鄺偉明 v. 基督教九龍五旬節會有限公司及另七人

[English Translation – 英譯本]

CACV 176/2023, [2024] HKCA 965

On appeal from [2023] HKCFI 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 176 OF 2023

(ON APPEAL FROM HCPI NO 491 OF 2020)

__________________________

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JUDGMENT

Hon Ng J (giving the judgment of the Court):

Introduction

1.This is our ruling on the following applications of the plaintiff: (1) summonses dated 7 July 2023, 11 December 2023 and 28 December 2023 (collectively “the new evidence application”); and (2) summonses dated 17 November 2023 and 28 December 2023 (collectively “the disclosure application”).

2.Having considered the documents in this case, this Court is of the view that it is appropriate to determine the plaintiff’s applications without a hearing on the basis of written submissions only, pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, Laws of Hong Kong.

Background

3.The plaintiff (“Mr Kwong”) (transliteration) was originally employed as a teacher of the Pentecostal School (“the school”). Prior to his resignation in 2018, he lodged a complaint with the management of the school regarding teaching management and pressure. Feeling that the school had not provided him with satisfactory follow-up and reply, Mr Kwong decided to resign. He left his position after 31 August 2018. In September 2018, Mr Kwong lodged a complaint with the school sponsoring body and its former chairman regarding the relevant matters. Subsequently, Mr Kwong also lodged a complaint with the Education Bureau.

4.Mr Kwong commenced a number of actions in 2020 regarding the relevant complaints. Among them, Mr Kwong commenced the present proceedings against the first six defendants in November 2020. In 2021, Mr Kwong amended the writ of summons to add the current chairman and the former chairman of the school as the 7^th and the 8^th defendants. Mr Kwong sought to recover damages for alleged personal injuries from the 1^st to 8^th defendants in these proceedings.

5.The defendants in this action and their respective relationships with the school during the relevant period are as follows: (1) the 1^st defendant: the sponsoring body of the school (“the school sponsoring body”); (2) the 2^nd defendant: the principal of the school; (3) the 3^rd defendant: the supervisor of the school; (4) the 4^th defendant: the Incorporated Management Committee of the school (“the IMC”); (5) the 5^th defendant: the vice-principal of the school; (6) the 6^th defendant: the head of mathematics of the school; (7) the 7^th defendant: the chairman of the school sponsoring body (from 1 January 2019) (“the current chairman”); (8) the 8^th defendant: the chairman (until 31 December 2018) and the head of the education division (from 1 January 2019 to 31 December 2021) of the school sponsoring body, and a current member of the school sponsoring body (“the former chairman”).

6.In the re-amended statement of claim, Mr Kwong alleged that the defendants in this action breached the duty of care owed to him. Among other things, he claimed that on 15 September 2018, he lodged a complaint with the 1^st, 7^th and 8^th defendants regarding the unreasonable demands and pressure of the secondary school. However, as the associates and monitors/controllers/administrators of the 3^rd and 4^th defendants in the case, the three defendants, who owed the plaintiff an extended duty of care of the employer, failed to conduct a formal investigation and provide a reply. Instead, they chose to make fraudulent misrepresentations/provide false documents to the Education Bureau, causing Mr Kwong psychiatric harm. Mr Kwong sought to recover from each of the defendants alleged loss of income from 1 September 2018, unassessed “solatium for psychiatric harm”, punitive damages, etc.

7.The 1^st, 7^th and 8^th defendants in this action (“the relevant defendants”) took out a summons to apply for striking out Mr Kwong’s claims, but meanwhile Mr Kwong took out a summons said to be a request for disclosure of documents by the defendants. The Master directed that the respective applications be heard at the same time.

8.After a hearing, Master Angela Kot of the Court of First Instance handed down a written decision on 11 October 2022, striking out the claims against the relevant defendants and dismissing the relevant action. At the same time, the Master dismissed Mr Kwong’s application by summons and ordered Mr Kwong to pay costs to the relevant defendants.

9.Feeling aggrieved, Mr Kwong filed a notice of appeal on 21 October 2022, seeking to overturn the decision.

