AMMAR ABDALMOEEN HUSSEIN IBRAHIM v. SECRETARY FOR JUSTICE

DCCJ 4008/2023

[2026] HKDC 664

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION 4008 OF 2023

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DECISION

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1.  This is one of the many claims for damages brought by non-refoulment claimants against the Director of Immigration for allegedly having been unlawful detained in breach of the Hardial Singh principles.

2.  The parties filed a Consent Summons dated 8 January 2026 jointly applying for leave to be granted to the Plaintiff (“P”)  to accept the sanctioned payment in the sum of HK$92,488 paid into court by the Defendant (“D”)  on 29 January 2024.  The action would thereby be settled upon such leave being granted.

3.  By a Notice of result of Consent Application dated 13 January 2026 sent by the court to parties, the parties were informed that an Order in terms of the Consent Summons as amended has been made by this Court on even date.  This Court made 2 amendments, one of them was minor and immaterial and would be ignored.  The other was made to the costs provision in paragraph 5 of the Consent Summons, and is the subject matter of P’s present intended appeal.  I will quote it here with indication of the changes I made :

“5. The costs of this action be paid by the Defendant to the Plaintiff on a party and party basis at the District Court scale, to be taxed summarily assessed if not agreed. For that purpose, the Plaintiff is to lodge Statement of Costs within 14 days, the Defendant his List of Objection 14 days thereafter and the Plaintiff’s Reply, if any, 14 days thereafter.”

4.  Then after, this Court received no communication from either party disagreeing with the above change or informing this Court about the Specific Agreement (defined below)  they have reached which now forms the backbone of P’s complaint.  I particularly mention this because prior to the Order having been sealed, this Court would not be functus and would have the power to change its terms upon representation being made to it by either or both of the parties.

5.  However and somehow, P’s solicitors went on to lodge an engrossed Order for sealing, which was sealed on 26 January 2026.  The costs provision contained in the sealed Order (“the Costs Order”)  somehow is slightly different in wording, and for completeness, I will also set it out :

“5. The costs of this action be paid by the Defendant to the Plaintiff on a party and party basis at the District Court scale, to be summarily assessed by this Court. The Plaintiff do lodge and serve his Statement of Costs within 14 days from the date hereof. The Defendant do lodge and serve his List of Objection within 14 days thereafter; The Plaintiff do lodge and serve his Reply, if any, within 14 days thereafter;”

6.  By summons dated 23 January 2026 but filed on 26 January 2026, P seeks leave to appeal against the Costs Order.  I directed this appeal to be disposed of on papers.  Having considered the parties’ written submissions, this is my decision.

7.  The focus of P’s complaint is the summary assessment I have ordered.  In the draft Notice of Appeal, P raises 3 grounds which I paraphrase as follows:

(1)  The Consent Summons contained terms of a contract properly reached between the parties, absent the usual grounds recognized in law to set aside or interfere, I have no power to vary the terms so agreed, as the contract ousted the discretion of the Court;

(2)  Even assuming I have the power to vary, I failed to afford P a fair opportunity to make representations before making the Costs Order; and

(3)  As the Costs Order is not the same as the original paragraph 5 of the Consent Summons, I erred in making the order “BY CONSENT”.

8.  When this Court made the change in the Costs Order, this Court was not aware of the Specific Agreement, but was particularly mindful of the disproportionately excessive costs often times claimed by non-refoulment claimants in the UD Cases, especially the Small Sum UD Cases, and how in the context of the UD Cases, there afford opportunities to lodge claims of costs that are wholly unrealistically and disproportionately excessive and why there are reasons that to grapple with and meaningfully tax some of the statements or bills of costs would not be a particularly fruitful use of judicial resources (as I have explained and held in Kristanto Doni v Secretary for Justice sued for and on behalf of Director Of Immigration [2025] 4 HKLRD 182).  Thus, this Court then took the view that summary assessment (with proportionality and a broad-brush approach)  was the more appropriate mode of assessment as would achieve the underlying objectives and a just amount of costs.

