Coomber, Peter John v. Wong King Wah

DCCJ 1956/2022 & DCCJ 3416/2022

(Heard together)

[2023] HKDC 694

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1956 OF 2022

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3416 OF 2022

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BETWEEN

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DECISION

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1.Introduction

1.1In August 2001, the plaintiff, Mr Brian John Heard (“Mr Heard”) and Ms Gonchigsuren Odsuren (“Ms Odsuren”) stood trial in DCCC 328/2001 in respect of one count of conspiracy to cause false representations to be made in documents furnished to an immigration officer. It was alleged by the prosecution that they had conspired to falsely represent that Ms Odsuren (with whom the plaintiff had commenced a romantic relationship in 1998) was to be employed by the plaintiff’s company as a technical author and interpreter to translate scientific and technical matters in respect of a special consultancy project with the Hong Kong Police Force. Mr Heard was at the material time a Senior Superintendent in charge of the Forensic Firearms Examination Bureau.

1.2The plaintiff, Ms Odsuren and Mr Heard were represented by counsel in DCCC 328/2001. On the material before me, it is recorded that the plaintiff and Mr Heard pleaded guilty on the eleventh day of the trial (on 18 August 2001) following what the trial judge described as compelling cross-examination of Mr Heard on the tenth day of the trial. As a result of their guilty pleas, the plaintiff and Mr Heard were convicted and a not guilty verdict was entered on the prosecution’s application in respect of Ms Odsuren. The plaintiff and Mr Heard were sentenced on 21 August 2001 to a term of six months’ imprisonment.

1.3Almost four years later, on 13 July 2005, the plaintiff and Mr Heard, somewhat usually, bypassed the Court of Appeal and filed an application for leave to appeal against their convictions directly to the Court of Final Appeal on the ground of substantial and grave injustice. This marked the commencement of their quest spanning more than 17 years to overturn their convictions. The present two actions, which were commenced and are pursued by the plaintiff only, arise from or out of this protracted history. In particular, it is apparent from the material before me that the plaintiff and Mr Heard have exhausted their appeal avenues through the courts and the plaintiff has now shifted his focus to seek redress from those who were involved in the process.

1.4In both actions, the plaintiff’s claims against the respective defendants, in so far as they are discernible, are premised on the tort of misfeasance in public office.

(1) In DCCJ 1956/2022, the defendant is Mr Wong King Wah who was at all material times the Acting Registrar of the Court of Final Appeal (“Acting Registrar Wong”). The gist of the complaint against Acting Registrar Wong is that between 14 August 2019 and 10 March 2022 he had prevented the plaintiff from making a Rule 66 application to the Court of Final Appeal to correct an abuse of process committed by another Acting Registrar in 2005.

(2) In DCCJ 3416/2022, the defendants are Ms Lau Yin Ha Eva (“Eva”) and Ms Cheung Man Ying Sandy (“Sandy”). At all material times, Eva was a judicial clerk of the Appeals Registry of the High Court and Sandy the Clerk to Registrar Kwang of the High Court.

(a) The complaint against Eva, in gist, is that between 2 August and 6 October 2021 she had failed to follow the statutory procedure set out at section 83Y of the Criminal Procedure Ordinance Cap 221 (“CPO”) and Rule 42 of the Criminal Appeal Rules Cap 221A (“CAR”).

(b) The complaint against Sandy, in gist, is that between 2 and 28 March 2022 she had dishonestly denied that the case number CACC 128/2021 was assigned to an application made by the plaintiff and Mr Heard to the Court of Appeal in August 2021.

(c) The alleged mischief on the part of Eva and Sandy, it is said, had prevented the plaintiff’s continuance of his application at the Court of Final Appeal to correct the abuse of process committed by the Acting Registrar in 2005 by way of a Rule 66 application[1].

1.5Although there are a number of applications and cross-applications^[2], the hearing before me was in substance the respective defendants’ applications to strike out the Statements of Claim and dismiss the two actions. At the hearing, the plaintiff appeared in person and the defendants by Government Counsel Mr Alvin Hor. As I understand Mr Hor:

(1) DCCJ 1956/2022 is liable to be struck out for disclosing no reasonable cause of action, as the claim is wholly unsustainable against Acting Registrar Wong because of the absolute immunity enjoyed by him as pursuant to Article 85 of the Basic Law.

(2) Further and/or in the alternative, both actions should be struck out as they are frivolous, vexatious and/or an abuse of process. In particular, Mr Hor argued that on the undisputed and indisputable facts, none of the acts complained of and pleaded by the plaintiff can conceivably satisfy the elements required for establishing the tort of misfeasance in public office^[3].

2.Procedural history

2.1On 27 May 2022, the plaintiff commenced DCCJ 1956/2022 and thereafter applied to enter default judgment on 29 June 2022.

2.2On 5 August 2022, Acting Registrar Wong applied to dismiss the plaintiff’s default judgment application and to strike out the Statement of Claim and dismiss the action in reliance on RDC Order 18, rules 19(1)(a), (b)^[4] and (d).

2.3On 8 August 2022, the plaintiff applied to strike out Acting Registrar Wong’s application to strike out, on the basis that Acting Registrar Wong’s strike out application may prejudice, embarrass or delay the fair trial of the action or was otherwise an abuse of the process of the court. As I had explained to the plaintiff, his cross summons essentially stood or fell with the outcome of the plaintiff’s strike-out application.

2.4On 9 August 2022, Master Michelle Soong dismissed the plaintiff’s application to enter default judgment and further directed that Acting Registrar Wong’s strike-out application and the plaintiff’s cross summons be heard together substantively on 24 February 2023.

