Case Detail

HCAL100/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2006

____________

BETWEEN

	‘A’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

____________

AND

HCAL 10/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2007

____________

BETWEEN

	‘AS’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

____________

AND

HCAL 11/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 11 OF 2007

____________

BETWEEN

	‘F’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

____________

AND

HCAL 28/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2007

____________

BETWEEN

	‘YA’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

____________

(HEARD TOGETHER)

Before : Hon A Cheung J in Court

Dates of Written Submissions : 10 June, 30 June and 6 July 2009

Date of Judgment : 27 July 2009

_______________________________

J U D G M E N T (O N C O S T S)

_______________________________

1. On 3 March 2009, this Court gave judgment on the assessment of damages payable to the four applicants for their unlawful detentions. The Court awarded, in favour of each of the applicants, general damages but not aggravated or exemplary damages. The Court made an order nisi giving the costs of the assessment to the applicants.

2. The respondent now seeks to vary the costs order nisi. The respondent relies on the third principle enunciated by Nourse LJ in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, 1214B, namely,

“The general rule [that costs should follow the event] does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs.”

3. The respondent submits that the courts have been taking a more robust approach than before in departing from the general rule in appropriate cases. Various cases, both in private and public law, have been referred to the Court.

4. Essentially, the respondent argues that as the applicants have claimed but totally failed to get any aggravated and exemplary damages at the assessment, the applicants should be deprived of part of their costs. He argues that the claims caused a substantial increase in costs and the length of hearing. The respondent submits 50% of the applicants’ costs should be disallowed. It should be noted that it is not the respondent’s case that the applicants should bear any part of the respondent’s own costs.

5. The respondent argues that aggravated and exemplary damages are separate and distinct matters from general damages. The applicants’ claims for these heads of damages were without any basis, “unmeritorious” and “misguided”.

6. I have considered the very detailed written submissions placed by the parties before the Court. They go to many matters and arguments. For the purposes of deciding the application to vary the costs order nisi, I do not think I need to deal with them in any great detail.

7. It must be remembered that the third principle enunciated by Nourse LJ is not a rule of law. His Lordship recognized this when he said that the successful party “may be” deprived of the whole or a part of his costs if the case falls within the third principle. The Court retains a discretion here.

8. Although the Court has ultimately rejected the applicants’ respective cases on aggravated and exemplary damages, I do not find that those claims were unreasonably or unnecessarily made. Respectable and reasonably arguable contentions were mounted on behalf of each of the applicants, and plainly the claims for aggravated and exemplary damages were bona fide ones.

9. Moreover, although strictly speaking, aggravated and exemplary damages are distinct heads of damages that must be separately pleaded and proved, in cases of the present nature, very often questions of general, aggravated and exemplary damages cannot be realistically separated from each other. The applicable principles are intertwined. Indeed, one pertinent consideration for deciding whether to award aggravated or exemplary damages is whether the amount of general damages (or, as the case may be, the total amount of general and aggravated damages) to be awarded is sufficient by itself to reflect the gravity of the case. As a matter of fact, at the actual assessment, all three heads of damages were argued in conjunction with each other and the relevant facts were considered as a whole.

10. Having borne all arguments in mind and having taken into account all relevant considerations, I have come to the conclusion that the order nisi is indeed the right costs order to make. The application to vary the order nisi is refused, and the order is made absolute (with a certificate for two counsel). The costs of the application to vary form part of the costs of the assessment, and must be borne by the respondent, also with a certificate for two counsel. I also order that there be legal aid taxation of the applicants’ own costs.

11. I thank counsel for their assistance.

(Andrew Cheung)
Judge of the Court of First Instance
High Court

Mr Philip Dykes SC and Mr Hectar Pun, instructed by Barnes & Daly, for the applicants in all four cases

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

HCAL 100/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2006

----------------------

BETWEEN

	‘A’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

AND

HCAL 10/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2007

----------------------

BETWEEN

	‘AS’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

----------------------

AND

HCAL 11/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 11 OF 2007

----------------------

BETWEEN

	‘F’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

----------------------

AND

HCAL 28/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2007

----------------------

BETWEEN

	‘YA’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

----------------------

(HEARD TOGETHER)

Before : Hon A Cheung J in Court

Date of Hearing : 5 February 2009

Date of Judgment : 3 March 2009

------------------------

J U D G M E N T

----------------------

Introduction

1. By a judgment handed down on 18 July 2008 ([2008] 4 HKLRD 752), the Court of Appeal allowed the claims of the four applicants in these four sets of proceedings and declared that their detentions during the following periods under the authority of the Director of Immigration or the Secretary for Security were unlawful for violation of art 5(1) of the Hong Kong Bill of Rights. ‘A’ was detained from 14 June 2006 to 14 September 2006, ie a period of three months. ‘AS’ was detained from 14 June 2005 to 29 March 2007, ie a period of 655 days. ‘F’ was detained from 5 July 2005 to 29 March 2007, a period of 634 days. ‘YA’ was detained from 25 October 2006 to 29 March 2007, that is to say, for a period of 156 days.

2. The Court is now tasked with the assessment of damages for their unlawful detentions. Each of them claims basic or ordinary damages, aggravated damages and exemplary damages.

3. All applicants were torture claimants under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). They were all detained by the authorities pending verification of their CAT claims pursuant to s 32 of the Immigration Ordinance (Cap 115). The Court of Appeal held that the powers to detain under s 32 pending such verification were lawful under domestic law. However, they infringed art 5(1) of the Hong Kong Bill of Rights which requires that detention must not be arbitrary and the grounds and procedure for detention must also be certain and accessible. The Court of Appeal held that in the absence of a published policy as to the circumstances under which the powers to detain pending such verification would be exercised, the powers of detention under s 32 were to that extent contrary to art 5(1) of the Bill of Rights.

4. The detentions in the instant cases were, in those circumstances, declared by the Court of Appeal to be unlawful. The period of unlawful detention, in each case, commenced from the date when the relevant CAT claim was made and ended on the day when the applicant was granted bail or released on his own recognizance. Periods of detention prior to the making of the CAT claims are not in issue.

5. It is useful here to summarise the undisputed facts of each case.

Case of ‘A’

6. ‘A’ is an Algerian. He was born in Algeria on 7 February 1972 and is now 37 years old. He claims that he will be tortured if returned to Algeria on account of dealings with an Islamic fundamentalist group. He came to Hong Kong as a visitor on 6 November 2003 and was given permission to remain until 20 November 2003. On 18 November 2003, before his permission to remain expired, he made an application to the United Nations High Commissioner for Refugees (UNHCR) for recognition of his refugee status under the High Commissioner’s mandate. On the following day, he told the Director of Immigration about his application and asked for his stay to be extended, which was refused. He thus became an overstayer and went underground for a lengthy period of time, after the expiration of his permission to stay. In the meantime, he pursued his claim for refugee status with the UNHCR.

7. In February 2006, ‘A’ began to cohabit with a permanent Hong Kong resident in Sheung Wan. On 23 May 2006, the two of them filed a ‘notice of intended marriage’ with the Marriage Registry, giving notice of their intention to marry each other on 12 June 2006. Six days before they were due to get married, ‘A’ was arrested by the police for overstaying. He was detained by the Director of Immigration on the same day under s 26(a) of the Immigration Ordinance (power to detain for inquiry).

8. Whilst being detained under s 32(2A) of the Ordinance (power to detain pending a decision whether to make a removal order), ‘A’ made a CAT claim on 16 June 2006, more than two years and seven months after he arrived Hong Kong. On the following day, a removal order was made against him and he was detained by the Director pending his removal pursuant to s 32(3A).

9. ‘A’ went on a hunger strike on 4 July 2006 to protest against his detention, possible return to Algeria and separation from his fiancée. After receiving counselling, he resumed eating on 10 July 2006.

10. ‘A’ made requests for release on recognizance in June and July 2006. They were refused on 6 August 2006 by the Director, regard having had to his adverse immigration record of having gone underground and overstayed for two years and seven months and the fact that the Director intended to remove him as soon as possible.

11. On 7 September 2006, ‘A’ made an application for leave to apply for judicial review. On 13 September 2006, leave was granted and ‘A’ was granted bail by order of Hartmann J (as he then was). On the following day, he was released from detention.

12. In total ‘A’ was detained for a relevant period of three months.

13. ‘A’ has since married the woman whom he had planned to marry prior to arrest and detention.

14. On 12 September 2007, the CAT claim of ‘A’ was rejected by the Director of Immigration. On 12 October 2007, ‘A’ petitioned the Chief Executive under art 48(13) of the Basic Law against the Director’s refusal of his CAT claim. No decision on the petition has yet been reached.

Case of ‘AS’

15. The facts pertaining to the case of ‘AS’ are likewise uncontroversial. ‘AS’ is a Sri Lankan Tamil. He was born on 29 March 1975 and is now 33 years old. His claimed fears are that he will be tortured and even killed by his business partners who have connections with the Government there if he ever returns to Sri Lanka. Furthermore, by reason of his ethnicity and the fact that he has lost his Sri Lankan identity card, he fears that he will be tortured by the police if he is returned there.

16. He first entered Hong Kong from Sri Lanka on 2 March 2003 using his own passport. He departed on 8 March 2003 and returned on the following day. He was permitted to remain as a visitor until 14 March 2003. On 12 March 2003, he approached the Immigration Department for an extension of stay but the application was refused. He did not depart upon the expiry of his permission to stay but went underground. His own passport was given to an agent and was used by another for leaving Hong Kong on 16 March 2003. On 5 May 2003, ‘AS’ departed Hong Kong for the Mainland via Lo Wu using a Sri Lankan passport belonging to his cousin. He was found out by the Mainland authority and returned to Hong Kong. He was refused permission to land but was admitted to hospital for medical treatment. On 9 May 2003, ‘AS’ absconded from custody during hospitalisation. He claimed that he later obtained a passport bearing another identity and went back to Sri Lanka in July 2003.

17. Since 1 January 2004, ‘AS’ travelled to Hong Kong on a number of occasions using his own passport. He last arrived in Hong Kong on 20 September 2004. On 25 September 2004, he was intercepted by the police when he went to stand surety for his friend and was handed over to the Immigration Department for inquiries. He was then charged with two counts of immigration offences (namely, ‘transfer to another without reasonable excuse a travel document’ and ‘making a false representation to an immigration assistant’), and on his conviction, he was sentenced to 12 months’ imprisonment.

18. On 23 May 2005, three days before he served out his term of imprisonment, the Secretary for Security made a deportation order against ‘AS’. He was detained under s 32(3) following his discharge from prison on 26 May 2005. He was scheduled to be removed on 2 June 2005, but that was withheld because he had made a legal aid application three days before to challenge the deportation order. He further made a CAT claim on 6 June 2005, that is to say, more than two years and three months after he first visited Hong Kong.

19. ‘AS’ requested for release on recognizance in 2005 and 2006. Those requests were refused on the ground that in light of his previous history of being a repeated offender with a record of absconding while under detention in 2003, there existed a real risk of his absconding and re-offending.

20. On 25 January 2007, ‘AS’ made an application for leave to apply for judicial review. On 29 March 2007, five days before the substantive court hearing, ‘AS’ was released on recognizance. In total, the relevant period of detention was 655 days.

21. To complete the story, on 25 May 2007, the Director of Immigration informed ‘AS’ that his CAT claim was refused. He petitioned the Chief Executive against the refusal, but the petition was rejected on 3 October 2007.

22. ‘AS’ complains about the effect of detention and not seeing daylight. He also complains of the difficulties of getting evidence to back his claim.

Case of ‘F’

23. The case of ‘F’ is also common ground.

24. ‘F’ is a Sri Lankan Sinhalese. He was born in Sri Lanka on 3 May 1977 and is now 31 years old. His claimed fears are that he will be tortured and possibly killed by the family of his deceased girlfriend who are Tamil and are connected with influential political figures and authorities.

25. On 18 April 2005, he was arrested by the police for the offence of failing to carry an identity card and suspicion of overstaying. He claimed to have entered Hong Kong on 13 October 2002 with his passport which he had lost on 15 October 2002. He admitted to having overstayed since 21 October 2002. According to immigration records, there was a departure record using a passport in the name of ‘F’ on 19 October 2002 but he denied any knowledge of such departure.

26. ‘F’ was subsequently prosecuted for breach of his condition of stay by overstaying since 21 October 2002. He pleaded guilty and upon his conviction, he was sentenced to two months’ imprisonment on 28 April 2005.

27. He was discharged from prison one month later on 28 May 2005 and was immediately placed under administrative detention pending a decision as to whether a removal order would be issued against him. On 30 June 2005, a removal order was made against him. On the same day, he was placed under administrative detention pursuant to s 32(3A) of the Immigration Ordinance pending his removal.

28. On 5 July 2005, ‘F’ made a claim under CAT, more than two years and nine months after he first entered Hong Kong.

29. ‘F’ requested release on recognizance on 14 September 2005, which was finally rejected on 10 August 2006 after a number of interviews, in which information and supporting materials were sought from ‘F’. The Director considered that there was a high risk of ‘F’ absconding (– his refugee status application had been rejected by UNHCR on 12 May 2006 at first instance and on 17 July 2006 on appeal and his CAT claim was rejected on 6 March 2006, he had overstayed in Hong Kong for nearly two and a half years without any proof or document of identity and he had no family connection or a fixed abode in Hong Kong), and because he had failed to provide a surety for recognizance and to support his living.

30. On 6 July 2006, ‘F’ went on a hunger strike and requested that he be released on recognizance. It lasted four days.

31. ‘F’ made an application for leave to apply for judicial review on 30 January 2007. Leave was granted on 5 February 2007. On 29 March 2007, five days before the substantive hearing of the application for judicial review, ‘F’ was released on recognizance. In total, the relevant period of detention amounted to 634 days.

32. As mentioned, the CAT claim of ‘F’ was refused on 6 March 2006. A petition against the refusal was rejected on 4 October 2007.

33. ‘F’ makes complaints about his conditions of detention and their effect on him.

Case of ‘YA’

34. Finally, the case of ‘YA’. The undisputed facts are that ‘YA’ is from Togo, West Africa. He is Ewe in ethnic origin. He was born on 26 January 1979 and is now 30 years old.

35. His story is that in 2005, a civil war broke out between opposing political factions, in one of which ‘YA’ was an active member. An attempt to arrest him was made in April 2005 but he managed to escape. Yet his wife was less fortunate; she was arrested and tortured. As a result, ‘YA’ fled to Benin where he registered as an asylum seeker with the local UNHCR there. He was granted initial refugee status. Unfortunately, according to ‘YA’, due to unrest between refugees and locals, fire in the camp destroyed his documentation and he returned to Togo to obtain a new identification and find a new safe refuge. It was thus that he boarded a plane to Paris and then to Hong Kong, arriving on 16 October 2006, with no travel documents. He was first detained on 17 October 2006 when he was refused permission to land in Hong Kong as he had no travel documents and his intention of visit was doubtful. A removal order was made against him on 1 February 2007. He was, in the circumstances, detained under different powers of detention all provided in s 32 of the Immigration Ordinance.

