SHAFQAT ALI v. SECRETARY FOR JUSTICE sued for and on behalf of CORRECTIONAL SERVICES DEPARTMENT

DCCJ 2852/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2852 OF 2011

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JUDGMENT

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Introduction

1. This case concerns the complaints made by the plaintiff, an asylum seeker from Pakistan, in respect of about 5 rectal and strip searches (“the Searches”) that he was subjected to, allegedly in front of other prisoners and/or other people at the Lai Chi Kok Reception Centre (“LCKRC”), during the time when he was detained there, after entry and arrest in Hong Kong.

2. After entering into Hong Kong, the plaintiff was arrested by the police for remaining in Hong Kong unlawfully without the authority of the Director of Immigration on 4 September 2008.  Then, on 8 September 2008, the plaintiff appeared before the Shatin Magistrate’s Court for mention and was ordered to be remanded in the LCKRC.  He was detained at the LCKRC until 31 December 2008.

3. Although the plaintiff does not apparently recall exactly how many times he was searched or the exact time of the searches, it is not disputed that the Searches occurred at the LCKRC, during the said period of detention.

4. The causes of action relied upon by the plaintiff are:-

(1)  Breach of Article 6 of the Hong Kong Bill of Rights (“BOR”) in section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383;

(2)  Breach of Rule 9 of the Prison Rules, Cap 234A (“the Rules”), (collectively, “the Alleged Breaches”); and

(3)  Trespass to the person (“the Trespass”).

5. On 7 June 2013, the plaintiff filed the Re-Re-Amended Statement of Claim to claim aggravated and exemplary damages, on the basis that “the circumstances of the Searches surrounding the plaintiff were of a kind that were liable to induce feelings of humiliation and resentment”, and that the Searches were conducted “in the presence of other inmates”, and that they were “conducted against the plaintiff’s religion”.

Statutory provisions allegedly breached

6. Article 6 of the BOR provides as follows:-

“(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

7. Rule 9 of the Rules provides as follows:-

“(1) Every prisoner shall be searched on admission and at such times subsequently as the Superintendent or other officer in charge may direct, and all articles for the possession of which no authority has been given shall be taken from him.

(1A)  The Medical Officer, or a Chief Officer, Principal Officer, Officer or Nurse, authorized by the Medical Officer, may, for the purpose of paragraph (1), search the rectum, nostrils, ears and any other external orifice of a prisoner.

(2)   The searching of a prisoner shall be conducted with due regard to decency and self-respect, and in as seemly a manner as is consistent with the necessity of discovering any concealed articles.

(3)   No prisoner shall be stripped and searched in the sight of another prisoner unless a senior officer considers it necessary in the interests of the security of a prison or the safety of any person.”

Issues for determination at trial

8. The following are the essential issues that fall to be determined in this case:-

(1)    Whether the Searches were conducted in the manner as pleaded by the plaintiff (ie in front of other prisoners and/or people in the LCKRC), and as such induced feelings of humiliation and resentment.

(2)    Whether the Alleged Breaches, in particular, breach of the Rules have been made out.

(3)    By reason of the foregoing, whether the tort of trespass to the person has been made out.

(4)    Whether any and if so, what amount of damages lie in respect of all or any of the Alleged Breaches and/or the Trespass.

9. It should be noted that, in the context of the present case, the tort of trespass to the person goes hand-in-hand with the alleged breach of Rule 9 of the Rules.

10. In an action of trespass to the person, once the trespass is admitted or proved, it is for the defendant to justify the trespass if he can, by showing that he acted with lawful excuse.  In the present case, the defendant’s stance is that the authority to search an inmate comes from the Rules themselves.  Mr Paul Yip, counsel acting for the plaintiff, has confirmed that there is no challenge as to the lawfulness of Rule 9.

11. Insofar as the manner of the Searches are concerned, Rule 9(2) and (3) of the Rules does provide for certain conditions to be met, and which is expressed to be mandatory (by the use of the word “shall”).  It is reasonable to conclude from a plain reading of the language of the rule that the Searches would not be lawful if the mandatory conditions stipulated as to the manner of searching were not complied with.  Another way of looking at it is that the power of the Correctional Services Department (“CSD”) to lawfully search an inmate, thus preventing it from being a trespass to the person, has been qualified by Rule 9(2) and (3) of the Rules.

