HAHN-SHIN, MICHELINE SUCK-HI v. GOVERNMENT COUNSEL, MS MICHELLE SOONG

HCMP 1690/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1690 OF 2009

(ON AN INTENDED APPEAL FROM HCA NO. 2242 OF 2008)

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BETWEEN

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D E C I S I O N

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Hon Rogers VP:

1.  This is an application for leave to appeal an order made by Mr Justice Poon on 11 June 2009. The matter before the judge was an appeal from a decision of Madam Registrar Au-Yeung given on 23 December 2008 whereby the registrar struck out this action. The judge upheld the decision of the registrar and on 20 July 2009 refused leave to appeal.

2.  In my view the decision of the judge was entirely correct. Underlying the plaintiff’s complaint is that valuable goods were seized by the Bailiff and sold at an undervalue. However, that is not the basis of the complaint in this action, which is a claim against the defendant who is a Government Counsel. The complaint made in this action is that the defendant misled the plaintiff by informing the plaintiff that there was no need to file any evidence in compliance with an order of Mr Registrar Chan.

3.  As the judge pointed out in his decision of 11 June 2009, there are at least two reasons why this claim is incurably bad. In the first place there is no duty of care owed either by the defendant or those on behalf of whom she was acting. They were in the position of litigants. One litigant does not owe any duty of care to any other litigant. In the second place, it would appear that the plaintiff’s underlying complaint against the Bailiff was also barred by section 4(5) of the Crown Proceedings Ordinance, Cap. 300. That reads:

“(5)  No proceedings shall lie against the Crown 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 connection with the execution of judicial process.”

4.  In the circumstances, I would refuse this application for leave to appeal and 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.