Hahn-shin Micheline, Suckhi v. The Government of HKSAR Bailiff [Operation Section]

HCA 1499/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1499 OF 2006

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BETWEEN

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Before : Hon Lam J in Chambers

Date of Hearing : 22 January 2007

Date of Judgment : 5 February 2007

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J U D G M E N T

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1.The Plaintiff was a judgment debtor in Small Claims Tribunal claim No. SCTC 8507 of 2006.  The judgment was in the sum of $48,250.  She did not satisfy that judgment.  Sante Fe Transport International Limited, the claimant in that case, proceeded to levy execution by a writ of Fieri Facias.  That writ was executed in respect of the goods of the Plaintiff stored at the warehouse of Sante Fe.  The goods were seized by a bailiff on 14 June 2006.  The Plaintiff was unsuccessful in her attempts to apply for stay of execution and the goods were sold on 21 June 2006 at the price of $25,000.

2.The Plaintiff contended her goods were worth much more than $25,000 and she launched the present action to seek relief regarding the alleged damages suffered by her as a result of the wrongful manner in which the writ of Fieri Facias was executed and the sale of her goods at undervalue.

3.It should be mentioned that the sale was, in accordance with usual procedures, conducted by an auctioneer engaged by the bailiff and the Plaintiff herself was present at the auction.

4.The action was struck out by the Registrar on 13 November 2006.  Further on 29 December 2006, the Registrar assessed the costs to be $30,000.

5.The Plaintiff filed notices of appeal against these decisions on 3 and 8 January 2007 respectively.

6.The appeal against the decision of 13 November 2006 was out of time.  Order 58 Rule 1(3) provides that an appeal against a decision of a master to this court must be issued within 14 days after the decision appealed against was made.  Hence, the Plaintiff will need leave to appeal out of time.  Four matters have to be considered in the exercise of the discretion to extend time for appeal (see Hong Kong Civil Procedure 2007 Para. 58/1/9),

(a)	The prospect of injustice;
(b)	The length of the delay;
(c)	The reason for the delay;
(d)	The degree of prejudice to the other party.

7.The prospect of injustice depends very much on the prospect of success.  I shall come to that in due course.  The length of the delay is more than one month which is a rather significant period in the context of an appeal from a master to a judge.  The Plaintiff did not offer much explanation for the delay.  She said the Registrar had told her she could appeal against his decision at the hearing on 29 December and before that, she thought she could not appeal.  Even though the Plaintiff is not legally represented, she certainly had access to lawyers.  The contact address given by her in the writ is the office of a solicitor.  This fact is endorsed on the Writ of Fieri Facias.

8.As regards prejudice to the Defendant, the delay in the filing of the notice of appeal had at least deprived the Defendant the chance of considering adjourning the hearing of 29 December.  Costs were incurred by the Defendant at that hearing.  But this prejudice can, subject to the means of the Plaintiff, be compensated by an appropriate order for costs.

9.Coming back to the question of merits of the appeal against the striking out, the first and most important issue in this appeal is the identity of the Defendant.  As I told the Plaintiff in the course of the hearing, it does not serve the interest of a plaintiff who may have a good cause for complaint if he or she chooses to sue the wrong defendant.

10.The defendant to this action is named by the Plaintiff (after the amendment on 18 August 2006) as “The Government of Hong Kong Special Administrative Region.  Bailiff – [Operation Section]”.  The naming of the defendant in such a manner is ambiguous.  Reading the papers, it was not clear to me whether the Plaintiff intends to sue the Government or the bailiff and if it is the latter, which bailiff she intends to sue.

11.At the hearing on 11 January 2007, the Plaintiff told this court that she did not intend to sue any bailiff personally.  What she intends to do is to sue the Bailiff Office because she considered that the office as a whole should be responsible for the defects in the system in the execution process.  She also wants to sue the Government as it should be responsible for the wrong committed by one of its departments.

