any illegal items.  CIO Wong added that it is officers suspected that the detainees may be hiding something, they would have to seek instruction from their superiors to see they could carry out such searches or not.  They also have to borrow manpower from other sections of the ImmD to conduct such searches.  He is quite adamant that his frontline colleagues would not carry out such body searches on the detainees just because they had been detained for a long time in police stations.  He also considers that there was no possibility that his frontline colleagues would search the detainees at the corner of a police station even though if they consider that there would be such a need.  In such circumstances, he considers that his colleagues would simply refer the matter to the police and let the police to conduct the search.

218. CIO Wong also refuted the suggestion made by the plaintiff’s counsel that some of his colleagues might conduct strip searches on the detainees like the plaintiff “out of precaution”.  His reason simply is that there are rules governing under what circumstance his officers would conduct such searches.  As there are in disciplinary forces, they could not do whatever they like.  He also does not believe that the police would let his colleagues to do so in the police stations.  When being challenged that he would not know whether body searches actually were conducted at the police stations or not, CIO Wong pointed out that his frontline colleagues did this, they would have to inform him and he would have learned about this from them.  Most importantly, he does not believe that they had done so. 

219. Significantly, CIO Wong also mentioned that in his 18 years working from the rank of immigration officer to chief immigration officer, he had never come across of any detainees “refused to be searched” by him.  He also never come across any cases where his subordinates reporting to him that any of the detainees refused to be searched by them. 

220. In relation to the searches done by the police at the police stations, the defendant’s case is that only pat-down searches would be done on the detainees for overnight detention referred to by the ImmD.  Save for the testimony of one particular police officer, namely, PC Lo Chi Wai (DW5) (“PC Lo”) from Lantau South Police Station, all the rest of the frontline officers from other stations testified that only pat-down searches were done on detainees sent for overnight detention by the ImmD.  I shall comment on PC Lo’s evidence further below.  The other officers’ evidence that only pat-down searches were done was supported by the senior officers from the police, including:-

(1)   SPT Hobson who states that when the detainees had been in some form of custody by other agencies, a lesser degree of search would be acceptable.  This would be at the discretion of the DO and hence detainees like the plaintiff would not be necessary be subjected to full strip searches.  He stresses however that such searches would only be conducted if the circumstances warranted it.  In each case, it will be for the DO to decide.

(2)   CI Wong (DW3) thinks that most officers will only do a pat-down search on the detainees referred to by the ImmD.  His reason being that the police has been taught to consider factors like the particular circumstances of the individual, the background of the arrest, whether the detainees had been searched by the other departments.  Therefore, normally, the frontline officers would only do a pat-down search in order to satisfy themselves that there would be no weapon or illegal articles to assist their escape.  For persons who are referred to the police by the ImmD, he would assume that they would have been thoroughly searched by the ImmD staff before arriving the police stations.  Although the police would still search such detainees, he believes that the scope of the search may vary.  CI Wong pointed out that anybody come into the custody of the police and placed in the police cells must be searched.  The reason being that the Commissioner has to satisfy that he would discharge his statutory functions and duty of care owed towards persons under detention.  This is also done for the protection of any other persons who might come into contact of the detainees including the officers.

(3)   Both SPT Hobson and CI Wong agreed that a search must be done before a detainee is taken into police custody or put into the police detention cell.  It is only the scope of the search may vary according to the circumstances.

(4)   SI Tong when asked during cross-examination in the context of whether the police would allow immigration officers to conduct searches on the detainees at various police stations, he says that it was not necessary as a simple pat-down search had already been done on the detainees before they entered into the police detention cells.

221. In respect of search done by the ImmD at MTKDC, the defendant agrees that the search done on him on 25 October 2006 was a search involving the removal of all clothing.  However, the defendant disagrees that in relation to his first search at MTKDC, the plaintiff would be requested to make any poses like sitting down and standing up during the search as alleged.  Nor the plaintiff was searched in the presence of other detainees.  The defendant also disagrees that the detainees would be asked to take a shower first before the search.

222. The defendant also claims that with the other two searches (one on 27 October 2006 and the other one on 13 November 2006), they were of simple pat-down searches without removal of any clothing for inspection.  This is contrast to the plaintiff’s claim that on 13 November 2006, the search involved the removal of all his clothing where he was touched and asked to sit down and stand up.  The plaintiff cannot however remember the details of the search done on him on 27 October 2006.

223. It is important to note that SIA Lee (DW19) was not asked or the plaintiff’s version of the alleged search done on him at the MTKDC was put to him. Instead, as SIA Lee explained in his witness statement, only a “body search” was done on 13 November 2006, ie a search without removing of clothing.  He stated under cross-examination that by “body search”, he meant it only involved with the lifting of the collar and turning out of the pockets.  He was never asked or question being to him as to whether the search would have been a strip search as claimed by the plaintiff.

224. In relation of search done by the CSD officers at 1/F of CIC before he was taken into the custody at the 5/F of CIC, it is not disputed that there was a search involving removal of all clothing.  The only disagreement is whether the plaintiff was touched while being searched.  According to PO Wong, the detainees would only be asked to take off the clothes and his body would be checked by sight by the officers.  Of course, the mention of touching on his body while being searched was never a matter mentioned in any of the plaintiff witness statements.  As such, the “embellishment”, according to the defendant, only came during the plaintiff’s examination-in-chief.   What is significant to note however is that PO Wong was never asked or put to him whether the plaintiff would had been touched during the search nor was he challenged as to how the search was being conducted on the plaintiff.

(iii)   Findings on body/strip searches

225. On this issue, insofar the searches conducted by the police officers and immigration officers at the police stations are concerned, I prefer the evidence of the plaintiff to the defendant witnesses’ evidence.

226. On the whole, I find the plaintiff was consistent throughout in his allegations that he was strip searched in the police stations by the police officers when he arrived the stations for overnight detention and by the immigration officers when he was collected for the transfer back to the 1/F of CIC in the morning during the Detention Period.  I accept his evidence on this.

227. While the evidence of the senior officers from the ImmD and police are helpful in giving the court a good understanding of what was their general policy on body/strip searches, I do not think it necessary reflects the actual situation “on the ground”.  In this respect, I accept PC Lo’s (DW5) evidence that every person who is admitted into a police detention cell for overnight detention will be subjected to a strip search.  PC Lo is an experienced officer who had over 30 years of experience of service in the police force.  He had served in many different stations and therefore had worked in many different detention cells during his long police career.  His evidence is that in all the stations he served, it was an invariable practice that all detainees, including illegal immigrants referred to by the ImmD, would be strip searched before they were admitted into the detention cells.  This was done in accordance with the Police General Notice 49-10.  I accept his evidence when he said that there would be no exception to the rule even if the detainees might be “guests” or “arrested persons” referred to by the ImmD.  I note that PC Lo was not re-examined at all in this aspect of his case.

228. Another problem with the defendant’s case is that, according to the most senior police officer called by the defendant, namely SPT Hobson, there should be written records which would have recorded details of the searches conducted on the plaintiff each time when he was admitted to a police station for overnight detention.  SPT Hobson referred that as “the custody search form”, similar to the one shown to him in the trial bundle, during cross-examination in his evidence.  It is not clear from SPT Hobson’s evidence however whether such form was used back in 2006.  He was not examined or re-examined on this.  

