Tong Wai Yee Winnie v. Secretary for Education and Another

HCAL 1231/2021

[2023] HKCFI 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1231 OF 2021

________________________

________________________

Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submissions:  31 May, 20 June, 22 June, 4 July, 18 August, 1 September, 21 October and 16 November 2022

Date of Decision:  3 January 2023

______________________________________

DECISION  ON  ASSESSMENT

OF  DAMAGES

______________________________________

A.  Introduction

1.In my Judgment dated 13 May 2022, [2022] HKCFI 1402 – the definitions in which I continue to use – I found that the Applicant had made out grounds for judicial review of the relevant Decision. Further, on some points which I thought need not be determinative, I found very strong arguments in favour of the Applicant’s case. The tone of my Judgment indicates that I was deeply unimpressed by much of the EDB’s stance in the proceedings and many of its previous acts. In short, I think the Applicant was treated very shabbily indeed, with at least apparently obvious direct adverse financial consequences to her.

2.In the exercise of my discretion as to relief, I quashed the Decision, and I also ordered damages, the quantum of which would be assessed.

3.I stated that the matter of assessment would be dealt with on paper submissions, and I gave directions accordingly. After a first round of submissions, I thought further assistance would be provided by further submissions, which I also directed. Those various submissions have been filed by the Applicant for herself, and by Ms Jess Chan, Senior Government Counsel for the Secretary and the EDB and subsequently by Mr Yang-Wahn Hew of Counsel together with Ms Chan.

4.This is my Decision on Damages. All figures are denominated in Hong Kong dollars (and all references to cents in the offered calculations have been rounded or ignored as immaterial).

5.Before going into the detail, I would point out the following. In her various submissions – and in other correspondence sent to the Court – the Applicant has continued to complain of the way in which she feels she has been dealt with by the EDB, in particular since my Judgment and in the context of her seeking employment for the academic year 2022/23 and so her prospects for subsequent years. I do not think the Applicant’s suggestions that the EDB has disregarded my Judgment and its message are helpful in deciding the current question of damages, and, as I do not think it either fair or appropriate to do so, I have not taken those matters into account except as I make clear.

B.  Damages

B.1  Introduction

6.In her claim to the damages to be assessed, the Applicant puts forward the claim to damages in the following heads and amounts:

(1)  general damages in the sum of $3,000,000;

(2)  loss of earnings in the sum of $1,945,942;

(3)  future loss of earnings in the sum of $10,994,432.

7.Together with the interest as calculated by the Applicant, the claimed damages total $16,042,714.

8.In response, Mr Hew and Ms Chan submit that an award of damages is not appropriate in this case, because the Applicant has failed to establish her right to damages on a valid cause of action in private law. Further, solely on its magnitude the claim is grossly exaggerated and not supported by medical evidence.

B.2  Whether Any Award of Damages is Appropriate

9.The first question which arises is whether it remains open to the EDB to argue a complete lack of entitlement to any damages. This is because, at the substantive hearing leading to my Judgment, an argument already took place as to whether any relief should be granted (if grounds for review were made out).

10.The scope of that argument is reflected in my Judgment. Whilst Ms Chan did argue against the grant of the claimed relief in the form of an order quashing the Decision, she did not raise any argument suggesting that there could never be an award of damages as was claimed in this case. However, the arguments raised now surely could have (and at least strongly arguably should have) been raised then.

11.They were not, and the orders I made in my Judgment included an order that the Applicant was entitled to damages, the quantum of which I would later assess on paper submissions. I did not adjourn to another occasion the argument as to whether or not there was any entitlement to damages at all (and indeed, if there is no possible entitlement, any question of quantum would be irrelevant and the exercise of assessing quantum would be pointless).

12.Whilst I have some doubt on whether as a matter of procedural fairness Ms Chan (later Mr Hew and Ms Chan) should be now allowed to argue that the Applicant has no entitlement to damages at all, I also bear in mind that the Court should not find an applicant’s claim established simply because her opponent has failed to raise any objection at the substantive hearing.

13.Mr Hew’s and Ms Chan’s argument will be discussed below, and I will seek to attribute the relevant submissions to each of them (though I also assume Mr Hew has adopted those submissions previously put forward by Ms Chan alone).

