Cheng Chen Sing v. The Queen and Others

HCA002630/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Power, J.

Date: 28th July, 1983.

__________

JUDGMENT

__________

1. In this matter the plaintiff, Mr. Cheng Chen Sing, is suing six defendants namely, the Queen, the Attorney General, the Toka Shikiso Chemistry Industry Co., Ltd., Madam Wong Wai King, Mr. Kam Wing Hang and Inspector Tsang Hing Ting of the R.H.K.P.F. The plaintiff drafted his own pleadings and is appearing in person. The wording of the Statement of Claim makes it clear that it was not drafted by a native English speaker. Despite a careful perusal thereof I am left in some doubt as to the exact nature of the plaintiff's causes of action. He appears to be suing the 2nd, 3rd, 4th, 5th and 5th defendants for damages for conspiracy to maliciously prosecute him. The plaintiff alleges that the Attorney General "instituted a false accusation against" him in the Tsuen Wan Magistracy which accusation was supported by false witnesses placed before the Court by the 3rd, 4th and 5th defendants at the direction of the 6th defendant who "instituted all intrigues personally." It appears that the false accusation was a charge of assault and that the plaintiff was found guilty of that charge and conditionally discharged.

2. He appears to be suing the Queen, as a representative defendant, for damages for abuse of jurisdiction by three judicial officers: Mr. Pritchard, who was acting as a Magistrate in the Truer Wan Magistracy in 1980 and Mr.T.Lee and Mr. C.K. Tung who were presiding officers in the Labour Tribunal in that year. He alleges that each has been guilty of an abuse of jurisdiction causing him damage. As can be seen from the entitlement to the action, he has not named any of the judicial officers as defendants.

3. Mr. Pritchard is alleged to have convicted the plaintiff knowing that he "was entirely innocent" and to have ordered that the plaintiff be psychiatrically examined mowing that he "then mentally was normal". Mr. C.K. Tung is alleged to have deleted important evidence in favour of the plaintiff from the record of certain proceedings in the Labour Tribunal. Mr. T. Lee is alleged to have prompted witness to give false evidence and to have altered the records of proceedings in other proceedings in the Labour Tribunal.

4. All of the defendants applied by way of Inter-Partes Summonses to the Master asking that the Statement of Claim be struck out on the grounds that -

5. The learned master struck out the Statement of Claim as against each of the defendants. The matter comes before me by way of appeal from those decisions.

6. Mr. Wong Hin Lee, who appeared for the 3rd, 4th and 5th defendants, submitted, as to the allegation of conspiracy to maliciously prosecute, that the decision of the learned master was correct and that the Statement of Claim was properly struck out. He relied upon Marrinan v. Vibart ⁽¹⁾ and referred particularly to the judgment of Lord Justice Salmon, at 238, where he said:-

"The immunity that witnesses enjoy in respect of evidence given in a court of justice extends to statements made in preparing a proof for trial and, in my view, also to statements made in a report to the Director of Public Prosecution and to evidence given in any judicial proceedings recognised by the law."

His Lordship went on to say, later in his judgment, and this seems to me to be very pertinent to the facts in the present matter:-

"The main contention on behalf of the plaintiff is that the gist of this action is not the defamatory statements made to the Director of Public Prosecutions, nor their repetition in evidence, but the antecedent combination or agreement to defame. It is argued that there is no authority for extending any immunity to such an agreement or combination. If, contrary to my judgment, the contention were correct that the gist of the tort of conspiracy is the conspiratorial agreement alone, it may be that the plaintiff would be entitled to succeed on this preliminary issue. In my view, however, this contention is plainly wrong; the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt act causing damage. It is true that the crime of conspiracy is the very agreement of two or more persons to effect an unlawful purpose, and any overt acts done in pursuance of the agreement are merely evidence to prove the fact of the agreement. The tort of conspiracy, however, is complete only if the agreement is carried into effect so as to damage the plaintiff. Accordingly, the acts done in pursuance of the agreement are an integral part of the tort."

7. In the present case the conspiracy alleged is a conspiracy to maliciously prosecute. As in Marrinan's case the tort is only complete if the agreement is carried into effect by the giving of evidence in the prosecution. The plaintiff must, in the present case, as in the Marrinan's case, rely for part of his cause of action upon the evidence which was given in the prosecution. Such matters cannot be properly made part of any cause of action because of the immunity that witnesses enjoy in respect of evidence given in a court of justice. That being so the learned master was right in striking out the Statement of Claim as against 2nd, 3rd, 4th, 5th and 6th defendants.

8. The action against the Queen as a representative defendant is clearly misconceived.

9. It is true that by virtue of the Crown Proceedings Ordinance Cap. 300, the Crown can be made liable for certain torts committed by its servants or agents. However, as provided by section 13(1) of the Ordinance, where such proceedings lie they must be "instituted by or against the Attorney General". It is never proper to implead the Queen by name and the action must be struck out. The action being struck out against the Queen, as it must be, can the plaintiff ask that the Attorney General, who is presently involved as a defendant to a different cause of action, be, nevertheless, called upon to defend on behalf of the three judicial officers. If, because of the alleged behavious of the three judicial officers, an action properly lay against the Crown the Court would be sympathetic to an application to amend which would have the effect of properly involving the Attorney General as a defendant in a representative capacity. However by virtue of s.4(5) of the Crown Proceedings Ordinance there is no action at all open against the Crown by reason of the alleged action of the judicial officers. This section reads as follows:-

"No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process."

This section makes it clear that no proceedings lie against the Crown for torts of the kind alleged against the three judicial officers. Clearly then action, in this regard, not only does not lie against the Queen but also does not lie against the Attorney General.

10. I feel it not inappropriate to point out that, even had the plaintiff named the three judicial officers as defendants, he might still have found difficulty in pursuing his action against them. Clerk & Lindsell on Torts in the Fourteenth Edition at paragraph 1975 states:-

"It is well settled that no action lies in respect of any mere abuse of jurisdiction of a court of record. The reason for this appears to be that it is less evil that corrupt or malicious judges should be protected, than that honest judges should be exposed to the risk of frivolous and vexatious proceedings. With respect to courts not of record, it is assumed in a great many cases that an action on the case will lie in respect of the damage caused by a wrong and malicious judicial decision, and the Justices' Protection Act 1848 is framed on the supposition that such is the state of the law. But for a bona fide though negligent decision a justice is not liable."

11. It seems to me arguable that both the Magistracy Court (See Regina v. The District Judge of Hong Kong ex-parte The Attorney General) ⁽²⁾ and the Labour Tribunal are courts of record and that no action of the nature contemplated by the plaintiff would, therefore, lie against the judicial officers of either body. I make this observation to alert the plaintiff to the difficulty which he may face should he wish to pursue his action further against these three officers.

12. I wish to make it clear, when so doing, that I have not fully canvassed the somewhat confused authorities as to what constitutes a court of record nor have I come to any concluded decision in this regard.

(1)    [1963] 1 Q.B.234

(2)    [1954] H.K.L.R. 8 at 23

Representation:

Mr. Cheng Chen Sing, Plaintiff appearing in person.

Madam Lewis (Legal Department) for 1st, 2nd and 6th defendants.

Mr. Wong Hin Lee (K.M. Lai & Lee) for 3rd, 4th and 5th defendants.