Park Young Sook v. Sharon Melloy
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HCA 763/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 763 OF 2010 ----------------------
---------------------- Before: Hon To J in Chambers (Open to Public) Date of Hearing: 30 June 2010 Date of Decision: 30 June 2010 ---------------------- D E C I S I O N ---------------------- Introduction 1.On 26 May 2010, the Plaintiff, Ms Park, acting in person filed a writ of summons endorsed with a statement of claim against Her Honour Judge Melloy, a District Judge sitting in the Family Court. By a summons filed on 10 June 2010, Judge Melloy applied to strike out the statement of claim and dismiss the action under Order 18 rule 19(1)(a) of the Rules of the High Court (“RHC”) on the ground that it disclosed no reasonable cause of action. 2.Upon reading Ms Park’s statement of claim, I realised that she was instituting action against a judge of the District Court who is immuned from legal action in respect of acts done in the performance of her judicial function under article 85 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (“Basic Law”) and section 71 of the District Court Ordinance, Cap 336. I considered it expedient to explain the above legal provisions to Ms Park and to ask her to show cause as to why an action could be brought against Judge Melloy before requiring the attendance of the judge in order to save costs. Accordingly, on 28 May 2010, I gave direction that Judge Melloy’s attendance at the hearing scheduled on 22 June 2010 would not be necessary and be dispensed with and that Ms Park would arrange her own Korean/English interpreter if she considered it appropriate. I had in mind the underlying objectives as stated in Order 1A of the RHC, i.e. to increase cost-effectiveness of any practice and procedure and to ensure that the case can be dealt with as expeditiously as is reasonably practicable and with a sense of reasonable proportion and procedural economy. If appropriate, I would have exercised my power of management under Order 1B of the RHC to make order on my own motion to dismiss this action. I must emphasise that it was my intention to do so, only if appropriate, i.e. only if Ms Park would be unable to show cause. I would have proceeded along this route to save costs, but for the intervention of the Secretary of Justice on behalf of Judge Melloy with the filing of the striking out summons. 3.The hearing on 22 June 2010 was re-scheduled to 30 June 2010 upon Ms Park’s request due to her illness. At the hearing today, Judge Melloy was represented by Mr Chong, Senior Government Counsel. I spent almost 30 minutes to explain to Ms Park about the provisions of article 85 of the Basic Law and section 71 of the District Court Ordinance and why no Korean/English interpreter was provided for her. Ms Park fully understood the explanation about the legal provisions but said that she had grounds to take legal action against Judge Melloy. She disagreed with my reasons for not providing her with a Korean/English interpreter. The background 4.Ms Park is a Korean national who has lived in Hong Kong for about 30 years. She used to work as a cabin crew for Cathay Pacific Airways Limited and now runs a business through Christine Lifestyles Limited. She married Mr Chu on 30 July 1988 in Hong Kong. They have one child born on 28 January 1996. They purchased a block of flats in Barker Road in 1991, which they sub-sold leaving two units on the top floor as their matrimonial home. The couple sold the flats and purchased two units in Piccadilly Mansions, which they sold to purchase a house in Sunshine Villa in Mt Kellett Road. 5.After 19 years of marriage, Mr Chu commenced divorce proceedings in Matrimonial Causes No FCMC 7365 of 2007 (“FCMC 7365/2007”) against Ms Park on 20 June 2007 based on unreasonable behaviour. A decree nisi was granted on 20 May 2008. On 19 September 2008, through their solicitors, Ms Park and Mr Chu obtained a consent order to sell their house in Sunshine Villa. A date was fixed for the trial on ancillary relief. On 13 October 2008, Ms Park suddenly chose to act in person. The trial on ancillary relief was then re-fixed to 2 and 3 February 2009 to enable Ms Park to apply for legal aid or otherwise arrange legal representation. On 2 February 2009, Ms Park acting in person applied for leave to appeal against certain decisions of Judge Melloy. The judge refused her application and proceeded to the trial of ancillary relief. However, Ms Park made a conscious decision not to participate in the hearing and walked out of the courtroom. The trial was conducted on 2 and 3 February 2009 in her absence. On 6 March 2009, Judge Melloy delivered judgment on final ancillary relief. Then Ms Park reneged her consent to sell the house in Sunshine Villa. As a result, Mr Chu obtained an order from Judge Melloy requiring Ms Park to vacate the property which led to an order for her committal on 23 March 2009 for four days to facilitate completion of the sale of the property. On 24 April 2009, the decree nisi was made absolute. 