SRI PURWATI MUHASIM v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 5953/2021

[2024] HKDC 1314

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5953 OF 2021

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DECISION

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INTRODUCTION

1.  There is before me an application for a determination on paper by the court of whether the costs ordered by consent against the Defendant (“D”) should be on the District Court scale or otherwise and for summary assessment of those costs.

BACKGROUND AND PROCEDURAL HISTORY

2.  The Plaintiff (“P”) issued a Writ of Summons together with a Statement of Claim (“SOC”) on 31 December 2021 against the Defendant (“D”). According to the SOC, P claims as follows:

(1)  She was born in Indonesia in 1977;

(2)  She lodged a claim under the Unified Screening Mechanism on around 27 September 2018;

(3)  She was detained at the Castle Peak Bay Immigration Detention Centre by the Director of Immigration from 27 April 2019 to 27 July 2019 (“the Detention”) unlawfully in breach of the Hardial Singh principles;

(4)  During the Detention, she was subjected to degrading treatment as she was forced to strip and pose nude in the sight of other detainees;

(5)  As a result of the loss of liberty and the degrading treatment, she suffered from adjustment disorder; and

(6)  She claims damages, interest and costs for the wrongful detention.

3.  By letter dated 8 April 2024 to P’s solicitors, the Department of Justice (“DOJ”), on behalf of D, made a sanctioned payment in the sum of HK$18,029 (“the Sanctioned Payment”) in settlement of the whole of P’s claim in this action. Notice was given therein that if P accepts the Sanctioned Payment, D would apply to the court for a costs order that P should be awarded costs, up to the date of filing and serving the Notice of Acceptance, on a scale similar to that for cases before the Small Claim Tribunal (“SCT”) or on a taxation basis otherwise than the District Court scale by invoking the “otherwise proviso” under O 22, r 20(1) of the Rules of the District Court, Cap 336H (“RDC”).

4.  On 15 April 2024, P rejected the Sanctioned Payment.

5.  By a further letter dated 30 April 2024 to P’s solicitors, DOJ made a final open offer in the sum of HK$20,000 (inclusive of interest) plus costs, in full and final settlement of P’s claim (“the Open Offer”). It was stated therein that since the sum was well below the jurisdictional limit of the District Court, formal notice and warning is given that if P accepts the offer, D would apply to the court for a costs order that P should be awarded costs, up to the date of acceptance of the offer on a scale similar to that for cases before the SCT or on a taxation basis otherwise than the District Court scale by invoking the “Otherwise Proviso” under O 22, r 20(1) of RDC.

6.  On 17 June 2024, P accepted the Open Offer but did not agree on costs to be awarded on a scale similar to that for cases before the SCT.

7.  By Consent Summons filed on 20 June 2024 (“the Consent Summons”), the parties sought and obtained by Order of His Honour Judge Andrew Li of 21 June 2024 (“the Order”) inter alia an order that on a without admission of liability basis, D pays to P a total sum of HK$20,000 inclusive of interest (“the Settlement Sum”) in full and final settlement of P’s claim in this action. The Settlement Sum was to be satisfied by payment out to P through P’s solicitors the Sanctioned Payment paid into court by D on 8 April 2024 and the balance in the sum of HK$1,971 be paid to P through P’s solicitors.

8.  Pursuant to the Order, the parties have lodged written submissions on the scale/level of costs of this action, including the application by Consent Summons, and Statements of Costs for the summary assessment of such costs.

D’s SUBMISSIONS ON THE SCALE OF COSTS

9.  Ms Zhi, counsel for DOJ, has submitted that this court has a wide discretion as to costs under s 53(1) of the District Court Ordinance, Cap 336 (“DCO”) which provides:

“The costs of and incidental to all proceedings in the Court, … are in the discretion of the Court, and the Court has full power to determine by whom and to what extent costs are to be paid.”

