X v. Melvyn Kai Fan Lai and Another

DCEO 4 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 4 OF 2016

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DECISION

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1.This is the 2^nd Respondent’s (“R2”) application for an order to request Further and Better Particulars (“FBP”) from the Claimant (“X”) by way of summons dated 14 October 2016 (“the Summons”).

2.R2 requested for FBP under §§13, 14, 15, 23 and the “Remedies or reliefs claimed” of X’s Amended Notice of Claim filed on 18^th May 2016 (“ANOC”).

BACKGROUND

3.R2 is a limited company incorporated in Hong Kong which carries on the business of that of an architecture firm.

4.X was a former employee of R2.  The 1^st Respondent (“R1”), was at all material times an associated director and employee of R2.  He was X’s direct supervisor from April 2011 until her resignation in September 2013.

5.X’s claims against R1 and R2 as stated in ANOC can, in a nutshell, be summarized as follows:

(a) X claims that R1 has sexually harassed her, including excessively and inappropriately staring at her; groping her hands; touching her thighs and buttocks; sending her excessive and inappropriate private messages; and  inviting her to private appointments, thus infringing the Sex Discrimination Ordinance (Cap 480) (“SDO”) during the period when R1 was acting as her supervisor;

(b) X claims that R2 has failed to discharge its duty of care as an employer to take reasonable steps to prevent sexual harassment in the workplace and/or permitted a sexually hostile and/or intimidating work environment, thus infringing the provisions of the SDO during X’s employment with R2.

THE FBP APPLICATION

6.The FBP was first sought by letter by the solicitors acting on behalf of R2, and later by the Summons.

7.Mr Hylas Chung, on behalf of R2, submits the requests for FBP from X are necessary for the following reasons:-

(a) X failed to provide dates, time, occasions, place, circumstances and length of time of each individual alleged sexual harassment act of R1;

(b) X failed to specify the frequency of such acts;

(c) Some of those alleged acts of R1 complained of by X  may fall outside of the 24-month limitation period specified under section 86 of SDO;

8.It should be noted that R2’s last request to ask the claimant to state whether she has any medical evidence in support of her “remedies or reliefs claimed” for injury to feelings has been, in my view rightly, abandoned by R2’s counsel during the hearing.

DISCUSSION

A1. Applicable legal principles

9.The applicable principles are not in dispute and have been set out in the skeleton submissions of Miss Karen McClellan, solicitor for X, of which I would respectfully adopt.

10.The reasons of providing particulars in pleadings in a civil case have been succinctly stated by Bokhary JA (as he then was) in Aktieselsbabet Dansk Skibsfiansiering v Wheellock Marden & Co. Ltd [1004] 2 HKC 264 at 269E-270E as to:-

“ (1) inform the other side of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(2) prevent the other side from being taken by surprise at the trial;

(3) enable the other side to know what evidence they ought to be prepared and to prepare for trial;

(4) limit the generality of the pleadings, the claim and the evidence;

(5) limit and define the issues to be tried, and as to which discovery is required; and

(6) tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).”

11.However, since the implementation of the Civil Justice Reform (“CJR”) in April 2009, there is an important additional requirement in a party seeking FBP specified under the Rules of the High Court, which equally applies under the Rules of the District Court (“RDC”).

12.Order 18, rule 12 (3B) of the RDC provides that “(N)o order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” [emphasis added]

13.The editors of the White Book, ie Hong Kong Civil Procedure 2017 (“HKCP”) have explained the rationale behind this new addition in the following manner:-

“No order unless “necessary” – Paragraph (3B) of this rule was introduced by the Civil Justice Reform and provides that no order under para.(3) shall be made unless it is “necessary” – either for disposing fairly of the cause or matter, or for saving costs…… This paragraph highlights the emphasis on procedural economy, proportionality and cost-effectiveness in the post-Civil Justice Reform culture encourages parties not to engage in interlocutory skirmishes over further and better particulars unless there is a genuine need to clarify the opposite party’s case to ensure fairness and to avoid cost-wasting. It is inappropriate to make requests for further and better particulars with a view to cross-examine the other side or to expose some weaknesses of the pleaded case of the other side (Million Decade Ltd v Tung Fai (unrep., HCA 1062/2013, [2016] H.K.E.C. 907) [24].”: HKCP §18/12/66.”