229. PC Ng Hei-Wai (DW6) (“PC Ng”) confirmed the existence of such a form back in 2006 and would be used for recording searches done on persons arrested by the police only. However, his understanding is that for cases referred to by the ImmD for detention, the detainees would be searched but such form would not be filled in.  Ms Wong interjected during PC Ng’s evidence that such custody search form did not come into existence until 2008.  However, this certainly was not clear from SPT Hobson or PC Ng’s evidence.  They were never re-examined on this.  The belated effort to patch up this part of the evidence came from the defendant’s last police witness Station Sergeant Wong Kwok Hung (DW18) (“St Sgt Wong”).  He stated that the particular custody search form mentioned by SPT Hobson was only used by the police starting in around 2008.  He knew this because he is now an instructor at the police training school and therefore is familiar with such matters. 

230. With respect, I doubt whether St Sgt Wong’s evidence could be safely relied on as it is clear that it was a prepared answer given by him with the view to fill in the gap created by SPT Hobson’s evidence.  Further, it still does not answer the question of where the search records mentioned by SPT Hobson have gone and why they were not produced in court during the trial.  In my judgment, if such written records were produced it would answer the crucial issue of whether the plaintiff was strip searched by the police each time when he was transferred to the police stations for overnight detention.   

231. I find it difficult to believe that the police would not have any written record at all to show what types of searches were conducted on the detainees who came into the detention of the police, whether they were persons arrested by the police or referred to by other laws enforcement agencies like the ImmD.  In my opinion, the issue here is not whether the searches of the detainees referred by the ImmD or by the police were recorded in a particular form (whether it is called the “custody search form” as mentioned by SPT Hobson or something else), the real issue is why those records, which should have recorded down the searches details as mentioned by SPT Hobson, were never produced by the defendant in this case.

232. The missing Form ID 896 discussed above would also reveal whether the plaintiff was subjected to full body/strip searches or not during the time of his detention at MTKDC[23]. Unfortunately, it was not until day 6 of the trial that CIO Wong mentioned the existence of this document for the first time.  CIO Wong agrees that the ID 896 would have recorded virtually every detained activity of the plaintiff during his detention by the ImmD at MTKDC, including whether he was subjected to any body/strip searches.  I agree with the plaintiff’s counsel that it was rather misleading for the witnesses from the ImmD to say that they had “no record” to show that the plaintiff was subjected to strip searches when in fact the most important documentary record which should have been in their custody went missing without satisfactory explanation.  Further, it is clear from CIO Wong’s answer under cross-examination that the ImmD did not keep any record to state whether a particular detainee had been strip searched by the immigration officers or not.

233. The reasonable inferences I think one can draw from the missing documents, whether it is the police’s custody search form or the ImmD’s ID 896, are that they have either been destroyed inadvertently or intentionally.  In this regard, I echo what Megarry J in Rockwell Machone Tool Co Ltd [1968] 1 WLR 693 at 694C-D said concerning the duty of the parties to preserve documents:-

“… it seems to me necessary for solicitors to take positive steps to ensure that their clients appreciate at an early stage of the litigation, promptly after writ issued, not only the duty of discovery and its width but also the importance of not destroying documents which might by possibility have to be disclosed. This burden extends, in my judgment, to taking steps to ensure that in any corporate organization knowledge of this burden is passed on to any who may be affected by it.”

234. I am of the view that such duty applies equally to both government departments as well as any corporate organization.  Given the fact that the plaintiff’s solicitors had made the request as far back as in April/May 2011 for the defendant to produce such records, including specifically the ID 896, there is in my view no reason why such important documents could not have been preserved and disclosed to the plaintiff at an early stage of the proceedings.   

235. I also do not accept CIO Wong’s evidence that there was “no record” of any body/strip search ever conducted on the plaintiff by the ImmD. It was only during the trial it has become clear that the record that CIO Wong had relied on to say there was no search being done on the plaintiff was in fact based on a survey done by the ImmD in 2011. In turn, the survey itself was based on the occurrence book records to see if in fact searches had been conducted on the detainees.  And the occurrence books had long been destroyed.  He states that in 2011 when he had the chance to look at the search register and the occurrence book record in relation to the plaintiff, no such record could be found.  By relying on the result of the survey that no such searches were done on the detainees, he comes to conclusion that there was “no record” to show such searches had ever been done on the plaintiff. 

236. To me, this is a rather indirect way to say that they had not kept any proper record on the plaintiff as to whether he had been searched by the officers from the ImmD or not.  In my view, this is not the same as saying that there was “no record” to show the plaintiff had never been body searched by the ImmD staff at all.  I have no difficult to reject this part of CIO Wong’s evidence.

237. While I note the plaintiff’s position regarding to the searches has changed from that originally stated in his witness statements (mainly regarding the details of how the searches were conducted, such as whether the searches involved the removal of underwear or touching of his body), I accept his evidence that all the searches done at the police stations, whether they were conducted by the police or the ImmD officers:-

(a)   involved the removal of clothing (most of the time including the removal of underwear);

(b)   involving the touching of body by the officers in areas like the front and back of his body while he was naked (with the officers wearing their gloves) on some of the occasions;

(c)   the officers had failed to explain to him the reasons why they needed to conduct the search on him; and

(d)   sometimes it involved with one or more detainees being searched together in full view of each other at the same time.

238. I further accept that during the 16 times or so when he was searched by the police at the police stations, approximately on 10 occasions he was asked to take off all his clothes and he had to perform sitting up and standing down while naked.  I also accept that on the other 5 to 6 occasions, the police asked him to take off his pants and shirt (but not his underwear) and touched his body.

239. I also accept that there was a particular unpleasant experience the plaintiff had encountered in the Yuen Long Police Station where he was searched together with around 10 other detainees at the same time.  I believe the plaintiff when he told the court that they had to line up and take off all their clothes including underwear at the same time.  As the record has shown that he was detained in the same cell with 9 other detainees at that station, I am not surprised that they were being searched together.  Despite his protest and requested to be searched alone, I believe that the police had ignored his request.  I also believe that the plaintiff was ordered to sit down and stand up for several times on that occasion.  I also believe that he was ordered to put his hands on the table to do push up for checking.  I further accept that the plaintiff had been touched under the armpits and on his upper thighs by the police officers on that occasion.

240. I note that none of the police witnesses called by the defendant to give evidence in this case was able to say to what extent body search was conducted on the plaintiff at the various police stations.  Similarly, for the searches conducted by the immigration officers before the plaintiff was taken back from the police stations to the 1/F of CIC, none of the officers called had the experience of escorting detainees (including the plaintiff) from the police stations to 1/F of CIC in 2006.  There is simply no explanation as to why the immigration officers involved with the transporting of the plaintiff to and from the police stations between 8 and 25 October 2006 was not called.  Without their evidence, it only leaves the plaintiff’s evidence on the manner and extent of the body searches for the court to consider.

