Wong Tsz Hang By Her Uncle and Next Friend Chu Man Kong v. Industrial and Commercial Bank of China (Asia) Ltd

DCEC 2470/2019

[2022] HKDC 664

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2470 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Her Honour Judge Levy in Chambers (Open to public)

Date of Hearing: 13 June 2022

Date of Decision: 13 June 2022

Date of Reasons for Decision: 4 July 2022

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REASONS FOR DECISION

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Background

1.The Applicant, Ms Wong, was a senior personal banking manager employed by the Respondent, a bank institution in Hong Kong. In April 2018, Ms Wong was subject to an investigation by the Independent Commission Against Corruption (“ICAC”), and was then suspended from duty. In July 2018, although Ms Wong was allowed to resume work, she was assigned to work at the Respondent’s back office instead of being allowed to return to her original position as a banking manager. On 9 August 2018, she was diagnosed to have suffered from depression.

2.The above events and Ms Wong’s depression form the basis of Ms Wong’s Application (“Application”) for employees’ compensation that her privately engaged solicitors filed on 17 October 2019 on her behalf. The personal injury, according to the Application, was the diagnosed depression referred to above.

3.In its Answer, the Respondent vigorously denies liability.

4.In October 2020, Ms Wong completed exchange of her witness statement with the Respondent’s.

5.Shortly after the joint psychiatric report (“JPsyR”) of Dr Cheung and Dr Hung was filed on 1 September 2021, Ms Wong was found to have become a mentally incapacitated person. These proceedings were ordered to be continued by the appointment on 10 December 2021 of Ms Wong’s uncle (Mr Chu Man Kong) as her next friend (“Next Friend”).

6.On 3 January 2022, the Respondent issued a summons (“Strike-out Summons”) to strike out the Application on the grounds that it (a) “discloses no reasonable cause of action”; (b) “is scandalous, frivolous or vexatious; and/or” (c) “is otherwise an abuse of the process of the Court”.

7.After the completion of the filing of the affirmations in relation to the Strike-out Summons, the Respondent issued a summons (“Summons”) pursuant to O 41, r 6 of the Rules of the District Court to expunge §§22 to 24 (“Offending Paragraphs”) of the 2^nd Affirmation of the Next Friend filed in opposition to the Strike-out Summons.

8.At the hearing of the Summons on 13 June 2022, I acceded to the Summons, and ordered the expunging of the Offending Paragraphs.

9.These are the reasons for my decision.

Discussion

10.Order 41, r 6 empowers a court to strike out “any affidavit any matter which is scandalous, irrelevant or otherwise oppressive”.

11.Since I have directed the expunging of the Offending Paragraphs, I should not go into detail of their contents. Suffice it to state that the Offending Paragraphs are concerned with the alleged unfair treatment of Ms Wong by the Respondent after Ms Wong was allowed to resume her duties in August 2019, around one year after Ms Wong was informed by the ICAC in September 2018 of the conclusion of the investigation, which found no evidence of wrong-doing against Ms Wong.

12.Ms Fung, on behalf of the Respondent, stated in her affidavit filed in support of the Summons and also submitted at the hearing that since the Offending Paragraphs relate only to matters which happened after the alleged accident, they were therefore irrelevant.

13.The Applicant’s counsel, Mr Cheung, stated that since the matters stated in the Offending Paragraphs have in fact been set out in Ms Wong’s witness statement, and been considered by the psychiatric experts in arriving at their conclusions, they must be relevant to Ms Wong’s psychiatric condition.

14.In my view, whether similar contents of the Offending Paragraphs have been mentioned in Ms Wong’s witness statement or in the JPsyR is immaterial. The question of relevancy needs to be examined in the context of the evidence the Applicant is relying on to oppose the Strike-out Summons.

15.The crux of the issue of the Strike-out Summons is going to be a consideration of whether the Applicant has a reasonable cause of action. As discussed in the “Background” section above, the accident that Ms Wong alleged to have occurred primarily consisted of a series of cumulative events which happened before she had allegedly suffered personal injury by a diagnosis on 9 August 2018 of depression - the investigations by the ICAC, the suspension from work and her later assignment to work in the back office.

16.In the circumstances, whilst the Applicant is undoubtedly entitled to adduce evidence on relevant matters and events that took place before the happening of the alleged “accident”, evidence concerning matters occurring after the alleged date of accident on 9 August 2018 will not be relevant. Since the Offending Paragraphs consisted of evidence concerning matters occurring after the alleged date of the accident, I considered such evidence to be irrelevant. Pursuant to O 41, r 6, I exercised my discretion to expunge the Offending Paragraphs.

Mr Lincoln Cheung, instructed by B Mak & Co, for the applicant

Ms Jade Fung, of Li & Partners, for the respondent