14.Ms Chan accepts that the power of the Court to grant relief in its supervisory jurisdiction is wide. The Court may make an award of damages in a judicial review application: see RHC Order 53 rules 1(3) and 7, and section 21K(4) of the High Court Ordinance Cap 4 (“HCO”).

15.Order 53 rule 1(3) provides that an application for judicial review may include an application for an award of damages, restitution or the recovery of a sum due but may not seek such remedies alone and rule 7(1) provides that damages may be awarded to the judicial review applicant if he can satisfy the matters which, in effect, come from section 21K(4) of the HCO. Section 21K(4) in turn provides that:

On an application for judicial review of the Court of First Instance may award damages to the applicant if –

(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages.

16.Ms Chan acknowledges that it is not uncommon for public law courts to award damages to successful applicants based on trespass to person in habeas corpus cases. However, there is no general right for an applicant to claim compensation for having suffered loss and damage as a consequence of any unlawful administrative decision. The Court’s discretion to make an award of damages should only be exercised if the individual applicant can satisfy the Court that she has a right to a private law claim which would entitle him or her to damages: see Tong Tim Nui v Hong Kong Housing Authority (unreported, CACV 27/1999 and others consolidated, 27 September 1999, Court of Appeal) at p 29.

17.Ms Chan also refers to R (on the application of Fayad) v Secretary of State for the Home Department [2018] EWCA Civ 54, where Singh LJ explained that the provisions in Order 53 are procedural devices to ensure that the Court has sufficient flexibility to consider a claim for damages in the same set of court proceedings in which it is considering public law remedies such as a quashing order. At §§45-48, he made the following points (in my summary of them):

(1)  The ability of the Court to award damages in claims for judicial review is an important part of its remedial powers in order to do full justice in cases in which a public authority has acted unlawfully.

(2)  The rules and statute make clear that a claim for damages could be included in judicial review proceedings.

(3)  But the provisions governing the procedure for making a claim for damages are not substantive law.

(4)  Though ensuring sufficient flexibility, the procedural provisions do not say anything about substantive law, and in particular do not create a cause of action for damages when none would otherwise exist.

(5)  In order to know whether there is a proper cause of action for damages in a claim for judicial review, it is still necessary to go to some other source of substantive law – for example, a cause of action in negligence, trespass to goods or the person, or for breach of statutory duty.

(6)  But the fact that such a cause of action can in principle arise (as a matter of procedure) in a claim for judicial review should not mean that the usual principles for making such a claim do not apply.

(7)  Any such claim should be properly pleaded and particularised.

18.Ms Chan points out that, although the Court found that the Policy, if it existed, had been overly rigidly applied in arriving at the Decision and has made a quashing order, that finding cannot create a new cause of action for the Applicant to make a claim for damages in substantive law. She also puts it another way, namely that it does not follow that the Secretary/EDB should assume liability to damages, because the law recognises no right of compensation for ‘administrative tort’, meaning a breach of duty owed by public body only in public law.

19.Ms Chan also makes the point, albeit only in a footnote, that the Applicant did not include a statement of claim for damages in her leave application in breach of Order 53 rule 7(1)(a). She submits that by virtue of rule 7(2), such statement as a pleading which must contain the necessary particulars of claim as required by Order 18 rule 12 – and that the contents of the Applicant’s affirmation evidence cannot be regarded as a statement for the purposes of rule 7(1)(a), which in any event did not plead the cause of action for a relief of damages nor provide sufficient particulars of claim.

20.Ms Chan submits in summary that:

(1)  the law does not provide a legal fiction for a job applicant to make a contractual claim;

(2)  it cannot be acknowledged in common law that by making the Decision, even though it was found to be flawed in the public law sense, the Secretary/EDB had committed a tortious wrong to a job applicant;

(3)  the Applicant did not run a case on breach of statutory duty (and there was no statutory duty owed in the recruitment of NETs for GPSs);

(4)  the Applicant apparently makes the claim on the doctrine of defamation or disability discrimination, but that is inapplicable to this case.

