Ghulam Rbani v. Secretary for Justice for and on behalf of the Director of Immigration
Read the full judgment text of DCCJ 531/2010 on BabelCite. This District Court judgment was delivered on 13 October 2011.
1. This is the claim by the Plaintiff (“ G ”), a Pakistan national, against the Director of Immigration (“ the Director ”) for damages for false imprisonment and breach of his constitutional rights due to his detention in the immigration centre in Hong Kong in 2005. The Secretary for Justice is named as the defendant for and on behalf of the Director.
Cites 13 cases
|
DCCJ 531/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 531 OF 2010 ____________
Coram: His Hon Judge Leung in court Date of hearing: 9; 17 June 2011 Date of judgment: 13 October 2011 ____________ J U D G M E N T ____________ 1.This is the claim by the Plaintiff (“G”), a Pakistan national, against the Director of Immigration (“the Director”) for damages for false imprisonment and breach of his constitutional rights due to his detention in the immigration centre in Hong Kong in 2005. The Secretary for Justice is named as the defendant for and on behalf of the Director. Background 2.G first came to Hong Kong in 1992 using a passport bearing the name of Ghulam Rubbani, born on 15 April 1971. He was allowed to stay for 3 months but he overstayed. For that, he was subsequently charged with and convicted of breach of condition of stay, fined and repatriated to the Pakistan in August 1993. He had overstayed for about 10 months. 3.G came to Hong Kong again in 1994 using another passport bearing the name of Mian Ghulam Rabani, born on 15 April 1970. He was permitted to stay for 3 months. Again he overstayed; and was convicted and fined. He was repatriated to the Pakistan in July 1995. He had overstayed for about 5 months. 4.In May 1999, G revisited Hong Kong using another passport bearing the name of Ghulam Rabbani, born in 1967. For once again overstaying and making false representation to the immigration (as regards his date of birth during his last visit), G was convicted and given a suspended imprisonment sentence before removal to Pakistan in October 1999. On this occasion, he had overstayed for about 4 months. 5.G last came to Hong Kong on 24 September 2000 when he used yet another passport, this time bearing the name of Ghulam Rbani, born in 1971. He was permitted to remain as a visitor until 15 October 2000; but he had since overstayed here. On 1 April 2005, G was arrested by the police for gambling in a place not being a gambling establishment. He was so charged with the offence together with that of breach of condition of stay. Together with the activated suspended sentence (mentioned above), G was sentenced to a total of 7 months’ imprisonment. 6.After serving slightly less than 5 months in prison, G was discharged from the prison on 23 August 2005. Since then, G had been placed under administrative detention by the Director in the Castle Peak Bay Immigration Centre (“the Centre”) pursuant to section 32 of the Immigration Ordinance, Cap.115 (“the IO”). 7.During the interviews prior to his release from prison in August 2005, not only did G raise no objection to his deportation, but he also positively requested to return to Lahore, Pakistan as soon as possible. The reasons given were his concern about his family, his aged mother and sick son. G repeated his request and reasons by his letter to the Department and during the interview on the day of his release from prison. 8.In view of G’s request, the Director wrote to the Consulate General of the Republic of Pakistan 2 days after G’s administrative detention to seek confirmation for the issue of an emergency passport to G. In the meantime, G’s detention pursuant to section 32(2A)(a) expired; and was continued by the Secretary for Security (“the Secretary”) under section 32(2A)(b) for 21 days from 29 August 2005. G acknowledged receipt of the notification of the further detention by signing it on 31 August 2005. 9.The Director received a positive reply from the Pakistani counterpart on 2 September 2005. An emergency passport of G was issued and air ticket was procured. Application for a removal order was made on 7 September 2005; and the order was issued on 10 September 2005. 10.Unbeknown to the Director, G lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) on 5 September 2005. According to him in court, he changed his mind about repatriation upon learning that his son had recovered. 11.As G confirmed, his written statement containing the CAT claim was sent by post. This was received by the Department on 8 September; and by Removal Sub-division of the Department on 12 September 2005. The issue of the removal order apparently crossed with G’s letter. 12.Service of the removal order, though made, was then withheld and eventually withdrawn on 15 September 2005. 13.On 16 September 2005, the Secretary authorised the detention of G for a further period of 21 days pursuant to section 32(2A)(c). G was given the notification of the continued detention on 21 September 2005. But G refused to sign it. 14.Screening interview of G in respect of his CAT claim began. On 7 October 2005, G was released on recognisance. It was a month and a half since his release from prison; and about a month since he lodged the CAT claim. A (Torture Claimant) v Director of Immigration 15.In A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752 (“the case of A”), the applicants were the subjects of removal and deportation orders under sections 19 or 20 of the IO. They applied for judicial review challenging the legality of their continued detention by the Director under section 32 of the IO since the lodging of their respective claims under the CAT. Their applications were dismissed; and they appealed. 16.The relevant provisions of section 32 of the IO read as follows:
17.The Court of Appeal, among other things, had the following conclusion:
18.The Court of Appeal granted the declarations that the detention of each of the applicants in the case of A was illegal for breach of Art.5(1) of the HKBOR: see further judgment dated 18 July 2008. The case reverted to the Court of First Instance where each of the applicants was awarded damages: see A (Torture Claimant) v Director of Immigration [2009] 3 HKLRD 44 (“the case of A (damages)”). The dispute 19.As pleaded, based on the judgment in the case of A, G now claims that his detention after release from prison until his release on recognizance was unlawful as there was at the time no certain and accessible policy on how the discretion to detain under section 32 of the IO would be exercised. For alleged false imprisonment, G claims basic damages, aggravated damages and exemplary damages. 20.G also claims that the detention was in violation of his constitutional rights guaranteed under Art.9(1) of the International Covenant on Civil and Political Rights (“ICCPR”), Arts.28 and 39 of the Basic Law, and/or Art.5(1) of the Hong Kong Bill of Rights Ordinance, Cap.383 (“HKBORO”). He claims constitutional damages pursuant to Art.35 of the Basic Law and section 6(1) of the HKBORO. 21.The Director’s primary contention is that because of section 11 of the HKBORO, Art.9 of the ICCPR or Art.5 of the HKBOR does not affect the application of section 32 of the IO to G. The secondary contention is that in any event, the judgment in the case of A has no application to the application of section 32 to the detention of G in the present case. Therefore the detention of G was not unlawful. 22.In the premises, the Director says that G’s claim should be dismissed. However, in the event that this court finds that the detention of G in the present case was unlawful, the Director contends that G is nevertheless entitled to not more than nominal damages; or alternatively, substantial damages but not in the sum as claimed. Section 11 of the HKBORO 23.By virtue of Art. 39 of the Basic Law:
