Read the full judgment text of CACV 221/2016; CACV 127/2017; CACV 130/2017 on BabelCite. This Court of Appeal judgment was delivered on 26 March 2018 before 林文瀚 VP, 關淑馨 JA, 區慶祥 J.
Civil appeal – striking out – whether '教唆' (instigation) is a tort – whether age discrimination is a cause of action in Hong Kong – whether the defendant's conduct constituted the tort of harassment – whether statements made in the course of proceedings can ground a civil tort claim – whether a claim under s.66 of the Personal Data (Privacy) Ordinance (Cap 486) may be brought in the Court of First Instance – whether matters not pleaded in the statement of claim may be raised on appeal – The plaintiff, a security guard, and the defendant, chairman of the owners' corporation of the building, fell into dispute over the recording of visitor identification – The plaintiff alleged the defendant campaigned for his dismissal on grounds of age and harassed him – The statement of claim pleaded instigation, harassment, and age discrimination – The Master struck out the claim and the judge on appeal dismissed the plaintiff's appeal – The Court of Appeal held that 'instigation' is not a tort and the analogous tort of procuring a breach of contract was not made out because the management company did not terminate the plaintiff's employment and the defendant was entitled to express his views – The Court held that there is no legislation creating a cause of action for age discrimination in Hong Kong – Applying the analysis in 林滿園對建明集團國際有限公司 (HCA 216/2008), the alleged conduct fell far short of the tort of harassment, particularly as the threatening language was directed at the management company's staff – Following Sum Cheung Wai v Tsui Hin Yuet [2016] 4 HKLRD 742, statements in court documents and affidavits attract absolute or qualified privilege and cannot ground a civil tort claim; allegations of perjury must be pursued criminally – In HCA 374/2016 and 757/2016, the plaintiff's claims based on the defendant's alleged false affidavits were an abuse of process and the privacy claim could not be brought in the Court of First Instance under s.66(5) of the Personal Data (Privacy) Ordinance, applying Lee Kwok Tung Albert v Chiyu Banking Corporation Ltd [2018] HKCA 123; the use of the building incident log book as an exhibit in court proceedings was also exempt under s.60B – The Court further held that on an appeal from a striking-out order the appellate court is confined to the pleaded case and grounds not in the notice of appeal cannot be raised – All three appeals dismissed and the plaintiff ordered to pay the defendant's costs in all three appeals, to be taxed by the Registrar.
Legal issues: Whether '教唆' (instigation) is itself a tort · Whether age discrimination is a cause of action in Hong Kong · Whether the alleged conduct constitutes the tort of harassment · Whether statements made in the course of proceedings can ground a civil tort claim · Whether a claim under the Personal Data (Privacy) Ordinance may be brought in the Court of First Instance · Whether matters not pleaded in the statement of claim may be raised on appeal
Outcome: All three appeals (CACV 221/2016, CACV 127/2017, and CACV 130/2017) dismissed.
Cited by 53 cases · Cites 5 cases