12. Further, the alleged breach of Article 6 of the BOR is also closely related to an alleged breach of Rule 9 of the Rules.  Given that Rule 9(2) of the Rules upholds much the same values (ie searches having to be conducted with regard to decency, self-respect and seemliness) as those underlying the rights protected by Article 6 of the BOR (ie respect for humanity and inherent dignity of the person), it follows that if the Rules are found not to be breached (and therefore the Trespass is not made out), it is unlike that Article 6 of the BOR will be found to have been breached.

13. Regarding the question of quantum of damages, although counsel for both parties have addressed the issue in their respective written submissions, it transpired that there might be vastly different factual scenarios giving rise to liability on the part of the defendant (if so found by the court).  In the circumstances, and with the agreement of the parties, I gave the following directions towards the end of the trial: (i) judgment in this case shall be handed down on liability only; and (ii) damages (if any) shall be assessed on the basis of written submissions to be lodged and served by the parties within 21 days after the handing down of the judgment on liability.

The plaintiff’s case

14. According to the plaintiff, the Searches were divided into 2 parts.  The first part was a strip search where the inmates were required to take off all their clothes so that they could be searched and checked by a security officer of the CSD for any prohibited objects.  The second part of the search was a rectal search which would be performed by a medically qualified staff.  Apparently, the purpose of this type of search was to see if the inmates had any prohibited objects inside their body.

15. As stated above, the plaintiff was first admitted to the LCKRC on 8 September 2008.  Being a newly admitted inmate to the LCKRC, the plaintiff was required to be searched.  This took place at the reception centre area of the LCKRC.  However, upon realizing that it included a strip search and rectal search, the plaintiff found that they were against his religious belief (the plaintiff is a Muslim) and so, raised this matter with the security officer.  Despite that, he was told by the officer that there was no exemption for anyone.  He was also told that if he refused to do the searches, he would be breaching the prison rules.  Under those circumstances, the plaintiff, against his will, reluctantly underwent both the strip search and the rectal search.

16. To make matters worse, the searches were conducted in a manner that did not respect the dignity of the inmates.  The plaintiff, together with other inmates, were required to take off all their clothes in a room where each inmate was only separated by curtains.  Yet, these curtains did not form an enclosed space that could cover the whole of their body.  Other inmates or people who went in and out of the room could see their naked or nearly naked body.  After that, the plaintiff and the other inmates would be examined by the security officer one by one and they remained naked throughout the whole examination.

17. Even when the strip search was finished, the inmates still could not put on their clothes.  They were asked to line up in a corridor outside another room where the rectal search would be carried out.  It was in fact a corridor leading to the toilet.  As a result, many people, including other inmates who needed to go to the toilet, would see these naked or nearly naked inmates waiting for their rectal search.

18. As regards the room where the rectal searches were carried out, although some curtains or partition were set up inside the room, these curtains or partition were not arranged in such a way so that people from the other side of the metal gate could not see what was happening inside the room.  In fact, they were loosely arranged and as a result, gaps were present and other people, whether they were inmates waiting their turn for the rectal search or people who walked past the corridor, could see these embarrassing rectal searches.  According to the plaintiff, he could clearly see, from a diagonal position, what was happening to the inmate in front of him during the rectal search.

19. When it was the plaintiff’s turn, he recalled the officer shouting at him and said: “Come, there are some more after you and we have to search them”. The plaintiff was reluctant to go forward.  He tried to raise his objection to the officer by making a cross with his hands and uttered the words: “No good my religion”.  Despite that, the officer verbally abused him and asked him to move forward.  As a result, he was forced to undergo the rectal search.  He even recalled those officers laughing at him.  To the best of his recollection, he did not recall anyone explaining to him about the rectal search nor was he informed that he could elect not to undergo the rectal search.

20. After the rectal search, the plaintiff went to the toilet next door to clean up.

21. Sometimes, these searches would take place inside the hospital of the LCKRC instead of the reception centre area.  Though the location was different, the way in which these strip searches and rectal searches were conducted was the same.

22. Again, the plaintiff was asked to strip inside a not fully enclosed space created by curtains in the corridor and be searched there.  After that, he would move up the corridor and line up outside the rectal search room, without his clothes, waiting to be searched.  Like what was happening in the reception centre area, the curtain partitions inside the rectal search room were loosely arranged so that people from the outside could see these searches.  Once it was finished, the plaintiff would go to the toilet to clean up.

23. According to the plaintiff, he was very embarrassed after being searched “in public”.  He developed mental stress and emotional problems every time he was searched.

Evidence adduced by the defendant

24. The defendant called 5 witnesses to testify at the trial.  Ms Abigail Wong, counsel acting for the defendant, has very helpfully summarized their evidence in her written closing submissions.