6.On 23 November 2009, Ms Park instituted High Court Action No 2353 of 2009 (“HCA 2353/2009”) against Mr Chu. On 26 May 2010, she issued the present proceeding against Judge Melloy. Korean/English interpreter 7.One of Ms Park’s complaints against Judge Melloy is that the judge did not provide her with a Korean/English interpreter. Civil litigation is a matter between the parties. I do not consider there is any obligation on the part of the court to provide litigants in civil actions with interpreters for the purpose of interpreting a non-official language used by a litigant to either of the official languages of Hong Kong. Whether to order an interpreter to be provided for by the Judiciary is a matter of discretion of the trial judge. If an interpreter is provided, it is through the courtesy of Hong Kong people because the interpreter will be paid by public funds. For reasons as explained hereinafter, I do not think it appropriate to exercise such discretion in the present case. Thus, on 28 May 2010, I specifically directed Ms Park to arrange for her own interpreter if she considered it appropriate. She did not so arrange despite she had a large team of assistants with her. There is no suggestion that she could not afford the cost of a Korean/English interpreter. 8.Ms Park argues that being a Korean, she is entitled to a Korean/English interpreter under article 11 of the International Covenant on Civil and Political Rights. However, article 11 only provided that no one shall be imprisoned for failure to fulfil his contractual obligation. It does not impose any obligation on the part of the state parties to the convention to provide interpretation services to litigants in civil actions to interpret from the litigant’s native language or language of his choice to the official language of the state where the litigation takes place. Probably what Ms Park had in mind was article 11 of the Hong Kong Bill of Rights under the Hong Kong Bill of Rights Ordinance, Cap 383. But that provision is only applicable to a person charged with or convicted of a criminal offence. The right of the person charged is to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. That has absolutely nothing to do with civil litigants in the pursuit of their own private interests. 9.Ms Park argues that it is unfair and unjust if she is not provided with an interpreter. I would not dispute her right to have the services of an interpreter provided she arranged for and paid the interpreter herself. I never prevented her from having the services of such an interpreter. I have given her directions to arrange for her own interpreter if she considered it appropriate. What I disagreed was for the Court to provide her an interpreter to be paid by public fund. 10.Under section 3(1) of the Official Languages Ordinance, Cap 5, the English and Chinese languages are declared to be the official languages of Hong Kong for the purposes of communication between the Government or any public officers and members of the public and for court proceedings. Whoever seeks access to the court has to use either of the official languages. 11.Invariably, in criminal proceedings, interpreters are provided for the purpose of interpreting any known languages used by witnesses and defendants into either of the official languages. This is to fulfil Hong Kong’s obligation under the International Covenant on Civil and Political Rights and the Hong Kong Bill of Rights and also because the prosecution or the government has the burden of proving the guilt of a defendant beyond reasonable doubt. It is convenient for the Judiciary to arrange for interpreter with the use of public funds in criminal proceedings. 12.However, in civil proceedings, it is the personal obligation of the parties to access the court in either of the official languages. If a plaintiff wishes to commence civil proceeding, he has to file pleadings and conduct the proceeding in either of the official languages. If he is not competent in either of the official languages, he has to provide his own interpreter or arrange for his own translation in respect of documents written in his own language. He may recover his cost of interpretation or translation from the defendant as part of his legal costs, if he is successful in the litigation. Likewise, a defendant to civil proceeding has to do the same. He may also recover his cost of interpretation or translation from the plaintiff as part of his legal costs, if he is successful in defending the action. If a party fails to use either of the official languages during any part of the proceeding, he could have no access to the court. His submission, whether oral or in writing, will not be received or will be rejected as syntax errors. Hence, in my view, it is the party’s own obligation to provide for and pay his own interpreter if he needs one. Such cost may be recoverable against the opponent if he is successful in the event. 