TARJINDER SINGH v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 5061/2021

[2024] HKDC 2042

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5061 OF 2021

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DECISION

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Introduction

1.  There is before me a joint application by the parties for a determination by the court of whether the costs of this action be paid by the Defendant (“D”) to the Plaintiff (“P”) should be on the District Court scale or that similar to that for cases before the Small Claims Tribunal (“SCT”).

Background and Procedural History

2.  P issued a Writ of Summons and Statement of Claim (“SOC”) on 2 November 2021 against D. According to the SOC, P claims as follows:

(1)  He was born in India on 16 January 1983;

(2)  He lodged a claim under the Unified Screening Mechanism on or about 15 April 2013;

(3)  He was detained at the Castle Peak Bay Immigration Detention Centre by the Director of Immigration from 23 May 2019 to 4 September 2019 (“the Detention”) unlawfully in breach of the Hardial Singh principles;

(4)  During the Detention, he was subjected to degrading treatment as he 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, he suffered from adjustment disorder; and

(6)  He claims damages (unquantified) for unlawful detention, interest and costs.

3.  On 11 June 2024, the Department of Justice (“DOJ”), on behalf of D, made a sanctioned payment in the sum of HK$40,000 (“the Sanctioned Payment”) in settlement of the whole of P’s claim in this action.

4.  On the same day, a letter was sent by DOJ to P’s solicitors. DOJ gave notice and warning that since the Sanctioned Payment was well below the jurisdictional limit of the District Court, if P accepts the Sanctioned Payment, D would apply to the court for an 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 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”).

5.  On 31 July 2024, P accepted the Sanctioned Payment. Since the Notice of Acceptance of the Sanctioned Payment was filed and served by P after the expiry of 28 days after the Sanctioned Payment was made (ie 9 July 2024), P’s solicitors confirmed that P would only seek costs of the proceedings up to 9 July 2024 and there be no order as to costs thereafter.

6.  By joint letter dated 21 October 2024, the parties sought the court’s directions and the determination of the scale of costs on paper.

7.  On 1 November 2024, I directed the parties to lodge written submissions on the scale of costs and this matter to be dealt with by way of paper disposal.

Applicable Law

8.  In Avtar Singh v Secretary for Justice sued for and on behalf of Director of Immigration [2024] HKDC 1529 at §§9-11, I reviewed and set out the applicable principles for invoking the “otherwise proviso” under O 22, r 20(1) of RDC which provides:

“Where a defendant’s sanctioned offer or sanctioned payment to settle the whole claim is accepted without requiring the leave of the Court, the plaintiff is entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the Court otherwise orders.”

9.  In short, the prima facie rule is that upon acceptance of the defendant’s sanctioned payment, the plaintiff is entitled to his taxed costs of the proceeding up to the date of service of his notice of acceptance at the District Court scale (for proceedings commenced in the District Court). The prima face rule should apply unless: (1) the defendant discharges the burden of proof of showing exceptional circumstances that justify a departure from the prima facie rule; and (2) the defendant has given a prior warning to the plaintiff that he will apply to invoke the “otherwise proviso” upon acceptance of the sanctioned payment.

10.  Moreover, as explained by the Hon Poon J (as he then was) in Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184 §§19-22 and as emphasized by His Honour Judge Andrew Li in Govindan Sakhivel v Secretary for Justice [2023] 4 HKLRD 721 at §18, because of the importance of the certainty of costs consequences in the sanctioned payment or sanctioned offer regime, the threshold for the defendant to establish exceptional circumstances is high and the “otherwise proviso” should not be invoked lightly.

Analysis and Disposition

11.  In the present case, there is no dispute that prior warning for invoking the “otherwise proviso” has been given to P. Like Avtar Singh, the battleground lies on whether the burden of showing exceptional circumstances has been discharged by D.

12.  Ms Lau, government counsel for D, has submitted the Sanctioned Payment of HK$40,000 should be considered to fall within what this court said in Govindan Sakhivel as a sum “fairly below” the ceiling of SCT’s jurisdiction (HK$75,000). In Govindan Sakhivel, the settlement sum was $39,292. The learned judge accepted that the sum was well-below the ceiling of SCT’s jurisdiction and held that a below-jurisdiction settlement sum in a sanctioned payment is an established exceptional circumstance (see §§20-21).