10.  Furthermore, O 62, r 2(4) of RDC provides that:

“The powers and discretion of the Court as to costs under sections 53 and 53A of the [DCO] … shall be exercised subject to and in accordance with this Order.”

11.  Order 62, r 5(1) of RDC sets out a list of factors that the Court shall, as it may be appropriate in the circumstances, take into account in exercising its discretion as to costs. The factors submitted as relevant to the present case are:

“(aa) the underlying objectives set out in Order 1A, rule 1;

…

(e) the conduct of all the parties…”

12.  In this regard, Ms Zhi cited May Fung Co Ltd v Wing Lung Industrial Ltd [2009] 5 HKLRD 590 where at §8, Lam J (as he then was) held that the underlying objectives in O 1A, r 1 point to the importance of conducting litigation in the appropriate forum. When a claim falls within the jurisdiction of the District Court, a plaintiff who chooses to commence the action in the Court of First Instance is expected to explain why such a course is adopted when the question of costs is considered. The learned judge further held:

(1)  Prima facie, it is not cost-effective to pursue a claim in a more expensive manner by litigating in the Court of First Instance as opposed to the District Court (see §9);

(2)  In many cases, such a choice of forum would not be proportionate (see §10); and

(3)  In the absence of good reason to proceed in the Court of First Instance, litigating matters that could be dealt with in the District Court is also inconsistent with the fair distribution of judicial resources (see §14).

13.  In Sundari v Secretary for Justice [2023] 4 HKLRD 735, His Honour Judge Andrew Li also considered whether the costs of the proceedings for damages for unlawful detention (in that case for a period of 92 days which had been settled for HK$18,000) should be taxed at a level similar to actions begun in the SCT. The learned judge held inter alia:

(1)  Applying May Fung Co Ltd, 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 (see §19);

(2)  Referring to the “reasonable prospect” test as stated in Wong Chim Hing v Discovery Bay Transit Services Ltd [2016] 1 HKC 491 at §23, the main test in deciding the scale of costs remains whether the plaintiff had a reasonable prospect in recovering more than HK$75,000, being the limit of jurisdiction of the SCT (see §§21 and 51);

(3)  The test was extended to cover not only the commencement of proceedings but also the course of development of the proceedings. When further evidence and information becomes available, there is a continuing duty to assess the reasonable prospect of the plaintiff’s claim (see §§22-24 referring to the unreported decision of Master Leong in Leizel Dalere Ramones & Anor v Lee Kut Tung, HCPI 1264/2015, 28 October 2016);

(4)  Referring to the approach in Cheung Yu Tin v Ho Hon Ka [2006] 2 HKLRD 674 per Woo V-P at §31, the court should adopt a broad-brush approach and give certain “leeway” to an assessment of damages (§25);

(5)  It is important to note that in unlawful detention cases, the claim is for non-pecuniary loss and 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 (§26);

(6)  In cases where the plaintiff 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 plaintiff had settled with a very small sum would be a major factor weighing 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 plaintiff (§48); and

(7)  Whilst the parties’ agreement on the scale of costs in settlement of the sums is not absolute, and the court may order costs be taxed at a level similar to actions began in SCT where the plaintiff had no reasonable prospects in recovering more than HK75,000 even if the defendant had agreed otherwise, in a marginal case, the court may place substantive weight on the parties’ agreement to decide the appropriate costs scale (§§50-52).

14.  Ms Zhi also referred to and relied on the case of Cheung Yu Tin where the Court of Appeal held that costs of the action, which was unreasonably commenced in the District Court, should be taxed on a scale similar to the SCT.

