ONUMEME OKECHUKWU v. SECRETARY FOR JUSTICE

HCSA 26/2023

[2023] HKCFI 2535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 26 OF 2023

(On appeal from Small Claims Tribunal Claim No 44835 of 2021)

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BETWEEN

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DECISION

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Introduction

1.  This is the claimant’s application for leave to appeal against the order made by Mr Keith Tam, deputy adjudicator, on 26 July 2023 in the Small Claims Tribunal proceedings in SCTC 44835/2021.

The claims

2.  By a form of claim (Form 2) dated 23 December 2021, the claimant claimed that he was tortured and kept in the special unit of Stanley Prison, where he was affected by bacteria during the 90 days he was there and he was abused from May to August 2018. It was alleged that he was placed in the special unit “unlawfully punished”. The claimant originally sought HK$15,000 in earnings for being out of association and HK$55,000 for health issues caused by the bacteria and mental tortures punishment against him from the Correctional Services Department (the “CSD”) staff in 2018.

3.  It is apparent that at the very beginning, part of the claimant’s original complaint related to the CSD’s decision to keep him in the special unit of Stanley Prison. Any challenge to that decision would fall within the ambit of public law and not within the jurisdiction of the Small Claims Tribunal.

4.  From the Court’s record, the claimant was given leave to withdraw his claim for loss of earnings for being out of association on 29 September 2022. Therefore, only the claim for HK$55,000 for health issues allegedly caused by the bacteria and mental tortures from the CSD remained.

5.  As the incidents complained of were alleged to have happened in 2018, more than 3 years before the date of the Form of Claim, the issue of limitation arose.

6.  The issue of limitation was first raised by the defendant in their written submissions dated 13 January 2023. From the reasons of judgment dated 13 September 2023, it appears that the limitation issue was flagged as a preliminary issue on the first day of the trial but the Court decided to proceed with the trial regardless, because:

1) The trial had already commenced and the defendant did not make any application to strike out the claim on the basis of expiry of the limitation period; and

2) The claimant seemed to have a claim based on events which occurred in May 2021, prior to the expiry of the limitation period.

7.  The deputy adjudicator thus proceeded to consider the merits of the claims put forward by the claimant in the following manner:

27 May 2018 incident

8.  The claimant alleged that when he was subject to the prison adjudication process for being in possession of a piece of bread, he was refused medical attention when he felt unwell on 27 May 2018. The claimant alleged that being subjected to the prison adjudication process and the CSD not letting him see a doctor amounted to torture. This claim was rejected as the deputy adjudicator did not find the complaints in favour of the claimant and held that this claim was in substance a complaint against the prison disciplinary process which ought to have been pursued in the realm of public law.

16 July 2018 incident

9.  It was alleged that the claimant was kicked by various CSD officers on 16 July 2018. The deputy adjudicator rejected this claim on the following grounds:

1) The claimant’s version of events was inherently improbable, full of contradictions and hence was rejected in its entirety.

2) There are no medical records or eye witnesses showing the claimant had suffered from any injury as a result of the acts of the CSD.

3) The claim concerned events that occurred between May – August 2018. As the claimant only filed his claim in December 2021, his personal injuries claim would have been time-barred under section 27(4) of the Limitation Ordinance (Cap 347).

28 June 2018 to 16 July 2018 incidents

10.  The claimant also raised a claim for injuries sustained from being confined in the special unit for around 90 days for disciplinary offences from 28 June 2018 to 16 July 2018. He claimed to have suffered from a bacterial infection as the prison cell was dirty. He was unable to breathe and was hospitalised for 2 days. He coughed black substance from his mouth and nose and had lost his appetite. The deputy adjudicator rejected this claim for the following reasons:

1) The deputy adjudicator accepted the evidence of the defendant’s witnesses on the level of hygiene of the special unit.

2) The claimant had a duty to maintain and clean his own cell.

3) The claimant could have raised the unhygienic condition to the various different duty staff but no record of unsatisfactory situation was found in relation to the claimant’s cell in 2018.