10.On 12 May 2023, Deputy High Court Judge Leung handed down a judgment (hereinafter referred to as “the judgment”), dismissing Mr Kwong’s appeal. The reasons for judgment are briefly summarized as follows:

(1)  The relevant defendants did not owe Mr Kwong the alleged duty of care because: (1) as a matter of fact, the relevant defendants could not have owed Mr Kwong the duty of care owed by an employer to an employee, nor was there a legally recognized close relationship sufficient to give rise to such a duty (see paragraph 52); (2) Mr Kwong failed to point out any substantial and material factual basis during the relevant period to allege that the relevant defendants had either voluntarily assumed a duty of care towards him or that he had relied on the relevant defendants in a manner that created such liability (see paragraph 54).

(2)  Regarding Mr Kwong’s allegation that the relevant defendants made fraudulent misrepresentations and provided false documents to the Education Bureau, this was a serious accusation and Mr Kwong failed to provide relevant factual basis and details (see paragraph 65).

(3)  At the stage of the statement of claim, Mr Kwong took out a summons to request, inter alia, the disclosure of documents by the relevant defendants. This was procedurally flawed. Moreover, Mr Kwong lacked the basis to apply for the disclosure of particular documents under Order 24, rule 7 of the Rules of the High Court at that stage.

11.The original application of the relevant defendants was granted, and the action against them was dismissed. Consequently, Mr Kwong’s application by summons against them should be dismissed (see paragraphs 68 to 69).

12.On 9 June 2023, Mr Kwong filed a notice of appeal, seeking to overturn the judgment of Deputy Judge Leung. Mr Kwong put forward the following grounds of appeal which can be summarized as follows:

(1)  Judge Leung erred in finding that the relevant defendants owed no duty to monitor the 3^rd and 4^th defendants (Appeal point 1);

(2)  Judge Leung should have held, in accordance with the “School Administration Guide” and the handling guidelines, that the relevant defendants were stakeholders responsible for handling complaint against the 2^nd to 6^th defendants. Therefore, they should have owed a duty of care to Mr Kwong (Appeal point 2);

(3)  Judge Leung erred in failing to consider that the relevant defendants had reasonably foreseen the causation that their conduct in handling the matter would cause personal injury to Mr Kwong (Appeal point 3);

(4)  Judge Leung erred in dismissing Mr Kwong’s disclosure application based on his understanding/conjecture of paragraph 66 of the decision (Appeal point 4).

Brief procedural history of Mr Kwong’s applications

13.On 7 July 2023, Mr Kwong filed a summons and a supporting affidavit, applying to this Court for leave to adduce new supplemental evidence (“new supplemental evidence application”). The summons did not provide particulars of the new evidence Mr Kwong sought to adduce. In his supporting affidavit, it listed: Exhibit AI, Exhibit AJ, Exhibit AK, and Exhibit AL (see below for details).

14.On 11 December 2023, Mr Kwong filed an application summons and a supporting affidavit for leave to adduce new supplemental evidence 2 (“new supplemental evidence 2”), seeking to adduce new supplemental evidence 2. This included Exhibit AQ and Exhibit AR (see below for details).

15.On 28 December 2023, Mr Kwong filed a summons and a supporting affidavit to apply for leave to amend the new evidence application made on 7 July (“amended new evidence application”), seeking to include the exhibits listed in the first supporting affidavit (namely, Exhibit AI, Exhibit AJ, Exhibit AK and Exhibit AL) in the summons.

16.On 17 November 2023, Mr Kwong applied for disclosure of documents without specifying from which party disclosure was sought or the list of documents sought to be disclosed. The summons only put forward that reference should be made to the supporting affidavit filed on the same day regarding disclosure (i.e. 17 November 2023) (“disclosure application”).

17.On 11 January 2024, Mr Kent Yee, the Registrar of Civil Appeals, directed that leave be granted for Mr Kwong to remove the affidavit filed on 17 November 2023 from the appeal bundle.

18.On 28 December 2023, Mr Kwong applied for leave to amend his disclosure application (“amended disclosure application”). However, he still failed to provide particulars of the documents sought to be disclosed. His summons merely:

(1)  put forward that reference should be made to his supporting affidavit filed on 28 December 2023; and

(2)  applied to this Court for listing of a hearing on the part on Appeal point 4 in the notice of appeal to deal with Mr Kwong’s appeal on the disclosure application whereas the remainder of the appeal would be dealt with afterwards.

19.On the other hand, the 2^nd to 6^th defendants made an application that their attendance at the appeal hearing be excused. Mr Kwong objected to this.

20.This Court will discuss each application in turn.

