RASHID ZAFAR GHORI v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 2590/2022

[2025] HKDC 1313

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2590 OF 2022

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BETWEEN

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JUDGMENT

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A. Introduction

1.  This is the trial of the plaintiff’s claim against the Director of Immigration (“Director”) for damages for wrongful detention.

B. Essential background

2.  The following background is not in dispute.

3.  The plaintiff is a non-refoulement claimant. He is the subject of a removal order dated 9 April 2008 and a deportation order dated 30 May 2012.

4.  On 5 August 2021, the plaintiff was arrested by the police as an absconder. Since then, he has been held in detention:

(a) He was detained by the Director at Ma Tau Kok Detention Centre from 5 to 26 August 2021.

(b) He was detained by the Director at Castle Peak Bay Immigration Centre (“CIC”) from 26 August 2021 to 11 January 2022.

(c) He was detained by the Director at Tai Tam Gap Correctional Institution (“TGCI”) from 11 January 2022 to 17 May 2022.

(d) He was imprisoned for 1 month from 17 May 2022 to 16 June 2022 for failing to pay the fine in respect of his conviction of the offence of “Participating in prohibited group gathering”.

(e) After his discharge from prison, he was detained by the Director at TGCI from 16 to 30 June 2022 and has remained there since then.

5.  On 7 July 2022, the plaintiff commenced this action.

6.  The plaintiff has since applied thrice to the Court of First Instance (“CFI”) for habeas corpus relief. All three applications were unsuccessful:

(a) On 11 August 2023, Coleman J found in [2023] HKCFI 2091 that “the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future” and dismissed the application (“Coleman J’s decision”).

(b) On 8 February 2024, DHCJ Jonathan Wong found in [2024] HKCFI 477 that “the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful” and dismissed the application.

(c) On 15 July 2024, DHCJ Phoebe Man found in [2024] HKCFI 1863 that “the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future” and dismissed the application.

The above habeas corpus decisions are collectively called (“HC Decisions”).

C. The pleaded claim and defence

7.  According to the Statement of Claim, the claim for damages is based on the following allegations:

(a) The plaintiff was detained “from on or about 5 August 2021 to present”. ([1(b)])

(b) The detention was in breach of the 2^nd, 3^rd and 4^th Hardial Singh principles and unlawful. ([4] to [4D]) (“the unlawful detention claim”)

(c) In breach of Article 3 (“BOR 3”) and Article 6(1) (“BOR 6(1)”) under section 8 of the Bill of Rights Ordinance, Cap 383 (“BORO”), the plaintiff was subjected to degrading treatment during his detention in that he was being forced to strip down and pose nude in the sight of other detainees which was against his religion. ([5]) (“the degrading treatment claim”)

(d) The plaintiff was suffering from adjustment disorder for loss of liberty and as a result of the degrading treatment he had received. ([7])

(e) The plaintiff has sustained loss and damage as a result of the unlawful detention claim and the degrading treatment claim. ([6])

8.  The Director denies the plaintiff’s claim and avers in the Amended Defence that:

(a) Apart from the period that the plaintiff was imprisoned, the plaintiff was detained by the Director under section 32(3) of the Immigration Ordinance, Cap 115 (“IO”) pending his removal from Hong Kong. ([3(n)] and [3(s)])

(b) The plaintiff’s detention was in compliance with the Hardial Singh principles and was lawful. ([4])

(c) All the searches of the plaintiff were conducted in accordance with the standard practices. Under no circumstances was he searched in the sight of another detainee. ([9(b)])

(d) The unlawful detention claim is barred by “the principles of res judicata/issue estoppel and/or otherwise constitutes an abuse of court process and collateral attack”. ([8])

D. The trial

D1. Issues

9.  In their opening submissions, counsel for the Director (Mr Martin Ho and Ms Celeste Chan) outlined three broad issues for trial:

(a) Whether the unlawful detention claim is barred by the principles of res judicata and/or abuse of process? (Issue 1)

(b) Whether the degrading treatment claim is legally demurrable? (Issue 2)

(c) Whether the unlawful detention claim and the degrading treatment claim are supported by evidence? (Issue 3)

D2. Amici curiae

10.  The plaintiff is unrepresented at the trial, his former solicitors having ceased to act for him after the case was set down for trial.

11.  To properly deal with Issue 1, the court appointed Mr Abraham Chan SC and Mr John Cheung as amici curiae (“amici”) to advance submissions as may be properly made on behalf of the unrepresented plaintiff.

12.  The plaintiff has adopted the amici’s submissions and I am grateful for their assistance.

D3. Evidence

13.  The plaintiff testified at the trial.

14.  The Director called:

(a) Wong Wai Ling (“Wong WL”), Senior Immigration Officer (Removal Litigation Support Section) who handled the plaintiff’s case;

(b) Cheung Chi Kit, Immigration Officer (Deportation & Removal Section) stationed at Ma Tau Kok Detention Centre;

(c) Li Tsz Kin, Chief Officer (Administration) of the Correctional Services Department stationed at TGCI; and

(d) Cheung Kai Ho (“Cheung KH”), Immigration Officer stationed at CIC.

15.  There is no dispute over the documentary evidence in the trial bundle.

16.  I shall highlight the relevant evidence when I come to discuss the issues.

E. Issue 1

E1. The Director’s submissions

17.  The Director argues that the unlawful detention claim:

(a) is barred by res judicata/issue estoppel; and/or

(b) constitutes an abuse of process and collateral attack of the HC Decisions.

18.  In terms of (a), the Director submits that the CFI has on three occasions fairly and squarely dealt with the very same issue, namely, lawfulness of the plaintiff’s detention on the basis of the Hardial Singh principles. Res judicata and issue estoppel bites to bar the plaintiff from raising the same issue in this action.