24.Art.9 of the ICCPR guarantees the personal liberty of person, which is essentially reproduced in Art.5 of the HKBOR:
25.The primary contention of the Director is that G cannot found his claim on the rights guaranteed under Art.9 of the ICCPR and Art.5 of the HKBOR. The reason is section 11 of the HKBORO, which provides:
26.In the case of MA & Ors v The Director of Immigration, HCAL 10/2010 (6 January 2011) (which will be further discussed below), Andrew Cheung J (as he then was) held (at §§37-38) that according to its natural and ordinary meaning, the phrase “entry into, stay in and departure from Hong Kong” in section 11 of the HKBORO covers the entire period from arrival until departure that a foreigner is in Hong Kong irrespective of whether the stay was lawful or not, i.e., as a lawful visitor, an illegal immigrant or an overstayer. 27.At the time when G was detained, he had no right to remain in Hong Kong. Further the exercise of the power under section 32 to detain G must be an application of the IO and a facet of his stay in Hong Kong. Section 11 of the HKBORO applies to G fairly and squarely. Literally construed, the section does except the application of the IO to G from the HKBORO (and hence the HKBOR). 28.However Mr Dykes SC (appearing with Mr Hectar Pun) submitted that the right to be free from arbitrary detention and the right to habeas corpus are peremptory norms of customary international law (jus cogens). Section 11 of the HKBORO cannot be applied to trump the non-derogatory nature of these peremptory norms in international law. 29.Mr Chow SC (appearing with Miss Grace Chow) took issue as to his opponent’s reliance on customary international law, which was neither pleaded nor formally raised during opening submission. This observation is fair. More importantly, customary international law must be proved. In this regard, Mr Chow SC referred to C & Ors v Director of Immigration [2008] 2 HKC 165 (*) (at §§ 65-68) to illustrate the fundamental elements constituting a rule of customary international law, namely:
30.Not only must the concept or right contended be proved to have developed into the customary international law, but the same must also have formed part of the Hong Kong law. Further it must be of the nature as peremptory norm so that no state can derogate from. In other words, for G’s purpose, the rights contended must, and not just ought to, have attained the status of a peremptory norm from which no state can derogate. 31.Mr Dykes SC referred to General Comment No. 24 of the Human Rights Committee on issues relating to reservations made upon ratification or accession to the ICCPR. It includes the following statement:
32.Mr Dykes SC also produced extracts from various academic writings in support. 33.Unlike Mr Chow SC, my concern is not so much whether comments from the Human Rights Committee or academic writings are acceptable evidence. I tend to believe the court is receptive of them as evidence of international law and state practice. What I am not sure about is whether I am indeed presented with all the relevant materials (as evidence) for drawing a conclusion. At least I cannot ignore the likely compromise of Mr Chow SC’s chance to provide the necessary assistance to the court in this respect because the argument on customary international law was raised at such a late stage. 34.Having said that, I do not think this actually prevents me from disposing of this argument on behalf of G. I say this because similar argument against the application of the immigration reservation has been attempted and ruled on in the recent case of Ubamaka v Secretary for Security [2011] 1 HKLRD 359. 35.In Ubamaka, the Nigerian national was imprisoned for drug offence in Hong Kong in 1993. Deportation order was later made against him. Due to his making of a CAT claim, he was transferred to the Centre upon his release from the prison in 2007. In judicial review proceedings, the deportation order was quashed. The Secretary for Security appealed. 36.The Court of Appeal (at §48 of the judgment) set out the issues on appeal. As far as the complaint that the act of deporting the subject in the circumstances of the case would amount to cruel, inhuman or degrading treatment contrary to Art.7 of the ICCPR or Art.3 of the HKBOR as well as Art.14(7) of the ICCPR and Art.11(6) of the HKBOR is concerned, the Court of Appeal ruled against the applicant. 37.The Court proceeded to address the question that is relevant for our present purpose, namely whether the above complaint of the applicant in Ubamaka, even if substantiated, would be precluded by the immigration reservation to the ICCPR, which is now reflected by section 11 of the HKBORO. Central to this question would have been whether the concepts and rights guaranteed under those articles in the ICCPR were peremptory norms of customary international law from which no state may derogate by way of domestic legislative reservation or exemption (see §§131-132). 38.Fok J (as he then was), with whom Stock VP and Andrew Cheung J (as he then was) agreed, had this to say:
39.Fok J also rejected the argument that section 11 of the HKBORO should be given a narrow construction (see §§139-148) and the argument that the immigration reservation to the ICCPR and section 11 of the HKBORO do not manage to preclude the rule of customary international law from being incorporating into the common law of Hong Kong (see §§149-151). 40.Mr Dykes SC submitted that what the Court of Appeal in Ubamaka said in respect of section 11 of the HKBORO was obiter. Indeed Fok J acknowledged that. Nevertheless his Lordship proceeded to address the question of the applicability and effect of the immigration reservation under section 11 of the HKBORO “as a matter of general importance” (see §124). 41.Besides agreeing with Fok J, Stock VP added that:
42.Andrew Cheung Jtoo emphasized the significant implication of the issue in the context of the challenge against the validity of the immigration reservation:
