YUNG MEI CHUN, JESSIE v. MERRILL LYNCH (ASIA PACIFIC) LTD

DCCJ 3068/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3068 OF 2013

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DECISION

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INTRODUCTION

1.  By a summons dated 29 September 2014, the defendant applies for:-

(i) An extension of time for the defendant to file its defence until 28 days after the determination of the present application;

(ii) An order declaring that the amended writ of summons  issued on 15 August 2013 has not been duly served on the defendant and the purported service on the defendant of the amended writ by registered post sent on 13 August 2014 be set aside for irregularity;

(iii) An order that the purported service of the statement of claim dated 1 September 2014 be set aside for irregularity;

(iv) Further or alternative to the above, an order that the plaintiff’s claim based on alleged wrongful dismissal be struck out under Order 18 rule 19 of the Rules of the District Court (“the RDC”) and/or under the inherent jurisdiction of the court; and

(v) Further or in the alternative to the above, all the plaintiff’s claims against the defendant in the amended writ of summons and statement of claim be struck out on the grounds that the limitations periods for such claims have already expired pursuant to section 32J of the Employment Ordinance, Cap. 57 and/or section 4 of the Limitation Ordinance, Cap. 4 and that this action be dismissed.

2.  The plaintiff’s grounds for striking out the amended writ of summons insofar as it arose out of the alleged wrongful dismissal are:-

(i) they disclose no reasonable cause of action;

(ii) they are within the exclusive jurisdiction of the Labour Tribunal pursuant to section 7 of the Labour Tribunal Ordinance, Cap 25; and/or

(iii) they are frivolous, vexatious and an abuse of court process.

3.  By a separate summons dated 15 December 2014, the plaintiff applies for specific discovery of a report prepared by the Office of the General Counsel (“OGC”) of the defendant (“the OGC Report”).  

BACKGROUND

Factual background

4.  The plaintiff is a former employee of the defendant.

5.  The plaintiff was employed by the defendant from 16 May 2007 to 24 September 2007 as a director of investment/private wealth manager of the global private client group.

6.  It is not disputed that the defendant had intercepted, opened and damaged a confidential letter addressed to the plaintiff c/o the defendant on 17 August 2007 (“the Mail”).  The Mail contained legal documents from a firm of solicitors in a civil case involving the plaintiff.  The defendant scanned the Mail and passed it to the OGC, ie the office of its legal counsel.

7.  As a result, the defendant became aware of litigation proceedings in which the plaintiff was a party.  The plaintiff was requested to make full and frank disclosure of her then past and present litigation issues.

8.  Following their investigations, the defendant terminated the plaintiff’s employment contract on 24September 2007 by payment of 7 days’ wages in lieu of notice on the ground that the plaintiff had failed to disclose her past and present litigation issues.

9.  Thereafter, the plaintiff made various complaints to the Office of the Privacy Commissioner for Personal Data (“PCPD”).  By a Result of Investigation dated 1 June 2010, the PCPD ruled that the defendant had breached one of the Data Protection Principles (“DPP”), namely, DPP1(2), by having collected the plaintiff’s personal data contained in the Mail by means which were unfair in the circumstances of the case.  The PCPD however ruled that the defendant was not in breach of other DPPs.

10.  The plaintiff lodged an appeal against the PCPD’s Result of Investigation dated 1 June 2010 under AAB Appeal No.18 of 2010 to the Administrative Appeals Board (“AAB”), but later abandoned the appeal.  This was confirmed in the decision of the AAB dated 5 September 2013. The plaintiff however continued with her other appeals against the findings of the PCPD to the AAB.  

11.  On 25 February 2009, the plaintiff also commenced proceedings in the Labour Tribunal for wages in respect of non-complete clauses in her employment contract, and alleged that she was underpaid due to a difference in exchange rates in calculating her wages (together “the plaintiff’s Labour Tribunal Claims”).