19.  In terms of (b), the Director submits that the essential matters which the plaintiff seeks to pursue in this action have already been adjudicated upon. The plaintiff is, in effect, inviting the civil court to reach a conclusion diametrically opposite to the ones reached by the CFI. This would necessarily cast doubt on the HC Decisions.

20.  The Director asks what would happen if the civil court finds, on balance of probabilities, that the plaintiff is entitled to damages for breach of the Hardial Singh principles? Should the plaintiff remain in detention as per the HC Decisions or should he be released notwithstanding the HC Decisions? The public would not understand. Such collateral attack on the HC Decisions is objectionable as a matter of public interest and impermissible as an abuse of process. See Arthur JS Hall & Co v Simons [2002] 1 AC 615 at 687D-H, as applied in the local case of DM v Commissioner of Customs and Excise [2023] 1 HKLRD 233.

21.  If the plaintiff felt aggrieved, the proper approach would have been to appeal against the decisions. This is all the more so as, under section 24 of the High Court Ordinance, Cap 4 (“HCO”), an appeal in habeas corpus proceedings lies as of right to the Court of Appeal. Having chosen not to do so, the plaintiff cannot ventilate the same grievances by way of a parallel civil court action.

22.  In each of the HC Decisions, the CFI, in assessing the lawfulness of his detention, placed weight on the plaintiff’s intentional delaying and dilatory tactics to resist his deportation. The Director submits that this civil claim is, in effect, the plaintiff’s fourth bite at the cherry in furtherance of such tactics.

E2. The amici’s submissions

23.  The amici observe preliminarily that:

(a) Of the HC Decisions, the Director has only expressly pleaded reliance on Coleman J’s decision in the Amended Defence in his bid to prevent the plaintiff from pursuing the unlawful detention claim. As issue estoppel must be specifically pleaded (Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at [89]), the court would be justified in limiting its determination of Issue 1 to that decision alone. To ensure completeness and in case the court would like to consider the preclusive effect (if any) of the other two decisions, the amici have advanced submissions in respect of all three decisions.

(b) In any event, the degrading treatment claim and the question of quantum have not been addressed – let alone determined on the merits – by the CFI.

24.  Secondly, the amici submit that the HC Decisions do not preclude the plaintiff from pursuing the unlawful detention claim on the ground of res judicata because:

(a) The HC Decisions do not constitute judicial “decisions” in the relevant sense. They are no more than awards or orders rather than formal judgments capable of giving rise to res judicata.

(b) The unlawful detention claim impugns more than the legality of the period covered by the HC Decisions.

25.  Thirdly, the amici advance five arguments against the Director’s position as to whether the unlawful detention claim constitutes an abuse of process:

(a) A claim of abuse presupposes a prior, substantive adjudication – one in which the court has reached a decision on the merits and made actual findings. The HC Decisions are not judicial determinations in the proper sense as submitted above. Where no such adjudication exists, there can, by definition, be no collateral attack. And without a prior substantive ruling, the core concern underlying the doctrine – preventing inconsistent judgments – simply does not come into play.

In any event, not all prior judgments are treated equally when it comes to consider whether a subsequent case constitutes an impermissible collateral attack (Arthur JS Hall v Simons [2002] 1 AC 615 at 706D-H). As the HC Decisions closely resemble mere orders, they carry limited weight in assessing whether the present proceedings amount to a collateral attack. Orders of this nature lack the adversarial rigour and substantive fact-finding that typically justify deference to prior judgments and should not be regarded as dispositive of the issues in this action.

(b) The plaintiff’s allegations – false imprisonment, strip searches and unlawful handcuffing – implicate some of the most fundamental rights protected by the law: liberty and human dignity. These are serious allegations that deserve careful judicial consideration. The broader policy considerations militate firmly against precluding the plaintiff’s claims on the ground of abuse.

(c) The nature and purpose of this civil action and the HC Decisions are different. Habeas corpus proceedings tend to come on quickly and disclosure is not automatic, as compared with civil claims for damages which come on at a more stately pace and where disclosure is automatic (Youssef v Home Office [2004] EWHC 1884 at [64]-[65]). The differences in purpose and substantive character between these proceedings and the proceedings that culminated in the HC Decisions make it untenable to regard this action as a collateral attack on the earlier decisions.

(d) The Director only amended the Defence to raise the defence of res judicata and abuse of process at the PTR. Significant resources have already been devoted to this case and any cost savings from barring the plaintiff’s claims would be negligible, especially with the trial scheduled to last only two days.

(e) The Director’s contention that this is abuse in the collateral attack sense due to the plaintiff’s alleged delaying tactics is without merit. The law is clear: whether subsequent proceedings constitute a collateral attack depends on their nature and effect, not the motives or intentions behind them (R v Belmarsh Magistrates’ Court, ex p Watts [1999] 2 Cr App R 188 at 196G-199B).

E3. Discussion

E3a Preliminary points

26.  I agree with the amici that the Director is bound by [8] of the Amended Defence and may only rely on Coleman J’s decision in the argument.

27.  The Director has also confirmed that his argument based on res judicata and abuse of process is aimed at barring the unlawful detention claim only.

E3b. Whether the unlawful detention claim impugns more than the legality of the period covered by Coleman J’s decision?

28.  There is a fundamental disagreement between the parties over whether the period of detention pleaded by the plaintiff in this action is fully covered by Coleman J’s decision.

29.  According to the amici:

(a) Assessment of the legality of the plaintiff’s detention should be undertaken by reference to the situation as at the date of the hearing (Ko Kang Suk v Director of Immigration [2024] HKCA 848 at [51]).

(b) The HC Decisions only addressed the legality of the plaintiff’s detention from 5 August 2021 to 15 July 2024.

(c) An initially lawful detention may become unlawful if it fails to meet the Hardial Singh principles (Harjang Singh v Secretary for Security [2022] 4 HKLRD 99 (CA) at [51]).

(d) Hence, the legality of the plaintiff’s detention from 16 July 2024 to the date of this hearing remains a live issue for this court to determine.