43.In my view, albeit strictly obiter, what the Court of Appeal said in respect of section 11 of the HKBORO was nevertheless intended to be statement of law of general importance. 44.The applicant in Ubamaka, represented by Mr Pun (now appearing with Mr Dykes SC in the present case) did not take the Court’s above statement of the law lightly either. In his subsequent application for leave to appeal to the Court of Final Appeal, one of the points proposed on appeal was precisely the validity, application and effect of the immigration reservation made by the UK Government in 1976 when it acceded to the ICCPR and applied it to Hong Kong as well as section 11 of the HKBORO. The application for leave, including that on this point, was dismissed on 25 May 2011 (see the written reasons handed down on 31 May 2011). 45.Andrew Cheung J sat as a member of the Court of Appeal in both the cases of A and Ubamaka. His Lordship then sat in the subsequent case of MA (above). The applicants in the case of MA were mandated refugees and screened-in CAT claimants. They claimed the right to work during their stay in Hong Kong. The immigration reservation to the ICCPR as reflected by section 11 of the IO was relied on by the Director. Faced with the argument that the section was incompatible with Art 39 of the Basic Law, his Lordship considered that the matter was squarely covered by the Court of Appeal decision in Ubamaka as discussed above; and rejected such argument. 46.As far as the application of section 11 of the HKBORO is concerned, Mr Chow SC submitted that the position of G, being a CAT claimant, was in no better position than the screened-in CAT claimant and mandated refugee in Ubamaka. I agree. 47.It is true that notwithstanding their conclusion about the application and effect of the immigration reservation to the ICCPR and section 11 of the HKBORO, the Court of Appeal in Ubamaka did not disturb the declaration granted by the judge that the detention of the applicant in that case under section 32 was unlawful. However, this was because counsel for the Director accepted during the appeal that the judge was bound by the case of A to draw that conclusion on the basis that there were at the material time no certain and accessible grounds or procedures for such detention (see §§170-172). 48.In the case of MA, Andrew Cheung J also observed (at §41) that in the case of A, the Director did not rely on section 11 of the HKBORO to argue that section 32 of the Immigration Ordinance was actually excepted from the operation of the HKBOR. In Ubamaka, it was not argued that the decision in the case of A stood in the way of the Court of Appeal’s eventual conclusion that section 11 was actually effective to except the Immigration Ordinance from the operation of the HKBOR in relation to matters concerning entry into, stay in and departure from Hong Kong. His Lordship considered that what was stated in Ubamaka should be the current state of the relevant law. Therefore the reliance by the applicants there on the rights guaranteed under the HKBOR or the ICCPR had to be rejected. 49.Now Mr Chow SC confirmed that the effect of his submission on the immigration reservation to the ICCPR, now reflected by section 11 of the HKBORO, is that had the attention of the Court of Appeal in the case of A been drawn to the application and effect of that section, the decision in that case should have been different. 50.No doubt the case of A is binding on this court. However as observed by Andrew Cheung J in the case of MA, the subsequent decision of the Court of Appeal in Ubamaka represents the current state of the law regarding the validity and effect of section 11 of the HKBORO. In that respect, this court has all the good reasons to follow Ubamaka too. 51.Following Ubamaka, as Andrew Cheung J did in the case of MA, I should conclude that section 11 of the HKBORO has excepted section 32 of the IO and its application from the application of the HKBOR. I should also conclude that G is not in a position to found his claim on the rights guaranteed under either Art.9 of the ICCPR or Art.5 of the HKBOR. This is my conclusion. The Basic Law 52.G also found his claim on Arts.28 and 35 of the Basic Law. 53.Art.28 of the Basic Law reads:
54.Art.35 provides that:
55.G is not Hong Kong resident; and has to derive his right to enjoy the rights and freedoms under this Chapter of the Basic Law pursuant to Art.41 which says:
56.The qualification is “in accordance with law”. The availability to non-Hong Kong residents of the protection of the rights contained in Chapter III of the Basic Law is subject to the law in force in Hong Kong. “Law” must include the immigration reservation to the ICCPR, now reflected in 11 of the HKBORO, which upon the above analysis is consistent with Art.39 of the Basic Law: see Santosh Thewe & Anor v Director of Immigration [2000] 1 HKLRD 717 at 721D-722H; Gurung Ganga Devi v Director of Immigration, HCAL 131/2008 (23 September 2009) at §§20-23; 27. 57.In Re Pasa Danaville Dizon, HCAL 97/2009 (11 September 2009), Andrew Cheung J (as he then was) said:
58.In the case of MA (above), Andrew Cheung J (at §§69-73) reiterated the same point (albeit in the context of the right to employment and art.6 reservation to ICESCR). When reading the Basic Law as a whole in order to find out the non-resident’s right, one must not overlook Art.39 that stipulates that the provisions of the international covenants “as applied to Hong Kong” shall remain in force in Hong Kong. The immigration reservation to the ICCPR was and still in force in Hong Kong. The general provisions in Art.41 of the Basic Law do not have the effect of getting round that. Detention pursuant to section 32(2A) as opposed to 32(3) and (3A) 59.If I am wrong about Ubamaka or should have simply found myself bound by the case of A, the Director’s secondary contention would be that the judgment in the case of A nevertheless does not affect the legality of the detention of G in the present case. The distinguishing feature, says the Director, is that unlike the applicants in the case of A, G was detained since 23 August 2005 pursuant to section 32(2A), not 32(3) or (3A). 60.As mentioned, G requested to return to Pakistan upon his release from prison. He was then detained pursuant to section 32(2A)(a) pending the decision to make a removal order. Steps were taken to push for his removal, including seeking assistance from the Consulate General of Pakistan and arrangement of air ticket for G. The detention was extended to 19 September 2005 pursuant to section 32(2A)(b). 61.Upon the making of the removal order on 10 September 2005, any further detention of G could only have been based on the exercise of the power under section 32(3A) pending his removal under section 25. However, due to the change of mind on the part of G and the making of the CAT claim, the removal order was never served but withdrawn on 15 September 2005. 62.G was given the notification of the continued detention on 21 September 2005. This time G refused to sign to acknowledge receipt of the document. Yet that did not change the fact that the Secretary sought to detain him pursuant to section 32(2A)(c). That remained to be the situation until his release on 7 October 2005. 