2.5On 2 September 2022, the plaintiff commenced DCCJ 3416/2022. On 10 October 2022, Eva and Sandy applied to strike out the Statement of Claim and dismiss the action in reliance on the same grounds as Acting Registrar Wong in DCCJ 1956/2022. However, as stated at §1.5 above, Mr Hor did not contend that DCCJ 3416/2022 should be struck out as disclosing no reasonable cause of action (ie RDC Order 18, rule 19(1)(a)). This is because, for present purposes, he was content to proceed on the basis that it is arguable whether Eva and Sandy were protected by absolute immunity enjoyed by Acting Registrar Wong.

2.6On 1 December 2022, the plaintiff took out identical applications in the two actions to strike out the defendants’ strike-out applications. However, it is clear that the grounds relied on by the plaintiff principally related and is only relevant to DCCJ 3416/2022[5], namely what the plaintiff perceived to be questionable features in respect of Eva’s signatures and therefore the admissibility of her evidence (which was also filed on behalf of Sandy). On 29 December 2022, I directed that the plaintiff’s application dated 1 December 2022 in DCCJ 3416/2022 be heard together on 24 February 2023 with the applications in DCCJ 1956/2022 (see §2.4 above) and the application by Eva and Sandy to strike out DCCJ 3416/2022^[6].

3.A chronological narrative

3.1In order to understand the plaintiff’s pleaded claims in the two actions, it is useful to canvass some of the salient events in the plaintiff’s protracted quest to overturn his conviction^[7]. There are two notable preliminary matters.

3.2First, in the light of the plaintiff’s position that the admissibility of Eva’s evidence is questionable (as to which I disagree for the reasons set out below), it is pertinent to point out at the outset that the salient events set out below are all documented in the relevant contemporaneous correspondence and are therefore undisputed or indisputable.

3.3Secondly, whilst in the present exercise I have set out the chronology to put the plaintiff’s claims in their proper context, in my deliberation of Acting Registrar Wong’s application to strike out under RDC Order 18, rule 19(1)(a), I have borne in mind the requirement set out at RDC Order 18, rule 19(2), namely that no evidence shall be admissible on an application to strike out for disclosing no reasonable cause of action. As will become apparent below, the chronology does not portray the plaintiff’s conduct in the best or a reasonable light. However, I have not allowed such to adversely affect my deliberation on Acting Registrar Wong’s application to strike out under RDC Order 18, rule 19(1)(a).

3.4As is usual, correspondence from judicial officers to litigants are invariably issued by their clerks or administrative assistants. Therefore, unless the context other requires specific mention, the chronology set out below should be understood accordingly.

Background

3.5As stated at §1.3 above, almost four years after his sentencing, the plaintiff (acting in person) filed an application for leave to appeal against his conviction to the Court of Final Appeal on the ground of substantial and grave injustice. The application was a lengthy document and set out a number of reasons to justify his view that his appeal lied to the Court of Final Appeal instead of the Court of Appeal.

3.6On 18 July 2005, the then Acting Registrar of the Court of Final Appeal (Ms Queeny Au-Yeung) issued a summons (in FAMC 56/2005) to the plaintiff under Rule 7(1) of the Hong Kong Court of Final Appeal Rules Cap 484A (“CFA Rules”), calling upon the plaintiff to show cause before the Appeal Committee by written submissions why his application should not be dismissed. This forms the “abuse of process” alleged by the plaintiff which his Rule 66 application purported to rectify (§1.4 above).

3.7On 8 August 2005, the plaintiff lodged his written submissions. On 27 September 2005, the Appeal Committee dismissed the plaintiff’s application for leave to appeal under section 7(2) of the CFA Rules, on the ground that it disclosed no reasonable grounds for leave to appeal (“Rule 7 Order”). It is trite that under section 18(3) of the Court of Final Appeal Ordinance Cap 484 (“CFA Ordinance”), the Rule 7 Order was final and not subject to appeal.

3.8Since the making of the Rule 7 Order in September 2005, the plaintiff had exchanged correspondence with the courts and other parties (including the Legislative Council, the Bar Council, the Law Society, the Ombudsman, various newspapers and even the Hong Kong and Macao Affairs Office) for some 17 years. For the purpose of these applications, it is unnecessary to set out the details of such correspondence and in particular the (unmeritorious) complaints made by the plaintiff. It is only necessary to set out the plaintiff’s various attempts to reopen his application to the Court of Final Appeal, which were rejected and explained by three different registrars, the then Chief Justice and two Permanent Judges over the years.

3.9On 2, 5 and 12 May 2006, the plaintiff applied to file documents at the Court of Final Appeal Registry under FAMC 56/2005, essentially for the purpose of reopening the Rule 7 Order. On each of those occasions, the plaintiff was informed by Acting Registrar Au-Yeung that as the Appeal Committee had dismissed the plaintiff’s application for leave to appeal, FAMC 56/2005 was accordingly closed. The plaintiff was further told that any further submissions from him would not be accepted for filing or considered by the Appeal Committee.

3.10Thereafter, the plaintiff complained to the then Chief Justice about the conduct of Acting Registrar Au-Yeung. On 12 June 2006, the then Chief Justice replied and stated that the matters arising from FAMC 56/2005 had been properly dealt with in the court’s previous replies and the Chief Justice reserved the right not to reply should the plaintiff insist on raising matters that had been dealt with.

3.11On 12 September 2006, the plaintiff enquired with Mr Joe Cheng (Acting Senior Judicial Clerk I/CFA) whether the complaint procedure documented on the Judiciary website applied to Acting Registrar Au-Yeung, on the basis that it was thought that she was not a judicial officer. By an email dated 18 September 2006, the plaintiff was told by Mr Joe Cheng that the Acting Registrar of the Court of Final Appeal was a judicial officer and all complaint procedures applicable to a judicial officer were applicable. On the material before me, it is apparent that the plaintiff did not take the matter any further. However, it is important to note that the plaintiff has since 2006, despite being plainly told otherwise, held the view that an Acting Registrar, characterized by the plaintiff as not being a “substantive” position, is not a judicial officer.

