IU PO CHEUNG v. THE COMMISSIONER FOR CENSUS AND STATISTICS

CACV 240/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2008

(ON APPEAL FROM HCA NO. 753 OF 2007)

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J U D G M E N T

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Hon Le Pichon JA:

1.  This is an appeal by the plaintiff from an order of A Cheung J dated 10 June 2008 dismissing the plaintiff’s appeal from an order made by Master Yu striking out the amended statement of claim.  The plaintiff appeared in person.  At the conclusion of the appeal hearing judgment was reserved which we now give.

Background facts

2.  The plaintiff used to be a Census and Survey Officer (“CSO”) working in the Census & Statistics Department.  He was first appointed as an Assistant CSO in 1979 and was promoted to the rank of CSO on 1 January 1985.  He applied for early retirement in January 2004 and retired in November 2004.

3.  Between May and July 2003, appraisal reports for the years 1989 to 1993 (inclusive) were made available to the plaintiff upon his application.  In April 2004, the appraisal reports for 1985 and 1998 were also made available.

4.  The plaintiff issued proceedings on 17 November 2004 in HCA 2619/2004 (“the 2004 action”) claiming that the defendant and his agents had breached the conditions of his employment contract by failing to assess his performance in “a fair, orderly and transparent manner, leading the [p]laintiff to be deprived of his chance of promotion”.  Paragraph 5 of the statement of claim in the 2004 action reads:

“5.    The Plaintiff claims damages against the Defendant for :-

(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 (sic) to his disadvantages without his knowledge since 1988 to 1995 or onwards till he retired in November 2004 and thereafter.”

5.  On 10 March 2006, Master Lung struck out the 2004 action and refused the plaintiff’s application to be allowed to plead malice against his superior officers, malice having been specifically disclaimed in the skeleton submissions of the plaintiff’s counsel.

6.  The plaintiff appealed the master’s decision.  The matter came before Burrell J on 7 June 2006.  During the hearing, the plaintiff withdrew his appeal.  According to the judge’s notes, the plaintiff withdrew the appeal

“in order to consider recommencing his action with “substantial” amendments to the original statement of claim, such amendments to include allegation of malice (if so advised).  Plaintiff reserves the right to include existing allegation from the present statement of claim in the new statement of claim if so advised.”

7.  On 18 April 2007, the plaintiff brought a fresh action (being the present action) against the defendant claiming that the defendant had (1) breached the employment contract between the plaintiff and the defendant; (2) breached “statutory duties and/or official duties” it owed the plaintiff; (3) acted negligently concerning the appraisal and promotion of the plaintiff; and (4) made adverse alterations or additions to his appraisal reports with “malice”.  The statement of claim was amended on 18 May 2007.  In essence, the plaintiff’s complaints concern the loss of a fair opportunity to be promoted through the manner in which his appraisal reports and related assessments had been handled.

8.  In so far as the allegation of “malice” is concerned, that is to be found in paragraph 75 (d) of the amended statement of claim which reads:

“(d)  Further or alternatively, the aforesaid adverse alternations (sic) or additions made to the 1985 to 1993 Appraisal Reports as pleaded hereinabove were made at the material times by the Defendant or its officers or its servants or its agents with malice, calculated to deprive a proper chance of appraisal and promotion for the Plaintiff, as an adverse response and/or revenge for the Plaintiff’s complaints, particulars of which have been stated in paragraph 7 above.”

9.  Master Yu struck out the amended statement of claim in February 2008 on the ground that it did not disclose any reasonable cause of action.

10.  The appeal from the Master Yu’s order came before A Cheung J on 10 June 2008.  At that hearing, counsel for the plaintiff applied to amend the amended statement of claim that had been struck out by the master by the inclusion of “paragraph 75A” which was set out only in the plaintiff’s skeleton submissions.  That paragraph sought to plead a cause of action based on misfeasance in public office.  The judge dealt first with this matter and disallowed the application to amend.  As appear from paragraphs 4-6 of his judgment, he did so essentially because the pleading was wholly deficient, having regard to the constituent elements of the tort of public misfeasance considered in detail by Ribeiro JA (as he then was) in Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324.

11.  There is no appeal to this court from that refusal as is clear from the plaintiff’s notice of appeal and supplemental notice of appeal.

12.  The judge then went on to deal with the substantive appeal against Master Yu’s order striking out the amended statement of claim.  He noted the concession made by the plaintiff’s counsel that, at all material times, the employer of the plaintiff was the then Hong Kong Government and, subsequently, the Government of the Hong Kong SAR rather than the defendant to the present action, namely, the Commissioner Census and Statistics.  He dismissed the appeal on the basis that there could be no valid complaint for breach of contract of employment against the Commissioner.

This appeal

13.  As a matter of record, I should state that at the appeal hearing this court dealt, first, with the plaintiff’s application (which was opposed) for leave to file and serve his third affidavit sworn on 14 April 2009.  It would appear that the third affidavit was intended, inter alia, to cure what was perceived to be the defects in the amended statement of claim.  However, no draft of any proposed amendments to the amended statement of claim was exhibited or placed before the court.  The plaintiff’s application was refused.

14.  In passing, it is to be noted that in the plaintiff’s written submissions, the plaintiff requested that two additional defendants be made parties to the present action, namely, the Secretary for Justice and the Chairman of the Public Service Commission but the court was not provided with any draft of the proposed amendments to justify the proposed joinder.

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.  See Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (at 541B-C).  Where those circumstances arise, the court has a duty (not a discretion) to exercise what Lord Diplock considered was a “salutary” power (ibid at 536D).  He explained (at 536C-D) that it is

“… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people….”

18.  The rationale that lead to the recognition of this duty on the part of the court appears in the judgment of Rogers VP in Tsang Chin Keung v Employees Compensation Assistance Fund Board (No. 2) [2003] 1 HKC 499 at 511B-D:

“The first is the general abuse which would come from raising the same issues in a subsequent proceedings simply by changing the form of the action.  This was recognised for example by Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665 at 668.  The recognition stemmed, perhaps, from a need to have finality and certainty in the outcome of litigation.  Akin to that have been the various attempts to demonstrate that a conviction has been wrongful by bringing ancillary litigation, whether it be against police officers, lawyers or otherwise, the effect of which is to demonstrate the wrongfulness of the conviction.  The other aspect is one of unfairness to a party who is entitled to rely on a previous decision and is put to disadvantage by having to contest the new litigation.”

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.

Conclusion

22.  For all those reasons, I consider that this appeal falls to be dismissed.  I would also propose that there be an order nisi of costs in favour of the defendant.

Hon Cheung JA:

23.  I agree.

Hon Poon J:

24.  I agree.

Hon Le Pichon JA:

25.  There will accordingly be an order in terms of paragraph 22.