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Asylum seekers in Asia

Judge chastises Hong Kong law firm handling bulk of city’s torture claims, for misconduct on five cases by asylum seekers

M. C. A. Lai & Co. found liable for costs incurred from adjournment; judge also warns against maintenance or champerty in such cases

PUBLISHED : Thursday, 25 August, 2016, 7:03am
UPDATED : Thursday, 25 August, 2016, 7:03am

A local law firm handling the majority of Hong Kong’s torture claims has drawn criticism from a District Court judge, who accused its lawyers of misconduct and of causing the adjournment of cases brought by five asylum seekers.

While stressing that the legitimate rights of foreigners seeking refuge are protected by law, judge Andrew Li Shu-yuk asserted in passing that offences related to maintenance or champerty would be tackled.

The former is where a third party intervenes to encourage a lawsuit, while the latter is when a person funds a case to win a portion of any compensation.

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In a ruling on claims for costs handed down on Wednesday, the judge found that lawyers from Messrs M. C. A. Lai & Co. had failed to submit all the documents for a pre-trial hearing last month as scheduled, which resulted in the adjournment of the cases of Mir Moazzam, Subhan, Rana Shahzad Ahmad, Ahmed Zaheer and Dhiman Jasvir.

The foreigners were seeking compensation for unlawful detention by the Immigration Department.

The law firm claimed that it missed the deadline because its lawyers, in handling these legally aided cases which were grouped in the same batch, had to wait for the instructions from the Legal Aid Department.

But Li found the argument “totally unconvincing”, adding that the firm could have taken the initiative in following up with the department.

“I find that the adjournment was caused by the misconduct, default and neglect on the part of [the firm],” the judge said.

The Immigration Department had incurred extra costs for preparing and attending the hearing, he added.

He said the law firm should be liable for such costs as a result of the adjournment, which was assessed at HK$60,233.

Lawyer Anthony Lai Man-chun, who represented the foreigners, could not be reached for comment on Wednesday.

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Four claims from the batch have been settled, leaving only one case to be heard on September 2.

Li said lawsuits filed under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment at the District Court had surged following a landmark ruling by the city’s top court in 2014.

The judge found that M. C. A. Lai & Co. was handling 450 out of a total of about 730 pending torture claims, or non-refoulement claims, at the District Court level. Non-refoulement refers to the practice of not forcing asylum seekers to return to a country where they might be persecuted.

Of those which were dealt with by the firm, only 212 cases were provided with legal aid, Li said, questioning how the remaining lawsuits were funded.

He distinguished his query from the present case however, while issuing a warning.

“[If] this court were to find any evidence of maintenance or champerty involved ... this court will have no hesitation to refer such cases to the appropriate authorities for investigation and further action,” Li said in his ruling.