Chong Yu on v. Susan S H Kwan and Others

[English Translation –英譯本]

CAMP 45/2019

[2019] HKCA 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 45 OF 2019

(ON AN INTENDED APPEAL FROM DCEO 13/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.The applicant, the claimant in DCEO 13 of 2018, alleged that judges of the High Court discriminated against him on the ground of his disability in the adjudication of CACV 185 of 2017. He lodged claims against them under the Disability Discrimination Ordinance in the District Court.

2.Judge Ko of the District Court granted the respondents’ application on 21 December 2018 after a hearing and decided that the respondents are protected by judicial immunity under Article 85 of the Basic Law; and that the claims, which disclosed no reasonable cause of action and had defects that were not curable, could not be saved by an amendment to the pleadings. The judge also decided that the claimant could not make the same claims by applying to join the Judiciary as a respondent. Therefore, an order for striking out the claimant’s claims was made. In addition, the judge dismissed the claimant’s application for the court to appoint a friend of the court (amicus curiae).

3.On 4 January 2019, the claimant sought leave to appeal from Judge Ko’s decision. On 12 March 2019, Judge Ko refused the application.

4.On 26 March 2019, the claimant applied to this Court for leave to appeal. In his intended grounds of appeal, he put forward the following grounds:

“(1)  Comparing the 2^nd defendant’s hasty dealing with the plaintiff’s case in CACV 185 of 2017, it was obvious that the 2^nd defendant, Jeremy Poon, in the early stages, heard HCME 6 of 2001 by adopting a double standard and an approach discriminating against men in favour of women; see, in particular, paragraphs 4, 6 and 7 of the judgment dated 20 December 2001.

(2)  On 20 November 2018, when dealing with the application dated 12 November 2018 for an adjournment of the hearing by Anna Chu, Counsel of Department of Justice, Judge Ko put emphasis on upholding and preserving the right of the litigant (defendant) to defend himself in court and its significance.

(3)  Upon consideration of (2), it can be seen directly from both cases involving the 2^nd defendant that Judge Ko heard the cases by adopting a double standard. There was simply no doubt that the plaintiff’s allegations were made with clear reasons.”

5.Section 63(1) of the District Court Ordinance provides that an appeal can, with leave of a judge or the Court Appeal, be made from every judgment of a judge in any civil cause.

6.Section 63A(2) of the District Court Ordinance further provides that:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

7.Article 85 of the Basic Law provides that “The courts of the Hong Kong Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”

8.The grounds of appeal advanced by the claimant have completely failed to explain why the respondents are not to be protected by judicial immunity under Article 85 of the Basic Law. When CACV 185 of 2017 was heard by the respondents, the decision to reject the claimant’s excuse for his absence from the hearing on 1 June 2018 was based on the then evidence before the court, and it was plainly and undoubtedly an adjudication that was a judicial act. The cases he cited, which related to acts of members of the judiciary outside the performance of their judicial functions, are not applicable to the present case.

9.On 12 July 2002, the court stated in Ma Kwai Chun v Queeny K Y Au-Yeung HCA 771/2002 the following on the immunity of members of the judiciary:

“13.  The entire provision of Article 85 of the Basic Law reads as follows: “The courts of the Hong Kong Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.” Generally speaking, Article 85 is a constitutional guarantee of the Hong Kong’s judicial independence, and the inclusion of judicial immunity for the members of the judiciary in this provision is not incidental. To understand the relationship between judicial independence and the immunity for the members of the judiciary, the answer, in my view, could be sought from a study of the history of the common law.

