Tang Chai on v. Attorney General

HCA000950/1969

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO.950 OF 1969

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Coram: Rigby, C.J. in Chambers.

Date of Judgment: 8th April, 1970.

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JUDGMENT

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1. By his writ of summons, dated the 15th of August, the Plaintiff, who is the occupier of an oyster bed at Lau Fau Shan, New Territories, and carries on the business of cultivation of oysters thereat, claims damages against the Attorney General, as representing the Crown, for wrongful failure on the part of the Crown in failing to provide protection to the Plaintiff, his servants and agents, in respect of the Plaintiff's said business. The endorsement of claim on the writ does not specify whether the action is founded in contract or in tort.

2. The Attorney General applied for, and obtained, leave to enter an additional appearance, and within the requisite period of time now applies:-

3. Mr. Leonard, Principal Crown Counsel, concedes that upon the authorities the Crown owes a duty of protection towards its subjects, but be submits that it is a duty which the subject cannot enforce because the Crown is not amenable to the jurisdiction of the Court. It is a duty which was described by Brett, L.J. in the case of the Attorney General v. Tomline⁽¹⁾ as "a duty of imperfect obligation". Brett, L.J. put it in these words:-

"Supposing that the King were to neglect that duty, I know no legal means - that is, no process of law - common law or statute law - by which the Crown could be forced to perform that duty, but there is that duty of imperfect obligation on the part of the Royal authority, and that duty on the part of the King gives a corresponding right to the subject; but inasmuch as the duty of the King seems to me to be a duty of imperfect obligation, the right of the subject is also an imperfect right. It is a right which as against the Crown the subject has no means to enforce: nevertheless the right exists. The right of the subject exists and the duty of the King."

4. Cotton, L.J. in the same case, also pointed out that the duty and obligation of the Crown was one which the subject could not enforce

"... for this reason, and for this reason only, that the Crown is not amenable to the jurisdiction of the Court, and any default of duty on the part of the Crown (unless where a petition of right gives a remedy) cannot be made the ground of an action."

It is true that the duty there under consideration was the duty of the Crown to protect the realm from the inroads of the sea, but in the case of the Isle of Ely⁽²⁾ Coke, C.J. said:-

"the King ought of right to save and defend his realm as well against the sea as against the enemies that it should not be drowned or wasted".

Protection and allegiance are correlative and extend to any of Her Majesty's Dominions or Territories over which she has jurisdiction. (See the Judgment of Cockburn, C.J. in the Queen v. Keyn).⁽³⁾

5. The duty of the Crown to afford protection to its subjects was tested in the case of the China Navigation Company v. the Attorney General.⁽⁴⁾ The Plaintiffs, an English shipping company, carrying on business in Hong Kong, traded in both local and Chinese waters. Its trade consisted both of carrying cargo and passengers. The Chinese and neighbouring waters were infested by pirates who frequently attacked ships trading in those waters, both from within and without the ships, the attacks from within being by evil-disposed persons who came on board - whether at the port of Hong Kong or Chinese ports - ostensibly as ordinary and peaceable passengers but who, on opportunity ...(illegible), overpowered the officers and crew and took possession of the ship and all valuables therein. For some time the Government of Hong Kong was prevailed upon by various ship owners, including the Plaintiffs, to provide and place naval and military guards on board. Subsequently, however, Government notffied ship owners that as from a specified date ship owners would be required to pay in full for all guards supplied.

6. The Plaintiff Company instituted proceedings in England against the Attorney General of England as representative of the Crown, seeking for, in substance declarations that the Crown had no authority to demand money for providing protection against piracy, the ship owners, as subjects of His Majesty, being entitled to require the Crown to provide the necessary protection without payment. Rowlatt, J., before whom the action came, dismissed it as misconceived. Upon appeal, the Court of Appeal affirmed that decision, holding that the Crown has no legal duty to afford by its military forces protection to British subjects in foreign parts. If, in the exercise of its discretion, the Crown decides to afford such protection, it may lawfully stipulate that it will do so only on the condition that the cost should be borne by those requiring such extraordinary protection.

