Alice Li Miu Ling v. The Equal Opportunities Commission

DCEO 2/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 2 OF 2005

BETWEEN

Coram: Deputy District Judge K W Wong in Chambers (open to public) 

Date of Hearing: 26^th January 2006

Date of Handing Down of Decision: 27^th February 2006

D E C I S I O N

1.This is taken as the Plaintiff’s application for leave to appeal against my decisions made on 17^th January 2006, although in her summons dated 20^th January 2006, it is stated that the summons is to appeal against my orders made on 17^th January 2006. Under section 63 of the District Court Ordinance (“DCO”), subject to certain exceptions that are not relevant to the present case, appeal to the Court of Appeal can only be made with leave.

2.It is useful to set out what decisions did I make on 17^th January 2006. On that day, there were two matters before me. They were, namely:

(i)  the Defendant’s summons dated 20^th July 2005 and amended on 25^th August 2005 to strike out the Plaintiff’s indorsement of claim on grounds under Order 18, Rule 19 of the Rules of District Court; and

(ii)  the Plaintiff’s summons dated 10^th October 2005 for leave to file an amended statement of claim according to the Court’s directions to the Plaintiff.

3.In respect of the Plaintiff’s application, it was the Plaintiff’s position on 17^th January 2006 that she could amend her pleadings once without leave. In fact she filed and served her amended writ indorsed with her amended statement of claim (and it was described as Amended Statement and Indorsement of Claim in the amended writ) purportedly under Order 20 Rule 1 of the Rules of District Court on 16^th January 2006. Accordingly she withdrew her summons at the hearing on 17^th January 2006. The Defendant did not object the application but asked for costs. I granted leave to the plaintiff to withdraw her summons with costs to the Defendant, to be taxed if not agreed, and to be paid forthwith (“my first decision”).

4.In respect of the Defendant’s application, since the pleadings sought to be struck out have been amended, the Defendant needed time to reconsider the newly amended pleadings and whether to go ahead with its application. The hearing of the summons was therefore adjourned by me to a date to be fixed with costs thrown away by the adjournment be paid by the Plaintiff, to be taxed if not agreed, and be paid forthwith. I also made some consequential directions (“my second decision”). 

5.I do not intend to repeat the grounds for my decisions on 17^th January 2006. They appeared in my two written decisions both of the same date. They were basically my brief reasons delivered orally on that date reduced to writing according to the transcripts of hearing.  It is obvious that on 17^th January 2006 I have not dealt with the substantive application of striking out. The only orders sought to be appealed against are therefore costs orders made against the Plaintiff in respect of the two summonses.

6.The Plaintiff’s grounds for her proposed appeal are set out in her affidavit filed herein on the 21^st January 2006. They can be summarised in the following grounds:

i)    it is the Defendant who delivered two bundles containing about 1,000 pages of documents and skeleton argument the day before the argument. The Plaintiff should be allowed proper and sufficient time to examine such documents. The Defendant therefore offended the natural rules of justice and she had not been allowed sufficient time to respond;

ii)   by reason of the above, the adjournment is occasioned by the Defendant, and not by the Plaintiff. Due to the delay on the part of the Defendant, the hearing has to be adjourned anyway;

iii)  grounds under Basic Law (BL 35), presumably she was referring to article 35 and Hong Kong Bill of Right Ordinance (BOR 10), presumably referring to article 10 of the Ordinance;

iv)  the Plaintiff has acted in good faith and to the best of her ability in her application to amend. In fact, the Plaintiff appears to suggest that the application to amend was at the invitation of the Court. The same was issued out of “abundance of caution” with a view to comply with the direction of the Court;

v)   the authority of DCEO 1/2001 not applicable to litigant in person and the decision of Ali Shoukat v Hang Seng Bank Limited, unreported, HCLA112/2004, 20^th June 2005, Deputy Judge A. To is applicable.

The above grounds are respectively referred to Ground one to five in this decision.

Applicable principles

7.The principles applicable to an application for leave to appeal are set out in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538 by Lord Woolf, MR, as follows:

“i)    The Court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

ii)    the court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

These principles were cited with approval by Leong CJHC in Ma Bik Yung v Ko Chuen, unreported, HCMP4303 of 1999, 8^th September 1999.

