HAHN-SHIN MICHELINE, SUCKHI v. THE GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION BAILIFF [OPERATION SECTION]

CACV 62/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 62 OF 2007

(ON APPEAL FROM HCA 1499/2006)

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J U D G M E N T

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Hon Tang V-P :

1.  I agree with the judgment of A Cheung J.

Hon Yuen JA :

2.  I agree with the judgment of A Cheung J and with the order he has proposed.

Hon A Cheung J :

3.  This is an appeal by the plaintiff from a judgment handed down by Lam J on 5 February 2007.  By that judgment, the Judge refused to grant the plaintiff leave to appeal from the decision of the Registrar of 13 November 2006 out of time, dismissed the plaintiff’s appeal from the decision of the Registrar of 29 December 2006 and ordered the plaintiff to pay the costs of the defendant accordingly. 

4.  The plaintiff was a judgment debtor in Small Claims Tribunal Claim No SCTC 8507 of 2006.  The judgment debt was in the sum of $48,250.  As she did not satisfy the judgment, the judgment creditor, Sante Fe Transport International Limited, proceeded to levy execution of the judgment by a writ of fieri facias, which was issued on 25 May 2006.  On 14 June 2006, pursuant to the writ of fieri facias, the bailiff seized the plaintiff’s goods that were stored at Sante Fe’s warehouse in Shatin.  On the following day, a letter together with the inventory of the goods seized, which were appraised with a total value of $5,678, was sent by the Chief Bailiff (Operations) to the plaintiff.  The plaintiff was told that if no payment be received, the goods would be auctioned on 21 June 2006.

5.  After unsuccessful attempts by the plaintiff to obtain a stay of execution in the Small Claims Tribunal and the High Court respectively, the goods were sold at the auction on 21 June 2006 for a total sum of $25,000, even though the auctioneer had estimated their value at $6,000 only.

6.  The plaintiff contends that her goods, which comprised, amongst other things, various furniture items and clothing, were all expensive items, which were worth much more than $25,000.  In particular, the furniture items were her lifetime collection.  She therefore claims, in the present action, damages of $3 million, which she says is the estimated value of the goods seized, as loss and damage suffered by her as a result of the wrongful manner in which her goods were seized and the wrongful sale of the goods seized at a gross undervalue.

7.  In the action, she names “The Government of Hong Kong Special Administrative Region Bailiff [Operation Section]” as the defendant.

8.  The Department of Justice, acting for the defendant, duly made an application by summons dated 22 August 2006 to strike out the plaintiff’s claim.  The application was heard by the then Registrar (Mr Registrar C Chan) on 20 October 2006.  In a judgment handed down on 13 November 2006, the Registrar struck out the plaintiff’s claim and dismissed her action.  After noting that the plaintiff’s allegations regarding whether the bailiff had done her duty properly were factual issues which could not be decided on a striking-out application, the Registrar explained that his decision to strike out was based on one ground only, namely that the plaintiff’s claim against the Government was absolutely barred by section 4(5) of the Crown Proceedings Ordinance (Cap 300) – see below.

9.  Further, on 29 December 2006, the Registrar assessed the costs of the action at $30,000, which he ordered the plaintiff to pay.

10.  The plaintiff filed notices of appeal against these decisions on 3 and 8 January 2007 respectively.

11.  They were heard by Lam J on 22 January 2007.  The Judge duly noted that the first appeal against the Registrar’s decision of 13 November 2006 was lodged out of time by about one month, given that Order 58, rule 1(3) of the Rules of the High Court (Cap 4A) provides that an appeal against a decision of a master to a judge must be issued within 14 days after the decision appealed against was made.  The plaintiff therefore required the leave of the court to appeal out of time.

12.  The Judge also found the description of the defendant in the title of the action ambiguous.  He was not sure whether the plaintiff intended to sue the Government or the bailiff, and if it was the latter, which bailiff she intended to sue.  At the hearing held on 11 January 2007, the plaintiff told the Judge that she did not intend to sue any bailiff personally.  Rather, she wanted to sue the Bailiff Office because she considered that the office as a whole should be responsible for the “defects in the system in the execution process”.  The hearing, however, was adjourned for 14 days to enable the plaintiff to obtain legal advice and confirm whether she wanted to sue the Government as well, in addition to the Bailiff Office.  Directions were given for the filing of written submissions.

13.  In her written submission filed, the plaintiff confirmed that she wanted to sue both the Government as well as the Bailiff Office.

14.  In his judgment handed down on 5 February 2007, the Judge refused to grant the plaintiff leave to appeal from the Registrar’s first decision out of time.  He also dismissed the second appeal on costs.

15.  As regards the first appeal, the Judge mentioned four matters that should be taken into account in the exercise of the discretion to extend time for appeal, namely (1) the prospect of injustice (the prospect of success); (2) the length of the delay; (3) the reason for the delay and (4) the degree of prejudice to the other party (paras 6 and 7 of the judgment).