3.12After a lapse of about two years, on 28 October and 5 November 2008, the plaintiff attempted to file a Notice of Application. The plaintiff asserted (erroneously) in his letter dated 5 November 2008 that he was entitled to be heard by the full court as the Rule 7 Order was only made by the Appeal Committee. The plaintiff further asserted (again erroneously) that his previous correspondence with Acting Registrar Au-Yeung established that it was necessary to make a fresh application for leave to appeal and demanded to be issued a new FAMC number to allow his case to be filed.

3.13On 11 November 2008, Acting Registrar Kwang directed that as the plaintiff’s application for leave to appeal arising out of DCCC 328/2001 was dismissed by the Appeal Committee on 27 September 2005, the plaintiff’s application could not be accepted.

3.14In response to various queries made by the plaintiff on, amongst other things, the title and role of Acting Registrar, on 13 February and 4 March 2009, the then Chief Justice replied to the effect that under section 42(5) of the CFA Ordinance, the Chief Justice was entitled to appoint a judicial officer to act as Registrar of the Court of Final Appeal. The plaintiff was further informed by the then Chief Justice that (1) his application for leave to appeal was dismissed by the Appeal Committee on 27 September 2005, (2) the decision was final and not subject to appeal, (3) the actions taken by Acting Registrar Au-Yeung and Acting Registrar Kwang were based on the decision of the Appeal Committee and the then Chief Justice had no further comment to make and (4) as the matters raised by the plaintiff regarding the leave application to the Court of Final Appeal arising out of DCCC 329/2001 had already been dealt with, the then Chief Justice directed that should the plaintiff continue to raise such matters in the future, the Judiciary reserved the right not to reply to such letters/e-mail messages.

3.15It is important to note that the above was the second occasion on which the plaintiff was that the Acting Registrar of the Court of Final Appeal was a judicial officer (§3.11 above).

3.16Undeterred, the plaintiff on 2 April 2009 sought to file a Notice of Motion pursuant to Section 65(3) of the CFA Rules on the basis that he was aggrieved by the direction made by Acting Registrar Kwang. On 21 April 2009, the Appeal Committee directed that the plaintiff’s Notice of Motion was incompetent and that the Registry was directed not to accept it for filing,

3.17On 29 July 2009, the plaintiff sought to file a Notice of Motion to set aside the order made by the Appeal Committee on 27 September 2005 (ie the Rule 7 Order). On 18 August 2009, Chan PJ (as the then was) directed that the plaintiff’s intended Notice of Motion was incompetent and could not be accepted for filing. Further correspondence led Chan PJ to direct on 25 May 2010, inter alia, that any further documents purportedly seeking to re-open the Rule 7 Order in whatever form or way would not be placed on the court file and no action would be taken in respect thereof (“Chan PJ’s Order”).

3.18There was an interregnum following Chan PJ’s Order during which the plaintiff allegedly obtained further legal advice. On 12 June 2013, the plaintiff requested for another FAMC number in order to file an intended application afresh. On 5 July 2013, Acting Registrar Kwang directed that the plaintiff’s request amounted to a re-opening of the dismissed application under FAMC 56/2005 in other ways or means. The plaintiff was further reminded of Chan PJ’s Order made on 25 May 2010.

3.19As the plaintiff’s request on 12 June 2013 was addressed to the Registrar (Mr Simon Kwang Cheok Weung) and the directions were given by Acting Registrar Kwang, the plaintiff on 16 July 2013 raised a discombobulated question, namely whether the Registrar and the Acting Registrar were the one and same person, and further queried whether Acting Registrar Kwang had in truth received his letter of 12 June 2013. This prompted Acting Registrar Kwang to reply on 25 July 2013 in which he first referred the plaintiff to the then Chief Justice’s reply of 13 February 2009 on the position of Acting Registrar (§3.14 above) and secondly confirmed that it was he who had read the plaintiff’s letter of 12 June 2013 and gave the directions on 5 July 2013.

3.20On 15 August 2013, the plaintiff complained to the then Chief Justice in relation to Acting Registrar Kwang’s refusal to allocate a new FAMC number. On 3 September 2013, the then Chief Justice replied and stated that Acting Registrar Kwang had dealt with the plaintiff’s intended application in accordance with Chan PJ’s Order.

3.21By a letter dated 31 January 2014 (which was received by the Court of Final Appeal on 13 February 2014), the plaintiff applied yet again to file a Notice of Motion. On 18 February 2014, Acting Registrar Kwang reminded the plaintiff of Chan PJ’s Order and informed the plaintiff that the Registry was directed not to accept filing.

3.22More than three years later, on 21 July 2017, the plaintiff sought to file a Notice of Motion to set aside Acting Registrar Kwang’s directions made on 18 February 2014. On 2 August 2017 Tang PJ (as he then was) reiterated that FAMC 56/2005 was dismissed by the Appeal Committee on 27 September 2005 and the plaintiff was further informed that the Registry was directed not to accept the plaintiff’s latest filing to appeal against the directions of the Registrar and to give an action number for the purported application (“Tang PJ’s Order”). Thereafter, on 15 September 2017, the plaintiff asserted that Tang PJ’s Order was made erroneously and applied for an oral hearing, which application was refused by Tang PJ on 18 September 2017.

The period impugned in the present actions

3.23The matters set out above provide the backdrop to the period forming the subject matter of these proceedings.

