Xu Ruibin v. Republic of Serbia and Others

HCA 1753/2022

[2023] HKCFI 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1753 OF 2022

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

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 Serbia, the President of Republic of Serbia, the Prime Minister of Republic of Serbia and the Minister and Ministry of Interior of the Republic of Serbia (“the 4 Respondents”)  as the defendants.  The writ was marked not for service out of jurisdiction.  The claim seemed to be based on an alleged detention of the Plaintiff by the Serbian Police after protesting outside the Canadian Embassy in Belgrade.  The Plaintiff was allegedly deprived of the right to a review hearing within 15 days under Serbian law and as a result was not released from jail and was over imprisoned for 2.5 months.  He was allegedly banned from entering Serbia.  The Plaintiff sought compensation against the Republic of Serbia, the President of Serbia, the Prime Minister of Serbia, the Minister of Internal Affairs in the sum of HK$400 billion, HK$110 million and HK$110 million respectively. 

4.The Registrar had on 15 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 has 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 4 Respondents in the present case were willing, or were likely to be willing, to be made a party to these proceedings, or had submitted, or were 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 appeal nor the affirmation (which only stated that “he wanted to appeal to continue”), disclose 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 paragraph 6 above.  The Plaintiff has not advanced the other arguments set out in paragraph 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