Mr Kwong’s new evidence application

21.Pursuant to Mr Kwong’s amended new evidence application, Mr Kwong wished to adduce the following new evidence:

(1)  the Skeleton Submission of the 1^st, 5^th and 6^th Respondents (prepared by the relevant defendants in the present case on 27 April 2023) in one other related action, DCEO 4/2022 (“the other action”) (Exhibit AI);

(2)  the report submitted by the task force of the IMC of Pentecostal School to the IMC of Pentecostal School, as found on page 60 of the first affidavit (Exhibit “LSK-1”) deposed by LAW Kam-shing (transliteration) (i.e. the 2^nd defendant in this case) on 22 November 2022 in the other action (Exhibit AJ);

(3)  the 3^rd defendant’s written reply to Mr Kwong on 30 August 2018 (Exhibit AK);

(4)  the investigation results of the Education Bureau on 29 April 2019 in respect of Mr Kwong’s complaint (Exhibit AL).

22.Regarding paragraphs 59 to 65 of Exhibit AI, counsel for the relevant defendants pointed out in the skeleton submission of the other action that the 2^nd to 4^th defendants, when handling the relevant complaints, complied with the Guidelines on Whole School Discipline Work of Pentecostal School. The 2^nd respondent did not commit any unlawful acts under the Disability Discrimination Ordinance, nor did it constitute a cause of action for which an equal opportunities claim could be brought against the three respondents.

23.According to Mr Kwong, this exhibit shows a close relationship between the relevant defendants and the 2^nd to 4^th defendants (i.e. the 2^nd to 4^th respondents in the other action). This was because the relevant defendants rigorously advocated for the 2^nd to 4^th defendants in the other action and altered the account of the factual background in the striking out proceedings. That is, they originally claimed that the relevant defendants and the 2^nd to 6^th defendants were entirely distinct in function, and were groups with no close relationship, but then changed to say that the two were inter-related.

24.Mr Kwong said this exhibit shows the 2^nd to 4^th defendants had handed over all information regarding the complaints he filed with the school and the Education Bureau to the relevant defendants, who then conducted critical handling of the same. This confirms the close relationship between the two. Mr Kwong said this also confirms that the relevant defendants were the ultimate stakeholders in handling school complaints (allegation of a close relationship).

25.Furthermore, Mr Kwong said there are discrepancies between the report submitted to the IMC of Pentecostal School by the task force of the IMC of Pentecostal School (Exhibit AJ), which stated that the task force had arranged multiple meetings with Mr Kwong, and the other evidence, that is, the 3^rd defendant’s written reply to Mr Kwong on 30 August 2018 (Exhibit AK) and the investigation results of the Education Bureau on 29 April 2019 (Exhibit AL). Therefore, the relevant defendants provided false information to the court and misled the court (allegation of providing false information).

26.Mr Kwong said since the 1^st, 7^th and 8^th defendants altered what they originally stated in Exhibit AI, the new supplemental evidence would not only significantly assist the court in understanding the facts of the case but would also have a material effect which necessitates Mr Kwong’s application for adducing new evidence. With regard to the other exhibits in the application, they are relevant evidence derived from Exhibit AI.

27.According to Mr Kwong’s new supplemental evidence 2, he further applied for adducing the following new evidence:

(1)  The complaint letter sent by Hui Hei-tung (transliteration) to the 1^st and 4^th defendants on 26 October 2023, together with the 4^th defendant’s reply (including the unsolicited reply on behalf of the 1^st defendant) in response to Hui’s complaint (Exhibit AQ);

(2)  The Education Bureau’s Frequently Asked Questions on Enhanced School Complaint Management Arrangements (Exhibit AR).

28.In Exhibit AQ, a graduate of the school, Hui Hei-tung, lodged a complaint with the 1^st and 4^th defendants regarding the school’s complaint handling mechanism. The 4^th defendant said in reply that the school had complied with the guidelines of the Education Bureau in setting up a school-based complaint handling mechanism and invited Miss Hui to refer to the relevant documents including the Enhanced School Complaint Management Arrangements issued by the Education Bureau. Exhibit AR is the said document of the Education Bureau.

29.Mr Kwong said Exhibit AQ supports his allegation of a close relationship and of providing false information.

30.The defendants (of which the 1^st, 7^th and 8^th defendants were represented by counsel Mr Matthew Ngai and Ms Lee Wing-ki, and the 2^nd to 6^th defendants were represented by Clyde & Co.) objected to Mr Kwong’s new evidence application.

