DR. ALICE LI MIU LING v. DR. THOMAS WONG KWOK SHING

 HCA 155/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 155 OF 2006

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J U D G M E N T

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INTRODUCTION

1. Dr. Li was employed by a University in Hong Kong (“the University”) as an Assistant Professor from September 1992 to September 1999.

2.  The Defendant, Dr. Wong, was initially Dr. Li’s colleague, who later became her superior when he became the Acting Head of the Department.

3.  In January 1999, Dr. Li lodged a complaint to the President of the University about Dr. Wong in respect of allegations of, inter alia, sexual harassment and professional misconduct.  After investigations were concluded, the University did not find the allegations substantiated.

4.  In September 1999, Dr. Li’s teaching contract with the University was not renewed when it was expired.

5.  In January 2006, Dr. Li commenced the present action against Dr. Wong by issuing a writ with an Indorsement of Claim.

6.  On Dr. Wong’s application to dismiss the action consequent Dr. Li’s default in serving a statement of claim within the prescribed time, Mr. Registrar Chan (as he then was) on 6 April 2006 declined to dismiss the action, but ordered Dr. Li to file her Statement of Claim within 21 days, failing which (as further ordered by the Registrar) the Indorsement of Claim was to be treated as the Statement of Claim.

7.  No Statement of Claim was filed in according with the time limit stipulated by the Registrar. Hence, in accordance with the Order of the Registrar, the Indorsement of Claim has now become the Statement of Claim.

8.  Dr. Wong on 25 July 2008 applied under Order 18 rule 19 of the Rules of the High Court to strike out the claim on the ground that (i) it discloses no reasonable cause of action; (ii) it is frivolous or vexatious; and (iii) it is otherwise an abuse of process of the Court.  The summons also cites the inherent jurisdiction of the court as one of the grounds for striking out.

9.  In opposition to Dr. Wong’s striking out summons, Dr. Li in her affirmation filed on 8 November 2008 exhibited an Amended Statement of Claim (“ASOC”) containing substantial amendments.

10.  This prompted Dr. Wong to issue a summons on 21 November 2008 under Order 20 rule 4 for an order disallowing the amendments.

HEARING

11.  At the hearing for the two applications, Dr. Li acted in person, and was accompanied by her husband. Upon her request, I allowed her husband to act as her Mackenzie friend.  She had therefore been assisted by her husband throughout the hearing.

12.  During the course of the hearing, and with the consent of Mr. Tang, counsel for Dr. Wong, I further granted leave to Dr. Li to file the ASOC annexed to her said affirmation on 8 November 2008.

13.  By virtue of the leave having been granted to Dr. Li to allow her to file the ASCO, Dr. Wong’s second application to disallow the ASCO literally falls by the wayside.  Hence, I make no order in respect of paragraph 1 of Dr. Wong’s second summons for disallowing amendments. I will deal with the costs of this summons at the end of this judgment

MAIN ARGUMENT FOR STRIKING OUT

14.  At the hearing, Mr. Tang’s primary attack of the ASOC is on the points of lacking jurisdiction and time bar.

15.  The jurisdictional attack is in respect of the claim for sexual harassment. The sexual assessment allegations, according to the ASOC, took place between November 1992 and January 1999.  Mr. Tang submits that by virtue of section 23(3) of the Sex Discrimination Ordinance (Cap.480) (“SDO”), a claim for sexual harassment is within the exclusive jurisdiction of the District Court.  Further the action is already time-barred by section 86 of the SDO, which requires an action to be brought in the District Court within 24 months.

16.  As to the other causes of action of Fraud, Malicious Falsehood, Conspiracy to Injure/Defraud Mr. Tang identified, it is submitted on behalf of Dr. Wong that these claims were already statute barred when the writ was issued because the underlying allegations had taken place between March 1993 and March 1999, which are beyond the limitation period of 6 years.