36. ‘YA’ raised his CAT claim on 25 October 2006.

37. On 5 December 2006, UNHCR informed the Director that claim of ‘YA’ for refugee status had been rejected both at first instance and on appeal and that it had closed his file.

38. In the meantime, ‘YA’ through solicitors and by himself made repeated requests to the Director of Immigration for release on recognizance, which were all refused. The Director maintained that he had considered the prospect of effecting the removal of ‘YA’ and his failure to provide proof or document of identity in rejecting his requests for release.

39. On 19 March 2007, ‘YA’ filed his application for a writ of habeas corpus and the writ was issued by Hartmann J on 20 March 2007. ‘YA’ was released by the Director on 29 March 2007 on recognizance.

40. On 2 June 2008, ‘YA’ was told that his CAT claim had been refused.

41. ‘YA’ makes general complaints that the fact of detention has made prosecution of his claim more difficult and has impeded contact with his family overseas. But records show that he has made a number of international telephone calls in any event.

General principles

42. It is of help to set out the general principles on awarding and quantifying damages for unlawful detention or false imprisonment by a servant of the Government. For present purposes, very useful guidelines can be found in the English Court of Appeal case of Thompson v Commissioner of Police of the Metropolis [1998] QB 498. The earlier decision of Patrick Chan J (as he then was) in the Vietnamese refugee case of Pham Van Ngo v Attorney General, HCA 4895/1990 (30 July 1993) also contains valuable discussion on the relevant principles.

43. In Thompson, which comprised two actions, the plaintiff in the first action suffered from false imprisonment and malicious prosecution in the hands of police officers. She claimed damages, including aggravated damages and exemplary damages. The plaintiff in the second action claimed damages against a number of police officers for wrongful arrest, false imprisonment and assault. Both actions were tried before a judge sitting with a jury. On appeal from the awards made, the Court of Appeal took the opportunity to give detailed guidelines on the additional directions that should be given in a summing up on the issue of damages for the benefit of the jury.

44. Lord Woolf MR (as he then was) began by explaining the basics and by suggesting some standard figures (pages 514 to 516):

“(1)  ... Save in exceptional situations such damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.
(2)  As the law stands at present compensatory damages are of two types. (a) Ordinary damages which we would suggest should be described as basic, and (b) aggravated damages. Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant’s conduct which justify the award of aggravated damages.
(3)  The jury should be told that the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff. But they should be provided with an appropriate bracket to use as a starting point. ...
...
(5)  In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale. ...
...
(7)  The figures which we have identified so far are provided to assist the Judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can very dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner.”

45. His Lordship then explained the possible award of aggravated damages (at page 516):

“(8)  If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution.. Aggravating features can also include the way the litigation and trial are conducted. ...
(9)  The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. (This is contrary to the present practice but in our view will result in greater transparency as to the make up of the award.)
(10)  We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.
(11)  It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.”

46. Finally, Lord Woolf turned to exemplary damages (at pages 516 to 517):

“(12)  Finally the jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public (This guidance would not be appropriate if the claim were to be met by insurers); (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.
(13)  Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.
(14)  In an appropriate case the jury should also be told that even though the plaintiff succeeds on liability any improper conduct of which they find him guilty can reduce or even eliminate any award of aggravated or exemplary damages if the jury consider that this conduct caused or contributed to the behaviour complained of.”

47. The earlier local case of Pham Van Ngo concerned four Vietnamese boat people (amongst a group of 113) who arrived in Hong Kong waters from Vietnam by a vessel, which was badly in want of repair. The majority of the boat people were intending to travel to Japan where they hoped to become refugees either permanently or for resettlement elsewhere. They accepted the offer from the Government for food and water and repair of their vessel. It was in those circumstances that they were taken to a reception centre where they disembarked and were processed by officers of the Immigration Department. They were subsequently moved to a detention centre and they were detained until 12 November 1990 when a writ of habeas corpus was granted by a judge. In the meantime, the vessel was destroyed by the Government, which took the view that it was economically unviable to repair the vessel. In those circumstances, the refugees were, as it were, stuck in Hong Kong, their original hope of travelling to Japan having been dashed by the destruction of their vessel. It was held by the Court that their detention was unlawful for a technical reason. In fact, there existed alternative statutory provisions by which the refugees could have been lawfully detained in Hong Kong. The judgment of Patrick Chan J dealt with, amongst other things, their claim for damages for false imprisonment. At pages 302 to 303 of the lengthy judgment, the learned judge started with a bird’s eye view of the position in relation to false imprisonment:

“False imprisonment is of course actionable per se without proof of damage. A plaintiff is, however, always entitled to recover damages. The general principles regarding such damages are clearly set out in Halsbury’s Laws of England, 4^th Edition, Volume 45, paragraph 1337:
‘In an action for false imprisonment the plaintiff is entitled to recover general damages for the imprisonment. He may also recover, by way of special damages, compensation for any loss which he has incurred, although it is possible that to be recoverable such loss must be reasonably foreseeable. He may rely in aggravation of the general damages on the circumstances attending the imprisonment and on any facts in the conduct of the defendant at the time of or before or after the imprisonment which show malice.’
In addition, ‘exemplary damages may be awarded in certain circumstances’. (See Note 4 in paragraph 1337)’
There are thus three types or heads of damages which are recoverable: first, ordinary damages which in a normal case consist of general damages and special damages; second, aggravated damages; and third, exemplary damages. Like special damages, aggravated damages and exemplary damages must be expressly pleaded. However, while special damages are almost invariably awarded as a separate item, in most cases, the court usually gives a single award of damages which is sometimes said to include an element of aggravated damages and/or exemplary damages.
Both ordinary damages and aggravated damages are compensatory in nature while exemplary damages are punitive. As Lord Reid put it in Brown v Cassell & Company, [1972] 2 WLR 645 at 685G, for compensatory damages, the court must consider how much the plaintiff ought to receive whereas in assessing punitive damages, it must consider how much the defendant ought to pay. They are not necessarily the same. The factors relevant to an award of ordinary damages, aggravated damages and exemplary damages are somewhat different. For ordinary damages, the court looks at what damage has been done to the plaintiff because of the false imprisonment. For aggravated damages, the court takes into account the conduct of the defendant. As to exemplary damages, the court is to decide whether it is necessary to punish and deter the defendant. In that case the defendant’s conduct is also to be looked at. Hence confusion may arise and has indeed arisen between aggravated and exemplary damages in previous cases, both prior to as well as after 1964 when the case of Rookes v Barnard [1964] AC 1129 was decided by the House of Lords.”

48. The learned judge then dealt with compensatory damages first (at pp 304-305):

“For ordinary damages, the relevant factors which the court would consider are set out in McGregor on Damages, 15^th edition, paragraphs 1619 and 1620:
‘... generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury’s discretion. The principal heads of damages would appear to be injury to liberty i.e. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are usually awarded in these cases: no breakdown appears in the cases.’
‘In addition there may be recovery for any resultant physical injury, illness or discomfort, as where the imprisonment has a deleterious effect on the plaintiff’s health. ... Also damages may be given for any injury to reputation, for, as Lawrence L.J. said in Walter v Alltools, ‘a false imprisonment does not merely affect a man’s liberty; it also affects his reputation.’’
‘Any pecuniary loss which is not too remote is recoverable. Pecuniary losses fall into two categories in the cases. In the first place, that any loss of general business or employment is recoverable would seem to follow from Childs v Lewis, ... In the second place, a few 19^th-century cases showed that the plaintiff’s costs incurred in procuring his discharge from the imprisonment may be recoverable as damages.’
Apart from these considerations, other factors such as the manner of the false imprisonment and the conduct of the defendants are also relevant as they may lead to aggravation or mitigation of the damage. Aggravating factors may call for a bigger award while on the other hand, mitigating factors may result in a reduction of the award. As for aggravated damages, the relevant considerations are as follows:
‘... the court may take into account the defendant’s motives, conduct and manner of commiting the tort and, where these have aggravated the plaintiff’s damage by injuring his proper feelings or dignity and pride, aggravated damages may be awarded. The defendant may have acted with malevolence or spite or behaved in a high-handed, malicious, insulting or aggressive manner. The court may consider the defendant’s conduct up to the conclusion of the trial, including what he or his counsel may have said at the time.’ (Halsbury’s Laws of England, 4^th Edition, paragraph 1189)
‘That case (Walter v Alltools [1944] 61 T.L.R.39), and the earlier one of Warwick v Foulkes as interpreted therein, establish that, where the false imprisonment has been brought about by the defendant preferring a charge against the plaintiff, any evidence tending to show that the defendant is preserving in the charge is evidence which may be given for the purpose of aggravating the damages. By implication, they establish the converse proposition that the defendant is entitled to give evidence in mitigation of damages tending to show that he has withdrawn the charge or has apologise for having made it.’ (McGregor on Damages, 15^th Edition, paragraph 1623)
As the conduct of the defendant must be taken into account, the fact that the defendant has a reasonable and probable cause to do what he did is clearly a mitigating factor (see Warwick v Foulkes, supra). So is the defendant’s bona fide relevant in assessing damages (see Rowcliffe v Murray, Larkin, and Petty (1842) CAR & M 513).”

49. His Lordship then turned to punitive damages (ie exemplary damages) at pp 305-308:

“The main object of exemplary damages is to punish and deter the defendant. As a result of the House of Lord’s decision in Rookes v Barnard, supra, exemplary damages can only be awarded in three category of cases. The one which is relevant to the present case consists of cases where there has been ‘oppressive, arbitrary or [unconstitutional] action by the servants of the government’. The rationale behind this is, as Lord Devlin put it (at p.1226), that ‘the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service’. Not every case which falls within this category necessarily calls for an award of exemplary damages. The court has a discretion in dealing with such award. Because of the nature of exemplary damages, such an award:
‘comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like.’ (McGregor on Damages, 15^th Edition, paragraph 406)
As Lord Devlin in Rookes v Barnard, supra, at p.1228, said, it is only when the sum awarded as compensation (which may include ordinary as well as aggravated damages) is ‘inadequate to punish (the defendant) for his outrageous conduct, to mark (the jury’s or the court’s) disapproval of such conduct and to deter him from repeating it’ that it would be appropriate to award exemplary damages. As to the sort of conduct which may justify an award of exemplary damages, different cases have used different descriptions; ‘arbitrary and outrageous’, in Rookes v Barnard, supra, p.1223; ‘deliberately or recklessly or with malice’, in Kelly v Faulkner, [1973] Northern Ireland Law Report 31, at 43, ‘wicked and callous’, in Mansion v Associated Newspapers Limited, [1965] 1 WLR 1038, at 1043; ‘monstrous’, in Guppys (Bridport) Ltd v Brookling [1984] 14 HLR 1, at 26; ‘deliberate, calculated and wilful’, in AB and Others v Southwest Water Services Limited [1992] 4 All ER 574, at 584.
As I said, aggravated and exemplary damages are easily confused. However, it is important to bear in mind the different functions of these two heads of damages: the former to compensate the plaintiff and the latter to punish and deter the defendant. As the learned authors of Salmond and Heuston on Tort, 20^th edition, at p.518, say, ‘aggravated damages are given for conduct which shocks the plaintiff; exemplary damages for conduct which shocks the jury, and may serve the useful function of deterring others as well as punishing the defendant.’ In my view, therefore, it requires a fairly high degree of ‘culpability’ in the defendant to merit an award of exemplary damages. Afterall, it is aimed at punishing him for such conduct as well as deterring him from repeating it.
In the cases where exemplary damages were awarded, the courts did not, usually, make separate awards. A global figure was given which was said to include ordinary, aggravated and/or exemplary damages, if any. There are a few exceptions such as Broome v Cassell and Company, supra, where a separate award for exemplary damages was made. These were jury awards which were the results of directions given by the trial judges pursuant to a remark made by Lord Devlin in Rookes v Barnard, that by doing so some costs might be saved upon a retrial. I have some reservation as to this ‘practice’, certainly in the case of a trial without a jury.”

50. Finally, the learned judge made useful observations on the ‘going rate’ approach advocated by counsel (at pp 308-309):

“It was suggested to me in submission that in making an award for damages, I could use a ‘going rate’ for each day of false imprisonment and work out the total award. ...
This submission sounds attractive but I do not think it can be sustained. It is precisely because of the differences in circumstances, both general as well as specific, pertaining to the injured parties that require individual assessment by the court and merit different awards to be made in each case. The variations in these cases may be so large that it is not only futile but dangerous to set a so-called minimum award for loss of liberty. I know of no precedent, in fact Counsel was unable to refer me to any case, in which this approach was adopted. It would be almost impossible to arrive at such a rate or figure at any point in time in any given case.
The same reasons apply to the ‘going-rate’ approach. The variants are so many and divergent that any rate would not only be unreliable but may also work out to be most unfair. I notice that this had been expressly disapproved of in Kelly v Faulkner, supra. This approach was also discussed in the Lunt case, but was not accepted. I do not propose to adopt such a course in the present case.”

51. It is also useful to mention R v Governor of Brockhill Prison, Ex parte Evans(No 2) [1999] QB 1403 (CA), which was affirmed on appeal: [2001] 2 AC 19. This case concerned a miscalculation by the prison governor of the release date of a prisoner, who as a result was released 59 days after she should have been. The Court of Appeal raised the trial judge’s basic award of £2,000 to £5,000 and the House of Lords upheld the Court of Appeal’s increase: [2001] 2 AC 19, 39G to 40C. Lord Woolf MR apparently accepted that in an award of damages for false imprisonment, leaving aside the question of aggravated damages and exemplary damages, there are two elements: the first being compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty (p 1060A to B). What is interesting to note is that the judge went on to agree with the trial judge below that in the instant case, as a result of the period the plaintiff was lawfully imprisoned, she would have already made the necessary adjustments to serving a prison sentence. Indeed she was someone who had been properly sentenced to a term of two years’ imprisonment for serious criminal offending and she had no reason to think that she was not perfectly properly incarcerated. That being the case, the judge held that the second element mentioned above, namely the damage to reputation, humiliation, shock, injury to feelings and so on, was absent in the case (p 1060B to E).

