Ghulam Rbani v. Secretary for Justice for and on behalf of the Director of Immigration

HCMP 308/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 308 OF 2012

(ON AN INTENDED CROSS-APPEAL FROM DCCJ NO. 531 OF 2010)

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BETWEEN

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Before: Hon Tang VP and Fok JA

Date of Judgment: 28 March 2012

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.The Plaintiff claimed damages for detention on the basis that his detention was unlawful because there was at the material time no certain and accessible policy on how the discretion to detain under section 32 of the Immigration Ordinance (Cap 115) would be exercised. His claim was dismissed. CACV 267/2011 is the Plaintiff's appeal from such dismissal.

2.The Defendant, who has succeeded at trial, now applies for an extension of time to file and serve the 2^nd Supplemental Respondent's Notice annexed to its summons dated 20 February 2012.  In essence the Defendant wishes to be able to contend that in the event of the Plaintiff's appeal succeeding, the Plaintiff ought to be awarded nominal damages only as opposed to the HK$30,000 which the trial judge would have awarded.

3.I have had the benefit of written submissions from both parties.

4.Mr Philip Dykes SC, with him Mr Hectar Pun (for the Plaintiff), has submitted that the Defendant is seeking to cross appeal and that such cross appeal has no real prospect of success.  An argument turns on the correct understanding of R (WL (Congo)) v Home Secretary (SC(E)) [2011] 2 WLR 671 and R (SK (Zimbabwe)) v Home Secretary (SC(E)) [2011] 1 WLR 1299. 

5.This is not the occasion to consider the relative merits of Mr Dykes' and Mr Anderson Chow SC's (for the Defendant) submissions, it suffices for me to say that in my view the cross appeal has a real prospect of success.

6.Mr Chow has also suggested another reason why the application should be granted, namely, that the issue raised may be relevant to other pending claims.  Thus, the sooner there is an authoritative decision in Hong Kong on the point the better. 

7.I would take that into consideration when deciding whether or not to grant the application.

8.In all the circumstances I am of the view that I should grant leave to file and serve the 2^nd Supplemental Respondent's Notice and do so.

9.I also make an order nisi that the Defendant pays the costs of the application, such costs to be taxed, if not agreed.

Mr Anderson Chow, SC and Ms Grace Chow, instructed by Department of Justice, for the Defendant

Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Messrs Yip & Liu, for the Plaintiff