21.Whilst I acknowledge that it is open to a person to stand on his strict legal rights, I confess that I find the stance taken by the EDB in this context unattractive. It will be recalled that, in my Judgment, I made the following findings (amongst others):

(1)  the Applicant was qualified for the position of NET at the School, as the EDB’s inclusion of her name in the Candidate Pool put beyond doubt;

(2)  the Applicant was interviewed for that position in an open and transparent interview process;

(3)  following the result of that process, the School chose the Applicant for the NET position;

(4)  the Applicant was, to all intents and purposes, offered the position as the NET at the School – by both the EDB and the School;

(5)  the Applicant notified her desire to accept the offer of the position at the School – to both the EDB and the School;

(6)  the only remaining formalities to be completed prior to the employment had been readily completed within a few days;

(7)  though the formal employer might be the EDB, the EDB’s own documents specified that it was acting for and on behalf of the School;

(8)  yet the EDB interfered so as to disrupt and then prevent the recruitment process;

(9)  but for the actions of the EDB, which amounted to a breach of their public law duties, the Applicant would have taken up the post of NET at the School;

(10)  the particular breach was strongly arguably made by the purported application of a non-existent Policy;

(11)  but in any event, even if the Policy had existed, it was apparently known only to certain (and not all) officers of the EDB, and had not otherwise been notified or informed to those who would need to implement it or comply with it;

(12)  further, even if the Policy had existed, the EDB applied it over rigidly;

(13)  the impugned Decision was at least in part based upon suspicions, which were not properly investigated, and were improperly taken into account;

(14)  the reasons for making the Decision given to the Applicant at the time did not match the reasons subsequently identified by the EDB in its evidence;

(15)  though the Decision ought to be quashed, the practical reality was that it was no longer possible (because of the passage of time) for the Applicant to be appointed as a NET at the School for at least the academic year 2021/22.

22.In light of those various findings, and the obvious fact that the Decision caused (at a minimum) immediate direct adverse financial consequences to the Applicant, I think most right-minded people would balk at the suggestion that the EDB could behave in this way with practical impunity.

23.That said, I also bear in mind that this Court, being a Court of law, should resist the temptation of tailoring a claim to achieve what reasonable people would perceive as the just result. In that regard, I think that the law, as applied in the particular circumstances of this case, would echo the likely thoughts of right-minded people in society.

24.The Applicant acted in person all along except for the very brief legal assistance she obtained in calculating the various “heads of damages”. She remained unrepresented in advancing her grounds of judicial review and relief sought. Damages were identified as one of the relief sought in her Form 86. Whilst she did not put it in such words, apparently one of her claims was breach of contract. She identified in her Form 86 the decision the subject of review as “the oppressive and unreasonable decision of a public body to rescind [her] provisional offer of appointment based on pre-determination and prejudice”. The language suggested that she believed she had some sort of contractual rights. As she put it in submission, the Applicant was invited to accept a contract (by telephone, email and in person) and she did accept it (similarly), so that it might be thought that there is a binding collateral contract even in the absence of any written contract being signed.

25.I bear in mind that the 2 June Email by which the EDB informed the Applicant that the School intended to offer her the NET position was not a formal offer. The Applicant was reminded not to resign from her current job or make arrangements to stay in Hong Kong before she received any provisional offer.

26.One would appreciate that, at that stage, the EDB and the Applicant came very close to the conclusion of an employment contract for the NET position in the School. Nonetheless, the negotiation process stopped short of an enforceable contract.

27.That said, the fact that the subject of negotiation fails to mature into a contract does not prevent the Court from finding other collateral contracts to preserve the integrity of the negotiation process when the circumstances so call for it. When parties have laid down clear rules of negotiation, the Court has been prepared to enforce those rules of negotiation by a collateral contract.

28.One landmark decision is Blackpool and Fylde Aero Club Ltd v Blackpool BC [1990] 1 WLR 1195. There, the local authority which owned and managed the local airport invited tenders from 7 parties, including the plaintiff, for the concession to operate pleasure flights from the airport. The tender document provided that “the council do not bind themselves to accept all or any part of any tender. No tender which is received after the last date and time specified shall be admitted for consideration”. The deadline specified was 12 noon on 17 March 1983.

29.The plaintiff submitted its tender in time but the town clerk failed to empty the town hall letter box at 12 noon on 17 March 1983 when he was supposed to have done so. He only emptied the letter box the next day and that resulted in the plaintiff’s bid being initially declared late and invalid. The town clerk’s mistake was later recognized by the local authority, but the authority eventually awarded the concession to another tenderer. The plaintiff sued for breach of contract.

