Wong Tai Wai David v. The Hong Kong Sar Government
Read the full judgment text of CACV 19/2003 on BabelCite. This Court of Appeal judgment was delivered on 7 September 2004.
1. I have had the benefit of reading in draft the judgment of Hon A Cheung J discussing the possibility of the existence at common law (at least in the common law in Hong Kong) of a tort of harassment and/or a tort of intentional or reckless infliction of injury. I respectfully agree that in the present state of the law, it is at least arguable that this/these tort(s) exist(s), and the statement of claim in the present case, which contains allegations on which liability under this/these tort(s)
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CACV000019/2003 CACV 19/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 19 OF 2003 (ON APPEAL FROM HCA NO. 4309 OF 2001) ____________
____________ CACV 247/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 247 OF 2003 (ON APPEAL FROM HCA NO. 4039 OF 2001) ____________
____________ (Heard together) Coram: Hon Yuen JA and Hon A Cheung J in Court Date of Hearing: 7 May 2004 Date of Judgment: 7 September 2004 _______________ J U D G M E N T _______________ Hon Yuen JA: 1.I have had the benefit of reading in draft the judgment of Hon A Cheung J discussing the possibility of the existence at common law (at least in the common law in Hong Kong) of a tort of harassment and/or a tort of intentional or reckless infliction of injury. I respectfully agree that in the present state of the law, it is at least arguable that this/these tort(s) exist(s), and the statement of claim in the present case, which contains allegations on which liability under this/these tort(s) may be established, cannot be struck out on the basis that there is no reasonable cause of action. 2.I would only wish to emphasise that the application to strike out had been based also on the "frivolous and vexatious" and "abuse of process" grounds, but Poon Dep. J had struck out the statement of claim on the sole basis that it disclosed no reasonable cause of action. There was no Respondent's Notice. In the course of the hearing, this Court had drawn the Defendant's attention to the principle that on an application to strike out on the "no reasonable cause of action" basis, all facts alleged must be assumed to be true, and this Court cannot deal with the other grounds (or remit the case to have the other grounds dealt with by the judge) without a Respondent's Notice. There was nevertheless no attempt to lodge a Respondent's Notice out of time in order to attempt to support the judge's decision on those other bases. In those circumstances, and given the state of flux that the common law appears to be in with regard to the tort(s) considered, the appeal in CACV 247 of 2003 must be allowed. Hon A Cheung J: Two appeals 3.On 5 August 2003, upon the Defendant's application, Deputy High Court Judge Poon struck out the Plaintiff's statement of claim and dismissed his action. From that judgment, the Plaintiff appealed to this court (CACV 247/2003). 4.Prior to Deputy Judge Poon's judgment, Sakhrani J had on 15 January 2003 dismissed an appeal brought by the Plaintiff against an order made by Master Levy to the effect that the Plaintiff's application for discovery and inspection as well as his application for leave to serve interrogatories be determined after the disposal of the Defendant's then pending application to strike out (which was eventually decided by Deputy Judge Poon). From that decision of Sakhrani J, the Plaintiff also appealed to this court (CACV 19/2003). 5.The two appeals were heard together. Quite obviously, the appeal from Deputy Judge Poon's judgment is, as it were, the leading appeal. Striking out 6.The Defendant's summons to strike out relied on the four usual grounds in the alternative, namely that the statement of claim discloses no reasonable cause of action; it is scandalous, frivolous or vexatious; it may prejudice, embarrass or delay the fair trial of the action; or it is otherwise an abuse of the process of the court. Evidence was filed by both sides in respect of the application. But of course, in relation to the first ground of striking out (i.e. no reasonable cause of action), no evidence could be filed or relied on. Decision below 7.The application was heard by Deputy Judge Poon. The learned judge decided the application on the ground that the statement of claim discloses no reasonable cause of action. In paragraph 7 of his judgment, the judge said:
8.In paragraph 9 of the same judgment, the judge added:
Only issue on appeal 9.Given the way the judge dealt with the application, and as no respondent's notice has been filed by the Defendant to support the judge's decision on any further or alternative ground, the appeal against the judge's decision falls to be decided on pleadings only. In other words, the only issue before this Court is whether the statement of claim discloses any reasonable cause of action. No evidence should be considered or is relevant to this exercise. 10.The statement of claim is indeed lengthy and at times difficult to read. The relief sought is startling - the Plaintiff claims over HK$100 billion in damages against the government. From any angle, the facts and allegations pleaded in this statement of claim, and the claim as a whole, are by no means usual or typical. 11.But all this should not distract one from the basic and indeed only issue raised in this appeal, namely whether the Plaintiff has pleaded an arguable cause of action in his statement of claim against the government. Statement of Claim 12.According to the statement of claim, the Plaintiff is an accountant. He used to be in private practice, before joining the government as a treasury accountant in 1998. 13.He pleads in the statement of claim that whilst in private practice, he came across a case of fraud. He refused to get involved in it, but that got him into trouble with the wrongdoers. For his own protection, he reported the matter to the police and revealed the fraud discovered by him to the police. Despite the fact that upon investigation, one of the wrongdoers actually admitted the crime to the police, and the fact that subsequently the wrongdoers were successfully prosecuted by the government, the police somehow turned its suspicion towards him and carried out incessant investigations on him for a period of 4 years, up to and including the time of the filing of the statement of claim. Amongst other things, the investigations consisted of "surveillance both inside and outside the workplace", and the same was conducted on a "round the clock" basis. 14.Furthermore, according to the statement of claim, apart from the police, "the personnel from Civil Service Bureau of HKSAR Government" (paragraph 5) were also involved in the so-called "false lights suspicion and investigations" and abusive "character/integrity check" procedure and surveillance (paragraph 6). 15.Paragraph 8 of the statement of claim pleads that:
16.The Plaintiff also pleads in the statement of claim that as a result of all the wrongdoings alleged, he suffered bronchitis (paragraph 6, sub-paragraph 7 - as per the Plaintiff's clarification during submission), and "emotional distress", so much so that he had to quit his government job "in order to try to eliminate the risk of mental breakdown". The Plaintiff also pleads that the infliction of emotional distress on him was "intentional and reckless". Four causes of action pleaded 17.The statement of claim, in a separate section (section III), sets out four distinct causes of action relied on by the Plaintiff, namely,
18.The judge below was fully aware of the four causes of action specifically pleaded in the statement of claim (see para. 2 of the judgment). However, he was of the view that the statement of claim did not disclose a cause of action known to the law. The judge went on to consider the possibility of fitting the pleaded facts into a cause of action based on misfeasance in public office. After explaining the law and the pleading requirements regarding this tort by reference to the leading authority in Hong Kong, Tang Nin Mun v. Secretary for Justice [2000] 2 HKLRD 324, the judge concluded that the necessary ingredients of a cause of action based on the tort of misfeasance in public office were simply missing. He thus concluded that the statement of claim disclosed no reasonable cause of action known to the law, and on that basis the judge struck out the pleading and dismissed the action. 19.As noted above, the statement of claim does not plead the tort of misfeasance in public office as one of the causes of action relied on. At the hearing of this appeal, the Plaintiff did not seek to adopt such a cause of action as one of the causes of action that he relied on. He sought no amendment to allege the tort. 20.In those circumstances, I need not say anything further in relation to this tort or its pleading requirements. Instead, I must focus on the four causes of action which have been expressly and specifically pleaded. 