15.  Ms Zhi submitted that applying Sundari (the facts which resemble the present case), there was no reasonable prospect for P to recover more than HK$75,000 for the following reasons:

(1)  The Detention was for 92 days. As held in Sundari (see §29) the court would unlikely find the entire period of detention was in breach of the Hardial Singh principles;

(2)  There was a late filing of P’s appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and a substantial period of P’s detention was for the purpose of pending determination of P’s appeal. However, as held in Sundari (see §29), it takes a reasonable time to effect release from detention even though it should be apparent that the Director will not be able to effect deportation within a reasonable time; and

(3)  P was only stripped searched once but was not handcuffed during the Detention. As held in Sundari (see §§35-36), handcuffing and body/strip searches may be justified and even assuming they were unjustified, would only give rise to nominal damages.

16.  It was further submitted that when considering the factors under O 62, r 5(1) of RDC, it was not cost-effective to pursue a claim in a more expensive manner when the settlement sum of HK$20,000 falls within the exclusive jurisdiction of SCT.

17.  Moreover, given the warning that D would seek costs to be assessed on a scale similar to that for cases before the SCT, it would not be unjust to P.

P’s SUBMISSIONS ON THE SCALE OF COSTS

18.  On the other hand, solicitors for P have submitted that costs should be on the District Court scale.

19.  Firstly, relying on the following cases, it was submitted that it was reasonable for P who was detained for 3 months to commence these proceedings in the District Court instead of SCT:

(1)  MD Tanjer v Secretary for Justice sued for and on behalf of Director of Immigration (unrep), DCCJ 3804/2011, 24 January 2017 at §22, where His Honour Judge Andrew Li held that: “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’ quoting the learned judge’s decisions in Mohammad Iftikhar v Secretary for Justice for and on behalf of the Secretary for Security and Another, (unrep) DCCJ 2188/2013, 5 September 2016 at §18 and Saeed v Secretary for Justice [2015] 1 HKLRD 1030 at §276;

(2)  A v Director of Immigration [2009] 3 HKLRD 44 where “A” who was detained for 3 months was awarded HK$80,000 and “YA” who was detained for 156 days was awarded HK$100,000; and

(3)  Saeed where the applicant was detained for 107 days and was awarded HK$100,000.

20.  Secondly, it was submitted that a pre-action letter was sent to DOJ on 15 December 2021 stating, “We would advise our client to enter into negotiations for settlement at this stage by all suitable means whether by way of without prejudice negotiations and/or other mode(s) of ADR”. However, DOJ did not respond and had DOJ responded these proceedings could have settled as early as the pre-action stage.

21.  It was further asserted against DOJ that there was no reasonable justification “for lingering the captioned matter and incurring unnecessary costs and disbursements before deciding to make the sanctioned payment to settle the captioned matter.”

DISCUSSION

22.  In M Beraha & Co Ltd v Ng Wai Lun (unrep) CACV 256/2003, 18 June 2004, Woo VP (giving the reasons for judgment of the Court of Appeal) held that whilst there is no provision in the DCO giving express power to the District Court to order costs to be taxed on SCT scale, O 62, r 3(2) combined with O 62, r 9(4)(b) of RDC are wide enough to entitle the District Court to order costs to be not more than a specified sum, or to be assessed on a basis, for want of a more certain term, similar to the scale applied in the Small Claims Tribunal. Furthermore, the learned judge held that if one adopts a purposive approach to interpreting the RDC there would be even fuller justification for a District judge to have discretion to order costs to be in accordance with the scale of the SCT in an appropriate case. One of the main purposes of establishing the SCT and let litigants have resort to it is to let the parties resolve their disputes on matters within the monetary jurisdiction of the SCT without incurring the expense of retaining legal services (which normally would involve a rather substantial amount) and at the same time would not have the effect of an unrepresented litigant having to fear the imbalance of power caused by a lawyer representing the other side while he himself does not have legal representation. Moreover, given the limited right of appeal against decisions of the SCT, finality of litigation is thus more speedily achieved. (See §§33-34.)

23.  I am therefore satisfied that I do have a discretion to order costs of these proceedings to be in accordance with the scale of the SCT.

