SUNDARI v. SECRETARY FOR JUSTICE sued for and on behalf of the DIRECTOR OF IMMIGRATION

DCCJ 3805/2021

[2023] HKDC 1212

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3805 OF 2021

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DECISION

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INTRODUCTION

1.  This is the decision on whether the costs of the proceedings should be taxed at the District Court scale, or at a level similar to actions began in the Small Claims Tribunal (“the SCT”).

BACKGROUND

2.  The plaintiff issued a writ of summons together with the statement of claim (“SOC”) on 9 August 2021.  The plaintiff’s claim as stated in the SOC is as follows:-

(i)    The plaintiff was unlawfully detained at the Castle Peak Bay Immigration Centre (“CIC”) from 10 March 2020 to 9 June 2020 (a period of 92 days), which was in breach of the Hardial Singh principles;

(ii)   The plaintiff was wrongfully body searched and strip searched;

(iii)  The plaintiff was handcuffed on one single occasion; and

(iv)  The plaintiff was detained in quarters that were overcrowded, not suitable for long-term detention, and in bad hygiene.

3.  The plaintiff did not quantify the amount of damages in the SOC.

4.  By a consent summons filed on 9 February 2023 (“the Consent Summons”), the plaintiff and the defendant had come to a settlement for the claim, including inter alia the following proposed agreed terms:-

(i)    On a without admission of liability basis, the defendant do pay the plaintiff a total sum of HK$18,000 in full and final settlement of the plaintiff’s claim in this action; and

(ii)   The costs of this action be paid by the defendant to the plaintiff on a party and party basis on a scale to be determined by the Court upon written submissions to be lodged by the parties.

5.  Given the fact that the settlement sum is within the limit of jurisdiction of the SCT (HK$75,000)[1] and well below the lower limit of the District Court jurisdiction, on 15 February 2023, I directed the parties to make submissions on whether the court should allow the costs to be taxed at the District Court scale when the action apparently ought to have issued/commenced at the SCT, instead of the District Court.

DISCUSSION

P’s submissions

6.  The plaintiff submits the costs should be taxed at the District Court scale.

7.  The plaintiff submits the court should take reference from Abid Saeed v Secretary for Justice [2015] 1 HKLRD 1030, where I awarded damages in the amounts of HK$100,000, HK$30,000, and HK$80,000 for a period of 197 days of unlawful detention, 30 times of unlawful handcuffing, and 38 times of unlawful search respectively.

8.  Applying a similar scale, the plaintiff submits that she has reasonable prospect of recovering damages at around HK$108,000 for a period of 92 days of unlawful detention, 1 time of unlawful handcuffing, and 4 times of unlawful body/strip search.

9.  The plaintiff also submits that it is fair for the plaintiff to commence this action in the District Court.  The reason being that, the plaintiff has only received education up to secondary level in Indonesia, and could barely understand English, let alone Chinese.  Without the aid of legal representatives in the SCT, the plaintiff is unable to deal with the complicated factual and legal disputes in an unlawful detention case.  Thus, the plaintiff will be put into an unequal and disadvantageous position if she had to conduct the proceedings in the SCT in person while the defendant is represented by an immigration officer with sufficient legal and procedural training.

10.  The plaintiff further submits it will be more cost-effective for her to commence the action in the District Court, as considerable resources will be required to assist the plaintiff if she acts in the SCT in person.

D’s submissions

11.  The defendant submits that the costs should be taxed at a level similar to actions began in the SCT.

12.  The defendant argues that the settlement sum of HK$18,000 is “well below” the ceiling of the monetary jurisdiction of the SCT, which demonstrated that the plaintiff’s claim was unrealistic and unmeritorious. In other words, the plaintiff had no reasonable prospect to recover more than HK$75,000.

13.  Further, the defendant argues that the plaintiff ought to have known it was impossible for her to claim for unlawful detention for the entire detention period of 92 days, as it is likely that a part of the detention was compliant with the Hardial Singh principles. Hence, the claimed period of 92 days was grossly exaggerated.

14.  The defendant submits that the claims of unlawful handcuffing and body/strip searches were unmeritorious, as the handcuffing and the body/strip searches in the present case were necessary and justified for safety reasons in light of my decision in Saeed v Secretary for Justice, supra, at §§178, 179, 243 & 247.  The claims served no purpose except to inflate the overall claim to the amount within the monetary jurisdiction of the District Court.

