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

____________

____________

_________________

D E C I S I O N

_________________

Appeal

1.I have before me a notice of appeal dated 24 November 2014 lodged by the plaintiff against two orders made by Master S Lo on 10 November 2014 striking out the plaintiff’s originating summons against (i) the 1^st to 4^th defendants and (ii) the 5^th defendant respectively, and dismissing the plaintiff’s action against them.

Background

2.The plaintiff, of Pakistani origin, is an asylum seeker and torture claimant.

3.Apparently, the plaintiff came to Hong Kong in January 2006, and was arrested by the Police on 27 September 2006 for failing to carry any identity document and for illegally remaining in Hong Kong.  He was detained by the Immigration Department between 29 September 2006 and 5 January 2007 (“the Relevant Period”).  His application for recognition as a refugee was rejected by the United Nations High Commissioner for Refugees on 24 December 2007, and his torture claim was rejected by the Government on 29 August 2012.  After the rejection of his torture claim, he was further detained by the Immigration Department between 14 September 2012 and 17 October 2012.  According to Mr Ko (for the 1^st to 4^th defendants), the plaintiff has since been released on recognizance pending his repatriation to his home country.

4.On 13 November 2013, the plaintiff commenced the present action by way of originating summons against the five defendants herein, namely:

(i) Immigration Department;

(ii) Police Department;

(iii) Social Welfare Department;

(iv) Legal Aid Department; and

(v) International Social Service (Hong Kong Branch) (“ISS”),

raising a variety of complaints against them. At the hearing of this appeal, the plaintiff confirmed that his complaints were set out, in a summary form, in a document marked “Attachment” attached to the originating summons which listed a total of seven heads of complaint.  In the course of the hearing, I also ascertained from the plaintiff the particular incidents that his complaints related to and the grounds of his complaints.  I shall return to these seven heads of complaint below.

5.On 1 April 2014, the 5^th defendant took out a summons to strike out the originating summons on the ground that it discloses no reasonable cause of action, is frivolous or vexatious and/or it is an abuse of the process of the court.  This was followed by two other summonses issued by the 3^rd and 4^th defendants and the 5^th defendant on 28 April 2014 and 14 May 2014 respectively seeking to strike out the originating summons on the same grounds.

6.On 10 November 2014, Master S Lo acceded to the defendants’ applications and made the orders mentioned at the beginning of this decision.

Applicable principles

7.The applicable principles for striking out a claim summarily are well established.  In particular, a proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed, and it is vexatious when it is oppressive and/or lacks bona fides.  Also, the process of the court must be used bona fide and properly and must not be abused.  The court will prevent the improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation: see Hong Kong Civil Procedure 2005, paragraphs 18/19/8 and 18/19/10.  I shall consider the seven heads of complaint raised by the plaintiff having regard to these principles.

Discussion

8.In respect of the first head of complaint, the plaintiff alleges that his home in Shamshuipo was burgled in June or July 2012, and some money was stolen and his properties damaged or destroyed by the burglar.  This complaint, as clarified by the plaintiff at the hearing, is directed against both the Police and ISS, in that the burglary was, allegedly, committed by someone hired by ISS.  Also, it is said that the Police failed to stop the burglary but acted in collusion with ISS.

9.At the hearing, the plaintiff also said that there had been some disputes between him and his landlord (a person by the name of Chung Kee Chun) over rental payments and the burglar was his landlord.  There is no basis on the evidence before me to suggest that the burglary was committed by any employee or agent of the ISS, or that ISS should be held responsible for this alleged burglary.

10.In so far as the complaint against the Police is concerned, the plaintiff said that:

(i) he discovered the burglary when he returned to his home and noticed that the burglar was still in his home;

(ii) he immediately called the Police; and

(iii) the Police arrested the burglar inside his home.

It is not clear whether the burglar was subsequently prosecuted by the Police.  On the basis of these allegations, I am unable to see any valid ground for the complaint that the Police failed to stop the burglary or acted in collusion with ISS as alleged by the plaintiff.

11.In respect of the second head of complaint, the plaintiff alleges that the Social Welfare Department failed to provide to him basic assistance according to international law.  It is clear, however, from the affidavit of Fung Lap Shun filed on 1 April 2014 and the affirmation of Fung Hing Sum Fanny filed on 28 April 2014 and that the plaintiff was given in kind assistance, including accommodation, food and other allowances, in accordance with the prevailing Government policy regarding the provision of humanitarian assistance to asylum seekers and torture claimants in Hong Kong.  In any event, the allegation that the Social Welfare Department failed to provide to him basic assistance according to international law does not, in my view, disclose any known civil cause of action against the Social Welfare Department.

12.The plaintiff’s third complaint is that the Legal Aid Department failed to provide legal aid to him in relation to the complaints that he wishes to raise in this action, despite several applications.  There is, however, a well established procedure under section 26 of the Legal Aid Ordinance, Cap 91, for anyone who is dissatisfied with a decision of the Director of Legal Aid for non‑provision of legal aid to appeal against such decision.  I am unable to see how a decision of the Director of Legal Aid refusing to provide legal aid can give rise to a viable cause of action against the Legal Aid Department in the present circumstances.

13.The plaintiff’s fourth complaint is that he was illegally detained by the Immigration Department and was tortured during his detention.

14.In so far as the complaint of illegal detention is concerned, it relates to the plaintiff’s detention during the Relevant Period.  According to the plaintiff, he made a claim against the Director of Immigration with the assistance of Barnes & Daly (assigned by the Director of Legal Aid to act for him) and received compensation in the amount of HK$80,000 by way of settlement.  The plaintiff has failed to show what further claim he can validly raise against the Immigration Department or, for that matter, the Legal Aid Department, in respect of the alleged illegal detention during the Relevant Period.

