Akhter Rana Shahid v. Immigration Department and Others

CACV 8/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 8 OF 2015

(ON APPEAL FROM HCMP NO. 3094 OF 2013)

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DECISION
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Hon Chu JA (giving the Decision of the Court):

Introduction

1.By summons issued on 24 July 2015, the 5^th defendant applied for security for costs in this appeal brought by the plaintiff against the decision given by Chow J (“the Judge”) on 22 December 2014 (“Decision”), and for an order that pending the provision of security by the plaintiff, the proceedings in this appeal be stayed. 

2.By summons filed on 12 November 2015, the 1^st to 4^th defendants, who are all represented by the Department of Justice, applied for leave to adduce an affirmation for the purpose of supporting the 5^th defendant’s application.

HCMP3094 of 2013

3.The plaintiff is a Pakistani. He is an asylum seeker and a Convention against Torture (CAT) claimant. 

4.The plaintiff came to Hong Kong in January 2006.  In September 2006, he was arrested by the police for illegally remaining in Hong Kong and failing to carry an identity document.  He was detained by the Immigration Department between 29 September 2006 and 5 January 2007 (“1^st detention’).  Upon referral by the Social Welfare Department on 12 March 2007, the plaintiff became a service user of the International Social Service (Hong Kong Branch) (“ISS”, the 5^th defendant).

5.The plaintiff’s application for recognition as a refugee was rejected by the United Nations High Commissioner for Refugees on 24 December 2007, and his CAT claim was rejected by the HKSAR government on 29 August 2012.  Thereafter, he was further detained by the Immigration Department between 14 September and 17 October 2012.  He has since been released on recognizance pending repatriation to his home country.  

6.The plaintiff commenced the action below (HCMP3094/2013) on 13 November 2013 by way of originating summons, raising the following complaints against the five defendants:

(1)  ISS hired someone to commit a burglary at his home in about June or July 2012, and the police, acting in collusion with ISS, failed to stop the burglary.[1]

(2)  The Social Welfare Department failed to provide him with basic assistance in accordance with international law.[2]  

(3)  The Legal Aid Department failed to grant him legal aid to pursue claims in connection with the complaints he had made in the action below.[3]

(4)  The plaintiff was unlawfully detained by the Immigration Department during the 1^st detention, during which he was tortured in that he was given an injection against his will and he suffered loss of freedom, which was a mental torture.[4]

(5)  The police failed to properly discharge its duties in relation to the abovementioned burglary, and also failed to take action over an assault committed on him by a staff of ISS at the Prince Edward Road office in the evening on 7 May 2010.[5]

(6)  The plaintiff was wrongfully accused by ISS, and wrongfully prosecuted by the police, for threatening a staff of ISS during an incident that took place on 22 June 2010 near ISS’s Prince Edward Road office.  The plaintiff was charged for an offence of criminal intimidation in the Kwun Tong Magistracy (case no. KTCC2697/2011), and was acquitted after trial.[6]

(7)  The plaintiff had made two claims for damages against the Director of Immigration for illegal detention and injury to health in connection with the 1^st detention, but he had only received one compensation payment through the Legal Aid Department.[7]

7.On 10 November 2014, upon the applications of the defendants, Master S Lo struck out the plaintiff’s originating summons and dismissed his action against all defendants.  By the Decision, the plaintiff’s appeal against the Master’s order was dismissed by the Judge.  

8.On 16 January 2015, the plaintiff lodged with the Court a Notice of Appeal to appeal to the Court of Appeal against the Judge’s decision.  

The defendants’ applications

9.By letter dated 23 March 2015, ISS’s solicitors requested the plaintiff to provide security for costs of the appeal and enclosed a skeleton bill of costs.  The plaintiff has not replied to it.

10.On 24 July 2015, ISS took out the present summons, applying for orders that: (1) the plaintiff provides within 28 days security for the ISS’s costs in the appeal in the sum of HK$116,300; (2) all proceedings in this appeal be stayed until the plaintiff has provided the security; (3) dismissal of this appeal with costs in the event the plaintiff fails to provide security as ordered; and (4) costs of the application.  ISS’s application is made on the basis that the plaintiff is impecunious, and/or it will encounter delay or undue difficulty in enforcing any costs order against the plaintiff.   

11.In support of ISS’ application and for a general stay of all the proceedings in this appeal, the 1^st to 4^th defendants filed a summons on 12 November 2015 to apply for permission to put in the affirmation of Ko Man Kit Eric. 

