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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DECISION

1.  On 23 October 2007, I handed down my Decision on the Plaintiff's application by summons to join 9 proposed defendants as parties and to amend the Particulars of Claim ("Decision").  On 23 November 2007, the Defendants' summons to expunge the witness statements of the Plaintiff, and the Plaintiff's summons for discovery, were heard.  This is my decision on these latter summonses.

Background

2.  The Plaintiff, Miss Sit, was employed as Director (Gender) of the 1st Defendant, the Equal Opportunities Commission since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  This action was commenced by Miss Sit against the Commission on 24 September 1999 under the Sex Discrimination Ordinance ("SDO") and the Disability Discrimination Ordinance ("DDO").  Miss Fanny Cheung, the former Chairman of the Commission, was named as 2nd Defendant.  Miss Angela Ho, the Chief Executive of the Commission, was named as 3rd Defendant. Miss Sit makes claims of disability discrimination and sex discrimination against her during the period of her employment, which she claims resulted in the termination, and claims by way of relief damages, interest and a declaration that she had been discriminated against on grounds of disability and/or sex.

I. Summons to expunge Miss Sit's statements

3.  As a result of the Decision which allowed some of the amendments proposed by Miss Sit, the Defendants have withdrawn some of their  original objections to the contents of Miss Sit's witness statement dated 9 September 2003. Miss Sit, on her part, also conceded to the deletion of some paragraphs originally contained in her statement of 9 September 2003, as a result of the remaining objections maintained by the Defendants and in the light of the Decision.  I therefore only deal with such of the paragraphs of Miss Sit's statement dated 9 September 2003 as are maintained by her and remain to be objected to by the Defendants.  These are : paragraph 18, the heading preceding paragraph 24, and paragraphs 28, 106, 111 to 114, 116 to 126.  The Defendants also seek to expunge the entirety of Miss Sit's statement dated 1 June 2007.  The grounds of the Defendants' application are that those parts of the statements should be expunged as they are irrelevant, unnecessary for the fair, just and expeditious disposal of the matter in the action and/or are inadmissible.

Miss Sit's Statement of 9 September 2003

Paragraph 18

4.  In paragraph 18 of her statement, Miss Sit referred to newspaper reports on the bad performance of the Commission under the chair of Miss Cheung.  She claimed that the Sing Tao Daily reported on the alleged seven sins of the Commission, including partiality shown to big corporations and public utility companies, its staff failing to fully understand principles of equality, rigid complaint mechanism, etc.  It would appear that Miss Sit seeks to rely on these reports to show either the Commission's bad performance, Miss Cheung's alleged inadequacies or the lack of abilities of Mr. Tong who was allegedly responsible for the "sins" referred to in the newspaper reports. 

5.  The performance and abilities of the Commission and Miss Cheung are not matters in issue in these proceedings.  Even if Mr. Tong's performance as an alleged comparator is relevant to the matters in issue in these proceedings, the reports contained in the newspapers are not evidence of Mr. Tong's abilities, or lack thereof.  For this reason, paragraph 18 should not be allowed to stand as it contains irrelevant matters which will only delay the trial of the action.

The heading preceding paragraph 25

6.  The Defendants seek to expunge the words "SDO and" from the heading.  For the reasons set out in the Decision, the Amended Particulars of Claim does not disclose any cause of action based on harassment under the SDO.  The reference to harassment under the SDO should be expunged as it is irrelevant.

Paragraph 28

7.  In this paragraph of her statement, Miss Sit referred to an example of the alleged incompetence of Miss Papadopoulos, the Commission's in-house legal adviser. 

8.  In this action, Miss Sit makes claims of the Defendants' alleged discrimination against her on the ground of her sex or disability. Miss Papadopoulos is arguably a comparator for the purposes of Miss Sit's claim of discrimination on the ground of her alleged disability.  I will allow paragraph 28 to remain as Miss Sit claims this is relevant to the work performance of Miss Papadopoulos, and the issue of whether Miss Sit had been given unfavorable treatment with reference to a comparator such as Miss Papadopoulos without Miss Sit's alleged disabilities.

