TAM MEI KAM v. HSBC INTERNATIONAL TRUSTEE LTD AND OTHERS

CACV 124/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVILAPPEAL NO.124 OF 2013

(ON APPEAL FROM HCA NO.510 OF 2013)

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BETWEEN

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DECISION

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Hon Chu JA giving the decision of the Court:

1.  On 4 April 2014, we gave judgment (“the Judgment”) dismissing the plaintiff's appeal against the Judgment of L Chan J dismissing his appeal against the Master’s decision to strike out her claim.

2.  On 15 April 2014, the plaintiff filed an Application to seek leave to appeal to the Court of Final Appeal against the Judgment.

3.  The plaintiff based her application under section 22(1)(b) of the Court of Final Appeal Ordinance Cap. 484, which provides that leave to appeal may be granted

“(b) at the discretion of the Court of Appeal or the [Court of Final Appeal], from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the [Court of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the [Court of Final Appeal] for decision”.

4.  In the application, the plaintiff sets out two questions which she contends are of great general or public importance. They are:

(a) Whether Article 85 of the Basic Law has granted absolute judicial immunity to a Judge regardless of whether he is honest or not, without regard to whether the same is subject to qualifications of Articles 8, 18 and 84 of the Basic law.

(b) Whether in the true context of the legal authority Sirros v. Moore & Others [1975] 1 QB 118, only honest Judges can enjoy absolute judicial immunity.

5.  The common law principle of judicial immunity is both ancient and well settled.  That a judge is absolutely immuned from personal civil liability for any judicial act done in his capacity as a judge, irrespective of whether he acted under gross error or negligence, or was actuated by envy, hatred and malice and all uncharitableness is well recognized by the law: see Sirros v. Moore & Others at pp132D & 140A and Ma Kwai Chun (馬桂珍) v. Leung Siu Chung (梁紹中) [2001-2013] HKCLRT 286, 288 at para.9.

6.  The two questions that the plaintiff put forward in her Application seek to challenge whether judicial immunity is absolute.  In the appeal before us, the plaintiff had argued that under the common law, judicial immunity is not absolute; and Article 85 of the Basic Law, read together with Articles 8 and 18, should be interpreted as having the same effect as the common law.  We had in the judgment (at paragraphs 10 to 14) pointed out that, by reason of her misreading of Buckley LJ’s judgment in Sirros v. Moore & Others, she had misunderstood the common law position and in turn misinterpreted Article 85 of the Basic Law.

7.  We do not consider the two questions put forward by the plaintiff carry any great general or public interest, having regard to the well established common law principle on judicial immunity and this Court’s judgment in Ma Kwai Chun v. Leung Siu Chung on the interpretation of Article 85.  We are further of the view that the plaintiff's questions are not reasonably arguable.

8.  The plaintiff also relies on the “or otherwise” ground, contending that there has been miscarriage of justice and that substantial and grave injustice has been done to her.  The basis of her contention is that the 4^th defendant had acted grossly recklessly or dishonestly or inconsistently and had caused undue hardship to her, and that the 4^th defendant acted in concert with the other defendants.  

9.  The granting of leave to appeal under the “or otherwise” limb is an exceptional course. The threshold requirement for invoking the Court’s discretion under this limb is a high one: Chao Keh Lung v. Don Xia (2004) 7 HKCFAR 260, 263 at para.9.

10.  The plaintiff's arguments in support of this ground are in effect a repetition of the arguments advanced under the “great general or public importance” ground, namely, judicial immunity under the common law and Article 85 is not absolute.  As mentioned above, these arguments do not raise any question of great general or public importance and have no merits.

11.  For the above reasons, the present application does not come within section 22(1)(b) and fall to be dismissed.

12.  Applying the normal rule of costs follow the event, the plaintiff should pay the 4^th defendant the costs of this application.  Mr Suen for the 4^th defendant has provided a statement of costs for summary assessment.  The total amount claimed is $5,719.  Item D3 (preparation for hearing, $750) should be deducted as there is no oral hearing.  Other than this, we consider the amount claimed to be proper and reasonable.  We therefore assess the 4^th defendant’s costs to be $4,969 (i.e. $5,719 - $750).

13.  Accordingly, we dismiss the plaintiff’s application for leave to appeal to the Court of Final Appeal and order the plaintiff to pay the 4^th defendant’s costs of the application summarily assessed at $4,969.