4) No medical record was produced in support of the claimant’s allegation that the doctors told him that he suffered from a bacterial infection caused from the environment.

5) Results of the blood tests of the claimant were normal.

6) The claimant could not substantiate the suggestion that his medical records had been tampered with. To the contrary, a registered nurse had testified that none of the pages of the claimant’s medical record was missing, improperly altered or tampered with. No record of diagnosis of bacterial infection was found.

7) The claim that the burning mosquito coil caused the bacterial infection was without scientific basis.

20 May 2021 incident

11.  The claimant alleged that on 20 May 2021, when he was involved in a fight with another person in custody, he was pushed by an officer forcefully from the toilet into the dining hall. He sustained a wound on his hand from the fight with the other person in custody. The claimant alleged that he was treated unfairly by Officer Lee in the disciplinary process and by the doctor who did not take his injuries seriously, and that amounted to torture. The deputy adjudicator held that this was a matter to be dealt with by adjudication and the claimant had already appealed against the adjudication. The adjudication process, however unfair, could not sustain a claim in tort.

30 May 2021 incident

12.  The claimant claimed that he was mentally tortured in Stanley Prison on 30 May 2021. This was misleading as the claimant was in fact referring to events that took place in 2018. The deputy adjudicator rejected this claim as the psychiatrist did not conclude that he was mentally tortured. In fact, his opinion was the opposite: that the claimant was not psychologically affected by mental illness. In any event, such claim was time-barred.

The Decision dated 26 June 2023 and the Review

13.  The deputy adjudicator found none of the claimant’s complaints had been made out and dismissed the claimant’s claim, with costs to be payable to the defendant in the sum of HK$22,000 on 23 June 2023 (the “Decision”).

14.  The claimant lodged a review against the Decision on 10 July 2023. After confirmation, the claimant seemed to be only applying to review against the costs award (asking for no order as to costs), rather than the award itself (the “Review”).

15.  The deputy adjudicator dismissed the Review after the hearing on 26 July 2023, with reasons for Judgment handed down on 13 September 2023 (the “Review Judgment”).

Proposed grounds of the present appeal

16.  In their Form 9, the claimant put forward the following grounds to say that the decision is erroneous in point of law:

“[dis]agree on the Judgment of the Adjudicator on my claims over all and for awarding order to defendant.”

17.  Under the space where one is supposed to put down reasons why the award/order is outside the jurisdiction of the tribunal, the claimant put:

“I want to my case out from Tribunal because I did not ha[ve] a [fair] trial on 23 June and 26 July 2023. Judge did not let me summon the Doctors and Staffs involved on the case and award order.”

18.  At the hearing, the claimant clarified that he was appealing against both the Decision as well as the Review Judgment.

The Legal Principles

19.  Section 28(1) of the Small Claims Tribunal Ordinance, Cap 338 (the “Ordinance”), provides as follows:

“Any party who is aggrieved by a decision of the tribunal—

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.”

20.  The claimant did not argue that the claim was made outside the jurisdiction of the Court. Therefore, the claimant needed to show that a question of law is involved to justify leave being given.

21.  If the claimant wished to challenge a finding of fact by the deputy adjudicator, he must convince a judge of the Court of First Instance that the deputy adjudicator had erred in law in making such finding of fact. Otherwise, the weight and assessment of the parties' evidence and findings of fact by the deputy adjudicator would not involve any error of law. The claimant also needs to show that the question of law raised by them is reasonably arguable.

Discussion

Merits

22.  On the merits of the claims, I agree with the deputy adjudicator that except for the events on 20 May 2021 and 30 May 2021, the claims in relation to the other incidents were in any event time-barred. As to the 20 May 2021 claim, I agree with the deputy adjudicator that they were unsustainable as personal injuries claims, as at best they are claims against the process of the disciplinary procedure within Stanley Prison. As to the 30 May 2021 claim, there is simply no factual basis in support of the allegation (which happened in 2018), which would also have been time-barred in any event.