15.  The defendant also submits that the claim about the poor living condition of the CIC has no merit, as the plaintiff “should never expect such facilities would be anything other than basic and functional”: See Saeed, at §154.

16.  The defendant further submits it is not cost-effective for the plaintiff to commence the action in a more expensive level of court, ie the District Court.  By pursuing a claim in the District Court, the plaintiff had departed from the underlying objectives set out in O 1A r 1 of the Rules of the District Court (“the RDC”).

FINDINGS OF THE COURT

17.  From the outset, I wish to distinguish the present case from those cases, where parties settled by way of Sanctioned Payment.  O 22, r 20 of the RDC only applies to the latter, but not cases settled by way of consent summons.  This different category of cases where parties settled by way of sanctioned payment is dealt with by a separate decision handed down at the same time as this decision today in Govindan Sakhivel v Secretary for Justice Director of Immigration [2023] HKDC 1211, DCCJ 214/2021.  Thus, I find the plaintiff’s submission on the application of the O 22 r 20 of the RDC unhelpful.

Prima facie position

18.  The court has full discretionary power in deciding the costs scale under s 53(1) of the District Court Ordinance, Cap 336.

19.  The prima facie position is that the plaintiff has the duty to explain to the court why she brought the action in the higher level court, ie the District Court, when the settlement amount is within the lower court’s jurisdiction, ie the SCT, as stated in May Fung Co. Ltd v Wing Lung Industrial Ltd and Anor, unreported, HCA 1607/2007 (Lam J (as he then was); 9 October 2009),  at §§8 to 9:-

“8. In my judgment, all these underlying objectives [in O.1A, r.1 of the RHC/RDC] point to the importance of conducting litigation in the appropriate forum. When a claim falls within the jurisdiction of the District Court (the SCT in this case), a plaintiff who chooses to commence the action in the Court of First Instance (the District Court in this case) is expected to explain why such a course is adopted when the question of costs is considered.

9. Prima facie, it is not cost-effective to pursue a claim in a more expensive manner by litigating in the Court of First Instance (the District Court in this case) as opposed to the District Court (the SCT in this case)”

Reasonable prospect of the claim

20.  The issue of the present case is whether the plaintiff had reasonable prospect to recover more than HK$75,000, but not whether the plaintiff had exaggerated her claim.  Despite this, the plaintiff may need to bear adverse costs consequences, if, after trial, the court found that the plaintiff has severely exaggerated her claimed amount of damages: See      O 62 r 5(2)(c) of the RDC.  This matter does not concern the court in the current stage. The focus of the court is whether the present action should be commenced in the District Court under the “reasonable prospect” test.

21.  The “reasonable prospect” test was stated in Wong Chim Hing v Discovery Bay Transit Services Ltd [2016] 1 HKC 491, per Bharwaney J, at §23:-

“The plaintiff who wishes to establish that he enjoyed reasonable prospects of recovering a sum of money in excess of the District Court jurisdiction (the SCT in this case) must do so by reference to the evidence available to him at the time he commenced the proceedings…”

22.  The test was further extended to cover not only the commencement of the proceedings, but also the course of development of the proceedings.  When further evidence and information becomes available, the reasonable prospect in an action may fade away, or, in the other way round, an initially unmeritorious action may develop a reasonable prospect to succeed at a later stage: See Leizel Dalere Ramones and Anor v Lee Kut Tung, unreported, HCPI 1264/2015 (Master Leong; 28 October 2016).

23.  Some claimants suggest they were forced to commence the action in the District Court.  The reason is that the respondent failed to respond to the claimant’s pre-action letter for the relevant documents in relation to the claimant’s detention.  The claimant could only obtain the said documents from the respondent after he/she filed the statement of claim.  Hence, it was justified for the claimant to commence the action in a court with a higher monetary jurisdiction, ie the District Court, to protect their interest.

24.  In my judgment, this argument must fail in light of what the learned Master said in Leizel.  The claimant’s duty in assessing the reasonable prospect of his/her claims is a continuing one.  If the claimant found that his/her claim was substantially short of the jurisdiction of the District Court after the commencement of the action with more documents provided by the respondent, the claimant should consider ceasing his/her action in the District Court and commence a new action in the SCT, subject to the argument of costs, which were already incurred in the District Court action.