30.The plaintiff argued that the local authority’s stipulation that tenders received after the deadline would not be admitted for consideration gave rise to a limited contractual obligation to consider a timely tender. This argument was accepted by the first instance judge and then upheld by the Court of Appeal. The Court of Appeal’s main judgment (given by Bingham LJ) could be summarized below:

(a)  Generally, an invitation for tender is no more than an offer to receive tenders. But such an invitation may also give rise to some contractual obligations on the part of the invitor.

(b)  Where, as there, tenders were solicited from selected parties all of them known to the invitor, and where the local authority’s invitation prescribes a clear, orderly and familiar procedure, the invitee is protected to the limited extent that if he submits a conforming tender before the deadline, his tender would be considered, not as a mere expectation but of contractual right.

(c)  It would be unacceptable if the local authority was free to depart from the rules stipulated on the tender document by, say, committing to one of the tenderers before the expiry of the deadline and before the other invitees had submitted their bids.

(d)  This would lead to an unacceptable discrepancy between the law and the commercially confident assumptions of commercial parties. Had the plaintiff inquired of the local authority whether it could rely on any timely and conforming tender being considered along with others, he felt quite sure that the answer would have been “of course”. The law would be defective if it does not give effect to that.

(e)  Contracts are not to be lightly implied and the Court must be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for. But, in the case, there was no doubt that the parties did intend to create contractual relations to the limited extent that a timely and conforming tender would be considered.

31.On a similar vein, in Barry v Davies [2000] 1 WLR 1962, the Court of Appeal also upheld the decision of the lower court’s finding that the rules of negotiation were capable of giving rise to a collateral contract. This decision was set in the context of an auction. Normally the auctioneer’s invitation to bid is only an invitation to treat and the offers are to be made by those submitting the bids. The contract is concluded when the auctioneer’s hammer is struck but not earlier. On the facts of the case, the auctioneer put two engine analysers up for auction on a without reserve basis but decided to withdrew the analysers from the auction when he considered the only bid received was too low. The only bidder, the plaintiff, sued the auctioneer for breach of contract. The Court of Appeal held that there was a collateral contract between the auctioneer and the highest bidder that the auctioneer would sell to the highest bidder.

32.Mr Hew reminds of the need to look at the relevant correspondence objectively: see, for example, Stegemann RA v Chinese University of Hong Kong (unreported, HCLA 36/2002, 5 July 2002) at §11. This I have done, both in my Judgment and below. Mr Hew also emphasises that any alleged collateral contract would have to be an implied agreement inferred from the parties’ conduct, where the Applicant of the proponent of the contract bears the burden of proof, remembering that contracts are not likely to be implied and that the Court must be able to conclude that it is necessary, not merely convenient or desirable to imply such contract: see, for example, Baird Textile Holdings Ltd v Marks & Spencer plc [2001] CLC 999 at §§13, 21 and 59-64. (Mr Hew refers to a number of other authorities on this and other points, but I do not think I need make reference to all of them in this Decision,)

33.Applying the various principles, I am of the view that there was a collateral contract between the Applicant and the EDB that the Applicant’s application to a NET position (submitted by herself to the School directly) would be considered alongside other CVs submitted via NET Amin Team:

(1)  The relevant rules of negotiation (or recruitment) were clearly conveyed to the Applicant in writing. By email dated 14 May 2021, the Applicant asked the NET Admin Team “if [she] may send [her] CV to other primary schools that are currently recruiting NETs”. By email dated 18 May 2021, the NET Admin Team replied “Under existing arrangement, schools may either entrust the EDB for NET recruitment or recruit a NET direct on their own. Therefore, you may also apply to individual schools with NET vacancy directly”.

(2)  Tailoring Bingham LJ’s hypothetical question in Blackpool to the present case: had the Applicant asked could she rely on that her CV, submitted by herself to the school directly, would be considered on the same footing as other CVs which was submitted via the NET Admin, the answer would be positive.

(3)  Objectively speaking, the EDB and the Applicant, as shown in the 14 May 2018 email and the 18 May 2018 Email, had the intention to bind themselves to the limited effect as contended for.