3.24On 14 August 2019, the plaintiff sought to submit a Notice of Motion and two bundles pursuant to Rule 66 of the CFA Rules. By two letters in reply on 20 August 2019, Acting Registrar Wong reiterated that FAMC 56/2005 had already been dismissed by the Rule 7 Order and the plaintiff was further reminded of Chan PJ’s Order and Tang PJ’s Order. Acting Registrar Wong further directed that as the plaintiff’s application was no more than another attempt to renew his previous applications which had been rejected, the Registry was directed that (1) no action would be taken in respect of the plaintiff’s letter dated 18 August 2019, (2) no case number would be assigned and (3) the plaintiff’s documents would not be placed before the court for any action. The plaintiff was further requested to collect the two bundles lodged on 14 August 2019.

3.25A year later on 20 August 2020, the plaintiff wrote to the Court of Final Appeal again to submit an intended Notice of Motion to be placed before a Permanent Judge. On 26 August 2020, Acting Registrar Wong reminded the plaintiff, inter alia, that Tang PJ had on 2 August 2017 directed that the Registry was not to accept filing by him of any purported Notice of Motion to set aside the Rule 7 Order and any other purported Notice of Motion.

3.26On 7 September 2020, the plaintiff accused Acting Registrar Wong for dishonestly misquoting Tang PJ’s Order and reported the matter to the Hong Kong Police. In his letter, the plaintiff specifically pointed out that his latest application was premised on Rule 66 which could not have been covered by Tang PJ’s Order. On 17 September 2020, Acting Registrar Wong stated that the plaintiff’s reliance on Rule 66 of the CFA Rules was misconceived. In particular, Acting Registrar Wong pointed out that as the Rule 7 Order (by which the plaintiff’s application for leave to appeal was dismissed for disclosing no reasonable grounds) was a dismissal of all substantive issues, Rule 66 was not engaged as it concerned with matters of procedure and not of substance. Apart from pointing out the foregoing, Acting Registrar Wong stated that no reply to other parts of the plaintiff’s letter of 7 September 2020 was considered necessary.

3.27On 2 August 2021, the plaintiff approached the Appeals Registry in the High Court intending to file two Notices of Application for leave to Appeal out of time against his criminal conviction in DCCC 328/2001. In his application, the plaintiff mentioned the existence of FAMC 56/2005 and included a completed Form XI prescribed by Section 41 of the CAR.

3.28The plaintiff’s application was referred to Master Pang who then referred it to Macrae VP. On 12 August 2021, Macrae VP made the following directions:

“This is an extremely old and stale case where the two applicants’ convictions were entered on 18^th of August 2001 as a result of their pleas of guilty (some 20 years ago). Notwithstanding the appeal history, it remains a fact that the two applicants’ [ie the plaintiff and Mr Heard] intended appeals were dismissed by the Appeal Committee of the Court of Final Appeal on 27^th of September 2005 (some 16 years ago) which decision shall be final and not itself subject to further appeal. There is no basis under which the same matter can now be listed before the Court of Appeal as their applications for leave to appeal against conviction out of time.

Accordingly, the case will not be listed for hearing. It may be that the applicants’ only recourse in the circumstances is to petition the Chief Executive.”

3.29On 13 August 2021, Eva, in her capacity as clerk to Master Pang, issued a letter informing the plaintiff of Macrae VP’s directions made the day before, Unfortunately, an incorrect case number, CACC 128/2020 was cited in the top left corner of the said letter due to a clerical mistake. However, the correct reference, DCCC 328/2001, was plainly stated in the subject line.

3.30On 23 August 2021, the plaintiff issued a letter to Eva in which he (1) thanked Eva for returning the Form XI application, (2) asserted that he was entitled under section 83Y(3) of CPO to renew his application by Form XIII within 14 days, (3) enquired whether the reference quoted (ie CACC 128/2020) was a correct reference as he assumed that the correct reference ought to have been CACC 128/2021 and (4) asked whether he would be provided with a Form XII.

3.31On 24 August 2021, Eva issued a revised letter to the plaintiff, the content of which was identical to the letter dated 13 August 2021 save that the incorrect reference to CACC 128/2020 was corrected to state DCCC 328/2001.

3.32On 27 August 2021, the plaintiff purported to file his Form XIII to renew his application for leave to appeal to the Court of Appeal out of time which was placed before Master Pang. On 2 September 2021, Eva in her capacity as the clerk to Master Pang, issued a letter to the plaintiff setting out the following reply as instructed by Master Pang:

“It is unnecessary and inappropriate for the court to make further directions in the present matter which, pursuant to the directions given by Hon Macrae VP (see the Court’s letter dated 13 August 2021 and its revised letter dated 24 August 2021), will not be listed for hearing in the Court of Appeal…

For record purposes, there was a clerical mistake in the Court’s letter dated 13 August 2021, namely that a CACC number in respect of an unrelated applicant’s case was inadvertently stated as “our ref” at the top left hand corner, although the correct original case number DCCC 328/2011 was discernable from the subject line. It is trusted that any confusion was subsequently clarified by the Court’s revised letter dated 24 August 2021.”

3.33On 17 September 2021, the plaintiff issued a letter to Master Pang (c/o Eva) requesting a confirmation that CACC 128/2021 (not CACC 128/2020) was assigned to the Form XI application. The plaintiff further asserted that the Registrar had failed to inform him of the outcome of his Form XI application on a Form XII and to provide a Form XIII (all pursuant to Rule 42 of the CAR).

3.34On 6 October 2021, Eva issued a reply on the instructions of Master Pang. The content is recited in full below.

