Choy Bing Wing v. The Chief Justice, Judiciary of HKSAR, China and Others

HCA125/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.125 OF 2005

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BETWEEN

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Before : Hon Suffiad J in Court

Date of Hearing : 15 July 2005

Date of Reasons for Ruling : 10 August 2005

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REASONS FOR RULING

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1.This is an application by the defendants by summons to strike out the Writ of Summons and Statement of Claim and to dismiss the action of the plaintiff against all defendants.

2.At the hearing before me on 15 July 2005, after I had dismissed the plaintiff’s summons asking that the defendants’ summons to strike out be struck out without hearing it, the plaintiff elected to leave the court and take no further part in the defendants’ application to strike out.

3.The present summons of the defendants to strike out the plaintiff’s claim therefore proceeded in the absence of the plaintiff.

4.I granted an order in terms of the defendants’ summons dated 17 February 2005 and indicated that I will give my reasons in writing later.  I now do so.

Background

5.The plaintiff appeared before a magistrate being the 2^nd defendant herein, on 26 October 2004, representing a company called Ngan Lung Café and Noodle Restaurant Ltd (“the restaurant”) at Tsuen Wan Magistrates’ Court.  The restaurant had been charged for operating a restaurant without a valid licence.  The hearing on 26 October 2004 was the trial of the charge against the restaurant.

6.In the course of the evidence and in his submissions, the plaintiff repeatedly accused various other persons, including another magistrate as well as a High Court judge of cheating and deception.

7.When the trial was resumed after a one-hour adjournment, the plaintiff was absent from court.  The 2^nd defendant, duly convicted and sentenced the restaurant.

8.In addition, the 2^nd defendant had intended to deal with the matter of contempt or using insulting language or concerning a magistrate as provided for by section 99 of the Magistrates Ordinance.  Since the plaintiff was absent in court after the adjournment, the 2^nd defendant ordered that a warrant of arrest be issued for the plaintiff's arrest so that he could be brought back to court.

9.The Warrant of Arrest was accordingly issued and signed by the 2^nd defendant.

10.Pursuant to the Warrant of Arrest, police officers had tried unsuccessfully on a number of occasions to locate the plaintiff.  The police officers left messages for the plaintiff to contact them at the Summons and Warrant Office.  The plaintiff on the other hand, complained to the Summons and Warrant Office that the arrest warrant issued against him was “inventive”, “illegal” and “counterfeit”.

11.Eventually on 17 November 2004, police sergeant number 12333 (the 4^th defendant herein) arrested the plaintiff at the plaintiff’s office in the execution of the Warrant of Arrest issued by the 2^nd defendant.  The plaintiff was eventually brought before the 2^nd defendant at Tsuen Wan Magistrates’ Court.  When before the 2^nd defendant, the plaintiff maintained that the Warrant of Arrest was a counterfeit.  The plaintiff finally withdrew his remarks and apologized to the 2^nd defendant.  As a result of such withdrawal and apology, the 2^nd defendant did not take the matter any further.

12.Thereafter, the plaintiff complained by letter to various persons, including the Chief Justice and the Commissioner of Police.  The plaintiff alleged that he had been wrongfully arrested, unlawfully detained and falsely imprisoned.  He also claimed that the magistrate concerned (i.e. the 2^nd defendant) had committed an offence of using a false instrument by issuing the Warrant of Arrest.  Such allegations were rejected by the Chief Justice and the Commissioner of Police.

13.On 21 January 2005 the plaintiff issued the present Writ of Summons in these proceedings against the defendants for damages for his wrongful arrest on the basis that the Warrant of Arrest issued against him was a “counterfeit”.

Defendants’ application to strike out

14.The defendants’ application to strike out the plaintiff’s claim was brought on the grounds that :

(1)	there is no reasonable cause of action against the defendants;
(2)	the claim is scandalous, frivolous and vexatious;
(3)	the claim may prejudice, embarrass or delay the fair trial of the action; and
(4)	is otherwise an abuse of the process of the court.

Claim against the 1^st defendant

15.The 1^st defendant is the Chief Justice, Judiciary of Hong Kong Special Administrative Region, China.

16.The basis of the plaintiff’s claim against the 1^st defendant is that the 1^st defendant, being the head of the Judiciary, through the 2^nd defendant made a purported Warrant of Arrest of the plaintiff and issued such Warrant to the Police Force.  Therefore the 1^st defendant has knowingly allowed the name of the Judiciary to attach to a counterfeit Warrant of Arrest for the unlawful acts complained of by the plaintiff to be carried out.

17.Such allegation do not and cannot disclose any cause of action against the Chief Justice for the simple reason that a magistrate (or for that matter any other judicial officer) in carrying out or discharging his duties as magistrate, does not act as the servant, agent or employee of the Chief Justice.

18.The plaintiff’s claim against the 1^st defendant therefore has no legal or proper basis whatsoever and must be struck out.

