Sit Ka Yin Priscilla v. Equal Opportunities Commission and Others

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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BETWEEN

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Coram:  HH Judge Lok in Chambers

Dates of Hearing:  30 May 2008

Date of Decision: 30 May 2008

Date of handing down of Reasons for Decision:  17 September 2008

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REASONS FOR DECISION

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1.This is an application by the Plaintiff for leave to administer interrogatories on the 2^nd and the 3^rd Defendants.  In the hearing on 30 May 2008, I dismissed the Plaintiff’s application and I now give my reasons in writing.

2.The Plaintiff was employed as Director (Gender) of the 1^st Defendant since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.

3.At the material time, the 2^nd and the 3^rd Defendants were respectively the Chairman and the Chief Executive of the 1^st Defendant.

4.In a nutshell, the real issues in the present case are: (i) whether there was unlawful discrimination, either on the ground of sex or disability, against the Plaintiff leading to the termination of her employment with the 1^st Defendant; and (ii) whether the termination of the Plaintiff’s employment was due to her poor work performance and attitude as alleged by the Defendants.

5.This action has a long history.  After the commencement of the claim, the Plaintiff had asked the 1^st Defendant to disclose various documents by way of Data Access Requests (“DARs”).  These requests led to numerous complaints to the Privacy Commissioner (“the Commissioner”) and appeals to the Administrative Appeals Board (“the AAB”), all of which had been dismissed.   There has been much delay in proceeding with the present action by engaging in these satellite litigations.

6.At the first pre-trial review hearing on 5 June 2007, Master R. Lai had directed that the Plaintiff should take out all interlocutory applications on or before 5 July 2007.  However without complying with such direction, the present application was only taken out by the Plaintiff on 28 March 2008.

7.In another application taken out by the Plaintiff to amend the Particulars of Claim, the Plaintiff sought to raise various issues relating to the previous DARs, complaints to the Commissioner and appeals to the AAB, and allegations of theft, handling stolen goods and perverting the course of justice.  HH Judge M. Chan disallowed these proposed amendments on 23 October 2007 and also expunged the Plaintiff’s supplemental witness statement dealing with these issues.

The law

8.In exercising the discretion whether to allow the administration of interrogatories, the court will be guided by the principles laid down in case law.  A helpful exposition of the law can be found in Lee Nui Foon v Ocean Park (No. 2) [1995] 2 HKC 395, thus:

(a)  the interrogatories must relate to “a matter in question” between the parties and must be “necessary” either for disposing fairly of the cause or matter or for saving costs (at 396G);

(b)  the interrogatories must not be fishing, oppressive, prolix or imprecise, and interrogatory will be oppressive if the answer cannot be given without an examination of the respondent’s record, with the expenditure of much time and trouble (at 396H-398E);

(c)  the interrogatories must not be questions which go to the evidence the opposing party intends to adduce (at 398E-I);

(d)  the interrogatories must not be questions which require an answer which is a matter of opinion or for an expert (at 399A);

(e)  the interrogatories must not be questions which go to the facts which would assist in establishing the opposing party’s case as opposed to the case of the party seeking to interrogate (at 399A-B);

(f)   the interrogatories must not be effectively asking for documents or discovery (at 399B-D); and

(g)  even if the interrogatories comply with all the requirements of the rules under O. 26, the court nevertheless retains an overriding discretion as to whether or not to allow them to be administered (at 399E).

9.Further, Cheung J, as he then was, said the following about prolix interrogatories:

“The interrogatories must not be prolix … … Kay LJ in Oppenheim & Co v Sheffield [1893] 1 QB 5 at 15-16 held that:

…interrogatories may be in such a form, in respect of their length and character, that looking at them as a whole it is impossible to help seeing that they are an abuse of the practice as being prolix or unnecessary.  If a general view of them brings the court to that conclusion it is no answer to say that there are in the set of interrogatories here and there some which might be admissible if they stood alone.” (at 398C)

10.There are also additional factors to be taken into account in considering such kind of applications:

(a)   interrogatories which relate solely to credit are not allowed (Hong Kong Civil Procedure (HKCP) para. 26/4/6);

(b)  interrogatories which tantamount to cross-examination to elicit evidence from witnesses of the opposing party are not allowed (HKCP para. 26/4/12);

(c)   interrogatories will not be allowed where the object is to obtain an admission of fact from witness of the other party (HKCP para. 26/4/12);

(d)  interrogatories will not be allowed where it is plain that no admission of fact can be obtained (HKCP para. 26/4/12); and

(e)   interrogatories designed to establish the identity of potential witnesses, for example, by asking who was present at a particular instance, will not be allowed (HKCP para. 26/4/13).