21.In relation to the four causes of action pleaded in the statement of claim, the judge below did not elaborate on why he considered that they were bad or not known to the law. 22.Likewise, in this appeal, Mr Raymond Tam, senior government counsel appearing for the Defendant (who also appeared before the judge below), also focused only on the tort of misfeasance in public office, and advanced no argument on the four pleaded causes of action, until he was invited to do so by this Court during the course of submission. In particular, this Court invited submission from Mr Tam on a recent English case Wainwright v. Home Office, which went to the House of Lords: [2003] 3 WLR 1137 (16 October 2003), in respect of the tort of harassment and the (possible) tort of intentional infliction of harm. Understandably, Mr Tam was only able to offer this Court limited assistance. Apparently, the judge below had not been referred to this and other relevant authorities. Tort of harassment 23.Dealing first with harassment, whether it is a tort at all is debatable (the Plaintiff's intention to rely on harassment as a cause of action is clear: the reference to "criminal" harassment in the statement of claim does not add to the understanding of his claim). The position in England has been governed by statute since the enactment of the Protection from Harassment Act by Parliament in 1977. In Hong Kong, there is no equivalent or similar legislation (outside the spheres of sexual or disability harassment). The position is governed by common law. 24.Under common law, cases like Patel v. Patel [1988] 2 FLR 179 suggest that there is no tort of harassment (per Waterhouse J, sitting in the Court of Appeal, at page 182). On the other hand, the Court of Appeal in Khorasandjian v. Bush [1993] QB 727, which was essentially a case on nuisance and injunction, would appear to suggest that harassment not amounting to a threat but causing or likely to cause physical or psychiatric illness to the victim is actionable and may be restrained by a quia timet injunction. It is not absolutely clear from the Court of Appeal's judgment whether its holding was based on an extension of the law of private nuisance to cover a victim who was harassed by telephone calls made to her mother's home, in which she was only a licensee, or was based on a tort of harassment itself. 25.The ambiguity in relation to the common law is well illustrated by the two apparently contradictory statements that may be found in Clerk & Lindsell on Torts (18th ed.) In para. 13-17, whilst discussing harassment causing injury to health, the learned editors of the book say: "Harassment per se may not be a tort", citing Patel v. Patel in support of the proposition. Yet in para. 24-67, the editors say:
The reference to persistent telephone calls is, according to the footnote, based on Khorasandjian v. Bush. Hunter v. Canary Wharf 26.The latter decision, as noted by Clerk & Lindsell in para. 24-67, footnote 34, has been "partially" over-ruled by the House of Lords in Hunter v. Canary Wharf [1997] AC 655. A majority of the House of Lords essentially viewed Khorasandjian as a case of an illegitimate extension of the law of private nuisance to cover a victim who had no interest in the property in which the harassment (and thus nuisance) took place. The extension was viewed as an attempt by the Court of Appeal to get round the common law position that harassment causing distress but without actual bodily or psychiatric illness is not actionable. The law lords recognized the need for protecting victims from intentional harassments, but found that the solution had already been provided by statute, so that no common law development in that direction would be necessary (in England). 27.Thus Lord Goff said at pp. 691 G-H to 692B/C:
28.On p. 698B-C/D, Lord Lloyd said:
29.Lord Hoffmann, who viewed Khorasandjian as a case on intentional harassment, not nuisance, said (on pp. 707D - 708A):
30.Lord Cooke, however, preferred the decision in Khorasandjian to the earlier decision (Malone v. Laskey) (at p. 717H). The last member, Lord Hope criticized the decision in Khorasandjian (at p. 725C/D), and expressed his agreement with the judgments of Lord Goff and Lord Hoffmann. 31.What Lord Hoffmann said in Hunter foreshadowed his detailed discussion of a possible tort of intentional infliction of harm in the recent House of Lords decision in Wainwright v. Home Office, supra, in which his lordship delivered the leading speech, with which the other law lords agreed. Intentional or reckless infliction of injury 32.Before going into the facts and legal principles discussed in that case, it is convenient at this juncture to turn to the second cause of action identified in the statement of claim in the present case, i.e. intentional and reckless infliction of emotional distress. For a century, the decision of Wright J in Wilkinson v. Downton [1897] 2 QB 57, involving most peculiar facts, was taken as an authority for the existence of a tort of intentional infliction of illness or nervous shock. In that case, the plaintiff was frightened by false news about her husband, told deliberately as a practical joke. She became seriously ill, and Wright J held that she was entitled to recover damages. The learned judge said (on p. 59):