8.It is a settled principle that costs are in the discretion of the court. In an appeal against the exercise of a discretion, the appellant has a heavy burden to discharge because the appellate court will only interfere with the decision when it comes to the conclusion that the exercise of discretion is so aberrant that no reasonable judge regardful of his duty to act judicially could have reached it: see Hadmor Production s Ltd v Hamilton [1983] 1 AC 191 by Lord Diplock at 1046.  The appellate court is even slow to interfere when that discretion is exercised with regard to costs (per Hon Kwan J in Lai Yuet Chun v Super Deluxe International Limited, unreported, HCCW 186/2001, 15^th July 2003).  So the burden on a party seeking leave to appeal in this situation is a heavy one. In going through the grounds of the proposed appeal I will therefore be guided by the approach in the above cases to see whether I had exercised my discretion in awarding costs unjudicially, or that I had taken irrelevant matters into account or that I have not taken into consideration matters which I ought to have regards.

Grounds One and Two

9.These grounds relate to my second decision. The two bundles of documents referred to by the Plaintiff consisted of a box file of court documents and another box file of copy cases referred to in the list of authorities and a written skeleton argument. It is obvious that one of them comprised documents already disclosed. The other one contains details of the argument. As I have set out in my Decision (2) of 17^th January 2006, the Defendant’s application was directed to strike out the pleadings before the amendment. The amendment was made in the evening of the day before the hearing when the skeleton argument based on the old pleadings had already been prepared. It is reasonable and necessary for the Defendant to revise the arguments set out in the skeleton to see whether the newly added parts, which increase the pleadings’ size from 15 pages to 34 pages, have been covered by the skeleton. The Defendant may even want to reconsider whether to go ahead at all with the striking out application. So even though the Plaintiff had been given the two bundles well in advance of the scheduled hearing, the hearing could not have been proceeded with anyway. As said in my Decision (2), the amendment came just too late. It is only when the Court allows the hearing to proceed that the Plaintiff might perhaps have a ground for compliant. By then the Plaintiff would be in a position to say she might not have sufficient time to digest the cases relied on by the Defendant. So I agree with the submissions by the Defendant’s solicitor that these grounds are red herrings. I cannot see how these two grounds advanced by the Plaintiff have demonstrated that my discretion has wrongly been exercised. I cannot see that she has a realistic prospect on these two grounds.

Ground Three

10.This ground is presumed to be in support of the Plaintiff’s application in respect of my two costs decisions. Article 35 of the Basic Law stipulates that:

“Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the court against the acts of the executive authorities and their personnel.”

There are no suggestions that the plaintiff was denied legal representation on the 17^th January. The only issue is costs. I really do not understand how this article of the Basic law is relevant.

11.Article 10 of the Hong Kong Bill of Rights Ordinance provides for equality before courts and right to fair and public hearing. Without particulars, one really cannot understand how and to what extent this article has been contravened. In fact there was no hearing on the substantive issues on 17^th January. The fact that there has been an adverse costs order made against the Plaintiff does not mean that there has not been a fair hearing. If by raising this ground the Plaintiff means that she has not been given sufficient time to digest the documents served on her, thus no fair hearing ensued as a result, I think the issue has been dealt with in the preceding paragraphs under her grounds one and two. I really cannot see how this article can assist the Plaintiff in her present application.

Ground Four

12.This is apparently directed to my first decision on costs. It is perhaps useful to set out some events after issue of the Defendant’s striking out application in order to know what court direction she was referring to, and under what circumstances she issued the summons to amend her pleadings.

13.The Defendant’s striking out summons was issued on 20^th July 2005 returnable on 8^th August 2005 at 9:30 am. By a letter dated 18^th July to Messrs. Baker & McKenzie copied to the Court, the Plaintiff indicated, inter alia, that she was then out of town and could only be available on 16^th August 2005. At the call-over hearing on the 8^th August, the Plaintiff was absent. However, by her another letter to the Court of the same date and received by the court just some 10 minutes before the scheduled hearing, the Plaintiff indicated that she was still out of Hong Kong and asked for an adjournment until after 22^nd August. The summons to strike out was therefore adjourned to 24^th August 2005 at 9:30 am.

14.But on 24^th August 2005, the Plaintiff was absent. By a letter of the same date faxed and received by the court minutes before the scheduled hearing, the Defendant said, inter alia, that she still could not attend court “due to being unavoidable delayed in the U.K.”. She indicated that she would be returning to Hong Kong tentatively by 10^th September 2005. She also indicated “ …the simplest and fairest course is for [her] to file and serve on the Defendant an amended statement of claim on or before 19^th September 2005.” On that occasion, the learned Deputy Judge Kwok ordered, inter alia, the striking out summons is adjourned for argument. Since the Plaintiff made quite a lengthy submission on her intention to amend her pleadings, the learned Deputy Judge also directed as follows:

“Plaintiff’s request to file and serve amended statement of claims is not acceded to and if she deems fit to proceed with the amendment, she shall take out a summons for that purpose.”