52. Finally, Lord Woolf specifically approved the approach of the trial judge not to propose an amount for each extra day of imprisonment but rather to adopt a global approach. The Master of the Rolls recognised it would be possible to work out a daily, weekly or monthly figure from the increased award of £5,000 for the extra 59 days of wrongful imprisonment but such an exercise was discouraged (p 1060E-G). The judge emphasised that:

“No two cases are the same. The shorter the period the larger can be the pro rata rate. The longer the period the lower the pro rata rate. The length of sentence lawfully imposed is clearly similarly significant.” (p 1060G)

Summary of position in present case

53. Drawing the threads together, the position in the present case may be summarised as follows:

(1)  The present case concerns claims for ordinary (basic) damages, aggravated damages and exemplary damages.
(2)  As regards ordinary damages, no pecuniary or special damages are claimed. Only non-pecuniary damages are claimed.
(3)  There are two elements to the claim for non-pecuniary damages, namely, first, compensation for loss of liberty; and secondly, damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty.
(4)  As regards the first element, unlike the position in Pham Van Ngo, where there was available to the Government at all times an alternative regime whereby the Vietnamese boat people could have been lawfully detained, there was no alternative lawful procedure available to the Director or the Secretary to detain the four applicants, in the absence of a certain and accessible policy on the exercise of the powers to detain, which did not come into existence until 18 October 2008. The present case is therefore not a case of a technical breach and the assessment of damages must take into account each applicant’s loss of liberty as such.
(5)  The victim’s quality of life or liberty, during the period of unlawful detention, must be a relevant factor to bear in mind. If the quality of liberty is anything less than full, that fact must be reflected in the assessment. Thus for the applicants, even if they had been released on their own recognizance after making the CAT claims, they would still have been persons without any legal right to stay and live permanently, or even indefinitely in Hong Kong, save to the extent that pending the verification of their CAT claims, they could not be returned to the places where, according to their claims, torture might take place. In fact, there was nothing to prevent the Government from removing them to another country or place where no apprehended torture would take place, even before the CAT claims could be verified. But other than that, the applicants would have been entitled to stay and live as free persons in Hong Kong pending the verification of their claims. These are relevant considerations to bear in mind in considering the first element.
(6)  As regards the second element, namely, damage to reputation, humiliation, shock, injury to feelings and so on, both in the case of ‘AS’ and that of ‘F’, their detentions followed immediately after their release from imprisonment for offences that they were lawfully convicted of and sentenced to imprisonment for. In the case of ‘AS’, he had been in lawful custody since the date of his arrest (25 September 2004) until he was discharged from prison on 26 May 2005. It was a lengthy period of lawful detention. So far as he is concerned, the second element for compensation is absent or almost absent, as per Ex parteEvans (No 2). As regards ‘F’, he had been in lawful custody since the date of his arrest on 18 April 2005 until his discharge from prison on 28 May 2005. The period of lawful detention was relatively short and the offence involved minor. I will not say that the second element is wholly absent in his case. But, as compared with the other two applicants (‘A’ and ‘YA’), it is of reduced significance.
(7)  Regarding damage to reputation, humiliation, shock, injury to feelings and so on, this must, to a substantial extent, be subjective and dependent on individuals and their particular circumstances. Thus very generally speaking, what the victim’s quality or conditions of life had been prior to detention, what his expectation had been, how he perceived his detention (including its lawfulness or otherwise), how his condition of detention, as subjectively experienced by him, compared with life outside if he had not been wrongfully detained and compared with life before detention, and so forth, should be relevant considerations. But all this is not to say that there is one law for the rich and famous, and another for those who are without. Nor can there be one measure of damages for people who came from an affluent and developed country, and another for those who arrived from a poor and under-developed place. As general propositions, they must be wrong in principle. But rejection of that does not, putting my point the other way round, prevent the court from taking the subjective and personal circumstances of the victim into account – in fact, the court should take them into account.
(8)  All four applicants claim aggravated damages. Aggravated damages may be awarded where there are aggravating features about the case which result in the victim not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Conduct pertaining to the Government should therefore be taken into account. Factors such as the manner of the false imprisonment and the conduct of the wrongdoer are relevant as they may lead to aggravation or mitigation of the damages – insofar as aggravated damages (if any) is concerned.
(9)  Aggravated damages is essentially compensatory in nature, but nonetheless contains also a penal element as far as the wrongful party is concerned, which may affect the question of whether exemplary damages on top of aggravated damages should be awarded and if so, the quantum of that award: Thompson, at pages 516 to 517, points (11) and (12).
(10)  As regards exemplary damages, the law in Hong Kong, unlike some Commonwealth jurisdictions (including Australia, New Zealand and Canada), has always followed, without question, the landmark decision of Rookes v Barnard [1964] AC 1129, later approved in Broome v Cassell [1972] AC 1027 (see also Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122): see for instance, Wong Wai Hing v Hui Wei Lee [2001] 1 HKLRD 736, 758H to I (CA); 霍兆榮對廉政公署 CACV 247/2002 (6 February 2003), paras 22 and 23.
(11)  The first category in Lord Devlin’s classification relates to ‘oppressive, arbitrary or unconstitutional conduct by government servants’: at p 1226. It has been said that the three epithets (oppressive, arbitrary, unconstitutional) fall to be read disjunctively: Holden v Chief Constable of Lancashire [1987] QB 380, 388C-D. However, it is doubtful whether conduct which is merely ‘unconstitutional’ (as, strictly speaking, every unlawful arrest by a police officer would be) is in itself sufficient to bring the case within the first category: see the reservations of Purchas LJ (at pages 387H to 388B) and of Sir John Arnold P at pages 388H to 389A in Holden. See also the Northern Ireland cases of Clinton v Chief Constable of the Royal Ulster Constabulary [1999] NI 215 and Davey v Chief Constable, Royal Ulster Constabulary [1988] NI 139.
(12)  In any event, the doubt seems only to be relevant when a judge is sitting with a jury, where the question of whether a claim for exemplary damages should be withdrawn from the jury for not falling within the first category at all (assuming it is the category in question) may arise. Where the judge sits alone, such a question is likely to be academic because an award of exemplary damages does not follow automatically in every case coming within a relevant category. The Court will normally look for outrageous conduct, disclosing malice, fraud, insolence, cruelty and the like, to justify an award for exemplary damages. Holden at page 389A to B/C (per Sir John Arnold P); Pham Van Ngo, supra at page 306; McGregor on Damages (17^th ed) para 11-019. In the New Zealand context, where Rookes v Barnard is not followed and the law on exemplary damages is much more liberal, the Privy Council has held, by a majority of three to two, that in exceptional and rare cases, inadvertently negligent conduct which is so outrageous as to call for condemnation and punishment may be sufficient to justify an award of exemplary damages based on the category of negligence – which is not a recognised category for the award of exemplary damages under Rookes v Barnard: A v Bottrill [2003] 1 AC 449. The case, cited by Mr Dykes SC (Mr Hectar Pun with him) for the applicants, is of limited value in this jurisdiction for obvious reasons, but its emphasis on the rationale of the jurisdiction to award exemplary damages, namely the court’s disapproval of outrageous conduct (per the majority at page 455, para 20) or the punishment of the defendant for his outrageous behaviour (per the minority at page 466, para 77) is, nonetheless, instructive.
(13)  As regards actual figures, although starting figures and ceilings were suggested in Thompson amongst the guidelines given by the Master of the Rolls, those guidelines were meant for jury trials, and the figures mentioned were intended for the benefit of juries (as much as for judges sitting alone, of course). In the subsequent case of Ex parte Evans (No 2), supra, the Master of the Rolls specifically approved the trial judge’s refusal to work on a daily rate but to adopt a global approach. Any simplistic approach to use the global award to work backwards to arrive at a daily, weekly or monthly rate is bound to be erroneous because the shorter the period of false imprisonment, the larger should be the pro rata rate, whereas the longer the period, the lower the pro rata rate (per Lord Woolf in Ex parte Evans (No 2) at page 1060G). In any event, as the learned editors of McGregor have observed, after struggling with the various figures used by the courts in different cases, the £3,000 guideline for the first day is likely to be utilised only where the false imprisonment is very short and the suggested progressively reducing scale over the next few days should be ‘steep’ (para 37-008).
(14)  Finally, it must be emphasised that the figures suggested or actually awarded in the English cases are not directly applicable or translatable in this jurisdiction due to differences in social and economic conditions. This has been emphasised in personal injury cases: Lee Ting-lam v Leung Kam-ming [1980] HKLR 657, 659; Chan Wai-tong v Li Ping-sum [1985] HKLR 176, 180; Chan Pui-ki v Leung On HKLR 401, 405-407.
(15)  Rather, local awards should be looked at. However, it cannot be overemphasised that no two cases are the same. Moreover, even in comparable cases, one would still have to be satisfied that the previous award was appropriate and right. It is wrong to use past cases – even local ones – as if they contained figures set by statutes. Nor do they act as any strict jacket. Their real use, particularly when considered collectively, is to provide the Court with a general ‘feel’ of the appropriate amount of award in the case at hand and to act as a cross-check against any significant departure, one way or the other, from the previous awards, or, where it can be observed, the prevailing trend of awards. To a much lesser extent, general levels of awards made in personal injury cases may also be looked at to serve as a very rough and general cross-check. This has in fact been mentioned by Lord Woolf in Thompson, at page 515E, point (5).

Observations on past Hong Kong cases

54. Mr Anderson Chow SC for the Director has very helpfully prepared, together his junior, Ms Grace Chow, a summary, in the form of a table, of relevant local cases on false imprisonment and malicious prosecution, for general comparison purposes. It has been liberally used by counsel on both sides as well as the Court during argument. I have, gratefully, taken the liberty to reproduce the table as an annex to this judgment. I would, where appropriate, make observations on these past cases, bearing in mind what I have just said about the use of previous cases in the present assessment.

55. Faridha (2007) is of very peculiar facts. The Indonesian domestic helper was subjected to hitting, pinching, scratching and assault with objects by her employer. She was falsely imprisoned in her employer’s home, made to sleep on the kitchen floor and had to work long hours for a prolonged period of four months. The award of $60,000 included aggravated damages. The facts in that case were, in short, appalling.

56. Godagan (2004) has to be read with care. The award of $200,000 was not primarily for false imprisonment – the plaintiff having spent 19 days in prison, but rather for malicious prosecution which lasted almost a year, involving an initial conviction and the overturning of the conviction on appeal. The judge acknowledged that there were no relevant comparables in Hong Kong, and after referring to the benchmark figures in Thompson, came to the view that $200,000 was the appropriate figure (paras 89 to 91).

57. 馬桂珍 (Ma Kwai Chun) (2003) involved unlawful detention for 12 hours. The judge did not find the two cases, both concerning assault by police officers, cited by the parties to be useful (paras 19 to 21). Apparently, the Court was affected by the award made by the Court of Appeal in霍兆榮對廉政公署, supra, which concerned the wrongful handcuffing and photographing of the plaintiff by the ICAC, where the Court of Appeal awarded damages of $10,000 for loss of dignity (paras 22 and 23). The judge felt that the plaintiff should get $50,000 for the 12 hours of wrongful detention that she had experienced in terms of her loss of dignity and injury to her feelings (para 25). On top, the judge gave $30,000 for aggravated damages to account not only for the absence of any apology, but the way the police had maintained, quite without justification, the lawfulness of the wrongful arrest of the plaintiff in the proceedings (para 28). In my view, the awards made by the judge were justified on the peculiar facts of that case. It, perhaps, provides an illustration that for a very short period of false imprisonment, the award can be, relatively speaking, substantial, whilst for any further period of unlawful detention, the progressively reducing scale should be very steep.

58. I do not find the awards made in Pham Van Ngo (1993) to be on the low side, as was suggested by Mr Hectar Pun, following Mr Dykes, in his submission on the local cases. The Court there was dealing only with the second element of the award for ordinary damages, it having held that there were all along available alternative provisions whereby the Government could have made use of to detain lawfully the boat people. Furthermore, at the risk of repeating: it is not appropriate to simply compare the award in a case where the period of false imprisonment is very short with a case where the period goes to many months or years, by reason of the progressively reducing scale. Put another way, the longer the period of detention, the less significant the second element for the award of ordinary damages would become after the initial period of detention; and the sole or major factor determining the amount of award in such prolonged situation would be the first element, namely the loss of liberty. Pham Van Ngo, involving a substantial period of false imprisonment of about 18 months, was wholly concerned with the second element.

59. Likewise, the case of William Crawley (1986), involving a very short period of unlawful detention (2.5 hours), should be understood in that light.

60. Yoo Soon-nam (1976) contains obiter observations on the award of damages if liability had been established. The figure suggested, inclusive of exemplary damages, of $40,000, back in 1976, for a technical breach (pages 718 to 719) involving under 56 hours of wrongful detention, would seem to be on the high side, even bearing in mind that one was concerned with a very short period of false imprisonment. It was quite out of line with the figures in other earlier cases summarised in the table. In any event, I have reservations as to whether exemplary damages should be awarded at all, given that apart from the conduct being ‘unconstitutional’, there seems to have been an absence of any conduct which was outrageous or deserving of punishment.

61. Considering that Chong Yee Shuen was a case decided back in September 1974, the award of $3,000 for three days false imprisonment seems understandable enough. In comparison with Yoo Soon-nam, I very much prefer Chong Yee Shuen, which were decided within two years of each other.

62. Finally, Chow Hau Yung (1970) confirmed the general level of award as evidenced by Chong Yee Shuen. $7,000 was awarded for five hours unlawful detention, following a wrongful arrest that was accompanied by assault and threats made by police officers during detention. Again the case, decided in February 1970, tends to confirm my view that the obiter figure suggested in Yoo Soon-nam was very much on the high side.

Six specific matters raised by the respondents

63. Mr Chow has urged upon the Court a total of six factors which are said to be relevant to the award of ordinary damages, as well as the question of whether aggravated or exemplary damages should be awarded on top.

64. First, the applicants’ own conduct in causing or substantially contributing to their detention. Counsel’s point is essentially that save for the case of ‘YA’, the other three applicants all have committed criminal acts – overstaying, going underground, absconding, transferring to another a travel document, and making a false representation to an immigration officer. They constituted circumstances pointing to there being high risks of absconding and/or re-offending, which were reasons for their detention by the Director and Secretary. Mr Chow has pointed out, by way of comparison, that in the majority of cases concerning CAT claimants, they were released on recognizance.

65. I accept that so far as the award for ordinary damages is concerned, the factor mentioned could be relevant to the second element. The more ‘meritorious’, as it were, the detention – albeit unlawful for a procedural/institutional flaw, the less grievance the victim may have felt towards his unlawful detention. But there is a limit to how far this factor can affect the final figure.

66. I also accept that this is a matter that can be and in fact should be taken into account in relation to aggravated damages as well as exemplary damages.