““I refer to your letter to the Court dated 19.9.2021 under the fax cover of the same date. The same has been placed before Master Pang for consideration. I am instructed to make the following reply.

It is been made abundantly clear in the Court’s previous correspondences that the case would not be listed for hearing. Macrae VP pointed out that the two applicants’ intended appeals were dismissed by the Appeal Committee of the Court of Final Appeal on 227 September 2005 which decision shall be final. There is no basis under which the same matter can now be listed before the Court of Appeal. In the premises, no further action wil be taken to place the case before the Court of Appeal.

For the avoidance of doubt, no criminal appeal number was ever assigned.

Thank you for your kind attention.””

3.35It is plain that Eva had made a clerical mistake in misplacing the quotation marks. As explained in Eva’s evidence, the inverted commas, which were placed at the beginning and at the end of the letter, should instead have started at the beginning of the second paragraph and ended at the last word of the third paragraph therein, which were the directions given by Master Pang. At the hearing, the plaintiff, unreasonably in my view, refused to accept the explanation and questioned whether the directions were in fact made by Master Pang.

3.36On 22 October and 11 November 2021, the plaintiff wrote to the Court of Final Appeal referring to the directions made by Acting Registrar Wong more than one year earlier on 17 September 2020 (§3.26 above). The plaintiff stated that Acting Registrar Au-Yeung had committed a catastrophic failure in initiating the Rule 7 procedure in 2005 on the basis that the Court of Final Appeal had no jurisdiction to hear an appeal from the District Court. The plaintiff further informed the Court of Final Appeal of the plaintiff’s failed Form XI application to the Court of Appeal. The position taken by the plaintiff was that his failed Form XI application had “completed the statutory procedure”, as I understand the plaintiff, in generating a decision from the Court of Appeal against which an appeal lied to the Court of Final Appeal. The plaintiff requested Acting Registrar Wong to confirm whether its application under Rule 66 of the CFA Rules could be continued under the rubric of FAMC 56/2005 or a new number would be assigned.

3.37On 15 November 2021, Acting Registrar Wong replied by stating, inter alia, that (1) that the Acting Registrar was of the opinion that the plaintiff’s application was caught by Rule 7 and the CFA Rules and that it was the Appeal Committee which had dismissed the plaintiff’s application by the Rule 7 Order and (2) no appeal number was ever assigned by the Court of Appeal which showed that no judicial decision on any substantive issue had been made.

3.38Between 29 November and 31 December 2021, there were further correspondence between the plaintiff and the Court of Final Appeal. The plaintiff was adamant that CACC 128/2021 was assigned to his Form XI application and accused deception on the part of Master Pang and Acting Registrar Wong.

3.39On 8 February 2022, the plaintiff issued a pre-action letter. In the letter, the plaintiff contended that his Rule 66 application was not an appeal but a legitimate request to correct the irregularity committed by Acting Registrar Au-Yeung in 2005. The plaintiff’s letter further alleged that there was a meltdown at the Court of Final Appeal and demanded (1) immediate issue of an appropriate file reference for his Rule 66 application, (2) allocation of the highest priority for a hearing before the Full Court and (3) an earliest date to visit Acting Registrar Wong’s chambers to discuss the necessary requirements for his submissions. By a letter dated 14 February 2022, Acting Registrar Wong refused to entertain the plaintiff’s demands.

3.40On 23 February 2022, the plaintiff alleged that there was an administrative error as a new case number was not assigned to the plaintiff’s Rule 66 application. On 10 March 2022, the plaintiff was referred to previous letters issued by the Court of Final Appeal.

3.41In the meantime, on 2 March 2022, the plaintiff faxed a letter to Registrar Kwang (now at the High Court) seeking confirmation that CACC 128/2021 had been assigned to the Form XI application. An interim reply was issued by Sandy on 15 March 2022. Eventually on 28 March 2022, Sandy issued a letter to the plaintiff containing the following reply by Registrar Kwang:

“…

Our Records show that according to the letter from our Ms Eva Lau to Mr Coomber dated 2 September 2021, there was a clerical mistake in the Court’s letter dated 13 August 2021… Further, it has been clarified in the letter from Ms Lau to Mr Coomber dated 6 October 2021 that no criminal appeal was ever assigned to your Form XI application which (as directed by Mr Justice Macrae VP) was not listed for hearing and the documents were refused for filing…”

4.The plaintiff’s claims

4.1At §55 of the Statement of Claim in DCCJ 1956/2022 and §§64 to 65 of the Statement of Claim in DCCJ 3416 of 2022, the plaintiff pleaded that the defendants were “recklessly indifferent” to the harm caused to the plaintiff, which harm was the prevention of the plaintiff’s continuance of his application to the Court of Final Appeal to correct the “abuse of process” committed by the 2005 Acting Registrar by way of the intended Rule 66 application. At the hearing, the plaintiff confirmed that he was pursuing the reckless untargeted malice limb of the tort of misfeasance in public office.

4.2The law on misfeasance in public office has been summarized in the recent case of 廣州市鄰港貿易有限公司 & Ors v Secretary for Justice [2022] HKCFI 2438 at §§74 to 78 which cites Three Rivers District Council & Ors v Governor and Company of Bank of England (No 3) [2003] 2 AC 1 and Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324. The essence of the tort is described as being the abuse of public office and involves the allegation that a public officer has acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the officer’s unlawful conduct.

4.3Essentially, the authorities have identified three variants of the requisite mental state which are sufficient to found liability, the unifying features is the element of an abuse of power in bad faith.

(1) Targeted malice: It involves conduct by the official specifically intended to injure a person or persons; or done intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable; or with intent to harm the plaintiff or a class or which the plaintiff is a member.