30.  In response, the Director invoked the Eshelby rule to argue that the plaintiff’s claim must be in existence when the writ was filed and therefore the plaintiff may not include a cause of action which had not accrued at the time of the writ.

31.  I think the Director is right, although not for the reason advanced by him.

32.  The Eshelby rule is concerned with the court’s jurisdiction, without the consent of the parties, to amend a writ to bring in a cause of action which was not in existence at the time the writ was originally issued (Re Hin-Pro International Logistics Ltd [2016] 5 HKLRD 282 at [2]). I do not think the rule is engaged as there is presently no application to introduce any post-writ cause of action. The situation may be different when, following a successful habeas corpus application and the applicant’s release, the applicant seeks to amend his pleading in his pending civil claim to claim damages up to his release. The Director would unlikely withhold consent in such circumstances.

33.  On the other hand, Ko Kang Suk was an appeal against the first instance decision granting a writ of habeas corpus for the release of the applicant. For a habeas corpus application, the court is directed to inquire into the circumstances surrounding the detention of the applicant when he is brought before the court (section 22A(9) of the HCO). I believe that was the reason why the Court of Appeal, upon setting aside the first instance decision, undertook a re-assessment of the circumstances surrounding the applicant’s detention as at the hearing of the appeal (Ko Kang Suk at [51]). By contrast, section 22A of the HCO has no application to these proceedings wherein the plaintiff’s claim is defined by his pleading.

34.  The Statement of Claim in this case was dated 30 June 2022 (but filed on 7 July 2022). The plaintiff pleaded in [1(b)] that he “was” unlawfully detained “from on or about 5 August 2021 to present”. He elaborated that his detention “was” in breach of the 2^nd, 3^rd and 4^th Hardial Singh principles in [4] to [4D] and that he has sustained loss and damage as a result ([6]). Reading the document as a whole, the word “present” must be a reference to the date of the document. So as a matter of construction, the period of detention forming the subject matter of this action should be from 5 August 2021 to 30 June 2022.

35.  The above interpretation is reinforced by the plaintiff’s witness statement, which was also dated 30 June 2022 (but filed on 9 November 2022). He complained in his witness statement that during his detention “from 5 August 2021 to present” ([2]), he was strip searched in CIC and TGCI ([8] to [10]) and handcuffed during transit to CIC ([11]), and that the condition of his detention at CIC and TGCI was poor ([10]). As he was talking about things that had happened to him, his reference to “present” must be a reference to the date of his statement.

36.  Despite the fact that the plaintiff remained legally represented until 30 October 2024, no supplemental witness statement was filed to put forward any update.

37.  I also agree with the Director that the amici’s contention would lead to unjust and unfair results. As discovery was completed and witness statements were filed some time ago, there is a significant gap where neither the plaintiff nor the Director has put in evidence. The unfairness is disproportionately borne by the Director who bears the burden of justifying the plaintiff’s detention in terms of the Hardial Singh principles if the assessment was to be undertaken at the date of hearing as suggested by the amici.

38.  As a matter of construction therefore, I accept the Director’s contention that the pleaded claim of the plaintiff is confined to the period from 5 August 2021 to 30 June 2022.

E3c. Whether the unlawful detention claim is barred by res judicata/issue estoppel?

39.  The doctrine of res judicata provides that, where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be reopened by parties bound by the decision, save on appeal. Issue estoppel is a form of res judicata. See Halsbury’s Laws of England, 5^th edition (2020), Vol 12A at [1568].

40.  For issue estoppel to arise, three conditions need to be satisfied:

(a) the same question must have been previously decided;

(b) the judicial decision which is said to create the estoppel must have been a final decision of a court of competent jurisdiction; and

(c) the parties to the prior judicial decision (or their privies) must have been the same persons as the parties to the subsequent proceedings in which the estoppel is raised (or their privies).

See Company A v Company D [2019] HKCFI 367 at [25], citing Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (PC) at 935B.

41.  There is no question that the first condition is satisfied.

(a) It is the plaintiff’s case that his detention from 5 August 2021 to 30 June 2022 was in breach of the 2^nd, 3^rd and 4^th Hardial Singh principles ([4] to [4D] of the Statement of Claim).

(b) In Coleman J’s decision, the learned judge ruled that the plaintiff’s detention from 5 August 2021 to 11 August 2023 was in compliance with all four Hardial Singh principles ([50], [59] and [60] of the decision).

(c) Thus, Coleman J’s ruling covered more than the plaintiff’s claim in terms of period and complaint.

42.  The plaintiff and the Director were both parties to Coleman J’s decision. The third condition is also satisfied.

43.  As to the second condition, the amici argue that Coleman J’s decision does not constitute judicial decision in the relevant sense. As I understand, their contention is based on the following statement of Lord Parker CJ in Re Hastings (No 2) 1 [1955] 1 WLR 248 at 371:

“…the decision whether or not to issue a writ of habeas corpus is not a judgment so that there is no res judicata …”

44.  Gibson J later reiterated in R v Governor of Pentonville Prison, ex parte Tarling [1979] 1 WLR 1417 at 1422H-1423B that:

“… The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus: we refer to the words of Lord Parker CJ delivering the judgment of the court in Re Hastings (No 2) [1959] 1 QB 358, 371. …”

45.  The amici say that all these have been followed by the courts in Hong Kong as seen in Xie Jing Feng v Hong Kong SAR Government [2021] HKCA 467 at [69] and In re Law Kin-man [1993] 1 HKLR 83 at line 10 on p 84.

46.  For the following reasons, I do not accept the amici’s contention.

47.  First, both Re Hastings (No 2) and ex parte Tarling were concerned with successive applications for the writ of habeas corpus. Whilst the plaintiff had made successive habeas corpus applications, he is seeking damages in this civil action and not applying for the writ of habeas corpus. So the context is different.

48.  I agree with the Director that there is a world of difference between mounting successive habeas corpus applications and pursuing a parallel civil claim for a period of detention that was found to be lawful in a habeas corpus application.