25. The first witness, Mr Wong Pak Wing (of the Security Section) provided the court with an overview of the admission process for detainees at the LCKRC. This procedure requires all detainees to submit to a metal detector search as well as a strip search.  Additionally, fresh detainees and those detainees that have been outside the custody of CSD officers (such as those detainees attending magistracies) would have to be subjected to a rectal search as well.

26. During the strip search, the detainee is told to assume several positions in order to ensure that no contraband or dangerous items are being held in the crevices of the body.  The CSD officers are to manipulate the detainee’s limbs only. The only time where CSD officers will physically touch the body of a detainee is to search the detainee’s hair for hidden items.  No other physical force is used.

27. Mr Wong Pak Wing has also testified as to the procedure for conducting a rectal search of detainees that have left the custody of CSD officers, and the general CSD policy to conduct rectal searches of any detainee that has left the custody of the CSD.  This evidence goes to show that the CSD conducted rectal searches on the plaintiff as a matter of general policy, and not due to any arbitrary choice or ill will.

28. The channels of complaint available to the plaintiff at the time are detailed in the witness statement of this witness.

29. The second witness, Mr Wong Kai Tai (of the Hospital Section), has also testified as to the general policies and procedures surrounding the admission of a detainee to the LCKRC.  Apart from the searches, each detainee would undergo a health screen check.  Generally, this health screen check would be conducted after the strip search, and prior to the rectal search.

30. It is Mr Wong Kai Tai’s evidence that immediately prior to the health screening, detainees would be clothed in LCKRC standard uniform, and were fully dressed.  This contradicts the plaintiff’s evidence where he stated that he was forced to stand in line naked while waiting for the rectal search.

31. During the health screening, the detainee would have to be examined, which would require the removal of certain articles of clothing - either the shirt, pants, or both.  The skin of the detainee would then have to be examined for wounds or scars.  During this check, the detainees would be informed of what was going on and asked whether he had any questions.

32. The third witness, Mr Lam Mau, has provided an overview of the “sanitization” process for a detainee that has refused to undergo a rectal search.  It is pursuant to Rule 68B of the Rules that the detainee be “sanitized” whereby the detainee is put in a separate cell and monitored.  Also, as per Mr Lam’s evidence, a detainee undergoing this procedure is kept for a maximum of 72 hours only.

33. Mr Lam testified that this avenue of recourse has been exercised before, and that there are 6 recorded incidents where a detainee has refused a rectal search and has undergone the sanitization process.  Therefore, Mr Lam’s evidence shows that there has always been a channel for complaints, which (on the defendant’s case) the plaintiff did not exercise.

34. More importantly, Mr Lam has testified to the fact that the sanitization process is not equivalent to punishment by isolation at all.

35. The field personnel at the LCKRC further support the evidence of the above three witnesses.  The defendant has presented 2 further witnesses that testified as to the day-to-day practice of searching incoming detainees.

36. Mr Lo Kai Man (of the Security Section) testified as to the strip search procedures at the LCKRC.  Mr Lo was working on the Right Division team responsible for searching the detainees coming into the LCKRC during the material period of time.  As such, Mr Law would actively participate in conducting the strip search of LCKRC detainees.  His evidence as to the actual practice of the strip searches matches earlier evidence given by his supervisors.

37. The detainees would be taken into partitioned cubicles and supervised by 2 CSD personnel, with one officer conducting the search itself and the other acting as a witness.  The detainee would be asked to take each piece of clothing off to be inspected by the CSD officer, who would then drop it in a plastic tray.  Once each piece of clothing had been searched, the detainee would be asked to assume several positions, such as turning around, showing the back of their feet, squatting down, and lifting their scrotum.  The detainee’s hair, nose, ears, and mouth would be checked.  The only point of physical contact during this search would be in regards to the detainee’s hair, at the time when the nose and mouth of the detainee is examined.

38. Mr Lo’s testimony establishes that the searching areas for the detainees are devoid of anyone except for CSD personnel responsible for conducting the searches.  According to the evidence of Mr Lo, an inmate’s privacy was properly respected.  Mr Lo has made it clear that the corridor where the search occurred would be devoid of persons not involved in the search, that the inmate would be blocked from view as he would be standing well inside the cubicle with 2 officers blocking the entrance, and in any case the curtained partitions could be manipulated so that the inmate would be blocked from view.