Wainwright v. Home Office 33.In Wainwright, the House of Lords had the occasion of dealing with the supposed tort of intentional infliction of injury based on Wilkinson v. Downton. The facts, taken from the head-note, were not complicated. The claimants, mother and son, were required to undress themselves so as to be strip-searched for drugs on a prison visit in 1997. The search was not conducted according to the prison rules, and the claimants were humiliated and distressed. No drugs were found. The 2nd claimant, aged 21, who was mentally impaired and suffered from cerebral palsy, was also touched at his private parts and developed post-traumatic stress syndrome. They claimed damages for trespass to the person, and the 2nd claimant claimed, in addition, damages for battery. The trial judge held that trespass to the person, consisting of wilfully causing a person to do something to himself which infringed his right to privacy, had been committed against both claimants, and, further, that trespass to the person consisting of wilfully causing a person to do something calculated to cause harm to him, namely infringing his legal right to personal safety, had been committed against the 2nd claimant, as had battery. The judge thus awarded basic and aggravated damages to the two claimants. The Court of Appeal allowed the Home Office's appeal against the finding of trespass, dismissed the 1st claimant's claim and reduced the award of damages to the 2nd claimant for battery only. The House of Lords dismissed the claimants' appeals. It held that there was no common law tort of invasion of privacy. It further held that insofar as there might be a tort of intention to cause harm under which damages for distress (that did not amount to recognized psychiatric injury) might be recoverable, the necessary intention was not established on the facts of the case. 34.Lord Hoffmann, from paragraph 36 of the judgment onward, firstly explained the origin and background of the case of Wilkinson v. Downton. In short, his lordship regarded that decision as an attempt by the judge to get round the then common law position that nervous shock was too remote a consequence of a negligent act to be a recoverable head of damage under the tort of negligence. 35.Lord Hoffmann went on to point out that since the subsequent development of the common law regarding nervous shock, the original justification for the supposed cause of action relied on in Wilkinson v. Downton had disappeared. Yet Wilkinson v. Downton apparently survived. Lord Hoffmann traced the development of the law thus (at pp. 1148B/C to 1149G):
Some observations 36.Based on the above brief survey of the case law on harassment and intentional/reckless infliction of harm, some observations may be made:
37.Furthermore, if the tort(s) does/do exist, it would seem that the essential mental requirement (of the wrongdoer) has to be the intentional or at the lowest, reckless, infliction of injury - physical or mental. An intentional or reckless state of mind toward the act under complaint is not sufficient. The wrongdoer must have intended to inflict injury (physical/mental) on the victim, or at the lowest, must have been reckless as to whether the victim would have sustained such injury as a result of his act. (By injury here, I am using it in a general sense to include also mere distress and humiliation, in case the same is sufficient to ground a claim.) 38.Given the present state of the law and its possible development in Hong Kong it is quite impossible to say, in a summary manner, that either the tort of harassment, or the tort of intentional/reckless infliction of emotional distress, or both, are something unknown to the law as a cause of action. In the context of a strike-out application, it is well established that the court will not decide difficult and complicated questions of law. Pleaded case on harassment and intentional/reckless infliction of injury 39.Has the Plaintiff pleaded the necessary elements, or the possibly necessary elements, of the tort(s) or possible tort(s)? Having perused the lengthy and at times convoluted statement of claim, I am of the view that that has been done. 40.The Plaintiff has pleaded the acts that he says were wrongful. I agree that arguably, if established (- and in this application, I must assume that the facts pleaded in the statement of claim are true), they (or at least some of them) are culpable acts. 41.The Plaintiff has pleaded that the acts were committed by