63.I do not agree with the contention on behalf of G that once the removal order had been made, though withheld and withdrawn, the Secretary might not revert to section 32(2A) for the authority to detain G pending the decision as to whether a removal order should be made, now in view of the recently raised CAT claim. 64.Mr Chow SC submitted that what the Court in the case of A was asked to decide, and has decided, was specifically detention pending removal (under section 19(1)) or deportation (under section 20) pursuant to sections 32(3) and (3A) of the IO. The judgment in the case of A therefore has no application in respect of detention pursuant to section 32(2A) in the present case. Reference to the judgments of the Court of First Instance (at §§2; 9-11) and the Court of Appeal (at §§10-11 and 26) lends him support. 65.Mr Dykes SC disagreed. He submitted that in the judgment of the case of A, the Court of Appeal made no distinction between the power of detention under sections 32(3)/(3A) and section 32(2A). Reference is made to the fact that the declaration of the Court of Appeal and the subsequent awards of damages in the case of A in respect of the unlawful detention cover the periods starting even prior to the commencement of detention under section 32(3) and (3A). Indeed that was the case in respect of 2 out of the 4 applicants there. 66.I note that the Court of Appeal in the case of A made clear from the outset (at §§5 and 18) that the appeal did not concern the question of whether the full period of the detention was or was not lawful. The focus of the appeal was the power of detention after the making of the CAT claims; and the terms of the declaration were eventually agreed between the parties along this line (see the further judgment handed down on 18 July 2008). As such, part of the detention periods even under sections 32(3) or (3A) in the case of the other 2 of the 4 applicants was not included in the periods covered by the declaration or the subsequent award of damages. 67.In my view, reference to the period of detention covered by the declaration and the subsequent award of damages in the case of A may not provide unequivocal indication one way or the other. 68.G then relies on Hashimi Habib Halim v Director of Immigration, HCAL 139/2007 (15 October 2008). By judicial review, the applicant there sought certiorari quashing a decision of the Director to detain him pending his removal from Hong Kong according to the Hardial Singh principles. After the application was reserved for decision, the case of A was handed down. The case resumed for further argument as a result of that. 69.In the case of Hashimi, the applicant also had a prison term to serve. Upon the completion of the term, he was detained pursuant to section 32(2A)(a). The detention then continued pursuant to section 32(2A)(b). He lodged a CAT claim afterwards; nevertheless the detention continued pursuant to section 32(2A)(c). He requested for release on recognizance but was refused. A removal order followed and his detention pending removal under section 32(3A) commenced. 70.As to whether Hashimi’s detention following the completion of his prison sentence was unlawful in terms of the decision in A, Saunders J described that as arguable (see §28). That said, the Director in that case did not question whether the decision of the case of A was or should be read to be confined to the power to detain under section 32(3) or (3A) rather than that under section 32(2A). Instead, it was argued that the steps taken by the Director after the judgment in the case of A was handed down sufficed to remedy the defaults in the procedures identified in the case of A (see §27). It was on this basis that the Saunders J proceeded to consider whether an originally unlawful detention might be subsequently remedied (see §§28-31); and if yes, whether the steps taken by the Director constituted a lawful detention policy in accordance with the criteria explained in the case of A. 71.Assuming with no disrespect that the case of A is not clear as to whether the conclusion there was intended to apply to sections 32(3) and (3A) only, I venture to consider whether according to the principles applied in the case of A, the legality of the power to detain under section 32(2A) suffers the same fate as sections 32(3) and (3A). 72.The starting point is that sections 32(3) and (3A) permit a person to be detained pending, i.e., until, removal under section 25. There is no limitation on the purpose for which a person subject to a removal order could be detained (not even limited to “for the purpose of removal”), or the duration of such detention: see the case of A at §§29-30; Thang Thieu Quyen (above) at 188; Khadir (above) at §32. 73.In the case of A, Tang VP said (at §63):
74.The grounds and procedure for the exercise of the power to detain could be made certain by a policy and accessible by publication. But making a policy is not the only way. The same could also be achieved by way of legislation (see the case of A at §41). Mr Chow SC submitted that that is the case insofar as the power to detain under section 32(2A) is concerned. 75.The circumstances in which the powers to detain under sections 32(2) or (2A) may be exercised are set out in subsection (1A):
76.As mentioned, sections 32(2A) limits the power to detain to be exercised for the sole purpose of inquiries for deciding whether to make the removal order. The duration of detention was also limited. These two elements of the power to detain under section 32(2A) are apparently certain and accessible by way of the legislation itself. 77.However, whilst the power to detain under section 32(2A), properly construed, is limited by reference to the purpose of inquiries as to whether a removal order should be made, the conduct of such inquiries does not presume the need for detention. Considering the legislation alone, I would not say that the grounds and procedure for detention under section 32(2A) are certain and accessible as required by Art.5(1) of the HKBOR. 78.Referring to section 32(2A), one cannot further form any idea as to what could lead to the detention of a subject of inquiries for the purpose of deciding whether a removal order should be made. In that sense, if I may say so with respect, Saunders J in Hashimi seemed to share a similar view when his Lordship commented on the sufficiency of the Notice of Detention Authority as a statement of the detention policy (see §§35-36). 79.I do understand Mr Chow SC’s argument that it may be unrealistic in the circumstances of a particular case, or even frequently the case, to expect the subject of such inquiry to be left at large. But this is never a complete, if legitimate, answer. 