LEE MEI CHUN v. REPUBLIC OF PHILIPPINES AND OTHERS

HCPI 723/2013, HCPI 724/2013

& HCPI 725/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 723 OF 2013

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D E C I S I O N

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1.  On 22 August 2013, the plaintiffs in these three actions, HCPI 723, 724 and 725 of 2013, issued proceedings in the Personal Injuries List against the Republic of the Philippines, as the 1^st defendant, and against a number of individuals, residents of the Philippines, as the 2^nd to the 9^th defendants.

2.  The writs as issued from the Registry of the High Court were marked not for service out of the jurisdiction.  The claims in HCPI 723 of 2013 were claims for damages for injury, loss and damage under the Fatal Accidents Ordinance, Cap 22, and the Law Amendment and Reform (Consolidation Ordinance), Cap 23, that was allegedly sustained as a result of the negligence and/or breach of duty of the 1^st to the 9^th defendants, their servants or agents, in regard to or in connection with the hostage‑taking incident that occurred in Rizal Park in Manila on 23 August 2010.

3.  The claims in HCPI 724 and 725 of 2013 were for damages for personal injuries sustained in the same incident and is also made based on the allegation of negligence and of breach of duty of the 1^st to 9^th defendants.

4.  When these writs came to my attention, I called for this hearing to take place for the plaintiffs to show cause why the court should not strike out the claims against the Republic of the Philippines on the ground that the Republic of the Philippines enjoys sovereign immunity.  In addition, I specifically directed the plaintiffs’ solicitors to address me on the decision of the House of Lords in Jones v Saudi Arabia [2007] 1 AC 270 and the power and the duty of the court to strike out proceedings of its own motion on this ground and, secondly, on the decision of the Court of Final Appeal in The Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 1) [2001] 14 HKCFAR 95 that, since 1997, the law of the People’s Republic of China has been the law on state immunity in Hong Kong and that it is absolute.

5.  This morning I directed, for the purpose of this hearing, that the three actions may be heard together. 

6.  I reach now the substance of my decision, and it is this.  The principle of sovereign immunity is that one sovereign state will not assert its judicial authority over another and will not by its processes make the other sovereign state a party to legal proceedings against its will.  It is a procedural rule going to the jurisdiction of the court. When sovereign immunity is applicable, the national court has no jurisdiction to exercise.

7.  As was made clear by the Court of Final Appeal in The Democratic Republic of Congo v FG Hemisphere Associates, since 1997, the law of the People’s Republic of China on state immunity has been the applicable law in the Hong Kong Special Administrative Region, and the doctrine of state immunity that is applicable is the doctrine of absolute immunity, not the doctrine of restrictive immunity.

8.  Section 1(2) of the UK 1978 State Immunity Act provides that a court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.  In my judgment, although there is no statutory equivalent to section 1(2) of the UK State Immunity Act 1978 in Hong Kong, the fact that the applicable doctrine of state immunity is the doctrine of absolute immunity makes it incumbent on the court to be astute to ensure that its processes are not being invoked to assert judicial authority over another sovereign state and to invoke Order 18, rule 19 of the Rules of the High Court, and the inherent jurisdiction of the court, to strike out such proceedings of its own motion.

9.  Indeed, after the passage of the Civil Justice Reform, the court is more ready to act on its own volition to strike out claims pursuant to Order 18, rule 19 of the Rules of the High Court and the inherent jurisdiction of the court: see my decision in Yang Yee Man v Leung Hin Hung and Others HCPI 433/2010, 14 December 2012.

10.  I have not received any evidence, nor any submissions, that the Republic of the Philippines is willing, or is likely to be willing, to be made a party to these proceedings, or has submitted, or is likely to submit, to the jurisdiction of the court.  I have not received any submissions that persuade me not to strike out the claims against the Republic of the Philippines in these three actions or to delay any decision I may make in that regard.  Specifically, I do not accede to the application to adjourn this hearing for four months.

11.  It has been submitted, perhaps not orally at this hearing, but it is clearly expressed in the written submissions of counsel, that active steps by the court may stifle positive efforts to achieve an amicable resolution of the matter.  The court will always support efforts to resolve disputes amicably, but the court will not allow its processes to be wrongly used, even for such purposes.

12.  In the exercise of my discretion under Order 18, rule 19 of the Rules of the High Court and the inherent jurisdiction, I strike out the claims against the Republic of the Philippines in these three actions on the ground that the Republic of the Philippines enjoys state immunity.

13.  I addressed the question of the further conduct of the actions against the other defendants and, again, I do not accede to the application that ex parte applications to serve the writs out of the jurisdiction should be entertained four months from today.  What I will do is that I will direct that ex parte applications to serve the writs out of the jurisdiction on the other defendants should be filed within 42 days from today, but, of course, with liberty to apply for further time for good reason advanced.

14.  There is no question of any order as to costs being entertained at a hearing of this nature.