7. It is relevant to observe that the relief there sought by the Plaintiffs was a declaration that they, as subjects of the Crown, were entitled to the protection sought, whereas the claim in the present case is one for damages for the alleged failure to give such protection. Secondly, as Mr. Litton, Counsel for the Plaintiff in the proceedings now before me has pointed out, that case is only authority for the proposition that the Crown owes no duty of protection to its subjects in foreign parts.

8. In that case a statement of defence was filed by the Attorney General, pleadings were concluded and the action heard and determined on its merits. Mr. Litton complains that it is premature at this stage, before any pleadings in the form of a statement of claim and statement of defence have been filed, to apply to strike out the writ, and that if objection was to be taken the more appropriate course would have been for pleadings to have been filed and then, if any objection as to jurisdiction was to be taken, for it to be decided as a preliminary issue before trial - as was, indeed, done in the case of Nissan v. the Attorney General.⁽⁵⁾

9. In that case the Plaintiff, a British subject living in Cyprus, sued Her Majesty's Government, through the Attorney General of England, for compensation for a hotel belonging to him which the British Government had taken over for the occupation of British troops during the period of civil strife in Cyprus. The troops, with the approval and consent of the Cyprus Government, were part of a truce-force consisting, at first, of troops from the United Kingdom, Greece and Turkey and later, again with the approval and consent of the Cyprus Government, part of a United Nations peace-keeping force.

10. In refusing to pay such compensation the Attorney General, by his statement of defence, contended, first, that the British Forces were acting as agents of the Cyprus Government when they took possession of the hotel and, alternatively, that the acts of the British Elements were Acts of State of Her Majesty on the territory of an independent sovereign power in pursuance of an agreement between Her Majesty and the said power and, therefore, not within the jurisdiction of a British Court.

11. Stephenson, J., before whom these preliminary issues first came, decided substantially in favour of the Attorney General. Upon appeal, Nissan v. Attorney General⁽⁶⁾ Lord Denning, M.R., said:-

"I never like deciding points of law before knowing the facts. Experience has taught me that a correct decision of any case depends on a true appreciation of the facts;"

The Court of Appeal reversed part of Stephenson J's decision and affirmed part of it. The Attorney General appealed to the House of Lords and the Plaintiff cross-appealed.⁽⁷⁾ Lord Wilberforce, in the course of his speech, said that he had found it

"... difficult to view the issues with any width of vision and for my part I feel reluctant, until I can properly survey the field, to do more than deal with the precise points stated in the master's order; more particularly since, on the view which I take, this case cannot be stifled or decided in limine but must go to trial."

12. In the final result their Lordships dismissed the Attorney General's appeal and allowed the Plaintiff's cross-appeal.

13. In the case of Dyson v. The Attorney General⁽¹⁾ the plaintiff there sought a declaratory judgment against the Attorney General to test the validity of what were then known as Form IV Notices issued by the Commissioners of Inland Revenue under the Finance Act (1909-1910). The Attorney General took out a summons under what was then O.XXV r. 4 (now o.18 r.19) of the Rules of the Supreme Court to strike out the pleading on the ground that it disclosed no reasonable cause of action. The application was successful before the Master in Chambers and the Master's decision was affirmed by the Judge in Chambers. On appeal to the Court of Appeal the Order was reversed - all three Judges holding in emphatic terms that that Order was never intended to apply to any pleading which raises a question of general importance or a serious question of law, Fletcher Moulton L.J. saying that it was evident to him that:-

"our judicial system would never permit a plaintiff to be "driven from the judgment seat" in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad."

That same case, in its final stages and after conclusion and determination of the issues before the Court, again came before the Court of Appeal at a later date.⁽²⁾ Fletcher Moulton L.J., adverting to the earlier decision of the Court of Appeal on the interlocutary application, said:-

"It is not in accordance with the practice of the Court, nor is it desirable, to refuse to allow cases raising points which involve serious argument to go to trial so that the parties may have them decided in the ordinary way at the trial and may enjoy the rights of appeal following from their being so decided."

o.15 r.16 of the Rules of the Supreme Court provide that:-

"No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed."

