Tam Kam Tong v. Peter Wong & Partners

DCEC 1323/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1323 OF 2004

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Coram :     HH Judge Lok in Chambers

Date of hearing :    14 March 2008

Date of handing down of Decision: 19 March 2008

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DECISION

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1.This is an application by the Applicant for an anonymity order.

2.The Applicant is a practicing solicitor.  On 22 January 2004, he was returning from a business lunch with his employer to his office when he was knocked down by a bicycle.  As a result of the accident, the Applicant suffered injuries including fracture of right hip, aggravation of pre-existing back pain and psychological reaction.  It is the Applicant’s case that he is still suffering from disabilities including post-traumatic distress disorder, bipolar affective disorder, persistent back pain, muscle spasm and inability to carry heavy objects as a consequence of the accident, and he therefore commenced the present application to claim for employees’ compensation against his then employer.

3.Liability of the claim is admitted, and the assessment of damages has been fixed for hearing on 26 March 2008 with an estimated time of 4 days.

4.Shortly before such hearing, the Applicant relies on the following grounds to make the present application for an order not to disclose the identity of the parties:

5.In support of the application, Mr. Burke, solicitor for the Applicant, relies on the case of L v EOC & ors., unreported, CACV No. 265 of 2002 (decision on 2 August 2002), in which the Court of Appeal made an anonymity order in respect of a claim for disability discrimination.

6.I can try to summarize some of the legal principles relating to the making of an anonymity order from the authorities submitted by the parties:

7.After considering the reasons advanced by the Applicant, I do not accept that they are sufficient for the court to displace the principle of open justice in the present case.  The main argument in support of the application is based on the particular disability and profession of the Applicant.  Obvious, there is always a danger that the Applicant would be embarrassed and be discriminated against because of the psychiatric disability disclosed in the proceedings.  However, such risk would be faced by most of the applicants in their applications for employees’ compensation, whether such individual applicant is working as a professional or a manual labour worker.  Further, the risk of possible discrimination may extend to all sorts of disability.  In other words, a construction worker who suffers from lower back pain can make the same complaint about the fear of discrimination in the case that his disability is revealed to his employer in the course of the legal proceedings.  In such case, how can the court objectively assess that the risk faced by the Applicant is greater than those faced by the other plaintiffs or applicants in the numerous personal injuries and employees’ compensation cases?  If the application were to be granted, those other plaintiffs and applicants should obtain the same treatment, and I doubt whether it serves the interests of justice in extending the protection to such an extent.  Hence in my judgment, fear of discrimination and the profession of the applicant alone are not sufficient for the court to make an anonymity order displacing the principle of open justice.

8.Further, it is revealed in the 2 medical reports prepared by the Applicant’s psychiatric expert, Dr. Peter Ho Pang Nin, that the Applicant can still work as a solicitor despite his psychiatric disability.  I take that it means the Applicant’s disability is not serious to an extent that it would affect his work as a solicitor.  In such circumstances, and taking into account that discrimination on the ground of a person’s disability is an unlawful act in itself, I do not accept that there is a real or serious risk of future discrimination to an extent that justifies the disapplication of the cardinal principle of open justice.

9.I fully appreciate that anonymity orders are usually made in disability discrimination cases.  However, different considerations apply by reason of the nature of those claims.  At least, the plaintiffs in those cases claim that they had already suffered discrimination by reason of their disabilities.  There is something more than just fear of possible discrimination, and there is a real risk of further discrimination if the previous instances of discrimination, the particulars of the plaintiffs’ disabilities and their identity are fully revealed in the proceedings.  Further, Disability Discrimination Ordinance, Cap. 487, is a piece of social legislation.  If the identity of the plaintiffs is not protected in appropriate cases, it may discourage victims of unlawful discrimination from pursuing their civil rights in courts.  No such consideration exists in the present case.

10.In fact, the Court of Appeal did take into account the nature of the subject proceedings, ie. a claim for disability discrimination, in deciding to make an anonymity order in the case of L v EOC, ibid. (at para. 14 of the judgment of Cheung JA):

“14.   We are of the view that an anonymity order should be made.  We recognize that the actions were brought by the plaintiff himself and generally speaking, a plaintiff has to accept the publicity and embarrassment that he may encounter in court proceedings.  However, we are satisfied that in the context of the nature of the proceedings brought by the plaintiff, administration of justice is best served by making an order.” (emphasis added)

The present case only involves a claim for employees’ compensation.  In this kind of claims, most of the applicants suffer disabilities of some sorts, and so fear of possible future discrimination alone is not, in my judgment, sufficient for the court to make an anonymity order.

11.Mr. Burke further submits that in a simple claim for employee’s compensation, the general public would not be interested to know the identity of the litigants.  However, one should not exaggerate the justification of such argument.  Members of the public generally would not be interested to know the identity of the parties in the vast majority of cases before the court each day.  If this argument is sufficient to displace the principle of open justice, most of the cases in our daily court lists would then be filled with the names of the parties in single alphabets rather than the full names of the litigants.  This simply cannot be right. 

12.Based on the reasons above, I do not think that it is appropriate to make an anonymity order in the present case.  The application is therefore dismissed, and I also make an order nisi that the costs of the application be to the Respondent which shall be made absolute 14 days after the date of the handing down of this decision.

Mr. Patrick Burke of Messrs. Burke & Co. for the Applicant

Ms. Angela Leung of Messrs. Deacons for the Respondent