Read the full judgment text of CACV 210/2009, CACV 211/2009, CACV 212/2009, CACV 213/2009, CACV 214/2009, CACV 215/2009, CACV 216/2009, CACV 217/2009 on BabelCite. This Court of Appeal judgment was delivered on 10 March 2010 before Ma CJHC, Kwan JA, Andrew Cheung J.
Civil procedure – striking out – conspiracy to injure by unlawful means – pleadings – whether statements of claim disclose a sustainable cause of action – economic tort – intention to injure – loss and damage. The Plaintiffs, Filipino nationals recruited to work in Hong Kong as process engineers, signed two employment contracts: a 1st Contract stating a higher salary (HK$18,000–$21,000 per month) used to obtain employment visas from the Immigration Department, and a 2nd Contract reflecting the actual salary (HK$10,000 per month) under which they were in fact paid. The 2nd Defendant, the 1st Defendant's Director of Quality Assurance, recruited them. In 2007 the fraud on the Immigration Department came to light; the 2nd Defendant was prosecuted and convicted at Shatin Magistrates' Court of conspiring with the Plaintiffs to defraud the Immigration Department and sentenced to six months' imprisonment. Seven of the Plaintiffs had previously brought Labour Tribunal claims for underpayment of wages on the basis of the 1st Contract, which were struck out for want of prosecution. The Plaintiffs then commenced eight actions in the District Court pleading the economic tort of conspiracy to injure by unlawful means. The 1st Defendant applied to strike out the Statements of Claim; H H Judge Simon Leung dismissed the application, but granted leave to appeal. Held, allowing the appeals: (1) The tort of conspiracy to injure by unlawful means requires, as essential ingredients, an agreement, an intention to injure (which need not be the predominant motive where unlawful means are used), acts pursuant to the agreement, and damage: Lonrho Plc v Fayed and Others [1992] 1 AC 448; Revenue and Customs Commissioners v Total Network SL [2008] AC 1174; OBG Ltd and another v Allan and others [2008] AC 1. (2) On the pleadings as they stood, the Plaintiffs received precisely the salary under the very contract they pleaded to be the true agreement, so the pleaded loss (the difference between the two contracts' salaries) could not rationally arise and the pleading disclosed no intention to injure, rendering it demurrable. (3) Counsel's reformulation of the cause of action at the hearing, based on an alleged expectation of remuneration under the Migration for Employment Convention 1949, was not pleaded, was not supported by the affidavits, was inconsistent with the Plaintiffs' interviews with the Immigration Department and with their earlier Labour Tribunal pleadings, and defied logic and commonsense; it could not be allowed to stand. (4) There was no realistic prospect of the defects being cured by further amendment. Amended Statements of Claim struck out; the eight actions dismissed; consequential costs orders in favour of the 1st Defendant.
Legal issues: Whether the Statements of Claim disclose a sustainable cause of action for conspiracy to injure by unlawful means · Whether the Plaintiffs' reformulated cause of action based on the Migration for Employment Convention 1949 could save the pleadings
Outcome: Appeals allowed; Amended Statements of Claim struck out and the eight actions dismissed against the 1st Defendant.
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