Sojobi, Akpevwe Joyce v. Ms Wong Wing Sze (The Principal, Yaumati Kaifong Association School) and Others
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DCCJ 5329/2025 [2026] HKDC 1821 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 5329 OF 2025 --------------------------------------- BETWEEN
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------------------------ DECISION ------------------------ A. Introduction 1.The dispute concerns the Plaintiff and her son, born in 2015, who has autism spectrum disorder, mild intellectual disability and special educational needs (“SEN”). 2.The Plaintiff’s son attended the 2nd Defendant’s primary school from 2021. The school (ie the 2nd Defendant) is an aided primary school in Hong Kong. On 18 February 2025, the Plaintiff alleges that the 1st Defendant, the school principal, refused to allow the child to attend school. She also alleges that, during his earlier attendance, he was repeatedly confined in a room known as “the Bear’s Cottage”, which she characterises as cruel, inhuman and degrading. 3.The Defendants deny those allegations. The school’s account is that the child displayed serious behavioural difficulties including kicking and hitting teachers, spitting on classmates and teachers and running out of the school premises. Arrangements to support the child had been made. The school has a student support team which plans, implements, monitors, reviews and evaluates measures for supporting students with SEN and deploys resources to promote integrated education and foster positive learning. The school utilised its resources to hire specialised teaching assistants for the child. The measures were evaluated and adjusted regularly and the school had kept close communications with the child’s parents throughout (including the Plaintiff). 4.Since around 19 February 2025, the child stopped attending the school. 5.The Plaintiff commenced these proceedings in the District Court against the principal, the school and the Education Bureau. In essence, her pleaded case is that the alleged exclusion from school and maltreatment, together with the Education Bureau’s alleged failure or delay in providing adequate SEN support, caused her child to lose access to education. She relies on, inter alia, breach of statutory duty, disability discrimination, negligence, breach of human rights and misconduct in public office. The Plaintiff’s own asserted losses arise principally from the alleged stress, anxiety, caring burden and financial consequences for the family during the child’s absence from school. 6.The Defendants’ position is that the Plaintiff’s claim is fundamentally defective as pleaded. They submit that the substantive allegations concern the child (set out in paragraphs 4 to 8 of the Statement of Claim), whereas the Plaintiff is suing only in her personal capacity. They therefore contend that she has not pleaded a sustainable claim for her own loss. They further submit that the Statement of Claim does not plead the necessary material facts for any of the stated causes of action. 7.By separate Summonses dated 10 November 2025, the Defendants applied to strike out the Plaintiff’s claim. On 6 July 2026, Master Raymond Chu allowed the Defendants’ applications and ordered that the Writ and Statement of Claim be struck out and the action be dismissed. By a Notice of Appeal dated 17 July 2026, the Plaintiff lodged an appeal against Master Raymond Chu’s order. 8.Relatedly, the Plaintiff previously issued a Summons dated 9 April 2026 seeking an order to “strike out affidavit/affirmation attached to [her] writ of summons dated September 2025 by Master Louise Chan in accordance with Order 18 Rule 19 of the Rules of the District Court” and “ask D1 and D2 to present to District Court the medicine they requested the psychologist to give to me for my son and the basis for making such recommendations”. 9.Master Louise Chan dismissed the Plaintiff’s said Summons on 4 June 2026. The Plaintiff appealed against the said order of Master Louise Chan, which was scheduled to be heard by this Court. However, before the Plaintiff’s appeal was to be heard, her entire claim in these proceedings had been struck out by Master Raymond Chu. As such, on 17 July 2026, this Court dismissed the Plaintiff’s appeal against Master Louise Chan’s order on the ground that the said appeal had become academic. The Plaintiff now applies for leave to appeal to the Court of Appeal against my dismissal of her appeal. 10.Thus, there are two matters to be decided by this Court:-