General considerations for refusing the administration of interrogatories

11.The proposed interrogatories against both the 2^nd Defendant (in Appendix A to the Plaintiff’s summons) and the 3^rd Defendant (in Appendix B to the Plaintiff’s summons) run up to no less than 10 pages with over 150 questions and sub-questions.  I have no intention of reciting all these interrogatories in this Reasons for Decision.  In my judgment, the sheer “length and character” of the proposed interrogatories will give rise to the conclusion that the proposed interrogatories are oppressive by reason of their prolixity, and the dicta of Kay LJ cited in Lee Nui Foon v Ocean Park (No. 2), ibid., is equally applicable in the present case (see: paragraph 9 above).

12.Further, this application is another veiled attempt to introduce through the back door materials or matters which had been held by HH Judge M. Chan as irrelevant, including matters relating to the previous DARs, complaints to the Commissioner and appeals to the AAB, and allegations of theft, handling stolen goods and perverting the course of justice.

13.Even if the interrogatories are relevant, I do not find that they are necessary either for disposing fairly of the cause or matter or for saving costs in the present case.  This action has already been fixed for trial in November this year for 15 days.  If I were to allow the administration of these interrogatories, the Defendants will have to spend considerable time and legal costs in the preparation of the answers.  Another possible complication is that with the answers provided, it may lead to applications for further interrogatories which would lead to no end.  In my judgment, it would save much more time and costs for the Plaintiff simply to ask the 2^nd and the 3^rd Defendants about these interrogatories during cross-examination at trial (provided that they are relevant to the issues in the case), and I cannot see how the provision of these answers before the trial can be of any assistance to the preparation of this case.   Hence, I will exercise my discretion against the ordering of interrogatories.

14.These reasons alone justify the dismissal of the Plaintiff’s application.  However for the sake of completeness, I will set out some of the additional reasons why the interrogatories should not be allowed.

Specific considerations for refusing the administration of interrogatories

Appendix A

Item (I) – circumstances under which the 2^nd Defendant prepared her witness statement

15.The proposed interrogatories as to the circumstances as to how and where the 2^nd Defendant complied her witness statement are irrelevant and unnecessary.  The proposed interrogatories do not relate to any material issue in this action.  If anything, they concern only with matters of credibility, which should be dealt with by way of cross-examination at trial.

Item (II) – 1^st  special meeting of the Administration & Finance Committee

16.Sufficient details have already been given in the statements of the 2^nd and the 3^rd Defendants and Mr. Michael Chan, and there is no point in allowing the Plaintiff to administer further interrogatories in this regard.

17.The request for the proposed interrogatories also amounts to a fishing expedition to elicit evidence to be adduced by the Defendants, an attempt to identify potential witnesses and to obtain admissions of fact from the 2^nd Defendant.

18.Further, part of the interrogatories relate to issues which had already been ruled as irrelevant by HH Judge M. Chan on 23 October 2007 (see paragraphs 7 and 12 above).

19.Lastly, the proposed interrogatories do not relate to any material issue in this action.  If anything, they concern matters of creditability only, which should be dealt with by way of cross-examination at trial.

Item (III) – 9^th EOC meeting on 25 September 1997

20.Sufficient details have already been given in the statements of the 2^nd and the 3^rd Defendants and Mr. Michael Chan.   Insofar as the proposed interrogatories are directed at the two versions of the minutes of this special meeting, a detailed explanation had been given to the Plaintiff by the letter of the Defendants’ solicitors dated 13 August 2007.

21.The request for the proposed interrogatories also amounts to a fishing expedition to elicit evidence to be adduced by the Defendants, an attempt to identify potential witnesses and to obtain admissions of fact from the 2^nd Defendant.

22.Further, part of the interrogatories relate to issues which had already been ruled as irrelevant by HH Judge M. Chan on 23 October 2007 (see paragraphs 7 and 12 above).

23.Lastly, the proposed interrogatories do not relate to any material issue in this action.  If anything, they concern matters of creditability only, which should be dealt with by way of cross-examination at trial.