Discussion on the new evidence application

31.The purpose of the appeal mechanism requires the applicant to identify the errors in the trial judge’s decision and state concisely the grounds on which the trial judge is alleged to have erred. If the grounds of appeal merely reiterate again and repeatedly the contentions that were rejected by the trial judge without advancing any grounds in rebuttal to the trial judge’s reasons for rejection, such grounds cannot be regarded as valid grounds of appeal: see 李智慧 及 昆士蘭保險(香港)有限公司 [2021] HKCA 984 at paragraph 11.

32.It is a well-established legal principle that the applicant must satisfy the three conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 before the Court of Appeal would consider granting leave to new evidence application on appeal. These three conditions are:

(1)  The evidence could not have been obtained with reasonable diligence on the part of the applicant for use at the trial;

(2)  The evidence, if given, would probably have an important influence on the result of the case, though it need not be decisive;

(3)  The evidence needs to be apparently credible, though it need not be incontrovertible.

See 吳麗菊 及 警務處 [2020] HKCA 826 at paragraph 25.

33.With regard to Mr Kwong’s allegation of a close relationship, Mr Kwong said the relevant defendants’ skeleton submission in the other action was the first new documentary evidence to accuse the defendant for changing position and providing a wholly different account of the functional relationship between the relevant defendants and the 2^nd to 6^th defendants in this action. Mr Kwong claimed that the close relationship between the relevant defendants and the 2^nd to 6^th defendants has material effect on the appeal. However, this Court does not think so. The allegation of the defendants’ so-called close relationship does not support any grounds in rebuttal to the decision of the trial judge, who rejected any duty of care owed by the relevant defendants to Mr Kwong, particularly in respect of the following findings of Judge Leung:

(1)  The school sponsoring body and the IMC had their respective statutory functions (see paragraphs 47 to 51 of the judgment);

(2)  In fact, Mr. Kwong had all along been employed by the IMC during the relevant period and the school sponsoring body had never been his employer. Therefore, as a matter of fact, the relevant defendants could not have owed [him] the duty of care owed by an employer to an employee, nor was there a legally recognized close relationship sufficient to give rise to such a duty (see paragraph 52 of the judgment); and

(3)  Mr Kwong failed to point out any substantial and material factual basis during the relevant period to allege that the relevant defendants had either voluntarily assumed a duty of care towards him, or that he had relied on the relevant defendants in a manner that created such liability (see paragraph 54 of the judgment).

34.The application for new evidence fails to provide any grounds to rebut the lack of legal recognition of the close relationship basis of the relevant defendants and Mr Kwong. Since the application for new evidence cannot support any valid grounds of appeal, if this Court admits such evidence, it would not have any material effect on the outcome of the case. The second of the three conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 is therefore not satisfied.

35.Furthermore:

(1)  This Court is of the view that Exhibit AI is merely the interpretations and arguments advanced by the counsel for the relevant defendants in respect of the factual conduct of the 2^nd to 4^th defendants in handling the complaint. This Court does not think that such amounts to the allegation of a close relationship between the two as suggested by Mr Kwong.

(2)  This Court also does not think that the application for new exhibits shows the relevant defendants altered the account they held in the striking out proceedings.

36.Therefore, regarding Mr Kwong’s allegation of providing false information, this Court does not think that the application for new evidence supports his allegation of providing false information to the court by the relevant defendants.

37.In conclusion, the application for new evidence does not satisfy the 2^nd condition set out in Ladd v Marshall. As the 2^nd condition of Ladd v Marshall is not satisfied, it is not necessary to consider the 1^st and 3^rd conditions.

38.If the three conditions in Ladd v Marshall are not satisfied, the Court of Appeal retains a residual discretion to grant new evidence application in exceptional circumstances. However, this Court does not find any special or exceptional circumstances in this case which justify this Court to exercise such residual discretion to grant the new evidence application.

Mr Kwong’s disclosure application and discussion

39.Under Order 24, rule 7 of the Rules of the High Court, the court has the power to make an order for disclosure of a particular document. Generally, the court will only consider making such an order for disclosure of a particular document if the following three conditions are satisfied:

(1)  There is sufficient evidence to show that the documents exist.

(2)  The documents relate to matters in dispute in the action.

