MD TANJER v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 3804/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3804 OF 2011

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DECISION

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INTRODUCTION

1.  By a summons dated 19th July 2016 (“the Summons”), the defendant applied for an order that the plaintiff’s costs payable by the defendant in this action up to the date of the acceptance of the sanctioned payment be assessed on a scale similar to that for cases brought before the Small Claims Tribunal (“SCT”).

BACKGROUND

2.  The plaintiff issued a writ of summons together with the statement of claim on 4 October 2011 (“SoC”). The background of plaintiff’s claims as stated in his SoC is as follows:

(1)  The plaintiff was born in Bangladesh on 2 January 1985.

(2)  He entered Hong Kong on 6 October 2007 and was arrested by the Police on the same day.

(3)  The plaintiff was detained at the Castle Peak Bay Immigration Centre (“CIC”) since about 10 October 2007.

(4)  The plaintiff lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) by a written representation dated 10 October 2007, which was received by the Director of Immigration (“the Director”) on the same day.

(5)  After the plaintiff had made the relevant CAT claim, he was detained pursuant to section 32 of the Immigration Ordinance (“IO”) until he was released on recognizance on 11 December 2007.

3.  Without prejudice to the burden of the Director to justify the detention as being lawful under section 32 of the IO, the plaintiff further contends that:

(1)  There was no published policy as to how the power of detention under section 32 of the IO was to be exercised at the time the plaintiff was detained;

(2)  The plaintiff’s detention under section 32 of the IO, commencing from the date when his CAT claim was received by the Director on 10 October 2007 and ending on the date when he was released on recognizance on 11 December 2007, was contrary to section 8, article 5(1) of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap.383 and was unlawful.

4.  The plaintiff therefore claims that he has sustained loss and damage for loss of liberty from 10 October 2007 to 11 December 2007, a total period of 63 days.

5.  However, it was later conceded by the plaintiff in a “without prejudice save as to costs” letter dated 15 April 2014 to the Department of Justice (“DoJ”), who represents the Director, that, “for the purposes of settlement”, the plaintiff’s solicitors would estimate that a proper period of lawful detention under sections 26(a), 32(1)(a) and 32(2A)(a) of the IO  should be about 4 days, namely, from 10 to 14 October 2007.  In other words, the plaintiff’s solicitors contended that the plaintiff was unlawfully detained for 59 days at the CIC.  Based on an estimate of $1,000 per day, the plaintiff claimed a sum of $59,000 as damages in this action.  The plaintiff’s solicitors ended the letter by requesting a full response from DoJ within 7 days of that letter. 

6.  DoJ had never replied to the plaintiff solicitors’ above without prejudice letter nor had entered into any dialogue for negotiations. 

7.  More than 2 years later, on 6 June 2016, quite out of the blue, DoJ suddenly wrote to the plaintiff’s solicitors, in an “open letter”, indicating that they would be filing and serving a notice of sanctioned payment (“NoSP”) in the case on that day.  By the NoSP, DoJ stated that it had instructions to put in a sum of $35,000 in full and final settlement of the plaintiff’s claim in this action.  They further stated that the defendant would apply to the court for a costs order that the plaintiff should be awarded costs, up to the date of the notice of acceptance to be filed and served in this action, on a scale similar to that for cases before the SCT or a taxation basis (otherwise than the District Court scale) as the court sees fit, by invoking the “otherwise proviso” under Order 22, rule 20(1) of the Rules of the District Court, Cap. 336H (“RDC”).

8.  On 7 June 2016, the defendant’s solicitors, served the NoSP on the plaintiff’s solicitors stating that the defendant had paid a sum of $35,000 into court in settlement of the whole of the plaintiff’s claim in the proceedings (“the Sanctioned Payment”).

9.  On 10 June 2016, the plaintiff’s solicitors filed a notice of acceptance of sanctioned payment (“NoA”) and accepted the Sanctioned Payment.

