LA/M/17414/2012(DP28)

DCCJ /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. OF 2013

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

BETWEEN

ABDUL RASUL MUHAMAD JIFEEN Plaintiff

and

SECRETARY FOR JUSTICE

for and on behalf of

DIRECTOR OF IMMIGRATION Defendant

_______________________________________________________________

STATEMENT OF CLAIM

_______________________________________________________________

THE PARTIES

1. The Plaintiff is and was at all material times:-

1.1. an asylum seeker; and

1.2. a torture claimant under Article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) is
still under processing by the Director of Immigration.

1
2. The Secretary for Justice is made the defendant herein pursuant to sections 4 and
13(1) of the Crown Proceedings Ordinance, Cap. 300 read together with section
2 of Schedule 8 to the Interpretation and General Clauses Ordinance, Cap. 1.

THE PLAINTIFF'S ARRIVAL IN HONG KONG

3. On or about 5th August 2005, the Plaintiff arrived in Hong Kong legally from
mainland China and was granted a visa for 1 month.

4. On 18th September 2006, the Plaintiff was arrested by the Hong Kong Police for
the alleged offence of “overstaying”.

5. On or about 26th September 2006, the Plaintiff made a torture claim application
under the Convention Against Torture.

THE PLAINTIFF’S TORTURE CLAIM

6. By a letter dated 20th September 2006, the Plaintiff lodged with the Director of
Immigration (“the Director”) a claim under Article 3 of CAT.

7. On 18.7.2008, the Court of Appeal handed down its judgment in A (Torture

Claimant) v Director of Immigration [2008] 4 HKLRD 752 holding, inter alia,
that the administrative detention by the Secretary for Security or the Director
purportedly under section 32 of the Ordinance was unlawful for violation of
Article 5 of the Hong Kong Bill of Rights (“HKBOR”) because no policy as to
the manner in which the power of detention existed or had been made accessible
to persons affected by the exercise of the power.

COMMENCEMENT OF THE PLAINTIFF’S ADMINISTRATIVE

DETENTION

8. On or around 3rd October 2006, the Plaintiff:-

2
 8.1. finished serving his sentence and was discharged from prison;

8.2. was referred to the Immigration Department; and

8.3. began to be detained purportedly under section 32(2A)(a) of the

Ordinance for not more than 7 days pending decision as to whether or not
a removal order should be made under section 19(1)(b) of the Ordinance.

9. On 23rd October 2006, the Plaintiff began to be detained purportedly under

section 32(2A)(b) of the Ordinance for not more than 21 days pending decision
as to whether or not a removal order should be made under section 19(1)(b) of
the Ordinance.

10. On 31st October 2006:-

10.1. an Assistant Director of Immigration issued a removal order against the

Plaintiff purportedly under section 19(1)(b) of the Immigration Ordinance
(“the Removal Order”);

10.2. the Director reviewed the Plaintiff’s detention and decided not to release
the Plaintiff on recognizance; and

10.3. the Plaintiff began to be detained purportedly under section 32(3A) of the
Immigration Ordinance pending removal.

11. On 3rd November 2006, the Plaintiff was served with:-

11.1. the Removal Order;

11.2. a “Notice of Removal Order and Right of Appeal”;

3
 11.3. a “Notice of Detention”; and

11.4. a “Detailed Grounds for Detention”

RELEASE ON RECOGNIZANCE

12. On 14th January 2007, the Director conducted a review of the Plaintiff’s
detention and decided to release the Plaintiff on recognizance.

UNLAWFUL DETENTION BY THE DIRECTOR

13. For the reasons set out in the judgment of Hashimi Habb Halim the Plaintiff’s
detention from 3rd October 2006 to 14th January 2007 was unlawful.

14. Further or in the alternative, for the matters stated above, the Plaintiff was
unlawfully detained by the Director from 3rd October 2006 to 14th January 2007
(“the Detention”) because given that the Plaintiff’s torture claim was still
pending, removal of the Plaintiff would not be possible within a reasonable time.

15. Further or in the further alternative, without prejudice to the Defendant bearing
the burden of justifying the Detention, there was no or no proper authorization
for the Detention or any part thereof.

16. Further or in the further alternative, at the relevant time of the authorizing the
relevant detention, even if there was authorization for such detention (which is
denied), the Director did not have any or any sufficient ground(s) justifying the
authorization and/or the continuation of such detention.

Violation of the Plaintiff’s Constitutional Rights

4
17. For the matters pleaded above, the Director was in breach of his constitutional
duty and the Plaintiff's constitutional rights under:-

17.1. Article 39 of the Basic Law and Article 9(1) of the International
Covenant on Civil and Political Rights (“ICCPR”) and/or Article 5(1) of
the Hong Kong Bill of Rights; and/or

17.2. Article 28 of the Basic Law read together with Article 41 of the Basic
Law.

18. By reason of the matters aforesaid, the Plaintiff suffers loss and damage.

19. Further, the Detention was arbitrary, oppressive and/or unconstitutional and the
Plaintiff claims exemplary and/or aggravated damages.

20. By virtue of Article 35 of the Basic Law and section 6(1) of the Hong Kong Bill
of Rights Ordinance, Cap. 383, the Plaintiff claims damages for breach of his
constitutional rights as pleaded above.

21. The Plaintiff is entitled and claims interest on all sums found to be due to him for
such period and at such rate as this Honourable Court deems just pursuant to
sections 49 and 50 of the District Court Ordinance, Cap. 336.

AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT:-

1. Damages (including exemplary and/or aggravated damages and constitutional

damages) to be assessed;

2. Interest;

3. Costs; and

4. Further and/or other relief.

Dated the day of March 2013

5
 Jal N. Karbhari & Co.

Solicitors for the Plaintiff

Statement of Truth
I, believe that the facts stated in this Statement of Claim are true.

Dated this day of 2013

_____________________

ABDUL RASUL
MUHAMAD JIFEEN