姚寶昌 對 統計處處長及另一人

HCA 1120/2012

香港特別行政區

高等法院

原訟法庭

民事訴訟2012年第1120號

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判案書

引言

1.兩名被告人以原告人就同一事宜，第三次入稟高等法院為理由，申請剔除其申索陳述書及撤銷本案；另外，原告人則認為兩名被告人並未有依時提交抗辯書，因此要求獲判勝訴。本席將兩項事宜，一併審理。

背景

2.1979年，原告人入職政府統計處，約6年後至1985年，升級為外勤統計主任，至2004年11月，獲批提早退休。

3.2004年11月17日，原告人隨即向政府統計處提出HCA 2619/2004一案〔“第一樁案件”〕，從其代表律師及大律師準備的申索陳述書指出，原告人多年的考勤報告，在不知情下，被有系統及長期地修改致對他不利，因而失去晉升機會，於是索償：

“ (a) all the financial (and including the consequential) losses and mental suffering that the Plaintiff had incurred at the material times since 1995 as a result of; the Promotion Board being misled by the Defendant who had placed before them the unauthorized and/or improperly amended appraisal reports of the Plaintiff to his disadvantages without his knowledge for their consideration of the Plaintiff’s promotion, hence depriving the Plaintiff’s chances of being recommended for promotion in 1995 and onwards; and

(b)  the psychiatric injury that he had suffered as a result of his knowledge of the unauthorized and/or improper amendments in his appraisal reports to his disadvantages without his knowledge since 1988 to 1995 or onwards till he retired in November 2004 and thereafter.”

（申索陳述書第5段）

4.就兩項事宜，原告人分別要求約$5,000,000.00及有待評估的損失。

5.2006年3月10日，應政府統計處申請，龍聆案官剔除第一樁案件，並拒絕原告人修改申索陳述書，加入“惡意”指控訟因等等事宜。其後，雖然原告人就此曾經上訴，但是最終同意撤回，兼付訟費。

6.2007年4月18日，原告人再委託律師、大律師等第二次入稟本院，提出HCA 753/2007〔“第二樁案件”〕，再向政府統計處興訟，就其考勤報告被“惡意”修改等等事宜，致使失去升級公平機會，再作指控，據其修訂申索陳述書第78-80段，他認為：

“ 78. But for what is pleaded hereinabove in Paragraph 75, the Plaintiff should have been promoted and/or well considered to be promoted to the rank of SCSO.

79. (a) Since the Plaintiff was deprived of a fair and proper chance of being considered for promotion in the Department, he began to develop the problem of depression from or about December 2003 with proof of the government doctors’ medical certificates.

(b) by the time the Plaintiff had full access to his previous appraisal and promotion board reports (Sub-paragraph 8(c) hereinabove refers) in or about April 2004, his problem of depression deteriorated and aggravated.

Particulars of symptoms arising from Depression

i. Severe psychological stress/anxiety;

ii. No feeling of happiness, pleasure, expectation and hope;

iii. …

(c) In or about December 2003, the Plaintiff upon medical advice from the Psychiatric department of Pamela Youde Nethersole Eastern Hospital applied to Department for early retirement; and the same was well considered, accepted, approved and granted by the Department.

(d) The Plaintiff eventually retired at the age of 51 on or about 18^th November 2004.

80. (b) Owing to the early retirement as pleaded hereinabove in Sub-paragraph 79(b), the Plaintiff has suffered loss and damages.

Particulars of Loss and Damages

A.	Loss of salaries/ pension	HK$4,165,524
B.	Loss of lump sum available to the Plaintiff arising from the difference in retirement ages (51 & 55)	HK$375,963.00
C.	Loss of Long service trip	To be calculated upon discovery of documents from the Defendant
D.	Loss of Housing Allowance available to the Plaintiff for 10 years (ie. from 1995 to 2005)	HK$33,000 in approximate amount

…”

7.同樣地，政府統計處要求剔除第二樁案件。

8.2008年2月1日，余聆案官同意原告人沒有披露合理訟因，因此剔除第二樁案件。

9.原告人亦聘請大律師提出上訴，高等法院張舉能法官（當時官階）在2008年6月10日，首先拒絕修改狀書申請，他認為大律師擬提出的新指控（misfeasance in public office, bad faith, dishonesty…）等等，皆為嚴重事宜，在未有任何重要事實及細節（material facts or particulars）的情況下，不得接受；另外，他亦同意余聆案官剔除原告人第二樁案件的原因。

10.原告人仍然不服，自行向上訴庭再次上訴。

11.2009年5月13日，上訴庭頒下書面裁決，駁回有關上訴。眾位法官拒絕原告人在未有遞交任何修訂草稿下，申請修改申索陳述書及加入其他興訟人，在詳細分析原告人的案情、第一及二樁案件的原委、經過，說明原告人歸根結底（heart of those actions）為政府疏忽或惡意地，修改其評估報告，引致他受到傷害。第一樁案件既被剔除，其上訴又已撤回，第二樁案件已屬濫用司法程序。

“15. It will have become apparent from the outline of the 2004 action and the present action and the claims made in the two actions (leaving aside the allegation of “malice” in the present action which is dealt with below) that at the heart of those actions are the plaintiff’s allegations that his appraisal reports had been amended without his knowledge or consent and that such amendments/alterations could not have been made without fault on the part of the Government, either through breaching the employment contract with the plaintiff or acting negligently.

