Wealth 'relevant factor' in damages

PUBLISHED : Friday, 06 February, 2009, 12:00am
UPDATED : Friday, 06 February, 2009, 12:00am

Asylum seekers' claim for costs challenged

People with money and a home might deserve more compensation for losing their freedom than people who live in poverty, a government lawyer suggested yesterday.

Anderson Chow SC told a hearing in the Court of First Instance that any damages paid to a man who had been illegally detained in Hong Kong should reflect his background, and the living conditions he would have had if he had not been detained.

The unidentified man had once lived in a West African refugee camp.

Mr Chow's remark drew stunned looks from lawyers for a group of asylum seekers who had sued the government after its immigration detention policy was ruled unlawful last year.

'You're saying having a prison cell is like heaven for [that person]?' asked Mr Justice Andrew Cheung Kui-nung.

'I'm not suggesting that for a moment,' Mr Chow replied.

'So suppose a person was living in degrading conditions ... and a prison cell offered better conditions, you say there is no loss?' Mr Justice Cheung said.

'It is a mitigating factor' when calculating damages, Mr Chow said.

Mr Justice Cheung then asked whether a person who lived in a house was entitled to a higher damages award.

That would be a 'relevant factor', Mr Chow replied.

'You compare the before and after situations,' he said. 'That is the true comparator.'

Four asylum seekers, from West Africa, Algeria and Sri Lanka, should be paid about HK$60,000 for the time they spent in detention, Mr Chow said. Their lawyers had asked for damages ranging from HK$280,000 to more than HK$1 million depending on the length of incarceration.

The group was at the centre of a landmark Court of Appeal ruling last summer, which found that the city lacked a clear set of rules to explain why about 400 asylum seekers had been detained.

At least 200 claimants have been released since the ruling in July and the government has amended its detention policy, although critics still say it is flawed.

Mr Justice Cheung's ruling may set the benchmark for damages awards in future lawsuits for unlawful detention.

The judge reserved his decision yesterday.

Earlier, barrister Philip Dykes SC argued that the government's immigration policy had been marred by 'inaction, indifference and bumbling incompetence'.

Another court ruling in December found that the city had violated its international obligations to assess asylum seekers' claims fairly, Mr Dykes argued.

Mr Justice Cheung should also consider that the government had refused to apologise for its policy, he added.

'The lack of an apology is material,' Mr Dykes said. 'It would not cost the Hong Kong government anything to say it acknowledges mistakes that were made in the past. That aggravates the situation.'

Mr Chow countered that the government's policy had not been the sort of 'outrageous or malicious' conduct required for any unusually large damages award.

'It must be so outrageous that it deserves condemnation and punishment,' he said. 'The conduct here ... did not fall within that description.'