15.It is, presumably, pursuant to this direction, that she took out her application to amend, although by a letter dated 5^th September 2005 to the Court and copied to the Defendant, the Plaintiff stated that a plaintiff might amend a writ after delivery to the defendant once without the permission of the court. In any event, the Plaintiff took out the summons on 10^th October 2005. Her summons was returnable before H.H. Judge Chow on 18^th October 2005. However, the Plaintiff again did not show up at the scheduled hearing. Neither was there an amended pleadings filed and served on or before 19^th September 2005 as alleged. Apart from a letter of the same date to apologise for not being able to attend court, the Plaintiff did not explain why she was absent at the hearing of her own summons. H.H. Judge Chow ordered that her summons be adjourned to be heard together with the Defendant’s striking out application.

16.It is noted that in all her letters to the court, the Plaintiff had not explained why she needed to stay in the U.K. and could not come back to attend the scheduled hearings despite her indication that she could make it at a later date. No explanation as to what caused the “unavoidable delay” was ever been rendered.

17.Suffice to say that as early as 4^th July 2005 (see paragraph 5 of my Decision (2)), the Plaintiff agreed to amend her pleadings, at least under the threat of the Defendant. It fact, almost in all her letters to the court, the Plaintiff had made known that she was willing to amend her pleadings. In some letters, a time for coming up with the amended pleadings has been stated.

18.The Plaintiff also has knowledge of her alleged right to amend once without leave at least since 5^th September 2005. However she saw fit to abide by the direction of the learned Deputy Judge Kwok by issue of a summons. I consider that if the Plaintiff’s stance is that the learned Deputy Judge Kwok’s direction needs be followed, it is not open to her to say that leave is not required and mocks the same direction by having an amended writ issued without leave. On the other hand if she thinks that she is not obliged to abide by the direction of the Deputy Judge, she cannot now hide under this direction and say she only acted according to the direction of the judge. Although I consider that it is entirely sensible for the Defendant not to take any issue on whether leave is required for the amendment as leave to amend can always be disposed of by consent, the special circumstances of this case shows that she is not serious about her promise of deadlines and is ready to change her stance if she thinks that it may be to her benefit.

19.Although for the time being, there is no evidence to suggest that the Plaintiff proceeds with the proceedings out of bad faith, one really cannot conclude that she is proceeding in good faith. In any event, good faith is only one of the considerations but not the sole consideration in the weighing pan. I consider that it is only fair for her to pay the Defendant for its costs incurred in respect of the amendment summons, which of course includes costs for her unexplained absence on 18^th October 2005.  I cannot see that there is any realistic prospect of success in overturning my exercise of discretion by raising this ground.

Ground Five

20.The Plaintiff asserted that Cano-Shearer, Anne & others v Cathay Pacific Airways Limited, unreported, DCEO 1/2001, 1^st November 2002 is not directly comparable to the present case on the ground that in Cano-Shearer, the Plaintiff is legally represented whereas in the present case she was unrepresented. She considers that the principle in Ali Shoukat v Hang Seng Bank Limited is applicable.

21.Ali Shoukat is a Labour Tribunal appeal by the employer against the decision of a Presiding Officer of Labour Tribunal who ruled in favour of the employee on his claims under a retirement trust scheme operated by the employer. On appeal, the learned Deputy High Court Judge Anthony To considered that the Presiding Officer erred in his decision and allowed the appeal. When the learned Deputy High Court Judge came to decide on the question of costs, he stated that the following two considerations needed be taken into account:

i)    the primary consideration is whether the unsuccessful party has been guilty of unmeritorious conduct in the litigation both at first instance and on appeal;

ii)    of secondary importance is whether the unsuccessful party is legally represented in the appeal, whether he is the appellant or the respondent and the balance of hardship the order of costs may have to the parties.

22.The learned judge went on to say that if the unsuccessful party has not put forward a claim or a defence in bad faith and has not misbehaved himself in the conduct of the litigation, the appellate court should be slow in ordering costs of the appeal against him. The low costs employment dispute resolution adjudication should be extended to appellate proceedings. If the appeal was fought solely on points of law which the Presiding Officer in the tribunal below should not have erred, and if the claimant is not in bad faith, the appellant is legally represented and of substantial means, the claimant, who is unrepresented, will be put to undue hardship if costs of the appeal is made against him.

