Mohammad Iftikhar v. Secretary for Justice for and on behalf of the Secretary for Security and Another

DCCJ 2188/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2188 OF 2013

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REASONS FOR DECISION

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1.This is an appeal against the decision of Master S P Yip made on 4 July 2016 when he dismissed the plaintiff’s summons which basically has asked the court to pay him more compensation after the case had been fully settled by way of accepting a sanctioned payment on his behalf by the solicitors who was then representing him.

2.The plaintiff has been acting in person since the issue of the summons on 17 June 2016.

3.At the hearing on 26 August 2016, I dismissed the plaintiff’s appeal with costs and said that I would provide the reasons for my decision in due course.  Here are the reasons.

BACKGROUND

4.In the endorsement of claim attached to the writ of summons filed by the plaintiff’s former solicitors, Messrs Yip & Liu (“Y&L”), who was assigned by the Director of Legal Aid (“DLA”) to act on his behalf, the plaintiff claimed damages arising out of the alleged wrongful and unlawful detention by the defendant during the period from 21 June 2007 to around May/June 2008 at the Castle Peak Bay Immigration Centre, Tuen Mun, New Territories (“CIC”).

5.No statement of claim has ever been filed in this case.  Hence, no defence has been filed by the defendant also.

6.Legal Aid was discharged by the DLA on 29 April 2015.

7.The defendant made a sanctioned payment in the sum of $120,000 on 23 July 2015.  The notice of sanctioned payment to the plaintiff was served on the plaintiff on the same day.

8.Y&L was re-instructed by the plaintiff on 24 July 2015 and a notice to act was duly filed for that purpose.

9.On 5 August 2015, Y&L accepted the sanctioned payment on behalf of the plaintiff and the endorsed notice of request for payment was filed on 10 August 2015.  The costs of this case was settled between Y&L and the Department of Justice (“DoJ”), who was acting on behalf of the defendant, in July 2015.  Those costs included the costs incurred by the plaintiff’s solicitors while he was still under the cover of legal aid.

10.On 17 June 2016, the plaintiff filed a notice to act in person.

11.On the same day, the plaintiff took out the summons with the “homemade” supporting affirmation which was partially truncated.

12.In essence, the plaintiff has made a number of new complaints/claims in the summons, including but not limited to, seeking damages for 3 separate periods of detention which included:-

(i) 21 June 2007 to 26 June 2008 (“1^st detention period”);

(ii) 8 August 2013 to 10 October 2013 (“2^nd detention period”); and

(iii) 6 June 2016 to 11 June 2016 (“3^rd detention period”).

13.The plaintiff further complained that he has not received any money after Y&L accepted the sanctioned payment on his behalf.

14.Y&L was asked by DoJ on 27 April 2016 if they were still acting for the plaintiff.  On the same day, Y&L replied that the plaintiff was in prison at the time and the settlement sum for this case had been kept by the DLA pending his discharge from prison.  Further, Y&L stated that they had not received any further instructions to act for the plaintiff.  Attached to the letter is a form signed by the plaintiff instructing Y&L to act on his behalf which was dated 23 July 2015.

DISCUSSION

15.It is trite that an appeal from the master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time: see Order 58, rule 1 of the Rules of the District Court; §58/1/2 of Hong Kong Civil Procedure 2016.

16.Judging from the contents of the plaintiff’s affirmations filed before the master (and for the appeal), it is apparent that the plaintiff was laboured under the misconceived idea that he was entitled to a certain fixed daily sum for each day while he was unlawfully detained by the authority under the principles set out by the Court of Final Appeal (“CFA”) in the case of Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration [2014] 3 HKC 78, (2014) 17 HKCRAR 138 (“Ghulam Rbani”). He relied on the local newspaper reporting of that case and argued that because the CFA in that case had awarded HK$10,000 as damages for 10 days of unlawful detention, hence since he was allegedly been unlawfully detained for over 14 months, he was entitled to damages at $1,000 per day and therefore supposedly over $420,000 ($1,000 x 14 x 30) for his 3 separate periods of detention.

17.In my judgment, such claim of the plaintiff is clearly without any foundation and against all recognised principles of law. 

18.First, it is a well established principle in public law that, for short period of false imprisonment, the award can be, relatively speaking, substantial, while for any further period of unlawful detention, the progressively reducing scale will be very steep: see for example Abid Saeed v Secretary for Justice [2015] 2 HKC 187, at 259, §276 and A v Director of Immigration [2009] 2 HKC 452. 

19.In Abid Saeed, for a period of unlawful imprisonment of 107 days, I awarded a sum of $100,000 as damages (including ordinary and aggravated damages). That case has not been appealed against by either party and hence remains good law.  In that case, I also compared a few other local decisions where damages was awarded for unlawful detention / false imprisonment[1].  Thus, in my view, the sanctioned payment of $120,000 made by the defendant to settle this case for a period of imprisonment of around 12 months (based on the period statement in the endorsement of claim by the plaintiff’s former solicitors) was a reasonable sum.  Given the risks of a trial and the fact that the plaintiff could obtain the damages much earlier, I could quite understand why the plaintiff was advised by his legal advisers to accept the sanctioned payment. 

