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CACV 8/2015
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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL
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CIVIL APPEAL NO. 8 OF 2015

(ON APPEAL FROM HCMP NO. 3094 OF 2013)

BETWEEN
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AKHTER RANA SHAHID

Plaintiff

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and
IMMIGRATION DEPARTMENT

1st Defendant

POLICE DEPARTMENT

2nd Defendant

SOCIAL WELFARE DEPARTMENT

3rd Defendant

LEGAL AID DEPARTMENT

4th Defendant

INTERNATIONAL SOCIAL SERVICE

(HONG KONG BRANCH)

5th Defendant

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Before: Hon Kwan and Chu JJA in Court

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Date of Hearing and Decision: 15 July 2016

Date of Reasons for Decision: 22 July 2016

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REASONS FOR DECISION

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Hon Chu JA (giving the Reasons for Decision of the Court):

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1. By summons issued on 9 May 2016, the 1 st to 4th defendants applied for

security for their costs in this appeal brought by the plaintiff against the

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decision given by Chow J (the Judge) on 22 December 2014. At the

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hearing of the application, we granted the application. Our reasons appear

below.

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HCMP3094 of 2013

2. By a previous order dated 17 November 2015, this court granted a similar

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application by the 5 defendant, and ordered the plaintiff to give security

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for the 5th defendants costs of the appeal in the sum of $60,000 within 28
days. Upon the plaintiffs failure to comply with the order, the plaintiffs

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appeal against the 5th defendant was dismissed.

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3. In our decision given on 17 November 2015, we had set out the

background of the plaintiffs claim against the defendants in the action

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below (HCMP 3092 of 2013), and the litigation history (see 3 to 8). We
will not repeat them here.

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The1st to 4 defendants application

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4. By letter dated 1 January 2016, the 1 to 4 defendants requested the

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plaintiff to provide security for costs of the appeal and enclosed a skeleton
bill of costs. The plaintiff has not replied to it.
5. By their summons filed on 9 May 2016, the 1st to 4th defendants apply for
orders that: (1) the plaintiff provides within 28 days security for their costs

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of the appeal in the sum of HK$99,951; (2) all proceedings in this appeal in
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relation to the 1st to 4th defendants be stayed until the plaintiff has provided

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the security; (3) dismissal of the appeal against the 1 to 4 defendants with
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costs in the event the plaintiff fails to provide security as ordered; and (4)
costs of the application. The application is made on the basis that the

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plaintiff is impecunious and has no ability to meet any costs order that may
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be made against him in this appeal.

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6. The 1 to 4 defendants had in fact filed affirmation in the 5 defendants

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application for security for costs to provide information supporting the 5 th

defendants contention that the plaintiff is impecunious.
7. By letter dated 30 June 2016, the plaintiff requested to adjourn the present
application for five years, referring to financial and other difficulties he has

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encountered while staying in Hong Kong. The request was refused as there
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was no proper ground to adjourn the application.

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The applicable legal principles

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8. Under Order 59 rule 10(5) of The Rules of the High Court, Cap. 4A, the
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Court of Appeal may, in special circumstances, order that such security

shall be given for the costs of an appeal as may be just.
9. The legal principles relevant to an application for security for costs have
been set out in our decision dated 17 November 2015 (see 14 and 15),

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which we need not repeat.

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The plaintiffs impecuniosity

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10.The 1 to 4 defendants rely on the following matters as showing the

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plaintiff is impecunious and will be unable to pay the costs of the appeal if

he is unsuccessful:
(1) The plaintiff is an asylum seeker and is not permitted to take

up employment while in Hong Kong.

(2) The plaintiff is admittedly destitute and heavily in debt.
(3) The plaintiff fails to respond to the 1 st to 4th defendants

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proposal as to payment of their costs ordered in the action

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below, and that the plaintiff stated in a letter to the Chief

Executive dated 19 October 2015 that he owed debts to the

tune of some HK$400,000.

(4) The plaintiff fails to provide security for the costs of the 5 th

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defendant of the appeal as ordered by this court.

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11.The plaintiff was absent at the hearing. He has not filed any evidence to

dispute the 1st to 4th defendants case that he is impecunious and cannot pay
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any costs ordered against him if his appeal was unsuccessful.