12.  On 16 September 2011, the Labour Tribunal dismissed the plaintiff’s Labour Tribunal Claims.

13.  The plaintiff applied for leave to appeal against the Labour Tribunal’s decision.  The Court of First Instance handed down the judgment on the leave application on 11 January 2012, dismissing most of the plaintiff’s grounds of appeal and only granted leave to appeal on a few very narrow issues.  If successful, those issues would be remitted to the Labour Tribunal for further investigation.

14.  By a consent order dated 17 July 2012, the parties agreed that the application for leave to be dismissed with the defendant paying a sum to the plaintiff, which was inclusive of all costs relating to the appeal.

Procedural background

15.  On 15 August 2013, the plaintiff issued a writ of summons together with an indorsement of claim in the present proceedings.  The plaintiff did not serve the writ immediately.

16.  On 13 August 2014, the plaintiff amended the indorsement of claim at the District Court.  On the same day, she posted the amended writ of summons to the defendant’s former registered address situated in Citibank Plaza.

17.  On 15 August 2014, a sealed copy of the amended writ enclosed in a sealed envelope was delivered to the defendant’s present registered office in Cheung Kong Center apparently via the Hongkong Post’s redirection service.

18.  It should be noted that the defendant moved to its present registered office in Cheung Kong Center in June 2014.  Prior to the move, the defendant applied to the Hongkong Post for mail redirection service for the period between 9 June 2014 and 8 September 2015.

19.  The defendant through its solicitors Messrs Deacons (“Deacons”) filed an acknowledgement of service stating an intention to defend this action on 18 August 2014.

20.  It is common ground that the deadline for the plaintiff to serve her statement of claim would be 1 September 2014 if the amended writ was deemed effectively served.

21.  On 1 September 2014, the plaintiff faxed a copy of the statement of claim to Deacons, purportedly by way of service on the defendant.

22.  On 3 September 2014, Deacons received a copy of the statement of claim which was sent by ordinary post.

23.  In the amended indorsement of claim dated 13August 2014,  the plaintiff claims against the defendant for:-

(1) losses and damages, including injury to feelings, (together with interests thereon and costs) by reasons of contraventions of the Personal Data (Privacy) Ordinance, Cap 486 (“the Ordinance”) in relation to the plaintiff’s personal data held by the defendant and subsequently leading to the plaintiff being unfairly, wrongfully dismissed by the defendant; and

(2) all damages and losses suffered by the plaintiff incidental and accidental as a result of (i) the defendant’s contravention of the Ordinance and (ii) the unfair and wrongful dismissal.

[note: the amendments appeared in the amended indorsement of claim are placed in italics above]

The plaintiff’s case

24.  According to the plaintiff, it is sufficient to prove that the amended writ of summons has been properly served as long as it is delivered to the defendant at its registered office.  She claims that the way how the Hongkong Post delivered it is not known to her and irrelevant for the purpose.

25.  The plaintiff further argues that the period of counting the 12 calendar months to serve the writ of summons should begin on 16 August 2013, ie the date after the writ was issued on 15 August 2013, so the deadline to serve the amended writ to the defendant should be on or before 15 August 2014.  In this regard, the plaintiff relies on Order 3, rule 2(2) of the RDC.

26.  The plaintiff further claims that the amended writ of summons was delivered to the defendant’s office on 14 August 2014, the day after the date of posting on 13 August 2014.  It is alleged that it is a well-known practice for Hongkong Post to deliver letter the next day after posting, which is also mentioned in its performance pledge.  Therefore, according to the plaintiff, the amended writ of summons was served within time, even if the deadline to serve it should be on 14 August 2014 as alleged by the defendant.

27.  The plaintiff further argues that Order 18 rule 1 of the RDC does not specify the mode of delivery for the statement of claim, therefore delivering it by fax should not be considered defective.  With reference to Deacons’ actual knowledge of content, the statement of claim should be deemed to be effectively served on 1 September 2014.  Thus, the service would be in time.