25.  In applying the “reasonable prospect” test, it is difficult for the court to determine the exact amount of damages that the plaintiff is entitled to in an interlocutory stage.  The court should adopt a broad-bush approach and give “certain leeway” to any assessment of damages: See Cheung Yu Tin Alvin v Ho Hon Ka [2006] 3 HKC 473, per Woo VP, at §31. The court also needs to bear in mind that the reasonable prospect of a case may change in light of the available evidence at every stage of the proceedings.

26.  It is important to note that the present case is an unlawful detention case, but not a personal injuries case.  For the latter, there are always contemporaneous medical reports for the plaintiff to examine the prospect of his/her case.  Expert reports will often be produced during the course of proceedings for the plaintiff to keep revising the prospect of his/her claim, and to assess the reasonable amount of both the general and special damages.  The same does not apply to the former category of cases.  In unlawful detention cases, the plaintiff is claiming for non-pecuniary loss, ie the loss to liberty.  The court would usually award a sum of general damages with no breakdown: See A v Director of Immigration [2009] 3 HKLRD 44, per Cheung J (as he then was), at §48.  There is not much contemporaneous evidence for the court to determine the amount of damages.  The most important factor to determine the amount of damages would be the days of detention.

27.  I wish to pause here, and address an argument raised by other claimants.  They suggest that the SCT is not a suitable forum for unlawful detention cases, where they were claiming for unliquidated damages for the claimant’s loss to liberty.  They find it difficult to put an exact sum of damages claimed in the Form of Claim of the SCT.[2]

28.  I am not persuaded that the SCT is not a suitable forum for simple unlawful detention claims.  First of all, I agree with Chung J in his dicta in Samulde Ma Violeta Cabaya v Kwan So Han Sandy [2004] 2 HKLRD 658, at §29, that the SCT has jurisdiction to hear and determine claims for both liquidated and unliquidated damages.  Secondly, I do not see the difficulty of the claimant in filling the Form of Claim of the SCT.  A claimant could assess the amount of unliquidated damages that he/she is reasonably entitled to with past authorities and give an estimated sum of damages in the said Form.  It is not appropriate to allow all kinds of claim for unliquidated damages to be commenced in the District Court.

29.  In the present case, it is not in dispute that the plaintiff had been detained for 92 days at the CIC.  I accept the defendant’s submission that it is unlikely that the court would find that the entire 92 days of detention were in breach of the Haridal Singh principles. However, it is important to note that the plaintiff had lodged her non-refoulment claim, before the detention, on 15 July 2019, which was rejected by the Immigration Department on 20 January 2020.  During the detention period from 10 March 2020 to 9 June 2020, the plaintiff was waiting for the result of her appeal against the Immigration Department’s decision.  It was not unforeseeable that the plaintiff may further apply for judicial review if her appeal was rejected.  Therefore, it is apparent for the defendant at the first day of detention that she will not be able to effect deportation of the plaintiff within a reasonable period under the 3^rd limb of the Hardial Singh principles.  Nonetheless, I am aware that the detention may not be unlawful from the very first day of detention, as I accept it takes a reasonable period of time for the defendant to effect the release: See Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, per Ribeiro PJ, at §60.

30.  Further, in my judgment, in assessing the amount of damages for unlawful detention, it is inappropriate for the court to adopt a daily rate, as each case is decided on its own facts and the amount of damages tend to be progressively reducing for each day of detention: See A v Director of Immigration, §111.  However, I am of the view that the court could adopt a general sum of $1,000 per day (with a descending sliding scale depending on the length of the detention) in estimating the amount of damages in an interlocutory stage in light of the awards made in Abid Saeed, Ghulam Rbani, and A v Director of Immigration.

31.  The plaintiff also claims that she was detained in an overcrowded condition.  I accept that the poor condition of detention could cause humiliation, shock and injury to feelings: See Saeed, at §273.  It could be an aggravating factor for the court to assess the amount of the general damages or a basis for the court to award aggravated damages. However, without much evidence in this regard yet, I will only place minimal weight in the alleged poor condition of detention when assessing the reasonable amount of damages that the plaintiff is entitled to.

32.  However as said, in my view, not the entire period of detention could be considered as “unlawful”. Having dealt with over at least one thousand of such claims since I took over this portfolio in 2014 and when I wrote the judgment in. Saeed, supra, in January 2015, I consider that as a general rule of thumb, it would not be unreasonable to allow the authorities at least 6-8 weeks to process a claim and therefore, generally speaking, such period should be considered as a “reasonable period” under the 3^rd limb of the Hardial Singh principles. Of course, each case is different and the time it takes the authorities to process the claim before they release the claimant differs.  However, I think unless it can be shown otherwise, 6-8 weeks seems to me to be a reasonable period after the defendant has received notice of the non-refoulment claim and/or after the claimant is detained.