DISCUSSION

A. Applicable legal principles

A1. The prima facie rule

10.  Order 22, rule 20(1) of the RDC states:

“Where a defendant’s sanctioned offer or sanctioned payment to settle the whole claim is settled without requiring the leave of the Court, the plaintiff is entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the Court otherwise orders.” Hong Kong Civil Procedure 2017 (“HKCP 2017”) §22/21 [emphasis added]

A2.  The “exceptional circumstances” rule

11.  The law on this particular rule, namely, of how the court should exercise the discretion under the phrase “unless the Court otherwise orders” (“the Otherwise Proviso”) has been analysed by Poon J (as he then was) in Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184.  At §§14-26 of the judgment, the learned judge laid down the proper approach in the operation of Order 22, rule 20(1) of the RDC.  The following passages are relevant:

“18.  In my view, Order 22, rule 20(1) plainly envisages that upon acceptance of the sanctioned payment or sanctioned offer, the plaintiff is, as a prima facie rule, entitled to his costs of the proceedings up to the date of serving notice of acceptance. The prima facie rule may, however, be displaced when the court orders otherwise by applying the Otherwise Proviso.

20.  By virtue of the Otherwise Proviso, the court retains the discretion to depart from the prima facie rule where necessary. But the discretion should only be exercised in exceptional circumstances that clearly warrant a different costs order. Otherwise, the certainty as to costs consequences created by the prima facie rule, one of the very important features underpinning the effectiveness of sanctioned payments and sanctioned offers, will be greatly diminished.

21.  While it is impossible and indeed imprudent to exhaustively state the exceptional circumstances that justify the departure from the prima facie rule, which by definition must be rare, the burden rests squarely on the party seeking to invoke the Otherwise Proviso to establish such circumstances. The court will not lightly displace the prima facie rule until and unless that the applicant has discharged the burden to its satisfaction.

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23.  Further, when applying the Otherwise Proviso, the court is in effect depriving the plaintiff his costs or even ordering him to pay the defendant costs. The plaintiff will be significantly disadvantaged. In my view, fairness dictates that the plaintiff, who is considering whether to accept the sanctioned payment or sanctioned offer, should be given a prior warning that the defendant will apply to invoke the Otherwise Proviso and how it is to be invoked. The plaintiff can then make an informed decision whether to accept the payment or offer with the full knowledge that upon acceptance, the prima facie rule on his entitlement as to costs may be displaced. Further, if a defendant is allowed to invoke the Otherwise Proviso without giving the prior warning, a plaintiff who has accepted the payment or offer on the faith that he would be entitled to recover his costs up to the date of serving notice of acceptance would never know if at the next moment the defendant would apply for a different costs order. The certainty as to costs created by the prima facie rule will be gone. Faced with the uncertainty as to costs, the plaintiff would be greatly handicapped in deciding if he should accept the payment or offer in the first place. It would render the operation of sanctioned payments and sanctioned offers ineffectual.

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26.  In sum, the prima facie rule in Order 22, rule 21(1) should apply unless (1) the defendant discharges the burden of showing exceptional circumstances that justify a departure; and (b) he has given a prior warning to the plaintiff the he will apply to invoke the Otherwise Proviso upon acceptance of the sanctioned payment or sanctioned offer.”

A3.  The “reasonable prospect” test

12.  In Leizel Dalere Ramones v Lee Kut Tung, unrep., HCPI 1264 of 2015 (Master Leong; 28.10.2016) at §7, the learned master summed up the law on what would be considered as “exceptional circumstances” to justify a departure from the prima facierule. I would summarize them as follows:

“(i)  where the plaintiff accepts an amount less than the jurisdiction of the court in which proceedings were taken out as settlement (in that case the High Court and in our case the District Court);

(ii)  the court will still apply the “reasonable prospect” test, namely, whether at the commencement of the proceedings, given the information and evidence then available to the plaintiff, there was a “reasonable prospect” of recovering an award in excess of the District Court jurisdiction (in that case) and at a level similar to actions began in the SCT (since there is no scale of costs at the SCT) in our case, with the claim being evaluated on the basis of full liability (“the reasonable prospect test”).”

13.  Hence, the burden is on the defendant who is seeking to invoke the “Otherwise Proviso” to establish such exceptional circumstances that would justify a departure from the prima facierule under Order 22, r 20(1) of the RDC.

B.  Applying the law to our present case

B1.  Whether the case should have commenced in the District Court?

14.  Mr Stanley Ng, on behalf of the defendant, argues that the plaintiff’s final award of damages at $35,000 (which was by way of acceptance of the Sanctioned Payment) is “well below” the District Court’s jurisdictional limit of $50,000 and the plaintiff should therefore not have commenced his action in the District Court in the first place.