(a) As applicants may only apply for the writ when he is still being detained, subsequent application, by definition, covers a different and longer period. The general proposition in Lord Parker’s statement that res judicata cannot apply to successive applications must be understood in the habeas corpus context.

(b) In contrast, the plaintiff here is pursuing a parallel civil claim over identical facts spanning over a lesser period of detention covered by Coleman J’s decision. There is nothing stopping res judicata from applying as there are no new facts or circumstances to enable the civil court to come to a different conclusion.

49.  Secondly according to the amici, the historical foundation underlying Lord Parker’s statement is set out in DM Gordon QC’s article entitled The Unruly Writ of Habeas Corpus (1963) 26 Mod L Rev 520 at 523:

“(a) an application for habeas corpus, being made on motion and without pleadings, was a summary proceeding, and the decision thereon was an ‘award’ (ie an order) and not a formal judgment; (b) no writ of error would lie on such a decision, and nothing but a judgment reviewable by writ of error created a res judicata; (c) there being no res judicata, the applicant could apply again on the same grounds, ignoring the decision refusing relief, and the second court had to ignore that decision, too, and hear the application as though no decision had been given.”

50.  The learned author was in fact critical of Lord Parker’s statement and he identified four legal objections as to why it was “unjustifiable” (at p 526). For present purpose, we may focus on the first objection:

“The notion that a judicial decision not reviewable by writ of error does not conclude the parties stem from Coke CJ’s dicta to that effect in Bonham’s Case; but this notion was repudiated generally by the end of the seventeenth century and Coke CJ’s dicta expressly declared not to be law; …”

51.  As the learned author elaborated:

“In Bonham’s case the plaintiff had been convicted and punished by the College of Physicians for practicing without a licence. He sued them and they pleaded that he was concluded by their conviction. But Coke CJ declared he was not concluded and could ‘traverse’ the facts found for the reason inter alia that he could not bring a writ of error. Some eighty years later, in Phillips v Bury, Holt CJ denied the validity of this reasoning, and held that the conclusiveness of a judicial decision was in no way weakened because no appeal lay. In Groenvelt v Burwell, Holt CJ even more directly repudiated Coke CJ’s views in Bonham’s case, saying that he had had a personal bias, and again denying that a decision was any the less conclusive because no writ of error lay upon it.

Holt CJ’s views are bourne out by hundreds of later decisions, …

In all probability the idea that refusal of a habeas corpus did not conclude and that that could be applied for anew was evolved in unreported cases during the period before Bonham’s Case was repudiated. By the time that was discredited, the courts had forgotten where the practice in habeas corpus had had its origin, so that the practice survived its source.

…

… The practice of successive applications undoubtedly had its source in Coke’s bad law in Bonham’s Case, which was later to be expressly repudiated. That repudiation left the practice as contrary to all principle, and with nothing to excuse it. It only stood because the courts overlooked that its former supposed justification was gone.

If it had been brought out in the Hastings cases that there was not, and never had been, any good reason for not applying the principle of res judicata to habeas corpus just as to all other branches of the law, then … all successive applications would have been equally barred.”

52.  So, the historical foundation for Lord Parker’s statement has been expressly rejected in subsequent authorities.

53.  Thirdly, in the local context:

(a) Habeas corpus proceedings are regulated by sections 22A, 23 and 24 of the HCO and Order 54 of the Rules of the High Court, Cap 4A (“RHC”). It envisages a substantive hearing in open court in which the respondent produces the justification for the detention of the applicant and with full argument.

Lord Brandon explained in DSV Silo-und Verwaltungsgesellschaft mbH v Sennar (Owners), The Sennar [1985] 1 WLR 490 at 499 that:

“… a decision on the merits is a decision which establishes certain facts as proved or not in dispute, states what are the relevant principles of law applicable to such facts, and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.”

Coleman J’s decision fulfils all these criteria. It set out the factual basis of the decisions, stated the applicable Hardial Singh principles and applied those principles to the facts that culminated in a conclusion.

In the premises, it cannot be said that the habeas corpus proceedings before Coleman J was summary. His Lordship’s decision is a formal judgment capable of giving rise to res judicata.

(b) Significantly, the Hong Kong legislature has statutorily intervened such that an applicant may not, in the absence of fresh evidence, mount successive habeas corpus applications:

“23. Restriction on repeated applications for habeas corpus

(1) Notwithstanding anything in any law or rule of court, where an application for habeas corpus has been made by or in respect of any person, no such application shall again be made to the Court of First Instance or any judge thereof by or in respect of that person on the same grounds, unless fresh evidence is adduced in support of the application.”

I agree with the Director that whatever its historical foundation, Lord Parker’s statement has no application to Hong Kong.

54.  Fourthly, I am not convinced that Hong Kong courts have adopted Lord Parker’s statement either.

55.  In Xie Jing Feng, the appellant appealed against the first instance decision dismissing his application for a writ of habeas corpus (which was his second application for such relief). The respondents took the point that the second habeas corpus application amounted to an abuse of the process of the court. The Court of Appeal held that the points raised by the appellant on appeal and before the first instance judge were either grounds raised and rejected in the first habeas corpus application or grounds that the appellant could have raised there, and commented (at [73]):

“Re-running the same grounds in the absence of any fresh evidence seems to us to be a clear abuse of process. As to the points not raised before, they were grounds available to the applicant based on the information in his possession. … In these circumstances, even applying the doctrine of abuse with less stringency than in ordinary cases and without inferring that the new points were deliberately kept back for a second application, we consider the appeal is also an abuse as far as those points are concerned.”

