Sit Ka Yin Priscilla v. Equal Opportunities Commission and Others

DCEO11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 11 OF 1999

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Before: H H Judge Lok in Court

Date of Hearing: 3 November 2008

Date of Ruling:  3 November 2008

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R U L I N G

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1.Today is the first day of the trial of a discrimination claim which was fixed for 15 days.

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.  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 2nd and the 3rd Defendants were respectively the chairman and the chief executive of the 1st Defendant.

4.This case has a long history.  The Plaintiff’s alleged cause of action accrued before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements, and there was total inaction on the part of the Plaintiff in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue 2 Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

5.The Plaintiff was previously a qualified solicitor.  Her claim had all along been handled by a firm of solicitors until 28 September 2006 when she filed a Notice to Act in Person.

6.The present trial date was fixed by myself on 16 April 2008 with 15 days reserved.  On 30 May 2008, I refused the Plaintiff’s application for leave to administer interrogatories and fixed a PTR hearing on 25 September 2008.

7.On 23 September 2008, the Plaintiff sent a fax to the court.  In the said fax, the Plaintiff mentioned that she would need to seek legal advice after receiving the written reasons for my decision refusing her application for leave to administer interrogatories.  She therefore applied to adjourn the PTR hearing on 25 September 2008 and the trial date in November 2008. 

8.With the consent of both parties, the PTR was adjourned to 30 September 2008 to be heard together with the Defendants’ application to expunge certain parts of the Plaintiff’s supplemental witness statement.

9.Shortly before the PTR hearing on 30 September 2008, the Defendants received a medical certificate from the Plaintiff, stating that the Plaintiff was recommended for sick leave from 29 September to 1 October 2008 by reason of “orthopaedic condition”.  On 30 September 2008, I therefore adjourned the PTR and the Defendants’ application to expunge the witness statement to 15 October 2008.

10.On 6 October 2008, the court received a fax from the Plaintiff enclosing a letter from a psychiatrist of the Hospital Authority, stating that the Plaintiff had been admitted to Pamela Youde Nethersole Eastern Hospital on 3 October 2008 for management of “mood disorder”.  On 8 October 2008, the Plaintiff sent another fax to the court, mentioning that she wanted to adjourn the trial in November 2008.  On 9 October 2008, the court replied to the Plaintiff indicating that the hearing date on 15 October 2008 and the trial date do stand.  Further, if the Plaintiff had any specific application to make, the application had to be made by way of inter partes summons.

11.On 13 October 2008, the court received another fax from the Plaintiff, stating that she was still hospitalised in Eastern Hospital and requested to adjourn the PTR and the Defendants’ application to expunge the witness statement to another date to be fixed.  On 15 October 2008, the Plaintiff did not appear in the hearing.  By that time, I did not have any detailed information about the medical condition of the Plaintiff.  I also had no idea how long that the Plaintiff would be hospitalised or whether she still wanted to have an adjournment of the trial. 

12.Obviously, the Defendants had made considerable effort in the preparation of the trial today, including making arrangement for an overseas witness to come to Hong Kong to testify.  In the hearing on 15 October 2008, I therefore made an order that the trial date do stand.  I also directed that if the Plaintiff wanted to adjourn the trial because of health reason, she should make such application on the first day of the trial with the support of detailed medical report.  Pursuant to my direction, my order made on 15 October 2008 was personally served on the Plaintiff.

13.On 26 October 2008, the Plaintiff sent a letter to the Defendants’ solicitors, asking them to arrange for the inspection of documents after her sick leave which was extended to 10 November 2008.

14.Last night at 11.34 pm, the court received another fax from the Plaintiff, enclosing a medical certificate from one Dr Paul Lam extending her recommended sick leave to 30 November 2008.  She also applied for extension of time to file her medical report.  This morning at 10.40 am, the court received another fax from the Plaintiff, stating that she had been admitted to Pamela Youde Nethersole Eastern Hospital.

15.Taking into account this background, the question I have to consider is whether to adjourn the trial.  From the latest correspondence, I take that the Plaintiff wants to apply for an adjournment of the trial because of health reason.  However, without complying with my direction on 15 October 2008, the Plaintiff has not made a formal application to adjourn the trial and she has not produced a detailed medical report about her present medical condition.  In a way, the Plaintiff could communicate well with the court and the Defendants’ solicitor by fax, but at this stage, I have no idea about the seriousness of the Plaintiff’s medical condition.

16.In considering whether to adjourn this trial, I have taken into account that the present action is about a claim for enforcement of civil right and that the Plaintiff is suffering from some kind of illness at this moment.  On the other hand, there has been considerable delay in the prosecution of the claim and the present trial date was fixed more than 9 years after the commencement of the action.  Further, the Defendants have spent considerable effort in the preparation of the case and there is no reason why the trial should not start as scheduled.  The Plaintiff has been given repeated notices that a formal application for adjournment of the trial  has to be made with the support of a detailed medical report.  The Plaintiff has been given ample time to prepare the application.  At this stage, the court has very little information about the Plaintiff’s medical condition apart from the limited information revealed in the few sick leave certificates.  Balancing all these factors, I am of the view that the trial should proceed as scheduled. 

Plaintiff, in person, absent

Mr W M Leung, instructed by Messrs Baker & McKenzie, for the Defendants