Sit Ka Yin Priscilla v. Equal Opportunities Commission and Others
Read the full judgment text of DCEO 11/1999 on BabelCite. This DCEO judgment was delivered on 23 October 2007.
1. This is the first of 3 summonses issued in these proceedings which have to be determined by the court: a summons dated 3 July 2007 issued by the Plaintiff for discovery; a summons issued by the Plaintiff dated 5 July 2007 to join 9 defendants as parties to the action and to amend the Particulars of Claim filed in the action; and a summons issued by the Defendant dated 5 July 2007 to expunge parts of the witness statement of the Plaintiff and the entirety of the supplemental witness statement
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DCEO 11/1999 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999 -------------------- BETWEEN
------------------- Coram : Her Honour Judge Mimmie Chan Date of hearing : 21 September 2007 Date of handing down Decision : 23 October 2007 _______________ DECISION _______________ 1.This is the first of 3 summonses issued in these proceedings which have to be determined by the court: a summons dated 3 July 2007 issued by the Plaintiff for discovery; a summons issued by the Plaintiff dated 5 July 2007 to join 9 defendants as parties to the action and to amend the Particulars of Claim filed in the action; and a summons issued by the Defendant dated 5 July 2007 to expunge parts of the witness statement of the Plaintiff and the entirety of the supplemental witness statement of the Plaintiff. At the hearing on 21 September 2007, I was only able to deal with the Plaintiff's summons to join defendants and to amend the Particulars of Claim. The other 2 summonses were adjourned. Background 2.The Plaintiff was employed as Director (Gender) of the 1st Defendant since 9 September 1996. Her employment was terminated on 25 September 1997 with immediate effect. This action was commenced by the Plaintiff on 24 September 1999 under the Sex Discrimination Ordinance, Cap.480 ("SDO") and the Disability Discrimination Ordinance, Cap.487 ("DDO"). The Equal Opportunities Commission was named as 1st Defendant. Cheung Mui Ching Fanny, the former Chairman of the 1st Defendant, was named as 2nd Defendant. Ho Choi Wai Yee Angela, the Chief Executive of the 1st Defendant, was named as 3rd Defendant. The Plaintiff makes claims of disability discrimination and sex discrimination against her during the period of her employment resulting in the termination, and claims by way of relief damages, interest and a declaration that she had been discriminated against on grounds of disability and/or sex. 3.On 5 July 2007, the Plaintiff issued a summons to amend the Particulars of Claim and to join the proposed 4th Defendant to 12th Defendant ("Summons to amend"). On 3 August 2007, the Plaintiff purported to serve an Amended Particulars of Claim but this did not comply with the practice direction requiring proper identification of the parts proposed to be amended in the pleading. Accordingly, directions were given on 14 August 2007 for the Plaintiff to serve a proper version of the proposed Amended Particulars of Claim, and another version of the pleading was served on 21 August 2007 - which I shall hereafter refer to as "the proposed Amended Particulars of Claim". Proposed Additional Parties 4.By the proposed Amended Particulars of Claim, the Plaintiff seeks, inter alia, to include the following parties in the action :
Legal Principles 5.The application to amend is opposed by the 1st to 3rd Defendants. In their opposition, Counsel for these Defendants submits that although the court has wide discretion to allow amendments particularly where the other party can be compensated by costs, leave to amend should be sought as soon as the necessity for it arises (Hong Kong Civil Procedure 2007 n. 20/8/9), and the court may require evidence that the party applying to amend could not with reasonable diligence have discovered the new facts sooner (Hong Kong Civil Procedure 2007 n. 20/8/12). Counsel submits that amendments should not be allowed by the court to enable a party to raise a new cause of action which accrues only after the issue of the writ or to save a cause of action which did not exist at the date of the issue of the writ (Hong Kong Civil Procedure 2007 n. 20/8/6). Where allegations of fraud, misrepresentation or other such serious allegations are made out for the first time, counsel submits that the court should ask why it was not presented originally (Hong Kong Civil Procedure 2007 n. 20/8/10 citing Dias Sandra Mary Elizabeth v. Cathay Pacific Airways Ltd. HCA 2372 of 2002 (unrep), 18 November 2005, at para. 33). Counsel further submits that the parties seeking the amendment should ensure that adequate particulars are given when the amendments are made shortly before trial (Hong Kong Civil Practice 2007n. 20/8/10), and useless amendments should not be allowed (Hong Kong Civil Procedure 2007 n.20/8/24). Finally, counsel submits that the court is entitled to have regard to the merits of the case in an application to amend if the merits are readily apparent (Hong Kong Civil Procedure 2007 n.20/8/6). 6.I accept that all the above considerations to which counsel has referred are relevant to the present application made by the Plaintiff. 