56.  In the course of elaborating on the principles on abuse of the court’s process, the Court of Appeal said:

“67. … There are two rules or principles which are relevant in this context, one statutory and one at common law. The first is to be found in section 23(1) of the High Court Ordinance …

68. This provision is similar to section 14(2) of the (UK) Administration of Justice Act 1960 which was considered in R v Governor of Pentonville Prison, ex parte Tarling [1979] 1 WLR 1417 …

69. The second principle may also be found in that case, where it was stated (at 1422H-1423B):

‘… it is clear to the court that an applicant for habeas corpus is required to put forward on his initial application the whole of the case which is then fairly available to him. He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the court.

The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus … There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings: see the judgment of the Privy Council, Lord Morris, Lord Cross and Lord Kilbrandon, in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. In our judgment, that principle is applicable to proceedings for habeas corpus, whether under the Act of 1967 or under the general jurisdiction of the court, although, no doubt, the stringency of the application of the principle may be different in cases concerning such matters as disputes upon property.’

70. This principle was applied in Hong Kong by Mayo J in In re Law Kin-man [1993] 1 HKLR 83 where an application for a writ of habeas corpus was dismissed on the ground that the issue in question was one that the applicant could and should have raised in his two earlier applications and that the latest application was there an abuse of the process of the court.”

57.  Thus, the Court of Appeal (as well as Mayo J in In re Law Kin-man) was referring to the wider sense of res judicata when it made passing reference to Gibson J’s judgment in ex parte Tarling. There is nothing to indicate that the courts have followed Lord Parker’s statement in spite of section 23 of the HCO.

58.  Lastly, the amici advance a policy argument in [10(6)] of their submissions in their bid to convince the court that the HC Decisions should not bar the plaintiff from pursing his claim on the ground of res judicata:

“Regardless of its historical roots, there is a strong modern policy justification for maintaining the longstanding rule: the need to provide ongoing protection of individual liberty demands that the courts remain open to reconsideration in circumstances where justice or fairness requires it. …”

59.  In my view, the Director is right to emphasize the difference between a habeas corpus application and a civil claim for damages. The UK Supreme Court distinguished the two in The Father v Worcestershire County Council [2025] UKSC 1 at [55]:

“The main object of the writ of habeas corpus for release (previous called habeas corpus ad subjiciendum), and the reason for its constitutional importance, is to provide a speedy and effective remedy in cases of unlawful detention. If an individual is being detained unlawfully, then by issuing a writ of habeas corpus a court can compel their immediate release. It is a procedural mechanism of central importance in securing the liberty of the individual. It operates as a form of specific relief which supplements, and will usually be even more important than, any claim the individual may have to damages for false imprisonment.”

60.  Given the different nature and purpose of these proceedings from habeas corpus applications, it cannot be right to suggest that whenever fundamental rights such as individual liberty are touched upon, procedural propriety becomes immaterial.

61.  As the Director has submitted, there is nothing stopping the plaintiff from making an appropriate application for his release. And he has applied thrice to the CFI for a writ of habeas corpus but in vain. If the plaintiff feels aggrieved by the HC Decisions and maintains that he should be released, he should have appealed.

62.  In contrast, the plaintiff only claims damages whilst his personal liberty is never in issue in these proceedings. In any event, this court has no jurisdiction to release him even if it finds in his favour and awards him damages. I agree with the Director that policy considerations have no role to play in deciding whether res judicata should apply here.

63.  In conclusion,

(a) Coleman J has determined the lawfulness of the plaintiff’s detention for the period from 5 August 2021 to 30 June 2022 which is the same question to be decided on the unlawful detention claim in this action; and

(b) Coleman J’s decision is a final decision of a court of competent jurisdiction and capable of giving rise to res judicata.

Consequently, the plaintiff is barred by issue estoppel from proceeding with his unlawful detention claim.

E3d. Whether the unlawful detention claim is also barred by abuse of process?

64.  Turning to the argument over collateral attack, both the Director and amici offered submissions in terms of abuse of process.

65.  The difference between abuse of process and res judicata was summarized by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 at [25]:

“Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my vow, they are distinct although overlapping legal principles with the common underlying purpose of limiting abuse and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive.”

66.  Our Court of Final Appeal (“CFA”) also commented in Ko Hon Yue at [83(5)(a)] that:

“There is conceptually an important distinction between absolute bars such as issue estoppel and the type of abuse with which we are concerned. In the former situation, the party who seeks to re-litigate an issue or cause of action has already had his day in court, whereas in the latter situation, that party has not: cf Johnson v Gore Wood at 59D (‘It is one thing to refuse to allow a party to re-litigate a question which already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which is not previously being adjudicated upon’ per Lord Millett).”

67.  One of the points taken by the amici is that the Director raised the defence of abuse of process belatedly at the PTR for it to be argued at trial. That was also what happened in Ko Hon Yue, as the CFA noted at [86]:

“It was not until the trial itself that the point was raised by the defendants that the action ought to be dismissed on the basis of abuse. …”

68.  The CFA took the view (at [88]) that it was wrong for the trial judge to have dealt with the application and also embarked on the trial:

“The Court of Appeal was of the view that it was far too late for the defendants to apply to strike out at the trial stage and that the Judge had failed to take into account this important factor. With respect, whatever were otherwise the merits of the application to strike out, I agree that the Court of Appeal was entitled to reverse the Judge’s finding of abuse on this ground alone.”

69.  As the CFA explained (at [84]):

“The jurisdiction to prevent claims being litigated in proceedings is almost invariably exercisable by an application to strike out. It is true that an application to strike out can be made at any time: see RSC O 18 r 19(1). However, where an application is made to strike out proceedings or any part thereof on the basis that they should not be permitted to go to trial, it is obvious that such an application should be made at the earliest possible opportunity, before the parties and the court’s resources are potentially wasted. Obviously, where a claim or defence is unsustainable as a matter of law, the timing of the application to strike out is less critical, but where a discretion (or something akin to it) exists as to whether or not a set of proceedings or any part thereof should be permitted to continue, time is important. In this latter situation, where proceedings may constitute an abuse on the basis that it would be vexatious for a court to try the case, the sooner this is dealt with the better; otherwise, the very evils sought to be avoided (the wastage of time and resources causing vexation or harassment of the other party) would continue to accumulate.”