23.I have to say the principle of Ali Shoukat is inapplicable to the present case. The learned Deputy High Court Judge has made it clear in paragraph 22 of his Judgment that appeals from Labour Tribunal and Minor Employment Claims Adjudication Board stand out from other civil litigations as a special class of its own. In those cases the Presiding Officers have a duty to investigate. It is because the purpose of the Labour Tribunal is to resolve employment disputes in a speedy, efficient and cheap way. No legal representation is permitted by statue. In order to fairly dispose of these labour disputes the Labour Tribunal Ordinance imposes on Presiding Officers an onerous duty to investigate. A team of Tribunal officers are established in order to assist the Presiding Officers. So one can say that if there is error in the judgment in respect of law, the Presiding Officer, who assumes an inquisitorial function, has more to blame than the unrepresented litigants, provided of course that the claimant has not acted in bad faith to mislead the Tribunal. It is against this background that the learned Deputy High Court Judge considers costs in Labour Tribunal appeals should be treated differently.

24.However, in the District Court there is simply no question of inquisitorial duties being imposed on judges. The adversarial procedure is in place. It is the primary duty of the litigants, whether or not he is represented, to press their respective cases while the judge acts only as an umpire and adjudicates based on the evidence emerges from the procedure. Why then the failure or otherwise of a litigant’s case has anything to do with the court. Why there should be a distinction between represented and unrepresented litigants. Why then an unrepresented litigant is not required to be responsible to his or her opponent for the consequence that his or her conduct has brought about, be it relating to costs or otherwise. To exempt an unrepresented litigant his or her costs in a court adopting an adversarial system will do “reverse prejudice” to his or her represented opponents.

25.It is noted that the Plaintiff is not contesting the principles in Cano-Shearer being wrong. What she contends are the principles therein being not applicable. In my second decision I have made express reference to Cano-Shearer. The relevant paragraph is 33 of Cano-Shearer. Although no reference was made to Cano-Shearer in my first decision, I have serious doubt that in light of Cano-Shearer, and in particular paragraph 18 of the said judgment and the special circumstances of this case mentioned in the preceding paragraphs, there is a realistic prospect of my costs order being set aside.

Order

26.By reason of the above, I do not consider that there is a realistic prospect on the part of the Plaintiff in succeeding on the appeal. I also do not consider that my decisions call for determination of issues caught by the second limb of Smith v Cosworth. The application for leave to appeal is therefore dismissed.

27.At the hearing on 17^th January 2006, I indicated, inter alia, that I did not have time to read the pleadings filed by the Plaintiff. So I have adopted a starting point that is more advantageous to the Plaintiff, namely, to proceed as if this case is a sex discrimination case whereby the provisions under Section 73B(3) of the DCO apply.  Section 73B(3) of the DCO stipulates that the District Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (“SDO”) shall order the parties to bear their own costs unless otherwise orders on certain grounds.

28.Section 76 of the SDO set out that claims in respect of the following acts may be made a subject of civil proceedings in like manner as any other claim in tort:

i)    act of discrimination against the claimant which is unlawful by virtue of Part III or IV of the SDO;

ii)   acts to which section 46 or 47 of SCO are applicable (liability of employers and principals and in aiding and abetting situation);and

iii)  acts of sexual harassment against the Plaintiff which is unlawful by virtue of Part III or IV.

29.I now have an opportunity to go through the 34-page amended statement of claim filed on 16^th January 2006. On pages 12 to 14 of the amended pleadings of the Plaintiff, the Plaintiff states the causes of action arising from the Plaintiff’s grievances against the Defendant. These causes of action include misconduct in public office, malicious falsehood, deception, fraud, gross discrimination in the sense of breach, abuse of the Defendant’s proper exercise of duties under the SDO, abuse of power through the corrupt use of public office for improper purposes, breach of duty, intentional infliction of severe pain, suffering etc, contrary to International Covenant of Civil and Political Rights, Hong Kong Bill of Rights Ordinance and Basic Law. They have been grouped under seven heads. None of these heads falls under Part III (i.e. discrimination and sexual harassment in employment field) or Part IV (i.e. discrimination and sexual harassment in other fields) of SDO. As such, I do not consider that the present claims are those brought under the SDO. The protection under section 73B(3) simply does not apply.

30.The usual rule of costs to follow the event therefore applies. The Plaintiff do pay the Defendant costs of her application for leave to appeal, to be taxed if not agreed, and be paid forthwith.

Dr. Alice Li Miu-ling, unrepresented, appearing in person

Miss Diana Purdy-Tsang of M/s Baker & McKenzie, for the Defendant