67. It has to be pointed out that although there was at the time no accessible policy on how the discretion to detain would be exercised, so that in terms of art 5(1) of the Hong Kong Bill of Rights, the detentions were ‘arbitrary’, it does not necessarily follow that viewed in light of the individual merits of each case, the detention was capricious or ‘arbitrary’ in the general public law sense. On the evidence, there were materials and evidence which tend to justify the Director’s or Secretary’s decisions, at the level of individual merits, to detain the applicants.

68. On the facts, I think the case of ‘AS’ was plainly poor, whereas that of ‘A’ and ‘F’ were relatively better and indeed similar. Both were overstayers, the only difference being that ‘F’ was actually prosecuted and convicted and sentenced to a short term of imprisonment. I do not accept Mr Chow’s argument in relation to ‘YA’. He came to Hong Kong using an air ticket and boarding pass bearing someone else’s name and he failed to provide a travel document or other satisfactory documents. But bearing in mind that ‘YA’ was claiming to be a possible target of torture, those facts were by no means out of the ordinary. While I do not suggest that his detention must, even at the level of individual merits, be flawed, so far as the present discussion is concerned, I do not think the circumstances of his case would have much impact on the level of damages that should be awarded to him.

69. With the exception of ‘YA’, the three other applicants all made their CAT claims very late in the day. That could, arguably, reflect on whether they really had a genuine claim. That certainly contributed to the suspicion that the Secretary or Director had regarding the merits of their claims even before their eventual rejection. But so far as the question of ordinary damages and the second element are concerned, I think this is of very marginal relevance only.

70. Secondly, Mr Chow says that the Director or Secretary had reasonable and probable cause to detain the applicants and acted bona fide. I have no doubt that they are matters relevant to a consideration of aggravated damages and exemplary damages. So far as they are mirror images of the first point already discussed, I accept they are relevant to ordinary damages as well. Beyond that, I do not see how the Director’s perception of the situation could be relevant to the quantification of the ordinary damages due to the wronged applicants. It is not relevant to either of the two elements comprising the award for ordinary damages. Moreover, as I have emphasised, so far as the second element is concerned, it is the subjective perception of the applicant which really matters (provided that this is kept within bounds). The Director’s or Secretary’s own perception of his action is quite irrelevant.

71. Thirdly, Mr Chow points to the fact that all four applicants had already been held in detention prior to the commencement of the periods of unlawful detention. I have already discussed this factor earlier on. It is based on Ex parte Evans (No 2), which involved a victim who had served two years’ imprisonment for a serious crime. Of the four applicants in the present case, the case of ‘AS’ would be seriously affected by the principle under discussion. To a much less extent, the case of ‘F’ would also be affected.

72. Fourthly, Mr Chow has urged the Court to take into account the previous living conditions of the applicants. I have already dealt with this point and do not intend to repeat myself. As I say, given the subjective element built into the second element comprising the award for ordinary damages, the personal circumstances of the applicants must be taken into account, including their previous living conditions. But as I have also stressed, there is a limit to it and these circumstances can only be of limited relevance.

73. Fifthly, Mr Chow says that the applicants had no legal rights to work in Hong Kong. This is a quality-of-liberty argument. It is relevant, as a matter of principle, to the first element comprising the award for ordinary damages. However, the right to work, as a matter of strict law and as a matter of what would actually have happened if there had been no unlawful detentions and the applicants had been released on recognizance, is not a straightforward matter: see Iqbal Shahid v Secretary for Justice, HCAL 150/2008 & 8/2009, 30 December 2008 (leave application) & 2 March 2009 (substantive hearing), Wright J. I place negligible weight on this matter in the assessment.

74. Sixthly, Mr Chow relies on the conditions in which the applicants were detained. He says, by reference to the evidence, that the applicants were allowed to make telephone calls, subject to following certain procedures and subject to an undertaking to pay the necessary charges for international calls. Newspapers were provided to the detainees, as were reading materials. They were provided with adequate medical treatments where required. There is no objective medical evidence that any of the applicants has suffered any physical or (permanent) psychological injury as a result of the detention. Nor is there any evidence that they were not well treated. I accept all this is relevant.

75. On the other hand, I bear in mind that the applicants have been treated as remanded prisoners, and a relevant fact is that their life in prison lacked the structure and the direction of the regime that governs convicted prisoners that requires them to work and allows them to access vocational and educational opportunities to make them better adjusted to return to civil society. This fact assumes significance when the detention becomes prolonged.

Several other matters

76. I move on to deal with several matters raised in general. First, as regards aggravated damages, Mr Dykes submits that the applicants were CAT claimants expecting protection and a fair procedure for determining their claims, and their detention caused them upset simply because it was arbitrary. It would be frustrating in the extreme for a person to see a similarly circumstanced CAT claimant not being detained. Counsel stresses that it is different from the fact that the lack of a detention policy amounted to institutional indifference, a factor which may engage the jurisdiction to award exemplary damages (see below).

77. The second point made by Mr Dykes in support of the claim for aggravated damages is the lack of any apology for the wrongful detention.

78. As regards the first point, I take the view that as a matter of principle, it is a valid point. However, as a matter of fact, I do not think that in the cases of ‘A’, ‘AS’ and ‘F’, they had good grounds for complaint, on the merits of their respective cases. This is particularly so in the case of ‘AS’, who had been convicted of offences and who had served a substantial period of imprisonment. Detaining him on the ground of risk of absconding or re-offending was understandable – although unlawful due to the procedural/institutional flaw. To a lesser extent, ‘A’ and ‘F’ could not complain, they having gone underground as overstayers for very substantial periods of time. The case of ‘YA’ was more marginal and I agree that he may have felt upset at his detention. He made his CAT claim shortly after arrival, and he was effectively detained since arrival until after proceedings were commenced. On the other hand, I bear in mind that his identity had not been verified. That would go some way towards justifying the Director’s detention of him.

79. As regards the absence of an apology, I do not think in itself it is a sufficient ground for the award of aggravated damages. This has been so held by Patrick Chan J in Pham Van Ngo, supra, at pages 322-323 (on the facts of that case) and the same point was made by Chung J in 馬桂珍, supra, at para 28.

80. But certainly, it is a matter that should be taken into account.

81. Secondly, as regards exemplary damages, Mr Dykes submits that the detentions were ‘oppressive’, taking into account the status of the applicants as torture claimants. He contends that detention is never necessary simply because someone is a CAT claimant and, in the absence of fast track procedures detention can impede the investigation and processing of a claim. Mr Dykes concedes that ‘AS’ and ‘F’ stand in a different category because of their past convictions.

82. Mr Dykes also submits that the detentions were ‘arbitrary’ given the failure to comply with art 5(1) of the Hong Kong Bill of Rights.

83. Mr Dykes further submits that the detention in each case was ‘unconstitutional’ because it contravened art 39 of the Basic Law and art 5(1) of the Hong Kong Bill of Rights.

84. Mr Dykes complains about the institutional neglect on the part of the authorities to put in place a published and accessible policy on detention. This, it is said, justifies the award of exemplary damages.

85. Whilst conceding that no malice or bad faith was involved, Mr Dykes also makes the point that the absence of a policy or a published and accessible policy in the present case meant that the authorities were guilty of such ‘inadvertently negligent conduct’ which was so outrageous as to call for condemnation and punishment, bearing in mind the background that back in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, the Court of Final Appeal had already said that the Government had a duty to put in place fair and proper procedures to screen the claims of torture claimants. Counsel based his submission on the Privy Council case of A v Bottrill, supra.

86. For the reasons already explained, I do not think that in the cases of ‘A’, ‘AS’ and ‘F’, anything oppressive had happened. At the level of individual merits, their respective detentions were all understandable, albeit wrong. In the case of ‘YA’, it was more marginal, but nonetheless, I would hesitate to apply the label ‘oppressive’ to his case. The fact that a detention may not even be justifiable under general public law (I am not suggesting that this must have been the case here) does not necessarily turn it into one that is oppressive.

87. The same comments apply to the submission based on arbitrariness, save that again, in the case of ‘YA’, it is slightly more arguable (I put it no higher than that) that his detention was doubly arbitrary – for want of compliance with art 5(1) of the Hong Kong Bill of Rights and for lack of objectively justifiable grounds even under general public law.

88. The detentions were no doubt unconstitutional, strictly speaking. But I have already discussed this element in Lord Devlin’s first category above. In my view, that, per se, is quite insufficient to trigger an actual award for exemplary damages (as opposed to leaving the question to the jury), in the absence of outrageous conduct, disclosing malice, fraud, insolence, cruelty and the like. This brings one back to the other arguments raised.

89. As regards the supposed disregard of the Court of Final Appeal’s admonition that a fair and proper procedure to verify CAT claims should be put in place, I take the view that detention and screening of CAT claimants belong to two separate regimes, though there is some intersection. The power to detain may be exercised in a variety of circumstances, many of which may have nothing to do with torture claimants. I do not regard the failure of the Director or Secretary to have a published and accessible policy in itself a wilful disregard of the view of the Court of Final Appeal in Prabakar expressed in relation to CAT claimants.

90. Finally, the marriage plan of ‘A’ was affected by his detention. The loss should be covered by the award for ordinary damages: R (Hall) v The Independent Assessor [2008] EWHC 2758 (admin).

91. Having dealt with these specific matters, I now move on to quantify the damages payable to the individual applicants.

Assessment – ‘A’

92. In the case of ‘A’, the period of detention was three months. I have firmly borne in mind the personal circumstances of ‘A’, including the detention’s effect on his intending marriage. I have not forgotten his hunger strike whilst being detained. There was also a suggestion that he suffered from some depression during imprisonment, for which he had received treatment. I have borne all this in mind, which should be reflected in the award for ordinary damages.

93. I have also taken into account all the matters discussed above, insofar as they are relevant to his case.

94. For ordinary damages, I would award $80,000.

95. I do not think a case for aggravated damages or exemplary damages has been made out.

96. In particular, in relation to exemplary damages, I do not find any outrageous conduct, disclosing malice, fraud, insolence, cruelty and the like, in the present case. I specifically reject Mr Dykes’ argument that inadvertently negligent conduct is sufficient, on the facts of the present case, particularly bearing in mind that A v Bottrill was an appeal from New Zealand, where the law is different.

Assessment - ‘AS’

97. In the case of ‘AS’, the period of wrongful detention was lengthy. It comprised a period of 655 days, or some 21.5 months.

98. I have also firmly borne in mind the personal circumstances peculiar to ‘AS’. Everything I have said above, insofar as it applies to ‘AS’, has been taken into account. Two specific points are worth repeating in the case of ‘AS’.First, the period of wrongful detention was preceded by a substantial period of imprisonment for conviction of offences. Secondly, so far as the individual ‘merit’ of his case was concerned, it was very poor and there were more than sufficient reasons to detain him (but for the procedural/institutional flaw). In other words, the second element for awarding ordinary damages plays a very minor if not negligible role in his case.

99. For ordinary damages I would award $150,000.

100. For similar reasons, I do not think a case for the award of aggravated or exemplary damages has been made out.

Assessment – ‘F’

101. Turning to the case of ‘F’, his personal circumstances have been firmly borne in mind. Everything said above, insofar as it is applicable to his case, has been taken into account. I have borne in mind his hunger strike. His period of wrongful detention was likewise lengthy. It comprised 634 days, or over 20.5 months. The period of wrongful detention was preceded also by a period of lawful imprisonment. However, the offence involved was relatively minor and the sentence short. As explained, the second element for the award of ordinary damages has a reduced, but nonetheless some, effect here.

102. There were complaints regarding the conditions of ‘F’ during detention. However, according to the available immigration record, ‘F’ did receive medical treatment for hypertension and it was medically confirmed that appropriate treatments had been rendered to him and his general health condition had been satisfactory during his detention.

103. Taking everything into account, I think an award of $180,000 for ordinary damages is fair.

104. Again, I do not think a case for aggravated damages or exemplary damages has been made out.

Assessment – ‘YA’

105. Finally, as regards the case of ‘YA’, his personal circumstances have been taken into account. I have not forgotten his hunger strike and the alleged difficulties of communicating with his family back home. His detention involved a period of 156 days, or over five months.

106. In my view, an appropriate award for ordinary damages is $100,000.

107. I do feel there is a marginal case for the award of aggravated damages, for the reasons explained above. However, such an additional award is only made if one finds that the award for basic damages is not sufficient to cover the matters that might otherwise justify the making of an additional award. The making of such an additional award is the exception, rather than the rule.

108. In the present case, all things considered, I find the award of $100,000 to be quite sufficient as compensation for everything that ‘YA’ has gone through, and I decline, therefore, to make an additional award of aggravated damages or exemplary damages.

Comparison and crosschecking

109. I wish to say specifically that in making the above awards, I have borne in mind the levels of awards in previous cases, insofar as they are useful and insofar as the Court agrees with the awards made in those cases. But as I said, they do not provide any strict jacket.

110. The Court has also borne in mind, very generally and roughly, the levels of awards made in personal injury cases, particularly the awards for pain, suffering and loss of amenities under the four categories of loss: Lee Ting-lam v Leung Kam-ming [1980] HKLR 657. For a case falling within the bottom end of the serious injury category, such as the loss of a limb replaced by a satisfactory artificial device (see p 659), the current level of award would be in the region of $460,000 to $500,000: see for example, Chui Kam Sang v Tao Kee Eng Co Ltd HCPI 986/2006, 21 July 2008 (Recorder J Fok SC), paras 53-60; Wong Tsan Ming v Tse Chi Man HCPI 73/2008, 25 August 2008 (Master Levy) paras 131-134. As a further comparison, the statutory award for bereavement in a fatal accident case is $150,000 (this has remained the figure since 1997): The Fatal Accidents Ordinance (Cap 22), s 4(3).

Rejection of simple arithmetical approach

111. For the reasons explained, I reject Mr Pun’s submission on the quantification of the applicants’ claims which is essentially based on daily rates, proportions and straight-line computations. As has been mentioned more than once, a global approach is to be preferred to a rateable approach, and in any event, so far as daily, weekly or monthly rates are concerned, these pro rata rates are on a progressively sliding scale. Applying percentages of discount to the award for ordinary damages to arrive at figures for aggravated and exemplary damages is not justified by a careful reading of the authorities, and is in any event artificial. Ignoring these principles have resulted in counsel’s figures being, with respect, wide off the marks.

Outcome

112. Damages payable to ‘A’, ‘AS’, ‘F’ and ‘YA’ are assessed at $80,000, $150,000, $180,000 and $100,000 respectively.

113. Unlike a personal injury claim, no pre-assessment interest is in question: Holtham v The Commissioner of Police for the Metropolis (CA) (unrep) 25 November 1987.

114. Post-assessment interests will of course follow the judgment rate.

115. As regard costs, I make a costs order nisi that the costs of the assessment be paid by the respondent to the applicant in each case, to be taxed if not agreed. The applicants’ own costs are to be taxed in accordance with legal aid regulations.