70.  This case is not on all fours with Ko Hon Yue. Ko Hon Yue was concerned with Henderson v Henderson abuse.[1] There is no suggestion that there is any Henderson v Henderson abuse in this case and the Director’s argument is based on collateral attack. Be that as it may, I think the same rationale applies.

71.  As submitted by the amici (see [18] of their submissions), collateral attack is another form of abuse of process apart from Henderson v Henderson abuse. In my view, the policy behind developing the court’s jurisdiction to prevent abuse in the form of collateral attack is best explained in Zuckerman on Civil Procedure: Principles of Practice, 4^th edition (2021):

“[26.134] … the doctrine of res judicata applies only between the parties to the proceedings; it cannot be invoked by, or against, a person who was not a party to the proceedings in which the judgment relied upon was given. Although there are, as we have seen, perfectly good reasons for limiting the res judicata rules to the parties, the results of such limitation are not always satisfactory. There are situations where allowing a party to raise arguments against a stranger, which have been decided against the party in earlier proceedings, could result in unjustified inconsistencies between the findings of different courts and undermine public confidence in the administration of justice. To avoid such situations the courts have pursued a general policy of discouraging collateral attacks on court decisions …

[26.135] This public policy finds expression in the exercise of the jurisdiction to prevent abuse of process. The court may prevent a party from advancing against a stranger an argument that is inconsistent with an earlier judgment that went against them, if and only if the court concludes that in the circumstances of the particular case it would be unjust to allow the party to do so. …

…

[26.150] On existing authorities, it must be stressed that restraining a party from advancing a cause of action or pleading an issue that is not otherwise barred by the doctrine of res judicata is never automatic. The outcome of an objection on grounds of collateral attack will depend on whether, in light of all the circumstances of the case, it would be unjust or contrary to the public interest to allow a litigant to advance a case that is inconsistent with a finding made in an earlier judgment. A complete stranger to earlier proceedings is unlikely to succeed in arguing that a party to those proceedings should not be allowed to plead an inconsistent case. There has to be some factor which connects the stranger with the earlier proceedings and which could render it unjust to allow a party to those proceedings to advance against them a case that contradicts the result of those proceedings. …”

72.  Two points should be made.

73.  First, both the Director and the amici have invited this court to consider whether the plaintiff’s conduct is, in all the circumstances of the case, an abuse. This is similar to the consideration urged upon the trial judge in Ko Hon Yue based on Henderson v Henderson abuse. As explained by the CFA at [83(5)]:

“In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice. It is important therefore here to emphasize that when the court is dealing with Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppel or cause of action estoppel. On the contrary, in considering this type of abuse, the court is required to assess a number of factors and balance competing interests…”

74.  This brings me to the dilemma faced by the trial judge in Ko Hon Yue – whether to entertain the argument when discovery has taken place, witness statements have been exchanged and both parties (as well as the court) are fully prepared for a trial. The advice of the CFA is that (at [87]):

“… the Judge ought to have refused to deal with the abuse arguments and simply have dealt with the substantive issues in the action only. It was at that stage far too late to mount a strike out application on the basis of the abuse alleged.”

75.  By parity of reasoning, I do not think I should entertain the Director’s argument based on collateral attack at this late stage.

76.  Secondly, as the learned author of Zuckerman explained in [26.134] and [26.135] quoted above, the jurisdiction is developed to protect a stranger to previous proceeding who cannot claim the benefit of cause of action estoppel or issue estoppel.

77.  The Director is in a better position as he was a party to Coleman J’s decision. As the learned author observed in [26.80]:

“From a defendant’s perspective, the surest way to stop a claim in its tracks is to establish cause of action estoppel. Once established, the court must throw out the claim; it has no discretion in the matter. If cause of action estoppel cannot be relied upon, the next best thing is to rely on narrow-issue estoppel. Once it is established that an identical issue has been determined between the same parties in previous proceedings, the court must refuse to listen to an argument that is inconsistent with its earlier determination. Although there are circumstances in which the court may allow a party to litigate the same issue again (such as the emergence of fresh and conclusive evidence if the judgment was obtained by fraud), they are bound to be rare. Only when the circumstances do not allow for the application of either of these forms of res judicata will it be necessary to rely on abuse of process estoppel. A party relying on this ground has to do more work than is required to establish a res judicata argument. They have to convince the court that it is just to deny the opponent the opportunity to raise a matter that was not determined before, or a matter that was not determined between the same parties. Since the abuse of process jurisdiction is discretionary, the court will have to balance the conflicting interests of the parties, consider the wider public interest and reach a fact-based conclusion.”

78.  Given his success in the other aspect of the argument (based on issue estoppel), the Director does not have to invoke collateral attack at all.

F. Issue 2

79.  The plaintiff’s degrading treatment claim is premised on breach of BOR 3 and BOR 6(1). The Director submits that the claim is legally demurrable.

80.  Section 6(1) of the BORO provides that:

“(1) A court or tribunal—

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.

(2) No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights.”

81.  In Tsui Kin Kwok Johnnie v Commissioner of Police, unreported, CACV 38/2010, 20 July 2011, the Court of Appeal said:

“20. It is an Ordinance (not a constitution) which creates obligations upon the Government and all public authorities and upon any person acting on behalf of the Government or a public authority …

21. Persons affected by a breach or breaches of any one or more of those obligations have the right to pray in aid such a breach in a number of circumstances, just as they might in relation to breaches by public authorities of other statutory obligations. So, to use the examples deployed by Mr Dykes in ‘Content of the Hong Kong Bill of Rights Ordinance’ in ‘The Hong Kong Bill of Rights: A Comparative Approach’ (1993) at p 45, an individual might bring an action claiming relief for a violation or threatened violation of one of the statutory protections such as an action for damages for wrongful arrest and malicious prosecution; or where a violation or threatened violation is relevant in the course of litigation but is not the subject matter of the action – for example, where a defendant in a criminal trial seeks to exclude evidence on the basis that there has been a violation.

