Nowodzelski, Stacey Alan v. Director of Immigration & Assistant Director of Immigration

HCA 393/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 393 OF 2017

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Before:  Hon Au-Yeung J in Chambers

Date of Hearing:  28 November 2017

Date of Judgment:  5 December 2017

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J U D G M E N T

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BACKGROUND

1.This is the plaintiff’s appeal against a Master’s decision to strike out.

2.The plaintiff first arrived in Hong Kong on 21 December 2007 on employment status, to last until 5 January 2010.  He went in and out of Hong Kong intermittently on visitor condition.

3.On 28 June 2010, the plaintiff last entered Hong Kong as a visitor on the strength of his USA passport.  He was permitted to remain until 26 September 2010.  He has not left Hong Kong since.

4.On 28 June 2010, when the plaintiff went to the US Consulate to apply for additional pages to his passport, the Consulate forfeited his passport.  He was told by the Consulate that he had an outstanding legal matter in Wisconsin, USA (which in fact was a bench warrant against him).  He would not be given a passport before resolving that matter.  Despite his efforts during his stay in Hong Kong, the plaintiff has been unable to obtain any form of identification from the Consulate since.

5.On 31 March 2016, the plaintiff reported to the Immigration Department.  He was charged with the offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115 (“the Ordinance”). He was acquitted by the Magistrate on 22 November 2016 (“the acquittal”) on the ground that he did not have the mens rea to overstay and had been staying in Hong Kong involuntarily.

6.The plaintiff applied for verification of eligibility for permanent identity card on 19 January 2017. The application was refused by the Director of Immigration (“the Director”) by letter dated 1 February 2017.

7.On 7 February 2017, the Director issued a removal order (“the Removal Order”) under section 19(1)(b) of the Ordinance on the ground that the plaintiff had overstayed since 27 September 2010.  Notice of the Removal Order and Right of Appeal was served on the plaintiff on 14 February 2017.

8.On 13 March 2017, the plaintiff applied for leave to apply for judicial review against the Removal Order and the decision of the Immigration Tribunal (“the JR proceedings”).  Leave was refused by Au J on 15 August 2017.  An appeal has been lodged but no hearing date has yet been fixed.

9.The plaintiff issued the present writ to make 3 claims:

(1) To challenge the validity of the Removal Order and seek exemplary damages.  He claimed that the Director has continued to pursue prosecuting and punishing him, thereby breaching Article 11(6) of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the BORO claim”);

(2) To seek aggravated damages for prejudicial treatment by the Director.  He alleged that the Director refused to accept him as a “stateless person” and did not approve his application for naturalization as a Chinese national. It was in disregard of the law and “with absolute prejudice caused immense stress on the plaintiff” (“the claim in prejudicial treatment”); and

(3) To seek damages for libel.  The plaintiff averred that the statements contained in the Director’s letter dated 1 February 2017 and the Removal Order stating that the plaintiff has contravened a condition of stay were defamatory. When the appeal for right of abode and against the Removal Order were publicly listed for hearing, the plaintiff averred that his relatives, friends outside his immediate family, and other immigration officers would look down upon him as a criminal (“the libel claim”).

10.Upon the application of the Director, a Master struck out the statement of claim on the grounds that it disclosed no reasonable cause of action, was frivolous or vexatious or otherwise was an abuse of process of the court. The Master also ordered that the action be dismissed.

11.In this appeal, the plaintiff raised another cause of action, namely, that the Director directly discriminated him by denying and ignoring his efforts to submit an application for a dependant visa.  It contravened section 5 of the Family Status Discrimination Ordinance, Cap 527.

LEGAL PRINCIPLES FOR APPEAL

12.An appeal operates by way of rehearing and the judge considers the evidence afresh.  A judge will give the weight it deserves to the previous decision of the master but is in no way bound by it: Hong Kong Civil Procedure 2018, Vol 1, §58/1/2. 

13.No new evidence is admissible in an appeal save on special grounds: Order 58, rule 1(5), Rules of the High Court, Cap 4A (“RHC”).