(3)  There is sufficient evidence to show that the other party has or had the documents in his possession, custody or power, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

40.Even if the application satisfies the above three conditions, the court retains the discretion in deciding whether to make the order. The court will only make an order for discovery of document if it is necessary. See Hong Kong Civil Procedure 2024, Volume 1, paragraph 24/7/2.

41.Pursuant to Order 24, rule 7(3), the application must be supported by an affidavit stating the aforementioned matters. The basic legal principle regarding disclosure is that fishing for evidence is not allowed, see Kwok Wai Fung & Ors v China Gas Holdings Ltd [2023] HKCFI 83 at paragraph 15:

“Fishing arises where what is sought is not evidence but information which may lead to a line of inquiry which would disclose evidence; it is the search for material in the hope of being able to raise allegations of fact, as opposed to the solicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularization: C v C CACV 410/2005, unreported, 28 July 2006 at [8]. It is not the purpose of discovery to give an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the respondent’s part or will provide more information for him to pursue more enquiries.” (emphasis added)

42.Mr Kwong’s amended disclosure application fails to comply with the legal principles an applicant must adhere to and Order 24, rule 7 of the Rules of the High Court. His summons and supporting affidavit failed to state with sufficient accuracy the specific documents or class of documents in respect of which the disclosure was sought; or the scope of the documents in respect of which the disclosure was sought. Furthermore, they did not provide any details of the relevance and necessity of each requested document in relation to this case, nor did they provide any evidence in support of his allegation that the other party has, or at any time had, in his possession, custody or power the documents.

43.This Court finds Mr Kwong’s disclosure application a fishing expedition for evidence, and this is inappropriate.

44.With regard to Mr Kwong’s amended summons taken out on 28 December 2023, he applied to this Court for having Appeal point 4 of the notice of appeal listed and heard first. This is procedurally inappropriate and lacks legal basis. Furthermore, such act serves no meaning for Mr Kwong as the Court of Appeal, when dealing with the remaining points of appeal, will not confine its consideration merely to the relevant documents involved in the discovery application concerning Appeal point 4, regardless of whether Appeal point 4 is heard earlier or later.

45.This Court dismisses Mr Kwong’s application.

Application for excusing the 2^nd to 6^th defendants in attending the appeal hearing

46.The 2^nd to 6^th defendants did not take part in the striking out hearing all along: The 2^nd to 6^th defendants were not parties to the striking out application; they did not take part in the hearing on 14 September 2022 before Master Angela Kot of the High Court; nor did they attend or take part in the hearing on 8 February 2023 before Deputy Judge Leung.

47.Mr Kwong objected to the application of the 2^nd to 6^th defendants. In his view, the 2^nd to 6^th defendants were required to take part in the hearing to respond to the doubts and arguments arising from Mr Kwong’s grounds of appeal.

48.Mr Kwong seems to have misunderstood the procedure and nature of the appeal hearing. Since the 2^nd to 6^th defendants did not take part in the striking out proceedings, this Court sees no reasonable grounds for requiring the attendance of the 2^nd to 6^th defendants at the appeal hearing.

49.This Court grants the applications of the 2^nd to 6^th defendants for being excused from attending the appeal hearing.

Conclusion

50.By reason of the above, this Court refuses Mr Kwong’s (1) new evidence application and (2) disclosure application, and orders that Mr Kwong’s summonses of 7 July 2023, 11 December 2023, 28 December 2023, 17 November 2023 and 28 December 2023 be dismissed.

51.The 2^nd to 6^th defendants are not required to attend the appeal hearing.

52.In accordance with the general principles of litigation, the successful parties in this application, namely, the 1^st, 7^th and 8^th defendants and the 2^nd to 6^th defendants, are entitled to costs, which are to be assessed summarily. Any party may within 14 days from the date of this judgment file with the court and serve on Mr Kwong a statement of objections (limited to 2 pages) to the statement of costs of the successful party. Unless any party applies for variation within 14 days from today, the costs order nisi shall become absolute without further order. The 1^st, 7^th and 8^th defendants and the 2^nd to 6^th defendants shall file their summary bill of costs after 14 days, and Mr Kwong 3 days thereafter (for any statement of objections).

The Plaintiff, unrepresented, appearing in person

Clyde & Co. for the 2^nd to 6^th Defendants

Mr Matthew Ngai and Ms Lee Wing-ki, instructed by Keith Lam Lau & Chan, for the 1^st, 7^th and 8^th Defendants

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.