241. One reason put up by the defendant that strip searches by the immigration officers was unlikely as it would take a lot of time and effort and they simply did not have the manpower to do so.  I do not accept this for the following reasons.  First, no frontline immigration officers has been called to give evidence to support this.  Second, I do not see ordering detainees to stand side by side at a police cell or at a corner of the police station for a strip search would necessary take that much longer than searching them one by one with their clothes on.  In any event, there is no evidence to suggest that the immigration officers did not have the time to do so.  Third, if the ImmD was concerned enough to handcuff the detainees on the long journeys back to the CIC, I do not see why it would not be concerned enough to make sure that the detainees would not be carry out any offensive items.  And there seems to be no better way than carrying out a strip search to ensure this.   

242. Further, as the searches took place at the police stations rather than at the 1/F of CIC, I think it also explains why no entry was made in the “search register or occurrence book” which the defendant relies on as evidence that no such search was ever conducted on the plaintiff by the immigration officers.  This in my view does not help to advance the defendant’s case.

243. Judging from the fact that the plaintiff has always been either under the detention of the ImmD or the police, I simply do not see why a strip search was necessary every time the plaintiff was transferred from the 1/F of CIC to the police stations.  As he had been thoroughly searched when first admitted there on 8 October 2006 and was under the supervision of the ImmD during the day, there was in my view simply no strong reason why a strip search when he arrived the police station was necessary.  Further, I do not see why the police could not do a pat-down search, as contrast to a full body/strip search, each time when he was sent to the police stations for overnight detention.  This is particularly so in view of the fact that he was in the detention of another law enforcement agency, namely the ImmD during the day already.  Similarly, I do not see the need of a full strip search by the immigration officers at the police stations when they collected the plaintiff and his fellow detainees in the morning for the purpose of transfer them back to the 1/F of CIC.  

244. In my view, the repeated strip searches done on the plaintiff would amount to degrading and inhumane treatments.  I agree that the repeated taking off his clothes in front of others was not only undignified, it amounts to a mental torture to the plaintiff. I find in particular the incident at the Yuen Long Police Station was distasteful in which the plaintiff was required to take off all his clothes (including underwear) at the same time as 10 other detainees and were searched by standing stark naked in a straight line together.   

245. I believe the plaintiff when he said that eventhough he had cooperated with the officials in the sense that he did not “misbehavior with them” when the searches were done on him, he did protest against such treatment.  I believe that on some of the occasions (not necessary all of them), he did request that his clothes would not be removed.  I accept that such request was however only done verbally and was never put into writing.  I further accept that his request had been ignored by the officers who conducted the searches.

246. I also find it was unnecessary for the officers to touch the plaintiff with their hands (even with their gloves on) during the searches once all his clothing were removed.  The reason being that once the clothes were removed (most of the time including his underwear and shoes and socks), the officers would able to see with their eyes of whether he would be carrying any contrabands as the plaintiff would be stark naked.  Even if he was wearing his underwear, all that the officers needed to do was to lift the band of the underwear to check if he was carrying any illegal items.  In my view, it was simply not necessary for the officers to touch him under his armpits or the front and back of his body during the search.  Further, there was also no need to ask the plaintiff and his fellow detainees to do any poses like sitting down and standing up or leaning against the table.  To do so would only aggravate the sense of humiliation the detainees must feel during such searches.

247. Although CIO Wong claims that the searches did not involve the removal of clothing but only patting down from collar to the bottom of his trousers, the problem I find with his evidence, as with the evidence of the other senior officers from the ImmD or police, is that they are not supported by any documentary evidence.  CIO Wong himself mentioned about the search register in his evidence but that was not produced for the reasons stated by him.  As said, his reliance on a survey conducted in 2011 as evidence of “no record” of strip searches done on the plaintiff is clearly unsatisfactory.  Further, the defendant could have produced the ID 896 that would reveal details of the searches done by the officers while he was detained at MTKDC.  However, that important document was found missing under unexplained circumstances which really undermines the defendant’s case.  While CIO Wong does not believe that his frontline officers would conduct strip searches on detainees like the plaintiff at the police stations, I prefer to think otherwise.  Given the plaintiff’s consistent and adamant accounts over the strip searches, which in my view was not shaken under vigorous cross-examination by Ms Wong, I find that, save on those occasions when the strip searches were deemed to be necessary and justified (including the occasions when he was first arrested by the police, first admitted to the 1/F of CIC, MTKDC and 5/F of CIC), the rest of the time, ie while he was under the detention at the police cells, such strip searches were totally unjustified and unnecessary.  Further, I find that on some of those occasions when the searches were done in the cells or at a corner of a police station, the plaintiff was not afforded any privacy when he was strip searched in front of other detainees.

248. I accept that it was proper for the police to conduct a thorough strip search on him when he was first arrested by the police and detained at Lantau South Police Station for security reason, ie to make sure that he and his fellow detainees would not have any illicit items on them.  I further accept CIO Wong’s evidence that the ImmD was entitled to conduct a thorough body search on him during his initial admission to the 1/F of CIC on 8 October 2006.  I also accept SPT Hobson and CI Wong’s evidence that a search must be done before a detainee is taken into police’s custody or put into a police detention cell.  It is for the safety of the person detained and the fellow detainees and was done in accordance with the police guidelines.  I also accept that the ImmD was entitled to conduct a body/strip search on the plaintiff when he was transferred from one facility to another eg from the 1/F of CIC to MTKDC on 25 October 2006.  Similarly, I accept that there was a need for the CSD officers to conduct a thorough body/strip search on the plaintiff when he was transferred to the 5/F of CIC for detention on 17 November 2006. 

249. For the searches conducted by the immigration officers at the 1/F of CIC and MTKDC and by the CSD officers before he was transferred to 5/F of CIC, I accept that they were done in the manner as described by the defendant’s witnesses.  I do not find them to be objectionable.  Nor do I find them to be unnecessary or unjustified as claimed by the plaintiff.

250. However, what I find to be objectionable is the extent of the search done on the plaintiff during the period when he was detained during the day at 1/F of CIC and during the night at the detention cells at the various police stations, ie from 8 to 25 October 2006.  I find the strip searches done on him during this period were neither justified nor necessary. 

Strip searches amounted to trespass to person

251. In the aforesaid premises, I have no hesitation to find that the strip searches done against the plaintiff during the period when he was detained at the various police stations amounted to trespass to the person at common law.

Whether the strip searches amount to any constitutional breach

252. The plaintiff claims that the body/strip searches against the plaintiff while he was unlawfully detained were unconstitutional in that such body/strip searches violated:-

(i)  Article 28 of the BL read together with Article 41 of BL (which guarantees the right not to be subjected to arbitrary or unlawful search of the body);

(ii)   Article 3 of the HKBOR which guarantees the right not to be subjected to cruel, inhuman or degrading treatment;

(iii)  Article 6(1) of the HKBOR (which guarantees the right not to be treated with humanity and with respect for dignity); and/or

(iv)  Article 14 of the HKBOR (which guarantees the right to privacy).

253. It is common ground that the right not to be subjected to cruel, inhuman or degrading treatment guaranteed by Article 3 of the HKBOR is absolute in that no infringement is permitted and no question of proportionality arises.

254. As regards other constitutionally protected fundamental rights, it is well established that any restriction on them can only be justified on a proportionality analysis.  The burden is on the authority to justify any restriction: See Leung Kwok Hung v Chief Executive of the Hong Kong Special Administrative Region (unreported, HCAL 107/2005, 9 February 2006) per Hartmann J (as he then was) at §114. 