28.  According to the plaintiff, the defendant has misunderstood her claims for wrongful and/or unfair dismissal under the employment contract.  The plaintiff’s claims were actually for defendant’s breach of the Ordinance. Thus, the present action should commence at the District Court as it has exclusive jurisdiction to decide damages arising out of the breach of the Ordinance.

29.  Furthermore, the plaintiff believes the Labour Tribunal case is irrelevant as the plaintiff’s Labour Tribunal Claims are different to those under the present action.  She claims the present claims have not been tried in the Labour Tribunal case in any event.

30.  Insofar as her discovery summons is concerned, the plaintiff alleges that the OGC report cannot claim legal privilege as it is of executive and administrative nature.  She further submits the court should inspect the documents under Order 24 rule 12 of the RDC to see if the claim is well founded.

The defendant’s case

31.  The defendant’s case is simply that, firstly, the amended writ of summons was not properly served because the envelope containing it was not properly addressed to the defendant’s registered address.  

32.  Second, the amended writ was served on the defendant on 15 August 2014 but the time limit for service was until 14 August 2014 only.  The fact that the defendant filed an acknowledgement of service does not mean that the defendant did not object to the service.

33.  Third, the defendant argues that the statement of claim was not served in time either, as it was only received by post on 3 September 2014 whereas the deadline to serve it was 1 September 2014.

34.  Fourth, the defendant believes that the plaintiff is claiming damages for wrongful dismissal but has failed to properly plead the material facts in support her claims.  It further says that the Labour Tribunal has exclusive jurisdiction on this matter and in any event the matter is time-barred.

35.  Lastly, the defendant claims that the OGC Report is privileged.  The defendant further submits that even though the court would have the same power to inspect the document if it wishes to as the PCPD and AAB did, the defendant believes it is not necessary for the court to do so in this case.

DISCUSSION

Issues in dispute

36.  Hence, the issues for the court to decide are:-

(1) whether the amended writ of summons has been duly served on the defendant;

(2) whether the statement of claim has been duly served on the defendant;

(3) whether the plaintiff’s claims are under the exclusive jurisdiction of the Labour Tribunal;

(4) whether the plaintiff’s claims be struck out on the grounds that the limitation period for such claims have already expired; and

(5) whether there should be specific discovery of the OGC Report.

Issue 1: Service of the amended writ of summons

37.  The first issue for the court to decide is whether the amended writ of summons on the defendant is duly served.  In this regard, both the process of service and time validity have to be examined.

Process of service – address

38.  Order 65 rule 3(2) of the RDC provides for the personal service on body corporate:-

“Where a writ is served on a body corporate in accordance with Order 10, rule 1(2), that rule shall have effect as if for the reference to the usual or last known address of the defendant there were substituted a reference to the registered or principal office of the body corporate and as if for the reference to the knowledge of the defendant there were substituted a reference to the knowledge of a person mentioned in paragraph (1).”

39.  Order 10 rule 1(2) of the RDC provides for the service of writ:-

“A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served – (a) by sending a copy of the writ by registered post to the defendant at his usual or last known address……”

40.  As the defendant is a limited company, section 827 of the Companies Ordinance, Cap 622 applies.  It states that “(A) document may be served on a company by leaving it at, or sending it by post to, the company’s registered office.”

41.  It was held in Stevenson, Wong and Co v Goldsense Technology Ltd [2007] 1 HKLRD 217, CFI, that service pursuant to section 356 of the Companies Ordinance, Cap 32 (equivalent to section 827 of the new Companies Ordinance, Cap 622), was an alternative to that under Order 10 rule 1 and that Order 65 rule 3 is relevant only when service on a limited company is effected pursuant to Order 10 rule 1.