80.The period of detention under section 32(2A) is capped. Nevertheless Mr Dykes SC argued that in the absence of certain and assessable guidelines in respect of how the appropriate length of the detention would be assessed, the statutory limit on the duration under each subsection effectively becomes blanket duration applicable to all. 81.Mr Chow SC took issue that the allegation as to the lack of certain and accessible policy in respect of the duration of detention was not pleaded. In any event, he submitted that the Court of Appeal in the case of A said nothing in support of the alleged need for a policy as to the length of detention. On the contrary, the Court of Appeal held (at §31) that so long as the Secretary was intent upon removing the applicant at the earliest possible moment, and it is not apparent that the removal in a reasonable time would be impossible, the power to detain would in principle be exercisable. 82.As far as the argument for a policy on the length of detention is concerned, I agree with Mr Chow SC’s observation. As the Court of Appeal in Ubamaka noted (at §170), the learned judge below in that case found the detention of the applicant there to have been unlawful on two distinct bases: firstly the detention was for unreasonable period and inadequate reasons; and secondly he was bound by the case of A. But by referring to the “transparency on the likely length of detention”, the learned judge was arguably referring to the second instead of the first basis. That approach, the Court of Appeal found (at §180), is at odd with the judgment in the case of A (at §31). 83.Having said that, for the reasons explained earlier, I would already conclude that the power to detain under section 32(2A) is unlawful for infringement of Art.5 of the HKBOR. 84.In the circumstances, I do not agree with Mr Chow SC that the ground and procedure of detention under section 32(2A) is made certain by the wordings of the section itself. If I were wrong about that, I would have agreed that the ground and procedure would be accessible; and to a person like G too if the protocol to arrange translation is adhered to. 85.In conclusion, had the application of the IO that governs the entry into, stay in and departure from Hong Kong as regards G not been excepted from the HKBORO by virtue of section 11, I would have concluded that the power to detain under section 32(2A) is unlawful for breach of Art.5(1) of the HKBOR. The Hardial Singh principles 86.The principles in Hardial Singh (at 706C-G) are the common law check on the exercise of the power of administrative detention. The power of detention, though not expressly subject to limitation on duration, cannot be used for any purpose other than pending the making of a deportation order. As the power is given in order to enable the machinery of deportation to be carried out, it is impliedly limited to a period that is reasonably necessary for such purpose. If it becomes apparent that the removal will not be effected within a reasonable time, it will be wrong to exercise the power of detention. The authority should exercise all reasonable expedition to ensure that the steps are taken to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. 87.In approving the Hardial Singh principles, Lord Browne-Wilkinson in Tan Te Lam (above) (at 111A-E) said that:
88.There is dispute as to whether the Hardial Singh principles apply in the present case. In arguing that they do not, Mr Chow SC highlighted the fact that the principles were premised on a power to detain pending the making of a deportation order (albeit the decision to deport has been made) or removal that was subject to no limitation on duration. As section 32(2A) of the IO is expressly subject to limitation as to both purpose and duration, the principles do not apply. Even if the Hardial Singh principles apply in the case of section 32(2A), the power to detain is exercisable and lawfully exercised in the case of G. 89.Assuming the Hardial Singh principles apply in the present case, I think the intention of the Director and the Secretary to decide whether to make the removal order should be beyond doubt. As to whether it was apparent that removal would not be effected within reasonable time once G raised his CAT claim; and whether G should and could have been released on recognisance earlier, I think this is arguable on the evidence. 90.Nonetheless, as Saunders J commented in Hashimi (at §11), it will only be that, if his detention is lawful in terms of the decision in the case of A, the issue of whether or not G’s detention is in breach of the Hardial Singh principles will arise. In view of my above conclusion in respect of the legality of the power to detain under section 32(2A) because of Art.5(1) of the HKBOR, the issue of the applicability and, if yes, the application of the Hardial Singh principles does not arise for a conclusion. On liability 91.For the above reasons, I conclude that G fails on liability. On Damages 92.For completeness, I proceed to consider the damages that G would have been entitled to, had he established liability. Causation – recoverability of substantial damages 93.In issue is causation in the context of quantum, not liability. 94.The tort of false imprisonment is actionable per se without proof of damage. However, if the person detained would have been lawfully detained, whether due to the following of the proper procedures that should have been followed or an alternative basis whereby he could have been lawfully detained, the person detained would be entitled to no more than nominal damages. 95.The above principle has been approved in the recent judgments of the UK Supreme Court: in R(WL (Congo)) v Home Secretary [2011] 2 WLR 671 at §§90-91, 93, 95 and 169 per Lord Dyson; §§222 and 237 per Lord Collins; §§252, 253 and 256 per Lord Kerr; also (though dissenting on the issue of liability) at §335 per Lord Phillips and §§342 and 361 per Lord Brown; and in Shepherd Masimba Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 at §§74 and 77 per Lady Hale; and §§88 and 89 per Lord Kerr. 96.The dispute between the parties here lies in: (i) which party bears the burden of proving the causal link between the breach of Art.5(1) of the HKBOR and G’s detention, or the lack of it, for the purpose of determining G’s entitlement to substantial damages; and (ii) whether the causal link existed or not. 97.Mr Chow SC submitted that the burden of proof is on G. He relied on Raju Gurung v Secretary for Security and Anor, HCAL 5/2009 (21 August 2009) at §§61-64, per Saunders J (referring to R (on the application of KB and Ors) v Mental Health Review Tribunal and Anor [2003] 2 All 209 and R (on the application of Greenfield) v Secretary of State for the Home Department [2005] 2 All ER 240). 98.In Raju Gurung, Saunders J found that whether the detention policies were established or not, it could not be argued that Gurung would have been released at any time prior to his actual release. Hence the required causal link between the breach of Art.5(1) of the HKBOR and the detention did not exist on the facts of that case. 99.Two things should be noted. First, Saunders J concluded that the claim for damages failed at all, not even entitlement to nominal damages. This apparently went further than what Mr Chow SC is submitting here. Second, the issue of whether the Director or the applicant should bear the burden of proof was not specifically argued in that case. 100.Mr Chow SC also relied on R(KB) which, as mentioned, was referred to in Raju Gurung. R(KB) was a case where the mental patients applied to the relevant tribunal for the review of their detentions under the Mental Health Act. Delays occurred in the hearings of such applications. The patients issued proceedings for judicial review arising out of those delays. It was held that their Convention rights to speedy hearings had been infringed. 101.The basis of the patients’ claim for damages in R(KB) must be noted. They contended that had their Convention rights been respected (so that there had been no delay), they could have obtained favourable decisions after hearing of their applications for review earlier. It was on that basis that the English Court said (at §64):