116. I thank counsel for their assistance.

(Andrew Cheung)
Judge of the Court of First Instance
High Court

Mr Philip Dykes SC and Mr Hectar Pun, instructed by Barnes & Daly, for the applicants in all four cases

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

Annex

Table of Hong Kong cases on false imprisonment/malicious prosecution

Case	Date	Facts	Length of unlawful detention	General damages	Aggravated damages	Exemplary damages
Faridha Sulistyoningsih v Mak Oi Ling Karen, DCPI 1575/2005 (Unrep)	4/4/07	Physical abuse (hitting, pinching, scratching and assault with objects) and false imprisonment of Indonesian domestic helper who had just arrived in Hong Kong. She slept on the kitchen floor, was not allowed to go out and worked very long hours.	Around 4 months	$60,000 (false imprisonment including aggravated damages)		nil
Godagan Denivalage Prema C v Cheung Kwan Fong and Anor, DCCJ 2488/2003 (Unrep)	20/12/04	Plaintiff was a domestic helper falsely accused of theft of a pair of shoes. Conviction was overturned on appeal.	19 days in prison and almost a year before acquitted	$200,000 (malicious prosecution)	nil	nil
馬桂珍v香港警務處長曾蔭培, HCA 3983/2001 (Unrep)	13/6/03	Plaintiff was arrested without proper basis and unlawfully detained.	12 hours	$50,000	$30,000	nil
Pham Van Ngo and Others v AG, HCA 4895/1990 (Unrep)	30/7/93	Vietnamese refugees were detained at the detention centre pending the screening of their refugee claims. Of the 7 sample plaintiffs, 5 were adults and 2 were young children.	About 18 months	$30,000 $30,000 $50,000 $50,000 $15,000 $100	nil	nil
William Crawley v AG [1987] HKLR 379	13/11/86	Arrested pursuant to a bench warrant and detained at a waiting cell at the police station for 20 minutes before taking him to the Magistrate, handcuffed, without justification for doing so.	2.5 hours	$4,500	nil	nil
Yoo Soon-nam v AG [1976] HKLR 702	6/8/76	The plaintiff claimed that she was wrongfully detained by immigration officers on suspicion that she entered HK illegally. The court held that her detention was lawful but had there been unlawful detention it would have been both unconstitutional and oppressive to justify exemplary damages. Yet having regard to the fact that the plaintiff could have been detained up to 7 days and the officers believed they were acting lawfully, there could be mitigation in damages.	Just under 56 hours	$40,000 (would have been awarded inclusive of exemplary damages)
Chong Yee Shuen v AG [2001] 3 HKC 745	23/9/74	Plaintiff was ordered to be removed and detained pending his removal. He was later released on recognizance. The removal and detention order was admitted to be of no effect being signed by the Deputy Colonial Secretary instead of by the Governor or the Colonial Secretary.	3 days	$3,000	nil	nil
Chow Hau Yung v Pang Chun Ying [1946-1972] HKC 322	5/2/70	The plaintiff was suspected of having taken part in a fight and was arrested without evidence and detained at the police station where he was assaulted and threatened by the police officers during interrogation. He was later released without charge.	5 hours	$7,000	nil	nil

HCAL 100/2006 and
10, 11 and 28/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 100 OF 2006

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BETWEEN

	'A'	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 10 OF 2007

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BETWEEN

	'AS'	Applicant
	and
	DIRECTOR OF IMMIGRATION
Respondent

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 11 OF 2007

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BETWEEN

	'F'	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 28 OF 2007

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BETWEEN

	‘YA’	Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

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(HEARD TOGETHER)

Before : Hon Hartmann J in Court

Dates of Hearing : 2 and 3 April 2007

Date of Handing Down Judgment : 15 June 2007

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J U D G M E N T

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Introduction

1. The 1984 Convention Against Torture applies to Hong Kong. I am informed that in March of this year some 860 persons, who were subject to deportation or removal orders under the Immigration Ordinance, Cap.115, had made claims under the Convention to the effect that, if returned to their countries, they would be tortured or killed. All of those claims await final determination.

2. The Immigration Ordinance confers a power to detain persons who are the subject of deportation or removal orders pending their removal from Hong Kong. The issue that arises in these consolidated applications goes to the lawfulness of continuing to detain such persons after they have made claims under the Convention Against Torture and are awaiting a final determination of their claims.

3. As I have understood it, three grounds of challenge have been raised. They may be broadly described in the following manner.

(i) The provisions of the Immigration Ordinance do not provide for the continued detention of the applicants after they have made claims under the Convention

4. Having made claims under the Convention, the applicants have a right not to be removed to the countries where they fear torture until their claims are determined. Such determinations, if lawful, invariably involve a long process, one that ensures that a claimant is dealt with fairly while a painstaking factual investigation takes place. The determinations may take many months, indeed years. Orders of deportation or removal, however, impose upon the Director of Immigration or the Secretary for Security an ‘immediate’ obligation to effect physical removal from Hong Kong.

5. It is contended that an obligation to remove pursuant to the service of a deportation or removal order cannot co-exist with an open-ended obligation not to remove until the process of determining a claim under the Convention has been finalised. As Mr Dykes SC, leading counsel for the applicants, expressed it, the present provisions of the Immigration Ordinance are simply not equipped to deal with the expanding problem of claims made under the Convention Against Torture. The existing legislation has therefore impermissibly been stretched out of shape.

6. Mr Dykes said that, when there is a conflict between, on the one hand, the right of an applicant under the Convention not to be removed and, on the other hand, the immediate obligation imposed on Government pursuant to a deportation or removal order to bring about removal, the obligation to effect removal must give way to the right vested not to be removed. As such, therefore, when a claim is made under the Convention, applicable orders of deportation or removal lose their validity and must be set aside. It follows, of course, that if the orders themselves must be set aside, detention pending the execution of those orders cannot stand.

7. By an alternative route, Mr Dykes advocated his submission in the following way. If the detention of the applicants is pending their deportation or removal to countries where they apprehend torture, their detention cannot be for the purpose of removing them to those countries because that is no longer possible, at least not until after their claims have been determined. Continuing detention must therefore be for some other purpose; namely, for the purpose of restricting their liberty until after their Convention claims have eventually been determined, a purpose not contemplated by the Immigration Ordinance.

8. The applicant, ‘A’, was the first to institute proceedings by way of judicial review seeking an order of certiorari to quash the decision of the Director of Immigration not to release him from detention. As it was integral to his challenge that, having made a claim under the Convention Against Torture, his order for removal no longer remained valid, he sought an order of certiorari quashing the removal order too.

9. The applicants, ‘AS’ and ‘F’, instituted their judicial review proceedings on the same date as each other, seeking the same remedies. As to their detention, they each sought a declaration to the following effect :

“…the detention of the applicant by the Director of Immigration since …, as administered under section [32(3) or 32(3A)] of the Immigration Ordinance, Cap 115, is unlawful by virtue of not being a detention merely for the purposes of effecting his removal and such detention violates Article 5(1) of the Hong Kong Bill of Rights and Article 9(1) of the International Covenant on Civil and Political Rights (‘the ICCPR’).”

10. As to the orders requiring their physical removal from Hong Kong, they sought declarations to the following effect :

“A declaration that the failure … to rescind the [deportation or removal] order … made against the applicant is contrary to the Government’s duty to assess all claimants making a claim under the Convention against Torture.”

11. ‘YA’ was the last to bring proceedings. He did so by way of habeas corpus. In his supporting affirmation, he set out the basis of his challenge in the following manner (in para.34) :

“(1) I was detained by the Director of Immigration under s.32(3A) of the Immigration Ordinance, which authorizes detention ‘pending removal’ and for no other purpose …

(2) However, as the letters from the Director … indicate, as long as the investigation of my torture claim remains ongoing, there will be no decision or specific plan as to my removal [being] effected.

(3) At the moment, my torture claim is still being examined by the Immigration Department and there is no definite date by which such examination would be completed;

(4) Therefore, my current detention is clearly not ‘pending … removal’ … but pending the determination of my torture claim. In other words, I am being detained for a purpose which is not authorized by law. There is no legal basis for my detention.”

(ii) Continued detention is incompatible with art.5 of the Bill of Rights

12. Art.5 of the Hong Kong Bill of Rights is drawn from art.9 of the International Covenant on Civil and Political Rights (‘the ICCPR’). Art.5(1) and (4) states that :

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

(2) …

(3) …

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

13. The assertion that, having made a claim under the Convention, the detention of the applicants is inconsistent with art.5 of the Bill of Rights is founded on two grounds; namely —

(i) That neither judicial review nor habeas corpus provides an appropriate mechanism for determining the lawfulness of the applicants’ continued detention; that is, its reasonableness in the sense of it remaining appropriate and just. This is because neither procedure enables the court to make a judgment based effectively on the merits of the detention.
(ii) That the continued detention of the applicants has not been lawful because the laws, rules and/or procedures under which they have been held are neither accessible nor precise and do not therefore guard against the risk of arbitrariness.
(iii) That, as to the length of detention, the period is unreasonable

14. What is or is not – in every case – a reasonable period of administrative detention is to be determined within the context of the limitations placed on the statutory power to detain pending removal. As was said by the Privy Council in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1997] AC 97, at 111 :

“Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain ‘pending removal’ their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.”

15. It is the assertion of the applicants that, applying what are now called the Hardial Singh principles, their periods of detention have been unreasonable.

Release from detention

16. It is important to record that, when the hearing commenced before me, all four applicants had either been released on recognisance or had secured bail. None remained in detention. But that being said, their freedom is not absolute. It remains circumscribed by the conditions of their recognisances or bail.

17. As to other claimants in detention, although the Director of Immigration has released on recognisance the great majority of them, I am informed that in March of this year about 130 claimants remained in custody. In addition, given the recent history of claims made under the Convention, it is almost inevitable that there will be more claims made by persons who are being detained pending their deportation or removal.

18. The issues raised in these consolidated applications are therefore of considerable importance. The right of an individual not to be held in detention except by authority of law is a fundamental principle of our law which applies to all persons including immigration detainees.

19. In the circumstances, aside from the public importance of the issues raised and the fact that, if not determined now, they will have to be determined in the near future, I am satisfied that the applicants, although now released from custody, retain their standing in respect of the different remedies sought by them.

Background

20. Each of the four applicants in these consolidated applications come from countries which in recent years, to a greater or lesser degree, have undergone periods of violent internal conflict. The applicant, ‘A’, is from Algeria. The applicants, ‘AS’ and ‘F’, are from Sri Lanka. The applicant, ‘YA’, is from the West African state of Togo.

21. Concerning the applicant, ‘A’, the evidence reveals that on 14 June 2006, while he was in administrative detention, he submitted a written request to be interviewed so that he could make a claim under the Convention Against Torture. In his letter he said he could not be returned to Algeria because he would be tortured or killed. A chop mark shows that the letter was formally received by the Immigration Department on the following day; that is, on 15 June 2006.

22. On 15 June 2006, without knowing that ‘A’ had submitted a request to be interviewed for the purpose of making a claim under the Convention, the Assistant Director of Immigration signed a removal order pursuant to s.79(1)(b)(ii) of the Immigration Ordinance requiring ‘A’ to leave Hong Kong on the grounds that he had contravened his conditions of stay by overstaying for approximately two and a half years.

23. On 17 June 2006, a notice of removal was served on ‘A’. The notice informed ‘A’ that his detention in custody had been authorised pending his removal to Algeria. That authorisation was in terms of s.32(3A) of the Immigration Ordinance.

24. In respect of ‘A’, the submission was made that the Director served a removal order on him after he had already made a claim under the Convention. In short, it was submitted that, at a time when the Director was under an obligation in law not to remove ‘A’ from Hong Kong, he served an order on him requiring his removal. It appeared to be suggested that, although not in contravention of any statutory bar, this amounted to an abuse of process. I do not agree. There was no evidence that it was intended as some sort of improper device. Nor, in my view, can it be said that, by making his claim before being served with his removal order, ‘A’ had a right in law not to be served thereafter with such an order and not to be detained pursuant to that order.

25. In respect of the remaining applicants, it is accepted that their claims under the Convention were made after they had been served with orders requiring their physical removal from Hong Kong.

26. As to deportation from Hong Kong, ss.20(5) and (7) of the Immigration Ordinance provide that :

“(5) A deportation order shall require the person against whom it is made to leave Hong Kong and shall prohibit him from being in Hong Kong at any time thereafter or during such period as may be specified in the order.

(6) …

(7) A deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.”

27. As to removal from Hong Kong, s.19(1) of the Ordinance requires the person against whom an order is made to leave Hong Kong . S.19(4) is to the same effect as s.20(7), stating that :

“A removal order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.”

28. As to both deportation and removal, s.25 of the Ordinance makes provisions for how physical removal from Hong Kong to a ‘specified country’ may be accomplished. A ‘specified country’ is not only a country of a person’s citizenship. S.2 of the Ordinance defines the phrase as meaning a country or territory —

(a) of which a person who is to be removed from Hong Kong is a national or a citizen;

(b) in which that person has obtained a travel document;

(c) in which that person embarked for Hong Kong; or

(d) to which an immigration officer or immigration assistant has reason to believe that that person will be admitted;”

29. In terms of the Ordinance, therefore, orders of deportation and removal are limited to requiring the person who is the subject of the order to leave Hong Kong, his permission to remain being invalidated. The destination of that person may be to any ‘specified country’. Accordingly, if it is established that, if returned to his country of citizenship, he faces a risk of torture, that person may be removed to another ‘specified country’.

30. The Ordinance does not require that a deportation or removal order, once served, must immediately, or with a specified number of days, be executed. Under ss.54 and 55 of the Ordinance, the Chief Executive has the power to suspend a deportation order or to rescind it. The power to rescind does not effect the power to make a new order. There is no express power under the Ordinance to suspend or rescind a removal order. However, the Ordinance makes provision for an appeal against any removal order : see s.19(5). It also expressly prohibits the removal of a person until he is able fully to exercise his right of appeal.

31. In addition to being served with a deportation or removal order, the applicants in these proceedings were placed into administrative detention pending their physical removal from Hong Kong. The power to detain a person who is the subject of a deportation or removal order is provided for in the Ordinance. In this regard :

(i) In respect of deportation, s.32(3) says that :

“A person in respect of whom … a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.” [my emphasis]

(ii) In respect of removal, s.32(3A) is to the same effect. It says that :

“A person in respect of whom a removal order … is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.” [my emphasis]

32. A person who is detained pending his deportation or removal, may be released on recognisance : see s.36 of the Ordinance.