42.  In any event, the amended writ needs to be served at the defendant’s registered or principal office.

Process of service – delivery

43.  It is common ground that the amended writ was indeed originally addressed to the defendant’s former registered address.  The plaintiff admitted that the address was handwritten by her son on the envelope to the defendant’s former registered/principal address at Citibank Plaza.  A type-written label (with a bar code and a “GPO” reference number) with the defendant’s new registered address at 55/F of Cheung Kong Center has been pasted over the handwritten address by the time when the envelope was delivered to the defendant.  It is not disputed that the letter was delivered to the defendant’s new registered address in accordance with the mail redirection service arranged by the defendant with the Hongkong Post.  The question is whether such redelivery of the amended writ would be deemed validly served. 

44.  As pointed out by the defendant’s counsel, section 8 of the Interpretation and General Clauses Ordinance, Cap 1 provides for the effect of service or notice:-

“Where any Ordinance authorizes or requires any documents to be served or any notice to be given by post or by registered post, whether the expression ‘serve’ or ‘give’ or ‘send’ or any other expression is used, the service or notice shall be deemed to be effected by properly addressing, pre-paying the postage thereon and dispatching it by post or by registered post, as the case may be, to the last known postal address of the person to be served or given notice, and , unless the contrary is proved, such service or notice shall be deemed to have been effected at the time at which the document or notice would be delivered in the ordinary course of post.” [emphasis added]

45.  The case Austin Rover Group Ltd v Crouch Butler Savage Associates and Others [1986] 1 WLR 1102 was cited by both the plaintiff and the defendant regarding the question of whether the redelivered amended writ was validly served.  May LJ decided in the context of that case that section 7 of the Interpretation Act 1978 in the UK, a provision similar to section 8 of Interpretation and General Clauses Ordinance in Hong Kong, was not taken to apply as there appeared contrary intention of relevant orders on servicing writs to partnership to section 7 of the 1978 Act.

46.  On the other hand, Lloyd LJ at 1115H-1116B considered and interpreted section 7 as follows:-

“I have never heard it suggested that a document is properly addressed for the purposes of section 7 of the Interpretation Act 1978 if it is readdressed by the Post Office. To bring the deeming provision into operation, it must be properly addressed when posted. The same, in my view, applies to R.S.C., Ord. 81, r. 3(1)(c). The copy writ is not sent to the film by post unless it is properly addressed to the firm at its principal place of business when posted; which, as is conceded, was not the case. The document was not sent to the form at its principal place of business when posted by the plaintiff; it was sent on by the Post Office.”

47.  Ms Queenie Lau, counsel for the defendant, tries to persuade me that I should adopt Lloyd LJ’s interpretation.  However, I prefer the approach taken by May LJ when comes to interpreting section 8 of the Interpretation and General Clauses Ordinance, Cap 1.  The provisions of Order 65 rule 3(2), Order 10 rule 1(2) of the RDC and section 827 of the Companies Ordinance make reference to relevant addresses in relation to service – “usual”, “last known” and “the company’s registered office”, hence the “contrary” referred to in section 8 does in my view appear.  Therefore, in my judgment, section 8 is not taken to apply in this context.

48.  Regarding the process of servicing a writ, I find the view of May LJ in Austin Rover Group Ltd, supra  most instructive:-

“In the context of the process of a service of a writ, in my opinion the Rules must be construed as involving both a server and the recipient.  Service, even by post, cannot be complete until that which have been received under the terms of the Rules.  I for my part do not accept that the word “send” where it appears in the Rules only comprehends the initial dispatch.  I think it must in the context mean the whole process of transmission from server to recipient.” (per May LJ at 1111 B-D)

49.  I also find Sir John Megaw’s view in the same case helpful:-

“Although the word “deliver” or “delivery” does not appear in the rule, it is in my view beyond dispute that the sending – the posting – of the copy of the writ does not by itself effect service. It is an element. The writ must be put in the post. But there is another, and an essential, requirement if service is to be effected: i.e. delivery of the writ through the post. If the writ is not delivered through the post to the defendant firm at the principal place of business of the partnership, service has not been effected under sub-paragraph (c).” (per Sir John Megaw at 1118 B-C)

50.  It is worth noting that Lloyd LJ did not agree with May LJ and Sir John Megaw on the interpretation of “sending”.  He regarded it bearing its ordinary meaning, “namely putting the document in the post” (per Lloyd LJ at 1115).  To him, a writ could not become correctly addressed when it was readdressed by the Post Office acting.  It has to be properly addressed.  The address needs not be correctly spelt, but it must designate the correct premises.