Paragraph 106

9.  Miss Sit claims that as a result of various events as set out in paragraphs 102 to 105 of her statement, she had been subjected to "harassment, offensive action, humiliation, intimidation and victimization" by Miss Cheung and Miss Ho.  The Defendants seek to expunge the words "harassment, offensive action, humiliation, intimidation" on the ground that they are irrelevant, unnecessary and inadmissible.

10.  The Amended Particulars of Claim does not disclose any cause of action of harassment under the SDO.  As explained in the Decision, I only allowed an amendment concerning the claim of victimization under SDO.

11.  However, Miss Sit's claims in these proceedings include claims under the DDO.  She referred in paragraphs 5 and 9 of the Amended Particulars of Claim to discrimination against her by reason of her alleged disabilities.  She also referred in paragraph 10 to "harassment" under DDO, although with references to sections  22(2) and 22(3) of DDO.  Paragraphs 5, 9 and 10 were not the subject matter of the opposition to Miss Sit's application heard on 21 September 2007. In view of the definition of "harassment" in section 2(6) of DDO, I will permit Miss Sit to retain the references to "harassment" and "humiliation" in paragraph 106 of her statement. 

12.  Since any acts on the part of Miss Cheung and Miss Ho of alleged offensive action or intimidation do not support any other pleaded cause of action, I will allow the Defendants’ application to expunge these words in paragraph 106 as they are not relevant to the matters in question in this action.

Paragraph 111

13.  Miss Sit referred to newspaper reports in Tin Tin Yat Po dated 10 May 1997, to support her claim of the bad work of the Commission.  The newspaper reports are not evidence of the work performance of the Commission, how it was run and/or its alleged lack of transparency, even if these matters are relevant to the matters in issue in these proceedings.  I will allow the Defendants' application to expunge this paragraph as being irrelevant, unnecessary and containing inadmissible evidence.

Paragraph 112

14.  The Defendants seek to expunge the reference to Miss Cheung’s and Miss Ho’s lack of supervision of Miss Papadopoulos.  The work performance of Miss Cheung and Miss Ho, neither of whom are alleged to be comparators in Miss Sit's claims of discrimination, are not relevant to the claims made in these proceedings as disclosed and allowed in the Amended Particulars of Claim.  The Defendants' application is allowed.

Paragraphs 113 and 114(2)

15.  Miss Sit referred to criticisms made by third parties of the sexual harassment policy of the Commission, and claimed that such criticisms are attributable to the alleged incompetence and poor professional knowledge on the part of Miss Cheung, Miss Ho and Miss Papadopoulos.  These criticisms by third parties are not evidence in these proceedings, and are not relevant to the matters to be determined by the court in these proceedings.  I will not allow the Defendants' application on the ground that paragraph 113 is irrelevant, unnecessary and will delay the trial of the action.

16.  For the same reason, I will allow the Defendants' application to expunge paragraph 114 (2) of the statement which refers to the same criticism of the Commission's sexual harassment policy.

Paragraphs 116 to 122

17.  In these paragraphs, Miss Sit referred to criticisms made and dissatisfaction voiced by "various concern groups" against the Commission "under the leadership of" Miss Cheung and Miss Ho.  She referred to newspaper reports contained in the Sing Tao Daily dated 31 July 1999, in the Hong Kong Economic Journal dated 31 July 1999 and in the Oriental Daily News dated 9 April 1999, and which referred to the "sins" committed by the Commission and Miss Cheung, and their alleged mistakes, wrongdoings and performance. 