255. Based on my findings above, I am of the view that the unlawful strip searches conducted on the plaintiff by the defendant at the police stations:-

(1)   interfered with the plaintiff’s right not be subjected to arbitrary or unlawful search of the body, which failed to satisfy the proportionality test, contrary to Article 28 of the BL;

(2)   constituted to cruel, inhuman or degrading treatment, contrary to Article 3 of the HKBOR;

(3)   interfered with the plaintiff’s right to be treated with humanity and with respect for dignity, which failed to satisfy the proportionality test, contrary to Article 6(1) of the HKBOR; and

(4)   interfered with the plaintiff’s right to privacy, which failed to satisfy the proportionality test, contrary to Article 14 of the HKBOR.

256. I shall discuss the appropriate amount of compensation resulting from the unlawful strip searches under the heading of damages below.

Issue 4: Damages for unlawful detention, handcuffing and strip searches

(i)    Damages for unlawful detention

257. In respect of damages for the unlawful detention, the learned author of McGregor on Damages (19^th edn Sweet & Maxwell, London 2014) explains at §40-012:-

“Generally it is not a pecuniary loss but a loss of dignity and the like that is in issue, and has been left much to the jury’s or judge’s discretion. The principal heads of damage are the injury to liberty, i.e. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status and injury to reputation. This will all be included in the general damages which are usually awarded in these cases, with no breakdown.”

258. Thegeneral principles for consideration of (a) ordinary damages; (b) aggravated damages; and (c) exemplary damages are set out in the UK CA case of Thompson v Commissioner of Police of the Metropolis [1998] QB 498 and the local Boat 101 case, Pham Van Ngo v AG, unreported, HCA 4895/1990, 30 July 1993, which were considered and elaborated in A Cheung J’s (as he then was) judgment in A v Director of Immigration (False Imprisonment: Damages) [2009] 3 HKLRD 44 (CFI).

259. For ordinary damages, both pecuniary and non-pecuniary damages can be claimed.  As the plaintiff produces no evidence on his pecuniary loss in this case, we are concerned with his non-pecuniary loss during the Detention Period only. 

260. For aggravated damages, it will be awarded where there are aggravating features about the case that would result in a plaintiff not receiving sufficient compensation for the injury suffered if the award is restricted to ordinary damages only.  Aggravating features can include humiliating circumstances at the time of arrest or prosecution which shows that the defendant had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution.  The court may also take into account the defendant’s motives, conduct and manner of committing the tort and, where these have aggravated the plaintiff’s damages by injuring his proper feelings or dignity and pride, aggravated damages may be awarded.  On the other hand, the fact that the defendant has a reasonable and probable cause to do what he did is clearly a mitigating factor.

261. For exemplary damages, it is awarded with the object of punishing the defendant exceptionally where there has been conduct, including oppressive or arbitrary behavior, by the defendant which deserves the exceptional remedy of exemplary damages.  If aggravated damages is awarded, it will have already provided compensation for injury suffered by the plaintiff as a result of the oppressive and insulting behavior of the defendant and a measure of the punishment from the defendant’s point of view.  Exemplary damages should only be awarded if the compensation awarded by way of basic and aggravated damages are in the circumstances an inadequate punishment for the defendant, whose conduct discloses malice, fraud, cruelty, insolence or the like.

262. It has been held that a global approach is to be preferred to a rateable approach and damages should be awarded by reference to a progressively reducing scale.  Further, daily rates, proportions and straight-line computations had all been rejected by the court: See A Cheung J (as he then was) in A v Director of Immigration, supra. 

263. In the re-re-amended statement of claim, the plaintiff claims that he was “deprived of his liberty, damage to reputation, humiliation, shock, injury to feelings” in respect of the unlawful detention and claims ordinary damages for them[24].

264. Further, in the re-re-amended statement of claim, the plaintiff claims that “the said conduct” was “arbitrary, oppressive and/or unconstitutional” and the plaintiff claims exemplary and/or aggravated damages based on the matters particularized in “paragraphs 9,11 and 21 above and paragraph 23 below”[25]. The detention conditions relied on by the plaintiff for claiming the exemplary and/or aggravated damages are particularized in §23 of the re-re-amended statement of claim of which I have already examined in detail above.

265. There is no claim for pecuniary or special damages made by the plaintiff in this case.  Thus, the court only needs to consider the non-pecuniary damages. 

266. A claim for ordinary non-pecuniary damages involved 2 elements: first, compensation for loss of liberty; and second, damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty: see A v Director of Immigration, supra at §53(3). 

267. On the first element, it is the loss of time considered primarily from a non-pecuniary viewpoint.  The quality of life or liberty that would have been enjoyed by a detainee during the period of unlawful detention is also relevant.  In this regard, Ms Wong has rightly accepted on behalf of the defendant that, in relation to the first element, the plaintiff is entitled to be awarded more than nominal damages for loss of liberty for the duration of the Detention Period that has been admitted to be unlawful, ie for around 3.5 months.

268. I agree with Ms Wong that one has to consider the “quality of liberty” of the plaintiff even if there was no unlawful detention.  In this case, the plaintiff was an illegal immigrant who was arrested by the police upon his illegal entry into Hong Kong; he had no fixed abode in Hong Kong; he did not have much money or any valuables in his possession upon arrest.  Even if the plaintiff had been released on his own recognizance after making the CAT claims, the plaintiff had no legal right to stay or live permanently or indefinitely in Hong Kong.  All these in my view are relevant matters that the court ought to take into consideration.

269. Insofar as the second element is concerned, this concerns compensation for damage to reputation, humiliation, shock, injury to feelings, etc. which result from the loss of liberty.  This is the part of the clam, to a substantial extent, be subjective and dependent on individuals and their particular circumstances. Or, generally speaking, what the victim’s quality or conditions of life had been prior to the detention, what his expectation had been, how he perceived his detention (including its lawfulness of otherwise), how his condition of detention, as subjectively experienced by him, compared with life outside if he had not been wrongfully detained and compared with the life prior to his detention.  All these are said to be relevant considerations that the court should take into account: see A v Director of Immigration, supra at §53(7).

270. The plaintiff in his evidence states that the appalling conditions of his detention amounted to a cruel, inhuman and degrading treatment.  Further, the routine use of handcuffs and strip searches in the presence of others were also humiliating. He claims that all these had greatly interfered with his privacy and dignity and he was quite distressed as a result as he had no idea when such treatments would end.  He also states under cross-examination that he felt depressed because he did not know when he would be released and why “they were mistreating me.”  As he kept on thinking of those things, ie his mistreatments during detention, they were affecting his “mind and heart”.

271. In reply to the questions asked by the court towards the end of his cross-examination, the plaintiff accepts that the authority would be entitled to detain him once he arrived Hong Kong illegally to seek refugee status.  He also knew that the authority would not put him in a hotel.  In his mind, he was expecting facilities like those he found in CIC (by that I understood him to mean the long term detention facilities situated on 5/F to 10/F of CIC).  While he knew that he might be detained for a lengthy period of time before he arrived here, I do not think he was expecting the conditions were as bad as those he found at the 1/F of CIC and at some of the police detention cells.  While the plaintiff was not diagnosed with clinical depression, I accept his evidence when he says that he felt depressed or distressed over the generally rather poor conditions of his detention while he was detained in the 1/F of CIC and the police cells. I think the same can be said of the situation at MTKDC.  The conditions were not improved until he was transferred to the long-term detention facilities at the 5/F of CIC.

