Ma Kwai Chun v. Leong Siu Chung and Another

[English Translation – 英譯本]
CACV 227/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 227 OF 2002

(ON APPEAL FROM HCA NO. 5075 OF 2001)

-------------------------------------

-------------------------------------

Before: Hon Woo and Cheung JJA in Court

Date of Hearing: 18 July 2002

Date of Judgment: 5 August 2002

------------------------

JUDGMENT

------------------------

Hon Woo JA (delivering the judgment of the Court):

1.The plaintiff in the present case is Madam Ma Kwai Chun (“Madam Ma”).  On 19 February 2002, her Statement of Claim was struck out by Registrar Chan, who also ordered that the action by Madam Ma be dismissed.  No order for costs was made.  Madam Ma appealed to the Court of First Instance.  On 3 May 2002, Yeung J (as he then was) dismissed the appeal, but again no order for costs was made.  Madam Ma now appeals to this Court.

2.At the material time, the 1^st defendant Leong Siu Chung was Chief Judge of the High Court and the 2^nd defendant Lung Kim Wan was a Master of the High Court.  In her Statement of Claim, Madam Ma alleged that the 1^st defendant dealt with her complaints in a discriminatory and nonchalant manner and was being oppressive to her as a litigant in person.  She also alleged that the 1^st defendant did not care much about her complaints and was biased towards the 2^nd defendant by allowing him to infringe upon her rights.  As against the 2^nd defendant, the Statement of Claim alleged that, when he was hearing HCA 101/2001, he instructed the defendant’s lawyers to change litigation tactics and struck out Madam Ma’s claim.  She further alleged that the 2^nd defendant insulted her with malicious language and infringed upon her rights etc in the course of trial.

3.Madam Ma alleged that the 1^st defendant discriminated against her complaints and defended the unfair conduct of the 2^nd defendant at trial.  She also contended that she suffered discrimination and unfair treatment in the court, which caused further deterioration in her already poor health.  The Statement of Claim averred that the aforesaid conduct of the two defendants infringed upon her rights; and that she should be accorded legal protection by virtue of articles 10, 13 and 22 of the Bill of Rights, but the two defendants had seriously infringed upon those rights of hers.

4.Relying on O. 18 r. 19(1) of the Rules of the High Court (Cap. 4) and the inherent jurisdiction of the court, the defendants applied to strike out the Statement of Claim and dismiss the action.  Both Registrar Chan and Yeung J held that Madam Ma failed to show any cause of action against the defendants and that the matters set out in the Statement of Claim did not reveal any infringement of Madam Ma’s human rights, and therefore agreed that the Statement of Claim should be struck out and the action dismissed.

5.In her notice of appeal, Madam Ma advances a number of grounds of appeal, which all boil down to the contention that article 85 of the Basic Law of the Hong Kong Special Administrative Region, which Registrar Chan and Yeung J relied on, is not applicable to the present case and cannot override the rights that Madam Ma enjoyed by virtue of articles 10, 13 and 22 of the Hong Kong Bill of Rights.

6.Article 10 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) is concerned with “equality before courts and right to public and fair hearing”, whereas articles 13 and 22 are respectively concerned with “right to recognition as person before law” and “equality before and equal protection of law”.  Article 85 of the Basic Law provides as follows:

The Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.  Members of the judiciary shall be immune from legal action in the performance of their judicial functions.

7.The 2^nd defendant’s conduct at the hearing of HCA 101/2001 that Madam Ma complained of in her Statement of Claim, was “conduct in the performance of [the 2^nd defendant’s] judicial function”, and therefore he is immune from legal action by virtue of article 85.  This does not contravene Madam Ma’s right to public and fair trial under articles 10, 13 and 22.  In the circumstances of the present case, there is no conflict between the two statutes.

8.In his judgment, Yeung J also explained the principle under article 85 of the Basic Law:

… Needless to say, a judge must deal with a case without fear or favour.  At the same time, a judge is protected by the law so that, in the course of dealing with a case, he is immune from any consequence which is prejudicial to him.  Without such protection, a judge can hardly deal with a case without fear or favour.  And it is for this reason that article 85 of the Basic Law expressly provides that a judge is free from any interference in hearing and determining a case and is immune from legal action in performing his judicial functions.  This protection must be an absolute one, otherwise it will be extremely difficult for a judge to perform his functions.