12.When this court enquired further whether she intends to sue two parties or one party, the Plaintiff asked for an adjournment to enable her to seek legal advice.  The case was adjourned with directions for written submissions to be filed within 14 days.  It was agreed unless the court otherwise directs, it is not necessary to restore the matter for further oral arguments.

13.The Plaintiff filed her written submissions on 22 January 2007 in the form of an affidavit.  At page 2 of that document, she said,

“When the Government servant providing job related service to the public, she or he made a mistake or not comply of the law … should be taken to a court of justice, whole department and the Government, what I mean is that the Government should be liable for the damage.”

14.She made reference to the provisions in the Crown Proceedings Ordinance to support her claims against the Government.  Then she referred to the items seized.  At the end of that document, the Plaintiff said,

“Remark: Your Honour, I have determined to claim my damages to the Government and also the Bailiff of section which has connected with my case.”

15.By these submissions, the Plaintiff indicates that she wishes to sue both the Government and the Bailiff Office.

16.The Registrar obviously regarded the Government to be the only defendant in this action.  Relying on Section 4(5) of the Crown Proceedings Ordinance Cap. 300, he struck out the action.  Insofar as the Plaintiff did intend to sue the Government, the analysis of the Registrar is correct in law.  Section 4(5) presents an absolute bar to claims against the Government in respect of anything done or omitted to be done by any person in the discharge of responsibilities in connexion with the execution of judicial process.  Execution of a Writ of Fieri Facias falls within the scope of that subsection.

17.Further, if the Plaintiff intends to sue the Government, she should have named the Secretary for Justice as the defendant, see Section 13(1) of the Crown Proceedings Ordinance.

18.The Plaintiff said she intended to sue the Bailiff Office.  However, the Bailiff Office is not a legal entity and it is procedurally incorrect to name it as a defendant.  There is also no question of the Chief Bailiff [Operation Section] being held vicariously liable for the acts of the other bailiffs, see Fu Lok Man James v Chief Bailiff  [1999] 3 HKC 742.  Hence, as far as corporate or vicarious liability is concerned, the proper defendant should be the Secretary for Justice but Section 4(5) bars such a claim.

19.In other words, there is no reasonable cause of action against a defendant on a corporate or vicarious level, be such defendant the Government, the Secretary for Justice or the Bailiff Office (or a section thereof).

20.The Plaintiff does not intend to sue any individual bailiff.  She does not name any individual as defendant to this action.  Therefore, I need not consider whether she has any arguable cause of action had she done so.  I would however observe that she may encounter problems in any event since,

(a)	The sale was by public auction conducted by a professional auctioneer in accordance with usual practice;
(b)	The Plaintiff was present at the auction and she could have therefore bid at a price which she deemed the goods were worth, given that she said she intended to purchase the lot from the successful bidder;
(c)	Apart from assertions, there is no concrete evidence as regards the market value of the furniture.  The Plaintiff has ample opportunities to pay off the judgment debt after the seizure of the goods before the sale but she failed to do so.  Had she genuinely believed that her furniture is worth much more than the judgment debt, one cannot help asking why she did not pay off the judgment debt to avoid the sale.

21.There is no merit in her appeal against the striking out of her action.  Having reached this conclusion, this court should not grant leave to appeal out of time.

22.The Plaintiff does not advance any independent argument to appeal against the decision of the Registrar of 29 December 2006.  The sum assessed by the Registrar is reasonable and could not be faulted.  That appeal is dismissed.

23.I also order the Plaintiff to pay the costs of the Defendant for both appeals.  Such costs will have to be taxed if not agreed.

24.The Plaintiff filed a second affidavit on 29 January 2007 without the leave of this court.  It was filed after this court has prepared the judgment. The second affidavit adds nothing relevant to the matters discussed and even if it were taken into account, the above analysis still stands.  Further, I must remind that the Plaintiff that a litigant should not file any evidence without leave of the court after close of submissions since it would be unfair to other party and may prolong proceedings and escalate costs.  Be that as it may, the second affidavit does not take her case further in this instance. 

The Plaintiff, appearing in person, present

Ms M. Soong, Government Counsel of Department of Justice, for the Defendant