13.Previously, a Korean/English interpreter had been arranged for Ms Park in some of the other proceedings in the High Court as well as in the Family Court, an arrangement which I do not endorse for reasons as explained above. Ms Park had appeared before me in another civil action, HCA 2353/2009 in which she sued Mr Chu. She had again been indulged with the services of an interpreter. Having worked as a cabin attendant in Cathay Pacific Airways Limited, Hong Kong’s flag carrier, and having otherwise lived, worked and carried on business in Hong Kong for over 30 years, Ms Park must be competent in either of the official languages. Indeed, she demonstrated herself to be a fluent speaker of the English language. Her pleadings and many of the documents such as letters emanating from her were written in English. Though her written English was not idiomatic, she was able to convey her ideas fully. In the course of the hearing, she even challenged the interpretation of the Korean/English interpreter. She then conducted the proceedings in English. She was able to convey her argument effectively and apparently understood arguments and submissions in English presented by the solicitor acting for Mr Chu. She was able to understand legal concepts explained to her in English. For reasons as explained in the preceding paragraph, I discontinued providing a Korean/English interpreter for Ms Park during the adjourned hearing in that case. In view of her competency in the English language, I saw no prejudice, injustice or unfairness in not providing her with an interpreter to be paid by public fund. Those reasons had already been explained to Ms Park at the hearing in HCA 2353/2009. 14.For the same reasons, I am of the view that Ms Park is not entitled to be provided with a Korean/English interpreter to be paid by public funds in this proceeding. She had been advised to arrange for her own interpreter beforehand if she considered it appropriate and she did not so arrange. She suffered no prejudice, injustice or unfairness through lack of the services of an interpreter. The law 15.I have briefly mentioned article 85 of the Basic Law and section 71 of the District Court Ordinance. Article 85 of the Basic Law provides as follows:
16.Article 85 is amplified by the detailed provisions in section 71 of the District Court Ordinance, which are as follows:
17.These provisions confer protection to judges in respect of their acts performed in the execution of their judicial function. Section 71(1) imposes a procedural bar against taking any action against a judge in respect of any act done by him in the execution of his judicial function until the act done complained of has been quashed on appeal to the Court of Appeal or by the Court. Even where an action may be taken against a judge, he will only be liable in respect of acts done maliciously and without reasonable and probable cause and the burden of proof that the acts were so done shall rest with the plaintiff. 18.Ms Park argues that this is unfair and unjust. But not only that this is the law, there is a good policy reason behind such enactment. The basis could be found in Lord Denning’s judgment in Sirros v Moore And Others [1975] 1 QB 118. Lord Denning said at 132D-F:
Such immunity is necessary in order that a judge may carry out his duty in upholding justice fearlessly and independently. Judicial independence is the corner stone of our judicial system and legal system. It is a value which has always been jealously guarded. Thus public interest overrides any private interest an individual may have against a particular judge in the performance of his judicial function. Section 71(2) has struck a fine balance between these two conflicting interests. The immunity is not absolute. A judge is liable in respect of acts done maliciously and without reasonable and probable cause. 19.Thus, in order to bring an action against a judge in respect of acts done in the performance of his judicial function, the act done by the judge which is being complained of must have been quashed on appeal and in addition the plaintiff bears the burden of proving that the act was done maliciously and without reasonable and probable cause. The Plaintiff’s claim 20.The generally endorsed statement of claim reads:
21.In her affidavit, Ms Park alleged that her constitutional, human and mother’s rights were violated in matrimonial proceeding presided and adjudicated by Judge Melloy. In her affidavit, she alleged:
22.In Exhibit One referred to in that affidavit, Ms Park alleged:
23.She filed bundles of documents of the size of three A-4 paper boxes, which on a rough estimate amounted to about 7,500 pages. Many of the documents were duplicated. They contained copies of affidavits and exhibits attached thereto which had been filed in HCA 2353/2009 and FCMC 7365/2007. There were letters from her friends, photographs of dinner parties, photographs of her son, photographs showing her various activities, reports from her handwriting expert, her own psychiatric reports, statements of her complaints against her own lawyers, etc. I do not claim to have read each and every page of those documents. But I have ploughed through them looking specifically for allegations, not evidence, which would be sufficient in law to maintain an action against a judge. But I can find none. 24.In essence, Ms Park’s complaints are as follows. She was beaten by Mr Chu and was forced to marry him. Mr Chu was an alcoholic and chronic epileptic. Their wedlock was devoid of sexual content. She was conceived by artificial insemination with sperms from an unknown donor. The block of flats in Barker Road, the two units in Piccadilly Mansions and the house in Sunshine Villa were purchased by her with her own funds. Mr Chu pocketed some of the