Coomber, Peter John v. Mr. Pang Chung Ping

DCCJ 1129/2023

[2023] HKDC 1229

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1129 OF 2023

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DECISION

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1.  Introduction

1.1In August 2001, the plaintiff was convicted upon his own guilty plea in DCCC 328/2001 and sentenced to a term of six months’ imprisonment. The plaintiff has since July 2005 embarked upon a protracted quest to overturn his conviction.

1.2The present case is the third action commenced by the plaintiff at the District Court against members and staff of the Judiciary whom he perceives to be wrongdoers in his unsuccessful attempt to overturn his conviction. In each of the three actions, the plaintiff relies on the tort of misfeasance in public office against the respective defendants.

1.3The first in time was DCCJ 1956/2022 against Mr Wong King Wah who was at all material times the Acting Registrar of the Court of Final Appeal (“Acting Registrar Wong”). This was followed by DCCJ 3416/2022 against Ms Lau Yin Ha Eva (“Eva”) and Ms Cheung Man Ying Sandy (“Sandy”). Eva and Sandy were at all material times respectively a judicial clerk of the Appeals Registry and the clerk to Registrar Kwang of the High Court.

1.4On 24 February 2023, I heard the respective defendants’ applications to strike out the Statement of Claim in DCCJ 1956/2022 and DCCJ 3416/2022 (“Hearing”).

1.5After the Hearing, the plaintiff commenced the present action on 17 March 2023 against Mr Pang Chung Ping. As accepted at Statement of Claim §6, at the material time, the defendant was appointed as Temporary Deputy Registrar of the High Court (“Master Pang”).

1.6On 19 April 2023, a summons was issued to strike out the Statement of Claim and dismiss the present action (“Summons”). The substantive hearing of the Summons took place before me on 2 August 2023. The plaintiff appeared in person and the defendant was represented by Mr Alvin Hor, Government Counsel[1]. At the end of the hearing I reserved my decision, which I now give.

1.7In respect of DCCJ 1956/2022 and DCCJ 3416/2022, I handed down my decision on 22 May 2023 by which I acceded to the respective defendants’ applications and dismiss the two actions (“Decision”).

1.8In the Decision, I have set out (I hope) a relatively comprehensive chronology of the relevant events at §§3.1 to 3.41. Particularly relevant to these proceedings are Decision §§3.27 to 3.34 which chronicle Master Pang’s involvement. As stated therein, Eva was the clerk providing assistance to and taking instructions from Master Pang in respect of the events relevant to these proceedings.

1.9As many of the matters set out in the Decision are in my view relevant and applicable to the determination of the Summons, where appropriate, I will make references to the Decision. Indeed, in the plaintiff’s affirmation dated 24 May 2023, his stated position is that the Decision[2] “have a direct impact on the present proceedings”, so much so that the plaintiff was of the view that no further evidence was required to be filed.

1.10Before I deal with the substantive issues, I should first deal with a procedural matter pleaded at Statement of Claim §82.

2.  Procedural point taken by the plaintiff

2.1At Statement of Claim §82, an invitation is made to me to consolidate the present action with DCCJ 1956/2022 and DCCJ 3416/2022.

2.2The first hearing of the Summons took place before Registrar M Soong on 27 April 2023. At that hearing, the learned Registrar had before her an affirmation from the plaintiff filed on 21 April 2023. In that affirmation, there was no indication from the plaintiff that he had desired for the present action to be consolidated with DCCJ 1956/2022 and DCCJ 3416/2022.

2.3The learned Registrar gave a set of directions for the evidential timetable and the lodging of a hearing bundle and skeleton submissions. She specifically adjourned the substantive hearing of the Summons to 2 August 2023 (“27/4/23 Order”).

2.4As stated at §1.7 above, I handed down the Decision on 22 May 2023 by which I struck out the respective Statement of Claim in DCCJ 1956/2022 and DCCJ 3416/2022 and dismissed the two actions. It is therefore plain that at the substantive hearing of the Summons on 2 August 2023, the other two actions were no longer “live” such that an application for consolidation might be considered.

2.5In the event, there is no appeal against the 27/4/23 Order nor has the plaintiff ever issued a summons for consolidation.

2.6There is, in my view, no merit in the procedural point taken by the plaintiff. I shall revisit this aspect in a later part of this decision, as the plaintiff has made a scathing but completely unjustified attack against the Department of Justice for pursuing the present strike out application.

3.  The plaintiff’s case

3.1It is plain from the allegations advanced in the Statement of Claim of the present action that (1) the plaintiff accepts that Macrae VP is protected by Article 85 of the Basic Law (“Article 85”) (Statement of Claim §79) and (2) following the Hearing, the plaintiff formed the view her claim against Eva was unlikely to survive the strike-out application as she had been instructed by Master Pang to provide the responses between 13 August to 6 October 2021 (Statement of Claim §§69 to 70)[3]. The realization that his claim against Eva would likely fail appears to be the raison d’etre for the commencement of the present action (Statement of Claim §71).