14.  Judicial immunity was established under the common law system as early as in the 17^th century. For the earlier cases, reference can be made to Floyd v. Barker (1607) 12 Co Rep 23; 77 ER 1305. The principle has been adopted by all common law countries. I will simply cite a few cases in more recent times for reference. In the United Kingdom, the Court of Appeal reiterated in Sirros v. Moore [1975] 1 QB 118 that as a matter of principle, when a member of the judiciary of any rank performs his judicial functions, he is protected against liability in a civil action for damages, even where he may be mistaken in fact or in law. This case was applied recently by the Court of Appeal in the United Kingdom, see Ogle v Treasury Solicitor, 27 October 1999, the judgments of Judge LJ and Hale J and Anderton & Co v Cawood, 15 October 1996, the judgments of Swinton Thomas LJ and Judge LJ. In Sirros v Moore, Lord Denning of the United Kingdom, at [1975] 1 QB, 136B-E, discussed comprehensively why members of the judiciary needed such immunity. He considered that every judge should be protected by immunity to ensure that he is able to perform his judicial functions in complete independence and free from fear. Although the allegations against him may be very serious, such as those of malice or ill-will or bias, he is not to be plagued with them, so long as he does his work in his honest belief that it is within his jurisdiction. It was clearly pointed out that if actions based on such allegations were brought in court, they have been struck out and will continue to be struck out.

15.  There are similar cases in other common law countries. In the United States, the principle was applied in Bradley v Fisher(1871) 80 US 335 and Stump v Sparkman (1978) 435 US 349. In Australia, the more recent and relevant cases include the judgment of Bhagat v Young [2002] NSWSC 331, 24 April 2002: Wentworth v Wentworth [1999] NSWSC 317 and [1999] NSWSC 557; Rajski v Powell (1987) 11 NSWLR 523 and Yeldham v Rajski (1980) 18 NSWLR 48. In Yeldham, Hope JA of the New South Wales, Australia, explained at paragraphs 69E-G of the law report the relationship between immunity for judicial officers and judicial independence, and considered it to be a principle protecting the public interest. In the course of the exercise of their functions, judicial officers often have to decide whether a person is honest or not. If the law were that any disgruntled litigant could commence proceedings against these officers personally, judicial independence would be eroded. It does not mean that judicial officers are above the law, as another judge of the Court of Appeal in the same case, Kirby P, stated at paragraphs 58D-G of the law report that a judge, like any other citizen, is to be bound by the law where the acts concerned occurred otherwise than in the performance by the judge of his judicial functions. But the judicial act, being within jurisdiction, would be immune from being plagued with civil actions. It does not mean that the errors they made in the performance of judicial functions cannot be corrected. Any wrong decisions they made in the performance of their judicial functions can be challenged on appeal. Other than that, a complaint can be lodged with the Chief Justice of the Court of Final Appeal in respect of the conduct of judicial officers in the performance of their functions. Article 89 of the Basic Law clearly provides that a judge of a court of the Hong Kong Special Administrative Region may only be removed for inability to discharge his or her duties, or for misconduct, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal and consisting of not fewer than three local judges.

16.  In Canada, another common law country, there are also similar cases, including Beauregard v Canada[1986] 2 SCR 86; Royer v Mignault (1988) 50 DLR (4th) 345. In Royer, Rothman JA of the Court of Appeal of Quebec, explained at page 352 of the law report the following relationship between judicial immunity and judicial independence: the purpose of the principle of judicial immunity is considered not to protect the personal interests of judges, but rather to protect the public interest in an independent and impartial justice system. In performing their judicial functions, judges must be able to make decisions without fear. Any errors they make may be corrected on appeal, but they should not have to fear that they may be threatened by dissatisfied litigants with civil actions alleging malice, bias, or excess of jurisdiction. And, Rothman JA stated that judges must not be influenced by personal concerns when performing their judicial functions. Therefore, the relationship between judicial independence and judicial immunity is, in fact, inseparable. Accordingly, they are both reflected in Article 85 of the Basic Law.

