Yik Ping Chui v. Equal Opportunities Commission

HCA 978/2023

[2025] HKCFI 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 978 OF 2023

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D E C I S I O N

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I.  INTRODUCTION

1.This is an appeal against Master CK Chan’s decision made on 23 January 2025 to strike out the Plaintiff’s statement of claim and his action against the 2^nd Defendant on the ground that it discloses no reasonable cause of action and is an abuse of process. For convenience, I shall refer to the 2^nd Defendant as “EOC”.

2.In the present appeal hearing (which is a de novo hearing), EOC, like in the hearing before Master CK Chan, also relies on the ground that the claim is frivolous, vexatious and scandalous, and abusive of the process of the Court.

II.  PLAINTIFF’S CLAIM

3.For the present purpose, it is necessary to set out extensively the Statement of Claim:-

“1. The Plaintiff’s claim – Mixed Claim under Tort

1.1 The Plaintiff’s claim is for a monetary claim of 10 years of HKUST Lecturer I salary…

1.2 A formal written apology from HKCE [that is, the 1^st Defendant]’s Office and EOC for

A) their negligence in upholding network security of HK causing tremendous distress to me – a patient of double vision, anxiety disorder and ADHD, and

B) their failure in cooperating with an on-going police investigation for a period of 6 months from December 2022 to June 2023 by providing necessary factual information to end my distress.

2. The key incident leading to the Plaintiff’s claim

2.1 I was criminally threatened on EOC website on 2 December 2022 at 16:17 when all pages of the site turned literally black and white on me instantly from bright full colors. I was devastated and went around reporting the incident to HKUST IT staff. I also forwarded the incident to Judiciary.hk to ask to apply for a restraining order against network intruders against me.

3. Network intrusive activities at work and outside work from April 2022 onwards reported to police

3.1 Before this, I experienced network intrusive activities at work and outside work as follows:

3.2 Since April 2022 I experienced network intrusion into my BOCHK bank account…

3.3 This network problem, however, spread to my work to the level that my most critical task was disabled – hundreds of marks entered into the database were not savable at all for 3-4 times when I had to enter thousand of them for over a hundred students by the end of the semester between May and early June 2022… My workload was multiplied due to all kinds of network issues… I had to speak out my distress by contacting the police through e-report online… Madam Li of Intelligence Section of Yuen Long Police Station contacted me and asked me to document cybercriminal evidence…

4. My medical conditions confirmed by doctors in June 2022

4.1… I saw 3 psychiatrists in a row between June and August 2022 and I was diagnosed with Anxiety Disorder and ADHD on top of my double vision and severe dry eyes diagnosed by an ophthalmologist and an optometrist… I asked the first psychiatrist I saw to refer my case to Castle Peak hospital…

4.2…

5. Network intrusion at work and visual threats on EOC website traumatizing me

5.1 Other than classroom computer issues witnessed by students and office computer issues reported to IT staff, specifically, every end of semester I had problems entering marks just as what I encountered for the first time between May and early June 2022 previously described.

5.2 This past may 2023 I started to hear curses during intense marking and computer work so I asked to be hospitalized; the Castle Peak Hospital doctor gave me medication and issued 14 days of sick leave… After the sick leave, however, I realized that my direct supervisor… did not renew my contract due the end of this month 30 June 2023… The main reason she said was that I failed to explain to her my computer problems face to face. I emailed her in February 2023 that my problems were being investigated by Intelligence Section of Yuen Long Police Station but I couldn’t provide any more information because I was not given any answers from HKCE’s Office and EOC as to why I had been targeted to be criminally threatened on EOC website…

6. My direct supervisor’s doubts over my complaints leading to dismissal

6.1… HKCE’s Office has refused to tell me… WHEN they ordered all pages to turn black and white and why they decided to deploy the change DURING my visit to EOC website on 2 Dec 2022 at 16:17. On the other hand, EOC simply replied that they did not find any evidence of hacking and they refused to reply WHEN they decided to turn ALL pages of THEIR site black and white during my visit on 2 Dec 2022 at 16:17 till today. HKCE’s Office and EOC’s failure to provide factual information to assist in police investigation directly prolongs my distress, continues to risk my personal safety, and allows my direct supervisors to reprimand me for my complaints and eventually dismiss me.