18.  The alleged mistakes made by the Commission, Miss Cheung and/or Miss Ho are not relevant to the claims of discrimination made by Miss Sit in these proceedings.  Even if they had made the mistakes claimed, the newspaper reports are not evidence of these mistakes, and the alleged mistakes they had made cannot prove that they had discriminated against Miss Sit, as claimed by her in these proceedings.  The newspaper reports are therefore irrelevant to the issues for determination at the trial of this action.  I will therefore allow the Defendants' application to expunge these paragraphs.

Paragraph 123

19.  In this paragraph, Miss Sit claimed that Miss Ho was involved in the Commission's tenders, and referred to Miss Ho's alleged lack of integrity in relation to, inter alia, her work on the Public Education and Research Committee of the Commission.  I cannot see how Miss Ho's alleged misconduct has relevance to Miss Sit’s claims of discrimination made in these proceedings.  I will allow the Defendants' application to expunge this paragraph. 

Miss Sit's statement of 1 June 2007

20.  Miss Sit's statement of 1 June 2007 relates solely to matters concerning her complaints to the Privacy Commissioner’s Office and her appeals to be Administrative Appeals Board in relation to her Data Access Requests to the Commission for the provision of her personal data.  Miss Sit's requests made under the Personal Data (Privacy) Ordinance for the provision of her personal data, how the Commission dealt with her requests, Miss Sit's complaints made to the Privacy Commissioner, and her appeals to the Administrative Appeals Board are all irrelevant to the matters in question in this action, and the issues to be determined at trial.  The matters contained in Miss Sit's statement of 1 June 2007 are therefore all irrelevant to the trial.  At most, they contain matters of argument which may be raised at trial.

21.  I allow the Defendants' application to expunge the entire statement of 1 June 2007.

II. Summons for discovery

22.  Miss Sit by her summons seeks discovery of 6 categories of documents.  The first  are the minutes of the Ninth Commission Meeting of the Commission held on 25 September 1997.  The second set of documents are the minutes of the10th Commission Meeting of the Commission held on 11 September 1997.  According to the Defendants, these documents have already been supplied to Miss Sit on 13 August 2007 and 12 July 2007 respectively.  Miss Sit did not dispute this at the hearing.  An order for discovery of these documents is therefore not necessary.

23.  The third document sought by Miss Sit is described as "L/M (6) to EOC/CR/ENQ/SDO".  I shall refer to this document as "LM6". This is apparently a document or file referred to in a Memo dated 11 September 1997 ("911 Memo") signed by nine members of the Commission's staff and addressed to Miss Ho, in which complaints were made against Miss Sit in relation to her work performance and her management of the Gender Division of the Commission.  The 911 Memo was disclosed by the Defendants, and Miss Sit has a copy of the document since 9 August 2003, as admitted in her statement dated 31 May 2007.  LM6 is not referred to in  any of the lists of documents filed by the Defendants, nor in any of the Defendants' pleadings, affidavits or witness statements.

24.  I accept the submissions made by the Defendants' counsel that since Order 24, rule 10 is not applicable, Miss Sit must show that the order for production of LM6 is necessary either for disposing fairly of the cause or matter or for saving costs.

25.  The Defendants' case is that the complaints made in the 911 Memo were not reasons for the Commission's termination of Miss Sit's employment.  This is stated in the Statements of Miss Cheung and Miss Ho.  Miss Cheung claimed in her statement that the 911 Memo did not contribute to Miss Sit's dismissal as the 911 Memo was not sent until 11 September 1997 and Miss Ho and Miss Cheung had already decided by then that Miss Sit's performance was not satisfactory, that she could not be managed,etc.  Miss Cheung claimed in her statement that she had interviewed the officers who had made the complaint, but by the time the interviews were completed, Miss Ho and Miss Cheung had already decided to call the meeting of the Commission on 24 September 1997 to table the question of whether Miss Sit's employment should be terminated, and the decision was made independently of the complaints made in the 911 Memo.  Miss Ho also claimed that the complainants subsequently agreed to her proposal to withdraw their complaint.