20.Second, the plaintiff has totally misconceived the idea that, just because at some stage he had made a torture claim against the authority and might had even been unlawfully detained by them, he is entitled to damages for any further periods of lawful detention imposed by the authority.  In this case, the plaintiff has not specified the reasons why he was detained by the authority during the 2^nd and 3^rd detention periods.  However, the letter from Y&L to DoJ on 27 April 2016 mentioned that he was in prison at the time (as contrast to detention by the Immigration Department like at facilities such as CIC).  Further, the plaintiff confirmed to the court during the appeal hearing that he was imprisoned due to a conviction of having been found engaging in unlawful employment on a construction site while he was on recognizance under section 36(1) of the Immigration Ordinance, Cap 115.    

21.In my judgment, it is quite clear that a torture claimant cannot claim damages arising out of any lawful period of detention or imprisonment by the authority resulting from a proper conviction after a due process of law.  The plaintiff’s thinking that he was entitled to further damages while he was being imprisoned for a criminal offence is not only naive but demonstrates his greed.

22.Third, at the appeal hearing before me, it has also become clear that the plaintiff did not realize that the $120,000 sanctioned payment which was received on his behalf by Y&L, had already been passed to the DLA for his retention and first charge, as the DLA was fully entitled to under the Legal Aid Ordinance, Cap 91.  While the plaintiff kept complaining that he had not received a penny from the sanctioned payment since he came out from prison, the truth of the matter is that all this time the money was sitting at the DLA’s office waiting for him to collect, subject of course to the deductions of the first charge. 

23.I further noticed in this case that, since Y&L had already settled the costs with the defendant (including the costs incurred while he was under legal aid), there should not be any substantial deduction from the sanctioned payment accepted by Y&L on his behalf.  What the plaintiff needed to do is to contact the DLA to apply to collect the sanctioned payment and, after the DLA has made the necessary deductions for the first charge, no doubt the remaining balance would be paid to him.

24.I wish to take this opportunity to make it clear to any potential torture claimants that, in Ghulam Rbani, a sum of $10,000 was awarded for a very short period of unlawful detention, ie 10 days.  Hence, the damages awarded for such short period of detention was relatively substantial. However, for any lengthy period of unlawful detention or false imprisonment, the deduction will be very steep and I would consider that a sum of $120,000 for a period of around 12 months of detention (as claimed by the plaintiff under the endorsement of claim in this case) would be within the reasonable range of damages expected to be recovered by a claimant.  Any argument to say that a claimant would be able to recover a sum based on a daily figure of $1,000 times the number of days they were in detention, as the plaintiff has tried to run in this case, in my view is not only wholly unsustainable, but would raise totally unrealistic expectation in the minds of any potential claimants.  Such misconceived ideas must be stemmed out of the mind of any such torture claimants, who often do not speak any Chinese or English and are unfamiliar with our legal system.   

25.Last but not the least, at the material time when the plaintiff accepted the sanctioned payment, he was represented by Y&L, a reputable firm of solicitors who have had plenty of experience in handling this kind of cases. They had proper instructions to act for the plaintiff. Thus, once the sanctioned payment was accepted, the case will be considered as coming to a final conclusion and the plaintiff is not allowed to re-open the case for the purpose of claiming what he personally considers as a “just” sum of compensation. If the plaintiff is able to find any elements of negligence or incompetence (which I cannot see any in this case), it is for him to take recourse against his former solicitors under a separate action.

26.For the aforementioned reasons, I consider that the plaintiff’s appeal consists of no substance at all and the master in my view was absolutely right in dismissing the summons on 4 July 2016.

CONCLUSION

27.In the aforestated premises, I have decided at the appeal hearing that the plaintiff’s appeal had been totally misconceived and therefore should be dismissed with costs.

28.On costs, unfortunately, due to his own totally misconceived idea of an injustice having been done to him, the plaintiff issued the summons unnecessary and without any legal grounds.  As much sympathy as I have for the plight of the plaintiff and for any genuine asylum seekers and refugees in Hong Kong, as a matter of law, the costs must follow the event and the plaintiff will have to bear the costs of bringing this unmeritorious appeal.

29.Further, in my view, DoJ had acted in a more than proper and fair manner in this case by warning the plaintiff in a letter dated 22 July 2016 of the consequences of losing this case in terms of costs.  They had specifically asked the plaintiff to seek independent legal advice before the appeal hearing in order not to generate more unnecessary costs.  Sadly, despite of such clear warning, the plaintiff chose to proceed with the appeal and must now face the consequences.

30.Having studied the statement of costs for summary assessment submitted by DoJ, I would summarily assess the costs of the appeal at $12,000.  Such costs must be paid by the plaintiff to the defendant and I would allow the plaintiff a period of 3 months to do so.

The plaintiff, unrepresented and appeared in person

Mr Harvik Tse, government counsel, from the Department of Justice, for the defendant