7. Now and beyond – jobless and undermined

7.1… HKCE’s Office and EOC’s negligence in maintaining safe and harassment-free network environment in HK, however, directly undermines me who has inborn disabilities to continue to work at university in HK…”

4.During the hearing, the Plaintiff submits that her Statement of Claim serves just a start of her action against EOC, and that she does not have to set out all the particulars of her claim. Further, in the course of her oral submissions, she relies on article 39 of the Basic Law and various statutes including the Disability Discrimination Ordinance (Cap 487). While it is unnecessary to plead law in pleadings, the material facts and necessary particulars should be pleaded. This pleading requirement has to be observed whether the pleader is legally represented or not: see 朱賽金對高等法院司法常務官 [2020] HKCA 914 at §21. Therefore, to determine the present appeal, I shall focus on what have been pleaded in the Statement of Claim.

5.Towards the end of the hearing, the Plaintiff seems to suggest that she would like to amend the Statement of Claim to update her health conditions. Such amendment would not be related to EOC’s liability (as opposed to quantum). Therefore, I find it unnecessary to see what exact amendments the Plaintiff would like to make in determining the present appeal.

III.  SUBSTITUTION ORDER NOT IMPLEMENTED

6.On 19 December 2023, upon the Plaintiff’s application, Master granted an Order for her to, among others, substitute the Chairperson of EOC as the new 2^nd Defendant. In other words, EOC would be dropped out, if that Order was duly implemented. However, the Plaintiff has never implemented the Order. She has never amended her claim to substitute the Chairperson of EOC as the new 2^nd defendant, and thus the current 2^nd Defendant remains EOC.

IV.  NO REASONABLE CAUSE OF ACTION

7.For striking out for no reasonable cause of action, I bear in mind the principles set out in §§39-41 of 謝紅玲 v 李偉斌律師行 [2024] HKFCI 3578.

8.First, fundamentally, on the pleading, although “threat” or “criminal threat” is pleaded, I do not see how the matters pleaded can support any plea of “threat” or “criminal threat” by any objective and/or reasonable standard.

9.Second, I do not see any basis for any kind of duty owed by EOC to the Plaintiff:-

(1)  Insofar as the Plaintiff is claiming that the “threat” was caused by hacking, EOC was not the one who caused the threat.

(2)  Insofar as the Plaintiff is claiming that EOC should properly maintain its website to prevent any hacking, I see no basis to say that a website maintainer or owner would owe any duty to viewers of the website. Such a duty would be unnecessarily and oppressively wide which the Court would not impose.

10.Third, assuming that EOC did owe a duty to the Plaintiff, in my view, the injury now allegedly caused to the Plaintiff was not reasonably foreseeable and was too remote for any kind of damages, be it tortious damages, contractual damages, or other damages recognised by law. In particular, it was not reasonably foreseeable and was too remote that simply showing or flashing “black and white” would cause any damage to the viewers of the website.

11.Fourth, for the sake of completeness, there is no basis for the Court to order any apology of any form by the wrongdoer. In her oral submissions, the Plaintiff repeatedly refers to the Disability Discrimination Ordinance as a basis for the Court to order an apology. However, leaving aside her failure to refer to the Ordinance in the Statement of Claim, the facts pleaded in the Statement of Claim, in my view, cannot in any way sustain any claim under the Ordinance at all. On the facts pleaded, even assuming that the change of colour constituted some mistreatment under the Ordinance, there was no plea that EOC knew any of the Plaintiff’s disability (if any) and there was no plea that one of the reasons why EOC caused the “threat” was her disability.

12.In the circumstances, it is plain and obvious to me that as against the 2^nd Defendant, the Statement of Claim and the action disclose no reasonable cause of action.

