Park Young Sook v. Sharon Melloy

HCMP 1727/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1727 OF 2010

(ON APPEAL FROM HCA NO. 763 OF 2010 )

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BETWEEN

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Before: Hon Yeung JA and Saw J

Date of Hearing: 15 September 2010

Date of Judgment: 15 September 2010

Date of Handing Down Reasons for Judgment: 30 September 2010

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

1.The applicant, Ms Park Young Sook (“Ms Park”) was the respondent in FCMC 7365/2007 in which her ex-husband Mr Chu sought a divorce from her. Judge Melloy of the Family Court was the judge in charge of FCMC 7365/2007.

2.In May 2010, Ms Park commenced proceedings in the High Court (HCA 763/2010) seeking damages against Judge Melloy on the basis that Judge Melloy had, in conspiracy with Mr Chu, wrongly and maliciously, made orders and rulings against her. Ms Park complained that the orders and rulings of Judge Melloy not only caused her mental, physical and financial injuries, but had also deprived her of access to her son.

3.On 30 June 2010, To J struck out Ms Park's statement of claim and dismissed her action against Judge Melloy under Order 18 rule 19(1)(a) of the Rules of the High Court for disclosing no reasonable cause of action.

4.On 21 July 2010, Ms Park took out a summons for the following order:

“Appeal be allowed from the Judgment of Mr Justice To handed down on the 30^th June 2010 in HCA 763/2010 striking out the plaintiff’s statement of claim under O 18 Rule 19(1)(a) of the RHC as disclosing no reasonable cause of action.”

5.Ms Park’s summons was taken as an application for leave to appeal, which went before the Court of Appeal (Tang VP and Le Pichon JA). In a decision dated 19 August 2010, the Court of Appeal, in exercising the power under Rule 2A(5) of the Rules of the High Court, dismissed Ms Park’s application without a hearing and further ordered, under Rule 2A(8) that no party may request the determination to be reconsidered at an oral inter parte hearing.

6.Order 14 of the High Court Ordinance provides that “subject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter”.

7.To J’s order striking out Ms Park's statement of claim and dismissing her cause of action does not fall within the ambit of subsection (3) and section 14AA of the High Court Ordinance and therefore Ms Park was entitled to appeal against it to the Court of Appeal as of right.

8.In so far as the Court of Appeal purported to refuse to grant leave to Ms Park to appeal against To's order, its decision dated 19 August 2010 is not a regular decision.

9.Ms Park was entitled to appeal against To's order as of right, but had failed to serve a notice of appeal in time in accordance with Rule 4(1)(c) of Order 59, the Rules of the High Court.

10.Such inadvertence is possibly the result of misunderstanding and incorrect advice.

11.Ms Park had evinced a clear and strong intention to appeal against To J's order within 28 days from the date of the order and in the circumstances, without considering the merits of the proposed appeal; we are persuaded that Ms Park should be allowed to serve a notice of appeal against To J’s order out of time. It is, in our view, important to adhere to the proper procedure.

12.We therefore grant leave to Ms Park to serve a notice of appeal against To J's order dated 30 June 2010 within 21 days from the date of this order. We make no order as to costs.

13.If Ms Park's appeal were considered to be plainly not competent; or frivolous, vexatious, or an abuse of the process of the court, an application can be made to strike out her notice of appeal under the inherent jurisdiction of the Court of Appeal.

Applicant: In Person.

Mr Newton Chan, SGC of the Department of Justice for the Respondent.