7.Moreover, going back to first principles, a party seeking leave to amend its pleading is seeking the indulgence of the court, and the court may allow amendments on such terms as to costs or otherwise as may be just. The court may grant leave even if the application to amend is made after the relevant period of limitation at the date of the issue of the writ has expired if it thinks it just to do so. However late the stage at which the application to amend is made, the amendment should be allowed if it will not do injury to the opponent or prejudice the opponent in a way that cannot be compensated by costs or otherwise, but in a case where fraud or other serious allegation is made which was not made earlier, the court needs to be satisfied on the truth and substance of the allegation. Pure undue delay is not a sufficient reason to bar leave unless there are doubts as to the soundness of the proposed amendment, or the plea is plainly unarguable, but where there has been substantial delay in applying for an amendment which may cause prejudice to the other party, the party seeking to amend would be required to explain the delay. 8.It is also clear that pleadings should contain, and contain only, a statement of the material factson which the party pleading relies for his claim, but not the evidence by which those facts are to be proved (Order 18, r.7 Rules of the District Court). Nor should pleadings contain arguments or submissions. 9.It is relevant to bear in mind that the present action was brought on 24 September 1999 in relation to the termination of the Plaintiff's employment on 25 September 1997, for declarations that the Plaintiff had been discriminated against on the grounds of her sex and/or alleged disability, and for damages. Questions of conspiracy or perversion of the course of justice are not for determination in these Equal Opportunities Proceedings. 10.Finally, in relation to the proposed joinder of defendants who are all employees of the 1st Defendant, I also bear in mind that the Plaintiff has pleaded in paragraph 17 of the original Particulars of Claim filed on 24 September 1999 that under section 46 (1) of on the SDO, the 1st Defendant as employer is vicariously liable for each and every act done by the 2nd and 3rd Defendants, and of course for others of its employees, in the course of their employment with the 1st Defendant. Reasons for delay 11.Since the Plaintiff's application to amend and to join the proposed defendants is made nearly 8 years after the issue of the proceedings in September 1999, the Plaintiff was asked at the hearing why it has taken her so long to propose these amendments. From her submissions, I can only make my best efforts to summarize her stance, as follows. She maintains that she had experienced great difficulties in obtaining relevant documents from the 1st Defendant. Between 1997 to 2004, the Plaintiff had made several requests to the 1st Defendant for the provision of personal data relating to the Plaintiff under the Personal Data (Privacy) Ordinance ( "PDPO"), with little success (according to the Plaintiff). 4 complaints had been made to the Privacy Commissioner and 3 appeals to the Administrative Appeals Board as a result of the Data Access Requests served by the Plaintiff on the 1st Defendant under the PDPO. The Plaintiff maintains that she had to obtain documents kept by the 1st Defendant relating to the termination of her employment in this way in order to make and substantiate her claims against the defendants in these proceedings. 12.The Plaintiff's requests made under the PDPO for the provision of her personal data, how the 1st Defendant dealt with the Plaintiff's requests, the Plaintiff's complaints made to the Privacy Commissioner, and the appeals to the Administrative Appeals Board are all of minimal, if any, relevance to my determination of the Summons to amend. The Plaintiff's complaints to the Privacy Commissioner, the decisions made by the Privacy Commissioner and the appeals only concern the alleged breaches (if any) by the 1st Defendant under the PDPO, and any failure to investigate such breaches. These are irrelevant to the issues to be determined at the trial of these proceedings in respect of the Defendants' alleged discrimination. 13.There is no need for the Plaintiff to make Data Access Requests under the PDPO in order to obtain documents relating to the termination of her employment for the purpose of pursuing these proceedings. She can do so by the ordinary course of discovery in this action. The delay which has been occasioned by the Plaintiff's actions to compel the 1st Defendant to provide personal data to her under the PDPO and the appeals to the Administrative Appeals Board does not excuse the delay in her making any necessary amendment to be Particulars of Claim. 14.The Plaintiff further claims that the Defendants had withheld documents from her in these proceedings, and it was only recently that she obtained a version of the minutes of the Ninth Meeting of the 1st Defendant held on 25 September 1997 which evidenced the decision to terminate the services of the Plaintiff. This document was disclosed by the Defendants as document 22 of the Defendants' Supplemental List of Documents dated 23 May 2003, and for convenience, I shall hereafter refer to this version of the minutes as "Document 22". According to the Plaintiff, the revelation of Document 22 shows that the Defendants, including some if not all of the proposed Defendants to be joined, had conspired to pervert the course of justice, as it appears to be the Plaintiff's case that either Document 22 or another longer version of the minutes was a forged document. 