Xu Ruibin v. Republic of Armenia

HCA 1730/2022

[2023] HKCFI 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1730 OF 2022

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BETWEEN

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D E C I S I O N

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1.The Plaintiff’s endorsement of claim was struck out and the action was dismissed by Master Man on the Court’s own motion as the claim involved the issue of sovereign immunity. This is the Plaintiff’s appeal against Master Man’s decision.

2.The background has been set out in a letter from Master Man to the Plaintiff dated 28 December 2022, which I gratefully adopt in §§3 and 4 below.

3.The Plaintiff issued proceedings against the Republic of Armenia as the defendant.  The writ was marked not for service out of jurisdiction.  The claim seemed to be based on an alleged failure of the Republic of Armenia Police Centre to process an application for a resident card within a time period of 30 days, such failure having been caused by 2 police officers.  The Plaintiff sought compensation in the sum of HK$2 billion due to the delay. 

4.The Registrar had on 14 December 2022 issued a letter to the Plaintiff, asking him to show cause why the action should not be struck out on the Court’s own motion, as it involved the issue of sovereign immunity. 

5.The Plaintiff appeared before Master Man on 23 December 2022 to show cause.

6.By a letter dated 28 December 2022, the learned Master informed the Plaintiff that the claims were struck out on the ground that in The Democratic Republic of Congo v FG Hemisphere Associates[1], the Court of Final Appeal held that the law of the People's Republic of China on state immunity has been the applicable law in the Hong Kong Special Administrative Region and the doctrine of state immunity that is applicable is the doctrine of absolute immunity, not the doctrine of restrictive immunity. Unless a state waives immunity from jurisdiction, another state shall not entertain and adjudicate legal proceedings in which that state is a defendant. Master Man had not received any evidence or submission, that the Republic of Amenia in the present case was willing, or was likely to be willing, to be made a party to these proceedings, or has submitted, or was likely to submit, to the jurisdiction of the Court. 

7.Master Man also dealt with the other arguments of the Plaintiff but rejected them:

(1)  The Plaintiff contended that absolute immunity did not apply under the Vienna Convention and that diplomats had been held responsible for crimes in other states.  Master Man held that the submission was based on anecdotal evidence and was a matter of foreign law.  It could not override the principles in the Congo case.

(2)  The Plaintiff contended that when the Hong Kong Court admitted a claim against a country that had made a mistake, immunity was not engaged.  The contention was not accepted because no such qualification or exception had been set out in the Congo case. 

(3)  Acceptance of the writ for filing at the High Court Registry did not mean that the claim was accepted as a valid claim.  The High Court Registry had no responsibility to advise a plaintiff as to whether his claim would sustain before he filed a writ.

8.On 3 January 2023, the Plaintiff lodged this appeal. 

9.The Plaintiff has not appeared in this appeal.  He has not lodged any written submission in support of his appeal.  Neither his notice of appeal nor his affirmation (which only stated that “he wanted to continue”), disclosed any arguable grounds of appeal.

10.In this appeal, the Court considers the matter afresh.  I agree with the decision and reasoning of Master Man set out in §6 above.  The Plaintiff has not advanced the other arguments set out in §7 above but, in any case, I agree with the reasons of the learned Master in rejecting those arguments.

11.The appeal is dismissed.  There is no order as to costs.

The Plaintiff was unrepresented and did not appear