B. The Relevant Legal Principles 11.The Plaintiff’s appeal against Master Raymond Chu’s order is by way of a rehearing: Hong Kong Civil Procedure 2026 §58/1/2. 12.The relevant principles governing a striking out application are trite. The Court may strike out a pleading or writ where it discloses no reasonable cause of action; is scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair trial; or is otherwise an abuse of process. The power must be exercised only in a plain and obvious case: Chan Lai Shing v American Express International Inc [2024] HKCFI 2817 at §3.7. The question is whether the pleaded facts, assumed in the claimant’s favour, are capable in law of sustaining the cause of action asserted. 13.A related principle concerns the legal capacity in which the Plaintiff’s claim is made. Under Order 80 rule 2 of the Rules of the District Court (“RDC”), a minor may bring or make a claim only through a next friend, and, save where the Official Solicitor acts, the next friend must act through a solicitor. The requirement for the next friend to act through a solicitor is mandatory. 14.The Defendants contend that a distinction must therefore be maintained between a claim belonging to the child and a claim belonging personally to the Plaintiff. If the Plaintiff elects to pursue her claim solely in her own name, the Court must ask whether the Statement of Claim pleads a legally sustainable cause of action in the Plaintiff’s own right. 15.Turning to the Plaintiff’s application for leave to appeal to the Court of Appeal. Leave is not granted unless the proposed appeal has a reasonable prospect of success, or there is some other reason in the interests of justice for granting leave: Hong Kong Civil Procedure 2026 §59/2A/4. The Defendants submit that, if the strike-out appeal fails, the appeal from Master Louise Chan’s order was and remains academic because the underlying action had been struck out and dismissed. C. The Plaintiff’s Appeal Against the Striking-Out Order 16.The causes of action pleaded by the Plaintiff are, in substance, alleged wrongs said to have been done to the Plaintiff’s child, not to the Plaintiff herself. The Statement of Claim alleges that the child was refused admission to the 2nd Defendant’s school on 18 February 2025, was thereby denied access to education, and had previously been subjected to alleged maltreatment in the “Bear’s Cottage” room. 17.The pleaded claims for breach of statutory duty, disability discrimination, negligence and breach of human rights are all formulated by reference to the child’s education, disability, treatment and welfare. The allegation of misconduct in public office is likewise founded on the alleged withholding of support required for the child’s continued attendance. These are not allegations of wrongs independently inflicted upon the Plaintiff. 18.Both at the hearing before the learned Master on 6 July 2026 and at the appeal hearing before this Court, the Plaintiff confirmed that she was pursuing this action in her own capacity, and not on behalf of her child. It follows that the Plaintiff cannot rely on causes of action which, on the face of the pleading, accrue, if at all, to the child. 19.The Plaintiff does plead that she herself suffered emotional distress, anxiety and stress, and was required to devote time and resources to caring for the child at home. But those asserted consequences do not supply a cause of action vested in her personally. The Statement of Claim does not identify a duty owed by any Defendant to the Plaintiff, a breach of such a duty, or material facts establishing a legally recoverable loss suffered by her in her own right. In particular, the pleaded loss is expressly said to result from the alleged wrongs done to the child and the consequences of his absence from school. It cannot convert the child’s claims into claims belonging to the Plaintiff. 20.Accordingly, upon the Plaintiff’s repeated confirmation that she was suing only in her personal capacity, no reasonable cause of action is disclosed. 21.Had the Plaintiff sought to advance the child’s claims, the action would have had to be properly constituted under Order 80 rule 2 of the RDC. A minor may not bring or make a claim except by a next friend, and, unless the Official Solicitor is involved, a next friend must act by a solicitor: Order 80 rule 2(1) and (3) of the RDC. The child was not named as a plaintiff. Nor did the Plaintiff sue as his next friend. She did not act through a solicitor. Those requirements cannot be avoided by describing the Plaintiff alone as the claimant while pursuing wrongs which are alleged to have been committed against her child. Thus, insofar as the Statement of Claim advances claims belonging to the child, it is also improperly constituted for that reason. 22.Turning to the Plaintiff’s specific complaints, she complains that the learned Master did not give reasons, misapplied the strike-out principles, did not consider her submissions or material facts, wrongly dealt with her standing, made an oppressive costs order, and failed to appreciate the severe hardship suffered by her family. 23.She contends that the refusal to require the Defendants’ attendance for cross-examination deprived her of a fair hearing. Given how the Plaintiff’s claim is formulated, the determination as to whether her claims are sustainable does not require, and would not be assisted by, any cross-examination of the Defendants. I also agree with the learned Master that for determination of the present striking-out application, the proposed cross-examination was neither necessary nor appropriate. 24.I also disagree with the Plaintiff that Master Raymond Chu failed to give reasons. The learned Master provided oral reasons and considered the Plaintiff’s oral submissions, including her request for cross-examination of the Defendants, which he rightly refused. 