272. I take note of the fact that the plaintiff, prior to his arrival in Hong Kong in April 2006, had a full-time job as a supervisor in a construction company; lived with his family in quite a large house in his home country; slept in a rather spacious bedroom in his family home and had never been imprisoned before.

273. I cannot agree with Ms Wong’s submission that there is not a shred of evidence regarding the plaintiff’s views and feelings over (a) the loss of liberty; and (b) how the living conditions in which he was accustomed to compared to the conditions in which he was detained.  To the contrary, I think there is evidence from the plaintiff of how the appalling conditions of the unlawful detention, particularly during the initial periods before he was transferred to the 5/F of CIC, have caused humiliation, shock and injury to his feelings.  However, I do agree with Ms Wong that there is no evidence to support how the unlawful detention has damaged his reputation as he has no family or friends here.  

274. Ms Wong has very helpfully supplied the court with a table of the damages awarded in A v Director of Immigration, supra and awarded by CFA / considered appropriate by the District Court in Ghulam Rbani for reference purposes: 

Applicant/Plaintiff	Length of Detention	Award
A	3 months	HK$80,000
AS	655 days[26] (about 21.5 months)	HK$150,000
F	634 days[27] (about 20.5 months)	HK$180,000
YA	156 days (about 5 months)	HK$100,000
Ghulam Rbani (District Court)	46 days(about 1.5 months)[28]	HK$30,000
Ghulam Rbani (CFA)	10 days[29]	HK$10,000

275. I further note that the detention period in Fardha Sulstyoningsih v Mak Oi Ling Karen, unreported, DCPI 575 of 2005 (4 April 2007, DDJ Anthony Kwok) was about 4 months which is similar in terms of length as the Detention Period in this case.  An award of $60,000 was made for both “compensatory and aggravated damages” for the false imprisonment in that case.

276. In A v Director of Immigration itself, A Cheung J (as he then was) referred to the case of 馬桂珍訴香港警務處長曾蔭培(unreported, HCA 3983/2011; 13 June 2003, Cheung J.) and made the comment that, for a very short period of false imprisonment, the award can be, relatively speaking, substantial, whilst for any further period of unlawful detention, the progressively reducing scale should be very steep. 

277. While I consider that the plaintiff is entitled to ordinary and aggravated damages for the unlawful detention due to the appalling conditions I have found above, I do not consider that this is a case where the plaintiff is entitled to exemplary damages under this head simply for the reason that the aggravated damages awarded would in my view have provided adequate compensation for injury suffered by the plaintiff.

278. Taking all the relevant circumstances into account, I consider a sum of HK$100,000 will be an appropriate award of damages (including ordinary and aggravated damages) for the 107 days of unlawful detention in this case.    

(ii)    Damages for unlawful handcuffing

279. Ms Wong has very fairly accepted on behalf of the defendant that, in light of the “tainting effect” of the unlawful detention under the Hardial Singh principles, the plaintiff is in principle entitled to damages for the searches conducted and/or the use of handcuffs on him.  The question really boils down to one of, in light of my finding on fact on this issue, how much should be awarded.  Or put in another way, whether nominal damages should be awarded as contended by the defendant. Or, alternatively, ordinary damages plus aggravated and/or exemplary damages should be awarded as contended by the plaintiff.  Further, whether constitutional damages should be awarded in addition to the damages claimed by the plaintiff.

280. The plaintiff’s claim for ordinary damages for unlawful handcuffing (as well as for body searching) has not been specifically pleaded although it has been generally averred in §25 of the re-re-amended statement of claim that he had suffered “loss and damage”. Further, in the prayer of the re-re-amended statement of claim, the plaintiff has specifically asked for ordinary, aggravated and/or exemplary damages.

281. In §13B of the re-re-amended reply, the plaintiff claims that the “use of handcuff and body search including strip search” are “unlawful and unconstitutional” and he is entitled for aggravated and/or exemplary damages as a result. 

282. The plaintiff further claims that the use of handcuffs on him as a matter of routine procedure were unlawful and unconstitutional in that:-

(1) Rule 67 of the PR and section 16 of the Immigration Service (Treatment of Detained Persons) Order, Cap.331C only confer a discretionary power as to the use of handcuff;

(2) The Director or the Commissioner or his agent(s) failed to consider the individual circumstances of each occasion if the use of handcuff on the plaintiff was necessary and proportionate; and

(3) On all the occasions when handcuff was used on the plaintiff, there was no certain and accessible grounds or procedures for such use.

283. On the issue of authority of using the handcuffs on the plaintiff and his fellow detainees, as I have found above, I accept the evidence of CIO Wong that the use of the handcuffs on the plaintiff was reasonable and necessary in the circumstances. Given the fact that 4 to 5 unarmed immigration officers had to escort a bus load of 45 to 50 detainees (or fewer officers for a mini-van load of detainees of 20 to 25 persons) and that at the time (ie prior to the CFA decision in Ghulam Rbani was handed down), the authority believed that it had legal authority to detain the plaintiff and his fellow detainees as illegal immigrants, I consider the use of handcuffs were reasonable and necessary to prevent the escape of the detainees from what the authority believed at the time as legal custody.  While the plaintiff might consider himself not as an “escape risk”, he certainly could not speak on behalf of the other detainees.  Further, given the long journeys to and from the police stations each day, I consider using handcuffs was a reasonable means to restrain the movements of the detainees (including the plaintiff) on the big buses or mini-vans during the transit.

284. I note that during his evidence CIO Wong has not been questioned by the plaintiff’s counsel about the justifications (or the lack thereof) for handcuffing detainees like the plaintiff.  Obviously the junior immigration officers or assistants were merely following the orders of their superior or the established guidelines or practice of the ImmD.  Thus, I do not think it will be fair to leave it to the individual officers to decide whether to handcuff the detainees for the journeys to and from the police stations on each occasion.  

285. As I found under the discussion of uses of handcuff issue above, the handcuffing of the plaintiff would have been lawful and justifiable in this case but for the “tainting effect” of the CFA decision in Ghulam Rbani.  However, once it is accepted that the detention is unlawful (as the defendant did just before the commencement of the trial in this case), then what was done to the plaintiff during the Detention Period must be treated unlawful.  In my judgment, it is merely a question of whether the plaintiff is entitled to nominal or ordinary and/or aggravated/exemplary damages for the “unlawful” handcuffing of him during the Detention Period on top of the damages awarded for the unlawful detention granted above.

286. In William Alan Terence v Attorney General [1987] HKLR 379, Hunter J (as he then was) at 386A, citing the words of Lord Russell CJ in R v Taylor (1895) 59 JP 393, that “handcuffing was only justifiable when reasonable necessity existed.  If it were resorted to in the absence of such necessity, the party so treated might bring an action to recover damages for such a grievous indignity”. [emphasis added]

287. Mr Pun for the plaintiff by citing Hunter J in Crawley at 387F-I submits that the defendant has failed to apply his mind to the particular circumstances of the plaintiff when putting him in handcuffs during transits.  In the present case, as Mr Pun points out, the guidelines (ISSI 87.3) disclosed by the defendant shows that handcuffs “will be used during the escort of a detainee who does not have legal stay in Hong Kong.[30] It is also an agreed fact between the parties that “as a matter of practice, handcuffs will be used during the escort of a detainee who does not have legal stay in Hong Kong”.[31]  Thus, Mr Pun submits that the individual immigrations officers who escorted the plaintiff to and from the police stations have simply failed to apply their mind to the particular circumstances of the plaintiff before placing handcuffs on him.