51.  However, I prefer the views of May LJ and Sir John Megaw on their construction of the rules regarding the service of a writ as a whole process of transmission and not merely the act of sending only.  In my view, the amended writ in this case, notwithstanding that it had not been correctly addressed when posted, would be serviced validly as a redirected mail by the Hongkong Post.

Time validity

52.  Order 6 rule 8(1) of the RDC provides for the time validity of servicing a writ:-

“For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for twelve months beginning with the date of its issue.”

53.  Hong Kong Civil Procedure 2015, §6/8/2 on duration of writ states:-

“The original writ of summons in an action is valid for the purposes of service for 12 calendar months from the date of its issue, including such date, and if renewed for the period of the renewal. The validity of the writ for the appropriate period begins with the actual day on which it is issued (followed in Majeed v Incentive Group [1999] CLY 2465, Trow v Ind Coope (West Midlands) Ltd [1967] 2 QB 899; [1967] 2 All ER 900, CA).”

54.  If in doubt, at the bottom of the writ of summons itself, there is a note expressly stating that “this Writ may not be served later than 12 calendar months beginning with that date unless renewed by order of the Court.” [emphasis added].

55.  Therefore, in my view, it is beyond any shadow of doubt that the last date to serve the amended writ in this case should be on 14 August 2014 and not on 15 August 2014.  The plaintiff was plainly wrong to submit that the time validity of the amended writ was till 15 August 2014.  In this regard, I find the plaintiff’s interpretation on Order 3, rule 2(2) of the RDC has been totally misconceived.

56.  Order 10 rule 1(3) of the RDC provides for the date of service by sending by registered post:-

“(a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to the address in question”.

57.  I do not consider that the Hongkong Post’s performance pledge of delivering letter the next day after posting is “contrary” to the rebuttable presumption of the seventh-day rule provided by Order 10 rule 1(3) of the RDC.  In this case, the actual receipt of the amended writ by the defendant would stand as “contrary” evidence to the presumption.

58.  In this regard, the defendant relies on Mr Robert Leonard Kee’s 1^st affirmation to say that the defendant only received the amended writ on 15August 2014 at 10:10 am.  Mr Kee is the vice president and head of corporate services of the defendant.  Mr Kee produced the internal record for the receipt of the envelope by the defendant which shows the date and time when it was received.  The record however does not say whether it was the time received by the mailroom or legal department of the defendant.  I should add here that on the envelope itself someone has written the words “Legal Document” next to the address label.  Further, there is a yellow Post-it sticker with the words “Rec’d from Annie Yu on 15 Aug 2014” placed next to the address label.

59.  The record itself is in a type-written computer record in table format. Besides showing the date and time of receiving the mail, it shows the airway bill no (in this case the registration number assigned by the Post Office), the description of the mail (in this case “HK Post Registered”), whether it is local or overseas (in this case “local”), the receiver (in this case marked “Legal Document”), the floor in which it was received (in this case “37/F”), the department it was to be sent to (in this case “Legal”), the assistant it was sent to (in this case “Annie Yu?”) and the signature of the assistant who had received it (in this case a signature appeared to be  that of “A Yu” can be seen). 