15.  Mr Ng contends that at the time of commencing of the proceedings, given the information and evidence then available to the plaintiff, there was no “reasonable prospect’ of the plaintiff in recovering an award in excess of, in the context of our case, the SCT jurisdiction.  In this regard, the defendant says that the plaintiff’s claim for unlawful detention, as contained in the SoC, is only based on the lack of published policy as to how the power of detention under section 32 of the IO was to be exercised, hence contrary to Art 5(1) of HKBORO.  The defendant further complains that the plaintiff had never pleaded his detention was in breach of any of the Hardial Singh principles and therefore such principles cannot form any part of the plaintiff’s framed case.

16.  With respect, I do not agree.

17.  First, I think it is only fair to describe the law governing unlawful detention in CAT cases was still rather uncertain and very much “in a flux” at the time of the plaintiff issued the writ of summons in October 2011.

18.  While I note that in the first instant decision of Ghulam Rbani v Secretary for Justice for and on behalf of Director of Immigration, unrep., DCCJ 531 of 2010 (HH Judge Leung; 13.10.2011), Judge Leung followed the decision of the Court of Appeal (“CA”) in Ubamaka v Secretary for Security [2011] 1 HKLRD 359 and MA v Director of Immigration, unrep., HCAL 10 of 2010 and concluded that the Immigration Reservation had excepted section 32 of the IO and its application from the application of HKBORO. That case went through the appeal mechanism and went all the way to the Court of Final Appeal (“CFA”) which judgment was handed down on 13 March 2014: see Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138.

19.  Further, Judge Leung when formulated his view of what the CA stated in respect of the scope of section 11 of the HKBORO, specifically mentioned that it was a “statement of law of general importance”: Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration, (DC), supra at §43, 44. Hence, I think he was fully expecting that the case would go further.

20.  I also could not agree with the defendant’s contention that the plaintiff’s case as contained in the SoC was only based on the lack of published policy as mentioned above.  In fact, the SoC has specifically contained a plea of “without prejudice to the defendant to justify the plaintiff’s detention under section 32 of IO”: (See §3 of SoC).  Such plea as Judge Leung stated in §21 of Mushtaq otherwise known as Mahmood Rijasat v Secretary for Justice (DCCJ 1766/2010) and Shahzad Saleem v Secretary for Justice, (DCCJ 1875/2011) (heard together), unrep., (HH Judge Leung; 14.11.2014), which contained a similar plea, would protect a claimant and have the effect of shifting the burden of proof to the defendant to justify such detention.  In that case, the defendant failed in his application to strike out the claimants’ actions which was made after the delivery of the CFA’s judgment in Ghulum Rabani, (CFA), supra earlier that year.   

21.  I further agree with Mr John Pickavant, who represents the plaintiff in this case, that statements of claim containing such pleas would leave the Director in no doubt that the lawfulness of the detention is put in issue and damages are claimed for wrongful detention.  Thus, even if the grounds of challenge originally pleaded in the statements of claim may have become unarguable at a later stage (for example, due to the changes of the law), it does not mean that that whole basis of the claim would fall away.  At least it would not, in my view, deduct the plaintiff’s primary contention that it is the Director who bears the burden of proof to justify the detention was lawful.  Obviously, when the Director tries to justify the lawfulness of the detention in the defence, the plaintiffs will of course be entitled to deal with such matters in their reply.

22.  On the actual amount of damages received by the plaintiff in this case, both parties accepted that there is no pure arithmetic approach in assessing damages in such alleged torture claimants’ unlawful detention cases.  Generally speaking, “for a short period of false imprisonment, the award can be, relatively speaking, substantial, while for any further period of unlawful detention, the progressive reducing scale will be very steep”: See, for example, Mohammad Iftikhar v Secretary for Justice for and on behalf of the Secretary for Security and Another, DCCJ 2188 of 2013, unrep., (HH Judge Andrew Li; 5.9.2016) at §18; Abid Saeed v Secretary for Justice; A others v Director of Immigration [2015] 1 HKLRD 1030 at p 1101, §276.

23.  I further agree with Woo V.P.’s comment below in Cheung Yu Tin Alvin v Ho Hon Ka [2006] 3 HKC 473, at §42 that a “certain leeway” must be given to any assessment of damages cases:

“While appreciating that a certain leeway must be given to the assessment of the quantum of the damages, the award made by the judge clearly demonstrates that had an assessment been reasonably or properly made, the plaintiff would not recover anything close to $50,000.” [emphasis added]

24.  Mr Ng contends that the plaintiff’s condition is “less serious” than the claimant in A & Ors v Director of Immigration [2009] 3 HKLRD 44, where the period of detention was 3 months. He further suggests that there were other peculiar circumstances of the claimant in that case, including the detention’s effect of his intending marriage, hunger strike and the suggestion of some depression for which he had received treatment which had also been taken into account in the assessment of damages: A & Ors v Director of Immigration, supra at §92.