33.  Hence, I consider it would be reasonable in each case to take into account of the average period of time which will take the authorities to properly consider and process the claim before releasing the claimant on his/her own recognizance.  Thus, in my view, at least 49 days (being the average of 6 to 8 weeks) should not be taken into account in the calculation of the “unlawful detention” period. 

34.  In my judgment, considering all the factors above, I do not consider that, the plaintiff had a reasonable prospect to recover more than HK$75,000 for 92 days of alleged unlawful detention when issuing the writ in this case.  

35.  I will now deal with the claim of handcuffing, and unlawful body/strip searches.  The plaintiff claims that she was unlawfully handcuffed once, strip-searched once, and searched without removal of clothing for three times.  I am of the view that the handcuffing and body/strip searches are likely to be necessary and justified.  It is generally acceptable to the court for the defendant to handcuff the plaintiff for safety reason: See Saeed, supra, at §178.  It is also deemed necessary for the defendant to conduct strip search on the plaintiff upon the plaintiff’s admission to the CIC to ensure the plaintiff did not carry any contrabands: See Saeed, §248.  Body search, without removal of clothing, may also be justified on occasion for the defendant to ascertain the plaintiff did not possess any illicit item.

36.  With the limited times of handcuffing and body/strip searches, even assuming they were unjustified, I am of the view that it would only give rise to nominal damages.

37.  Seen in the above light, when the amount of damages under the head of unlawful detention is substantially less than the jurisdiction of the District Court and when the nominal damages arose under unlawful handcuffing, body/strip searches may not be able to tip the balance of the plaintiff’s claim to fall within the District Court’s jurisdiction, it is extremely doubtful in my view why the plaintiff or her solicitors considered that she would have reasonable prospect to recover damages under the District Court jurisdiction when they first issued proceedings in the case.

Parties’ conduct

38.  The following are some factors that, either the parties submit or I find, relevant in assessing the ‘conduct of all the parties’ under O 62, r 5(1)(e) of the RDC for the court to exercise the discretion on costs: (i) necessity for the plaintiff to engage legal representatives; (ii) The low settlement sum; and (iii) agreed proposed terms in the consent summons.  I will deal with them in turn.

(i)  Necessity for the plaintiff to engage legal representatives

39.  As summarized at §9 above, the plaintiff submits that it is justified for them to commence the action in the District Court in light of the plaintiff’s lack of education.  It would not be cost-effective for the plaintiff to conduct litigation in person in the SCT.  More than that, the plaintiff would be put in a prejudiced position as she could not deal with the legal and factual complexity in an unlawful detention case.

40.  It is trite that parties are not allowed to have legal representative in the SCT.  However, I do see the plaintiff’s difficulty in prosecute the present case in person in the SCT with her low level of literacy.

41.  I wish to emphasise illiteracy of a claimant is not a blanket justification for any claimant to commence an action in a court of higher level.  The “reasonable prospect”test remains as the most important factor for the court to determine the scale of costs.  A balance needs to be struck between two underlying objectives of the RDC, ie the ‘cost-effectiveness of any practice and procedure’ and the ‘fairness between the parties’: See O 1A, r 1(a)(d) of the RDC.

42.  If it is apparent that the claimant had no or little prospect in recovering more than HK$75,000, it is only right for the plaintiff to commence the action in the SCT.  The claimant may seek assistance from other resources such as Free Legal Advice Scheme of the Duty Lawyer Service or other similar pro bono services or advice from different non-government organisations in our community.  In my view, it is a waste of the limited judicial resources for the court to entertain a claim, where the reasonable amount of damages was far below the ceiling of the SCT’s jurisdiction.

43.  Further, in my view, the illiteracy of the claimant would only be relevant if the reasonable amount of damages that the claimant is entitled to is marginally less than the ceiling of the SCT’s jurisdiction, ie HK$75,000.  The court may consider the background of the claimant and allow the costs to be taxed at the District Court scale.

(ii)  The low settlement sum

44.  The defendant contends that the fact that the plaintiff had accepted to settle with the sum of HK$18,000 suggests the plaintiff also realised she did not have reasonable prospect to recover more than $75,000.