60.  The plaintiff raised a number of doubts on the actual date/time of receipt of the letter by the defendant.  First, the plaintiff says that there was no “received” chop stamped on the envelope by the defendant which was its usual practice.  She points to an envelope she produced in the bundle dated 9 March 2009 addressed to the defendant’s then address in St. George’s Building in Central.  On that envelope, a chop of the defendant was stamped on the envelope verifying that the letter was received by it on 10 March 2009.  A similar chop (this time by a machine) could be seen in another hand delivered letter received by the mail room at Cheung Kong Center dated 6 October 2014.  Second, there is no explanation as to why a sticker with the words “Received from Annie Yu” was placed on the envelope.  There was no affirmation from Annie Yu and no explanation from the defendant when Annie Yu received it and how she might have handled the letter.  Third, she says there was no explanation as to why the words “37 Annie Yu?” were written at the back of the envelope, no evidence of how the letter was sent to Annie Yu and whether the record belonged to the legal department or the mail room.        

61.  In my view, the points raised by the plaintiff, interesting as they may be, are at best doubts and no more than that.  They do not amount to evidence showing that the defendant had in fact received the writ on 14 August 2014.  On the other hand, there is the unequivocal evidence from the defendant (in the form of Mr Kee’s affirmation) that the sealed copy of the amended writ of summons enclosed in the envelope was delivered to the defendant’s new registered address at Cheung Kong Center on 15 August 2014 at 10:10 am. 

62.  In my view, there is a perfectly plausible explanation of why the letter was only delivered to the defendant’s new registered address on 15 August and not on the day after it was posted by the plaintiff on 13 August.  This was due to the redirection service requested by the defendant after their move to the new registered address in June 2014.  The fact that the letter was a re-directed mail is supported by the type-written label pasted by the post office over the original handwritten address.  Further, the actual date and time of receipt is supported by the internal record of the defendant produced by Mr Kee and was not contradicted by any credible evidence from the plaintiff.  In my view, it matters very little whether it was received by the mail room or its legal department.  The most important thing is that the record shows the letter was only received at 10:10 am on 15 August 2014 by the defendant and not at an earlier date or time.

63.  More importantly, there is in my view no credible evidence to suggest that the defendant had in fact received the amended writ on 14 August 2014 as suggested by the plaintiff.  As sender of the registered mail, the plaintiff could have enquired from Hongkong Post as to when the registered mail was actually delivered to the defendant’s new registered address. However, there is no such evidence coming from the plaintiff. 

64.  On a balance of probabilities, I therefore find the defendant received the amended writ of summons at 10:10 am on 15 August 2014 as shown by its internal record.

65.  As such, I find the date of service of the amended writ was only effected on the defendant on 15 August 2014.  As the service was no longer valid after 14 August 2014, I find the amended writ was not duly served in this case and should be set aside for irregularity.

Acknowledgement of service

66.  Order 12 rule 7 of the RDC provides for the acknowledgment of a service of writ:-

“The acknowledgment by a defendant of service of a writ shall not be treated as a waiver by him of any irregularity in the writ or service thereof or in any order giving leave to serve the writ or extending the validity of the writ for the purpose of service.”

67.  Therefore, it is of no help for the plaintiff to rely on the defendant’s filing of acknowledgement of service on 18 August 2014 to claim that the defendant did not object to service and that the amended writ was duly served.

68.  Based on the above, I find that the amended writ of summons dated 13 August 2014 has not been duly served by 14 August 2014, which was the last date on the validity of the writ.

Issue 2: Service of statement of claim

69.  The second issue to decide is whether there is valid service of the statement of claim on the defendant.

70.  It is not disputed that the deadline for the plaintiff to serve the statement of claim is 1 September 2014.  It is provided for in Order 18 rule 1 of the RDC:-

“Unless the Court gives leave to the contrary or a statement of claim is indorse on the writ, the plaintiff must serve a statement of claim on the defendant, or if there are two or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant gives notice of intention to defend.”