25.In any event, this appeal is a rehearing, and I have considered afresh the Statement of Claim, the Plaintiff’s written materials and the parties’ submissions. For the reasons already given, the pleaded causes of action concern alleged wrongs to the child. Once the Plaintiff confirmed that she pursued the action solely in her own name, the claim discloses no reasonable cause of action against any of the Defendants. 26.The Plaintiff’s asserted hardship, emotional distress and financial difficulties cannot cure the absence of a pleaded cause of action belonging to her. Nor can they provide any basis to set aside the striking-out order. 27.The above would have been sufficient to dispose of the Plaintiff’s appeal. But the Defendants also rely upon additional reasons as to why the Plaintiff’s appeal should be dismissed. I will deal with those points briefly for completeness. 28.First, in my view, the claim for breach of statutory duty is unsustainable. A statutory provision does not ordinarily give rise to a private law right of action merely because it has allegedly been breached. It must appear, on the proper construction of the statute, that the duty was imposed for the protection of a limited class of persons and that the legislature intended to confer upon members of that class a civil right of action. The Plaintiff relied on sections 4 and 27 of the Education Ordinance (Cap 279). Section 4 was repealed long before the material events. Section 27 concerns the registration of school managers. It is an administrative provision and contains no indication that the legislature intended to create a private damages claim against the Defendants. Neither provision is capable of conferring the pleaded private right of action against any of the Defendants. 29.Secondly, the claim in disability discrimination is irregular both in form and substance. The Plaintiff did not commence an equal opportunities action using the prescribed procedure under the District Court Equal Opportunities Rules (Cap 336G), but issued an ordinary civil action. The Statement of Claim does not identify a comparator without disability, the alleged less favourable treatment, or facts from which it could be inferred that any such treatment was wholly or partly because of the child’s disability. Those are essential elements of a direct discrimination claim: Law Chi Yuen by Wong Sin (his next friend) v Secretary for Education [2016] 5 HKLRD 302, §64. Nor does the Plaintiff plead that she herself was subjected to any discriminatory treatment. The discrimination claim is therefore not maintainable. 30.Thirdly, the pleaded facts do not support a negligence claim. The Statement of Claim has not pleaded the material facts needed to establish a duty, breach, causation and recoverable loss. The Plaintiff pleads emotional distress, anxiety, stress and the expenditure of time and resources in caring for the child. She, however, does not plead facts capable of establishing a duty owed to her as a parent for pure psychiatric harm arising from matters alleged to have happened to her child at the school. 31.A parent who did not directly perceive the allegedly distressing events is not ordinarily a secondary victim: X v 聖若瑟英文書院法團校董會 [2021] HKDC 336, §21. The Statement of Claim also contains no pleaded causal link between any breach by the Defendants and the Plaintiff’s asserted psychological harm. Specifically in respect of the 3rd Defendant, a duty of care is not imposed on it while it is performing its administrative or statutory duties: 鄺偉明 對 香港特別行政區教育局及另一人 [2023] HKCFI 1310 at §35. 32.Fourthly, the purported human rights claim cannot succeed on the pleaded case. Article 27 of the Basic Law concerns freedoms of speech, of the press and publication, association, assembly, procession and demonstration, and the right and freedom to form and join trade unions and to strike. It does not concern a right to education. Further, constitutional rights do not ordinarily have horizontal effect and cannot, without more, be enforced between private individuals: Judicial Review in Hong Kong 3rd ed, at §6.159-160. As against the 1st and 2nd Defendants, no horizontal constitutional claim is pleaded. 33.The Plaintiff’s reliance on Article 28 of the United Nations Convention on the Rights of the Child is likewise misconceived. Article 28 does not, without domestic incorporation or an identified cause of action, furnish the pleaded civil remedy. The Plaintiff has not pleaded any basis on which it creates a directly enforceable civil cause of action against any of the Defendants. 34.Insofar as the Plaintiff’s claim alleging “misconduct in public office”, that claim is wholly devoid of particulars and thus is inherently bad. Although paragraph 8(e) of the Statement of Claim uses the words “intentionally withheld” and “deliberate abuse”, it pleads no material facts or the necessary particulars supporting such serious assertions. The Plaintiff’s allegation is therefore a bare allegation. 35.Finally, the claims for aggravated and exemplary damages cannot stand independently of a sustainable underlying cause of action. No material facts are pleaded to support a claim for aggravated or exemplary damages. 