Read the full judgment text of HCAL 100/2006 on BabelCite. This High Court CFI judgment was delivered on 3 March 2009 before Hon A Cheung J.
Civil law – false imprisonment – assessment of damages – unlawful detention – Hong Kong Bill of Rights art 5(1) – Immigration Ordinance (Cap 115) s 32 – Convention Against Torture claimants – aggravated damages – exemplary damages – Rookes v Barnard – Four applicants (A, AS, F, YA) were torture claimants under the Convention Against Torture (CAT), detained under s 32 of the Immigration Ordinance (Cap 115) pending verification of their CAT claims – Court of Appeal in [2008] 4 HKLRD 752 declared their detentions unlawful for violation of art 5(1) of the Hong Kong Bill of Rights due to absence of a published and accessible policy on the exercise of detention powers – 'A' detained for 3 months (June to September 2006), 'AS' for 655 days (June 2005 to March 2007), 'F' for 634 days (July 2005 to March 2007), 'YA' for 156 days (October 2006 to March 2007) – Court of First Instance tasked with assessment of damages for ordinary (basic) damages, aggravated damages and exemplary damages – Court applied Thompson v Commissioner of Police of the Metropolis [1998] QB 498 guidelines, Pham Van Ngo v AG and R v Governor of Brockhill Prison, Ex parte Evans (No 2) [2001] 2 AC 19 – Two elements of non-pecuniary ordinary damages: loss of liberty and damage to reputation, humiliation, shock, injury to feelings – Court rejected the daily rate or 'going rate' approach in favour of a global assessment with a progressively reducing scale for longer periods – Whether aggravated damages should be awarded for arbitrary detention, lack of apology, and institutional indifference – Held: no aggravated damages warranted to any applicant, though 'YA' presented a marginal case which the $100,000 basic award was found sufficient to cover – Whether exemplary damages should be awarded under Rookes v Barnard first category for oppressive, arbitrary or unconstitutional conduct by government servants – Held: no exemplary damages – Failure to publish detention policy unconstitutional in strict sense but insufficient without outrageous conduct disclosing malice, fraud, insolence or cruelty – A v Bottrill on inadvertently negligent conduct not followed in Hong Kong as inconsistent with the closed categories under Rookes v Barnard – Damages awarded: 'A' $80,000, 'AS' $150,000, 'F' $180,000, 'YA' $100,000 – 'AS' and 'F' had preceding periods of lawful imprisonment reducing the second element of damages – Applicants' own criminal conduct (overstaying, going underground, absconding) and the reasonable basis for detention at the individual merits level were relevant mitigating factors – No pre-assessment interest – Post-assessment interest at judgment rate – Costs nisi to applicants in each case, taxed if not agreed, applicants' own costs taxed in accordance with legal aid regulations.
Legal issues: Methodology for assessment of ordinary (non-pecuniary) damages for unlawful detention · Whether aggravated damages should be awarded to any applicant · Whether exemplary damages should be awarded under Rookes v Barnard first category · Whether 'inadvertently negligent conduct' suffices for exemplary damages in Hong Kong
Outcome: Damages assessed for unlawful detention: 'A' $80,000, 'AS' $150,000, 'F' $180,000, 'YA' $100,000. No aggravated or exemplary damages awarded to any applicant. Costs nisi to applicants in each case.
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