25.  However, in my view, it is difficult to make a direct comparison of such cases as each claimant’s circumstances are unique.  But I do agree that as a general rule of thumb, for relatively short periods of detention, a daily sum of $1,000 may consider as appropriate: see for example Abid Saeed, supra, Ghulam Rbani (CFA), supra and A v Director of Immigration, supra. 

26.  Thus, seeing the matter in this light, in my judgment, this action is not a case where the plaintiff clearly is recovering a sum “well below” the jurisdictional limit of the District Court at the commencement of the proceedings as Mr Ng has contended.  I am not satisfied that it was obvious to the plaintiff or his legal advisers, at the time of issuing of the writ of summons, that this case should have been commenced in the SCT rather than the District Court.  

27.  In passing, I would like to note that in some of these alleged torture claims, I have seen sums as low as $12,000 to $15,000 have been accepted by a number of such claimants.  Those cases possibly would, in my view, more likely come close to what Mr Ng’s definition of “well below” the District Court jurisdiction. However, I would like to  emphasize that each case must be considered individually according to its own unique facts and circumstances and the court must be slow in displacing the prime facie rule.

B2.   Whether the case should have continued in the District Court?

28.  I now turn to consider whether there was any “reasonable prospect” of the Plaintiff in recovering a sum within the District Court jurisdiction during the course of the proceedings.

29.  In light of the “underlying objectives” laid down by the Civil Justice Reform (“CJR”), parties are expected to continually monitor the prospect of the claim, so the “reasonable prospect” test should, in my view, not only be applied at the commencement of the proceedings but should also be applied during the entire proceedings when further evidence and information become available.  Thus, the court has the discretion to decide that at a certain point of time in the proceedings, the case should have been transferred to a lower court and thus the costs thereafter should be assessed on a scale similar to cases before the lower court: see Leizel Dalere Ramones v Lee Kut Tung, supra at §11.

30.  Mr Ng argues that the plaintiff’s allegations as claimed in his pre-action letter dated 26 August 2011 at §1-4, ie he was subject to strip search, under a lot of mental stress as it was inconvenient to contact his family from the CIC, the environment at CIC was unhygienic and he was unable to sleep almost every night as the room lights had to be turned on, were never pleaded or particularized in his SoC.  Further, Mr Ng submits that the Plaintiff only claims for ordinary damages but not other types of damages like aggravated or exemplary damages.   

31.  However, in my view, one has to bear in mind that, according to the without prejudice letter dated 15 April 2014 sent by the plaintiff’s solicitors to DoJ (which was issued about a month after the CFA judgment in Ghulum Rbani (CFA), supra was delivered in March 2014), it has been specifically mentioned by the plaintiff’s solicitors that the claims for damages for unlawful detention including a breach of the 4th Hardial Singh principle established in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704. In my view, by doing so, the plaintiff has put the matter in issue.

32.  Sadly, there was no reply from the DOJ to that letter. 

33.  As such, all the above issues, in my view have been alive to the defendant when they decided to make the Sanctioned Payment, even though he has not made his position clear by way of responding to either the plaintiff’s pre-action letter or the without prejudice letter dated 15 April 2014.  While the plaintiff might not have pleaded them in the SoC, these matters in my view can easily be put right by way of an application to amend his pleadings in light of the changes of the law. 

34.  Hence, I do not agree with Mr Ng’s contention that the plaintiff should have discontinued the action in the District Court during the course of the proceedings and applied to transfer the matter to the SCT in this case.

35.  I echo with Poon J (as he then was) in Ertratech Asia-Pacific Ltd, supra at §21that the “exceptional circumstances” that justify the departure from the prima facierule must be rare and the court will not lightly displace the prima facierule until and unless the defendant has discharged the burden of showing any exceptional circumstances.

36.  In my judgment, the defendant has failed to establish such exceptional circumstances in this particular case.

CONCLUSION

37.  Based on the above, I am of the view that, even though the defendant has given prior written warning to the plaintiff that they would apply to invoke the “Otherwise Proviso”, the defendant has not discharged the burden of showing exceptional circumstances that would justify a departure from the prima facierule under Order 22, rule 20(1) of the RDC.

38.  In the circumstances, I would dismiss the Summons issued by the defendant with costs in favour of the plaintiff, such costs to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with the legal aid regulations.