9.In Royer et al v Mignault (1988) 50 DLR (4^th) 345, Judge Rothman of the Court of Appeal of Quebec, Canada elaborated on the immunity of judicial officers from civil liability.  At page 352, he said:

The immunity of judges from civil liability for acts done in the performance of their judicial functions is an ancient and well established principle of our law inherited from English common law …

Judge Rothman went on to say:

The purpose of the principle is not, of course, to protect the personal interests of judges, but rather to protect the public interest in an independent and impartial justice system.  To this end, judges, in performing their judicial functions, must be able to do so without fear of personal liability for what they say or do in their judicial capacities.  Any errors they make may be corrected on appeal (or judicial review, as the case may be), but they should not have to fear that they may be threatened by dissatisfied litigants, or others, with civil actions charging them with malice, bias, or excess of jurisdiction.  A judge should not be subject to the influence of personal concerns, conscious or unconscious, when performing his judicial functions.

10.If Madam Ma was dissatisfied with Master Lung’s ruling, she was entitled to lodge an appeal.  In fact, she did appeal to the Court of First Instance against the Master’s decision to strike out her Statement of Claim in HCA 101/2001 and dismiss that action.  The appeal was dismissed by Deputy Judge Poon.  Madam Ma then appealed to this Court, which allowed the appeal.  The appeal procedure is a prescribed procedure of the judicial system and allows a litigant who is dissatisfied with the judgment of any judge to appeal to the upper court in accordance with the established rules.  Article 85 of the Basic Law provides an absolute protection for acts done by judicial officers in the administration of justice, in order to ensure that these officers deal with cases without bias, favour or fear and to effectively prevent litigants from commencing proceedings against these officers personally, such as what Madam Ma is seeking to do now.

11.In respect of Madam Ma’s claim against the 1^st defendant, we have no hesitation in concurring with Registrar Chan and Yeung J in holding that the matters that Madam Ma complained about do not reveal a valid cause of action.

12.Not long ago, Madam Ma filed with the court an “Amended Writ” for the present case dated 9 July 2002, followed by a “Second Amended Writ” dated 11 July 2002.  These two amended writs accused the 1^st defendant of negligence in management and of bias towards the 2^nd defendant and other Masters, as a result of which she met with one hindrance after another from the Masters.  These two writs have been filed without leave of the court, but in order to be fair to Madam Ma, we have also carefully considered the writs to see whether they are capable of providing some sort of remedy to the striking-out of Madam Ma’s Statement of Claim and the dismissal of her action.

13.We have to point out that Masters of the court deal with and hear cases independently.  Although the 1^st defendant is Chief Judge of the High Court, Masters are not and cannot be regarded as the 1^st defendant’s subordinates in performing their judicial functions.  Masters act independently in dealing with and hearing cases, and the 1^st defendant has no power to manage or dictate the way in which Masters deal with cases.  It follows that the “negligence in management” as Madam Ma has alleged simply does not exist.  On the other hand, as we have stated above, where a Master makes a mistake in performing his judicial function or where a litigant is dissatisfied with a Master’s decision, it is open to the litigant to lodge an appeal to the upper court in accordance with the established procedure and rules.  In that case, the judge of the upper court, including judges of the Court of First Instance and of this Court and also the 1^st defendant, will deal with the appeal according to the law.   All acts done by Masters and judges on various levels in the performance of their judicial functions enjoy absolute protection under article 85 of the Basic Law.

14.Having carefully examined the two amended writs, we take the view that they offer no assistance to Madam Ma’s appeal.

15.For the above reasons, we see no merits in the grounds of Madam Ma’s appeal, which accordingly stands to be dismissed.  We also make an order nisi that Madam Ma is to bear the two defendants’ costs of the appeal.

Ms Ada Chung, Deputy Principal Government Counsel, for the 1^st and 2^nd defendants.

The plaintiff in person.

Translated by Mr. Edmund Cham, Solicitor.