102.Back to the present case, the circumstances are different. G’s complaint is about the legality of G’s detention for the lack of certain and accessible grounds and procedure in breach of Art.5(1) of the HKBOR. In principle, G does have to prove the causal link between the breach and his loss of liberty. In practice, this should not be difficult, because the question of whether he would have been lawfully detained arises only if there is evidence of the policy or criterion under section 32 or some other alternative lawful procedure at the material time upon which he could have been detained lawfully. 103.Between G and the Director, it should be the latter who would be in a position to suggest and to provide evidence of the policy or criterion that should have been applied in line with Art.5(1) of the HKBOR or the alternative procedure for G’s lawful detention. Had such policy or criterion or alternative lawful procedure been known, it would have remained the burden of G to show that he would nevertheless not have been detained, or at least not for the period that he was actually detained. With those unknown, it would be hard to expect G to contend that he would not have been detained on any other basis. Nor may the court be expected to conclude whether G would have been lawfully detained in any event. 104.Another example is the situation in WL(Congo) and Kambadzi. In those cases, there was in fact published policy as regards the exercise of the power to detain pending making of the deportation order and removal. The claimants were detained unlawfully because the authority had applied an unpublished policy that was inconsistent with the published policy. The parties and the court in these English cases were therefore able to consider and conclude whether the claimants would have been detained or not, had the known published policy been followed. In the present case, the detention policy or criterion at the material time of G’s detention is unknown. The fact was that the detention policy came into existence in October 2008. 105.The case of A (damages) helps to shed some light on this issue too specifically with regard to detention of a person like G under section 32. Though the judgment does not suggest that the issue of causation was specifically argued, it was not that the issue was not considered at all. Andrew Cheung J referred extensively to the local case of Pham Van Ngo v AG, unrep., HCA 4895/1990 (1993). His Lordship described (at §47) the detention of the Vietnamese refugees in Pham Van Ngo was unlawful for a technical reason. The reason was that there were in fact alternative statutory provisions at that time by which the refugees could have been lawfully detained. 106.His Lordship continued (at §53(4)) by finding that unlike the position in Pham Van Ngo, there was no alternative lawful procedure other than section 32 available to the Director or the Secretary to detain the applicants in the case of A, in the absence of a certain and accessible policy on the exercise of the powers to detain, such policy not coming into existence until October 2008. The breach in the case of A was therefore not a technical breach. In other words, the applicants indeed should not have lost their liberty but for the unlawful detention under section 32 of the IO. Causation was thus proved. 107.His Lordship concluded that the assessment of damages must take into account the applicants’ loss of liberty as such as one of the element to the claim for non-pecuniary (general) damages. Indeed his Lordship awarded substantial general damages to all the applicants in the case of A. 108.Mr Chow SC referred to the background of G and his history including his previous criminal convictions in Hong Kong; and suggested that detention of G would have in any event been reasonable and appropriate. This on the face of the matter may accord with common sense. But in the case of A, Andrew Cheung J considered some of these as factors relevant to the award of ordinary damages and whether aggravated or exemplary damages should be awarded as well, rather than the destruction of the causal link and hence the recoverability of substantial damages. 109.As there is nothing to show that G would have in any event been lawfully detained during the period of his actual detention, I am satisfied that he has discharged his burden to prove the causal link between the breach of Art.5(1) of the HKBOR and his detention. In my judgment, but for his failure to establish liability, G would have been entitled to more than nominal damages. Ordinary damages 110.Ordinary damages are compensatory. They consist of: (i) general damages comprising a first element of compensation for loss of liberty, and a second element of damage to reputation, injury to feelings and the like, which element was to a substantial extent subjective; and (ii) special damages for pecuniary loss incurred: see the case of A (damages) at §§53(3)-(7). 111.In the present case, only non-pecuniary general damages are claimed in the sum of HK$200,000. 112.Mr Dykes SC referred to Thompson v Commissioner of Police of the Metropolis [1998] QB 498, Rookes v Barnard [1964] AC 1129 and R(KB) (above) for “guidance to approach” to the general level of damages in detention cases. The first 2 cases were also referred to in the case of A (damages). Andrew Cheung J considered that as comparables, it should be the local cases that should be referred to; and care should be taken in referring to the level of awards in the English cases in view of the differences in social and economic conditions: see §§53(14)-(15). 113.Mr Dykes SC also referred to the Hong Kong cases of Faridha Sulistyoningsih v Ma Oi Ling, Karen, unrep., DCPI 1575/2005 (4 April 2007) and Godagan Deniyalage Prema C v Cheung Kwan Fong & Anor, unrep., DCCJ 2488/2003 (20 December 2004). Again both were referred to in the case of A (damages). But Andrew Cheung J considered the former to be one of peculiar facts while the latter to be one that should be read with care. 114.As Andrew Cheung J said in the case of A (damages) (at§53(15)):