(2) Untargeted malice: It involves action by the official in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals; or when he actually knew that the had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does.

(3) Reckless untargeted malice: It is now established that subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient. This is a state of mind involving recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not; or reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce; or a conscious disregard for the interests of those who will be affected by the exercise of the power.

4.4As stated at 廣州市 §78, in order to succeed under the reckless untargeted malice limb, the plaintiff has to establish the following elements:

(1) the defendants had acted beyond their powers;

(2) the defendants knew they were acting beyond their powers or did not honestly believe they were acting within their powers;

(3) the defendants concerned were aware there was serious risk that the plaintiff would suffer loss due to their unlawful act;

(4) the defendants willfully chose to disregard that risk and carried out the unlawful act;

(5) the plaintiff in fact suffered loss of the type anticipated as a result of the unlawful act.

5.Whether to strike out the claims and dismiss the two actions

5.1Before I deal with the parties’ substantive submissions, I should first deal with a peripheral issue raised by the plaintiff by way of his summonses dated 1 December 2022 (§2.6 above). The complaint made by the plaintiff is that the signature of Eva on 2 September 2022 (signed on the writ when she was served by the plaintiff) did not match her signature in her affidavit sworn on 7 October 2022. As a result, the plaintiff applied to have Eva and the relevant government counsel from the Department of Justice to attend the hearing to verify, inter alia, Eva’s signature in her affidavit was genuinely her signature.

5.2There is no substance in the plaintiff’s complaint. Eva has in her affirmation filed on 11 January 2023 confirmed that the signatures on 2 September and 7 October 2022 were both her signatures. The signature on the writ was more akin to an initial whilst the signature in the affidavit was demonstrably more formal. As I pointed out to the plaintiff on a number of occasions, there was no requirement for Eva to affix an “official” signature when signing on the first page of the writ, which was simply an informal way of acknowledging personal service of the writ. Conversely, one would expect Eva to affix a more “formal” or “official” signature when signing her affidavit. The plaintiff has not identified any or any cogent basis to cast doubt on the veracity of Eva’s signatures.

5.3In my view, whilst the plaintiff has been meticulous in identifying a number of forensic matters (for example the differences in Eva’s signatures and the misplacing of the quotation marks set out at §3.35 above), his criticisms are invariably not concerned with matters of substance and can be or have been met by innocent explanations. As a further example, even at the hearing before me, the plaintiff was critical of the credibility of the explanation proffered for not filing an Acknowledgement of Service in time in DCCJ 1956/2022. However, his application to enter default judgment was dismissed by Master Michelle Soong on 5 August 2022 (§2.4 above) and there was no appeal against that decision. Such forensic criticisms are unjustified and irrelevant to the determination of the live issues.

DCCJ 1956/2022: No reasonable cause of action

5.4Under RDC Order 18, rule 19(1)(a), a pleading is liable to be struck-out if it discloses no reasonable cause of action. As stated at Hong Kong Civil Procedure 2023 Note 18/19/5, a reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered. As stated at §3.3 above, in considering Acting Registrar Wong’s application to strike out the claim in DCCJ 1956/2022 under this limb, I have not taken into account the objectively unflattering picture of the plaintiff painted in the chronology.

5.5In the specific context of DCCJ 1956/2022, if Acting Registrar Wong was protected by judicial immunity pursuant to Article 85 of the Basic Law, the authorities show that the availability of such a defence provides a sufficient basis to strike out the claim for disclosing no reasonable cause of action: Chong Yu On v Susan SH Kwan & Ors [2020] 2 HKLRD 407 §§2, 9 to 12.

5.6Article 85 of the Basic Law provides:

“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.”

5.7At Chong Yu On §9, the following principles may be distilled.

(1) 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.

(2) 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.

(3) 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 has been 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.

(4) It does not mean that the errors made in the performance of judicial functions cannot be corrected. Any wrong decisions made in the performance of 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.

(5) As regards the definition of the phrase “the performance of their judicial functions”, it should be given a liberal interpretation. 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, these acts can be included in the performance of judicial functions.

5.8It is clear that the plaintiff is alive to the issue of absolute immunity enjoyed by Acting Registrar Wong. In order to counter that argument, the plaintiff argued that Acting Registrar Wong (1) was not a judicial officer and (2) therefore did not have authority to perform judicial functions and was only performing administrative functions at the material time. In particular, the plaintiff argued that Acting Registrar Wong was not a judicial officer since the position of “Acting Registrar” is not listed in Schedule 1 of the Judicial Officers Recommendation Commission Ordinance Cap 92 (“JORC Ordinance”).

5.9In my view, the plaintiff’s arguments are unsustainable. The Registrar of the Court of Final Appeal is a position created by statute section 42(1) of the Court of Final Appeal Ordinance Cap 484 (“CFA Ordinance”). In the absence of a Registrar, the Chief Justice may pursuant to section 42(5) of the CFA Ordinance appoint a person who possess the same qualifications as are required under section 37AA(1) of the High Court Ordinance Cap 4 to act in place of the Registrar. Acting Registrar Wong as at all material times the Acting Registrar of the Court of Final Appeal appointed by the Chief Justice. I agree with Mr Hor that the absence of the position of “Acting Registrar” under Schedule 1 of the JORC Ordinance has absolutely no bearing on the appointment of Acting Registrar Wong under the CFA Ordinance. It is non-sensical for the plaintiff to suggest that Acting Registrar Wong was not a judicial offer or a member of the judiciary at the material time.

5.10As pointed out at §§3.11 and 3.14 above, the plaintiff had been told on a number of occasions (on one occasion by the then Chief Justice no less) that the Acting Registrar of the Court of Final Appeal was a judicial officer. The plaintiff’s steadfast refusal to accept what appears to me to be an obvious proposition is quite untenable.