(4)  The EDB later sought to offer their own subjective interpretation of the 18 May Email, which is, in my view, contrary to the plain meaning of the email. In any event, as Mr Hew has himself sought to emphasise, it is trite that the point of reference for a contract is an objective bystander. The EDB’s subjective belief, even if that was a genuine one, is irrelevant.

(5)  The 18 May Email, viewed in the EDB’s general invitation for candidates in the Candidates Pool to apply for NET positions, was an offer to the Applicant to the limited extent that the Applicant’s direct submission to the School (or other schools) would be admitted into consideration. The Applicant’s direct submission to the School and the completion of the entire interview process led to an offer and the acceptance of the offer.

(6)  Indeed, the EDB’s own subsequent conduct supports that view – until, of course, the EDB acted in the way that has led to its decision being quashed.

34.Mr Hew refers to Gilligan v AHK Air Hong Kong Ltd [1989] 2 HKC 189, at 197H, where it was recognised that much negotiation will accompany the offer of employment but whatever the circumstances, the law is interested in identifying the moment in time when a clear offer in precise terms was unconditionally accepted by the person to whom it was made. Thus the law looks to the moment when the negotiations are ended. But it seems to me on the findings I made that there was a clear offer in precise terms, which was accepted without conditions (save as to the completion of formalities which was quickly achieved).

35.I think it clear that the finding of a collateral contract is necessary to give ‘business reality’ to the dealings between the EDB/School and the Applicant, namely to create enforceable obligations between parties who dealt with one another in circumstances in which one would expect business reality and those enforceable obligations to exist. I do not think it can be said that the parties in this case would have acted as they did without intending a contract coming into existence, and it seems unequivocal that (subject only to the completion of formalities, which were swiftly completed) the parties had the intention to create legal relations.

36.Further, Mr Hew’s suggestion that the Applicant was not “locked” into employment or any process and was free to look for other jobs seems to me to be far from the reality. By accepting the position at the School, the Applicant effectively shut herself out from accepting a position at another school where recruitment was dealt with under the auspices of, or with the assistance of, the EDB. Evidently, she proceeded on that basis until much later in time, following the elated and varying explanations offered to her as to why she was not able to take up employment at the School.

37.There was a collateral contract, and it was breached. The rules of negotiation or recruitment clearly conveyed to the Applicant were not complied with by the EDB. It is not disputed that the School selected the Applicant after rounds of interview and the Applicant was on the verge of being offered the position pending only the completion of certain formalities, which were in fact quickly met. The reason why the Applicant was rejected at the end was because her CV was submitted by herself to the School directly – the very channel of application which the EBD had assured the Applicant was permissible and would not rule her out from consideration.

38.Had the Applicant been considered on the same footing as other applicants whose CVs were submitted via the NET Admin Team, the Applicant would have been offered a two-year contract. Indeed, at the invitation of the EDB, the Applicant had already indicated she did or would accept it and had fully complied with the formalities requested of her. Further, as I found in the Judgment, the EDB chose to interfere so as to prevent the formal contract coming into being apparently based on suspicions, which were not properly investigated, and which were improperly taken into account – and which in fact had no basis.

B.3  General Damages

39.The Applicant seeks general damages for the hurt and distress suffered by her, and to repair the harm that has been done to her reputation.

40.Her claim to the sum of $3,000,000 comes from the award of general damages in that sum in the case of Chu Siu Kuk Yuen Jessie v Apple Daily (unreported, HCA 17103/1998, 20 December 2001, Yuen J). The Applicant recognises that that was a libel case, but submits that how Yuen J quantified damages in that case is relevant to this case. In the Chu Siu Kuk Yuen Jessie case, the award of general damages was quantified as it was because of the seriousness of the libel, that the circulation of the libellous material was high, that there was long-lasting psychiatric and actual physical illness and proven loss of business profits. There was also no apology. The award was made to console the plaintiff in that case for the hurt and distress suffered by her, to repair the harm done to her reputation and to vindicate her reputation.