17.  Mr. Tang further submits that the ASOC does not disclose any loss or damage suffered by Dr. Li.

DR. LI’S CONTENTION

18.  Dr. Li has not submitted any written argument before the hearing.  Her oral submission (if I may say so) was more like giving evidence because Dr. Li has repeatedly used the submission as a forum to harp on her unhappy relationship with the University as well as with Dr. Wong.

19.  During the oral submission, Dr. Li produced two letters from the Office of the Privacy Commissioner for Personal Data  (“PCDA”) in March 2001 and the Equal Opportunities Commission (“EOR”) in July 2002 – both of which letters were in connection with her complaints against the University and Dr. Wong.  Strictly speaking these documents, had Dr. Li wished to rely on them (and she has in fact relied on them), ought to have been adduced by way of affirmation.  However, since Mr. Tang did not object to their production, I therefore allowed Dr. Li to produce them as part of her case.

20.  In answer to Mr. Tang’s jurisdictional attack, Dr. Li has suggested this court to transfer the part of the claim on sexual harassment to the District Court.

21.  Regarding Mr. Tang’s attack on the time limit, Dr. Li submitted that the court should consider her plight, and disapply the limitation period under section 26 of the Limitation Ordinance (Cap. 347).  Further, Dr. Li has alluded to the investigation made by the PCDA in relation to the complaint she had made to the latter, which investigation she claimed did not finish until sometime after April 2002.  Hence, she submitted that her other  claims should be within time.

DISCUSSION

Applicable principles

22.  The principles as deduced from the previous decisions for a striking out application are succinctly summarised in the Hong Kong Civil Procedure, 2009 at pages 350 to 359 (copies of which were provided to Dr. Li and her husband by Dr. Wong’s solicitors under my direction).

23.  Shortly stated, a court will only strike out the indorsement on a writ or a pleading when it is plain and obvious.  If the court - after having considered the matters (which are assumed to be true) stated in the pleading - comes to a view that the claim is obviously unsustainable, and the pleadings are unarguably bad, and that it is impossible for the claim to succeed, it can then strike out the pleadings or the claim.

Dr. Li’s claim

24.  The ASOC is extremely long, consisting of 42 pages, and has a total of 24 paragraphs (and 2 of the paragraphs are prayer) with numerous sub-paragraphs.

25.   The content of the ASOC - with repetitions and minute details of the complaints Dr. Li made against Dr. Wong during her employment with the University- is difficult to understand.  In order to understand what in fact is Dr. Li claiming, I will in the paragraphs below summarize her claims or allegations as set out in each of the paragraphs of the ASOC.   

26.  Paragraphs 1 to 4, which set out her employment with an outline of the various allegations against Dr. Wong, appear to be a general introduction to the claim

27.  Paragraph 5 lists out five different heads of claim.  They are in sub-paragraphs (a) to (e), and plead as follows:

(a)    Unlawful Acts of Sexual Harassment;

(b)   Fraud and Conspiracy to Defraud;

(c)   Malicious Falsehoods;

(d)   Deception and Fraudulent Misrepresentations;

(e)    Breach of the Sex Discrimination.

28.  Paragraph 6 – which occupies a total of 17 pages of the pleading (from page 2 to page 18 of the ASOC) and is divided into numerous sub-paragraphs as well as sub-sub-paragraphs - contains examples of sexual harassment allegations.  The instances of sexual harassment set out in this paragraph allegedly took place during the period of Dr. Li’s employment with the University from 1992 up to the events leading to the non-renewal of her teaching contract in September 1999.

29.  Paragraph 7 alludes to the alleged fraudulent and malicious use of some materials called “CEB 1998/99” of the University by Dr. Wong in abuse of his position as the then Acting Head of the Department for the purpose of carrying out his intimidation towards her for Dr. Wong’s “sexual agenda”.   It is in 9 sub-paragraphs, and contains details of the alleged use of the said “CEB” materials by Dr. Wong.