17.  As regards the definition of the phrase “the performance of their judicial functions”, I am of the view that it should be given a liberal interpretation. In the English translation, the sentence is: “members of the judiciary shall be immune from legal action in the performance of their judicial functions.” Judicial functions are not limited to deciding cases. In view of society’s demands and expectations of the judicial system, most of the time, judges and other judicial officers have to conduct hearings on case management and to make decisions on related arrangements, so as to ensure the fair disposal of cases quickly and effectively. The hearings and decisions made on procedural matters by members of the judiciary are actually part of the process of the court in the enforcement of judgments which are inseparable. Therefore, I am of the view that these acts can be included in the performance of judicial functions. In this regard, my decision is supported by other cases: see Crispin v Registrar of the District Court [1986] 2 NZLR 246; Yeldham v Rajski (1989) 18 NSWLR 48; Royer v Mignault (1988) 50 DLR (4th) 345; Bhagat v Young [2002] NSWSC 331; Anderton & Co v Cawood，15 October 1996, a case of the Court of Appeal of the United Kingdom.”

10.In that case, the plaintiff, Ms Ma, put forward an argument similar to that of the claimant in the present case, alleging that the judge’s act of discrimination against her at the hearing was not protected by judicial immunity, and that argument was not accepted by the court: Ma Kwai Chun v Queeny K Y Au-Yeung HCA 771/2002, 12 July 2002, paragraphs 8, 18; CACV 313/2002, 18 November 2002, paragraphs 5 to 10.

11.We also agreed with the analysis in T v The Judiciary [2018] HKDC 650 that the claimant could not avoid the protection conferred by Article 85 of the Basic Law on members of the judiciary by way of commencing actions against the Judiciary, otherwise the judge might be plagued by the losing litigant with claims against the Judiciary, and this would render the protection otiose.

12.Accordingly, Judge Ko was correct to have struck out the claimant’s claims and dismissed his application to join the Judiciary as a respondent. 

13.The merits of the case are plainly clear. Judge Ko was correct to have dismissed the claimant’s application for the court appointing a friend of the court.

14.As regards Yee Kim Fan v Ellen Tracy Hong Kong Inc HCME 6/2001，20 December 2001, cited by the claimant, the party being sued in that case was not a member of the judiciary, the cause of action was a claim of payment in lieu of notice, and not an act of a member of the judiciary in the performance of his judicial functions. Therefore, it did not involve the issue of judicial immunity. This case cannot assist the claimant in negating the foregoing analysis.  

15.Further, in HCME 6/2001, the applicant, upon the striking-out of her case, applied to the Board to restore the hearing. Based on the documents the claimant lodged with this Court, he did not seem to have applied to restore the hearing upon the dismissal of CACV 185/2017.

16.And, in HCME 6/2001, the Board struck out the application without considering the merits of the case. The decision in CACV 185/2017, however, was made upon consideration of the merits of the case, and its nature was different from that of the Board’s striking-out of the application.

17.For the above reasons, the arguments in HCME 6/2001 the claimant relied upon do not constitute grounds of appeal with a reasonable prospect of success.

18.At the hearing on 21 December 2018, the applicant had an adequate opportunity to make submissions and his arguments were fully considered. The Reasons for Judgment clearly set out the reasons for Judge Ko giving judgment against him. We see no circumstances in which he was treated unfairly or a double standard was applied to him.

19.Judge Ko gave the reasons for his decision to issue a restricted proceedings order against the claimant at paragraphs 32 to 38 of his Reasons for Judgment dated 21 December 2018. We agreed with Judge Ko’s analysis that the restricted proceedings order was a necessary and appropriate measure.

20.Upon consideration of the grounds of both parties, having referred to the Reasons for Judgment dated 21 December 2018 and the judgment dated 12 March 2019, we are of the view that the grounds of appeal advanced by the claimant do not satisfy the said requirements of the Ordinance. The arguments advanced by the claimant, in our view, have no reasonable prospect of success. We see no other reason in the interests of justice for granting leave to appeal.

21.For the above reasons, we refused to grant the claimant leave to appeal.

22.We are also of the view that his application is totally without merit. Accordingly, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, we order that no party shall request the determination at the above paragraph 21 to be reconsidered at an oral hearing inter partes.

23.Further, we order that the claimant do pay the respondents costs of this summons to be assessed summarily on paper. It is directed that the legal representatives of the respondents do lodge and serve their Statements of Costs by 21 August 2019, and that the claimant, in case of objection to the Statements of Costs, do lodge and serve the written objections in response by 28 August 2019.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.