16. The appraisal reports upon which those allegations are based are none other than those that had been made available to the plaintiff several months prior to the commencement of the 2004 action.  The plaintiff’s allegations had been fully ventilated before Master Lung in the 2004 action and addressed in the reasons he gave for striking out the 2004 action in March 2006. Plainly, that decision has become final, having regard to the fact that the appeal was withdrawn almost 3 years ago. Any further appeal would require leave which, in the circumstances, would not be granted.

17.     It is an abuse of process for a party to initiate legal proceedings for the purpose of mounting a collateral attack upon a final decision against him which has been made by another court of competent jurisdiction in previous proceedings in which he had a full opportunity of contesting the decision in the court by which it was made.

18. …

19. In my view, in substance, claims (1) to (3) of the present action (see §7 above) repeat the claims made in the 2004 action. Such changes as have been made are purely as to form. It constitutes a collateral attack on a final decision and, as such, is an abuse of process within Hunter.

20. The only “new” matter in the present action is the bald allegation of “malice” in paragraph 75(d) of the amended statement of claim. But the “new” matter did not arise from any new information obtained by the plaintiff after the date of the 2004 action. Rather, the basis of the “malice” allegation is none other than the appraisal reports made available to the plaintiff months prior to the 2000 an action.

21. In Yat Tung investment Co Ltd v Dao Heng Bank Ltd & Another (1973-1976) HKC 194 at 200I-201E, it is stated as follows:

“...it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115, where the judge says:

...where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

The shutting out of a ‘subject of litigation’－a power which no court should exercise but after a scrupulous examination of all the circumstances －is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse nevertheless ‘special circumstances’ are reserved in case justice should be found to require the non-application of the rule.”

I consider that the circumstances of the present case are such as to fall squarely within the Yat Tung principle.

...”

12.再之後，原告人要求上訴許可至終審法院，但分別在2010年11月23日及2011年12月19日被上訴庭及終審法院上訴委員會駁回。

13.2012年6月28日，原告人再又就其考勤報告事宜，第三次入稟本院，提出本案，除政府統計處外，律政司亦列作第二被告人，之後，兩名被告人隨即提出剔除申請，而原告人則要求獲判勝訴。

14.有關事宜安排在本席席前處理，兩名被告人由政府張律師代表，而原告人則自行出席，在聽取雙方陳述後，本席押後案件以書面判決。

判決及理由

15.在考慮各方呈堂證據、法理闡釋及口頭陳述後，本席同意兩名被告人的申請及張律師的說法。

(a)  原告人的實質“訴因”仍是源自其“被修改的考勤報告”，這從其近數百頁的申索陳述書連附件中可看得出。

“a) The Brief Summary of the P’s case

1) The P lodged complaints against the D for improper operated the Promotion Policy in the department. … The D took revenge on the P by making adverse & unbalanced adjustments and assessments on the P’s appraisal reports from 1985 to 2001 behind the P’s back and without informing the P before May 2003.

2) …

3) The DDS (personnel) told the P that the D picked up the P’s file before the convening of the 1994 SCSO Promotion Board whence no Privacy Data Ordinance in Hong Kong.

4) All those adverse & unbalanced alternations and additions were made in the P’s appraisal reports only disclosed to the P from May 2003 to April 2004, thus making the P extremely distress upon his discovery of the systematic and prolonged improper & unbalanced amendments and additions to his disadvantages, being made to the originally assessed appraisal reports by his superiors during the prevailing appraisal interviews.

5) The D not only damaged the career prospect of the P but also forced the P early retired by all possible and devious office politic means.

6) …

By reasons of the matters aforesaid:-

9) The Ds had wrongfully contravened the employment relationship regulated by statutory powers between the P and the Government as pleaded in this Writ by failing to have duly followed all those relevant CSRs, regulations and instructions concerning the appraisal & promotion of the P for the period from 1985 to 2001.

10)   …”

(b)  如張律師指出，原告人在其申索陳述書及附件中，對兩名被告人列出大量指控及一連串刑事罪行的名稱，當中亦包括在第一及第二樁案件中誤導法庭，企圖顯示本案與過往的訴訟不同，但實無濟於事，按“一案不能兩（甚至“三”）審”的原則，本案應被中止。

(c)  原告人曾指出，他是在2007年後才得到足夠文件，因此才能提出本案，不過，當本席詢問他為何不在第二樁案件上訴時（即2009-2011年）提出，他則無言以對。

(d)  最後，有關已超越《時限條則》第4條的規定，原告人解釋“criminal offence is not subject to time-bar”當然未能說服本席，原告人首先只是提請民事案件，而且他本身亦沒有任何法定身份（locus）提出刑事案件或檢控。

結論

16.綜合上述而言，本席頒令：

(a)  拒絕原告人要求勝訴的申請。

(b)  剔除本案中原告人的申索陳述書。

(c)  撤銷本案。

訟費

17.另外，張律師提議以簡易評估方式處理訟費，以時薪$2,900計算（2003年成為律師）及用了約7.5小時工作時間（3.5小時準備文件、1小時閱讀及3小時過堂及正式聆訊時間等等），在加上其他雜費，總數$23,659.00。對此，本席認為數額合理，應予批准，因此，亦下令：

(d)     原告人須支付兩名被告人本案及剔除申請〔包括容後待決及2013年1月21日聆訊當天〕的訟費，簡易評估為$23,659。

原告人:無律師代表，親自出席。

第一及第二被告人:由律政司張文蓮政府律師代表。