12.On the materials available before the court, we are satisfied that there are
special circumstances for ordering security for costs against the plaintiff in
that the plaintiff, through impecuniosity, will be unable to pay costs ordered
against him, if his appeal was unsuccessful, and/or the 1 st to 4th defendants
will be put to undue difficulty in enforcing any costs order against the
plaintiff.
The merits of the plaintiffs appeal
13.We will next consider the merits of the plaintiffs appeal so as to see
whether this may amount to countervailing factor militating against making
an order for security for costs. In this regard, it is neither necessary nor
desirable for us to embark upon a detailed examination of the arguments in

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the appeal: see Chung Kau v. Hong Kong Housing Authority & Ors at
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656D-G. We need only make a preliminary assessment of the strength of

the grounds of appeal.

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14.In his Notice of Appeal, the plaintiff asks that the Judges decision be set
aside and that compensation be ordered against the 1st to 4th defendants in

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the sum of HK$30 million. In the attachment to the Notice of Appeal, the
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plaintiff makes the following points against the 1st to 4th defendants:

(1) The Legal Aid Department combined the plaintiffs two legal
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aid applications for two compensation claims. The plaintiff

has only received compensation for unlawful detention, but not

for the injury to health claim.

(2) The Immigration Department unlawfully detained the plaintiff

on 12 September 2012 and closed his case for a CAT claim.

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The immigration officer(s) injured the plaintiffs health by

hiding his medical record when he was unwell and taken to see

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doctors at hospital and clinic(s), and not giving him his

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medicine. The plaintiffs home was burgled and money was

stolen from it. When he was detained by the Immigration
Department, somebody again broke into his home.

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immigration officer does not care even though the plaintiffs

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life is in danger at his home country.

(3) The Social Welfare Department did not give the plaintiff fee

waiver for seeing doctor on 29 September 2012, and damaged

his health by not providing him with basic assistance.

(4) All the defendants were helping each other to damage the

plaintiffs health and try to kill him.

They always create

troubles for him and give support to the 5th defendant by hiring
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people to kill him.

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15.The Judge had considered these points and rejected them for the reasons
that he gave in 8 to 20 of his Decision. The plaintiffs Notice of Appeal

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merely repeats the complaints, but has not identified any mistake in the
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Judges reasoning. It is, however, not the function of an appellate court to

reconsider the case afresh or to re-determine the defendants applications to

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strike out.
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16.In our view, the plaintiffs appeal has no prospect of success. There are
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also no other circumstances that would justify the court in not making an
order for security of costs against the plaintiff.
17.As regard the amount of security to be ordered, we have regard to the short

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history of the action below, the issues involved in the appeal, which are
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largely repetitions of matters already canvassed before the Judge, and that
very little paper is involved in the appeal. In our view, HK$60,000 will be

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a sufficient security for the 1st to 4th defendants costs in this appeal. The
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plaintiff will have 28 days from being served with the courts order to
provide the security by making payment into court.
18.As to costs of the two applications, applying the normal rule of costs follow
event, we order the plaintiff to pay the 1 st to 4th defendants costs of this
application for security for costs.

Dispositions
19.The orders we make are as follows:
(1) The plaintiff shall within 28 days from being served with this
order give security for the 1st to 4th defendants costs of this
appeal in the sum of HK$60,000, by making payment into
court of the said sum;

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(2) Until the plaintiff has given the security ordered in (1) above
and notice thereof is given to the 1st to 4th defendants solicitors
(such notice to be given on the same day as the lodgement is
made), all proceedings in this appeal are to be stayed as
against the 1st to 4th defendants;
(3) In default of the plaintiff giving security as ordered in (1)
above, this appeal do (upon the solicitors for the 1st to 4th
defendants certifying such default to the Registrar of High
Court) stand dismissed out of this court as against the 1st to 4th
defendants without further order;
(4) In the event that the appeal is dismissed in the circumstances
provided for in (3) above, the plaintiff shall pay the 1st to 4th
defendants the costs of this appeal, such costs to be taxed if not
agreed; and
(5) The costs of the 1st to 4th defendants application for security
for costs be paid by the plaintiff in any event.

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(Susan Kwan)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

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The plaintiff, unrepresented, absent.

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Mr Ko Man Kit Eric, Senior Government Counsel, of Department of Justice,

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for the 1st to 4th defendants.