羅健信 對 高等法院原訟法庭

Read the full judgment text of HCMP 425/2015 on BabelCite. This Court of First Instance judgment was delivered on 11 September 2015 before 余啟肇.

Civil procedure – striking out – abuse of process – frivolous claim – whether a party may sue a judge rather than appeal – Civil procedure – amendment – whether plaintiff may unilaterally amend originating summons to substitute a new party without leave – Whether the High Court of First Instance or the High Court is a legal entity capable of being sued – Statutes – District Court Ordinance (Cap 336) s.71 – whether applicable to High Court proceedings – High Court Ordinance contains no corresponding provision – High Court Rules Order 18 rule 19 – meaning of frivolous and abuse of process – Civil procedure – Rules of the High Court Order 20 rule 1 – leave required to add new party. The plaintiff Mr Lo Kin Shun, acting in person, was dissatisfied with the decisions of Auyeung JA in HCAL 58/2013 and Lam J in HCAL 122/2012, in which his judicial review claims were dismissed. Instead of appealing, he commenced HCMP 425/2015 against the High Court of First Instance. The Master struck out the claim on 15 May 2015, holding that a litigant cannot sue a judge for the judge's decision (per Choy Ping Wing v Chief Executive of HKSAR & Ors [2006] 1 HKLRD 666) and that the named defendant was not a legal entity. The plaintiff appealed. Held, dismissing the appeal: a party dissatisfied with a judicial decision must appeal it, not sue the judge; the plaintiff could not unilaterally amend his originating summons to add or substitute a party without leave under Order 20 rule 1; neither the High Court of First Instance nor the High Court is a legal entity capable of being sued; section 71 of the District Court Ordinance does not apply to High Court proceedings and the High Court Ordinance has no equivalent provision, so the plaintiff had no statutory basis to sue the two judges even for alleged malicious acts; the claim was frivolous and an abuse of process under Order 18 rule 19 as it had no legal foundation and no reasonable prospect of success; the plaintiff's subjective belief that he was not abusing the process was irrelevant. Appeal dismissed; no order as to costs.

Legal issues: Whether a party can sue the judge who made the adverse decision · Whether the High Court Rules allow unilateral amendment to add a new party · Whether section 71 of the District Court Ordinance permits an action against a High Court judge · Whether the claim is frivolous or an abuse of process

Outcome: Appeal dismissed; the plaintiff's claim was confirmed to be frivolous and an abuse of process and properly struck out.

Cited by 3 cases · Cites 2 cases