Claim against the 2^nd defendant

19.The claim against the 2^nd defendant was put on the basis that the 2^nd defendant had acted completely outside the ambit of the Magistrates’ Ordinance, Cap. 227 and therefore the purported Warrant of Arrest issued by him against the plaintiff was a counterfeit one (see paragraph 9 Statement of Claim).

20.It was well within the powers of the 2^nd defendant to issue the Warrant of Arrest against the plaintiff.  Section 99 gives the 2^nd defendant the power to summarily sentence any person (up to 6 months’ imprisonment) who “behaves in an insulting manner or uses any threatening or insulting expression to or concerning or in the presence of a magistrate when acting in the discharge of any magisterial duty”.

21.On the facts of the present case, the 2^nd defendant was entitled to consider that there was at least a prima facie case against the plaintiff for contempt or the use of insulting expression concerning or in the presence of a magistrate when acting in the discharge of any magisterial duty.

22.It was open therefore for the 2^nd defendant to issue a bench warrant for the plaintiff’s arrest so as to have the plaintiff brought back before him to be dealt with summarily.

23.On this basis alone, there can be no substance in the plaintiff’s criticism of the proceedings or the issue of the Warrant of Arrest by the 2^nddefendant.

24.Secondly, even if there was some defect in the Warrant or in the process of its issuance, Article 85 of the Basic Law provides absolute immunity in favour of the 2^nd defendant as a magistrate and the action against him by the plaintiff cannot be maintained but must be struck out.

25.Thirdly, even if there was any irregularity in the Warrant of Arrest, the 2^nd defendant was still acting within his jurisdiction as a magistrate.  On that basis, section 125 of the Magistrates’ Ordinance applies.  Section 125 states :

“In every action brought against any magistrate for any act done by him in the execution of his duty as such magistrate, with respect to any matter within his jurisdiction as such magistrate, it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause; and if at the trial of any such action the plaintiff fails to prove such allegation, he shall be non-suit or the judgment or verdict, as the case may be, shall be for the defendant.”

There is in the present case, no allegation that what was done by the 2^nd defendant was done maliciously and without reasonable and probable cause.  Even if such a plea was made, that would have been frivolous and an abuse of process, there being no proper basis for it.

26.For the above reasons, the claim against the 2^nd defendant cannot be maintained and must be struck out.

27.The fact that the plaintiff has labelled the Warrant of Arrest issued against him to be a “counterfeit” does not make it so.  In that respect, there is an affidavit by the 2^nd defendant that the Warrant of Arrest was issued and signed by him.  Nor has it ever been challenged by the plaintiff that the Warrant of Arrest was not issued or signed by the 2^nd defendant.  It is therefore for the plaintiff to show that the Warrant was a “counterfeit” if he so alleges.  That the plaintiff has not done.

Claim against the 3^rd and 4^th defendants

28.The basis of the claim against the 3^rd defendant is that he, being the Commissioner of Police, was the head of the Police Force, and that he has allowed his officers to carry out the unlawful arrest under a counterfeit Warrant of Arrest.

29.The Commissioner cannot be vicariously liable for the acts of police officers since police officers are not the servant or agent, and not even the employee of the Commissioner of Police.

30.Indeed the proper entity to name as a defendant, if the plaintiff had a genuine case of action against the act or acts of any police officer would be the Secretary for Justice as provided for by the Crown Proceedings Ordinance, Cap. 300 and not the Commissioner of Police.

31.Accordingly, the claim brought against the Commissioner of Police, being the 3^rd defendant in this matter, must also be struck out.

32.In the case of the 4^th defendant, Police Sergeant 12333, it is alleged that he had committed an unlawful arrest because the Warrant of Arrest was “counterfeit”.

33.Section 60 of the Police Force Ordinance provides :

“In case any action is brought against any police officer for any act done in obedience to the warrant of any magistrate, such officer shall not be responsible for any irregularity in the issuing of the warrant or for any want of jurisdiction in the magistrate issuing the same and he made plead the general issue and give such warrant in evidence; and on production of the warrant and proof that the signature thereto is the handwriting of a person reputed to be a magistrate and that the act was done in obedience to the warrant, the jury or court shall find a verdict or give judgment for the defendant who shall also will recover double his costs of suit.”

34.In the present case, the Warrant of Arrest has been produced as Exhibit “KAB-1”.  There is also unchallenged evidence from the 2^nd defendant that he, acting as a magistrate, issued and signed that warrant.

35.The act of the 4^th defendant in arresting the plaintiff was done in obedience to the execution of that warrant.

36.Under section 60 of the Police Force Ordinance, the 3^rd defendant has a complete answer to the claim.

37.Accordingly, the claim against the 4^th defendant cannot be maintained and must also be struck out.

Conclusion

38.It has clearly been shown that the plaintiff has no reasonable cause of action against any of the defendants.  Moreover, the claim brought by the plaintiff against all the defendants is scandalous, frivolous, vexatious and an abuse of court process.

39.It was for the above reasons that I made an order in terms of the defendants’ summons to strike out.

The Plaintiff, in person

Mr Godfrey Lam, instructed by Secretary for Justice, for the 1^st to 4^th Defendants