LEGAL PRINCIPLES FOR STRIKING OUT

14.Under Order 18, rule 19(1) of RHC, the court may strike out a pleading on the ground that (a) it discloses no reasonable cause of action; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay a fair trial of the action; or (d) it is otherwise an abuse of the process of the court.

15.It is only in plain and obvious cases that the court should exercise its summary powers to strike out any writ or pleading under this rule.

16.A reasonable cause of action means one with some chance of success when the allegations in the pleadings are considered: Hong Kong Civil Procedure 2018, Vol 1, §18/19/5.  The expression “frivolous or vexatious” includes proceedings which are an abuse of the process, or when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed: Hong Kong Civil Procedure 2018, Vol 1, §18/19/7.  It may be an abuse of process to litigate matters which have, or could have, been decided in earlier proceedings: Hong Kong Civil Procedure 2018, Vol 1, §18/19/10.

(1) The BORO claim

17.Article 11(6) provides that “no one shall be liable to be tried or punished again for an offence for which he has already been finally … acquitted in accordance with the law and penal procedure of Hong Kong”.

18.The plaintiff submitted that having been acquitted, he was “charged” and punished again for the same offence of breach of condition of stay in the Removal Order.  It contravened Article 11(6).  By bringing a “false charge” against the plaintiff on 1 and 7 February 2017, the Director was perverting the process of justice.

19.The Director denied the allegation and asserted that the plaintiff was seeking to relitigate his BORO claim.

Plaintiff was not charged twice

20.The same conduct may give rise to more than one consequence.  By way of example, a person who drove his car into a pedestrian may be charged with careless driving (criminal consequence) and sued for damages (civil consequence).  Although he was acquitted of careless driving, that did not mean that he would be absolved from civil liability for damages.

21.The plaintiff’s charge under section 41 of the Ordinance and the acquittal only dealt with the criminal consequence.

22.The Removal Order was on the civil side.  The Director was empowered under section 19(1)(b)(ii) of the Ordinance to issue a removal order requiring a person to leave Hong Kong if it appeared to the Director that that person has contravened a condition of stay.

23.The plaintiff was thus not charged twice and there was no contravention of Article 11(6).  The BORO claim does not disclose a reasonable cause of action and/or has no chance of success.

Relitigation of the BORO claim

24.The plaintiff had appealed against the Removal Order to the Immigration Tribunal but the appeal was dismissed.  He then issued the JR proceedings on the same grounds as the BORO claim. 

25.Amongst his reasons for refusal to grant leave, Au J stated as follows:

“(2) The mere fact that the applicant has been acquitted on review of a charge of breach of conditions of stay and without more does not show or prove that the applicant has any arguable lawful right to remain in Hong Kong since 27 September 2010.

(3) In the premises, the applicant does not have any reasonably arguable grounds to say that the Director in issuing the Removal Order against the applicant has committed any legal errors or the decision is Wednesbury unreasonable.”

26.The plaintiff sought to distinguish the JR proceedings from the present writ action in that he was seeking damages in the latter.  However, the court was empowered under Order 53, rule 7 of the RHC to award damages in JR proceedings.  The plaintiff could and should have sought damages in the JR proceedings.

27.It was plain and obvious that in the present action, the plaintiff was seeking to re-litigate his case on Article 11(6) of BORO.  It was an abuse of process and ought to be struck out.

(2) The claim in prejudicial treatment

28.Article 7 of the Nationality Law of the People's Republic of China provides that,

“Foreign nationals or stateless persons who are willing to abide by China’s Constitution and laws and who meet one of the following conditions may be naturalized upon approval of their applications:

1. They are near relatives of Chinese nationals;

2. They have settled in China; or

3. They have other legitimate reasons.”

29.The plaintiff has applied for naturalization as a Chinese national.  He is married to a Hong Kong permanent resident.  He had gone in and out of Mainland China and holds a now dormant China Wholly Owned business license.  He claimed to be stateless because, according to him, US Code §2705 provided that a passport, during its period of validity shall have the same force and effect as proof of US citizenship; but his USA passport had been forfeited.  He claimed to have “habitual and ordinary residence in Hong Kong” from 21 November 2007 to this date.  He did not lose his ordinary resident status for being temporarily absent from Hong Kong: section 2(6) of the Ordinance; he simply followed the Immigration Department’s instructions.