In Guaranty Trust Company of New York v. Hannay & Company⁽¹⁾ the Court of Appeal, by a majority, held that under that rule - which was then O.XXV r.5 of the English Rules - the Court has power to make a declaration at the instance of a plaintiff though he has no cause of action against the defendant. Bankes L.J. took the view that the rule applied where a person is seeking relief, or in whom a right of relief is alleged to exist, and his application for a declaration is not to be refused merely because he cannot establish a legal cause of action. At the conclusion of his judgment he made it clear, however, that the granting of such a declaratory judgment was a matter for the discretion of the Court and he expressed the view that it seemed to him unlikely, on the particular facts of that case, that a case, that a case could be made out to justify the exercise of the discretion of the Court. However, no such application for a declaratory judgment was then before that Court for its decision.

14. As I have earlier said it is, of course, true that the China Navigation case, unlike the case now before me, was a claim seeking only declaratory orders, and that both Dyson's case and the Guaranty Trust case were cases in which the Courts, upon claims for declaratory judgments, had refused applications for those claims to be struck out on the ground that they disclosed no cause of action. I have referred to these cases because they illustrate the very natural and proper reluctance of the Courts to strike out an action in limine without giving the plaintiff an opportunity to have the facts upon which he bases his claim heard and adjudicated upon by the Courts in the ordinary and normal manner. Mr. Litton submits that it is premature at this stage to preclude the plaintiff from filing his Statement of Claim and disclosing the relief which he claims including, if he is so minded, a claim or claims for declaratory orders. He has further submitted, upon the authority of the case of Harrison-Broadley & Others v. Smith⁽¹⁾, that it is in the power of a Court to grant declaratory relief even though it has not been claimed in the pleading. Without going into the facts of that case, having read the case with some care, I think it probable that the view which the Court there expressed was not to be taken as an expression of universal practice but was one confined to the facts of that particular case.

15. However, the difficulty, as it seems to me, with which Mr. Litton is confronted is really this: as Mr. Leonard has pointed out the two applications before me, although stated to be in the alternative, are in reality entirely separate and independent. The first is an application to set aside the writ on the ground that the subject matter is not one to which the Crown is amenable to the jurisdiction of the Court. The second is an application to strike out the endorsement of claim on the writ on the ground that it disclosed no cause of action. Adopting the view expressed by Lord Denning in Nissan's case to which I have referred, for my own part I never like deciding points of law before knowing the facts, and I cannot but feel that it would have been eminently more satisfactory, in so far as this Court is concerned, if the case had been allowed to go to trial - as was done in the China Navigation Company case - and the points of law involved in the case determined at the conclusion of the evidence in the form of a final judgment or, alternatively, if pleadings had been filed for the points of law involved to have been submitted as a preliminary issue for determination before trial - as was done in Nissan's case. Nevertheless, I do not doubt that the Crown is strictly entitled to adopt the course it has done in this case and there may be good reason, unknown to me, as to why it has done so.

16. Turning now to the first application before me, under o.12 r.7 the defendant was entitled, with the leave of the Court, to enter a conditional appearance in the action. Having entered such a conditional appearance, the defendant was bound to apply to the Court within 14 days for an order setting aside the writ, setting out the grounds of the irregularity alleged and supporting his application by affidavit. The writ of summons is a claim for damages. o.6 r.2 provides that the Statement of Claim must be endorsed with a concise statement of the nature of the claim made and the relief or remedy required. The note to the relevant order contained in the Supreme Court Practice, 1970, Volume 1 (at page 34) states that:-

"Where the claim arises out of a contract the endorsement shall state the date of the contract (and whether oral or written), between whom made and the nature of the claim or the relief or remedy arising thereunder; if it arises out of a tort, the date and place of the occurrence, and the nature of the tort alleged."

As I have earlier stated, the endorsement on the writ now under consideration does not specify whether the claim for damages is founded in tort or in contract. Claims against the Crown, which formerly could only be brought by way of Petition of Right, subject to the grant of the Royal fiat, can now be brought as of right under the Crown Proceedings Ordinance (Cap. 300), providing the claim falls within the provisions of that Ordinance. Formerly a Petition of Right did not lie for damages for a tort alleged to have been committed either by the Crown or by a servant of the Crown acting by the Crown's authority but, here again, an action for damages for tort can now be brought providing the claim falls within the provisions of the Ordinance.