13.  However, as the learned judge pointed out at §22 (as I also did in Avtar Singh at §14), a below-jurisdiction settlement is not sufficient to discharge the defendant’s burden to invoke the “otherwise proviso”. The below jurisdiction settlement sum has to be counterbalanced by any good reason to justify proceedings being brought in the District Court.

14.  In Avtar Singh, not intending to state exhaustively all the circumstances constituting good reasons to justify bringing proceedings in the District Court, I took the view that these may include: (a) the reasonable prospect of recovering a sum of money more than SCT’s jurisdictional limit; (b) the complexity of the factual and legal issues; and (c) the underlying objectives under O 1A of RDC (see §§15-16).

15.  In the present case, P’s solicitors submitted that it was reasonable to commence this action in the District Court relying on the following cases:

(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: “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 or 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.

16.  Secondly, it was submitted that a pre-action letter was sent to the DOJ on 23 September 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. 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.”

17.  I note these were the exact same grounds put forward by the plaintiff’s solicitor in Avtar Singh.

18.  Like in Avtar Singh, I would accept that at the time of commencement of this action, P’s solicitors would not have had the benefit of the decisions I referred to in Sri Purwati Muhasim v Secretary for Justice [2024] HKDC 1314 at §§32-36 to guide their assessment of the reasonable prospects of P’s claim and the costs consequences for commencing P’s claim in the District Court. If P’s solicitors had the benefit of those cases, no reasonable view could have been taken that there was reasonable prospect for P to be awarded damages above the ceiling of the SCT’s jurisdiction.

19.  As for the fact that DOJ did not respond to the pre-action letter of P’s solicitor, which did not specify any quantum of their claim, this is irrelevant to whether P’s claim should have been commenced in the District Court or SCT. It also does not change the fact that P eventually accepted a below-jurisdiction settlement. In this regard, I agree with and gratefully adopt the recent analysis of His Honour Judge Andrew Li in Farman v Secretary for Justice sued for and on behalf of the Director of Immigration [2024] HKDC 1438 at §47.

20.  Ms Lau submitted that it is not cost-effective for P to pursue his claim in the District Court and P’s solicitors owed a duty to the court to explain why P commenced his claim in the District Court but at the end was willing to accept the Sanctioned Payment of an amount fairly below the ceiling of SCT’s jurisdiction. P’s solicitors have explained on the cases cited it was reasonable for P to have commenced this action in the District Court.

21.  As for the fact that commencing this action in the District Court rather than in the SCT is not conducive to the underlying objects (eg to promote a reasonable proportion and procedural economy in the conduct of the proceedings), this is premised on P’s solicitors having had the benefit of the more recent decisions mentioned above at the time of commencement of this action. Furthermore, the fact of the matter is D and those advising D have also not conducted these proceedings in a manner conducive to the underlying objectives either. They did not engage with P to settle these proceedings at an early stage. The trial of this action had long been scheduled to commence on 1 August 2024. Rather it was only on 11 June 2024 that DOJ made the Sanctioned Payment and no explanation has been offered by DOJ why it was made at that very late stage. My observations in Sri Purwati Muhasim at §§43-44 are equally apposite to the present case.

22.  Overall, I am not satisfied that D has satisfied the burden of establishing exceptional circumstances to depart from the prima facie rule under O 22, r 20(1) of RDC.

23.  Furthermore, I take the view that it is appropriate in the circumstances, so not to incur further costs and use of judicial resources, for there to be a summary assessment rather than taxation of P’s costs if costs are not agreed.

24.  Accordingly, I would order D to pay P’s costs of this action, up to 9 July 2024, at the District Court scale, to be summarily assessed, if not agreed. P should lodge a Statement of Costs within 14 days from the date of handing down of this decision and D should lodge any objections within 3 days thereafter for summary assessment by me on paper if necessary.