14.As Deputy High Court Judge Marlene Ng stated in Million Decade Ltd v Tung Fai, supra at §24, the rationale behind Order 18 Rule 12 (3B) is as follows:-

“This highlights the emphasis on procedural economy, proportionality and cost-effectiveness in the post-CJR culture that encourages parties not to engage in interlocutory skirmishes over FBP unless there is a genuine need to clarify the opposite party’s case to ensure fairness and to avoid cost-wasting. It is inappropriate to make requests for FBP to cross-examine the other sideor to expose some weakness of the pleaded case of the other side.”

A2.  Applicant’s burden to show that FBP are “necessary”

15.The burden of proof and onus rests on the party seeking FBP to satisfy the Court that the order is necessary. It is not sufficient to show that the particulars sought are “relevant” as this is not the test. The appropriate test the applicant must show is that the particulars are “necessary”, for the disposal of the cause or matter fairly or for saving costs: HKCP §18/12/66; Well Joint Trading Ltd. v Chiu Chung Chiu [2012] HKEC 957, at §17.

16.FBP are not “necessary” when the particulars sought are dealt with in the pleadings and/or witness statements with statements of truth which will stand as evidence at trial. In such case, the FBP “would only be of historic interest and would add to costs”: Million Decade Ltd. v Tung Fai, supra at §§45 & 47.

17.Master Herbert Au Yeung of the High Court held “that requests for FBP should not be made for the purpose of cross-examining the other side. If the case pleaded by the other side is clear, then it is not for the receiving end to demand for FBP simply in the hope of that it would expose some weakness of such a pleaded case.”: Qihoo 360 Technology Co. Ltd v Fu Sheng,unrep., HCA 1637/2011 (Master Au-Yeung; 30.4.2013) at §13.

18.Thus, under the CJR regime, the onus is on R2 to show that the order is necessary; not an attempt to cross-examine the other side or to expose some weakness of the opposite side’s pleaded case.  Further, where the particulars sought can readily be found in the witness statements (which are verified by statements of truth), it is unlikely that the court will order the FBP. 

19.What I am rather surprised to find in this case is that none of the additional requirement under Rule (3B) and as expanded by the case law above have been mentioned in Mr Chung’s skeleton submissions.  Only the old law was mentioned.  It was not until the court mentioned the above new rule and the recently decided cases mentioned above during his oral submissions that it appeared Mr Chung became aware of them.  I do not need to remind counsel that it is their duty to appraise the court with update law and cases, whether they are for or against their propositions.

20.I now turn to the specific requests for particulars.

A3: Necessity of FBP

21.In gist, R2 requests for FBP under §§13, 14, 15 & 23 are for:-

(a) the date, time, circumstances, place and length of time of the alleged inappropriate touching and groping of hands starting from about January 2012;

(b) the date, time, circumstances, place and length of time of the alleged scanning of her body from top to bottom and staring at length at her chest;

(c) the date, time, circumstances, place and exactly how many times of the alleged touching of her thigh;

(d) the time, number of people present at the site, how R1 made the alleged touching of X’s buttocks, and which part of X’s buttocks, and the length of such touching on 8 July 2013.

22.Mr Chung argued that these particulars are necessary for the fair disposal of this action and saving of costs. It was submitted as follows:-

(a) on requests (a) – (c), Mr Chung submits that it is necessary for X to at least acknowledge when and how the alleged acts occurred. He states as an example that if R1 was on sick leave or not in office during the time of the abovementioned alleged acts, the credibility of X’s testimony would be in doubt;

(b) on request (a), Mr Chung further submits and maintains that the word “frequent”, as used in X’ANOC is qualitative in describing R1’s alleged inappropriate touching and groping of X’s hands, therefore depriving R2’s right of preparing its defence in this regard: [X’s ANOC §13];

(c) on request (c), Mr Chung also submits that it is necessary for X to clarify whether the alleged touching of her thighs was conducted by R1 on 3 or 4 occasions.

23.With respect, I do not agree.

24.First, in my view, it is not necessary for X to provide all the specified dates, occasions and length of time of the alleged acts. As a victim of sexual harassment, it can be reasonably contemplated that X would not be able to remember all such details of the alleged acts on each and every occasion.  In any event, X has already provided the specified months and years when the alleged acts had occurred in ANOC §13, 14, 15 and 23.  More importantly, in my judgment, her main witness statement has already provided detailed particulars of those alleged incidents.  I do not think further particulars are necessary.  In my view, there are sufficient particulars furnished in the ANOC and the witness statements of X for R2 to prepare its defence.  FBP are therefore, in my judgment, unnecessary for “disposing of the cause or matter fairly or for saving costs.”