5.11It is also plain that the acts impugned in the Statement of Claim in DCCJ 1956/2022 against Acting Registrar Wong were all done in performance of his judicial functions. As stated at §5.7(5) above, the phrase “the performance of their judicial functions” should be given a liberal interpretation. Any suggestion that Acting Registrar Wong’s refusal to accept the plaintiff’s Rule 66 application and his involvement in the related correspondence were not acts done in the performance of his judicial functions (liberally interpreted) is without merit.

5.12I should also point out that I am in entire agreement with actions taken by Acting Registrar Wong, but for present purposes I do not need go that extra step. As stated at §§5.7(3) and (4) above, judicial immunity is not taken away by a “wrong” decision made in the course of performing judicial functions.

5.13It is therefore clear that Acting Registrar Wong enjoyed judicial immunity in respect of the claim made by the plaintiff in DCCJ 1956/2022. I agree with Mr Hor that the Statement of Claim should be struck out for disclosing no reasonable cause of action.

DCCJ 1956/2022: Frivolous and vexatious and/or an abuse of process

5.14Without prejudice to my conclusion that the Statement of Claim in DCCJ 1956/2022 should be struck out for disclosing no reasonable cause of action, I proceed to also deal with Mr Hor’s argument the Acting Registrar Wong’s application should also succeed on the further and alternative grounds.

5.15I remind myself that it is only in plain and obvious cases that the court should exercise its summary powers to strike out a pleading. The expression “frivolous and vexatious” includes proceedings which are an abuse of the process. A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process. A proceeding is vexatious when it is oppressive and/or lack bona fides and implies the doing of something over and above that which is necessary for the conduct of the litigation, and suggests the existence of some spite or desire to harass the other side to the litigation, or some other improper motive: Hong Kong Civil Procedure 2023 §18/19/7.

5.16As stated at §4.4 above, in order to succeed under the reckless untargeted malice limb, the plaintiff has to satisfy five elements. At the hearing, the plaintiff did not quarrel with the requirements. As the plaintiff’s written submissions did not squarely address the requirements, at my invitation, he sought to demonstrate at the hearing why it is not plain and obvious that his case against Acting Registrar Wong should be struck out. His submissions may be summarized as follows.

Requirements	Submissions
Acting Registrar Wong acted beyond his powers	Acting Registrar Wong was not a judicial officer and therefore was not in a position to refuse to assign a case number to the Rule 66 application
Acting Registrar Wong knew he was acting beyond his powers or he did not honestly believe he was acting within his powers	Acting Registrar Wong had no jurisdiction to refuse to assign a case number to the Rule 66 application
Acting Registrar Wong was aware there was a serious that the plaintiff would suffer loss due to his unlawful act	The loss was that the plaintiff could not continue he CFA proceedings to correct the error in 2005
Acting Registrar Wong wilfully chose to disregard that risk and carried out the unlawful act	Acting Registrar Wong’s refusal to accept the Rule 66 application was not by accident
The plaintiff in fact suffered loss of the type anticipated as a result of the unlawful act	The plaintiff suffered loss in that he could not continue the proceedings

5.17In my view, Mr Hor is right in his submissions that the plaintiff does not even get over the first and/or second hurdle. The plaintiff’s argument that Acting Registrar Wong (1) had acted beyond his powers (the first requirement) and (2) knew that he was acting beyond his power or did not honestly believe he was acting within his powers (the second requirement) stem from the erroneous basis that Acting Registrar Wong was not a judicial officer or a member of the judiciary performing judicial functions.

5.18I also agree with Mr Hor that it is simply unarguable that anything done or not done by Acting Registrar could be characterized as unlawful. The chronology set out at section 3 above demonstrates beyond argument that Acting Registrar Wong was properly carrying out judicial functions and case management arrangements and the plaintiff’s submissions only have to be stated to be rejected. In so far as any justification is required to be spelt out explicitly, Acting Registrar Wong’s refusal to accept the Rule 66 application was plainly grounded, inter alia, by (1) the Rule 7 Order was not subject to appeal, (2) the individual and collective effects of the Chan PJ Order and the Tang PJ Order, (3) his judgement that the plaintiff’s reliance on Rule 66 was misconceived and represented no more than another attempt to renew the plaintiff’s previous applications which had been rejected. Consonant with §5.12 above, even were Acting Registrar Wong incorrect (which in my view he was not), there is no arguable basis for the plaintiff to equate an error in judgment with unlawfulness.

5.19Further, it is pleaded that as Acting Registrar Wong was only an administrator and not an judicial officer, it was “not unreasonable to deduce by inference that he took instruction from the Judiciary Administrator Ms Ester Leung Yuet Yin (“Ms Leung”)”. A similar plea is pleaded in the Statement of Claim in DCCJ 3416/2022. When pressed at the hearing as to the nature of the allegation, the plaintiff contended that the acts of Acting Registrar Wong (and the acts of Eva and Sandy in DCCJ 3416/2022) were instructed by Ms Leung as part of a conspiracy to prevent cases from getting beyond Rule 7. Not only is this extraordinary suggestion not pleaded, it is fundamentally misplaced even if pleaded.

5.20In my view, the Statement of Claim should also be struck out for being frivolous, vexatious and an abuse of process (§5.15 above).

DCCJ 3416 of 2022: Frivolous and vexatious and/or an abuse of process

5.21As stated at §1.4 above, a complaint made in DCCJ 3416/2022 was that the procedure set out at section 83Y of the CPO and Rule 42 of the CAR was not followed.