115.Mr Chow SC submitted that the awards made by his Lordship in the case of A (damages) are the most significant for and relevant to our present purpose. They were the most recent, given after a careful review of relevant local awards in the past, in the context of unlawful detention due to the absence of a certain and accessible detention policy, as well as cases involving conditions of detention largely similar to those in the present case. I agree. 116.Mr Chow SC suggested that of all the applicants, the award to applicant “A” in the case of A is relatively the most relevant in terms of the period of detention, i.e., 3 months. I agree. Prior to and after his detention, G had requested to be repatriated. Evidence shows that he had not objected to the detention while the Director was seen taking steps to push for his removal as soon as practicable. Upon securing a new travel document and air ticket, removal order was recommended and eventually made. G changed his mind and made the CAT claim only then. He was released on recognisance a month later. 117.Prior to the commencement of his administrative detention, G had been lawfully convicted and sentenced to a total of 7 months of imprisonment. He was released after serving about 4.5 months. This serves to somehow diminish the second element of the claim for general damages, namely, damage to reputation, humiliation, shock, injury to feelings as a result of the unlawful detention: see the case of A (damages) at §53(6). 118.Circumstances peculiar to applicant “A” in the case of A (damages) included the effect of the unlawful detention in impeding the intended marriage, the staging of hunger strike and the depressive condition during detention. These peculiar circumstances were absent in the case of G. 119.The condition of detention is relevant. According to his pleading, G was not allowed to make free telephone calls as he wishes at any time and at any place but subject to prior arrangement with welfare officer. International call was difficult to arrange. It transpires from the evidence that G made 9 free local telephone calls and 1 international call to Pakistan during his detention. There is no record of his request having been turned down. In court, G admitted that he had made no complaint in this regard. 120.It is pleaded that G was provided with no outdoor activities or exercises. He was not able to enjoy sunlight during the detention period. In court, G admitted that he was allowed to play ball games for an hour each day in the basketball court. His complaint became that he did not get to do so because the facilities were being used by the other detainees. He admitted that there was daylight from the sky that could be seen 3 to 4 storeys above his head. 121.Though G suggested occasions of skin condition caused by spicy food served in the Centre, there is no evidence of significant or prolonged suffering that required treatment. The documents show that during his attendance at the hospital of the Centre in late September 2005, medication and ointment were prescribed. While spice free diet was nevertheless recommended upon his request on that occasion, there was in fact no medical indication that his skin condition was in fact caused by spicy food provided by the Centre. 122.Applicant “A” in the case of A was awarded HK$80,000 ordinary damages. Considering the circumstances of G, including those discussed above, I agree with Mr Chow SC that an appropriate award in the present case should be lower. I would have awarded HK$30,000 ordinary damages to G, had he succeeded on liability. Aggravated damages 123.G claims aggravated damages in the sum of HK$100,000. 124.Aggravated damages, equally compensatory, could only be awarded where there are aggravating features about the case which would result in the victim not receiving sufficient compensation for the injury suffered if restricted to the ordinary award. Factors such as the manner of the imprisonment and the defendant’s conduct should be taken into account: see the case of A (damages) at §§53(8)-(9). 125.None of the applicants in the case of A made out the case for the award of aggravated damages. Considering the circumstances of G, including those discussed above, I come to the same conclusion as regards G’s claim for aggravated damages. Exemplary damages 126.G claims exemplary damages in the sum of HK$100,000. 127.While aggravated damages contain a penal element to the defendant, exemplary damages are definitely punitive. They could be awarded where there was oppressive, arbitrary or unconstitutional conduct by Government servants: Rookes v Barnard (above). Yet the fact that the detention was unconstitutional per se does not suffice. Outrageous conduct disclosing malice, fraud, cruelty and the like would normally be expected for an award of such damages: see the case of A (damages) at §§53(10)-(12). 128.Mr Dykes SC submitted that the detention of G was arbitrary because of the lack of a policy as regards the exercise of the power or review. This, he continued to say, was worse than negligence leading to an oversight in a particular case. 129.Andrew Cheung J in the case of A (damages) said (at§67) that:
130.On the evidence, Andrew Cheung J found materials and evidence which tend to justify the Director’s or the Secretary’s decisions, at the level of individual merits, to detain the applicants in that case. 131.The circumstances of G as referred to by Mr Chow SC were discussed above. It suffices for me to say that at the level of individual merits, the decision to detain G was not such that it could be categorised as capricious or malicious. I find no such elements in the case of G that warrants an award of exemplary damages. Constitutional damages 132.It is said that G has a cause of action to claim damages for breach of his constitutional rights against arbitrary detention as guaranteed under the Basic Law, the ICCPR and the HKBOR independent from his common law right to claim damages for the tort of false imprisonment. This is his claim for constitutional damages or, as labelled in the authorities, vindicatory damages. He claims HK$400,000 on top of the damages for false imprisonment. 133.By now, claim for vindicatory damages for breach or violation of constitutional rights distinct from common law damages is novel in the local jurisdiction. Mr Dykes SC sought support from Canadian and New Zealand authorities for the proposition that the remedy by damages for breach of a constitutional right exists independently of the tort of false imprisonment. 134.The Canadian case of Vancouver (City) v Ward [2010] 2 SCR 28 concerned an arrest and strip search in breach of the Canadian Charter of Rights and Freedom. Section 24(1) of the Charter provides that:
135.The Supreme Court held that the section was broad enough to include the remedy of constitutional damages for breach of a claimant’s Charter rights if such remedy was found to be appropriate and just in the circumstances of a particular case. In his submissions, Mr Dykes SC summarised the test laid down by the Supreme Court in Ward as follows:
136.It is important to note the circumstances in which damages under Art.24(1) of the Charter were awarded in Ward as summarised in §68:
137.The Canadian Supreme Court also discussed the approach to determining the quantum (at §§ 53-54). In §55, the court said:
Hence, the court suggested (at § 59):