16.  The Judge took the view that the delay involved was substantial in the context of an appeal from a master to a judge, the plaintiff did not offer much explanation for the delay and the defendant suffered prejudice in that the plaintiff’s delay in filing the notice of appeal had at least deprived the defendant of the chance of asking for an adjournment of the hearing of 29 December.  However, the Judge noted that the prejudice could be compensated by an appropriate order as to costs.

17.  The Judge considered, rightly in my view, that the most important factor in the circumstances of the case was the merits of the plaintiff’s proposed appeal, which turned on the question of whether the plaintiff had sued the right defendant.

18.  On this issue, the Judge took the view that the plaintiff’s claim against the Government was absolutely barred by section 4(5) of the Ordinance.  As regards the plaintiff’s claim against the Bailiff Office, the Judge considered that the Bailiff Office is not a legal entity and it was procedurally incorrect to name it as a defendant.  Furthermore, there was no question of the Chief Bailiff (Operations) being held vicariously liable for the acts of other bailiffs.  The Judge observed that as far as corporate or vicarious liability was concerned, the proper defendant should be the Secretary for Justice, but section 4(5) bars such a claim.

19.  In my view, the Judge was absolutely right.  Section 4(5) of the Ordinance reads as follows:

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(5)

No proceedings shall lie against the [Government] by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process.”

20.  The sub-section applies directly to any acts or omissions of any person while discharging or purporting to discharge any responsibilities which he has in connection with “the execution of judicial process”.  It covers directly the execution of a judgment by a writ of fieri facias.  The sub-section provides an absolute bar to any claim against the Government in respect of any acts or omissions of any person while discharging or purporting to discharge any responsibilities which he has in connection with the execution of a judgment by a writ of fieri facias.

21.  As regards the claim against the Bailiff Office, the Judge was correct in saying that the Bailiff Office does not exist as a legal entity and it is therefore procedurally incorrect to name it as a defendant.  Insofar as one should treat the reference to the Bailiff Office as a reference to the Government (or the Secretary for Justice), the claim is covered by the absolute bar imposed by section 4(5) to any claims against the Government.

22.  Insofar as one should read the reference to the Bailiff Office as a reference to the Chief Bailiff (Operations) and regard the plaintiff’s claim against the Chief Bailiff (Operations) as based on vicarious liability, the claim is wholly unarguable because there is no question of the Chief Bailiff (Operations) being vicariously liable for the acts or omissions of other bailiffs.  The position has been examined in detail by Suffiad J in Fu Lok Man James v Chief Bailiff of the High Court [1998] 2 HKC 1, 5C to 12G.  The general principle is that “a superior Crown servant is not liable, whether vicariously or as a principal, for the tort of a subordinate” (p 11H/I) and for that reason, in a case where wrongful execution by a bailiff is concerned, the only proper defendant is the particular bailiff executing the writ.  A claim against the Chief Bailiff (Operations) is therefore misconceived.

23.  On appeal, this part of the judge’s judgment was not challenged and indeed it was endorsed by the Court of Appeal: [1999] 3 HKC 742, 747H to 748A.

24.  As the plaintiff has specifically informed the Judge at the hearing on 11 January 2007 that she is not pursuing any claim against any individual bailiff involved in the execution process personally, it is not necessary to consider the plaintiff’s claim on that basis.

25.  In those circumstances, the Judge was wholly correct in concluding that the plaintiff’s claim was unarguable.  That, in my view, was a conclusive factor against granting the plaintiff leave to appeal from the striking-out decision of the Registrar out of time.

26.  In other words, there is no ground whatsoever for this Court to interfere with the Judge’s exercise of discretion to refuse leave to appeal out of time, and indeed with respect, the Judge’s conclusion was plainly correct.

27.  In the grounds of appeal set out in her notice of appeal and supplementary notice of appeal as well as her oral submission at the hearing, the plaintiff has directed her arguments to the manner in which the writ was executed, the value of the items seized and their sale at a gross undervalue (she maintains).  As the Registrar has recognised from the outset, these are matters which cannot be disposed of summarily at a striking-out application.  However, they are quite irrelevant to the defendant’s application to strike out, which turns on legal arguments only.  The plaintiff has not advanced any argument in relation to the legal issues raised by the striking-out application, whether in her grounds of appeal or her oral submission before the Court.

28.  In those circumstances, the plaintiff’s appeal against the Judge’s refusal to grant her leave to appeal out of time must be dismissed.

29.  As regards her appeal relating to costs, she has advanced no separate argument on liability nor any argument against the quantum assessed by the Registrar.  It is trite law that an appellate court does not lightly disturb an order of costs made below: Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327.  Given the general principle that costs should follow the event, as the plaintiff’s claim is struck out and in the absence of special circumstances, she must pay for the costs of the action.  As far as quantum is concerned, the Judge considered that the Registrar’s assessment was reasonable and could not be faulted.  There is no basis whatsoever to disturb the Judge’s decision.

30.  In those circumstances, the appeal against costs must also be dismissed.

31.  As regards the costs of this appeal, they should follow the event.  The defendant should have the costs of this appeal.

32.  I would therefore dismiss the appeal with costs to the defendant, to be taxed if not agreed.