30.  Paragraph 8 pleads to fraud and conspiracy to defraud.  In the six pages of the pleading, this paragraph similarly contains numerous sub-paragraphs.  Broadly speaking, Dr. Li’s alleged that:

(i)      Dr. Wong has conspired with the New Head of Department against her regarding the supervision of Dr. Li’s PhD research programme;

(ii)    The University was in possession of false materials about Dr. Li, who only came to know about them when requests for data were made to PCDA. 

(iii)  The Head of Department’s comments about Dr. Li’s teaching performance were “covert and deceitful”, and further that she had suppressed the truth from Dr. Li.

31.  Paragraphs 9-15, 20 and 21 similarly contain numerous sub-paragraphs, and they list out a number of alleged instances of fraudulent, deceitful, false and malicious acts allegedly committed by Dr. Wong (also by the University) in order to cover his “immoral and unlawful acts of sexual harassment”.

32.  Paragraphs 16 to 19 are mainly allegations against the University only.

33.  Paragraphs 22 to 23 pray for damages for bringing her personal reputation into public disrepute, intentional infliction of pain, suffering distress etc. as well as for damages to lawful rights.

34.  In the concluding paragraph 24, Dr. Li recapitulates the different causes of action of the ASCO.  In addition to the five heads of claims as pleaded in paragraph 5 of the ASCO, Dr. Li further introduces two new heads of claim for trespass as well as for oppression and torture.

Analysis of the claim

35.  The ASOC is difficult to understand not because it is exceptional lengthy, it is, without disrespect to Dr. Li, extremely convoluted.

36.  The court however will not strike out a pleading just because it is bad or verbose; it has to be plainly and obviously unsustainable and arguably bad.

37.  So far as the claims in respect of sexual harassment, fraud, malicious falsehood, conspiracy to injure/defraud Mr. Tang has identified in his written submission, I agree with him entirely that they are all time barred.  Further, I also agree with Mr. Tang that the sexual harassment claim- according to my decision in a case concerning whether a sexual harassment claim should only be brought in the District Court[1] - should only lie within the exclusive purview of the District Court by virtue of the SDO. 

38.  Dr. Li’s reliance on s.26 of the Limitation Ordinance for dis-applying the limitation, in my view, cannot save her claim.  The contention that the alleged fraud and suppression of the relevant information by the University has prevented Dr. Li from instituting the proceedings within the 6 years’ period (assuming these allegations were all true) would not have assisted her.  It is because the said allegations that form the basis of her claim against Dr. Wong, according to the ASCO, were already within her knowledge before her teaching contract expired in September 1999. 

39.  In deciding if Dr. Li’s submission of concealment and fraud could give her a reasonable chance of overcoming the limitation hurdle, I have considered all the additional materials (the letters from the Office of the PCPA and the EOC) as well as her submission in their most favourable light.  However, I am unable to find anything - evidence or otherwise - that supports her assertion that she was not aware of the alleged wrongful acts of Dr. Wong until after the investigations of her complaints made respectively to PCDA or EOC were concluded. The pleading plainly contradicts this assertion.

40.  For completeness sake, I further note that in the ASCO, a claim for misrepresentation/deceit is also alluded to, but not identified by Mr. Tang in his written submission.  Similar to the other heads of tortious claims, I find that that it should have also been time-barred.

41.  Further, in the prayer at paragraph 24 of the ASOC, Dr. Li (for some strange reason) only introduces new claims for trespass as well as torture and oppression for the first time.  I find that the claims are not only anomalous to the ASOC, they are obviously unsustainable as there was nothing to support the basis of the claims. 

42.  A tortious claim of trespass to person according to the authoritative practitioner’s book of Clerk & Lindsell on Torts is defined as “interference with a person’s elementary civil right to security of the person, and self-determination in relation to his own body” and it “may take three forms, assault, battery and false imprisonment.”[2]  The ASCO does not have any particulars capable of supporting a claim of trespass.

43.  A claim for torture and oppression is not a recognizable cause of action in the law of torts.  Hence such pleading is unarguably bad.

