Akhter Rana Shahid v. Immigration Department and Others

HCMP 3094/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3094 OF 2013

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1.By notices of appeal all dated 15 April 2014, the plaintiff appeals against three orders made by Master K Lo on 2 April 2014 whereby the master:

(a) adjourned the hearing of the plaintiff’s summons dated 17 March 2014 for interim payment to a date to be fixed for argument after the disposal of the 3^rd defendant’s application to strike out the originating summons;

(b) adjourned the 1^st to 4^th defendants’ summons dated 26 March 2014 for extension of time to file affidavit evidence in opposition to the originating summons to a date to be fixed and to be dealt with after the striking out application to be taken out by the 1^st to 4^th defendants has been disposed of; and

(c) adjourned the 5^th defendant’s summons dated 26 March 2014 for extension of time to file affidavit evidence in opposition to the originating summons to a date to be fixed and to be dealt with after the 5^th defendant’s summons dated 1 April 2014 to strike out the originating summons has been disposed of.

2.The relevant procedural history of these proceedings can be shortly stated.  The plaintiff was an asylum seeker and torture claimant.  He issued the originating summons on 13 November 2013, asserting a variety of claims against the defendants (the 1^st to 4^th defendants are government departments, while the 5^th defendant was appointed by the Social Welfare Department to providing assistance to asylum seekers and torture claimants).

3.On 12 December 2013, the plaintiff filed his affirmation in support of the originating summons.

4.On 22 January 2014, the defendants were given an extension of time of 35 days to file and serve affidavit in opposition.

5.On 26 February 2014, the defendants were given a further 28 days to file and serve affidavit in opposition.

6.On 17 March 2014, the plaintiff applied by summons against the 3^rd defendant for interim payment in the monthly sum of $12,000; as well as unspecified amounts for “home deposit” (which I understand meant a sum for paying rental deposit) and daily expenses.

7.On 26 March 2014, the defendants applied for a further extension of time of 28 days to file affidavit evidence in opposition to the originating summons. 

8.On 1 April 2014, the day before the hearing of the defendants’ (third) time extension summonses, the 5^th defendant issued a summons to strike out the originating summons.

9.The plaintiff’s application for interim payment and both time extension summonses came before the master on 2 April 2014.  In view of the 5^th defendant’s strike out application, and the other defendants indicating that they would also apply to strike out the originating summons, the master made the orders set out in paragraph 1 of this judgment.

10.The 3^rd and 4^th defendants then issued their summons to strike out the originating summons on 28 April 2014, while the 1^st and 2^nd defendants issued a similar summons on 14 May 2014.  On 30 April 2014, Master Chow ordered that the strike out summonses issued by 5^th defendant and by the 3^rd and 4^th defendants be heard together. I would imagine that the 1^st and 2^nd defendants’ strike out summons would be heard on the same occasion as well.

11.The plaintiff appeared in person on these appeals.  He canvassed at some length the grounds he relied upon in support of his claims against the defendants. It is unnecessary to go into the details here.  Suffice to say that he felt strong grievances against each of the defendants.

12.As I understood him, the plaintiff’s main point was that he wanted his claims against each of the defendants to be heard as quickly as possible, and that the defendants were trying to delay the determination of his case.  The plaintiff also emphasised his medical conditions (he claimed to be suffering from, amongst other medical problems, diabetes and heart conditions), his poor and difficult living conditions, and that he badly needed the interim payment.

13.The defendants submitted that the orders of the master were made in exercise of normal case management powers and there was no reason to disturb those orders.  Moreover, it was said that the orders were made in accordance with the underlying objectives of Order 1A, in that the orders were costs effective and tended to achieve the purpose of efficient disposal of the matter.

14.It seems to me that the master was entitled to make the orders in the exercise of the case management powers of the court.  Nevertheless, since the appeals from the master’s orders are by way of rehearing, I am not bound by the master’s exercise of discretion.

15.I could see the plaintiff’s frustration arising from the repeated extensions of time given to the defendants.  However, having considered all the materials placed before me, I think in the circumstances of this case it is sensible to dispose of the strike out applications first.  If the applications are successful, there would be no need to consider the interim payment application, or for the defendants to incur further costs in preparing substantive evidence in opposition, which are likely to be irrecoverable.  If, on the other hand, the strike out applications are unsuccessful, the outstanding matters could be resolved relatively quickly.

16.I would only differ from the master in a minor aspect.  Instead of adjourning the plaintiff’s application for interim payment and the defendants’ extension of time applications to a date to be fixed after the disposal of the strike out applications, I think it would be more appropriate to adjourn all three applications to be heard together with the strike out applications.  In that way, the same master could decide how best to resolve all outstanding matters in light of his/her decision on the strike out applications.  The orders dated 2 April 2014 would be varied and the appeals allowed to that extent.

17.As to costs of the appeals, my tentative view is that it would be fair to make no order.  I therefore make an order nisi that there be no order as to costs of the appeals, such order to become absolute unless an application is made to vary it within 14 days.

Plaintiff in person, present

Mr Eric Ko, SGC of Department of Justice, for the 1^st to 4^th defendants

Mr Henry Cheung of Fairbairn Catley Low & Kong, for the 5^th defendant