15.As for the alleged “torture” during his detention, the plaintiff complains that:

(i)     on one occasion he was given an “injection” against his will and this injection has caused him “headache” ever since; and

(ii)     he was tortured “mentally” because he lost his freedom during the period of detention. 

In so far as the “injection” is concerned, there is simply no basis to contend that it was not properly given by the doctor who treated the plaintiff while he was in detention, or that giving him an injection could amount to “torture”.  In any event, even if the plaintiff was given an injection against his will and such conduct can give rise to a cause of action in trespass against the person, it is apparent that the conduct complained of took place between 29 September 2006 and 5 January 2007, and the limitation period for this cause of action (namely, six years from the date on which the cause of action accrued under s4(1) of the Limitation Ordinance) has already expired. The plaintiff’s allegation the he was “mentally” tortured during the period of his detention is plainly not capable of reasoned argument and cannot possibly succeed.  In all, I consider that the plaintiff’s allegation of “torture” clearly falls within the category of being “frivolous” and/or “vexatious”.

16.The plaintiff’s fifth complaint is that the Police failed to provide assistance to him.  The plaintiff has raised two grounds under this head of complaint.

17.First, the plaintiff says that the Police failed to properly carry out their duties in relation to the “burglary” case mentioned above.  This ground has already been dealt with under the first head of complaint.

18.Second, the plaintiff says that he was assaulted by a staff of the ISS in front of police officers but no action was taken by the police officers.  This incident apparently took place in the office of ISS at Prince Edward Road in the evening on 7 May 2010.  The plaintiff’s allegation of assault is denied by ISS, whose version is that despite repeated warnings given by the staff of ISS, the plaintiff refused to leave the office of ISS.  Police officers then attended the scene upon the request of the plaintiff.  The staff of ISS, in the presence of the police officers, physically removed the plaintiff from ISS’s office using such minimum force as was necessary in the circumstances.  For the purpose of the present interlocutory appeal, it is not the court’s function to resolve disputes of fact.  However, even if the plaintiff has some viable claim against ISS for battery or trespass to the person, I am unable to see what valid cause of action the plaintiff has against the Police in the circumstances.

19.The plaintiff’s sixth complaint, directed against the Police and ISS, relates to his prosecution for the offence of “criminal intimidation” in the magistrate’s court and his acquittal after trial.  Apparently an employee of ISS (by the name of Tariq) met the plaintiff near the office of ISS at Prince Edward Road on 22 June 2010 and a dispute broke out between the plaintiff and Tariq on that occasion.  Tariq alleged that, in the course of the dispute, the plaintiff made some threatening statements against the staff of ISS and also against Tariq’s family members in Pakistan.  This allegation was denied by the plaintiff.  Subsequently, the plaintiff was charged with the offence of criminal intimidation in KTCC 2697/2011 but was acquitted after trial on 29 July 2011 because the magistrate was not satisfied that the plaintiff had made the alleged threatening statements.  Be that as it may, the mere fact that the plaintiff was acquitted of a criminal charge after trial is not sufficient to raise any claim of malicious prosecution or other reasonable cause of action against the Police or ISS.

20.The plaintiff’s seventh, and last, complaint is that he made two claims against the Director of Immigration and succeeded in both claims but has so far received only one payment from the Legal Aid Department.  According to the plaintiff, he applied for legal aid to claim damages against the Director of Immigration for:

(i) illegal detention during the Relevant Period; and

(ii) injury to his health during the period of detention. 

As earlier mentioned, the plaintiff has already received the sum of HK$80,000 by way of compensation in respect of the claim for illegal detention during the Relevant Period.  In so far as the claim for injury to his health during the period of detention is concerned, the plaintiff said at the hearing that he had been advised by his formerly assigned solicitors, Barnes & Daly, that he should claim damages for illegal detention first before making any claim for injury to his health.  It further appears from what the plaintiff told me in court that no claim has yet been made or action brought to recover damages for injury to his health.  In these circumstances, it is incorrect for the plaintiff to say that he succeeded in both claims against the Director of Immigration, and I am unable to see how the plaintiff has any valid complaint against the Legal Aid Department or any of the other defendants that he has received only one payment by way of compensation.

Other matters

21.In addition to the matters mentioned above, it is clear that the originating summons herein is fundamentally defective, in that it fails to “include a statement of the questions on which the plaintiff seeks the determination or direction of the Court of First Instance or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy”, this being a mandatory requirement of an originating summons under Order 7, rule 3(1) of the Rules of High Court.

22.I should add that if (contrary to the views that I have expressed above) the plaintiff’s complaints have some substance, the proper form of the originating process should be a writ of summons instead of an originating summons.

23.I appreciate that the plaintiff is acting in person.  The court may give a litigant in person a certain degree of latitude regarding the form and contents of the originating process and, within reasonable bounds, may be more ready to permit a defective writ of summons or originating summons to be cured by appropriate amendments.  This having been said, it is not the court’s function to formulate amendments of the originating summons on the plaintiff’s behalf.  Further, the originating summons here is so fundamentally defective and the materials which the plaintiff have put before the court are so prolix and confusing that it would not be just, in my view, to the defendants to permit these proceedings to continue as if the cause or matter had been begun by writ and direct fresh pleadings to be filed and served.  Neither does it seem to me that any costs would be saved by taking this course of action even if I should have come to the view that the plaintiff has shown some viable causes of action in respect of the seven heads of complaint mentioned above.

24.In all, I consider that Master S Lo was correct to strike out the plaintiff’s originating summons against all five defendants.  I therefore dismiss the plaintiff’s notice of appeal dated 24 November 2014 with costs to the defendants.

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