36.Given my conclusions above, it is unnecessary to determine the Defendants’ further submissions made under Order 18 rule 19 (1)(b) –(d) of the RDC, which invite consideration of affidavit evidence and contemporaneous documents. I also do not need to further deal with the Defendants’ submission that the various factual allegations in the Statement of Claim are contradicted by contemporaneous documentary evidence and thus the Plaintiff’s claim is scandalous, vexatious and/or frivolous. 37.Based on the aforesaid, Master Raymond Chu’s order in striking out the Plaintiff’s claim is correct. The Plaintiff’s appeal must be dismissed. 38.For the sake of completeness, the Plaintiff also asks, in the alternative, for leave to amend the Statement of Claim. No draft amended pleading, or explanation of any proposed amendments has been supplied. This Court is therefore unable to assess whether an amendment would cure the defects identified above. The Plaintiff’s request is thus refused. D. The Plaintiff’s Application for Leave to Appeal 39.Following my dismissal of the Plaintiff’s appeal against Master Raymond Chu’s order, the Plaintiff’s claim in these proceedings has remained struck out and dismissed. The proposed appeal against the order dated 17 July 2026 therefore has no reasonable prospect of success because it has remained academic. 40.In any event, the proposed appeal would challenge this Court’s order treating as academic the Plaintiff’s appeal from Master Louise Chan’s order. The underlying Summons sought (i) to strike out an alleged affidavit/affirmation attached to the writ and (ii) information or production relating to medication which the Plaintiff alleged had been requested for and given to the child. 41.In respect of the former, I have looked at the court documents index and cannot locate any affidavit or affirmation which was alleged to be attached to the writ. 42.Turning to the Plaintiff’s request to ask the 1st and 2nd Defendants to present the medicine they requested to be given to the child. The Plaintiff has failed to identify any legal basis upon which the proposed disclosure is sought or the basis upon which it is alleged that such disclosure would be material or relevant to any pleaded cause of action in the Statement of Claim. 43.The learned Master was therefore correct in dismissing the Plaintiff’s Summons. 44.Accordingly, the proposed appeal has no reasonable prospect of success. The Plaintiff has identified no other reason in the interests of justice as to why the proposed appeal should be heard. The Plaintiff’s application for leave to appeal must therefore be dismissed. E. Costs 45.The Plaintiff’s appeal and application for leave to appeal have been dismissed. There is no reason to depart from the usual rule that costs should follow the event. I take into account that the Plaintiff is unrepresented and that the proceedings concern matters of personal importance to her and her family. Those matters do not, however, displace the ordinary costs consequence of unsuccessful litigations. 46.The 3rd defendant asks for costs to be paid on an indemnity basis, relying, inter alia, upon my prior decision in Licksun Company Ltd v Occupiers of Lot No. 552 in D.D. 85, New Territories, Hong Kong [2025] HKDC 1287 and submitting that “P has made extensive use of generative artificial intelligence tools in preparing her SoC, affidavits and 17/7 NOA and 28/7 NOA, resulting hallucinations”. In Licksun Company, six of seven authorities submitted to the Court were shown not to exist. In the present case, some statutory provisions cited by the Plaintiff were repealed or irrelevant. I cannot safely conclude that the errors resulted from the use of generative artificial intelligence. 47.In any event, the present applications have been disposed of principally because the action, as pleaded and pursued in the Plaintiff’s own name, discloses no sustainable cause of action. In all the circumstances, including the Plaintiff’s status as a litigant in person, I am not satisfied that her conduct in pursuing these two applications is sufficiently exceptional to justify costs on the indemnity basis. 48.Accordingly, I order that the Plaintiff pay the 1st and 2nd Defendants’ costs and the 3rd Defendant’s costs of and occasioned by (1) the appeal against Master Raymond Chu’s order and (2) the Plaintiff’s application for leave to appeal, on the usual party-and-party basis, with certificate for counsel, to be summarily assessed and to be paid forthwith. 49.The Defendants are directed to file and serve their respective statements of costs within 14 days. The Plaintiff shall within 14 days thereafter lodge and serve her summary of objections (if any) of not more than 3 pages in response to the Defendants’ statements of costs. The summary assessment of costs will be by paper disposal without a hearing.
The Plaintiff appeared in person Mr Vincent Chiu, instructed by Clyde & Co, for the 1st and 2nd defendants Mr Adrian Lau, Government Counsel of Department of Justice, for the 3rd defendant | |||||||||||||||||||||||||
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Further hearings and rulings under DCCJ 5329/2025