Park Young Sook v. Sharon Melloy

HCMP 1373/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1373 OF 2010

(ON AN INTENDED APPEAL FROM HCA NO. 763 OF 2010)

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Before: Hon Tang VP and Le Pichon JA

Date of Decision: 19 August 2010

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D E C I S I O N

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Hon Tang VP:

1.The plaintiff, Park Young Sook, seeks to appeal the decision of To J given on 30 June 2010 whereby he struck out the claim brought against a District Judge in respect of the conduct of proceedings before her and her actions as a judge.  As the judge correctly set out in his judgment, the action against District Judge is unsustainable for two reasons.  In the first place, Article 85 of the Basic Law provides that:

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

2.In the second place, section 71 of the District Court Ordinance, Cap. 336 provides:

“ (1)  No action shall be brought against a judge for any act done by him in the execution of his duty until the act done by him has been quashed on appeal to the Court of Appeal or by the Court.

(2)  No such action shall be brought in respect of any matter within the jurisdiction of the judge unless it is expressly alleged that such act was done maliciously and without reasonable and probable cause and the burden of proof that the act was so done shall rest with the plaintiff in such action.

(3)  In any such action in respect of any matter over which by law the judge had no jurisdiction or in which he exceeded the jurisdiction conferred on him by this Ordinance or by any other enactment, it shall be a good defence that the act complained of was not done maliciously and without reasonable or probable cause and the burden of proof that the act was not so done shall rest with the judge.

(4)  Save under and in accordance with this section no action shall lie in any civil court against a judge for any act done in a matter over which by law he had no jurisdiction or in which he exceeded the jurisdiction conferred on him by this Ordinance or by any other enactment.”

3.Since none of the matters complained of have been the subject of any appeal, any action by the plaintiff in respect of them is clearly unsustainable.  In those circumstances, any appeal would be futile.

4.I would refuse this application for leave to appeal and would make an order under Order 59 rule 2A(8) that since this application is totally without merit, no party may request the determination to be reconsidered at an oral hearing inter partes.  I would make an order nisi that the costs of this application be to the defendant.

Hon Le Pichon JA:

5.I agree with the Decision of Tang VP and the orders he proposes.

Application to serve a notice of appeal by the Defendant to Court of Appeal allowed. Please refer to HCMP1727/2010 dated 30 September 2010