DARRYL PENRICE v. CHAN KWOK JI, ERIC, IDSM, DIRECTOR OF IMMIGRATION AND OTHERS

DCCJ 2983/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2983 OF 2014

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DECISION

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1. This is an application made by the 4^th defendant to strike out part of the statement of claim (“SoC”), as set out in red in the copy of SoC attached to the summons.

BACKGROUND

2. In this case, the plaintiff seeks to claim against the 4^th defendant damages in the sum of HK$77,508,703, plus HK$630,152 per day from 17 July 2014 onwards, based on the following grounds:-

(a) that the 4^th defendant was wrong in refusing to investigate into the plaintiff’s complaint against the Legal Aid Department (“LAD”) regarding his legal aid application; and

(b) an officer of the 4^th defendant, namely one Ms Veronica CM Chan (“Ms Chan”), had attempted to discourage the plaintiff from filing a complaint with the 4^th defendant during an interview on 17 July 2014 (“the Interview”).

Service of the summons

3. By an affirmation of service dated 1 June 2015, it has been shown that the order dated 30 March 2015 requesting the plaintiff to file affidavit evidence in opposition, if any, and to set down the present hearing was served on the plaintiff at his usual and last known address on 10 April 2015.  Up to the date of the hearing, the plaintiff did not file any evidence in opposition of the 4^th defendant’s summons.  Further, by an email dated 29 May 2015 from the plaintiff to a number of parties, including the 4^th defendant in this case, the plaintiff indicated that he would not be attending the hearing on 8 June 2015.  A copy of that email has been attached to the 4^th defendant counsel’s skeleton submission. 

4. Having been satisfied that both the summons and the order dated 30 March 2015 had been served on the plaintiff and that he has had knowledge of the hearing on 8 June 2015, the court proceeded to hear the 4^th defendant’s application in the absence of the plaintiff. 

GROUNDS OF THE APPLICATION

5. The 4^th defendant applies to strike out the plaintiff’s claim under Order 18 rule, 19(1) of the Rules of the District Court (“RDC”) on the following grounds:-

(i) The SoC discloses no reasonable cause of action against the 4^th defendant, as the Ombudsman Ordinance, Cap 397 (“the Ordinance”) confers civil immunity on the 4^th defendant in the exercise of the Ombudsman’s function or power;

(ii) it is scandalous, frivolous or vexatious, as the plaintiff’s complaints against the 4^th defendant are completely without foundation and cannot possibly succeed; and

(iii) it is an abuse of the process of the court to initiate private law proceedings for the adjudication of public law issues.

6. I shall deal with above 3 grounds relied on by the 4^th defendant in turn below.

(i) No reasonable cause of action

7. A “reasonable” cause of action under Order 18 rule 19(1)(a) means one with some chance of success when only the allegations in the pleading are considered: See §18/19/6 of the Hong Kong Civil Procedure 2015. 

8. Section 18A of the Ordinance confers civil immunity on the 4^th defendant and any other persons exercising the function or power of the office of the Ombudsman. Section 18A provides as follows:-

“No person acting in good faith shall be personally liable for any civil liability or claim whatever in respect of any act done or omitted to be done in the performance or purported performance of any function, or the exercise or purported exercise of any power, under this Ordinance.”

9. I agree with the submission of Mr Justin Lam, counsel for 4^th defendant, that unless the plaintiff can establish bad faith on the part of the 4^th defendant in respect of any act done or omitted to be done in the performance of her function or power as Ombudsman, the plaintiff will not be able to establish any civil liability against the 4^th defendant: cf Lee Chun Hung v Sin Kin Man Francesca [2011] 3 HKLRD 175 at §34 (immunity under the Electoral Affairs Commission Ordinance); Wallbanck Brothers Securities (Hong Kong) Ltd v Emily Tse (unrep DCCJ 2422/2013; 31 March 2015) at paras 29 to 31 (immunity under the Securities and Futures Ordinance).

10. I further agree with Mr Lam that the plaintiff’s claim in this case merely goes to the correctness of the 4^th defendant’s rejection of the plaintiff’s complaint against the LAD and the conduct of the Interview.  There is simply nothing in the SoC which suggests what the 4^th defendant has done or omitted to do amount to anything other than in good faith.

11. Based on the aforestated, I am of the view that the plaintiff has no chance of success and the SoC has disclosed no reasonable cause of action against the 4^th defendant.