24.  As to whether it would be appropriate to exercise this discretion in the present case, I am also satisfied from the authorities submitted to me that the ultimate question is whether it was reasonable for P to commence and persist in pursuing the present action in the District Court. See eg Cheung Yu Tin, §§26-33 (per Woo VP), §§46-48 (per Cheung JA); and M Beraha & Co Ltd, §35.

25.  Moreover, in the exercise of my discretion I must give effect to the underlying objectives as required under O 62, r 5(1) and O 1A, r 2(1) of RDC.

26.  As explained in May Fung Co Ltd at §8, the underlying objectives (a) (to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the court), (c) (to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings) and (f) (to ensure that the resources of the Court are distributed fairly) all point to the importance of conducting litigation in the appropriate forum.

27.  Furthermore, the choice of forum is part and parcel of the manner in which a plaintiff prosecutes his or her case, which is a matter relevant to the question of costs. Order 62, r 5(1)(e) of RDC provides that the conduct of the parties is to be taken into account in exercising the court’s discretion on costs: see ibid at §15.

28.  In considering whether it was reasonable to commence the proceedings in the District Court as opposed to in the SCT, the most important question is whether the plaintiff enjoyed reasonable prospect to recover more that the limit of the SCT: see Cheung Yu Tin, §§31 and 47; May Fung Co Ltd, §20; Wong Chim Hing, §§18-19 and 23; and Sundari, §§20-21.

29.  However, there may also be other considerations such as the complexity of the factual and legal issues involved and the need for legal representation: see Wong Chim Hing, §21. That said, as held by His Honour Judge Andrew Li in Sundari, there can be no suggestion that the SCT is not a suitable forum for simple unlawful detention claims or that plaintiffs who are not legally represented in the SCT would have difficulty in prosecuting their claims in the SCT. Assistance may be sought from other resources such as Free Legal Advice Scheme of the Duty Lawyer Service or other pro bono services in our community (see §§28, 40-42). In any event, in the present case, these are not matters relied upon by P for commencing these proceedings in the District Court.

30.  Essentially, P has submitted that she enjoys a reasonable prospect to recover a substantial award in the sum of HK$80,000 or HK$100,000 based on the awards in A & Ors and Saeed because she was detained for 92 days.

31.  However, it should be pointed out because the Court of Appeal (see A(Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752) held there was no published policy as to the circumstances under which the power to detain under s 32 of the Immigration Ordinance, Cap 115 (“IO”) would be exercised, the entire period of the applicants’ detention were held to be unlawful in A & Ors. Similarly, in the case of Saeed, the whole 105 days detention was conceded to be unlawful.

32.  In the present case, it is claimed that the Detention was unlawful in failing to meet the Hardial Singh principles. It is clear to me that it is unlikely for any court to find that the detention of a detainee fails to meet the Hardial Singh principles from the very start of the immigration detention.

33.  As explained by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99 at §§51-52, an initially lawful detention may be turned into unlawful detention if it fails to meet the Hardial Singh principles, which can be broken down into four points:

(1)  The Secretary for Security (“the Secretary”) / Director of Immigration (“the Director”) must intend to deport the person and can only use the power to detain for that purpose;

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances;

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/ Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(4)  The Secretary/ Director should act with reasonable diligence and expedition to effect removal.

34.  It is pertinent to note that the Court of Appeal in Harjang Singh held that there is no “red line” applicable to every case in terms of months or years, beyond which time the detention becomes unreasonable. What is a reasonable length or period of detention will depend upon the circumstances of a particular case, taking into account all relevant factors which includes at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences (see §§54-55).

35.  As was accepted by His Honour Andrew Li in Sundari at §29, where the plaintiff has been detained for 92 days, it is unlikely the court will find that the entire 92 days were in breach of the Hardial Singh principles. Detention cannot be unlawful from the very first day because even if it was apparent to the Secretary or the Director by reason of the on-going non-refoulement claim (“NRC”) that the Secretary or the Director cannot effect deportation within a reasonable time, it would necessarily have taken some time to effect the plaintiff’s release. So long as the Secretary or the Director acted with reasonable diligence and expedition before the expiry of reasonable period of time, there can be no breach of the Hardial Singh principles.