22. In some jurisdictions the subject matter with which this Ordinance deals, namely, fundamental rights, is reserved for certain courts. What section 6 does is to make clear that a claimant or defendant may take a Bill of Rights points in any court, so long, however, as it is taken ‘in proceedings within [that court's] jurisdiction.’ and so long as the remedy, relief, or orders which a court makes are those which it already ‘has power to grant or make in those proceedings’. The section does not create a new jurisdictional regime or alter procedural principles. In particular, it does not alter the rule which requires those who launch proceedings in order to assert a public law wrong to proceed by way of judicial review.”

82.  I agree with the Director that section 6 of the BORO has the effect that a breach of the BORO does not per se give rise to an independent cause of action. If a person is aggrieved by such a breach, unless he can point to an existing cause of action for which the court has power to grant remedies, his only recourse is to bring a public law action against the Government or public authorities by way of judicial review.

83.  As the amici have noted (see footnote 12 of their submissions), the plaintiff has not pleaded any reliance on trespass to the person at common law. In my view, the Director is correct in saying that the degrading treatment claim is not underpinned by any independent common law cause of action.

84.  In conclusion, the plaintiff has no valid cause of action on the degrading treatment claim.

G. Issue 3

85.  I come to the analysis of the facts of this case.

G1. The unlawful detention claim

86.  At the trial, the Director put to the plaintiff the facts as summarized in Annex 1 to his closing submissions (marked as Exhibit D1 and appended to this judgment).

87.  The plaintiff confirmed agreement to the content of Exhibit D1 except that:

(a) He did not jump police bail on 1 April 2010.

(b) He did not jump court bail on 3 June 2011.

(c) He was never convicted of “Misleading a police officer by giving false information” on 28 July 2020.

(d) There were only three (rather than four) attempts to deport him in 2012.

88.  As observed by the Director, all the facts disputed by the plaintiff (italicized in the annexure) were accepted by Coleman J as recorded in his decision:

Whether the plaintiff jumped police bail on 1 April 2010?	At [24(1)] of Coleman J’s decision: “On 1 April 2010, the Applicant failed to report police bail until he was rearrested more than 2 weeks later, on 17 April 2010.”
Whether the plaintiff jumped court bail on 3 June 2011?	At [24(2)] of Coleman J’s decision: “On 3 June 2011, he failed to appear in court for the mention hearing of his charge of illegally remaining in Hong Kong after court bail was previously granted to him.”
Was the plaintiff convicted of “misleading a police officer by giving false information” on 28 July 2020?	At [20(9)] of Coleman J’s decision: “On 28 July 2020, he was sentenced to 2 months (suspended 12 months) and fined $2,000 for misleading a police officer by giving false information.”
Were there four attempts to deport the plaintiff in 2012?	At [7] of Coleman J’s decision: “I am informed that the Director has attempted to deport the Applicant 6 times – on 8 June 2012, 20 July 2012, 14 September 2012, 12 November 2012, 4 January 2013, and 13 February 2023.”

89.  I agree with the Director that although Coleman J’s decision is not evidence itself, the evidence accepted by His Lordship as summarized in the decision is admissible in these proceedings. The Court of Appeal recently reiterated the relevant principles in Chen Jinhui v Wong Kam San, by his guardian ad litem, Huang Yuexia and others [2025] HKCA 646:

“15. Under the Hollington principle, a judgment and factual finding of another court or tribunal in earlier proceedings, whether civil or criminal, is inadmissible in subsequent proceeding, unless the party against whom the finding sought to be deployed is bound by it by reason of an estoppel per rem judicatum (Capital Century Textile Company Limited v Li Dianxiao [2018] HKCFI 729, at §23). …

16. Mr Shieh, SC argues, however, that insofar as the Intermediate People’s Court Judgment/the Higher People’s Court Judgment contain a summary of the factual evidence presented to the PRC courts (eg the testimony of prosecution witnesses) and such evidence relates to the issues in the Hong Kong proceedings, the contents of those judgments are not excluded under the Hollington principle, nor can they be excluded as hearsay evidence given that such exclusionary rule has been abolished in civil proceedings (see Capital Century, at §§29-34 and 62(1), and Zillion Global Ltd v UBS AG [2020] HKCFI 953, at §15). … We accept, as a matter of principle, that the factual evidence set out, or summarised, in the said judgments of the PRC courts can constitute admissible hearsay evidence for the purpose of legal proceedings in Hong Kong. …”

90.  The plaintiff did not adduce evidence at the trial to rebut the evidence noted in Coleman J’s decision. In those circumstances, I accept that all the facts set out in Exhibit D1 (including those disputed by him) as proven.

91.  According to Wong WL, the plaintiff’s detention (i) from 5 August 2021 to 17 May 2022 and (ii) from 16 June 2022 to 30 June 2022 (“the Period”) was authorized by the Secretary for Security under section 32(3) of the IO pending his removal from Hong Kong.[2] It is not disputed (as there is no challenge based on the 1^st Hardial Singh principle[3]) that the plaintiff had been detained for the purpose of his deportation.

92.  Under the 2^nd Hardial Singh principle, the deportee may only be detained for a period that is reasonable in all the circumstances. If, before the expiry of the reasonable period, it becomes apparent that the Director will not be able to effect deportation within that reasonable period, he should then not seek to exercise the power of detention under the 3^rd Hardial Singh principle.

93.  As recorded in [14] to [16] of Coleman J’s decision:

(a) The plaintiff lodged his third round of non-refoulement claim (“NRC”) in January 2013. The NRC was treated as having been withdrawn in December 2016 as the plaintiff had failed to complete and return the required application form.