26.  Miss Sit's claims in these proceedings are made on the basis that the termination of her employment was a result of the Defendants' discrimination against her on the ground of her sex and/or disability.  If it is her claim that the 911 Memo or the complaints made therein is/are evidence of discrimination against her, the 911 Memo has already been disclosed.  It is not necessary for her to seek copies of LM6, which is only one document referred to in the 911 Memo.  On review of the matters in dispute as disclosed in the pleadings, I am not satisfied that an order for discovery of LM6 is necessary either for disposing fairly of the cause or matter or for saving costs.

27.  The fourth category of documents sought by Miss Sit are "minutes of some of the files that the Plaintiff had handled which exemplified the Plaintiff's shortcomings stated by the 3rd Defendant during the 1st Special Meeting".  She claims that these documents are referred to in the statement of Michael Chan Yick Man dated 3 April 2003, and filed on behalf of the Defendants.

28.  In paragraph 29 of the statement of Michael Chan dated 3 April 2003, he states as follows:

"

At the A&FC meeting, Dr. Cheung and Angela Ho said that the Plaintiff's performance was sub-standard and that it was clear to them from the quality of her work that the Plaintiff was not competent to carry out the post of Director (Gender).  Angela Ho also stated that the Plaintiff's shortcomings were exemplified in the minutes of some of the files that the Plaintiff had handled, and that she had spoken to the Plaintiff about the deficiencies in her work."

29.  Michael Chan also states in paragraph 30 of his statement, as follows :

"

Dr. Cheung gave a verbal report to Members on the overall performance of the Plaintiff.  She highlighted the Plaintiff's deficiencies in respect of her work performance, leadership, contribution to the 1st Defendant's management team, performance in public and job knowledge.  She also gave examples of the Plaintiff's performance deficiencies at work.  Some Members asked Angela Ho to elaborate on some of her points about the Plaintiff's performance and she supplemented them by giving some cases and examples."

30.  The Defendants' case is that, as explained in the letter dated 21 March 2007 from the Defendants' solicitors to Miss Sit, Miss Cheung and Miss Ho "did not refer to any physical files at the meeting on 20 September 1997" which was mentioned in paragraphs 29 and 30 of Michael Chan's statement.  The Defendants also claim that the documents in the files which allegedly exemplified Miss Sit's shortcomings have already been supplied to Miss Sit.

31.  Counsel for the Defendants argues that the request for discovery of these minutes is too vague.  He also claims that discovery of the minutes should not be ordered, because the documents sought would only advance the Defendants' case.  He relies on the authority of Air Canada v. Secretary of State for Trade [1983] AC 394, where Lord Edmund Davies states :

"

It follows that, at every stage of interlocutory proceedings for discovery, the test to be applied is : Will the material sought be such as is likely to advance the seeker's case, either affirmatively or indirectly by weakening the case of his opponent? …

It is accordingly insufficient for a litigant to urge that the documents he seeks to inspect are relevant to the proceedings.  For, although relevant, they may be of merely vestigial importance, or they may be of importance (great or small) only to his opponent's case.  And to urge that, on principle, justice is most likely to be done if free access is had to all relevant documents is pointless, for its carries no weight in our adversarial system of law."

32.   I am not satisfied that if there are minutes of files which exist, they would not necessarily advance Miss Sit's case.  If there are minutes, but they do not show Miss Sit's shortcomings, then they are relevant to the issues in dispute in these proceedings.

33.   After reviewing paragraphs 29 and 30 of the statement of Michael Chan and the letter dated 21 March 2007 from the Defendants' solicitors which referred to documents in the files having been supplied to Miss Sit but without reference to the minutes of the files referred to by Michael Chan in his statement and referred to by Miss Ho at the A&FC meeting, I consider that the Commission and Miss Ho should make and file affidavits to state whether minutes of the files that Miss Sit had handled and which exemplified her shortcomings, as referred to in paragraph 29 of the statement of Michael Chan, have at any time been in their possession, custody or power, and if not then in their possession, custody or power, when the respective defendants parted with the minutes and what have become of the minutes.  That is all that Miss Sit seeks at the moment.  I will further order that these affidavits be filed and served on Miss Sit within 21 days. 