proceeds of sale. Mr Chu conspired with their domestic helper, Bernadith Villahermosa, Dr Felix Lieh Mak and Dr Susan Mitsler to manufacture false evidence about her mental condition. A former civil servant, Mr Blake, who later worked in the Kowloon Canton Railways, the police and her own lawyers retained by her at different times also conspired together with Mr Chu against her. She also alleged that Judge Melloy joined in the conspiracy. Judge Melloy granted custody of her son to Mr Chu, ordered the sale of her house in Sunshine Villa, remanded her in custody, subjected her to assault by the police, etc. 25.Ms Park’s allegations against Judge Melloy are bald assertions unsupported by any evidence but her unreasonable conjecture. Essentially, she says that the judge made 78 orders, most of which were in her absence. There is nothing unusual in judges making orders in the absence of a party. Very often, the parties do not attend court if they are legal represented. Ms Park was legally represented by solicitors until October 2008. There were a few orders made in her absence thereafter, which were followed by inter parte hearing. There is nothing unusual about such ex parte orders. The trial on ancillary relief was conducted in the absence of Ms Park, but that was as a result of her conscious decision. 26.Ms Park also inferred a conspiracy from the fact that HH Judge Bebe Chu had worked in the same law firm as Mr Chu before she joined the Family Court and Ms Park suspected they are related as they have the same surname. She produced photographs depicting Judge Chu in a dinner reception with Mr Chu. Through that connection, she inferred that Judge Melloy had colluded with Mr Chu. That is speculation to the extreme and can hardly justify the very serious allegation against two judges acting in the performance of their judicial function. 27.Another of Ms Park’s complaint is that Judge Melloy did not provide her with an interpreter in the proceedings then before the judge. Presumably, she alleged that as misconduct and evidence of conspiracy with Mr Chu. For the same reasons as I have given above, I could find nothing wrong with Judge Melloy refusing to provide an interpreter for Ms Park. The judge was absolutely right in not exercising the discretion in Ms Park’s favour. Her refusal, even if it were wrong, could not have been an act done maliciously and without reasonable and probable cause. Nor could a conspiracy in the terms as alleged by Ms Park be inferred from such refusal. Discussion 28.The acts complained of against Judge Melloy were all related to the judge’s conduct of FCMC 7365/2007 and the orders she made in those proceedings. Clearly, those acts were performed by the judge in the performance of her judicial function. Accordingly, section 71 of the District Court Ordinance is applicable. 29.When explaining section 71 of the District Court Ordinanceto Ms Park at the beginning of the hearing, I asked her if any of Judge Melloy’s orders or acts complained of had been quashed by the Court of Appeal. She assured me that they had been and she had evidence. I am unable to find any evidence of any successful appeal against any of the judge’s decision from among the voluminous documents she filed. In course of hearing her submission, I asked her for such documentary evidence. Ms Park said she had not filed the evidence in Court or brought it alone with her. She asked for an adjournment to produce such evidence. I rejected that contention. Prior to the hearing, I have in my own time searched the Court’s record. To my knowledge, Ms Park had sought leave from Judge Melloy to appeal against her orders in the ancillary relief proceedings which is the main subject of Ms Park’s complaint, but her application was refused by the judge on 21 December 2009. She applied to a single judge of the Court of Appeal for leave to appeal against those orders out of time in High Court Miscellaneous Proceedings No 3 of 2010. Her application was refused by Hartmann JA on 9 March 2010. She renewed her application for leave to appeal before the Court of Appeal comprising of Yeung JA and Poon J. At the same time, she also applied for leave to appeal out of time against Judge Melloy’s access suspension order in High Court Miscellaneous Proceedings No 987 of 2010. Both applications were dismissed on 17 June 2010. All the matters which Ms Park now complains of against Judge Melloy had already been considered by Hartmann JA sitting as a single judge of the Court of Appeal and again by the Court of Appeal. On both occasions, her applications for leave to appeal were refused. Judge Melloy’s orders complained of still stand. On this basis, her statement of claim must be struck out as disclosing no reasonable cause of action. 30.Accordingly, Ms Park’s statement of claim is struck out and this action is dismissed under Order 18 rule 19(1)(a) of the RHC as disclosing no reasonable cause of action. Ms Park shall pay Judge Melloy’s costs, to be taxed on an indemnity basis, if not agreed.
Plaintiff appearing in person Mr. Matthew Chong, Senior Government Counsel of Department of Justice, for the Defendant Application for leave to appeal by the Plaintiff to Court of Appeal refused. Please refer to HCMP1373/2010 dated 19 August 2010 |