45.  I agree.  I accept that the settlement amount, ie HK$18,000, in this case is far below the ceiling of the SCT’s jurisdiction, ie HK$75,000.  However, I am of the view that this fact alone would not necessary determine the outcome of the scale of the costs to be taxed.

46.  There are many reasons that a claimant may choose to settle for a lesser sum than his/her claimed amount of damages, for example, the claimant may wish to avoid the undue pressure of litigation.  Amicable settlement is a notion highly encouraged by the court in accordance with the 2009 Civil Justice Reform.  However, when a litigant is willing to accept a sum (particularly upon legal advice) to settle for a sum far below the bottom end of the District Court civil jurisdiction, it can be reasonably inferred that she realised her claim was unmeritorious to be pursued in the District Court.  What matter the most remains whether the plaintiff has a reasonable prospect to recover more than HK$75,000 upon an objective assessment by the court.  In this case, giving my finding that it will take at least 6-8 weeks for the defendant to process a claimant’s claim, even after she has lodged a non-refoulment claim and/or detained.  I find there was no reasonable prospect for the plaintiff to recover anything close to HK$75,000 in this case at the time of her issuing the present proceedings.

47.  Further, I wish to emphasise that I have serious doubt on why the claimant would accept a sum of settlement which was only about one-tenth of her claimed amount of damages.  As the plaintiff suggests she is illiterate in English and Chinese, I question her ability to examine the merit of her action and negotiate a fair sum of settlement with the defendant.  She has to heavily rely on the advice of her lawyer.  Hence, it seems to me that the plaintiff’s solicitors had played a substantial role in settling for such a low sum of money.  In my view, the endorsement of amicable settlement does not mean parties should settle their claims at all costs.  When the claimant has a meritorious claim, it is only right for his/her legal representatives to strive for a fair sum of settlement on behalf of its client or pursue the claim in the court if a fair sum of settlement could not be obtained.  It is not just for a lay client to fail to recover the amount of damages that he/she is entitled to.  However, when the claimant’s legal representatives are willing to advise their client to accept a sum well below HK$75,000, they must take the consequences on costs also.  Litigation is not designed to generate unnecessary legal costs to benefit lawyers.  Solicitors as officer of the court are there to assist the court to “safeguard the law and administer justice”.

48.  Hence, future claimants in similar cases must bear in mind that the court would take into account of the settlement sum in exercising the discretion on costs.  In cases where the claimant did not have a reasonable prospect to recover more than the upper ceiling of the SCT jurisdiction under all heads of claim, the fact that the claimant had settled with a very small sum would be a major factor weighed against them for the court to exercise its discretionary power.  The bigger the difference between the settlement sum and the claimed amount, the larger the adverse inference that the court would draw against the claimant.

(iii)  Agreed proposed terms in the consent summons

49.  I am aware that in the Consent Summons, the defendant had agreed to the proposed term that ‘the costs of this action be paid by the defendant to the plaintiff on a party and party basis on a scale to be determined by the Court upon written submissions to be lodged by the parties’.

50.  I am of the view that the proposed scale of costs may be a relevant factor that the plaintiff had taken into account in reaching the decision to settle with the defendant. For example, it is inequitable for the defendant to go back on her words and argue that the costs should be taxed at a level similar to actions began in the SCT if they had preliminarily indicated that they would argue the costs to be taxed at the District Court scale.  If the defendant made it clear to the plaintiff in the proposed term of the Consent Summons that she would ask the court to order the costs be taxed at a level similar to actions began in the SCT, the plaintiff may not agree to settle for a low sum of HK$18,000.  Thus, in future, it is important for the defendant to state clearly their position on costs for any settlement for sums well under the lower end of the District Court jurisdiction.

51.  Having said that, any agreed term on the scale of costs is not absolute. The court retains discretion to deal with the issue of costs. The main test in deciding the scale of costs remains whether the plaintiff had a reasonable prospect in recovering more than HK$75,000. If the plaintiff has no reasonable prospect in reaching the District Court’s jurisdiction, the court may still order the costs be taxed at a level similar to actions began in the SCT despite the defendant had agreed otherwise.

52.  In a marginal case where the plaintiff may, or may not, be able to recover more than the ceiling of the SCT, ie HK$75,000, the court may place substantive weight to the parties’ agreement to decide the appropriate costs scale in the case. 

CONCLUSION

53.  Based on the reasons above, I direct the costs to be taxed at a level similar to actions began in the SCT in this case.