15.The Plaintiff also appears to rely on the fact that the Defendants' Supplemental List of Documents revealed another document which is a Memo dated 11 September 1997 from 9 employees of the 1st Defendant (including some of the defendants proposed now to be joined) and addressed to the 3rd Defendant, in which complaints were made against the Plaintiff in relation to her work performance and her management of the Gender Division of the 1st Defendant. For convenience, I shall hereafter refer to this document as the "911 Memo". 16.Document 22 and the 911 Memo were disclosed by the Defendants in their Supplemental List filed on 23 May 2003. Counsel for the Defendants has pointed out that the Plaintiff had the 911 Memo at the latest by 9 August 2003, as admitted in the Plaintiff's Statement dated 31 May 2007 which referred to the 911 Memo. From the Plaintiff's Statement, she had also obtained the minutes of the 2nd Special Meeting of the Administration and Finance Committee of the 1st Defendant dated 25 March 1998 (which is another document the Plaintiff claims she had only recently obtained with difficulties) by May 2003. If, according to the Plaintiff, these documents somehow reveal some cause of action against the proposed defendants to be joined, or facts to support the claims against the 1st to 3rd Defendants, there is still a delay of over 4 years which has not been explained. Moreover, the Plaintiff's claim that either Document 22 or another version of the minutes of the Ninth Meeting of the 1st Defendant held on 25 September 1997 is a forged document, even if true (and I do not so find as I am not in a position so to do), is not relevant since forgery or conspiracy to pervert the course of justice are not matters for determination in these proceedings. Amendments sought 17.With the above legal principles and considerations in mind, I first deal with the more substantial amendments sought to be made by the Plaintiff. Paragraph 6 18.The Plaintiff seeks to include a new paragraph to refer to the proposed 4th Defendant's performance in her work. The proposed paragraph reads as follows : -
Some particulars are then set out relating to the proposed 4th Defendant's alleged neglect of duties, alleged poor work performance and job knowledge. 19.The proposed paragraph 6 does not make any allegation against the proposed 4th Defendant in respect of her discrimination against the Plaintiff. It does not disclose any cause of action against the 4th Defendant by virtue of her alleged neglect of duties, poor work performance and poor job knowledge, even if such allegations were true. If the alleged neglect of duties, poor work performance and poor job knowledge of the proposed 4th Defendant is relied upon by the Plaintiff somehow as evidence of the 1st, 2nd or 3rd Defendant's discrimination against the Plaintiff, then the proper place to make these claims should be in the Plaintiff's Statement. 20.It is unclear whether paragraph 6 of the proposed Amended Particulars of Claim is intended to give further particulars of the 1st, 2nd and 3rd Defendants' discrimination and/or alleged harassment of the Plaintiff as alleged in paragraph 5 of the Particulars of Claim. To the extent that the proposed paragraph 6 is pleaded as particulars of the discrimination and/or harassment pleaded in paragraph 5, these additional particulars are still lacking of essential details as to the alleged neglect of the 4th Defendant's duties, alleged delay, alleged lack of discipline, etc. as to be embarrassing. The Defendants are entitled to know clearly what case they have to meet as a result of the plea in paragraph 6 - be it a case of the 1st, 2nd and/or 3rd Defendant's less favorable treatment of the Plaintiff using the proposed 4th Defendant as a comparator without the Plaintiff's alleged disability; or a case of the 4th Defendant's discrimination of the Plaintiff as a result of the matters pleaded in paragraph 6; and if the former case, what are the particulars of the comparator's alleged neglect of duties or lack of discipline. As drafted, it is simply unclear and hence should not be allowed. 21.Further, any claim that can be made against the proposed 4th Defendant in these proceedings on the basis of any alleged discrimination on her part are by now time barred. Although this in itself is not a bar to leave being granted, the court will consider any prejudice which may be sustained by the proposed Defendant to be added as a party, have regard to whether such prejudice can be compensated by costs, and consider if it is just to grant leave to amend. 22.Bearing in mind that the allegations proposed to be made against the proposed 4th Defendant (and the other defendants sought to be included) date back to 1997 (10 years ago) as to any alleged acts of discrimination against the Plaintiff, I consider that the proposed defendants will be prejudiced if they should be included as parties at this late stage, as there will inevitably and understandably be difficulties in their recollection of the relevant events, or of their actions or the reasons for their actions back in 1997. Counsel for the 1st to 3rd Defendants have pointed out that the proposed 4th Defendant, 7th Defendant and 12th Defendant, in particular, have already left the employment of the 1st Defendant. Weighing these factors which constitute prejudice to the proposed defendants against any possible prejudice against the Plaintiff if I were to disallow her proposed amendments to include the new defendants, I bear in mind that the Plaintiff's case has always been and remains that the 1st Defendant is in law vicariously liable for any acts done by the 1st Defendant's employees in the course of their employment, and the 1st Defendant is accordingly liable for its employees' acts of discrimination, harassment and victimisation, if any, under s.46 (1) of the SDO and s. 48(1) of the DDO. Since the 1st Defendant is already a party in the action, I do not consider it to be necessary, or just at this stage, to join the proposed 4th to 12th Defendants as parties now when the Plaintiff's claims against them are time barred, their acts in the course of their employment are treated under the Ordinances as acts of their employer, the 1st Defendant, and the delay from 1999 until now has not been satisfactorily explained by the Plaintiff. 