288. I disagree.  As CIO Wong explained in his evidence, the use of handcuffs on the plaintiff was “reasonable and necessary” for safety reasons and to preclude any possibility of escape from legal custody.  I do not accept the plaintiff’s submission that the immigration officers who escorted the detainees (including the plaintiff) have failed to apply their mind to the particular circumstances of the detainees before placing handcuffs on them.  I consider that senior officers like CIO Wong from ImmD must have applied their minds to the particular circumstances of detainees like the plaintiff before allowing their subordinates or more junior officers to use handcuffs on them.  Thus, but for the “tainting effect” of the CFA decision in Ghulam Rbani, the plaintiff would in my view not be entitled to any damages at all.

289. However, given the fact that the handcuffing of the plaintiff has now been accepted as unlawful, one has to consider what award of compensation should be made.

290. I agree with Ms Wong that the plaintiff’s pleaded case for aggravated/exemplary damages resulting from the searching and handcuffing of the plaintiff has left a lot of room to be desired.  Basically, the plaintiff has not pleaded the basis for claiming aggravated/ exemplary damages for searching and handcuffing until the re-re-amended reply stage. 

291. I further agree with Ms Wong that the matters pleaded in §§13B-13D of the re-re-amended reply are relating to the “unlawful and unconstitutional conduct” of the police/immigration officers and therefore would fall under the category of exemplary and not aggravated damages.  I also agree with her that it is trite that a claim for exemplary damages must be specifically pleaded in the body of the statement of claim, and the facts relies on to support his claim for exemplary damages must be pleaded with proper particularity: see Hong Kong Civil Procedure 2015 §18/8/12. Thus, I agree it was wrong for the plaintiff to only plead the basis of the claim for exemplary damages in its re-re-amended reply but not in the body of the statement of claim itself.  Strictly speaking, therefore, the court does not need to consider the plaintiff’s claim for aggravated/exemplary damages for the searching and handcuffing as set out in §§13B-D of the re-re-amended reply.

292. In any event, for the unlawful handcuffing, I do not consider that it would attract exemplary damages as they are only awarded in cases where the court considers that there is evidence to show there has been conduct, including oppressive or arbitrary behaviour on the part of the authorities, which deserves the exceptional remedy of exemplary damages.  It will only be awarded if it is considered that the compensation awarded by way of ordinary and aggravated damages is inadequate punishment for the authority.  Given my findings of fact on this issue, I do not consider that the circumstances under which the plaintiff was placed in handcuffs would warrant a claim for exemplary damages: see A v Director of Immigration, supra at §§46, 49 & 53 (10)-(11).  I do not think there is any “oppressive, arbitrary or unconstitutional action by servants of the government” in this case which would justify an award for exemplary damages: see Rookes v Barnard [1964] 1 ALL ER 367.

293. Thus, on the handcuffing, the real question is whether only nominal or ordinary damages should be awarded.

294. In Ghulam Rbani, supra at pp 175-176, Riberio PJ citing Baroness Hale JSC in R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 at §74:-

“However, the result of any review, had it been held, cannot be irrelevant to the quantum of damages to which the detainee may be entitled. False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done.” [empahasis added]

295. I do not think this is a case where the plaintiff is entitled to nominal damages only as submitted by the defendant.  Given the unlawful nature of the detention, the handcuffing during the Detention Period, particularly when he was transferred daily to and from the police stations for overnight detention for the 17 nights, would no doubt cause some unnecessary distress, indignity, mental anguish and humiliation to the plaintiff during the long daily journeys.  However, as mentioned above, I do not accept that he would be seen by anybody other than his fellow detainees and the immigration or police officers while he was being handcuffed.  Thus, in my view, there was no aggravating factors which would justify an award of aggravated and/or exemplary damages in this case resulting from the unlawful handcuffing.

296. The plaintiff’s counsel referred me to a number of decisions, including both from local and overseas, for the appropriate amount of damages.  I do not find comparing awards from overseas helpful simply due to different social background, values and economic circumstances.  It will be more appropriate to compare the awards made in local cases.  In the relatively old decision of William Alan Terence Crawley v Attorney General [1987] HKLR 379, an award of $4,500 was made for “assault and battery by unlawful handcuffing”. 

297. In Leung Kwok Hung v Secretary for Justice [2009] 4 HKLRD 247, an award of $25,000 was granted for the (i) 5 hour detention and (ii) use of handcuffs and a chain on the plaintiff. [emphasis added]

298. In霍兆榮 對 廉政公署 (unreported, CACV 247/2012, 6 February 2003) damages in the sum of $10,000 was made by the Court of Appeal for the unlawful use of handcuffs on the plaintiff after reviewing the award in Crawley which was made over 10 years prior to that decision. 

299. Mr Pun submits that the embarrassment and acute feelings of discomfort experienced by the plaintiff would be much worse than those in Crawley given the fact that he was handcuffed every day during his transfer between various police stations and 1/F of CIC from 8 to 25 October 2006 and from 1/F of CIC to MTKDC on 25 October 2006, which amounted to approximately 30 times of handcuffing on transit.  The plaintiff submits that a sum of $200,000, including aggravated and/or exemplary damages, should be awarded.

300. I consider that an award for ordinary damages would be sufficient to reflect the loss under this head.  Similar to the damages awarded for unlawful detention above, I consider that a global award, as contrast to a rateable award, should be made with a progressively reducing scale.

301. Taking into all the circumstances of the case, in particular the fact that but for the “tainting effect” of the unlawful detention the handcuffing would in my view have been necessary and justified, I consider an award of $30,000 as reasonable to represent damages for the unlawful handcuffing during the Detention Period.    

(iii)   Damages for body/strip searches

302. Ms Wong informed the court that there is no local case authority in Hong Kong that has dealt with the damages award for unlawful searches while a person is under a detention context.  Thus, we are in uncharted waters here.

303. The plaintiff submits that, based on the evidence, the plaintiff was unlawfully and unconstitutionally strip searched for approximately 38 times.  Applying a global approach and without taking into account of the constitutional damages (which will be discussed below), Mr Pun submits that the appropriate award of damages (including aggravated and/or exemplary damages) for the routine strip searching involving physical contact should be at $150,000.

304. Ms Wong on the other hand submits on behalf of the defendant that only nominal damages should be awarded for the body searches as, but for the tainting effect of his unlawful detention, they had been done with proper legal basis and justification. She further submits they were proportional to the needs at the time and did not contravene the requirements of the provisions that authorized the same.