the police and the Civil Service Bureau personnel intentionally and with malice, and as a sort of retaliatory measure against him. 42.The Plaintiff has also pleaded that he has sustained resulting physical injury and emotional distress. Although he has not identified precisely the emotional distress in his statement of claim, one cannot, at this stage, summarily discard the alleged emotional distress as mere distress not amounting to a known psychiatric illness, assuming that that is an essential requirement. After all, the Plaintiff has pleaded that the situation was so serious that he was forced to quit his government job despite "a very poor job market situation", so as to avoid the risk of a mental breakdown. In any event, as has been pointed out, arguably mere distress or humiliation may suffice to found an action. 43.Lastly, the Plaintiff has pleaded expressly and specifically the "intentional and reckless infliction of emotional distress" in his statement of claim. Although it goes on to say that the Defendant "should have known" that emotional distress would result from its conduct under complaint, on a fair reading of the statement of claim as a whole, the Plaintiff is there saying that emotional distress was so obviously a possible and indeed probable result of the (alleged) actions of the wrongdoers that they must have intended and be taken to have intended the result, or at the very least, they were reckless as regards the same. 44.In any event, as has been mentioned, it has been specifically and expressly pleaded in the statement of claim that there was intentional/reckless infliction of emotional distress on the Plaintiff by the wrongdoers. 45.On the pleased facts (which must be assumed to be true for the purpose of the striking out application), I am unable to say that there is no realistic prospect of the Plaintiff establishing the requisite intention regarding infliction of emotional distress, and am thus unable to say that the Plaintiff is not in a position to allege or ultimately to establish the necessary mental requirement. The situation is quite different from that faced by the plaintiff in Tang Nin Mun, supra, where this Court held that on the pleaded facts, there was no realistic prospect of the plaintiff establishing that the alleged wrongdoer was subjectively aware that his fabrication of evidence could in the ordinary course lead to the plaintiff suffering the type of psychiatric disorders in question, and thus concluded that the plaintiff was not in a position to allege and ultimately to establish the requisite mental element under the tort of misfeasance in public office that he relied on in that case: see pp.328J to 329J. 46.Based on the above analysis, I respectfully disagree with the learned judge's view that the statement of claim does not disclose a reasonable cause of action based on harassment or intentional/reckless infliction of emotional distress. Put another way, I am not prepared to strike out this part of the statement of claim on that ground. 47.That leaves negligence and infringement of human rights, which can be disposed of shortly. Negligence 48.Negligence is of course a cause of action known to the law. In fact, as has been pointed out by Lord Hoffmann in Wainwright, many cases of harassment or intentional infliction of injury may now be covered by the tort of negligence, which is a tort not restricted to a "negligent" state of mind. An intentional act causing injury that was done in a situation where there was a duty of care may be actionable under the tort of negligence. Charlesworth & Percy on Negligence (10th ed.) paras. 1-19 to 1-20. Given the facts and complaints pleaded in the statement of claim, I am of the view that arguably a duty of care existed, and again arguably, the acts complained of (or some of them) could constitute a breach of that duty. Physical injury has been pleaded. Emotional distress (which could, as explained above, include a known psychiatric illness) has also been pleaded. Resulting economic loss has also been pleaded. In those circumstances, arguably, the necessary material facts supporting a cause of action based on the tort of negligence have been pleaded in the statement of claim. 49.Furthermore, the Plaintiff pleads that as his employer, as well as the employer of personnel in the Civil Service Bureau who took part in the alleged wrongful acts under complaint, the government was negligent in not stopping its other employees from committing the wrongful acts against him. I am not prepared to say that clearly beyond argument to the contrary, all this does not found a cause of action in negligence. 