23.I do not allow the proposed amendment. Paragraph 7 24.The proposed paragraph 7 is similar to the proposed paragraph 6, save that paragraph 7 relates to the alleged neglect of duties on the part of the proposed 5th Defendant. It reads:
Some particulars are then set out of the 5th Defendant's alleged neglect in duties, failure to supervise his subordinates and delegation of work to his subordinates without proper communication. 25.The same objections as those set out in the case of paragraph 6 relating to the proposed 4th Defendant can be taken in relation to the proposed paragraph 7 and the proposed joinder of the 5th Defendant. Further, the proposed 5th Defendant is the Principal Officer responsible for Administration of the 1st Defendant, and a subordinate of the Plaintiff. If the proposed paragraph 7 is intended to give particulars of the 1st, 2nd and 3rd Defendants' discrimination of the Plaintiff by reason of her disability or sex, the proposed 5th Defendant is not an appropriate comparator. To the extent that the proposed paragraph 7 is to plead a cause of action against the 5th Defendant, then it fails to disclose any valid or viable cause against the 5th Defendant. Even if there were any cause of action against the proposed 5th Defendant, it is unnecessary to add the 5th Defendant when the 1st Defendant is vicariously liable for its employees' acts, and unjust at this late stage. 26.I will not allow the proposed amendment. Paragraph 8 27.The Plaintiff seeks to plead "the more serious instances or poor work performance of the Third Defendant". Paragraph 8 reads as follows:
28.The 3rd Defendant was at all material times the Chief Executive of the 1st Defendant, and her work performance is not comparable to that of the Plaintiff. Allegations of the 3rd Defendant's poor work performance, neglect of duties, and incompetence, even if true, are irrelevant to be issues of discrimination to be determined in this action. 29.The proposed paragraph 8 is therefore irrelevant, does not disclose any cause of action, and is not allowed. Paragraph 12 30.The Plaintiff seeks to include the following in the original paragraph 9 of the Particulars of Claim:
Although repetitive of part of the original pleading in paragraph 9, I will allow this proposed amendment as further particulars of the Defendants' alleged knowledge of the Plaintiff's alleged disability. 31.However, the remaining part of the proposed amendment in the proposed paragraph 12 is a matter of evidence and cross-examination at trial, and should not form part of the Particulars of Claim. I will not allow the following amendment:
Paragraph 15 32.The proposed 12th Defendant is Frederick Tong Kin Sang ("Tong"), the Director (Disability) of the 1st Defendant. He is alleged to be the comparator of the 1st Defendant's treatment of the Plaintiff, as Tong is the Plaintiff's equivalent in the Disability division. 33.The Plaintiff proposes to include the following as part of paragraph 15 (a):
This is a totally irrelevant averment, and will not be allowed. 34.The 1st to 3rd Defendants do not object to the inclusion of the proposed paragraph 15 (b) and (c) without prejudice to the contention as to the joinder of the proposed 12th Defendant. On this basis, the proposed paragraph 15 (b) and (c) are allowed. 35.As for the proposed paragraph 15 (d), the essence of the amendment is to set out the fact that whereas complaints had not been made against the Plaintiff, there had been complaints made against the proposed 12th Defendant. Since the Plaintiff alleges that the proposed 12th Defendant is a comparator, I will allow the proposed amendment. Whether or not the complaints made against Tong are relevant, whether or not the inclusion of the proposed paragraph 15 (d) supports the Plaintiff's claim of discrimination, are all matters for determination at trial. If the Defendants require further and better particulars of the complaints referred to (if the issue is relevant at all), they can formulate a request for particulars. 36.However, the proposed amendments in paragraph 15 (d) do not disclose a cause of action against the proposed 12th Defendant, and do not support the Plaintiff's application to join Tong as 12th Defendant. References in paragraph 15 (and other parts) of the proposed Amended Particulars of Claim to the 12th Defendant should be revised to refer to Tong. Paragraph 19 37.On the basis that Tong is claimed by the Plaintiff to be a comparator, I will allow the inclusion of the proposed paragraph 19 as being relevant to the Plaintiff's claim of alleged discrimination on the part of the 1st, 2nd and/or 3rd Defendant, although it does not disclose any cause of action against Tong as the proposed 12th Defendant. If the Defendants consider that they are entitled to further and better particulars of the "management problems" and "filing problems", they can formulate a request for particulars. Paragraphs 23 to 25 38.In paragraph 23, the Plaintiff seeks to refer to the 911 Memo, and avers that the 6th Defendant admitted that he wrote the complaint contained in the 911 Memo, and that the 7th Defendant admitted that she signed the 911 Memo. The Plaintiff avers that the 8th to 11th Defendants were the Plaintiff's subordinates, and that the 6th to 11th Defendants were employees of the 1st Defendant in 2003 when the 911 Memo was found. 