71.  As pointed out by the defendant, the RDC does not provide for service of documents by fax.

72.  Although not specifically providing for the service of statement of claim, Hong Kong Civil Procedure 2015, §10/1/11 at p 113 provides a commentary on the service of other documents apart from originating process:-

“Although permitted for service of other documents, the use of a document exchange or facsimile transmission is not permitted for the service of originating process. Email is not currently permitted for the service of any court documents, whether originating or otherwise, although a party could in theory agree to receive originating process by email.”

73.  The plaintiff submits that whatever not prohibited must deem to be permissible.  I cannot accept such blatantly bad argument.  If she is correct, then in theory service by email or even by pigeons must also be valid.  I have no hesitation to dismiss such absurd proposition.

74.  I accept that the statement of claim only reached the defendant by post on 3 September 2014, which means it was served out of time.  Hence the service of statement of claim dated 1 September 2014 was defective also.

Issue 3: whether the plaintiff’s claims are under the exclusive jurisdiction of the Labour Tribunal

75.  The plaintiff’s amended indorsement of claim dated 13 August 2014 shows that there are two separate claims made against the defendant.

76.  I accept that the first part of her claims is for alleged losses and damages, including injury to feelings, resulting from the defendant’s breach of the Ordinance.  It was not based on wrongful dismissal.

77.  Section 66 of the Ordinance provides for the compensation in the case of contraventions of the provisions of the Ordinance:-

“(5) Proceedings brought by an individual in reliance on subsection (1) are to be brought in the District Court but all such remedies are obtainable in those proceedings as would be obtainable in the Court of First Instance.”

78.  Therefore, the plaintiff was correct to commence the proceedings for the first part of her claims in the District Court.

79.  For the second part of her claims claiming for damages and losses suffered incidental and accidental as a result of the unfair and wrongful dismissal, I believe she is seeking to bring a claim for wrongful dismissal.

80.  As correctly pointed out by the defendant, claims for wrongful dismissal should be made under Part VIA of the Employment Ordinance, Cap 57 which relates to employment protection.  As such, the present case insofar as it relates to her claim for wrongful dismissal is concerned, should be commenced in Labour Tribunal as it has exclusive jurisdiction over such claims by the plaintiff under section 7 and §7 of the Schedule of the Labour Tribunal Ordinance, Cap 25.

81.  In this case, I have no jurisdiction over the plaintiff’s second part of her claims based on wrongful dismissal.  The second part of the claims has to be struck out.

Issue 4: limitation periods

82.  Section 4 of the Limitation Ordinance, Cap 347 provides for a limitation period of 6 years from the date on which the cause of action accrued.  This would apply to the plaintiff’s first claim based on defendant’s breach of the Ordinance.  In my view, the limitation period would be counted from the date the breach occurred which was 17 August 2007, and not from the date of PCPD’s Result of Investigation dated 1 June 2010 as suggested by the plaintiff.  The last date to file the claim would be on 16 August 2013.

83.  The plaintiff has issued the writ on 15 August 2013.  Therefore, in my view, the first part of her claim was not time-barred when she issued the writ of summons.  However, as I found the writ herein had been invalidly served, it is now too late for the plaintiff to issue another writ as the relevant limitation period has already expired.

84.  The second part of the plaintiff’s claims is based on the alleged wrongful dismissal by the defendant.  As stated above, I do not have jurisdiction over the latter claim.

85.  For the sake of completeness, I should point out that the limitation period for the plaintiff’s claim for wrongful dismissal is provided for in section 32J(2) of the Employment Ordinance, Cap 57:-

“the Labour Tribunal shall not have jurisdiction to inquire into, hear and determine a claim or part of a claim under this Part if the relevant date in respect of that claim falls more than 9 months before the date on which the claim is filed with the Registrar of the Labour Tribunal, unless the parties to the claim, by a memorandum signed by them and filed with the Registrar, have agreed that the Tribunal shall have jurisdiction.”