138.Mr Dykes SC also relied on various New Zealand authorities including Simpson v AG [1994] 3 NZLR 667; Maharaj v AG of Trinidad and Tobago (No.2) [1979] AC 385 (PC); and Taunoa v AG [2008] 1 NZLR 429). 139.In Taunoa, the New Zealand Supreme Court said:
140.Mr Chow SC asked that the New Zealand approach should not be followed. He said this was the view of Andrew Cheung J in the case of A (damages) (at § 53(12)). He was referring to the comment by his Lordship that reference to New Zealand authorities was instructive but limited in value in this jurisdiction. 141.As I understand, Andrew Cheung J made his comment after noting that the House of Lords decision in Rookes v Barnard (above) was followed in the Hong Kong but not in New Zealand where the law on exemplary damages was notably much more liberal. The context was therefore the approach towards awarding exemplary damages, not whether in principle a distinct award of constitutional damages may be awarded in appropriate circumstances. 142.The Canadian case of Ward and the New Zealand case of Taunoa were considered by the UK Supreme Court in the recent case of WL(Congo) (above). In that case, Lord Dyson JSC referred to, among other cases, the Privy Council decision in AG of Trinidad and Tobago v Ramanoop (2006) where the concept of vindicatory damages was explained. The Privy Council (Lord Nicolls) in Ramanoop advised that the expression ‘punitive damages’ or ‘exemplary damages’ should be avoided as descriptions of this type of additional award of vindicatory damages. (see §§ 97-98). 143.Acknowledging that advice, Lord Dyson had the following to say for the purpose of what he had to decide in WL(Congo), namely, whether the principle of vindicatory damages for violation of constitutional rights should be extended further to the consideration of conventional damages for the tort of false imprisonment:
144.In his speech (§§ 222-237), Lord Collins referred to the cases of Taunoa and Ward (at §§ 230-231). Then his Lordship had this to say:
145.Lord Kerr Made similar observation about the concept of vindicatory damages (at §§ 254-256), including:
146.Though dissenting, Lord Phillips endorsed what Lord Dyson and Lord Collins said in respect of the concept of vindicatory damages (see §335). 147.Reading the authorities, including those cited above, one can observe the scepticism the UK Supreme Court has about the notion of vindicatory damages for breach of constitutional rights. Even if a distinct award of vindicatory damages is in principle available, such being made for breach of constitutional rights in appropriate cases would be limited in the UK context. 148.In any event, the UK Supreme Court definitely decided against the introduction (or extension) of the concept of such vindicatory damages into the consideration of conventional damages, punitive and exemplary damages included, for the tort of false imprisonment. 149.I discussed above the entitlement of G, as a non-Hong Kong resident and thus pursuant to Art.41 of the Basic Law, to enjoy the rights and freedoms of Hong Kong residents; and such rights would be those as prescribed in that Chapter of the Basic Law and in accordance with law, including immigration legislation which is excepted from the HKBORO due to section 11. I now consider G’s claim for constitutional damages on the basis of these provisions of the Basic Law, assuming that I was wrong above. 150.G relies on Arts.28 and 35 of the Basic Law. Art.28 was discussed above. I repeat Art.35 which reads:
151.Mr Chow SC pointed out that unlike section 24(1) of the Canadian Charter of Rights and Freedom, the Basic Law, Art.35 included, contains no provision that on its face suggest the right of persons to specifically claim damages for breach of the rights under the local constitution. As a matter of construction, I agree. 152.G also relies on section 6 of the HKBORO which reads:
153.Section 6 of the HKBORO is a court jurisdiction conferring provision, though the extent of remedy or relief that can be granted and order that can be made under such jurisdiction may well be as wide as that provided in the right of action conferring provision – section 24(1) of the Canadian constitution. 154.What actually provides for a person’s right in case of breach or violation of his rights in the present context to seek compensation is Art.5(5) of the HKBOR (under the HKBORO). As mentioned, it provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 155.In Kambadzi (above), Lord Hope said (at §§58-59):
156.Mr Chow SC submitted that insofar as the right not to be subjected to arbitrary or unlawful detention is concerned, the claim for constitutional damages in the present case in fact adds nothing to G’s claim for damages for false imprisonment. As far as the quantum is concerned, there is the further principle against double recovery, even if the separate head of damages is allowed. This is in line with the observation the Canadian Supreme Court (Ward (above) at §§34-37); and the New Zealand Court (in Simpson (above) at p.678; Taunoa (above) at §368). I agree with him. 157.G can seek comparable remedy. That G chose not to seek declaratory relief in the present case is his choice. Borrowing the terminology of Lord Kerr in WL(Congo) (at §252), I see no “devaluation of the tort of false imprisonment” by the conventional award of damages (or, if claimed, a declaration as regards his unlawful detention). In my judgment, the case for a separate award of constitutional damages (on top of conventional damages), even if available in principle, is not made out in the circumstances of the present case. Conclusion 158.In summary, I have the following conclusion:
Order 159.Failing on liability, G’s claim is dismissed. I make a nisi order that G shall pay the Director’s costs of this action, including any costs reserved, to be taxed if not agreed. For the avoidance of doubt, I certify the engagement of two counsel. G’s own costs shall be taxed in accordance with Legal Aid Regulations. In the absence of application to vary within 14 days, the nisi costs order shall become absolute. 160.I again thank counsel for their assistance.
Mr Philip DYKES and Mr Hectar PUN instructed by Messrs Yip & Liu for the Plaintiff upon the assignment by the Director of Legal Aid Mr Anderson CHOW and Miss Grace CHOW instructed by the Department of Justice for the Defendant (*) The case of C & Ors went on appeal; and the judgment of the Court of Appeal was handed down on 21 July 2011. Among other things, the Court of Appeal agreed with Hartmann J in that the concept of non-refoulement of refugees has developed into the customary international law (§§45-67); but the same has not attained the status of a peremptory norm (§§73-78). The Court of Appeal also agreed with Hartmann J that whatever the position on the international stage, the applicants (appellants) would not be able to assert rights under a customary international law as it is clearly overridden by domestic legislation to the contrary, namely, the IO (§§79-96). Please refer to CACV267/2011 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 531/2010