12.In the affirmation, Mr Ko explained that, in the light of ISS’s application and with a view to save costs, the 1^st to 4^th defendants have not taken out separate application for security of costs, and will only provide additional information in support of ISS’s application.  The additional information will be considered in paragraph 17 below.  We allow the 1^st to 4^th defendants’ summons as the information contained in Mr Ko’s affirmation is relevant to the application for security. 

The applicable legal principles

13.Under Order 59 rule 10(5) of The Rules of the High Court, Cap. 4A, the Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just. 

14.It is settled practice to require security for costs to be given by an appellant who would be unable through impecuniosity to pay the costs of the appeal, if unsuccessful.  Security for costs may also be ordered upon proof that the respondent will be likely to encounter undue delay or put to undue expense in enforcing any order for costs in the appeal.  Once a case of impecuniosity or some other factor such as difficulty or expense in enforcing a costs order is demonstrated, it is generally up to the appellant to demonstrate countervailing factors militating against an order being made: See Chung Kau v. Hong Kong Housing Authority & Others [2004] 2 HKLRD 650 and Hong Kong Civil Procedure 2016 Vol.1 §§ 59/10/26 & 59/10/27.

15.In deciding whether to order security for costs of an appeal, the court takes into account the fact that the appellant has already had the issue concerned determined in the court below, and it is prima facie an injustice to a respondent to allow an appeal to the Court of Appeal to proceed without security for costs being furnished in circumstances where the respondent will be unable to enforce against the appellant any order for costs made by the Court of Appeal: Hong Kong Civil Procedure 2016 Vol.1 para.59/10/25. 

The plaintiff’s impecuniosity

16.ISS relies on the following matters as showing the plaintiff is impecunious and will be unable to pay the costs of the appeal if he is unsuccessful:

(1)  The plaintiff is an asylum seeker and is not permitted to engage in employment while in Hong Kong.  The plaintiff has not renewed his monthly contract for humanitarian assistance since September 2011 and all assistance to him has since 23 September 2011 been suspended.

(2)  The plaintiff is admittedly destitute and heavily in debt.  In a letter he wrote to the Director of Immigration dated 20 September 2015, the plaintiff requested for assistance to clear “dues” of more than HK$350,000.  He also asked to be returned to his motherland as soon as possible, but requested a visa to come back to Hong Kong to pursue this appeal.

(3)  The plaintiff had in February and April 2015 twice applied for legal aid for this appeal.  Both applications were unsuccessful. 

17.In Mr Ko’s affirmation in support of the application for security for costs, it is further pointed out that the plaintiff had not responded to the Department of Justice’s proposal as to payment of the 1^st to 4^th defendants’ costs ordered in the action below, and that the plaintiff stated in a letter to the Chief Executive dated 19 October 2015 that he owed debts to the tune of some HK$400,000. 

18.The plaintiff is absent at the hearing today.  He has not filed any evidence to dispute ISS’ case that he is impecunious and cannot pay any costs ordered against him if his appeal was unsuccessful.

19.On the materials available before the court, we are satisfied that ISS has demonstrated the existence of special circumstances for ordering security for costs against the plaintiff in that the plaintiff, through impecuniosity, will be unable to pay costs ordered against him, if his appeal was unsuccessful, and/or ISS will be put to undue difficulty in enforcing any costs order against the plaintiff.   

The merits of the plaintiff’s appeal

20.We next turn to the merits of the plaintiff’s appeal with a view to considering whether this may amount to countervailing factor militating against making an order for security for costs.  In this regard, it is neither necessary nor desirable for us to embark upon a detailed examination of the arguments in the appeal: see Chung Kau v. Hong Kong Housing Authority & Ors at 656D-G.  We need only make a preliminary assessment of the strength of the grounds of appeal.  

21.In his Notice of Appeal, the plaintiff asks that the Judge’s decision be set aside and that compensation be ordered against the 1^st to 4^th defendants in the sum of HK$30 million and against ISS in the sum of HK$50 million.  In the attachment to the Notice of Appeal, the plaintiff makes the following points:

(1)  A staff of ISS attacked the plaintiff on 7 May 2010 and caused him to have a heart attack. ISS made a false claim against him, and until he was acquitted by the court in KTCC 2697/2011, he lived for 3 months and 13 days in a dark room with no electricity and water supply.

(2)  During the incident on 7 May 2010, the staff of ISS assaulted the plaintiff and snatched his mobile phone in front of police officer, and a police sergeant also assaulted him.