5.22Section 83Y of the CPO sets out the powers of the Court of Appeal under Part IV which are exercisable by a single judge which include the power to give leave to appeal and to extend the time within which a Notice of Appeal or a Notice of Application for Leave to Appeal may be given.

5.23Rule 41 of the CAR provides as follows:

“Notice of appeal, or notice of application for leave to appeal or for extension of the time within which notice of appeal or notice of application for leave to appeal is required to be given under the Ordinance, shall be in such one of Forms VIII, IX, X and XI as is appropriate.”

5.24Rule 42 of the CAR provides that the Registrar shall, when any application mentioned in rule 41 has been dealt with by a judge, notify the decision to the appellant on Form XII. Further, if the judge refuses all or any of such applications, the Registrar, on notifying such refusal to the appellant, shall forward to him Form XIII which form the appellant is required to full up and forthwith return to the Registrar. Form XIII is a Notice of Renewal of Application after Refusal by the Single Judge.

5.25This being a strike out application, Mr Hor accepted the Macrae VP could have (not should have) disposed of the plaintiff’s application under Rule 42 of the CAR instead of directing that there was no basis under which the plaintiff’s application made in August 2021 could be listed before the Court of Appeal (§§3.27 to 3.28 above) .

5.26I agree with him, however, that the foregoing is a sterile point as it does not have any bearing on the claim against Eva and Sandy.

5.27Eva, in her dealings with the plaintiff, was acting in her capacity of the clerk of Master Pang. Master Pang referred to plaintiff’s application made in August 2021 to Macrae VP and a direction was made by the Vice President that there was no basis for the plaintiff’s application to be listed before the Court of Appeal. The suggestion that Eva should have overridden Macrare VP’s direction and Master Pang is plainly untenable.

5.28The plaintiff’s claim against Sandy is even more tenuous. The plaintiff admitted that it was only his assumption that the case number CACC 128/2021 was assigned to his Form XI application. His assumption was in part premised on another forensic exercise, in that he discovered on the Judiciary website that CACC 101/2021 was decided on 29 June 2021 and CACC 131/2021 on 18 October 2021. He therefore reasoned that CACC 128/2021 would have been assigned to his application as it was made in August 2021 and as the number 128 fell between 101 and 131. However, if one reads the judgment of CACC 131/2021 dated 18 October 2021, it is set out therein that the Form XI in that case was filed in June 2021 which completely refuted the plaintiff’s premise.

5.29In any event, even without indulging oneself in the plaintiff’s forensic exercise, the plaintiff’s assumption could not be justified by the events set out in the chronology. The plaintiff was told on 6 October 2021 in no certain terms that no criminal appeal was ever assigned (§3.34 above). Yet, he refused to accept that fact by unreasonably questioning the veracity of Eva’s letter of 6 October 2021 (§3.35 above) and then accused Sandy for being dishonest when she issued a letter, on Registrar Kwang’s instructions, setting out Registrar Kwang’s findings including his reference to Eva’s letter of 6 October 2021 (§3.41 above).

5.30It is also pertinent to note that it is pleaded in the Statement of Claim that Eva and Sandy took instructions from the Judiciary Administrator, Ms Leung. I repeat my observations set out at § 5.19 above.

5.31For the above reasons, I agree with Mr Hor that the Statement of Claim in DCCJ 3416/2022 should be struck out for being frivolous, vexatious and an abuse of process.

6.Conclusion

6.1The plaintiff has not suggested how his claims can be salvaged and did not propose any amendments for that purpose. Where, as here, I have decided to strike out the Statements of Claim in DCCJ 1956/2022 and DCCJ 3416/2022, it is right that I should also consequentially dismiss the two actions.

6.2I therefore make the following orders.

6.3In respect of the Acting Registrar Wong’s summons dated 5 August 2022, I order that the Statement of Claim in DCCJ 1956/2022 be struck out and the action be dismissed.

6.4In respect of Eva and Sandy’s summons dated 10 October 2022, I order that the Statement of Claim in DCCJ 3416/2022 be struck out and the action be dismissed.

6.5I dismiss the plaintiff’s summonses dated 8 August and 1 December 2022 in DCCJ 1956/2022

6.6I dismiss the plaintiff’s summons dated 1 December 2022 in DCCJ 3416/2022.

6.7I am inclined to agree with Mr Hor that this is an appropriate case to order indemnity costs against the plaintiff in both actions. The plaintiff has liberally made serious allegations which he knew or ought to have known to be untrue, speculative and without proper foundation: Chow Sau Hei v Ho Keung Yuen, HCMP 716 of 2006, 7 August 2013 §8.

6.8I make an order nisi that the plaintiff is to pay the defendants the costs of the respective actions, including the costs of the summonses taken out in the respective actions (including any costs reserved) on an indemnity basis to be summarily assessed. Absent any application to vary, the costs order nisi will become absolute within 14 days hereof.

6.9The defendants have already provided their Statement of Costs. Unless any application for variation of the costs order nisi is made within time the plaintiff shall lodge and serve its statement of objection within 7 days after the expiry of the 14-day period. Summary assessment of the defendants’ costs will be conducted on paper (no matter whether any statement of objection is lodged by the plaintiff within time) thereafter. The costs assessed shall be payable by the plaintiff within 14 days after assessment.

6.10As a postscript, I should mention that I am aware that Coleman J has handed down his Decision in HCAL 922 of 2022 ([2023] HKCFI 1330) in which a number of matters pertinent to the present applications were canvassed. I am in entire agreement with his Lordship’s observations made at his Decision §§116 to 119.

The plaintiff appeared in person

Mr Alvin Hor, Government Counsel, of the Department of Justice, for the defendant in DCCJ 1956/2022 and the 1^st and 2^nd defendants in DCCJ 3416/2022