44.  In addition to the limitation difficulty, paragraphs 16 and 19, as set in paragraph 27 above are obviously bad as the allegations only concern the University. The allegations may have been the subject matter of a separate claim she has brought against the University in the District Court, they are however plainly irrelevant to the present claim against Dr. Wong.           

45.  After very careful analysis of the ASOC, I am of the view that the pleading contains numerous vexatious materials. It would be, in my view, an abuse of process should Dr. Wong continue to be vexed with such a frivolous claim.  Hence, in light of the conclusion I have come to, should I be found to have been wrong with the above analysis on the issues of jurisdiction and time limit, I would further exercise my inherent jurisdiction to strike out the ASCO as well as the claim.

ORDER ON THE STRIKING OUT SUMMONS

46.  I order that the ASOC be struck out.  The action is also dismissed.

47.  It is an established principle in civil proceedings that costs should follow the event.  A winning party should be awarded his reasonable costs unless there are special circumstances to deprive his costs.

48.  In this application, I am unable to find any reason in not following the usual order for costs.  As Dr. Wong is the winning party, he should have the costs of the summons for striking out, and the costs of the action, which should include all costs previously reserved. I so order.

49.  As Dr. Wong was represented by counsel at the hearing, I see it fit, in view of the nature of this case, to certify counsel’s attendance.  I therefore further grant a certificate for counsel.

50.   If the parties cannot agree on the amount of costs, I order that the costs are to be summarily assessed in lieu of taxation.

51.  The costs order in favour of Dr. Wong shall be nisi. According to Order 42 rule 5B of the Rules of the High Court, an order nisi as to costs shall become absolute 14 days after the written judgment being handed down unless an application has been made to vary that order.

52.  I am told that Dr. Li now resides in UK, and she is due to return to UK with her husband on the same day of this judgment handed down. I therefore direct that more time be allowed for an application to vary the nisi costs order.  I direct that the costs order nisi to become absolute 28 days from the date of this judgment.

53.  I further direct that new Practice Direction 14.3 Part C (1), in addition to the further directions I now give below, should also govern the procedure for the summary assessment.

ORDER OF THE 2^ND SUMMONS

54.  As Dr. Wong has succeeded in striking out the entire claim, I take the view that he should also be awarded the costs of the summons.  Further, since this summons has substantially overlapped the striking out summons, and it was in fact directed to be heard together with the latter, I order that the costs order should be in the same terms as the striking out summons.

SUMMARY OF THE COSTS ORDERS AND DIRECTIONS

(1)       Costs orders nisi that the Plaintiff do pay the Defendant’s costs of the striking out summons, of the action and of the summons for disallowing amendments (including all costs reserved) together with certificate for counsel, which costs are to be summarily assessed in lieu of taxed costs.

(2)   The orders nisi to costs shall become absolute 28 days after the judgment (that is on 4 May 2009) unless an application is made before 4 May 2009 to vary the orders nisi.

(3)   Upon the orders nisi becoming absolute, and that the amount of costs cannot be agreed, the receiving party shall prepare a statement of cost in the format of Appendix A of P.D. 14.3, which together with the skeleton arguments are to be lodged and served on the paying party.

(4)   The paying party who wishes to object to the payment of any items of costs shall within 14 days thereafter likewise lodge and serve a statement of grounds in opposition to the statement of costs.

(5)   Upon the documents in paragraphs (3) and (4) above having been lodged with the court, the summary assessment of the costs shall be disposed of on paper without an oral hearing.

(6)   In addition to the directions given above, Practice Direction 14.3 dated 12 February 2009, Part C (1) shall govern the procedure for summary assessment of costs.

(7)   For the avoidance of doubt regarding service on Dr. Li, I direct that service should be by e-mail and by post to her address in UK.

[1] Sunny Tadjudin v Bank of America, National Association, unrep. ( HCA322 of 2008), D.O.J 28 Oct. 2008.

[2] Clerk & Lindsell on Torts, 19 ed., para.15-01