STEPHEN KRUGER v. SECRETARY FOR JUSTICE

HCSA 13/2020

[2021] HKCFI 3834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 13 OF 2020

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO 40363 OF 2018)

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JUDGMENT

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1.  This is the Appellant’s application for leave to appeal against the decisions[1] of Deputy Adjudicator Mr G T Lung (as he then was) (“the Adjudicator”) dismissing the Appellant’s claim against the police[2] at the Small Claims Tribunal (“the Tribunal”).

THE CLAIM

2.  The Appellant’s claim was in relation to an incident happened on 24 April 2018 at around 0045 (“the material time”).  At the material time, the Appellant was a resident of New Peking Guest House (“the guesthouse”) situated at Chungking Mansions.  He was staying in Hong Kong in the status of a “visitor”.

3.  On that day the police conducted an operation together with the Immigration Department against immigration offenders at Chungking Mansions.  At the material time, the police came across the Appellant and demanded him to produce his identification document.  This was what had happened as described by the Appellant in his written submission for this application:

“7. Between 12:30 a.m. and 12:45 a.m., during the early morning of 24 April 2018, three police officers, Siaew, Wong, and an unnamed man, were in Chungking Mansions, and in the New Peking Cuest House. Siaew and the unnamed man were supervised by Wong, an inspector.

8. Under the label of Operation Sahara, a law-enforcement action, the police officers were looking for foreigners who supposedly had committed any one of three immigration-related offences: illegally entering Hong Kong, overstaying (ie, not leaving Hong Kong prior to the end of an authorized presence in Hong Kong), and illegally working in Hong Kong.

9. No arrest warrant was held by the police officers. No search warrant was held by them. They believed that they were authorized by Immigration Ordinance s 17C to act against Claimant.

10. Siaew and the unnamed man stood immediately at the door of Claimant’s room. Wong stood about a metre away, Siaew said to Claimant, ‘Show me your passport’. Claimant complied. Further, Siaew said to Claimant, ‘Show me your landing slip’. Claimant complied. A landing slip is a piece of paper, given by the Immigration Department to a foreigner. It shows the period during which he may stay in Hong Kong.

11. The police officers left the New Peking Guest House.”

4.  It was based on this “brief encounter”, as described by the Adjudicator, that the Appellant lodged his claim against the police at the Tribunal for the sum of $50,000.  The Adjudicator understood the Appellant’s claim as[3]:

“the claimant alleged that the police had multiple intentional violations on civil rights of the claimant when an incident occurred on 24 April 2018 at around 0045 hence claimed against the defendant for general and exemplary damages plus costs.”

5.  The Appellant alleged that the police officers’ actions were in breach of Articles 25, 28 and 29 of the Basic Law and section 17C of the Immigration Ordinance.

6.  Understandably, the Secretary for Justice[4] submitted that the Appellant’s claim disclosed no viable cause of action and in any event the Tribunal has no jurisdiction to deal with it.

THE ADJUDICATOR’S DECISION

7.  In his analysis the Adjudicator rightly reminded himself of the limited jurisdiction of the Small Claims Tribunal under section 5(1) of the Small Claims Tribunal Ordinance, Cap 338 (“the Ordinance”) and concluded that the Appellant’s claim was not one of contract, quasi-contract or tort and hence the Tribunal has no jurisdiction to it.

8.  However, the Adjudicator found it necessary to consider if there were other possible causes of action open to the Appellant and took the view that the torts of assault, false imprisonment and trespass to land might be relevant.  After going through the evidence, the Adjudicator found that there is no evidence to support those possible claims.

9.  In the end, the Adjudicator dismissed the Appellant’s claim and awarded costs in favour of the Secretary for Justice in the sum of $5,729.45.

10.  The Appellant applied for a review of the Adjudicator’s orders under Section 27A of the Ordinance.  After hearing the Appellant, the Adjudicator confirmed his orders and awarded costs of the review application in favour of the Secretary for Justice in the sum of $1,551.51.

GROUNDS OF APPEAL

11.  The Appellant put down 2 grounds of appeal in the Form 9:

(1)  The Immigration Ordinance does not authorize the police to act against the claimant; and

(2)  Costs were awarded although there was no evidence to support the award.

12.  Regarding Ground 1, the Appellant submitted that as he is a foreigner and hence falls out of the obligation to register under section 3 of the Registration of Persons Ordinance, Cap 177, he is not required to carry or produce proof of identity under section 17C of the Immigration Ordinance.

DISCUSSION

13.  The Appellant’s argument is misconceived.  Even if he is not required to produce proof of identity it does not mean that the police has no authority to demand him to produce the same.  The police can have no idea whether a person is obliged to carry and produce proof of identity before investigation and the demand to show proof of identity must be the first step of investigation.  It would be ridiculous to suggest that the police will face a civil claim for a mere demand if it turned out that the person is not obliged to carry one.

14.  As mentioned by the Adjudicator in his reasons for decision, it is trite that under Section 17C(2) the police officers had authority to check a person’s identity if there is a bona fide need and in the course of an operation to tackle immigration offenders, it was obviously a bona fide one.

15.  In any event, the Adjudicator is also correct to point out that the Appellant did not show any evidence that he was exempted to register under the Registration of Persons Ordinance.

16.  Furthermore, the mere complaint of police officers acting ultra vires does not give rise to a cause of action in tort.  The Appellant did not suffer any damages and there is no evidence of malice.  The Tribunal has no jurisdiction to deal with such a complaint.

17.  Concerning the possible causes of action identified by the Adjudicator, with respect, I am of the view that they are beyond contemplation and it was not necessary for the Tribunal to embark on considering them in view of the flimsy evidence in relation to them. 

18.  Regarding the award of costs, the Secretary for Justice had submitted her statement of costs and the Adjudicator had gone through it thoroughly.  As stated by the Adjudicator in his reasons for decision of the review application, as long as the claim of costs is clear and provided with supporting evidence, an item by item bill of costs similar to one used in a taxation process is not necessary.

19.  In my view, the amount of costs awarded was already on the low side given the work put in by the Secretary for Justice in the circumstances.

DISPOSITION

20.  There is no prospect of success for the intended appeal and leave is accordingly refused.