39.By the proposed paragraph 24, the Plaintiff alleges that after she had raised the question of acting appointments with the 2nd Defendant in May 1997 and had queried the 2nd Defendant's standard of selection of acting appointments, she had been "subjected to harassment, offensive action, humiliation, intimidation" by the 2nd and 3rd Defendants. The Plaintiff further seeks to claim that the minutes in the files show that the Plaintiff was persistently harassed by the 2nd and/or 3rd Defendants, and that the 3rd Defendant "harassed" the Plaintiff by making amendments to drafts of her work. 40.I can only deal with the Plaintiff’s claims as they are pleaded or proposed to be pleaded. As pleaded, the claims proposed to be made under paragraphs 23 to 49 of the Proposed Amended Particulars of Claim are made under the SDO. 41.The Plaintiff repeatedly refers to "harassment" under the SDO. It is important to consider the meaning of harassment under the Ordinance. Section 2 of SDO provides as follows:
42."Harassment" under the SDO must be harassment of a sexual nature, be it the creation of a hostile or intimidating work environment, or the engagement in unwelcome conduct. 43.The matters on which the Plaintiff seeks to rely and which she proposes to include from paragraphs 23 to 49 relate to claims made under the SDO. The particulars set out in the proposed paragraphs 23 to 25 are the creation of the 911 Memo, the 3rd Defendant's alleged amendments made to the Plaintiff's draft documents and (in paragraph 25) alleged pressures created by the 2nd and 3rd Defendants on the Plaintiff. As pleaded, these acts are not of a sexual nature, and cannot amount to harassment under the SDO even if the allegations were true. 44.To the extent that the Plaintiff argues that her dismissal by the 1st, 2nd or 3rd Defendants was not by reason of her performance at work as alleged by the Defendants, but motivated by some reason to hide their own misconduct, this is at most a question of evidence and submissions to be addressed at trial. 45.To the extent that the Plaintiff claims that the making of the complaints in the 911 Memo was an act of discrimination on the part of the signatories to the 911 Memo, which signatories include the proposed 5th to 11th Defendants, this is a new cause of action which should have been raised before and which is now time-barred. For the reasons set out in paragraph 22 above, I will not allow these new causes to be raised against the proposed additional defendants at this stage. 46.The only part of the proposed paragraphs 23 to 24 which I allow is the following in paragraph 24:
As this does not create a cause of action against the proposed 12th Defendant, but only supports the claim of discrimination or victimisation made against the 1st to 3rd Defendants, the reference to the 12th Defendant should be amended to a reference to Tong. If the Defendants consider that they are entitled to further and better particulars, they can formulate a proper request and take further action, if necessary, when particulars are furnished. 47.I allow the proposed amendment in paragraph 25 concerning the claim of victimisation, as it cannot be said that no arguable case is disclosed. Under section 9 of the SDO , a person discriminates against another person in circumstances relevant for the purposes of any provision of the ordinance (e.g. in the course of employment) if he treats the person victimised less favorably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has alleged that the discriminator or any other person has committed an act which would amount to a contravention of the ordinance. The Plaintiff alleges in paragraph 25 that there was victimisation since May 1997 after the Plaintiff complained about acting appointments. Whether or not this can be substantiated is of course a matter for trial. 48.Paragraph 25 is only allowed with the deletion of the words "harassment and/or", since there is no cause of action disclosed for harassment under SDO. If the Defendants consider that they are entitled to further and better particulars of the "pressures" on the Plaintiff as a result of her complaint about the acting appointments, they can formulate a formal request for particulars and take further action, if necessary. Paragraph 26 49.There is no cause of action discernible from the proposed paragraph 26 for harassment. To the extent that the Plaintiff makes or repeats her allegation that the 2nd and 3rd Defendants were motivated by a desire to hide their alleged misconduct or discriminatory acts against the Plaintiff when dismissing her, these are matters of evidence and for submissions to be raised at trial. I will not allow paragraph 26. Paragraphs 27 50.The Plaintiff seeks, by this paragraph, to refer to the steps taken by the 2nd and/or 3rd Defendants to "twist" the work done by the Plaintiff and/or action taken by the 6th Defendant when the 6th Defendant acted in the Plaintiff's place during the period of her leave from 23 May to 30 May 1997, to "put blame" on the Plaintiff. The 3rd, 6th and 7th Defendants are not comparators in respect of the Plaintiff's work, as the Plaintiff was more senior in rank to the 3rd, 6th and 7th Defendants. Paragraph 27 also refers to lies of the 2nd, 3rd, 6th and 7th Defendants. 