23.  At the hearing, the claimant submitted that the deputy adjudicator erred in law in refusing leave for the claimant to call certain witnesses. From the notes of the pre-trial review on 15 May 2023, it was recorded that the deputy adjudicator had ruled that as the witnesses sought to be called by the claimant were either irrelevant to the issues in dispute, or there was no name and address provided by the claimant, these witnesses would not be summoned. I do not see that the deputy adjudicator had erred in law in this regard.

24.  The claimant further submitted that he was deprived of the chance to obtain the CCTV footage or video evidence to prove his case on the 16 July 2018 incident. As the claim is already time-barred, whether there was CCTV evidence is irrelevant.

25.  The claimant complained at the hearing that the deputy adjudicator did not take into account his allegation that the defendant had deliberately withheld relevant documents and only disclosed documents which were to their benefit. This he said had prejudiced his preparation of the trial. I do not accept this complaint. The CSD was advised and represented by the Department of Justice. To allege that the CSD (and possibly the Department of Justice) had deliberately withheld relevant evidence is a very serious allegation to make and accordingly there needs to be sufficient evidence in support of it before it will be accepted. The claimant had provided no such evidence. The allegation was made purely out of the claimant’s suspicion or personal unsubstantiated belief and is rejected.

26.  The claimant alleged that the deputy adjudicator had misunderstood his claim on 30 May 2021, when he was in fact trying to refer to the incident on 20 May 2021. I see no merit in this complaint as the deputy adjudicator had in fact also dealt with the 20 May 2021 incident in the Review Judgment.

27.  The claimant submitted that the deputy adjudicator had erroneously held that there was no evidence in support of his claim when there was evidence such as D29, D58 and D59 (documentary evidence provided by the defendant). These are medical records in the relevant period. However, I fail to see how they support the claimant’s case in 2018. In other words, the claimant failed to demonstrate how the deputy adjudicator had erred in coming to the conclusion that there was no evidence in support of his claim.

28.  Based on the above, regarding the findings of fact in the Review Judgment, the claimant has not demonstrated how the deputy adjudicator had erred in law.

Costs

29.  The bulk of the costs awarded in the Decision seemed to have been incurred for the attendance of the defendant’s witnesses.

30.  The claimant had sought to review the issue on costs at the Review.

31.  The deputy adjudicator’s reasons for refusal of the Review are set out in paragraphs 55 – 65 of the Review Judgment where he had dealt with each of the grounds relied upon for the Review.

32.  The first ground was that the claimant was in prison earning only HK$700 a month and was unable to pay the costs award in the sum of HK$22,000. – I agree with the deputy adjudicator that impecuniosity of a party is not a reason to depart from the usual costs order, which is: “costs follow the event”. As the claimant has failed in his claim, there is no reason why he should not be liable or costs.

33.  The second ground is that the Court should have struck out the case earlier if the claims are time-barred. I am of the view that there is no basis for the claimant to raise this argument. The issue of limitation was raised by the defendant as early as January 2023 and by the Court on the first day of the trial but the claimant had insisted in pursuing the claim. More importantly, the Court was misled into thinking that one possible cause of action happened in 2021 (hence was not time-barred) when in fact the alleged event happened in 2018. Thus, although normally the Court ought not to have entertained claims which have been time-barred, due to the convoluted way that the claims were presented, I do not consider the deputy adjudicator to have erred in law, in proceeding with the trial to avoid mistakenly striking out claims which in effect had not been time-barred.

34.  The third ground is that medical records have been tampered with. The claimant was however, not able to provide any basis to suggest in what way such records were tampered with. I agree that there is no substance in this ground.

35.  The fourth ground is that the costs of calling certain of the defendants’ witnesses should be disallowed. No prior objection was raised by the claimant on the calling of such witnesses. In fact, the claimant had cross-examined all of them at trial. There is no basis for this complaint.

36.  I am of the view that the deputy adjudicator’s reasons for refusing the review application are sound.

37.  I see no viable ground of appeal on a point of law, both in relation to the merits of the claims and in relation to the costs award. There is no prospect of success in the claimant’s intended appeal.

Conclusion

38.  For the above reasons, I dismiss the claimant’s application for leave to appeal. There be no order as to costs.