33. As to detention, therefore, it may only be for a single purpose; that is, pending a person’s deportation or removal. In this regard, s.32 makes a number of provisions and one qualification :

“(3B) Subject to subsections (3C) and (3D), where—
(a) person is being detained pending his removal from Hong Kong; and
(b) a request has been made to the relevant authorities of a place outside Hong Kong by the Government for approval to remove the person to that place,
for the purposes of detention under subsection (1), (3) or (3A), ‘pending removal’ includes awaiting a response to the request from those authorities.

(3C) For the avoidance of doubt, nothing in subsection (3B) shall be interpreted as giving authority under subsection (1), (3) or (3A) to detain a person for a purpose other than pending his removal from Hong Kong.

(3D) For the further avoidance of doubt, nothing in subsection (3B) shall prevent a court, in applying subsection (4A), from determining that a person has been detained for an unreasonable period.

(4) Notwithstanding subsections (1), (1A), (2), (2A), (3) and (3A), a person who is to be removed from Hong Kong under section 18 or 13E or in respect of whom a removal order or a deportation order is in force may be detained—
(a) under the authority of the Secretary for Security for not more than 28 days; and
(b) by order of a court on the application of the Secretary for Justice for further periods, not exceeding 21 days upon any one application,
for the purpose of giving evidence at the trial of any offence or of facilitating inquiries into any offence or suspected offence.

(4A)    The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person’ detention including, in the case of a person being detained pending his removal from Hong Kong—
(a)    he extent to which it is possible to make arrangements to effect his removal; and
(b)   whether or not the person has declined arrangements made or proposed for his removal.

34. The one qualification that I have referred to earlier is under s.32(4). It is to the effect that a person may be detained for the purpose of giving evidence at a criminal trial or to facilitate investigations into an offence. Clearly, detaining a person for such purposes is unconnected to his removal from Hong Kong.

35. As My Dykes pointed out, there is no provision in s.32, or elsewhere in the Ordinance, which provides for the detention of persons pending the determination of their claims under the Convention Against Torture. He contrasted this with Part IIIA of the Ordinance which contains a detailed statutory scheme for Vietnamese refugees.

36. In respect of the four applicants, their claims under the Covenant were based on the following assertions :

(i) ‘A’ made a claim that, if returned to Algeria, he would be tortured because of past dealings with a revolutionary group adhering to Islamic fundamentalism.

(ii) ‘AS’, an ethnic Tamil, made a claim that, if returned to Sri Lanka, he would be tortured or possibly killed by business associates who have connections with members of the Government.

(iii) ‘F’ made a claim that, if returned to Sri Lanka, he would be physically abused or possibly killed by the family of a deceased girlfriend, the family having connections with public officials and politicians.

(iv) ‘YA’ made a claim that, if returned to Togo, he would be tortured or possibly killed by the militia of a political party that he had opposed.

37. Art.3 of the Convention Against Torture – its full title being the 1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment – states that :

“1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

38. While the Convention Against Torture applies to Hong Kong, it has not been incorporated into domestic law. However, Government has adopted a policy which adheres to the safeguards provided by art.3 of the Convention. As to this policy, in an affirmation dated 28 March 2007, Mr Fung Ming Keung, an Assistant Principal Immigration Officer, said :

“It is the policy of the Government not to remove a torture claimant to the place or country where he alleges that he will be tortured until after the determination of his torture claim. But that does not mean that the Director has no intention of removing, or is unable or unwilling to remove, the Applicant. All it means is that the Director, in the exercise of his discretion, decides to withhold the removal pending the determination of the torture claim.”

39. As Mr Fung expressed it, each applicant in these proceedings has been detained pending his deportation or removal, subject only to the contingency that he may establish his claim under the Convention.

40. In its 1999 published guidelines on applicable criteria and standards relating to the detention of asylum seekers, the UNHCR said that, in its view, the detention of asylum seekers is ‘inherently undesirable’. Detention should be a measure of necessity. As to the position of the Hong Kong Government concerning detention of asylum seekers, in a briefing paper dated 18 July 2006, the Government advised the Legislative Assembly Panel on Security and the Panel on Welfare Services that —

“The fact that a person is a … torture claimant will not lead to that person’s prosecution or detention in Hong Kong. However, a person who is found to be in violation of our laws may however be liable to such enforcement actions. For example, persons who have entered Hong Kong illegally or breached their conditions of stay may be so liable under our law.

In the case of a person under detention in accordance with our laws who is also a … torture claimant, the Director of Immigration may on a case-by-case basis exercise his discretion to grant the person release on recognizance pending the determination of his claim …”

41. The problem, of course, is that the determination of a claim under the Convention, if it is to ensure the highest standards of fairness while ensuring a just result, cannot be achieved in a few days. As I have said earlier, claims are taking many months, sometimes several years, to resolve. During the course of submissions, I understood that a period of two years was not unusual.

42. In its judgment in Secretary for Security v. Prabakar [2005] 1 HKLRD 289, at 303, the Court of Final Appeal held that, in considering a claim under the Convention from a person facing deportation or removal, high standards of fairness must be followed. This is to be done, first, by ensuring that a claimant, who has the burden of establishing that there are substantial grounds for believing he will be in danger if returned, is given every reasonable opportunity to establish his claim; second, by ensuring that the claim is properly assessed and, third, if the claim is rejected, by giving reasons that are sufficient to enable the claimant to consider the possibilities of administrative or judicial review.

43. In its judgment, the Court of Final Appeal gave guidelines as to relevant matters which should be taken into account in properly assessing a claim. These include (para.52) :

“(1) The conditions in the country concerned: is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?”

44. Since the judgment in Prabakar there has been a startling increase in the number of claims made under the Convention by persons who are the subject of deportation or removal orders. From just a handful in 2005, the numbers have now increased, as I have said earlier, to some 860 claimants.

45. It would be naïve to think that all claimants are genuine. There will always be those who seek improperly to take advantage of the protections afforded by an international instrument such as the Convention. By way of illustration, as matters now stand, if a bad faith claimant secures his release on recognisance, he can expect to enjoy the opportunities provided to him in Hong Kong for well over a year. Tactical delays – for example, by not attending interviews – may increase that by several months. But, as against that, there will also be those who do have a genuine and rational fear for their future safety and for whom the protections afforded by the Convention offer their final hope of escaping the profound degradations that otherwise await them.

46. As to the determination of claims made under the Convention, this is achieved by way of an administrative process managed by and under the supervision of the Director. As to the nature of the administrative process, a three-page information document is given to all claimants. It explains the process of determination. It also makes plain that a determination favourable to a claimant will not bestow right of residence. In this regard, para.7 reads :

“In cases where the determination is in the favour of the claimant, he is not automatically entitled to remain in Hong Kong. The Director may at any time order the claimant’s removal/deportation/repatriation if in the Director’s view the claimed threat of torture diminishes and protection under the Convention is no longer substantiated. If at that time, or at any time, a safe alternative country where the claimant will be received is identified, the claimant is likely to be removed or deported to that country.”

47. The Government does not accept that art.3 of the Convention limits its ability in domestic law to execute deportation or removal orders but is content, it appears, to have its policy of adherence to the Convention treated as an enforceable legal duty. This position was clearly stated in Prabakar when the Court of Final Appeal made the following observations :

“In exercising the power to deport, the appellant, the Secretary for Security has adopted the policy of not deporting a person to a country where that person's claim that he would be subjected to torture in that country was considered to be well-founded. This policy in Hong Kong was stated in the report submitted by the People’s Republic of China in 1999 under the Convention.

The policy provides for the safeguard contained in art. 3(1) of the Convention Against Torture. Mr Pannick QC for the Secretary maintains that as a matter of Hong Kong domestic law, the Secretary has no legal duty to follow the policy. This is disputed by Mr Blake QC for the respondent. He argues that the Secretary is under such a duty on one of the following bases: the Basic Law, the Bill of Rights, customary international law and legitimate expectation. As the Court indicated at the outset of the hearing, it is unnecessary to decide this issue. For the purposes of this appeal, the Court will assume without deciding that the Secretary is under a legal duty to follow the policy as a matter of domestic law. In proceeding on the basis of such an assumption, the Court must not be taken to be agreeing with the views expressed in the judgments below that such a legal duty exists.”

48. In respect of the present case, I do not see that it has become necessary to decide whether a legal duty exists in domestic law and, if so, its source. It is sufficient I believe that a legal obligation is accepted.

Does an order of deportation or removal lose its validity when a claim under the Convention is made?

49. I have earlier – in paras.4-6 – outlined the submission made on behalf of the applicants that, when a person, who is subject to a deportation or removal order, makes a claim under the Convention, his right not to be removed until his claim is determined, is in direct conflict with the obligation imposed by a deportation or removal order to bring about that claimant’s physical removal. As Mr Dykes put it, the right not to be removed cannot co-exist with the obligation to remove. The right must prevail. Accordingly, the obligation must fall away which means that the order imposing the obligation must be rescinded.

50. I am unable to accept that submission. In my judgment, the provisions of the Immigration Ordinance are capable of accommodating both the right to make a claim under the Convention and the concurrent obligation imposed on the authorities to bring about the claimant’s removal.

51. It is important, I think, to understand the fundamentals. When a claim under the Convention Against Torture is made by a person who is subject to an order of deportation or removal, that person is saying simply : “If you must remove me from Hong Kong, do not remove me to a particular country because in that country I am at substantial risk of being tortured and I have a right not to be placed in such danger”. The Director, for his part, in recognising the claimant’s right, is saying : “I still intend to remove you from Hong Kong. But, if I am satisfied that there is substance in your claim, then I will remove you to a country where you are not at risk of torture or, if that is not possible, I will delay your removal until conditions change in the country where you are at risk.”

52. In respect of the Director’s position, in his affirmation of 28 March 2007, Mr Fung Ming Keung explained that, even if a claim under the Convention is established by a claimant, his physical removal from Hong Kong may still take place :

“For a torture claimant who has established his claim, he will not be removed to the country where there are substantial grounds for believing that he would be in danger of being subjected to torture. However, his removal to another country to which he may be admitted without the danger of being subjected to torture will be considered. Furthermore, if subsequent changes in the relevant country’s conditions are such that a torture claim established earlier in respect of that country can no longer be substantiated, removal to that country will be considered.”

53. While the service of a deportation or removal order may impose an ‘immediate’ obligation to bring about the physical removal of the person who is the subject of the order, I read nothing in the Immigration Ordinance which imposes an obligation to bring about an ‘immediate’ removal. Indeed, the Ordinance plainly contemplates that it may not be possible to bring about immediate physical removal. By way of illustration, a person who is the subject of a deportation or removal order may be released on recognisance : see s.36. A deportation order itself may be suspended : see s.54. It is also provided that a person who is served with a removal order may appeal that order and may not be removed until all rights in this regard have been exhausted : see s.19(5). These provisions reflect legislative awareness of the fact that there may be reasons why, even though the intention remains to effect removal, it may not be possible to do so without delay.

54. In my judgment, in terms of the Ordinance, the purpose of a deportation or removal order is, of course, to bring about the physical removal from Hong Kong of the person upon whom the order has been served. But the legislative provisions both state and imply that the removal is subject to that person’s legal rights and legitimate interests.

55. When I speak of ‘legal rights’, I speak not only of those rights provided for in the Ordinance but of broader rights to challenge the lawfulness of a deportation or removal order. For example, in addition to the right to appeal an order of removal, a person may institute judicial review proceedings which explore the legality of process bringing about the order including whether the decision to make the order was arbitrary. It speaks for itself, of course, that the exercise of such ‘legal rights’ may take up a considerable period of time.

56. When I speak of ‘legitimate interests’, I refer to any interest which on the part of the authorities it would be perverse or arbitrary to ignore. I refer, for example, if taken ill, to be suitably treated before being removed. I also refer, by way of further example, to the interest not to be returned to a country if current conditions in that country present a real danger because of civil war, famine or some similar catastrophe. Again, it speaks for itself that the recognition of such ‘legitimate interests’ may take up a considerable period of time.

57. How then is a claim under the Convention Against Torture to be classified? I do not think it matters whether it is classified as a legal right to challenge one possible manner of execution of an order or whether, because of the policy adopted by Government, it is recognised as embodying certain legitimate interests. The result is the same. In my judgment, the exercise of the legal right or the recognition of the legitimate interest cannot, by that fact alone, itself strip the relevant order of its validity.

58. As I have indicated earlier, I do not see that a claim under the Convention constitutes a challenge to the lawfulness of a deportation or removal order, both of which require only a person’s removal from Hong Kong. It seems to me to be a challenge going to the Director’s powers under s.25 of the Immigration Ordinance to effect removal to a specified country. That being the case, I do not see how it can be said that the making of a claim under the Convention somehow strips a deportation or removal order of validity or somehow imposes a legal obligation to rescind such an order. But even if I am wrong in that regard, a challenge remains merely a challenge and does not of itself deprive an order of validity. Put simply, an order of deportation or removal remains valid until found to be otherwise by a court.

59. In this last respect, in Thang Thieu Quyen and Others v. Director of Immigration [1998] 2 HKLRD 179, the Court of Final Appeal looked to the lawfulness of the detention of certain persons under s.32(1)(a) of the Immigration Ordinance which then provided that : “A person who is to be removed from Hong Kong under section 18 or 13E … may be detained until he is so removed, …” The persons detained had instituted judicial review proceedings to challenge the lawfulness of their removal orders. It was argued on their behalf that, as their removal was now no longer imminent, they could not lawfully be detained under s.32(1)(a). The Court disagreed. It held as follows :

“There are valid removal orders under section 13E(1). True it is that the removal orders are under challenge, leave to apply for judicial review having been granted. But they remain valid unless and until successfully challenged. That being so, the applicants can be lawfully detained under section 32(1)(a) as persons who are to be removed from Hong Kong under section 13E.” [my emphasis]

The court went on to say :

“ The current detention is for a period necessary to effect removal. Removal is possible within a reasonable time and it is not alleged that the Director has failed to take reasonable steps to ensure that that will be done. Indeed, the Director wishes to and is able to implement the removal orders and there is no practical obstacle to removal … What has held up removal is the judicial review challenge by the applicants and not any act or omission on the part of the Director.”

60. This, however, does not finally determine the matter. As I understood Mr Dykes, it was his contention that, in terms of the Immigration Ordinance, the determination of a claim made under the Convention amounts to determining whether the claimant may or may not stay in Hong Kong pursuant to the provisions of s.11 of the Ordinance.

61. In this regard, ss.11(1A) and (2) of the Ordinance provide :

“(1A) An immigration officer or immigration assistant may, on the examination under section 4(1)(b) of a person who by virtue of section 7(2) may not remain in Hong Kong without the permission of an immigration officer or immigration assistant, give such person permission to remain in Hong Kong but an immigration officer only may refuse him such permission.