50.For all these reasons, so far as the cause of action of negligence is concerned, I am not prepared to strike out the same on the basis that no reasonable cause of action has been pleaded in the statement of claim. Infringement of human rights 51.Lastly, infringement of human rights. The statement of claim refers to the Universal Declaration of Human Rights, claims that the Plaintiff's privacy, personal freedom, reputation, dignity and personal safety have been infringed. Mr Tam, on behalf of the Defendant, has not addressed the Court on why he said that the claim in the statement of claim is bad. As mentioned above, the learned judge did not elaborate on this part of his decision either. 52.In my view, given the nature of the Plaintiff's pleaded complaints, namely malicious and intentional harassments and oppressive conduct by the authorities with the ultimate aim of inflicting, intentionally or recklessly, injury on the Plaintiff, the Plaintiff's complaint of infringement of human rights against the government is understandable. Arguably, on the pleaded facts, article 14 of the Hong Kong Bill of Rights in the Hong Kong Bill of Rights Ordinance (Cap. 383) relating to protection of privacy, family, home, correspondence, honour and reputation has been infringed. 53.In the absence of (1) any reasoned decision below and (2) any structured argument from either side on this point at the hearing of the appeal, and bearing in mind that this is a strike-out application, I do not find it right to strike out the claim based on infringement of human rights. My decision in this regard is, to some extent, influenced by the fact that given my views on the other causes of action, the inevitable result of which is that there will have to be a trial on the complaints made by the Plaintiff, there seems little point in striking out this part of the Plaintiff's claim in isolation. In any event, no such partial relief has been sought by the Defendant, whether by way of a respondent's notice or submission during the hearing. Miscellaneous considerations 54.On the whole, I am reluctant to conclude that the statement of claim should be struck out, as for reasons explained above, the judge below does not seem to have been referred to the relevant authorities on the causes of action relied on by the Plaintiff, and did not elaborate on his rejection of the pleaded causes of action, and in this appeal, senior government counsel has only been able to render very limited assistance to this Court regarding the law. 55.There are certainly missing details and particulars in the statement of claim. But I am of the view that they are essentially matters of further and better particulars. Put at the lowest, before the particulars are sought and supplied, a strike out is, in my view, premature. There may be other matters requiring amendment (such as an amendment to specifically plead article 14 of the Hong Kong Bill of Rights). But so long as they are curable by amendment, the pleading should not be struck out. CACV 19/2003 56.As regards CACV 19/2003, I am of the view that Sakhrani J was (if I may say so with respect) absolutely correct in dismissing the appeal from Master Levy, who correctly deferred the hearing of the Plaintiff's applications for discovery, inspection and leave to serve interrogatories until after the determination of the striking out summons. There was simply no point in wasting time and effort, not only of the parties but also of the court, in dealing with the Plaintiff's applications, when the survival of the Plaintiff's claim was hanging in the balance, pending the determination of the striking out summons. 57.The decision under appeal was a discretionary one. I see no reason whatsoever to interfere with it. Indeed with respect, the judge came to the only right conclusion in the then prevailing circumstances. Hon Yuen JA: Outcome 58.By reason of the above, the Plaintiff's appeal in CACV 247 of 2003 is allowed. The judge's order is set aside and the summons is dismissed. The Plaintiff's appeal in CACV 19 of 2003 is dismissed. Costs 59.We would make an order nisi that the costs of the summons and of the appeal in CACV 247 of 2003 be to the Plaintiff in any event, and that the costs of the appeal in CACV 19 of 2003 be to the Defendant in any event. For the purpose of taxation, we would direct that 95% of the costs of the hearing of the appeals, which were heard together, be regarded as having been incurred in relation to CACV 247 of 2003.
Representation: Mr Wong Tai Wai David, the Plaintiff/Appellant, appearing in person in both appeals Mr Raymond Tam, SGC of the Department of Justice, for the Defendant/Respondent in both appeals |
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Further hearings and rulings under CACV 19/2003