Tam Mei Kam v. Hsbc International Trustee Ltd and Others

HCA 510/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 510 OF 2013

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D E C I S I O N

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1.This is an appeal by the plaintiff against 2 orders of Master H Au-Yeung both made on 19 April 2013. The 1st order was made upon a summons issued by the Secretary for Justice for the 4th defendant on 15 April 2013 seeking to strike out the claim against the 4th defendant, a judge of this court. The summons is issued under O 18 r 19 of the Rules of the High Court and the inherent jurisdiction of the court. The grounds are that the statement of claim discloses no reasonable cause of action and it is scandalous, frivolous and/or vexatious and an abuse of the process of the court.

2.Master Au-Yeung made an order in terms of the summons with indemnity costs against the plaintiff in the 1st order.  The master also ordered in the 1st order the striking out of parts of the statement of claim that related to the 4th defendant. 

3.The 2nd order was made upon a summons issued by the plaintiff on 3 April 2013 seeking an order to direct the 1st and 2nd defendants to pay and disburse the plaintiff’s hospital fees, all her daily living expenses including rental, wages for her servant and charges of utilities plus 9 months of living expenses in arrears or living expenses at an appropriate amount as may be ordered by the court.

4.Master Au-Yeung dismissed this summons also with indemnity costs.

5.In considering the first appeal against the striking out of the action as against the 4th defendant, I remind myself of the principles governing striking out applications.  I have also consulted paras 18/19/4 to 18/19/21 of the Hong Kong Civil Procedure 2013 (“HKCP 2013”).  It is only in plain and obvious cases that the court should exercise its summary powers to strike out any pleading under O 18 r 19 of the Rules of the High Court.  Disputed facts are to be taken in favour of the party sought to be struck out.  The claim must be obviously unsustainable, the pleadings unarguably bad, and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.  If any defect in the pleadings can be cured by amendment, the pleadings should also not be struck out.

6.The plaintiff claims against the 4th defendant because the 4th defendant has on more than one occasion dismissed her applications for maintenance in HCMP 2981/2004 for maintenance to be paid from the estate of her daughter, Ms Mui Yim Fong (also known as Anita Mui), deceased.

7.I agree with the Secretary for Justice that this claim against the 4th defendant does not disclose any reasonable cause of action and is scandalous, vexatious, frivolous and an abuse of the court’s process.  The reason lies in article 85 of the Basic Law which provides:

“ARTICLE 85

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.”

「第八十五條

香港特別行政區法院獨立進行審判，不受任何干涉，司法人員履行審判職責的行為不受法律追究。」

8.The subject matters complained by the plaintiff against the 4th defendant are all judicial decisions made by the 4th defendant in HCMP 2981/2004.  The 4th defendant made these decisions in the performance of his judicial function and is immune from legal action in doing so (see 馬桂珍訴梁紹中) [2001-2003] HKCLRT 282).

9.For the above reason, I find that the plaintiff’s claim against the 4th defendant has no basis at all.  I therefore dismiss her appeal against this order.  I also make a costs order nisi that she should pay the Secretary for Justice costs of the appeal on indemnity basis to be taxed if not agreed.

10.The second appeal is against the order dismissing the plaintiff’s application for maintenance.  The 2nd defendant opposed the application on the sole ground that this application is the same as the applications made and dismissed in HCMP 2981/2004 and, by its very nature, should be made in those proceedings. 

11.The 1st defendant was not concerned in this application as it is an entity incorporated overseas and had not been served on or before 19 April although it voluntarily accepted service on 2 May 2013.

12.Master Au-Yeung rightly acceded to the 2nd defendant’s submissions and dismissed the plaintiff’s application.

13.I agree with the master that this application is made in the wrong set of legal proceedings and should be dismissed.  I therefore dismiss the plaintiff’s second appeal as well.

14.On the question of costs, which is a matter of discretion, I would prefer to attain an understanding of the background leading to the plaintiff’s application before I would make up my mind on what costs order I should make.  As matters stand, the 2nd defendant has only advanced one ground for dismissing the application.  It has provided nothing to explain why the elderly plaintiff, who was the mother of Ms Anita Mui, deceased, should not be given any maintenance at all, despite the fact that Ms Mui’s estate since sometime in February 2013 is known to have net asset worth of tens of millions (now known to be around HK$100 million) and liquid cash of around HK$500,000.

15.I therefore make a costs order nisi that there be no order as to costs on the second appeal and below.  If the 2nd defendant is desirous of seeking a variation of the costs order nisi in its favour, I expect that there would be some concrete explanation justifying the non-payment of any maintenance in whatever amount to the plaintiff which non-payment the 1st and 2nd defendants appear to want to continue too.

The plaintiff appeared in person

Mr Kevin So, of Clifford Chance, for the 1st and 2nd defendants

The 3rd defendant, represented by Mr Kevin So, appeared in person

Mr Suen Sze Yick, GC, of Department of Justice, for the 4th defendant

Please refer to CACV124/2013 for the relevant appeal(s) to the Court of Appeal.