(b) After the plaintiff was taken into immigration detention, he requested to re-open his NRC in October 2021 (this was called “4^th round of NRC” in Factor #5 of Exhibit D1). The request was rejected by the Director in November 2021 (this was called “Refusal Decision” in Factor #5 of Exhibit D1).

(c) In December 2021, the plaintiff appealed to the Torture Claims Appeal Board/Non-refoulement Petition Office (“TCAB”). He later requested to “close” his case in June 2022 on the basis that his country had become safe to return. After confirming with the plaintiff, his appeal was treated as “withdrawn” by the TCAB in July 2022 (this was called “Withdrawal Decision” in Factor #5 of Exhibit D1).

94.  The effect of raising an NRC is to impede the Government from removing a person who would otherwise be removable from Hong Kong until the claim has been negatively adjudicated (see [9] of Coleman J’s decision). As the Refusal Decision was still under appeal during the Period, there was no deportation attempt (see Factor #6 in Exhibit D1).

95.  In view of his convictions and absconding record (see Factor #1 in Exhibit D1), there was substantial risk of the plaintiff absconding and re-offending if he was to be released on recognizance. I accept that it was reasonable to detain the plaintiff during the Period and that there is no breach of the 2^nd Hardial Singh principle. There is nothing to indicate that it was apparent to the Director during the Period that he would not be able to effect deportation and that he should not seek to further detain the plaintiff. There is no breach of the 3^rd Hardial Singh principle.

96.  Under the 4^th Hardial Singh principle, the Director should act with reasonable diligence and expedition to effect removal. During the Period:

(a) The Director had promptly procured the issuance of the necessary travel document and had sought renewal of it to keep it current for the purpose of effecting removal of the plaintiff (see Factor #3 in Exhibit D1).

(b) The Director made requests to the TCAB to accord priority to the NRC-related proceedings relating to the plaintiff (see Factor #4 in Exhibit D1).

I accept that the Director had acted with reasonable diligence and expedition to effect the plaintiff’s removal. There is no breach of the 4^th Hardial Singh principle.

97.  For the above reasons, I find the unlawful detention claim not substantiated by credible evidence.

G2. The degrading treatment claim

98.  It was pleaded in [5] of the Statement of Claim that the plaintiff was being forced to strip down and pose nude in the sight of other detainees. At the trial, he adopted his witness statement that:

“I was brought to the search room inside CIC together with other detainees. I was asked to go inside the room while other detainees were sitting and waiting outside the room. There were two female officers inside the room. I was asked to take off my clothes including my underwear and stand in the middle of the room. … During the search, there was physical touch by the officers. I felt extremely embarrassed and mentally degraded as I was being asked to take off all my clothes, not knowing the consequences if I rejected to do so, I stood in front of the officers for approximately 2-3 minutes. The officer then told me to put on my clothes and leave the room.”

99.  There was an inconsistency in that the plaintiff was searched inside a separate room away from the other detainees. When the inconsistency was pointed out to him in cross-examination, he alleged that the door to the search room had been left open and his search was still visible to the other detainees. I reject his explanation which is clearly an afterthought as the same was not mentioned in his witness statement which was prepared when he was still legally represented.

100.  The plaintiff also disavows the statement in his witness statement that female officers were present during his search. He could not explain why such statement found its way into his witness statement notwithstanding the fact that the contents had been interpreted to him (see [45] of Bundle A).

101.  On the other hand, it is the defence evidence that:

(a) The plaintiff was regularly interviewed (as confirmed by the documentary evidence) but there is no record of any complaint that he had been forced to strip down and pose nude in the sight of other detainees. As it is the plaintiff’s pleaded case that the strip search was against his religion that caused “intense mental sufferings” to him, I find it very surprising that there was no complaint.

(b) The defence witnesses confirmed in evidence that they had followed the standard practice in handling the plaintiff. In particular, Cheung KH confirmed the practice that under no circumstances would a detainee be searched in the sight of another detainee and that the search would only be conducted by two officers of the same gender as the plaintiff inside a search room.

102.  The documentary evidence adduced by the plaintiff at trial (Exhibits P1 to P3) does not confirm that he is suffering from adjustment disorder ([7] of the Statement of Claim).

103.  All in all, I find the plaintiff incredible and his degrading treatment claim not substantiated by credible evidence.

H. Disposition

104.  For the above reasons, it is my finding that:

(a) The plaintiff is barred by the principle of res judicata/issue estoppel from pursing his wrongful detention claim in this action.

(b) His degrading treatment claim is not underpinned by any pleaded independent common law cause of action and is legally demurrable.

(c) In any event, both the wrongful detention claim and the degrading treatment claim are not substantiated by credible evidence.

105.  The plaintiff’s action is therefore dismissed with costs with certificate for counsel.

106.  The Director asks for costs to be awarded on a higher scale to reflect the court’s disapproval of this abusive and unwarranted civil claim mounted by the plaintiff notwithstanding the HC Decisions.

107.  This action pre-dated the HC Decisions. As explained in Halsbury’s Laws of Hong Kong, Volume 1 (Administrative Law) at [10.262], there was nothing irregular in the plaintiff bringing this action:

“A habeas corpus proceeding does not include a compensatory element; a successful detainee can therefore only obtain damages for the period of unlawful detention suffered by bringing a separate action in tort for false imprisonment.”

108.  Notwithstanding the HC Decisions, there had been no application to raise the defence of issue estoppel when the plaintiff was still legally represented. When the Director applied at the PTR to amend his Defence to raise issue estoppel as a defence, the plaintiff had become unrepresented. As shown by the foregoing discussion, the issue is not straightforward and not easy for a layman to comprehend. It was understandable that the plaintiff simply proceeded with the scheduled trial.

109.  I am not satisfied that there is any “special or unusual” feature in this case justifying an award of indemnity costs (Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020) 23 HKCFAR 74 at [4]). I would order the Director’s costs to be taxed on the usual party and party basis only.

ANNEXURE