34.  Counsel for the Defendants submitted that orders for discovery should not be made against Miss Cheung and Miss Ho as they have both left the Commission and clearly do not have custody, power or control of the documents.  Miss Ho made statements in these proceedings.  In her statement of 4 April 2003, she referred to many documents which have been disclosed by the Defendants.  As a party to these proceedings, it can be reasonably envisaged that Miss Ho would remain involved in these proceedings and in the preparations for trial, to the extent that she may have retained and been permitted to retain copies of documents relevant to these proceedings or her role in these proceedings.  If she is not in possession, custody, or control of the minutes referred to in paragraph 33, she can simply make an affidavit and so state.  I do not make an order for discovery of the minutes against Miss Cheung, as (according to the statement of Michael Chan) the minutes were referred to by Miss Ho at the AF&C meeting, and not by Miss Cheung, so it is not likely that Miss Cheung would have retained copies of the minutes in question after she left the Commission.

35.  The fifth category of documents sought by Miss Sit are "speeches prepared and/or drafted by the Plaintiff to the 2nd Defendant".  These are documents referred to in paragraph 11 (b) of the statement of Miss Cheung dated 4 April 2003, where she states :

"

As Chairperson I had to give talks to the public on gender and disability issues.  Usually a speech would be drafted by a Senior Equal Opportunities Officer and checked by the Division's director.  Speeches drafted for me by the Plaintiff's staff were of a poor standard, and included grammatical errors and typos, which indicated to me either that they had not been checked by the Plaintiff, or that she could not spot basic mistakes or improve on them.  In effect, I had to do the proof-reading myself.  The conceptual bases of the drafts submitted by the Plaintiff was sometimes also wrong, and the Plaintiff did not pick up these mistakes, either."

36.  Counsel for the Defendants argued that the documents sought are not properly identified, and the requests for discovery are too wide so as to be oppressive.  He claims that Miss Ho did not in her statement referred to any particular speech prepared by Miss Sit, and that Miss Ho was simply giving an impressionistic view of Miss Sit's work on the speeches.  Counsel also relies on the authority of Air Canada referred to above, and claims that the speeches would only advance the Defendants' case.

37.  Considering the context in which Miss Ho referred to the speeches prepared by Miss Sit, I agree with counsel for the Defendants that the request made by Miss Sit for speeches which she had prepared for Miss Ho is too wide, and that to require the Defendants to make discovery of all the speeches which Miss Sit and her staff had prepared for Miss Ho would be oppressive, considering the probative value, if any, of the documents in question. 

38.  I do not consider that an order for discovery of the speeches sought is necessary either for disposing fairly of the cause or matter or for saving costs. 

39.  Finally, the seventh category of documents sought by Miss Sit are "questionnaires from seminars in May 1997 and English translations".  The Defendants claim that the documents have been supplied to Miss Sit on 12 July 2007, and Miss Sit did not dispute this at the hearing. An order for discovery will not be necessary. 

Conclusion

40.  The Defendants' summons to expunge Miss Sit's statements has been substantially allowed.  Miss Sit's summons for discovery has been substantially disallowed, with the exception of the order I made in paragraph 33 above.  The costs of and occasioned by these 2 Summonses, including the costs of the hearing on 23 November 2007, should be paid by Miss Sit to the 1st to 3rd Defendants, with certificate for counsel, to be taxed if not agreed.

Language

41.  Although Miss Sit made submissions at the hearing in Chinese, all her statements were prepared in English.  Hence, this Decision is in the English language.  If necessary, Miss Sit may apply for a Chinese translation of this Decision.