3.2In the Statement of Claim of the present action, it was originally alleged at §§71 and 80 that Master Pang, in his capacity as administrator under the instruction / authority of the Judiciary Administrator, instructed Eva to provide dishonest responses to the plaintiff in her letters sent between 13 August 2021 (referred to at Decision §3.29) and 6 October 2021 (referred to at Decision §3.34). In other words, resonant with DCCJ 1956/2022, like the allegation made against Acting Registrar Wong, the plaintiff here originally also maintained that Master Pang, at the material time, was not a member of the Judiciary, was not performing judicial but only administrative functions and was therefore not protected by Article 85.

3.3However, at the hearing, the plaintiff accepted that Master Pang was at the material time a judicial officer[4]. He, however, maintained that Master Pang, as a District Judge, has no jurisdiction in the High Court, and contended that Statement of Claim §80 should be amended from

“In his capacity as Temporary Deputy, High Court, [Master Pang] is not a Judicial Officer, is not protected by Judicial Immunity and is therefore susceptible to Civil Actions instigated via misfeasance in public office...”

to

“As Temporary Deputy Registrar, High Court, [Master Pang] a District Judge having status of a Judicial Officer is not protected by Judicial Immunity according to BL 85 since he is not “acting as a judge” or “doing a judicial act” or “acting judicially” or “in the execution of his office” or “quatenus a judge”.”

3.4The specific dishonest instructions allegedly given by Master Pang to Eva are set out at Statement of Claim §57, namely, he instructed Eva to (1) return the plaintiff’s Form XI application (“Allegation 1”), (2) allocate a false High Court file reference to the plaintiff’s Form XI application (“Allegation 2”) and (3) refused to process the plaintiff’s Form XIII application under section 83Y of the Criminal Procedure Ordinance Cap 221 (“Allegation 3”).

3.5The events relevant to the plaintiff’s three Allegations have been dealt with at Decision §§3.27 to 3.35. For avoidance of doubt, I make the same factual findings in the present case. I should also mention that the letter dated 13 August 2021 (referred to at Decision §3.29), apart from informing the plaintiff of Macrae VP’s directions made the previous day, also concluded by stating that “... your case will not be listed for hearing and all your documents being refused for filing are now returned to you.” That the Form XI was returned to the plaintiff is apparent from Decision §3.30.

3.6The plaintiff contends that the three Allegations all give rise to an arguable claim premised on misfeasance in public office.

3.7Further, the plaintiff persisted in indulging in his forensic exercise of casting doubts on Eva’s signatures which I dismissed as unjustified and irrelevant at Decision §§5.1 to 5.3. In the present proceedings, the plaintiff extended the exercise by comparing Eva’s signatures in the two affirmations filed herein with the “genuine” signature signed by Eva on the writ of DCCJ 3416/2022 on 2 September 2022.

4.  The Summons

4.1As in DCCJ 1956/2022 (the claim against Acting Registrar Wong), Mr Hor argued that the present claim should be struck out for disclosing no reasonable cause of action against Master Pang by reason of the absolute immunity enjoyed by him as conferred by Article 85.

4.2Further and/or in the alternative, the present claim should be struck out as it is frivolous, vexatious and/or an abuse of process. In particular, Mr Hor argued that on the undisputed or 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.

4.3I do not propose to repeat but would adopt what I consider to be the applicable principles set out at Decision §§4.1 to 4.4 (on misfeasance in public office), §§5.4 to 5.7 (on striking out on the ground of no reasonable cause of action in the context of Article 85) and §5.15 (on striking out on the frivolous, vexatious and/or abuse of process grounds).

4.4As in DCCJ 1956/2022 and DCCJ 3416/2022 (Decision §4.1), it is clear from Statement of Claim §66 that the plaintiff relies on the reckless untargeted malice limb of the tort of misfeasance in public office.

5.  Striking out on the ground of no reasonable cause of action

5.1The plaintiff’s allegation that Master Pang is not protected by Article 85 is two-fold.

5.2First, he contends that as the position of Temporary Deputy Registrar, High Court is not listed in Schedule 1 of the Judicial Officer’s Recommendation Commission Ordinance Cap 92 (“JORC Ordinance”), such a position is not a judicial office (Statement of Claim §§19-20). This is a similar argument made in DCCJ 1956/2022 which I found to be entirely unsustainable (Decision §§5.8 to 5.9).