25.Second, X would be giving evidence at the trial in this case. As the witness statements of X (which contents were verified by a statement of truth in each of the 2 witness statements) would be adopted as evidence-in-chief during the trial, Mr Chung would be able to cross-examine X on the particulars of the alleged acts.  In my judgment, the present FBP sought are purely done as an attempt to cross-examine X on paper and to show up the perceived weaknesses in X’s pleaded case.  This is exactly what Master Au-Yeung said the new additional rule (3B) has sought to prevent in QIHOO 360 Technology Co Ltd, supra, of which I would respectfully concur.

26.In my view, R2 has failed to establish the necessity of the FBP sought, whether to enable R2 to meet the claimant’s case (as it has no difficulty in preparing its Notice of Response or its witness statements) or to ascertain the scope of investigation to prepare for the trial (as it has made full discovery of documents in the case already).

27.To conclude, I find R2’s application for FBP has been misconceived and should be dismissed.

B1. Issue of 24 months time bar

28.Pursuant to section 86 of SDO, the court shall not consider a claim under the SDO unless proceedings in respect of the claim are instituted before the end of the period of 24 months starting from the act complained of was done.

29.Mr Chung submits that it is obvious that certain alleged acts fall outside the limitation period of 24 months. Thus, the alleged acts occurred commencing on or about January 2012 are time barred: (X’s ANOC §13).

30.However, I agree with Ms McClellan that whether all or part of the case is time-barred is a question of law which requires an analysis of:-

(a) whether the alleged acts were “acts extending over a period” in which the limitation period does not start to run until the end of that period, or isolated acts in which the limitation period starts to run after each isolated acts: Tadjudin v Bank of America, National Association [2012] 5 HKLR 115 §22; and

(b) the period from which a complaint is lodged with the Equal Opportunities Commission(“EOC”) to when is disposed of by the EOC is disregarded with respect to the 24 month limitation period: SDO section 86(4).

31.In the context of this case, I agree with Miss McClellan that the impugned acts had occurred over a period of time so the limitation period should start running from the date of the last alleged act.

32.Perhaps more importantly in this case, X has expressly addressed the status of the EOC claim in the ANOC at §§30 – 36.  They are as follows: X had lodged a complaint of sexual harassment against R1 with EOC on 21 January 2014.  The EOC investigated X’s complaints until on or about 28 August 2014.  On 28 August 2014, EOC wrote to X and suggested the parties should contemplate conciliation.  On 31 December 2014, EOC wrote to X, indicating, inter alia, that the complaint was unresolved and hence “unsuccessfully conciliated.”   On 12 January 2015, X applied to EOC for legal assistant to pursue the matter.  In or about April 2015, X’s application for legal assistance was granted.  On 18 December 2015, the EOC terminated legal assistance to X.  On 13 March 2016 X has issued the Notice of Claim in this case. 

33.In my judgment, more than sufficient particulars have been furnished by X in the ANOC to allow this issue to be addressed by way of separate application and/or at trial as a preliminary issue.  It is not, in my view, necessary to address this by way of FBP.

34.Last but not the least, it is R2’s case, pursuant to section 46(3) of the SDO, that it had taken steps as were reasonably practicable to prevent the employee doing the acts complained of, namely, sexual harassment and/or had policies in place with respect to the same.  As such, the burden is on R2 to prove this and not for X to disprove it.  In my view, it would be inappropriate to order FBP for this purpose: see Hong Kong Annotated Legislation, SDO at section 46.03. 

CONCLUSION

35.Based on the matters discussed above, I conclude that R2 has failed to establish that the particulars sought are necessary for the fair disposal of the cause or matter or for saving of costs in this case. I hereby order that the Summons be dismissed with costs in favour of the claimant. 

36.I would also like to summarily assess the costs.  I hereby direct that the claimant’s solicitors to lodge with the court their statement of costs within 5 days of this decision with copy to the other side and R2’s solicitors to respond by way of lodging a statement of objection, if any, within 5 days thereof, with copy to the claimant.    

Miss Karen McClellan of Daly & Associates, for the claimant

Mr Hylas Chung, instructed by FONGS Solicitors, for the 2^nd Respondent