51.As pleaded, the proposed paragraph 27 does not disclose any cause of action against the proposed 6th and 7th Defendants by virtue of their alleged lies. To the extent that it is alleged by the Plaintiff that the 2nd and/or 3rd Defendant's lies and acts show that they had discriminated against the Plaintiff, this is a question of evidence to be raised at trial, but from what is pleaded in the proposed paragraph 27, I find it difficult to discern any cause of action against the 2nd or 3rd Defendants. 52.Paragraph 27 is not allowed. Paragraph 28 53.The Plaintiff claims that the 3rd and the proposed 6th Defendants lied in relation to the Plaintiff's work. The proposed paragraph 28 refers to the work of the proposed 6th and 5th Defendants when the Plaintiff was on sick leave, alleged that the 3rd Defendant had made false accusations against the Plaintiff, and claimed that the 3rd Defendant had shown favoritism to the proposed 5th Defendant. None of the matters pleaded show any cause of action against the proposed 5th and 6th Defendants. To the extent that the Plaintiff claims that the 2nd and/or 3rd Defendants had reasons to terminate the Plaintiff's employment other than her work performance, this is a question of evidence to be dealt with at trial. 54.Paragraph 28 is not allowed. Paragraph 29 55.The Plaintiff seeks to claim in this paragraph that "the 2nd Defendant lied that the Plaintiff was not good at generating ideas and did not understand the concepts behind the proposed study", and seeks to refer to research projects undertaken or completed by the 1st Defendant, a sum of HK $1.8 million being allocated to the Chinese University, and HK$2 million being given to institutions with which the 2nd Defendant had close connections. These are not relevant to any pleaded case against any defendant, and this paragraph is not allowed. Paragraph 30 56.By this paragraph, the Plaintiff claims that the 3rd Defendant "lied in accusing the Plaintiff for failing to properly handle and respond to a complaint", and had further lied about documents in the file to support the 3rd Defendant's "made-up allegations". The Plaintiff further claims that favoritism was shown by the 3rd Defendant to the proposed 4th Defendant. 57.The proposed paragraph 30 does not show any cause of action against the proposed 4th Defendant. The alleged lies of the 3rd Defendant are not adequately particularised, but in any event, any lies of the 3rd Defendant can and should be dealt with in cross-examination at trial. 58.Paragraph 30 is not allowed. Paragraphs 31 to 33 59.These plead as follows:
60.Paragraph 31 does not disclose any cause of action against the 6th Defendant. To the extent that the Plaintiff claims that the 3rd Defendant had dismissed the Plaintiff for reasons other than the Plaintiff's work performance, this can be dealt with in evidence and cross-examination in the course of trial. I do not allow the inclusion of paragraph 31. 61.For the reasons stated in paragraph 22 above, I do not allow the introduction of any new cause of action against the proposed 6th Defendant at this stage, even if it can be argued that the 911 Memo is evidence of 6th Defendant's discrimination against the Plaintiff, such claim being time-barred by now. Other than having created the 911 Memo, paragraph 32 does not disclose any other cause of action against the proposed 6th Defendant, defamation not being for determination in this action issued under the SDO and DDO. 62.Similarly, paragraph 33 does not disclose any cause of action against the proposed 8th Defendant besides being a party to the creation of the 911 Memo, if it is so alleged against her. For the reasons stated in paragraph 22 above, I do not allow the introduction at this stage of a new cause of action against the 8th Defendant. 63.I do not allow paragraphs 31 to 33. Paragraph 34 64.Paragraph 34 reads as follows:
65.I fail to see how this discloses a cause of action against the proposed 7th Defendant for either discrimination, harassment or victimisation, and will not allow the proposed amendment. Paragraph 35 66.In the proposed paragraph 35, the Plaintiff claims that she voiced her grievance to the 2nd Defendant in the memorandum dated 15 September 1997, that the 2nd Defendant's memorandum dated 24 September 1997 was only given to that Plaintiff after the Special Meeting of the Administration and Finance Committee of the 1st Defendant held on 24 September 1997, that the 2nd Defendant supported the 3rd Defendant "no matter what the true facts and positions were", that the Plaintiff was victimised for bringing the matters to the attention of the 2nd Defendant, and finally that there was destruction of some relevant documents. 67.I agree with counsel for the 1st to 3rd Defendants that the matters set out in paragraph 35 of the proposed Amended Particulars of Claim are matters of evidence, at most, and should be dealt with in evidence or by way of submissions at trial. Paragraph 36 68.The Plaintiff claims in this paragraph that the 2nd and 3rd Defendants gave oral reasons for the proposed termination of the Plaintiff's employment but "did not produce any files and/or data". Paragraph 36 goes on to plead as follows:
69.The proposed paragraph 36 does not disclose any cause of action against the proposed 4th Defendant and the proposed 5th Defendant. The alleged lies of the 2nd and 3rd Defendants do not constitute any cause of action against the 2nd or 3rd Defendant. Proper submissions can be made at trial. Paragraph 37 70.This paragraph reads:
71.The proposed amendment does not disclose any cause of action against the 2nd to 5th and the 12th Defendants for harassment in relation to any alleged failure to give the Plaintiff access to materials and/information after the termination of Plaintiff's employment. Paragraph 37 is not allowed. Paragraph 38 72.Paragraph 38 pleads as follows:
73.The matters referred to in the proposed paragraph 38 do not disclose any cause of action against the Defendants for determination in these proceedings under the SDO and the DDO. I do not allow paragraph 38. Paragraph 39 74.The proposed paragraph 39 reads:
75.Questions of whether the Defendants have made disclosure or discovery of documents in these proceedings are not matters to be addressed by way of pleadings. I do not allow paragraph 39 to be included by way of amendment. Paragraph 40 76.The Plaintiff seeks to plead the 2nd Defendant's alleged lies concerning negative feedback she had received regarding the Plaintiff. The Plaintiff also seeks to include in the proposed paragraph 40 criticisms made by third parties against the 2nd Defendant for allegedly failing to conduct "studies of discrimination issues so as to examine inadequacy of existing laws/policies and work out practical suggestions in return". These claims are irrelevant to the issues for determination at the trial of this action. At most, allegations that the 2nd Defendant had lied about negative feedback concerning the Plaintiff should be dealt with in cross-examination at trial. 77.Paragraph 40 is not allowed. Paragraph 41 78.The Plaintiff seeks to plead instances of the 2nd and 3rd Defendants' "poor performance" at work, namely their neglect of duties in spending money to appoint a company to develop a performance appraisal system, and their lack of supervision of the proposed 4th Defendant to develop the privacy policy and sexual harassment policy of the 1st Defendant. 79.Allegations of the 2nd and 3rd Defendants' alleged neglect of duties or poor performance at work are irrelevant to determination of the Plaintiff's claims in this action. Neither the 2nd nor the 3rd Defendant is a relevant comparator so far as the Plaintiff's performance at work is concerned. 80.Paragraph 41 is not allowed. Paragraph 42 81.The proposed paragraph 42 (A) reads as follows:
82.In the proposed paragraph 42 (B), the Plaintiff claims that "in order to cover up the discriminatory acts of the Defendants and/or staff of the1st Defendant", the proposed 5th Defendant did not reveal in the minutes of the 1st Special Meeting of the 1st Defendant what he had revealed in his statement filed in these proceedings, "that the 3rd Defendant had told (the Administration and Finance Committee of the 1st Defendant) that the Plaintiff's shortcomings were exemplified in the minutes of some of the files that the Plaintiff had handled, and some members asked the 3rd Defendant to elaborate on some of her points about the Plaintiff's performance, and the 3rd Defendant had supplemented them by giving them some cases and examples"; and further that the 5th Defendant did not reveal in the said minutes the details of the 5 areas of the Plaintiff's deficiencies in the oral report given by the 2nd Defendant. 83.The Plaintiff seeks to plead in paragraph 42 (B) (a) (ii) that the 5th Defendant had lied that the Disciplinary Policy and Procedure of the 1st Defendant did not apply to the Plaintiff's case. 84.Paragraphs 42 (A) and 42 (B) (a), as summarized above, do not disclose any cause of action against the proposed 4th, 5th and 12th Defendants, nor any new cause against the 2nd and 3rd Defendants. Any relevant matter contained in the proposed paragraph 42 (B) (a) can be raised in evidence or cross-examination in the course of trial. 85.The Plaintiff seeks to plead in paragraph 42 (B) (b) that Document 22 "was produced to conceal the fact that the reasons for the recommendation were explained", and that the 2nd and 3rd Defendants had lied to the members of the 1st Defendant who were absent from the 9th Commission Meeting. These allegations, if relevant at all, should be raised in evidence or cross-examination in the course of trial. 86.Similarly, the allegation made in paragraph 42 (B) (c) that the 2nd Defendant had lied in the letter of termination dated 26 September 1997 is a question of evidence or submission to be made at trial. 87.The claim made in paragraph 42 (B) (d) that the 4th Defendant had only supplied minutes of the 1st Special Meeting and paragraph 37 of the minutes of the 9th Commission Meeting does not disclose any cause of action against the 4th Defendant, and if relevant at all, can be raised in evidence or by way of submissions at trial. 88.The matters pleaded in paragraph 42 (B) (d) concerning the investigation made by the Privacy Commissioner are irrelevant to the issues for determination in this action. The 2nd Defendant's alleged lies, if relevant, should be dealt with in evidence or by way of submissions at trial. The 5th Defendant's refusal to release documents to the Plaintiff after the termination of the Plaintiff's employment is also irrelevant to the issues for determination in this action, and fails to disclose any cause against the 5th Defendant. 