(2) Where permission is given to a person to land or remain in Hong Kong, an immigration officer or immigration assistant may impose—
(a) a limit of stay; and
(b) such other conditions of stay as an immigration officer or immigration assistant thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case.”

62. So that the statutory scheme may be understood in context, s.4(1)(b) of the Ordinance reads :

“For the purposes of this Ordinance, an immigration officer or immigration assistant may—

(a) …

(b) examine a person at any time if he has reasonable cause for believing that such person is contravening or has contravened a condition of stay in respect of him, or remains in Hong Kong without the permission of an immigration officer or immigration assistant …”

63. A claim made under the Convention, said Mr Dykes, being, in terms of the Ordinance, a claim under s.11, cannot be regarded as any sort of claim going to whether the claimant should be removed from Hong Kong. To the contrary, it was for the purpose of determining whether he should be allowed to remain.

64. I do not agree. In my judgment, as I have indicated earlier, a claim under the Convention does not go to the lawfulness of a deportation or removal order, it goes rather to the lawfulness of the manner of execution of such an order pursuant to s.25 of the Immigration Ordinance. A claim under the Ordinance is not a claim to remain in Hong Kong, it is a claim not to be removed to a particular country while conditions continue to prevail in that country which place the claimant at risk of torture.

65. In the circumstances, I do not accept that the deportation or removal orders served upon the four applicants either lost their validity in law or fell to be rescinded by the Director of Immigration by the mere fact that the applicants lodged claims under the Convention Against Torture.

Does a claim under the Convention change the purpose for continued detention, one that is not within the contemplation of the Ordinance?

66. Under ss.32(3) and (3A) of the Ordinance, a person may only be detained ‘pending his removal from Hong Kong’. If a statutory power is conferred for a purpose, it may only be exercised for that purpose. Mr Dykes submitted that, having made their claims under the Convention, the applicants’ continued detention could no longer be for the purpose of removing them from Hong Kong but had to be for some other purpose, a purpose not contemplated by the Ordinance.

67. How then is the phrase ‘pending his removal from Hong Kong’ to be interpreted? In that phrase, the word ‘pending’ is employed as a preposition. As such, the Shorter Oxford English Dictionary (5^th Ed.) defines it as meaning ‘until’ or ‘while awaiting’.

68. That certainly was the meaning given to the word by Kaplan J, as he then was, in his 1991 judgment in Bu Xue Bun v. Director of Immigration [1991] 2 HKC 609. The facts of the case are simple enough. On 9 December 1991, the applicant flew into Hong Kong. She was arrested and charged with immigration offences including use of an unlawfully obtained travel document. Two days later, on 11 December 1991, she was served with a removal order and an order for her detention issued under s.32 of the Immigration Ordinance ‘pending removal’. The following day, on 12 December 1991, the applicant pleaded not guilty before a magistrate to the criminal charges brought against her and was given a trial date of 28 January 1992. The applicant brought habeas corpus proceedings. It was contended that detention under s.32 was intended only for temporary detention, pending removal, but that the order was now being used for long-term detention and was therefore unlawful. Kaplan J rejected the argument :

“It seems to me that s 32 must be intended to cover situations like this because if it was not, one would have an extremely absurd situation that by merely pleading not guilty and putting off the day on which the case would come on, people would be able to argue that s 32 did not cover them, and they could not be detained under that section. I do not think that is what the legislature had in mind and I am quite satisfied that s 32 is intended to detain people until they are to be removed. This lady will no doubt be removed when her criminal case has been determined.” [my emphasis]

69. In the later case of Chieng A Lac and Others v. Director of Immigration (1997) 7 HKPLR 243, at 254, Keith J, as he then was, came to the same conclusion. In that judgment, he was looking to the use of the phrase in s.13D(1) of the Immigration Ordinance, a section concerning Vietnamese asylum seekers :

“Ms. Li argued that since the power [of detention] is exercisable ‘pending [the asylum-seeker’s] removal from Hong Kong’, the power cannot be exercised for any purpose other than to facilitate his removal from Hong Kong. This argument assumes that the words ‘pending [the asylum-seeker’s] removal from Hong Kong’ mean ‘in order to facilitate the asylum-seeker’s removal from Hong Kong’.

This is where I find myself in fundamental disagreement with Ms. Li’s argument. In my view, the purpose of the power of detention was not to facilitate the asylum-seekers’ removal from Hong Kong, but to ensure that they remained in detention while attempts were made to effect their removal from Hong Kong. In other words, I read the words ‘pending [the asylum-seeker’s] removal from Hong Kong’ as meaning ‘until the asylum-seeker’s removal from Hong Kong.”

70. I agree with Keith J. The phrase ‘pending his removal from Hong Kong’ means ‘until his removal from Hong Kong’ or ‘while awaiting his removal from Hong Kong’.

71. I have earlier referred to the judgment of the Court of Final Appeal in Thang Thieu Quyen and Others v. Director of Immigration in which the Court held that an order of removal remains valid until successfully challenged. That being so, detention authorised pursuant to that order remains valid too.

72. I accept, of course, that, as matters stand, individual claims under the Convention are, by and large, taking a considerable period of time to be determined. But that is not to say that all claims inevitably are taking a considerable period. I do not see therefore that any general rule can be drawn from difficulties encountered in individual cases, even if they amount to the majority of cases.

73. In R (on the application of I) v. Secretary of State for the Home Department [2002] EWCA Civ 888, Simon Brown LJ said the following :

“That a prolonged period of detention pending the final resolution of an asylum claim is sometimes permissible cannot be doubted: Chahal -v- United Kingdom (1996) 23 EHRR 413 illustrates the point well. The applicant was a Sikh separatist leader detained in custody for the purpose of deportation for some 3½ years (until the House of Lords’ final refusal of leave to appeal). The reason for his long detention pending removal, however, was because the Secretary of State regarded him as a threat to national security; but for his asylum claim there would have been no difficulty in returning him; on the contrary, the Indian government were anxious to secure his return.

What Chahal illustrates is that a detained asylum seeker cannot invoke the delay necessarily occasioned by his own asylum claim (and any subsequent appeal(s)) to contend that his removal is clearly ‘not going to be possible within a reasonable time’, so that he must be released.”

74. Removing those observations into the present context, it seems to me that a claimant under the Convention cannot invoke the fact that the claim must be investigated to contend that he is therefore no longer being held pending his removal and must be released.

75. The following, in my view, may be drawn from these authorities :

(i) In terms of the statutory scheme, ‘pending removal’ is not to be read as meaning detention for a limited period for the single purpose of facilitating removal. It is to be read more broadly as meaning that a person who is the subject of an order of deportation or removal may be detained until he is removed or while he awaits his removal.

(ii) By providing that a person may be detained until or while awaiting his removal, the legislature has recognised that there may be reasons why removal may have to be delayed.

(iii) A challenge or claim under law is one of those reasons.

(iv) But a challenge or claim of itself does not invalidate an order of deportation or removal. The order remains valid unless successfully challenged and an order of detention pursuant to it remains valid too.

(v) If an order of deportation or removal remains valid, it means that the purpose of the order pursuant to the Immigration Ordinance remains unchanged. That purpose is to bring about the physical removal of the person who is the subject of the order.

(vi) That being the case, an authorisation to detain remains for the same purpose; namely, so that the person may be held until or while awaiting his removal.

76. In summary, even though a claim under the Convention has been made, if the Director still intends to effect the removal of a claimant, the only contingency being the date and manner of that removal, then, in my view, detention remains for the purpose of effecting removal.

77. I therefore reject the contention that the making a claim under the Convention by a person who is detained pending his removal changes the nature of his detention and, by that change, becomes unlawful.

78. It may be, of course, that in individual cases a person is held for a period of time that, in the circumstances, becomes unreasonable and therefore, having regard to the Hardial Singh principles, unlawful. But that is a different issue, one to which I shall now turn.

Once a claim under the Convention is made, is continued detention incompatible with art.5 of the Bill of Rights?

79. Art.5(4) of the Bill of Rights provides that :

“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

80. Art.5(4) requires therefore that a person held in detention pending his removal from Hong Kong has the right to appear before a court so that the court may, without delay, review the lawfulness of his detention and, if it is found not to be lawful, order his release.

81. ‘Lawfulness’ in this context means more than simply in accordance with the letter of statutory provisions. It includes broader concepts, one being the concept of arbitrariness. As such, administrative detention which is inappropriate and/or unjust is unlawful.

82. Equally, detention which does not accord with the Hardial Singh principles of reasonableness is unlawful. As Auld LJ put it in R (on the application of Q) v. Secretary of State for the Home Department [2006] EWHC 2690 (Admin), ‘lawfulness’ in this context is to be informed by ‘the case-sensitive consideration of reasonableness in all the circumstances’.

83. The importance of the Hardial Singh principles has been stated in the clearest of terms by Keith J in Chieng A Lac v. Director of Immigration (supra), page 274 :

“The Hardial Singh principles constitute the checks and balances recognised by our system of law to prevent abuse of the exercise of a statutory power of detention. Indeed, the Hardial Singh principles are far wider than the limited power to grant immigration parole conferred on the Attorney-General of the United States. The Hardial Singh principles represent a comprehensive and coherent code for ensuring that the detention of an asylum-seeker is not, and does not become, arbitrary. They also represent a sufficient and satisfactory regime for determining whether, by reason of its length and purpose, the detention of an asylum-seeker in Hong Kong amounts to cruel, inhuman and degrading treatment.”

84. An example of the practical application of the Hardial Singh principles is to be found in the judgment of Godfrey J, as he then was, in Liew Kar Seng v. The Governor-In-Council [1989] 1 HKC 215. An order of deportation was made requiring Mr Liew to be removed from Hong Kong. It was believed that he was a Malaysian citizen and that Malaysia would accept him. However, the Malaysian authorities did not accept that he was a citizen. An impasse was reached. Having been in detention pending his removal since 31 October 1988, on 10 December of that year Mr Liew applied for a writ of habeas corpus and for judicial review. Godfrey J granted the writ of habeas corpus, saying :

“A power to detain a person who is the subject of a Deportation Order ‘pending his removal’ from Hong Kong means just that. If the authorities say: ‘we will not remove the detainee’ or ‘we cannot remove the detainee’ or ‘heaven knows when we will be able to remove the detainee’ then, in my judgment, they cease to hold the detainee ‘pending his removal’ and the court can and should intervene to secure his release from detention.

But if the authorities say ‘We are sorry; we cannot remove you just at the moment but we are doing our best to do so’ then, in my judgment, they continue to hold the detainee ‘pending his removal’; and the court cannot and should not intervene unless it considers that there is no real prospect of the authorities ever succeeding within what, in all the circumstances of the case, the court considers a reasonable time, in deporting the detainee. It will occasionally happen that the best that the authorities can do is simply not good enough. If, after what, in all the circumstances of the case, is a reasonable time, the suthorities have tried their best and failed, the matter cannot be allowed to rest there; for otherwise the detainee could remain in detention indefinitely, even for the whole of the rest of his life. No civilized system of jurisprudence could permit that. The power of detention is given to the immigration authorities only in order to enable the machinery of deportation to be carried out; and (like Woolf J in R v Governor of Durham Prison, ex parte Singh [1984] 1 All ER 983) I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose.”

85. Godfrey J continued by saying :

“In my judgment, once the authorities have had what, in all the circumstances of the case, is a reasonable time to resolve the matter, and yet (even though it be through no fault of theirs) the matter remains unresolved, then the detainee must be entitled to be released. This conclusion is dictated, as it seems to me, by an elementary understanding of the fundamental human rights of any individual in any civilized society, without any need to pray in aid any man-made law, whether national or international, valuable though such laws are as a protection against the abuse of power.”

86. The first challenge by Mr Dykes is to the effect that the only means open to the applicants to seek a review of the lawfulness of their detention is by way either of judicial review or habeas corpus, neither procedure, however, providing an appropriate mechanism for determining the lawfulness of the applicants’ continued detention; that is, its reasonableness in the sense of it remaining appropriate and just. As I have understood Mr Dykes, this is essentially because neither procedure enables the court to make a judgment based effectively on the merits of the detention as opposed to its broader legality.

87. In my judgment, however, without going into jurisprudential complexities as to how complete habeas corpus and judicial review may be, I believe that these two parallel jurisdictions are capable of adequately meeting the requirements of art.5(4) of the Bill of Rights. Indeed, although the decision of Godfrey J in Liew Kar Seng v. The Governor-In-Council came before the Bill of Rights, it is, in my view, a good practical example of how rights under art.5(4) are protected.

88. As a broad guide, habeas corpus is to be used when the challenge is to the power to detain and to its continuing lawfulness; for example, whether it accords with the Hardial Singh principles. Judicial review is to be used when the challenge goes to broader administrative decision-making which involves the exercise of discretion after weighing relevant factors.

89. I emphasise that the power of the courts is not limited to considering whether detention accords with statutory requirements and is lawful by that measure. The power is vested in the courts to consider the lawfulness of detention in accordance with the broader definition that I have spoken of. In short, if detention is found to be arbitrary or is found not to be reasonable in accordance with the Hardial Singh principles then it will be ruled unlawful.

90. I would observe that, in my judgment, what is arbitrary and what is unreasonable according to the Hardial Singh principles are in many respects very similar concepts, merging into each other. By way of illustration, in Fok Lai Ying v. Governor-In-Council [1997] 3 LRC 101, at 112, Lord Cooke cited with approval a decision of the United Nations Human Rights Committee to the effect that a remand in custody pursuant to lawful arrest, if it was not to be arbitrary, had to be ‘reasonable in all the circumstances’.

91. As to the standard by which the lawfulness of detention is to be judged, I am satisfied that, with the liberty of the subject at stake, the courts must act as primary decision-makers, taking into account all relevant circumstances.

92. In this regard, in Youssef v. Home Office [2004] EWHC 1884, Field J rejected the contention that the standard by which the legality of administrative detention should be judged is the Wednesbury standard. He held that, in determining the lawfulness of such detention the court had to be the primary decision-maker :

“Whilst it is a necessary condition to the lawfulness for Mr. Youssef’s detention that the Home Secretary should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to judged is the Wednesbury standard. I say this both because I can find nothing in the judgment of Woolf J. in Hardial Singh that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision-maker as to the reasonableness of the executive’s actions, unless there are compelling reasons to the contrary, which I do not think there are. Accordingly, I hold that the reasonableness of the Home Secretary’s view that there was a real prospect of being able to remove Mr. Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision-maker, just as it will be the court as primary decision-maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to effect a lawful return are taken in a reasonable time.”

93. In R (Karas) v. Secretary of State for the Home Department [2006] EWHC 747 (Admin), Munby J adopted the reasoning of Field J.

94. The foundation of the reasoning of both Field J and Munby J is not to be found in jurisprudence of the European Court but in the common law principles enunciated by Woolf J in Hardial Singh, principles accepted as being part of Hong Kong law.