V.  FRIVOLOUS AND VEXATIOUS

13.A claim is frivolous and vexatious when it has no solid basis capable of proof, is incapable of reasoned argument, is obviously false and impossible to success: see China Citic Bank International Ltd v Li Yan Hung & Suen Ming Kuen (Third Party) [2023] HKCFI 2978 at §15; Hong Kong Civil Procedure 2025 Vol 1 §18/19/7.

14.First, I repeat §8 above. The “threat” cannot be any threat by any objective and/or reasonable standard.

15.Second, the unchallenged evidence is, and I accept as a fact, that on 2 December 2022, EOC the changed the colours of its website, and the purpose of the change was to commemorate the late former president of China, Jiang Zemin. On such fact, in my view, it is plainly and obviously impossible for the Plaintiff to prove that EOC threatened the Plaintiff as she alleges, and if this did constitute any threat to the Plaintiff herself, it is plainly and obviously impossible for her to prove that such “threat” amounts to any actionable wrong against EOC.

16.In the circumstances, I find that the Plaintiff’s claim is frivolous and vexatious.

VI.  SCANDALOUS

17.A claim is scandalous where an allegation of serious misconduct is raised without proper evidence: Hong Kong Civil Procedure 2025 Vol 1 §18/19/6.

18.Given my finding above that it is plainly and obviously impossible for the Plaintiff to prove any or any actionable threat, which is a serious conduct, it follows that it is also plainly and obviously that the Plaintiff’s claim is scandalous.

VII.  ABUSE OF PROCESS

19.A claim is abusive of the process of court if the Plaintiff has no intention to bring it to conclusion: Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935 at §52.

20.As mentioned above, on 19 December 2023, upon the Plaintiff’s application, Master Mathew Leung granted an Order (the “Substitution Order”) for her to substitute the Chairperson of EOC as the new 2^nd Defendant. The application was the Plaintiff’s application. By making the application, it must mean that the Plaintiff intended no longer to claim against EOC, and it was on such basis that Master granted the Substitution Order. However, for no reason proffered, the Plaintiff has never implemented the Order, but instead still maintains her claim against EOC. Further, in her affirmation dated 11 February 2025, she “demand[s] the court to order that the exact expiry date of [present action] be 23 June 2024, long overdue”.

21.On such evidence, one would think it clear that the Plaintiff intends no longer to pursue her claim against EOC. However, during the hearing, the Plaintiff explained that when she made the application for the Substitution Order, she intended to narrow down her claim against EOC as a whole organisation by only claiming against the then Chairperson of EOC but not the whole EOC. However, according to the Plaintiff, the then Chairperson of EOC subsequently left EOC, and thus she would like to continue her claim against EOC.

22.In other words, it was a change of mind on the part of the Plaintiff. It must be that at the time of the Plaintiff’s application for the Substitution Order, no longer did she intend to pursue her claim against EOC. Whether the reason she alleged (namely, to narrow down her claim) for the application was true or not, or correct or incorrect, may be a consideration I have to bear in mind. However, in the present circumstances, without making any application to amend or revoke the Substitution Order or otherwise, that Order remains extant and the Plaintiff simply ignores the very Order she sought and then changes her mind. In the circumstances, I find that the Plaintiff’s continuing pursuit of her claim against EOC is plainly and obviously abusive of the process of the Court.

VIII.  CONCLUSION

23.Given the reasons above, Master CK Chan was right in striking out the Plaintiff’s Statement of Claim and action against EOC. For the avoidance of doubt, for my part, I would strike out the Statement of Claim and action against EOC also on the ground that the claim is frivolous, vexatious and scandalous, besides the ground of no reasonable cause of action and abuse of process of the Court relied upon by the learned Master.

24.I therefore dismiss the Plaintiff’s appeal. Having considered the submissions on costs I heard at the end of hearing, I order that the Plaintiff forthwith to pay EOC costs summarily assessed at HK$35,000.

25.It remains for me to thank Mr Alvin Cheung (counsel for EOC) for his assistance to the Court.

The Plaintiff appeared in person

Mr Alvin Cheung, instructed by Messrs Kennedys, for the 2^nd Defendant