(ii)    Scandalous, frivolous or vexatious

12. It is trite that the proceeding is frivolous when it is incapable of reasoned argument, without foundation on where it cannot possibly succeed.  A proceeding is vexatious when it is oppressive or lacks bona fides.  The expression “frivolous or vexatious” as found in Order 18, rule 19(1)(b) includes proceedings which are an abuse of process: See §18/19/8 of Hong Kong Civil Procedure 2015. 

13. I agree with Mr Lam that the plaintiff’s first contention that the 4^th defendant was wrong to refuse his complaint against LAD is completely without foundation:-

(a)   According to Section 10(1)(e) of the Ordinance:-

“Notwithstanding the generality of the powers conferred on the Ombudsman by this Ordinance, the Ombudsman shall not undertake or continue an investigation into a complaint …… if the complaint relates to any action in respect of which the complainant has or had:-

(i) under any Ordinance, a right of appeal or objection, or a right to apply for a review, on the merits of the case, to the Chief Executive, the Chief Executive in Council, any tribunal constituted by or under any Ordinance, or any board or other authority so constituted; or

(ii) a remedy by way of proceedings in a court, other than by way of judicial review, or in any tribunal constituted by or under any Ordinance,

unless the Ombudsman is satisfied that in the particular circumstances it is not reasonable to expect the complainant to resort or to have resorted to that right or remedy.”

(b)   As explained in the email dated 23 July 2014 to the plaintiff from a staff of the Ombudsman, the 4^th defendant rejected the plaintiff’s complaint by reason of the above-mentioned section, namely the plaintiff had a right of appeal to the Registrar of the High Court in chambers as a person aggrieved by a decision of the Director of Legal Aid (“DLA”).

(c)   Furthermore, as explained in the email dated 6 August 2014 from a staff of the Ombudsman to the plaintiff, the 4^th defendant did not consider that it was unreasonable for the plaintiff to pursue the legal appeal because (a) the plaintiff’s concern about the delay involved in court proceedings was only based on his own assumption; and (b) the plaintiff could seek in-kind assistance from the Social Welfare Department in collaboration with non-governmental organisations to address his living situation.

(d)   As a matter of fact, when the DLA decided to refuse the plaintiff’s legal aid application, the plaintiff did proceed to lodge a Notice of Appeal against the decision on 14 August 2014: (see §18 of the affidavit of Chan Oi Yung dated 16 September 2014).

(e)   Thus, there is nothing to suggest that the 4^th defendant’s decision was outside the ambit of the wide discretion conferred by section 9 of the Ordinance.

14. The plaintiff’s second contention is that he was discouraged from lodging the complaint during the Interview by Ms Chan.  I consider there is simply no substance in this allegation as shown by the recording of the Interview which the plaintiff himself had provided to the 4^th defendant.  I am of the view that the conduct of the 4^th defendant in the Interview was totally proper and without any blemish. 

15. Based on the above, I have little difficulty to find that the plaintiff’s claim against the 4^th defendant is scandalous, frivolous and vexatious with no proper basis both in law and in fact.

(iii)   Abuse of process

16. An “abuse of process of the court” connotes that the process of the court must be used bona fide and properly and must not be abused.  The court will therefore prevent the improper use of its machinery and will, in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation: See §18/19/10 of Hong Kong Civil Procedure 2015. 

17. Where the subject matter of an action involves public law, judicial review proceedings should be the norm: Leung v Secretary for Justice [2006] 4 HKLRD 211 at §21.  It is also a well-established principle in law that it will be an abuse of the process of the court to allow a person to initiate private law proceedings for the adjudication of public law issues: See para 53/14/27 of the Hong Kong Civil Procedure 2015 and O’ Reilly v Mackman [1983] 2 AC 237 at 285E.

18. In my judgment, the plaintiff’s complaints against the 4^th defendant are in relation to the 4^th defendant’s exercise of her function and powers as the Ombudsman. They are clearly public law matters which need to be resolved in a public law court under the judicial review procedures.  As such, I am of the view that it would amount to an abuse of process of the court for the plaintiff to commence and to continue this case against the 4^th defendant as an ordinary civil case.

19. Another point I note is that the plaintiff is claiming over HK$77 million against the defendants, with an alleged recurrent sum of $630,152 per day from 17 July 2014 onwards.  This is not only far exceeding the jurisdiction of this court but the plaintiff has simply failed to provide any legal basis as to why he is entitled to make such an astronomical claim in this court.  I am of the view that the claim itself may amount to an abuse of process of this court.

CONCLUSION

20. Based on the reasons said out above, I order that the plaintiff’s claim against the 4^th defendant contained in the SoC be struck out, with costs payable to the 4^th defendant, such costs to be taxed if not agreed with certificate for counsel.