89.The matters pleaded in paragraph 42 (B) (f) and (g) relating to the Administrative Appeal Board are irrelevant to this action. 90.Paragraph 42 is not allowed. Paragraph 43 91.In paragraph 43 of the proposed Amended Particulars of Claim, the Plaintiff seeks to refer to what she regards to be the conflicting evidence of the Defendants, or evidence which is contrary to the Defendants' claims. She seeks to refer to the 911 Memo or a purported copy thereof produced by the Defendants, minutes of the 2nd Special Meeting of the 1st Defendant held on 25 March 1998, and Document 22. She further seeks to refer to what she claims to be contradictory evidence contained in the statements or supplemental statements filed in this action by the 2nd, 3rd, 4th, 5th and 12th Defendants. 92.Submissions on documentary evidence and inconsistencies in evidence should be made or addressed at trial, and not in the Particulars of Claim. 93.The Plaintiff also claims that there was theft of the Plaintiff's personal data and handling of such stolen property on the part of the Defendants. The matters pleaded in paragraph 43 (a) do not disclose any civil cause of action against the existing Defendants or the proposed 4th, or 6th to 12th Defendants. Allegations of alleged criminal damage, theft, handling stolen property, unauthorized use of personal data, and perversion of the course of justice are not for determination in this action. 94.I do not allow the proposed inclusion of paragraph 43. Paragraph 44 95.Paragraph 44 reads as follows:
96.The bare assertions made in paragraph 44, even if true (and I make no such finding here), are not for determination by this Court in these proceedings. Paragraph 44 is not allowed. Paragraph 45 97.The Plaintiff refers to alleged offences of concealment, perverting the course of justice is and/or conspiracy to pervert the course of justice by parties who are not parties to this action. The Plaintiff claims that as a result, she was unable to get her personal data relating to the termination of her contract and consequently suffered loss and damage. These are irrelevant to the issues to be determined in this action, and paragraph 44 is not allowed. Paragraph 46 98.The proposed paragraph 46 pleads as follows:
99.There are no particulars given in paragraph 46 as to any conduct of a sexual nature which can constitute any cause of action for harassment under the SDO. The claim of alleged victimisation is a repetition of the averment contained in the part of paragraph 24 of the proposed Amended Particulars of Claim which I have allowed, and is hence unnecessary. 100.Paragraph 46 is not allowed. Paragraph 47 101.This is a repetition of the original pleading made in paragraph 16 of the Particulars of Claim dated 24 September 1999. It is unnecessary and is not allowed. Paragraph 48 102.The Plaintiff seeks to claim that she is "still being victimised for bringing this action in court" by Raymond Tang, the chairman of the 1st Defendant and the former Privacy Commissioner, by virtue of his submitting false statements to be filed in court. The proposed paragraph 48 does not disclose any cause of action against either Raymond Tang or the 1st Defendant for any alleged victimization, when the Plaintiff has already left her employment. 103.Paragraph 48 is not allowed. Paragraph 49 104.The proposed paragraph 49 reads as follows:
105.These allegations are totally unparticularised, but any question of perverting the course of justice, misconduct in public office and/or professional misconduct are not for determination by this Court at the trial of this action. Paragraph 49 is not allowed. Other minor amendments 106.Since I do not grant leave to the Plaintiff to add the proposed 4th to 12th Defendants as parties, the proposed amendments to paragraph 1 by the inclusion of paragraphs (c) to (g) in their present form are not allowed. 107.I do not allow the amendment to paragraph 4 of the proposed Amended Particulars of Claim, as the claim that the 1st Defendant was put on notice of the Plaintiff's alleged disabilities is totally unparticularised. Requests for further and better particulars of the 1st Defendant's notice of the Plaintiff's disabilities had been made, and particulars were furnished by the Plaintiff's Answers on 20 December 2000 and 26 October 2001. The proposed amendment in paragraph 4 does not set out these further and better particulars of notice, and is incomplete. 108.The minor amendments in paragraph 5 (i), (ii) and (iii) are allowed. 109.The amendment in paragraph 5 (iv) is not allowed, as questions of alleged breach of natural justice and alleged breach of contract are not relevant to the claims of discrimination made or the relief sought in this action. Order 110.The Plaintiff's application has been substantially disallowed. The costs of and occasioned by the Summons to amend, including the costs of the hearing on 21 September 2007, should be paid by the Plaintiff to the 1st to 3rd Defendants, with certificate for counsel, to be taxed if not agreed. Language 111.Although the Plaintiff made submissions at the hearing in Chinese, all her earlier statements and her proposed amended pleading were all prepared in English. Hence, this Decision is in the English language. If necessary, the Plaintiff may apply for a Chinese translation of this Decision.
The Plaintiff, in person Mr. Raymond Leung, instructed by Messrs. Baker & McKenzie, for the 1st to 3rd Defendants |
Cases cited in this judgment
Further hearings and rulings under DCEO 11/1999