17. Section 4(1) of the Crown Proceedings Ordinance provides that:-

The section further provides however that:-

"no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Ordinance have given rise to a cause of action in tort against that servant or agent or his estate."

18. Section 4(2) and (3) enact that:-

19. Section 34(2) further provides that:-

20. The Attorney General, in support of the application to strike out the writ, has put in an affidavit under the hand of the Government officer having knowledge of the matters to which he deposes that the only official organizations in the Colony of Hong Kong available for protection of property in the Colony are:-

21. The affidavit further deposes that :-

22. If the Plaintiff's claim is based upon tort - and I think it must necessarily be - then, in my judgment, having regard to the affidavit filed read in conjunction with Section 4 - and particularly sub-section (2) of that Section - no cause of action in tort within the provisions of the Crown Proceedings Ordinance has been disclosed on the face of the writ and, as a necessary corollary, it follows that the Crown is not amenable to the jurisdiction of this court.

23. I am left in no doubt that the indorsement on the writ is so lacking in particulars that it discloses no cause of action in contract; indeed, I apprehend that it was never intended that any action in contract would or could lie and the action was intended to be founded in tort on the basis of a somewhat nebulous suggestion of a breach of a statutory or common law duty to provide protection for Her Majesty's subjects within the Colony of Hong Kong. In my view, upon the authorities to which I have referred, any such duty or obligation which may exist cannot be enforced in the courts by way of action against the Crown.

24. That is really sufficient to dispose of this action. I have no doubt that the same argument is equally valid on the application that the indorsement of the claim on the writ be struck out as disclosing no reasonable cause of action.

25. It may well be that in so far as the indorsement of the claim on the writ is concerned it might have been possible, with the leave of the court and on application being made, to amend the indorsement by substituting a claim for a declaratory order in place of the claim for damages. Whether or not the substitution of an entirely different claim can properly be described as an amendment is a matter unnecessary for me to decide. It is sufficient to say that no such application has been made. But in my view no such application, even if it had been made, would have or could have, cured the defect in the issue of the writ itself. In my view, the writ itself being fundamentally defective, conditional appearance having been entered and the requisite application having been made to set aside the writ, it would not be open to this court to give leave to amend the writ - even if such an amendment had been made. The writ is inherently defective and not capable of amendment. It is with great reluctance that I have come to this conclusion since I find it distasteful to dismiss an action in limine without giving a party allegedly aggrieved an opportunity to present its case. At the risk of repetition I would again reiterate the words of Lord Denning:-

"A correct decision of any case depends on a true appreciation of the facts."

26. In the result, in my judgment, the defendant is entitled to the order which he seeks. The writ of summons must be set aside on the grounds that this court has no jurisdiction to adjudicate thereon in that the subject matter is not one in which the Crown is amenable to the jurisdiction of the court and the cause of action, if any, specified in the writ is not such as is recognised by the Crown Proceedings Ordinance. That is sufficient to dispose of the action. For the same reason, if it had been necessary to do so, I would have struck out the indorsement on the writ on the ground that it discloses no reasonable cause of action.

27. The defendant is entitled to his costs on the hearing of this application and all matters incidental thereto.

Representation:

Leonard, P.C.C. for Applicant/Defendant.

H. Litton (P.H. Sin & Co.) for Respondent/Plaintiff.

(1) (1880) 14 Ch.D. 58 at 66.

(2) 10 Rep.141,a.

(3) (1876-7) 2 Ex.D.63 236.

(4) (1932) 2 K.B. 197.

(5) (1967) 2 All E.R. 200.

(6) (1967) 2 All E.R.1238 at 1241.

(7) (1969) Att. General v. Nissan. 1 All E.R. 629 653.

(1) (1911) ...(illegible) K.B. 410.

(2) Dyson v. Attorney General, (1912) 1 Ch. 158, at 167.

(1) (1915) 2 K.B. 536.

(1) (1964) 1 All E.R. 867.