39. Further, Mr Lo’s testimony contradicts the plaintiff’s assertions that he had complained about the strip search.  Although Mr Lo admits that he cannot recall particularly what happened on the day that he was responsible for searching the plaintiff, Mr Lo’s testimony reflects that if any person were to be unsure or unable to understand what was about to happen, he would ask questions.

40. Mr Yip Hing Lam (of the Hospital Section) then testified as to the day-to-day practice of rectal searches at the LCKRC.  His testimony also shows that the conduct of rectal searches at the LCKRC was fully within the parameters established by Rule 9 of the Rules.  Rectal searches were conducted so as to discover any potential contraband or other dangerous items. According to Mr Yip’s evidence, there were other personnel present when the detainee’s rectal search was conducted, but the search itself was only to be conducted by Mr Yip himself.  Mr Yip also confirms in his evidence that the only people present was the witness officer, also known as the assistant, Mr Yip, and the detainee.  Nobody else would be able to see into the searching room as the view would be blocked by the curtained partitions.

41. Mr Yip also made the point that any difficulties in language would have been reflected on the health screen check forms.  Indeed, as reflected in Mr Yip’s testimony, the fact that the plaintiff’s medical record showed that the plaintiff suffered from eczema would have to be effectively communicated to the plaintiff.  Were the plaintiff not to understand, any difficulty in this regard, or the need for a translator to be present would have been recorded next to the day chop.

42. This raises further issues with the plaintiff’s case.  If the plaintiff truly could not understand English, such difficulty would have been recorded in some form so as to facilitate the medical personnel in obtaining interpreters, regardless of any search procedures.  The fact that the medical records do not record any such language difficulty indicates that the plaintiff’s alleged difficulties in communications were not as severe as stated by him.

Evaluation of the factual matrix

43. There are important discrepancies in the evidence given by the plaintiff.

44. The plaintiff’s oral evidence as to how many people were brought into the room for strip searching in the reception centre area was inconsistent: in the beginning, his account was that it could be 20 to 25 people, but later on said that it could also be 40, or groups of 5 to 10.

45. Insofar as the physical set-up of the room for the strip searches were concerned, the plaintiff initially alleges that there would be 4 to 5 cubicles in this room, although he later retracted this allegation somewhat, in cross-examination, by acknowledging that this is just an estimate based on a five-year old memory.

46. Although he was emphatic, during his examination-in-chief, that the searching of the inmates could be seen even with the curtained partitions present, and was in a position to disagree with the existence of certain curtained partitions when he was searched, as compared with the photographs produced, when it came to being cross-examined about other aspects of the surroundings, he curiously: (i) could not recall which wall the partitions were placed against; (ii) nor the set-up for the strip search; (iii) became rather vague about the change in the set-up of the room and even came to say that he could not recall the setting nor the room where the rectal search was conducted in the hospital; and (iv) also forgot about when the health screen check took place.

47. Although the plaintiff alleged that he had refused to undergo a strip search or rectal search, the circumstances of how he refused, and the CSD officers’ alleged reaction, differed widely in the accounts he gave at different points of time:-

(1)     In his Witness Statement, the plaintiff alleged that he had refused to undergo the Searches, and said to the CSD officer that “it is not allowed in my religion”.  According to him, the subsequent reply was that “The CSD officer replied that there is NO EXEMPTION for anyone”.  The implication there, is that he made an outright objection and that his objection was expressly refuted by the officer.

(2)     Under cross-examination however, his account differed - early on in cross-examination, the plaintiff first said that on all occasions of the strip and rectal searches, he had objected and said that “in Islam this is prohibited so I will not do as you are asking me to do”.  He later admitted that he had gestured and said “No religion good” and later, changed to say that what he actually said was “No good, my religion”.

(3)     The plaintiff also said that the actual words used by the CSD officer were actually “Hey, come, Cha Chai” while moving his arm up and down, and that at that point the plaintiff gestured and tried to object, but he was warned by the inmates lining up behind him that if he did not listen to the officer, he would be put in a separate place - “chipa”, for a period of isolation that would not be counted towards the detention period.  The plaintiff finally admitted that the implications of going to the “chipa” (an idea that was fed to him by other inmates) was the reason which caused him to go through the rectal search.

(4)     Although it was mentioned in the plaintiff’s Witness Statement that the CSD officers have used foul language on him several times, never was it ever mentioned that that occurred when he was trying to argue that he did not want to go through the rectal search.  This would have been crucial to the question of whether and how he had objected to the Searches, and yet it was only during his cross-examination that the plaintiff made this fresh allegation.