41.The Applicant’s submissions refer to her own evidence – in particular §79 of her 1^st affirmation – which contains material relating to claimed damages, which might be broadly summarised as follows:

(1)  the damages awarded should seek to relieve the Applicant of the amount of emotional stress gone through since May 2021;

(2)  she experienced fear and anxiety at almost every stage of job-seeking, for fear that she would not be hired because of secret phone calls made to school principals;

(3)  after the outcome of the application, she continued to experience emotional and psychological stress, in seeking to find out how and why the Decision could be made, with the unreasonable abuse of power;

(4)  prior to the incident, she had not experienced what it was like “to be consumed with such intense emotional distress”, which also had physical manifestations;

(5)  she started to lose confidence and a sense of self-worth;

(6)  even after the Judgment, continued flashbacks to past events force negative thoughts and emotions;

(7)  though (for her own reasons) she has not consulted a psychologist or psychiatrist, she knows from her own educational background in psychology, that she is experiencing serious mental issues as a result of harm being occasioned on her “by remorseless and harmful senior EDB officers”;

(8)  she has suffered a loss of reputation and been labelled a ‘trouble-maker’.

42.The Applicant submits that even the sum of $3,000,000 cannot fully compensate for the longer-term reactions, including but not limited to unpredictable emotions, flashbacks, physical symptoms and strained relationships.

43.In response, Ms Chan submits that the Applicant appears to have personalised the Chu Siu Kuk Yuen Jessie libel case, but it is factually distinguishable, and there has been a failure to articulate how the factual circumstances of this case could give rise to a cause of action for damages for defamation.

44.If reference is intended to be to the phone calls made by Mr SK Lo to the GPS principals as amounting to defamation, Ms Chan says that is mere assertion, because there was no such finding in the Judgment, nor any finding that what was allegedly said was defamatory. In so far as it is said by the Applicant that the Decision was motivated by bad faith, there is no such finding of the existence of bad faith, where “bad faith” is in any event not itself a valid cause of action in substantive law.

45.Leaving aside the question of liability, Ms Chan submits that the Applicant has not produced any cogent evidence, medical or otherwise (outside of self-serving affirmation evidence) to prove the alleged causation for her claim of mental distress. Further, the personal reasons for not consulting a psychologist or psychiatrist cannot justify the lack of medical evidence for the purpose of assessment of damages.

46.I agree, and on balance, I consider that an award of general damages for the claimed hurt and distress is not apt. I decline to make it.

B.4  Loss of Earnings

47.The Applicant is seeking monetary compensation for the loss of at least a two-year service contract under the EDB NET Scheme – Remuneration Package. She says that, but for being stripped of the provisional offer at the School, there is a high probability of her having completed at least a two-year service contract supposed to be from 16 August 2021 to 15 August 2023. That would have been remunerated at $61,450 per month (based on her last Master Pay Scale Point 29) and $20,989 for housing allowance-cash per month, and the gratuity payable for the contract that would have been a sum together with the Government’s contribution to the MPF scheme that may equal 15% of the total basic salary drawn during the period of the contract.

48.In order to mitigate her loss of earnings caused as a result of the Decision, the Applicant found a job as a school-based NET. As I recognised in the Judgment, school-based NETs are paid less. Aside from the salary for October 2021, which was $22,452, the Applicant’s monthly salary is $29,000. The current contract ended on 31 July 2022.

49.By reference to a spreadsheet prepared by her and attached to her submission, the Applicant calculates her gross yearly income as a NET under the EDB NET Scheme as $1,114,697, and so over two years would be $2,229,394. Deducting the income she has in fact received since October 2021 (totalling $282,452), is a loss of earnings claim of $1,945,942.

50.As to the spreadsheet, Ms Chan submits that: (1) not all NETs are eligible to fringe benefits, and the claimed housing allowance of $20,989 is such a fringe benefit, subject to a decision on eligibility through internal assessment criteria; (2) as to the contract gratuity, the payment is conditional and payable only upon satisfactory completion of the appointment contract period; and (3) the employer’s contributions to MPF Scheme during the calculation period should be deducted in the calculation of the gratuity.

51.On the materials, I see no reason why the Applicant would not (on a good faith basis) have been found eligible for the housing allowance. Indeed, though Ms Chan has sought to ‘float’ the question of eligibility, it is unfortunate that she has not identified the relevant facts relating to whether or not the Applicant was previously eligible for and paid fringe benefits including housing allowance, travel allowance and so forth during her previous lengthy period of employment. The EDB must know the answer to that question, but has chosen not to offer it. I see no reason not to accept the Applicant’s statement that her normal place of residence outside Hong Kong has always been in Richmond, British Columbia, Canada, and that she has from 2004 until 2020 continuously received fringe benefits, including the housing allowance.