305. It is worth bearing in mind the purpose of granting aggravated and exemplary damages here.  

306. In principle, aggravated damages are awarded where there are aggravating features about the case that would result in a plaintiff not receiving sufficient compensation for the injury suffered.  Aggravating features can include humiliating circumstances at the time of the arrest or during the period of detention or any conduct of those responsible for the arrest or detention which shows that they had behaved in a “high handed, insulting, malicious or oppressive manner” either in relation to the arrest or imprisonment or in conducting the litigation and trial.  There is a penal element in aggravated damages although it is essentially compensatory in nature: see §45 & §53(9) of A v Director of Immigration, supra.

307. The defendant submits that based on the facts as they had submitted to the court in relation to the body searches, there is nothing in those searches which can be said to be humiliating. Or that the police or ImmD had behaved in a “high handed, insulting, malicious or oppressive manner”.

308. For exemplary damages, these are awarded where the court considers that there is evidence to support such a claim.  Though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour on the part of the authorities, which deserves the exceptional remedy of exemplary damages.

309. In the context of this case, Ms Wong submits that exemplary damages should be awarded only if it is considered that the compensation awarded by way of basis and aggravated damages is inadequate punishment for the police/ImmD.  Further, it is submitted by the defendant that an award of exemplary damages will in effect become a windfall for the plaintiff.  Any sum awarded under this should be sufficient to mark the court’s disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose. 

310. I agree with Ms Wong that the main object of allowing exemplary damages is to punish and to deter the defendant and, following the case of Rookes v Barnard [1964] A ALL ER 367, it can only be awarded in 3 categories of cases.  The one relevant to our present case consisted of “oppressive, arbitrary or unconstitutional action by servants of the government”.  Following the decision in Holden v Chief Constable of Lancashire [1987] QB 380, I also agree that these epithets fall be read disjunctively.  It has been said (and I accept) that it is doubtful whether conduct that is merely unconstitutional is in itself sufficient to bring the case within this category. 

311. As noted by A Cheung J in A v Director of Immigration, supra at §53(7), the court will automatically look for outrageous conduct, disclosing malice, fraud, insolence, cruelty and the like, to justify an award of exemplary damages.

312. The question here is: are there any such elements of “oppressive, arbitrary or unconstitutional action” in our case when it comes to body/strip searches that would justify an award for exemplary damages. 

313. Based on my factual findings on this issue above, regrettably I think the blanket, indiscriminate and repeated strip searches done on the plaintiff while he was detained in the police stations for overnight detention during the 17 nights would amount to oppressive and arbitrary action in this case.  I consider this as outrageous conduct that contains elements of malice, insolence and cruelty to the plaintiff which would justify an award for exemplary damages.

314. In my view, save from his initial admission to the 1/F of CIC on 8 October 2006, the 3 occasions when he was admitted or re-admitted to MTKDC[32] and his admission to 5/F of CIC on 17 November 2006[33], there was really no need or justification to conduct any strip search on the plaintiff.  In particular, I consider there was no need to conduct any strip search every time when he was transferred from the 1/F of CIC to the different police stations for the 17 nights overnight detention.  As he had always been in the custody of the ImmD and locked up in a cell with other detainees detained by the same authority during the day, a pat-down search by the police would be sufficient if the sole purpose was to ascertain if the detainees were in possession of any illegal articles which would assist their escape or cause harm to themselves or others.  Similarly, when they returned to the 1/F of CIC the next morning from the police stations, there was no need to strip search them again as he would be under the police’s detention and would not be mixed with other criminal suspects or detainees in the same detention cell.  In short, in my judgment, the strip searches were totally disproportionate to the needs.  To ask the detainees to take off all their clothes in front of others (whether in front of just 1 or 9) and sometimes being touched by the officers while standing naked is in my view one of the most degrading and humiliating experiences a person can get.  To ask them to do poses like standing up or sitting down while naked would only add insult to the injury.  I consider this is the same no matter what cultural background, creed or belief the detainees may have come from.

315. In this respect, I am much assisted by the English case of Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 referred to by Mr Pun in his closing submissions.  That case deals with the power of police officers to search persons who are in legal custody at a police station.  Goff LJ (as Lord Goff then was) cited the principles laid down in Lindley v Rutter [1981] QB 128 in his judgment at pp 1158G-1159F:-

“Before dealing with the submissions made to this court, it is necessary to refer to Lindley v Rutter [1981] Q.B. 128 which was drawn to the attention of the justices and was also relied on before us. This was a decision of the Divisional Court. It was concerned with the question the circumstances in which police officers may carry out a search. The offence charged in that case (as in the present) raised the question of whether or not the police officer was acting in the course of her duty. Donaldson L.J. said, at p. 134:

“It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.

This is not to say that there can be no standing instructions. Although there may always be special features in any individual case, the circumstances in which people are taken into custody are capable of being categorised and experience may show that certain measures, including searches, are prima facie reasonable and necessary in a particular category of case. The fruits of this experience may be passed on to officers in the form of standing instructions. But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far as searches are concerned, he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone’s pockets or handbag is less of an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so.

These were the principles laid down in Lindley v. Rutter [1981] Q.B. 128 and these are the principles that we have to apply in the present case.” [emphasis added]

316. I agree with what Goff LJ said when he applied those principles to the case when he held at 1160B-D that:

“No doubt there are circumstances where a person is brought into a police station, where it would be proper to carry out a personal search, for example where the view is formed that it would be desirable to make certain that that person is not in possession of any article with which he might injure himself.  But, in my judgment, on the findings of fact in this case, Miss Hallon is justified in her submission that the police cannot proceed to carry out a personal search simply on the basis that “everyone brought into the police station has to be searched for their own safety.”  Such a blanket rule cannot be upheld in the face of the decision of this court in Lindley v. Rutter [1981] Q.B. 128.  There must be cases of persons brought into police stations where it would not be justifiable to carry out such a search.  Here the difficulty on the findings of fact is that there is no finding that the police officer concerned addressed her mind to the question whether in the circumstances of this particular case a personal search of the defendant was called for.” [emphasis added]

317. In my judgment, the blanket practice or procedure followed by the defendant to strip search the plaintiff at the police stations cannot be upheld in light of the principles laid down in Lindley v Rutter.  Further, I accept the plaintiff’s submission that there is no evidence that the officers concerned addressed their mind to the question whether in the circumstances of the particular case a personal search of the plaintiff was called for.   

318. I agree with Goff LJ when he stated in Brazil v Chief Constable of Surrey, supra that to require a person to submit to a personal search is to impose on that person a restraint on his freedom, and, generally speaking, a person should not be required to submit to that restraint unless he knows in substance the reason why that restraint is being imposed: see Brazil at p 1162D.  In other words, an explanation should generally be given to persons why a personal search is to be carried out (at p 1162F).

319. In this case, I accept the plaintiff’s evidence that the reasons of why strip search was done on him had never been communicated to him before the searches were conducted. Further, I accept that the plaintiff was stripped and searched in the sight of other detainees in breach of rule 2(3) of Schedule 1 to the Immigration (Treatment of Detainees) Order, Cap 115E while he was at the police stations.

320. In the aforesaid premises, save on the occasions mentioned above, I am of the view that the strip searches done on the plaintiff at the police stations was not necessary and cannot be justified. 