Item (IV) – 10^th EOC Meeting

24.The interrogatories are refused for the same reasons mentioned in respect of item (III) above.

Item (V) – interview between the Plaintiff and the 2^nd Defendant on 25 September 1997

25.This is an attempt to cross-examine the 2^nd Defendant before the trial and to seek admissions from the 2^nd Defendant, which are not good reasons for the administration of interrogatories.  Further, the Plaintiff was a party to the interview and she can give evidence herself.

Item (VI) – 2^nd special meeting held in March 1998

26.The request for interrogatories is an attempt to seek discovery and tantamount to cross-examination before trial and a fishing expedition.  Further, the proposed interrogatories only relate to evidence to be adduced by the Defendants and would only advance the Defendants’ case.

27.In fact, the Plaintiff’s supplemental statement dated 31 May 2007 has been expunged in its entirety including the parts dealing with the 2^nd special meeting of the Administration & Finance Committee.  It was held that issues relating to the DARs, complaints to the Commissioner and appeals to AAB are irrelevant to the action herein, and hence the proposed interrogatories do not relate to any material issue in the action.

28.Apart from the matter of relevancy, the 2^nd special meeting was held in the presence of the 1^st Defendant’s legal advisors and the business transacted therein is therefore protected by legal professional privilege.  Nevertheless, an extract of this meeting had been voluntarily provided to the Plaintiff.  The minutes had also been held by the AAB as not constituting the Plaintiff’s personal data.  In such circumstances, I do not see the necessity for the Plaintiff to administer further interrogatories in this regard.  Relating to the written responses for the purpose of the investigation referred to in the minutes, the 2^nd Defendant will give evidence along with the other authors of the written responses.  Hence, these should be matters for cross-examination at trial.

(VII) – destruction of the 911 memo

29.The request for interrogatories is an attempt to seek discovery and tantamount to cross-examination before trial and a fishing expedition.  Further, the proposed interrogatories only relate to evidence to be adduced by the Defendants and would only advance the Defendants’ case.

30.Further, the proposed interrogatories relate to DARs, complaints to the Commissioner and appeals to the AAB and allegations  of criminal damage, theft, handling stolen good, etc. under paragraph 43(a) of the proposed amendments to the Particulars of Claim, which have been disallowed by HH Judge M. Chan earlier on 23 October 2007, the proposed interrogatories therefore do not relate to any material issue in this action.  At best, they relate to credibility of witnesses which are matters for cross-examination at the trial.

Item (VIII) – discussion before the holding of 1^st special meeting

31.The request for interrogatories is an attempt to seek discovery and tantamount to cross-examination before trial and a fishing expedition.  Further, the proposed interrogatories only relate to evidence to be adduced by the Defendants and would only advance the Defendants’ case.

32.Further, the proposed interrogatories relate to matters raised in paragraph 42(A) of the proposed amendments to the Particulars of Claim which have been disallowed by HH Judge M. Chan earlier, the proposed interrogatories therefore do not relate to any material issue in this action.  At best, they relate to credibility of witnesses which are matters for cross-examination at the trial.

Appendix B

Items (I) to (VII) and the other interrogatories in page 1 of the Appendix

33.The Plaintiff repeats the same interrogatories but this time directed against the 3^rd Defendant.  I refuse these interrogatories for the same reasons mentioned above in respect of the interrogatories against the 2^nd Defendant.

Item (VIII) – performance at seminars

34.It is the Defendants’ case that the May 1997 seminar was only one example of the Plaintiff’s poor performance and incompetence.  Sufficient details have already been provided by the 3rd Defendant in her witness statement filed on 10 September 2003, and so it is a matter for cross-examination at trial.  Obviously, this is a fishing expedition for evidence on credibility and to obtain admissions of fact, and the proposed interrogatories are therefore wholly unnecessary.

Item (IX) – handling of complaint from Hong Kong Federation of Trade Unions

35.It is the Defendants’ case that this was another example of the Plaintiff’s poor performance and incompetence.  I refuse the interrogatories for the same reasons given in the last paragraph.

36.Based on the aforesaid, I dismissed the Plaintiff’s application for leave to administer interrogatories against the 2^nd and the 3^rd Defendants.

The Plaintiff, in person

Mr. Raymond Leung, instructed by Messrs. Baker & McKenzie, for the Defendants