52.Nor do I see any reason why the Applicant would not have satisfactorily completed the contract period, so entitling her to the contract gratuity. Her previous record as a NET, with the various commendations mentioned in the Judgment, speaks for itself. But I accept that the employer’s contributions to MPF of $18,000 should be deducted from the gratuity. Ms Chan made no submissions in relation to other items on the spreadsheet, being a retention incentive of 10% (of one month’s salary), insurance and passage. In those circumstances, and as those sums together total only around $12,000, I would include them. Therefore, the annual figure is $1,096,697. The two-year amount is $2,193,394.

53.On the other hand, the duty to mitigate would also apply to the academic year 2022/23, and it turns out that the Applicant has been able to obtain employment as an EDB NET in an aided school, so that she has no loss for that year (even though she regards her position as ‘precarious’ and has suggested there has been delay in certain aspects of her remuneration.

54.The calculation of loss of earnings arising from the deprived contract is ($1,096,697 - $282,452) $1,562,942. Assuming tax would have been payable on that income at 15%, the net amount of lost income would be $814,245.

B.5  Loss of Future Earnings

55.The Applicant submits that, but for being wrongfully labelled as a ‘trouble-maker’, she would have been successfully awarded a contract under the EDB NET Scheme year after year until her retirement age of 65 – she being now 47 years of age.

56.In her calculation of future loss of earnings, she has adopted the calculation used in K, Y and W v Secretary for Justice, sued for and on behalf of the Fire Services Department and Hong Kong Customs and Excise Department (unreported, DCEO 3, 4, 7/1999, 27 September 2000), which as its action number identifies was a claim for unfair discrimination, in that case made under the Disability Discrimination Ordinance. The figure adopted by the Applicant is $63,891 per month, multiplied by 12 and using a multiplier of 14.34 (with the discount rate of 2.5%). Hence her claim calculated at $10,994,432.

57.Ms Chan submits that the K, Y and W case has no application to the present circumstances. It is not the Applicant’s pleaded case that the Decision was made because of her inherent disability in terms of the statutory definition or otherwise. On the facts, the reason for the Decision was that the Policy had not been adhered to by the School (albeit that the Court found in the Judgment that the Policy, if it existed, had been over rigidly applied).

58.I tend to agree with that submission. But, more fundamentally, I do not think any sufficient link is drawn between my findings in the Judgment and any future loss of earnings. I bear in mind that each contract period is of one or two school academic years, and there are numerous reasons why any particular employee’s contract might be ended or not renewed at its expiry. I do not think it fair or appropriate to assume any future wrongdoing. Indeed, ordinarily in most contractual scenarios (although I have recognised that there may be a difference in the particular context giving rise to this case), an employer may lawfully choose to end employment in accordance with the terms or contract of employment and such applicable laws to be found in, for example, the Employment Ordinance Cap 57.

59.I would not award any damages for loss of future earnings.

B.6  Other Loss

60.Though not specifically included in the claim to damages as it was framed, I have already referred to the matter included (in my view erroneously) in the claim to costs as was dealt with in my Decision on Costs, [2022] HKCFI 2484.

61.The extra fee of $3,130, necessarily paid by the Applicant to the HKCAAVQ for teacher registration seems to me to have arisen directly as a result of the Decision which I have quashed, and would not otherwise have been incurred.

62.I would, therefore, allow that sum as part of the damages claim.

B.7  Interest

63.In the exercise of my discretion, I award interest on all sums at the Judgment rate until payment. The period of interest to be calculated will commence as from 1 March 2022 (as that is a date suitably within the first contract year to cater broadly for the fact that some loss would have occurred earlier in the academic year and some later).

64.I leave to the parties the actual calculation of that interest sum. (Though it ought not to be necessary, I can resolve any dispute as might arise on the calculation.)

C.  Conclusion on Damages

65.I assess the damages payable to the applicant in the total sum of $817,375 with interest as detailed above.

The applicant, acting in person

Mr Yang-Wahn Hew, instructed by and Ms Jess Chan, Assistant Principal Government Counsel (Ag.) of, the Department of Justice, for the 1^st and 2^nd respondents