(3)  The Legal Aid Department combined the plaintiff’s two legal aid applications for two compensation claims.  The plaintiff has only received compensation for unlawful detention, but not for the injury to health claim.

(4)  The Immigration Department unlawfully detained the plaintiff on 12 September 2012 and closed his case for CAT claim.  The immigration officer(s) injured the plaintiff’s health by hiding his medical record when he was unwell and taken to see doctors at hospital and clinic(s), and not giving him his medicine.  The plaintiff’s home was burgled by some people and some money was stolen from it.  The investigations by CAPO and IPCC have not yet completed.  When he was detained by the Immigration Department, somebody again broke into his home.  The plaintiff’s life is not safe at his home country, but the immigration officer does not care and wants somebody to kill him.  The immigration officer acted in favour of ISS.

(5)  The Social Welfare Department did not give the plaintiff fee waiver for seeing doctor on 29 September 2012, and damaged his health by not providing him with basic assistance so as to help ISS. 

(6)  All the defendants were helping each other to damage the plaintiff’s health and try to kill him. They always create troubles for him and give support to ISS by hiring people to kill him.  

22.The majority of these points had been considered and rejected by the Judge for reasons stated in paragraphs 8 to 20 of the Decision.  The Notice of Appeal merely sets out the plaintiff’s complaints against the various defendants and asks the Court of Appeal to consider them.  It has not identified any mistake in the Judge’s reasoning for dismissing the appeal against the Master’s decision to strike out the originating summons and to dismiss the action below.  It is not the function of an appellate court to reconsider the case afresh or to re-determine the defendants’ applications to strike out.

23.In our view, the plaintiff’s appeal has no prospect of success.  There are also no other circumstances that would justify the court in not making an order for security of costs against the plaintiff. 

24.We turn finally to the amount of security to be ordered. ISS asked for HK$116,300 as security for the costs of the appeal, and had provided a skeleton bill of costs showing the breakdown.  Having regard to the short history of the action below, the issues involved in the appeal, which are largely repetitions of matters already canvassed before the Judge, and that very little paper is involved in the appeal, we are of the view that HK$60,000 will be a sufficient security for the 5^th defendant’s costs in this appeal.  The plaintiff will have 28 days from being served with the court’s order to provide the security by making payment into court.

25.We further order that, pending the provision of security by the plaintiff, the proceedings in this appeal be stayed as against ISS.  We see no proper basis for extending the stay to cover proceedings against the 1^st to 4^th defendants.  The present security for costs application is only between the plaintiff and ISS, and the stay, which is a consequential order, can only relate to the proceedings between the plaintiff and ISS.

26.As to costs of the two applications, applying the normal rule of costs follow event, we order the plaintiff to pay ISS the costs of the application for security for costs, and to pay the 1^st to 4^th defendants the costs of the summons filed on 12 November 2015 in any event.  

Dispositions

27.The orders we make are as follows:

(1)  The plaintiff shall within 28 days from being served with this order give security for the 5^th defendant’s costs of this appeal in the sum of HK$60,000, by making payment into court of the said sum;

(2)  Until the plaintiff has given the security ordered in (1) above and notice thereof is given to the solicitors for the 5^th defendant (such notice to be given on the same day as the lodgement is made), all proceedings in this appeal are to be stayed as against the 5^th defendant;

(3)  In default of the plaintiff giving security as ordered in (1) above, this appeal do (upon the solicitors for the 5^th defendant certifying such default to the Registrar of High Court) stand dismissed out of this court as against the 5^th defendant without further order;

(4)  In the event that the appeal is dismissed in the circumstances provided for in (3) above, the plaintiff shall pay the 5^th defendant the costs of this appeal, such costs to be taxed if not agreed;  

(5)  The costs of the 5^th defendant’s application for security for costs be paid by the plaintiff in any event; and

(6)  The 1^st to 4^th defendants’ costs of the summons filed on 12 November 2015 be paid by the plaintiff in any event.

The plaintiff, unrepresented, absent.

Mr Ko Man Kit Eric, Senior Government Counsel, of Department of Justice, for the 1^st to 4^th defendants.

Mr Vincent Chen, instructed by Fairbairn Catley Low & Kong, for the 5^th defendant.

[1] Decision at §8.

[2] Decision at §11.

[3] Decision at §12.

[4] Decision at §§13 to 15.

[5] Decision at §§16 to 18.

[6] Decision at §19.

[7] Decision at §20.