30.The plaintiff had submitted a travel document at an interview with a representative of the Director.  He made a request for a 90-day visitor stamp to release him from recognizance and proceeded to submit applications for dependant visa, right of abode and naturalization.  The Director would not accept the travel document as valid.  The plaintiff alleged that the Director arbitrarily ignored the acquittal and abused his executive power.

31.Even accepting the facts stated by the plaintiff, there was no recognizable cause of action founded on prejudicial treatment or prejudice or continuous disregard of the law.

32.In any case, the allegations that the Director had refused to accept the plaintiff as a stateless person and did not approve his application for naturalization were matters touching on the lawfulness of exercise of the Director’s powers.  They have been litigated in the JR proceedings.

33.Further on the evidence, the plaintiff was not stateless.  On 8 April 2016, the Consulate General of the USA in Hong Kong certified that he was a US citizen but did not hold any valid or invalid US passport.  If he resolved his immigration status with the Hong Kong Immigration Department, the US Consulate General would issue him a replacement passport for his immediate return to the United States.

34.Even assuming he was stateless, the plaintiff has failed to satisfy the Director that he ever had right of abode or had the Director’s approval to stay in Hong Kong. By being a visitor and going in and out of Hong Kong, he has never acquired (not to say lose) ordinary resident status: see the Director’s letter dated 1 February 2017.  The Director’s exercise of his administrative powers to issue the Removal Order did not, as Au J found, appear to be Wednesbury unreasonable.

35.In any case, the plaintiff has not shown how the Director was prejudiced against him compared to other applicants.

36.This claim lacked a reasonable cause of action.  It could not possibly succeed and was frivolous or vexatious.

(3) The libel claim

37.The words that were said to be libellous and their meaning have not been pleaded. Presumably, the plaintiff meant the statements asserting that he had contravened conditions of stay in the Director’s letter dated 1 February 2017, the Removal Order, the Summary of Facts and Reasons for Removal and the Notice of Removal Order.

38.Where the maker is under a legal duty to make a statement and the recipient has a corresponding duty or interest to receive it, the statement is covered by qualified privilege.  To establish defamation, the recipient has to prove malice, meaning lack of honest belief in the truth or a dominant improper motive in making the statement: Leung Kwai Ling v Carmel Chow [2012] HKEC 1582, §18, Gatley on Libel & Slander, 10^th ed, pp 379, 384-385.

39.In the present case, pursuant to section 19(5) of the Ordinance, the Director was under a statutory duty to state the ground on which the Removal Order was made and to inform the plaintiff of his right of appeal.  Those statements contained his reasons as to why the Director refused the plaintiff’s application for verification of eligibility for permanent identity card and why the Director considered that he did not have ordinary resident status.  The plaintiff had corresponding interest to receive those statements.  The same applied to the listing for hearing.

40.The statement of claim did not plead that the Director had acted out of malice.  Neither did the evidence produced by the plaintiff show malice.  The libel claim did not disclose a reasonable cause of action and was frivolous and vexatious.

NEW CLAIM UNDER THE FAMILY STATUS DISCRIMINATION ORDINANCE

41.It was not open to the plaintiff to assert a new claim in the notice of appeal without first pleading it in the statement of claim.

CONCLUSION

42.No reasonable causes of action were founded on any of the 3 claims and those claims were frivolous and vexatious.  The BORO claim was additionally an abuse of process.  Accordingly, the statement of claim ought to be struck out and the action dismissed.  The learned Master’s decision is upheld.

43.Costs should follow the event and be to the Director.  As the evidence and arguments were really re-run of the arguments before the Master, and the appeal was not complicated, I summarily assess the costs at $25,000, to be paid by the plaintiff within 14 days.  I make a costs order nisi accordingly.

44.I thank Ms Luk for her assistance.

The plaintiff appeared in person

Ms Vienne Luk, Senior Government Counsel of the Department of Justice, for the defendant