95. I would add that the English Court of Appeal appears also to have adopted a higher standard for determining the lawfulness of continuing administrative detention. In R (on the application of Q) v. Secretary of State for the Home Department, Auld LJ held that, in looking to the lawfulness of continued detention, the court was required to make a value judgment, taking into account ‘the length, circumstances and reasons’ for the detention. He continued by saying :

“Whatever the appropriate form of remedy to enable the Court to do justice in balancing the interests of the liberty of the subject and the national interest in a case such as this, the Court should no doubt form its own view on Hardial Singh lines whether, at the date of its decision on 3^rd October, this detention, is no longer lawful in the sense of being reasonably required to secure Q’s removal from the country.”

96. This is not to say, of course, that the reasons of the decision-making authority going to why continued detention has been authorised are not to be given due weight. Indeed, having regard to all the circumstances, a significant margin of discretion may have to be given to the decision-making authority. In Youssef v. Home Office, Field J recognised that —

“… when applying the approach I hold to be the correct one, the court ought in my opinion to have regard to all the circumstances and in doing so should make allowance for the way that government functions and be slow to second-guess the Executive’s assessment of diplomatic negotiations.”

97. The second contention of Mr Dykes went to the provisions of art.5(1) of the Bill of Rights, specifically to the guarantees that a person may not be subject to arbitrary detention and that there will be no deprivation of liberty except in accordance with procedures established by law.

98. Art.5(1) provides that :

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

99. Mr Dykes submitted that, if detention was to avoid the risk of being arbitrary, it had to be based on a rational, precise and accessible ‘policy’ of detention. He contended that, in detaining the applicants, the Director of Immigration had no such policy.

100. As to what is arbitrary, it is now well settled that it does not mean only ‘against the law’. It must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.

101. In the New Zealand authority of Neilsen v. Attorney-General [2001] 3 NZLR 433, at para.34, the term arbitrary (in respect of arrest and detention) was defined in the following terms :

“Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.”

102. In another New Zealand authority, Manga v. Attorney-General [2000] 2 NZLR 65, at para.44, this definition was qualified by saying that :

“lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality”

103. As to the requirement that, to avoid detention being arbitrary, it had to be based on a rational, precise and accessible policy, Mr Dykes made reference to the judgment of the European Court of Human Rights in Amuur v. France (1996) ECHR 25 in which the Court said the following (at page 50) :

“In laying down that any deprivation of liberty must be effected ‘in accordance with a procedure prescribed by law’, art.5-1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law … they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, it therefore falls to the Court to assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that where a national law authorises deprivation of liberty – especially in respect of a foreign asylum-seeker – it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness. These characteristics are of fundamental importance with regard to asylum-seekers … particularly in view of the need to reconcile the protection of fundamental rights with the requirements of States’ immigration policies.”

104. In his submissions, Mr Dykes spoke of a ‘policy’ of detention, the suggestion at times being to the effect that there should be a published policy document akin, for example, to the ‘Operation Enforcement Manual’ published by the immigration authorities in the United Kingdom. A failure to publish such a document, it was suggested, meant that detainees were denied access to knowledge of the determining principles upon which their detention was based and the procedures governing it. That in turn rendered their detention arbitrary.

105. In Ammur v. France, however, the European Court did not speak of the requirement for a published policy document. It spoke of the need to examine domestic law and ‘other legal rules’.

106. Mr Dykes also made reference to the judgment of the English Court of Appeal in Nadarajah v. Secretary of State for Home Department (2003) EWCA Civ 17688. But the ratio of that judgment, as I have read it, is that, having published a policy concerning the detention of immigration detainees, the Secretary of State may not ‘move the goalposts’ by applying some aspect of the policy that is not published. In this regard, the Court of Appeal said :

“It was known, because it was published, that imminent removal was one of the reasons for detaining an asylum seeker. The evidence is not clear as to how widely it was known that it was the policy of the immigration service not normally to treat removal as imminent once proceedings challenging the right to remove had been instituted, but those acting for both N and A appear to have proceeded on the basis that this was axiomatic, and it is reasonable to infer that this practice was generally known to solicitors specialising immigration work. What, on the evidence, was not known was that it was the policy of the immigration service, when considering the imminence of removal, to disregard information from those acting for asylum seekers that proceedings were about to be initiated, however credible that information might be.”

107. While I accept that the law, and legal rules made under it, must be adequately accessible, I do not see that this requirement obliges the Director to publish a detailed policy document.

108. It may, of course, be beneficial to do so, both for the immigration authorities and claimants under the Convention. It may give guidance to both parties, ensuring that both are aware of their obligations. A Convention claim after all does not create a one-sided responsibility. Just as the immigration authorities must act vigorously and fairly so that a just determination is made within a reasonable period of time so must claimants give their active co-operation to ensure that this is possible. The ideal may therefore be to publish a policy document so that both parties know where they stand. But I am not concerned with what is the ideal. I am concerned with what is sufficient to meet the requirements of law.

109. In considering the issues raised by Mr Dykes, it is necessary to place the circumstances of the applicants into context. First, each was served with a lawful order of deportation or removal. Second, each was detained pending his removal pursuant to the provisions of the Immigration Ordinance. Third, each made a claim under the Convention saying that if returned to a particular country he was at risk of being tortured.

110. As to their position in law, I have in this judgment concluded that the applicants’ Convention claims did not invalidate the applicable orders of deportation or removal. Nor did it change the nature of their detention; they remained detained pending their removal in accordance with the provisions of the Ordinance.

111. As to the issue in contention; that is, whether the detention of each of the applicants was inconsistent with their guaranteed protections under art.5(1) of the Bill of Rights and was arbitrary, I am satisfied that it was not inconsistent with their rights under art.5(1) and was not arbitrary. In coming to this conclusion, I have taken the following factors into account :

(i) The detention of the applicants had a clear basis in domestic law; namely, the relevant provisions of the Immigration Ordinance.

(ii) The power of detention conferred by the Ordinance is circumscribed. I have earlier looked to the manner in which it is circumscribed.

(iii) The exercise of the power of detention under the Ordinance must not only be in accordance with the terms of the Ordinance but must be in accordance with what the European Court has described as ‘the rule of law’. The legislative intent is that the power of detention must be exercised reasonably.

(iv) The Hardial Singh principles going to reasonableness set down guidance for the exercise of the power of detention. Keith J has described the principles as representing ‘a comprehensive and coherent code for ensuring that the detention of an asylum-seeker is not, and does not become, arbitrary’.

(v) As a code, the Hardial Singh principles are part of Hong Kong’s domestic law, they are accessible and precise in their ambit.

(vi) The courts have the power to review the conditions of detention to be assured that they are ‘reasonable in all the circumstances’ : see Fok Lai Ying v. Governor-In-Council (supra).

(vii) All orders of detention were served on the applicants so that they were aware of the provisions of the Immigration Ordinance under which detention was authorised. In addition, in making their claims under the Convention, the applicants were served with an information text explaining the process that lay ahead and what the Director considered their status to be in light of their claims. If the applicants wished to challenge the lawfulness of their detention – as they have done – they therefore had open to them sufficient information.

(viii) In any event, detention, once authorised, is not absolute. Claimants may be released on recognisance. Indeed, the evidence reveals that the great majority have made applications to be released and have been released. The evidence reveals that the applicants were themselves aware of the right to seek release on recognisance.

112. In light of these matters, I fail to see how it can be said that the laws, rules and procedures governing the detention of the applicants are devoid of adequate determining principles, are unjust or lack predictability. I also fail to see how it can be said that they are not accessible.

Has the period of detention of each applicant been unreasonable?

113. The Hardial Singh principles direct that the Director may only detain a person who is the subject of a deportation or removal order for that period of time which, in the circumstances of the case, is necessary to effect removal. When a claim under the Convention is made, the circumstances dictate that a period of time must be allowed for determination of that claim. The real issue, it seems to me, is what is to be considered an appropriate; that is, reasonable, period of time.

114. I say that because, in accordance with the Hardial Singh principles, if it becomes clear to the Director that physical removal from Hong Kong is not going to be possible within that time then, as the law stands, further detention is not authorised. A claimant must be released.

115. In my judgment, it is not possible to set down some bright line figure – for example, six months from the date of making a claim – and to say that, whatever the circumstances, all claimants whose claims have not been finalised by that date must be released.

116. To do so, in my view, would invite an abuse of the system. Immigration officers, knowing it may be impossible to determine a claim in that period, will be tempted not to act with due vigour to meet a deadline which is unobtainable. Bad faith claimants will know that, if they prevaricate long enough, however, vexatious their claim, they will be allowed back into Hong Kong society.

117. In any event, each and every claim is unique just as the circumstances of each and every claimant are unique. Accordingly, what is a reasonable period of time is to be judged in respect of each case according to the particular circumstances of that case.

118. In exercising his discretion whether to continue detention or to authorise release, the Director must take into account a wide range of matters. Clearly, one of the principal matters will be the progress of a claim made under the Convention. If the claim has been decided or is very close to decision, that may well be a determining factor. Removal then will be imminent. If the claim has not progressed because, despite best attempts, it has not been possible to obtain relevant information from outside of Hong Kong and it appears that it will not be possible to obtain that information in the near future, that too may be a determining factor, one that points towards immediate release. Equally, however, if a claimant, in the view of the Director, has been refusing to co-operate in forwarding a claim, that too may be a consideration of importance, especially if it is allied to the fact that the claimant has a history of disregard for Hong Kong’s immigration laws and procedures. In summary, whether a claimant should or should not be released at a particular period of time, is a decision which must, to a greater or lesser extent, be influenced by the progress of a claim and factors influencing that progress.

119. The difficulty that I have faced in respect of each of the applicants is that, frankly, insufficient relevant information was placed before me to enable me to come to a decision in accordance with the Hardial Singh principles. As I have said earlier, by the time the hearing commenced, all of the applicants had been released from detention, either on bail or on recognisance. That being the case, the immediacy of determining the lawfulness of continued detention fell away. Mr Dykes, for example, concentrated on the issues of law which were presented rather than on the factual circumstances going to each individual applicant. In light of the fact that all of the applicants were released from detention, the issue of the lawfulness of their detention became one to be viewed historically; that is, by determining, with regard to all relevant historical factors, whether, at any point in time prior to their actual release, if the Director acted lawfully, he should have authorised their release.

120. I have spent a considerable period of time considering the factual situation of the applicants. I am simply not in a position, however, to come to any clear determination as to whether any period of their detention was unlawful by being unreasonable in all the circumstances. To be able to come to such a determination, further information will have to be placed before me, especially information going to the progress of the applicants’ claims. Further argument will then be required. As matters stand, I am not prepared to come to a finding that any of the applicants were, or were not, unlawfully detained for any specific period of time and, if unlawfully detained, are entitled to damages.

121. Obviously, the applicants having all obtained their release when the hearing commenced before me, no purpose is served in making the orders that were sought requiring their release.

122. In the circumstances, if any of the applicants seek a ruling that they were for any period of time unlawfully detained and are entitled to damages, that will have to be determined in further proceedings. If required, relevant directions will be given in that regard.

Conclusion

123. For the reasons given in this judgment, I make the following orders in respect of the four applications.

124. ‘A’ :

(i) The application for an order of certiorari to quash the removal order dated 15 June 2006 is dismissed.

(ii) The application for an order of certiorari to quash the decision of the Director dated 17 June 2006 to continue detaining ‘A’ even though a claim had been made under the Convention is dismissed.

(iii) The applicant having been released from detention, and the issue of whether the full period of his detention was or was not lawful still being outstanding, no order will be made in respect of the application for orders of certiorari to quash the decisions of the Director not to release the applicant contained in his letters of 17 June and 6 and 17 August 2006. For the same reason, no order will be made as to whether the applicant is entitled to damages for unlawful detention.

(iv) The applicant having been released from detention, no order of mandamus requiring his release will be made.

125. “AS” :

(i) The application for a declaration that the detention of the applicant by the Director since 27 June 2005 was unlawful by virtue of not being a detention merely for the purposes of effecting his removal, such detention violating art.5 of the Hong Kong Bill of Rights, is dismissed.

(ii) The application for a declaration that the failure to rescind the deportation order of 23 May 2005 was contrary to the obligation to assess the applicants’ claim under the Convention Against Torture is dismissed.

(iii) The applications for orders of mandamus are dismissed.

(iv) The applicant having been released from detention, and the issue of whether the full period of his detention was or was not lawful still being outstanding, no order will be made in this respect. For the same reason, no order will be made as to whether the applicant is entitled to damages for unlawful detention.

126. ‘F’ :

(i) The application for a declaration that the detention of the applicant by the Director since 19 July 2005 was unlawful by virtue of not being a detention merely for the purposes of effecting his removal, such detention violating art.5 of the Hong Kong Bill of Rights, is dismissed.

(ii) The application for a declaration that the failure to rescind the removal order of 30 June 2005 was contrary to the obligation to assess the applicants’ claim under the Convention Against Torture is dismissed.

(iii) The application for an order of certiorari quashing the removal order of 30 June 2005 is dismissed.

(iv) The application in the alternative for an order of prohibition to prevent the execution of the removal order of 30 June 2005 is dismissed.

(v) The applicant having been released from detention, and the issue of whether the full period of his detention was or was not lawful still being outstanding, no order will be made in this respect. For the same reason, no order will be made as to whether the applicant is entitled to damages for unlawful detention.

127. ‘YA’ :

(i) The application for a writ of habeas corpus based on the assertion that, having made a claim under the Convention Against Torture, the continued detention of the applicant pursuant to s.32(3A) of the Immigration Ordinance was unlawful is dismissed.

(ii) Insofar as it may be relevant, the applicant having been released from detention, and the issue of whether the full period of his detention was or was not lawful still being outstanding, no order will be made in this respect. For the same reason, no order will be made as to whether the applicant is entitled to damages for unlawful detention.

128. As I understand it, the applicants are all legally aided. There will therefore be an order for taxation of their costs in accordance with Legal Aid Regulations. As to any further order for costs, I will, if necessary, hear from the parties.

129. There will be liberty to apply.

(M.J. Hartmann)
Judge of the Court of First Instance,
High Court

Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid, for Applicants in HCAL 100/2006 and HCAL 28/2007

Mr Philip Dykes, SC and Ms Ho Wai Yang, instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid, for Applicants in HCAL 10/2007 and HCAL 11/2007

Mr Anderson Chow, SC and Ms Grace Chow, instructed by Department of Justice, for Respondents in all cases

Appeals allowed with costs: see CACV314/2007, CACV315/2007, CACV316/2007 & CACV317/2007 dated 18 July 2008

\'A\' v. DIRECTOR OF IMMIGRATION

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