36.  Moreover, in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 at §29(3), the Court of Appeal has held that in general, any period of detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behavior or conduct should not be counted or regarded as an unreasonable period of detention for the purposes of determining whether an originally lawful detention has become unlawful, unless there are circumstances to show otherwise. In that case, the applicant (who had been detained for 494 days by the time the judge at first instance heard his habeas corpus application) had unreasonably delayed the processing of his NRC and the judge accepted that had he chosen to pursue his claim with some diligence his NRC might have been resolved long before the immigration detention commenced. The Court of Appeal held that the learned judge’s decision that the applicant’s detention had exceeded a reasonable period in the circumstances is not consistent with this primary fact and was not sensible open to him on the basis of that fact (see §§23, 25, 26 and 29(1)).

37.  In the present case, even on P’s own pleaded case, she first lodged a NRC before the commencement of the Detention on 27 September 2018.

38.  In fact, as pleaded in the Defence, as early as 30 November 2018, P’s NRC was rejected by the Director. On 4 March 2019, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office allowed P’s late filing of her Notice of Appeal/Petition against the Director’s decision which was dismissed on 28 June 2019. Accordingly, had she filed her appeal/petition within the 14 days as required under s. 37ZS of IO, her NRC might well have been resolved before the commencement of the Detention.

39.  In all, I cannot see how there was any reasonable prospects for P to recover more than HK$75,000.

40.  Moreover, when one compares the Settlement Sum with the costs sought in the Statement of Costs lodged by P’s Solicitors (seeking a total of HK$90,655.33), it can immediately be seen it was wholly disproportionate to commence and continue these proceedings in the District Court.

41.  However, I would accept that at the time of commencement of these proceedings, P’s solicitors would not have had the benefit of the decisions such as Sundari and Johnson Benjamin which could have guided their assessment of the reasonable prospects of P’s claim and the costs consequences for commencing the claim in the District Court.

42.  Furthermore, given the total lack of response to the pre-action letter by P’s solicitors and no explanation why DOJ’s offers in April 2024 to settle these proceedings were made at the very late stages of these proceedings (the trial of this action had long been set down and was scheduled to commence on 20 May 2024), there is basis for the complaint that DOJ has lingered and caused unnecessary costs to be incurred.

43.  After the Civil Justice Reform, parties to any proceedings and their legal representatives have the duty to assist the Court to further the underlying objectives of the Rules of the Court which include: to increase the cost effectiveness of any practice and procedure in relation to proceedings before the Court, to promote a reasonable proportion and procedural economy of these proceedings, to facilitate the settlement of disputes and to ensure that the resources of the Court are distributed fairly: see O.1A, r.3 of RDC.

44.  In the present case, both parties and their legal representatives had a duty to further the underlying objectives by conducting this litigation in the appropriate forum and settling the dispute promptly, particularly, in view of the small sum that was eventually accepted by P. Proper discharge of this duty by legal representatives is all the more important in claims for unlawful detention against the Director and/or Secretary where public funds are at a stake.

DISPOSITION AND ORDERS

45.  Having considered the conduct of both parties and the circumstances of this case as explained by me, I am prepared to be rather indulgent to allow P’s costs to be assessed on a District Court scale of costs.

46.  However, to reflect this court’s disapproval of the conduct of P in persisting in litigating in the District Court and to give effect to the underlying objectives in the exercise of my discretion, in summarily assessing P’s costs, I would not allow the claimed costs which are over 4 times the Settlement Sum and are wholly disproportionate. Besides, in view of the large number of similar cases handled by the solicitors for P, the total hours spent appear to me to be excessive and most of the work could have been done by the legal executive. Adopting a broad-brush approach, I would summarily assess P’s costs at HK$15,000.