321. In all circumstances of the case, I consider that a sum of $80,000 will be appropriate as exemplary damages for the blanket and repeated strip searches, which sometime involved with physical contact, on the plaintiff.  I should add that had I not found those strip searches conducted at the police stations objectionable, the plaintiff probably would in my view only be entitled to a nominal or small amount of ordinary damages for the other “unlawful” searches done on him during the Detention Period only.  The reason being that I did not find the other body/strip searches to be oppressive or arbitrary and they were, in my view, done with proper legal basis and justification and were proportionate to the needs at the time.

(iv)    Constitutional damages

322. The plaintiff claims constitutional damages resulting from the breaches of his constitutional rights for the strip searches.

323. Applying a global award and by using the Canadian case of Vancouver (City) v Ward [2010] 2 SCR 28 as a reference, the plaintiff submits that an award of $300,000 should be made by way of constitutional damages for the routine strip searches by the defendant.

324. The plaintiff’s argues that section 6(1) of the HKBOR and Article 35 (2) of BL provides a cause of action for breach of constitutional rights. 

325. For section 6(1) of the HKBOR, the plaintiff relies on a similar provision in the Canadian Charter of Rights and Freedoms, ie section 24(1) and the case of Vancouver (City) v Ward [2010] 2 SCR 28 to say that damages should be awarded for the Charter breach under the Charter. 

326. For Article 35(2) of the BL, the plaintiff relies on the case of Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 to make good the point that such a separate award of damages is available for breach of a guaranteed right by the state. The plaintiff submits that even in the absence of any express provision in the BL about momentary remedies for breach of constitutional rights does not preclude an action for damages where such damages are appropriate to remedy breaches of the fundamental rights enshrined in Chapter III of the BL.  The plaintiff further relies on the New Zealand authority of Taunoa v Attorney-General [2008] 1 NZLR 429 at §§231-242.

327. I have been informed by counsel that the question of whether momentary damages could be awarded as a remedy for a breach of constitutional right is novel in Hong Kong and has not been decided in favour of a plaintiff since the enactment of the HKBOR in 1991.

328. To date, only 2 cases in Hong Kong have dealt with this issue.  They are the decision of HH Judge Leung in the District Court in Ghulum Rbani v Secretary for Justice [2012] 2 HKC 1 (“Ghulum Rbani (DC)”) and the decision of Deputy Judge Saunders (as he then was) in Ho Kin Man v Commissioner of Police [2013] 1 HKC 13.

329. In Ghulam Rabani (DC), HH Judge Leung heard full arguments on the issue (which are very similar to those put forward by Mr Pun in this case as he was the junior counsel in that case) and held that a separate award of constitutional damages (on top of the conventional damages), even if available in principle, is not made out in the circumstances in that case.  I fully agree with the reasons given by the learned judge in that case: see §§132-156 at pp 30-36.  I note that this part of Judge Leung’s judgment has not been disturbed by the CA or CFA on appeal as the appeals dealt with the issue of liability only.

330. In Ho Kin Man, the plaintiff’s private law claims, which included of each a plea for “conventional damages” as well as “constitutional damages” for breach of contract, were struck out on the ground of issue of estoppel (and if that was not correct, on the ground of limitation).  Although the issue of “constitutional damages” was argued in that case, the learned judge decided that as the plaintiffs had a perfectly good remedy at common law for breach of contract, they did not need to pursue a remedy of “constitutional damages” for breach of the BL and the HKBOR.  Hence, the arguments concerning “constitutional damages” do not really feature in the judgment, save by passing the learned judge in §40 seemed to have accepted that it is not necessary for the plaintiffs to have recourse to the HKBOR as that claim was “incidental” to the breach of contract claim.

331. Thus, whether there is a right to constitutional damages, in addition to the conventional damages, as a result of a breach of the BL and the HKBOR remains an open question in Hong Kong. 

332. Without running the risk of repeating what Judge Leung has stated in Ghulam Rabani (DC) in relation to this issue, I would like to add the following observations of mine to support why I think constitutional damages should not be allowed in this case.   

333. First, I agree with the defendant that, as a matter of principle, the plaintiff’s claim that his constitutional rights were breached adds nothing to his claim for damages. It has been held that, if a claimant succeeds in claiming damages (whether nominal or otherwise) under common law for trespass to his person, he will be appropriately compensated by common law damages and double recovery by way of constitutional damages should not be allowed: see Ghulam Rbani (DC) at §§156 and the Canadian Supreme Court in Ward at §§34-37 and New Zealand court in Simpson v AG [1994] 3 NZLR 667 at p 678 and Taunoa v AG [2008] 1 NZLR 429 at §368. 

334. Second, the case of R (WL (Congo)) v Home Secretary [2011] 2 WLR 671 has confirmed the skepticism expressed by the UK Supreme Court about the notion of vindicatory damages for breach of constitutional rights.  I agree with Judge Leung’s observation in Ghulam Rbani (DC) that even if a distinct award of vindicatory damages in principle is available, it will only be made in limited cases for breach of constitutional rights in the UK context.  I do not believe our law has developed to a stage where vindicatory damages are recognized for breach of constitutional rights on top of the conventional damages awards.  There may perhaps come a time when the court will do so in some future date, but I do not think that time has arrived yet.

335. Third, while the claims in the Canadian Supreme Court case of Ward are very similar to our present case, I do not think it would be useful to compare such cases from a different jurisdiction with a very different social and economic background when it comes to important principles such as this.  After all, it took Canada 29 years after the adoption of the Canadian Charter of Rights and Freedoms before the Supreme Court recognized the award for constitutional damages. Further, jurisdictions like New Zealand are known to have taken a much more liberal approach when it comes to matters like civil liberty and constitutional matters.  Thus, I do not think it is appropriate to blindly follow cases decided in a different jurisdiction on such important issues.  In my view, we have to develop our own local jurisprudence and principles on important matters such as this.  

336. Last but not the least, I agree with Ms Wong that insofar as the plaintiff is relying on Rule 9 of the Prison Rules, Cap 234A and section 7 of the Immigration Services (Treatment of Detained Persons) Ordinance, Cap. 331C to say that they are unconstitutional in the context of the body searches, the proper forum for such constitutional challenge should be in the public law court and not in the District Court: see Lee Miu Ling v AG [1996] 1 HKC 124 at 134I to 136H and Lau Wong Fat v AG, HCA 6016/1994, unreported (18 November 1996; Cheung J) citing O’Reilly v Mackman [1983] 2 AC 237 at §§18-20, p6.

337. Based on the above, I do not consider that the plaintiff is entitled to claim constitutional damages in this case. 

(v)    Total Amount of quantum awarded

338. In the aforesaid premises, I would award a total sum of HK$210,000 (HK$100,000 for unlawful detention, HK$30,000 for unlawful handcuffing and HK$80,000 for unlawful strip searches) as damages in this case.

CONCLUSION

339. In conclusion, I would enter judgment against the defendant in the total sum of HK$210,000 in this case.

340. The plaintiff is also entitled to post-assessment interest at the usual judgment rate.

341. Costs should follow the event.  I make an order nisi that the defendant do pay the costs of the action to the plaintiff, such costs to be taxed if not agreed, with certificate for counsel.  The plaintiff’s own costs to be taxed in accordance with the legal aid regulations.  The costs order nisi will become absolute unless the parties apply within 14 days to vary the same. 

342. Lastly, I would like to thank counsel on both sides for their very able assistance.