9.  P exhibited to his affirmation in support the “without prejudice save as to costs” correspondence exchanged between the parties.  The parties there had in letters exchanged since 17 November 2025 specifically discussed whether P’s costs of the action would be summarily assessed or taxed, and D by his letter dated 6 January 2026 specifically agreed that the costs are to be taxed and not summarily assessed.  I thus accept P’s submission that the parties have specifically reached an agreement on the mode of assessment of the costs by the usual taxation and not by summary assessment (“the Specific Agreement”).  I would also mention that D has also very fairly accepted this in §§1 and 2 of his written submissions.

10.  There is no dispute concerning the general principle, which I readily accept as correct, that where the consent order evidences a contract reached between the parties (as opposed to a consent order made when the parties do not object to it), the court has no power to set it aside or vary its terms unless the usual grounds recognized in law to set aside or interfere with a contract are established.

11.  D in his submissions seeks to support the Costs Order by drawing attention to the fact that the instance of costs and the scale of costs have not been changed, but only the mode of assessment, and contending that the court’s discretion on costs is unfettered and wide such that the court still retains a discretion regarding the mode of assessment of costs despite the parties’ agreement thereon.   D cites in support the observation by Ribeiro PJ when refusing leave to appeal on costs in Bank of China (Hong Kong)  Ltd v Twin Profit Ltd [2011] 3 HKC 59 at 21 :

“… As with all questions of costs, the Court has a discretion which it exercises judicially. No one suggests that the discretion is fettered, Yuen JA having expressly noted the contrary.[25] The parties’ agreement as to how costs should be dealt with provides the starting point for the discretionary exercise.” (emphasis by Mr Cheung)

12.  D further cites Vember Lord Ltd v Swatch Group (Hong Kong)  Ltd [2023] HKCA 471 in which the Court of Appeal applied the above quoted observation of Ribeiro PJ.

13.  Mr Ngan, counsel for P, in gist submits that upon the Specific Agreement having been reached, the discretion on costs of the court is ousted.  Save harping back on the general principle mentioned in paragraph 10 above, Mr Ngan is unable to cite any authority to dispute the said observation in Twin Profit or the CA’s holding in Vember Lord Ltd.  On my part, I would not accept his said submission and instead accept that of D as the correct law.

14.  That said, had this Court been informed of the Specific Agreement, and even this Court retained an unfettered discretion on costs, this Court would not have exercised its discretion to make the change in the Costs Order.  Further, even after my Order had been made but before it was sealed, and had P informed this Court of the Specific Agreement and if it be confirmed by D (as he readily did here), I would have readily rescinded my Order making the change to the Costs Order and ordered in terms of paragraph 5 of the Consent Summons unchanged.  The reasons are as follows.

15.  Firstly, the parties at the time evidently were well aware of what I said in Kristanto Doni and went on to reach the Specific Agreement concerning costs. Thus and under trite principles, the Specific Agreement, while a starting point, would and should have been given much weight, and in my view, should not be altered by the exercise of the court’s discretion unless there are cogent and good reasons to do so.

16.  Secondly, while I was mindful of the general costs situation in some (if not most)  of the UD Cases as I alluded to in paragraph 8 above, there was no evidence in the present case that the bill of costs of P to be submitted for taxation would be disproportionately or unrealistically excessive as in some of the other cases such as to give this Court a cogent reason to order summary assessment contrary to the Specific Agreement.

17.  Thirdly, this Court also agrees with P, that if this Court has been informed about the Specific Agreement and if it nevertheless would still wish to change the mode of assessment to summary assessment, the parties would have been entitled to be heard first.

18.  I therefore accept that P’s proposed appeal against the Costs Order have a reasonable prospect of success.  Accordingly, I grant the leave to appeal sought by P.

19.  On costs, the usual order would be costs of this application be made in the cause of the appeal.  However, it seems to me that had P written to this Court disagreeing with the change to summary assessment and informing this Court of the Specific Agreement, and not proceeded to take steps to seal the Order (thereby making this Court functus)  while around the same time filed a summons seeking leave to appeal, this matter would have taken a very different course – this Court would have invited D to express his stance (if he had not done so)  and would have dealt with the matter economically as I indicated above;  in which case, the issuance of P’s summons became wholly unnecessary and the costs attendant to this application would not have been spent.  I would therefore on nisi basis order the costs of P’s summons be reserved, to be decided in any manner the Court of Appeal sees fit.

20.  I thank Mr Ngan and Mr Cheung for their assistance.