48. The evidence of the CSD’s personnel who were involved in the day-to-day process of the Searches directly contradicts every important element of the evidence given by the plaintiff.  The overall set-up, procedure and modus operandi as described by the plaintiff, where they do not agree with the defendant’s description, simply do not sit well with the rationale behind the general procedures and day-to-day practice as described by the CSD personnel.

49. I agree with Ms Wong that the allegations made by the plaintiff, specifically that CSD personnel would touch the detainees’ genitalia, that detainees were forced, en masse, to stand outside a public corridor naked, and that nurses would conduct rectal searches while wearing 25 to 30 gloves on one hand, make no logical sense and are inherently implausible.  I further agree with Ms Wong that the manner of the Searches suggested by the plaintiff is more likely to promote chaos and compromise security in a penal establishment, a situation that the CSD would clearly, much rather avoid.

50. As pointed out above, there are important contradictions in the plaintiff’s account of the facts, which do not sit well with the allegations made by him (in particular, on the issue of what prompted him to go ahead with the Searches, and the role of the CSD officers and other inmates in that respect).  The plaintiff’s account of the facts is also inherently unreliable, given how he obviously and selectively remembers certain matters but not others.

51. The plaintiff’s case is countered by evidence from the defendant’s witnesses who have described a much more systematic and hence, reasonable (and much more credible) practice.

52. On a balance of probabilities, I have no hesitation in rejecting the evidence given by the plaintiff and accepting the evidence coming from the defendant’s witnesses regarding the manner in which the Searches were carried out.

53. As Mr Paul Yip has put it in paragraph 61 of his written closing submissions, “if this Court come to the conclusion that the plaintiff was searched in front of other inmates, the plaintiff would…be entitled to an award for damages.  This is because it would be a breach of sub-section (2) and (3) of Rule 9 as well as Article 6 of the [BOR].  The manner in which these searches were conducted would also be pertinent to the issue of aggravated and exemplary damages” (emphasis supplied).

54. As I have found against the factual case of the plaintiff for the reasons set out above, I hold that there has not been a breach of Rule 9 of the Rules or a breach of Article 6 of the BOR.  Further, I would also dismiss the plaintiff’s claim against the defendant for the alleged trespass to the person.

Lack of “true” consent to the Searches

55. From the plaintiff’s written closing submissions (but not the opening) one is given to understand that “informed consent” has somehow become a focal issue, as the plaintiff seems to contend that there was trespass to the plaintiff’s person as there was no real consent/such consent was “vitiated” by the defendant’s act of “[choosing] not to inform the inmates” that there was a viable alternative to the “searches”, namely, the sanitization process as described above.

56. In this regard, I agree with Ms Abigail Wong that there are fundamental flaws in the rationale behind these submissions.

(1)    Lack of consent or lack of true consent to the Searches has never been pleaded in the plaintiff’s Re-Re-Amended Statement of Claim.  At no time has “true” consent ever been in issue between the parties, in the pleadings or anywhere else (such as the witness statements).  The plaintiff is not entitled to raise the issue, unpleaded, at this very late stage.  In the recent case of Kwok Chin Wing v 21 Holdings Ltd and another, FACV 9/2012 (Judgment of the CFA dated 30/09/13), the Court of Final Appeal has once again emphasized the importance of proper pleadings in a civil trial.  It is simply unacceptable for unpleaded issues to be raised out of the evidence which has been adduced at trial.  

(2)    Besides, how the issue of “true” consent features, in relation to the plaintiff’s factual case, is simply incomprehensible.  As it were, it has always been the plaintiff’s case that he had requested for the Searches not to be conducted (with such requests being met with rejection by the CSD officers). Is the plaintiff now contending that he did consent but such consent was “vitiated”?  What exactly is the plaintiff’s case?

(3)    Further, it has always been the defendant’s position that the Searches would amount to trespass if there were no lawful justification, and accepts that it is the defendant who has to show that it acted with “lawful justification” (see: paragraphs 10 and 11 above).  It is the defendant’s case that “lawful justification” is established if Rule 9 is shown to have been complied with.  In this regard, Rule 9 makes it mandatory for inmates to be searched, and says nothing about having to provide inmates with reasons/explanations or to obtain consent from them.

Order

57. In the premises, the plaintiff’s claim against the defendant in this action is dismissed.

58. The defendant shall have the costs of this action against the plaintiff, including any costs reserved (if any).  Such costs shall be taxed, if not agreed, with certificate for counsel.

59. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

60. Lastly, I thank counsel on both sides for their helpful assistance in this matter.