5.3In the context of the present case, section 37A of the High Court Ordinance Cap 4 (“HCO”) makes provisions for the appointment of a Temporary Deputy Registrar. In particular, section 37A(2A) of the HCO provides that a Temporary Deputy Registrar has, during the period for which he or she is appointed, all the jurisdiction, privileges and duties of a Deputy Registrar. In my view, it is simply unsustainable for the plaintiff to argue that Master Pang, as a Temporary Deputy Registrar, did not hold judicial office.

5.4Although I have already formed the view at Decision §5.9 that the absence of a certain position in Schedule 1 of the JORC Ordinance has no bearing on whether that position is or is not a judicial appointment, it bears emphasis to note that the plaintiff, in the present case, accepts that the position of Deputy Registrar, High Court is listed in Schedule 1 of the JORC Ordinance (Statement of Claim §20). Where section 37A(2A) of the HCO provides that a Temporary Deputy Registrar has all the jurisdiction, privileges and duties of a Deputy Registrar, even on the plaintiff’s own (erroneous) logic, his argument that Master Pang did not hold judicial office is simply incorrect.

5.5Secondly, the plaintiff asserts that Master Pang was only performing “administrative” duties at the material time. As I have already set out at Decision §5.7, the phrase “the performance of their judicial functions” should be given a liberal interpretation, is not limited to deciding cases, and includes decisions on case management and related arrangements to ensure fair disposal of cases quickly and effectively.

5.6It is abundantly clear that Allegations 1 to 3 plainly fall within the rubric of the wide meaning given to the phrase “the performance of their judicial functions”.

5.7In my view, it is beyond argument that Master Pang is protected by Article 85 and the Statement of Claim should be struck out for disclosing no reasonable cause of action.

6.  Frivolous, vexatious, and/or an abuse of process

6.1Without prejudice to my conclusion that the Statement of Claim should be struck out for disclosing no reasonable cause of action, I proceed to deal with Mr Hor’s argument that the present claim should be struck out as it is frivolous, vexatious and/or an abuse of process.

6.2I carry out an exercise similar to that carried out at Decision §§5.16 to 5.20. There, I pointed out the necessity on the plaintiff’s part to satisfy five elements to succeed under the reckless untargeted malice limb (Decision §5.16).

6.3The factual matters stated at Decision §§3.27 to 3.35 are amply supported by the contemporaneous correspondence and are therefore undisputed or undisputable.

6.4On such facts, I am equally of the view that the plaintiff does not even get over the first and/or second hurdle, namely in respect of the three Allegations (1) Master Pang acted beyond his powers and (2) Master Pang knew he was acting beyond his powers or he did not honestly believe he was acting within his powers.

6.5On the facts, in respect of Allegation 1 and Allegation 3, Master Pang was simply following and following through the directions given by Macrae VP given on 12 August 2021. In respect of Allegation 2, I have already formed the view in the Decision that the reference to case number CACC 128/2020 was due to a clerical mistake and there is therefore no substance in the plaintiff’s allegation that a false High Court file reference was allocated to the plaintiff’s Form XI application: see also Decision §§5.28 to 5.29.

6.6Had it been necessary, I would also strike out the Statement of Claim as it is frivolous, vexatious and/or an abuse of process.

7.  Conclusion

7.1For all the above reasons, I strike out the Statement of Claim. I do not see how any proposed amendment can salvage the plaintiff’s claim (and none has been proposed). The action is therefore also dismissed.

7.2I make an order nisi that the plaintiff is to pay the defendant the costs of the present action, including the costs of the Summons, on an indemnity basis to be summarily assessed. Absent any application to vary, the costs order nisi shall become absolute within 14 days hereof.

7.3In my view, this is an appropriate case to order indemnity costs against the plaintiff. The plaintiff has continued to liberally make allegations which he knew or ought to have known to be untrue and without proper foundation. In the present case, the plaintiff has at one stage argued that the real defendant in the three actions is in fact the Department of Justice and unjustifiably accused the Department as behaving vexatiously and dishonestly. The plaintiff asserts that the plaintiff’s three actions “have been met with oppressive and draconian legal tactics to strike out” and the Department of Justice has a “perverse aim to delay and frustrate the Plaintiff’s legitimate claims to seek justice and to delay the exposure the outrageous dishonesty perpetrated by the “Department””. The plaintiff’s aspersions are based in part on his continued attempt to cast doubt on the veracity of Eva’s signature. I maintain my observation at Decision §5.2 that the plaintiff has not identified any or any cogent basis to cast doubt on the veracity of Eva’s signatures. In any event, as noted at Decision §3.2, the salient events are all documented in the relevant contemporaneous correspondence and are therefore undisputed or indisputable.

7.4The defendant has already provided his 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 defendant’s costs will be conducted on paper thereafter.

Mr Coomber, Peter John, plaintiff appearing in person

Mr Alvin Hor, Government Counsel, of the Department of Justice, for the defendant