86.  Since the plaintiff’s employment was terminated on 24 September 2007, therefore, the second part of her claims should have been filed with the Registrar of the Labour Tribunal latest by 23 June 2008.  That part of her claims is now time-barred.

Issue 5: discovery of the OGC Report

87.  PCPD’s officers and the AAB (in Appeal No. 19 of 2009) have both inspected the OGC Report and decided that the OGC Report is privileged.  I believe that whilst the court has power to inspect documents in order to determine a disputed claim for privilege, it should be regarded as a solution of last resort, see Phipson on Evidence §23-48 (18^th ed., 2013).  Therefore, in the present action, I could look at the dispute on the discovery of the OGC Report without an inspection of the Report.  However, upon the insistence of the plaintiff (and with the defendant’s consent), I was given a copy of the OGC Report to look at on the last day of the hearing.

Main body of the OGC Report

88.  According to the AAB’s decision dated 12 January 2011, the OGC Report is a 92-page paginated document.  The main body of the OGC Report is itself expressly marked “Privileged & Confidential Communication From Counsel” and in the form of a 3-page email (paginated as pages 1 to 3) from Edmund Lau, Vice President of the Investigation & Litigation Counsel, Asia Pacific Region, OGC of the defendant.  A number of documents are attached to the main body of the OGC Report.

89.  It is well established that in-house lawyers enjoy the same privilege in English law as external lawyers.  In Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1972] 2 QB 102, it was held that as salaried legal advisers, whether barristers or solicitors, employed by a government department or commercial concern, had precisely the same duties and privileges as lawyers in independent practice, professional privilege attached to all the communications between the officials and their legal department both in the ordinary course of work and when litigation (which included arbitration) was anticipated.

90.  Legal professional privilege (“LPP”) for in-house lawyers is noted in Hong Kong Civil Procedure 2015, §24/5/11:-

“Legal advisers in the service of a party – The same privilege attaches to communications with a solicitor in the whole-time service of a party (e.g. solicitor to a government department or a commercial enterprise) as to communications with a solicitor practising independently, provided that such communication related to legal as distinct from administrative matters……An applicant has no right to inspect communications between in-house lawyers where there is an application for judicial review pending, as such documents are subject to legal professional privilege once litigation has started……”

91.  However, not all correspondences with in-house lawyers attract LPP.  As observed by Moore-Bick J in United States of America v Philip Morris Inc [2003] EWHC 3028 Comm, “Lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, for example in a company’s legal department, but in the nature of things those who are employed in that capacity are more likely than independent practitioners to become involved in aspects of the business that are essentially managerial or administrative in nature.  To that extent it is less easy to maintain that all communications passing between them and the company’s management attracts privilege.”

92.  As Lord Denning MR noted in Alfred Crompton Amusement Machines Ltd, supra, work of executive nature done by a legal adviser would not be subject of LPP, “(I)t does sometimes happen that such a legal adviser does work for his employer in another capacity, perhaps of an executive nature.  Their communications in that capacity would not be the subject of legal professional privilege.” (at 129)

93.  In the present case, the main body of the OGC Report is an email summarizing legal advice from the OGC to the management of the defendant.  Mr Edmund Lau was an in-house lawyer of the defendant, and the legal advice contained in the main body would in my view be of a legal and not of executive nature.  I agree with the defendant and the AAB’s decision that the main body of the OGC Report does attract LPP.

Attachments

94.  §88 of the AAB’s decision is a summary of the attachments to the OGC Report:-

(a) pp 4 to 12 form a single document that was clearly material created for the purpose of being shown to the lawyer.  It is covered by legal professional privilege;

(b) pp 13 to 27 is a document apparently prepared by the appellant herself.  This cannot attract legal professional privilege;

(c) pp 28 to 34 is another document apparently filled in by the appellant herself.  This cannot attract legal professional privilege; and

(d) pp 35 to 92 is a judgment of the court.  This is a document open to the public and cannot attract any legal professional privilege.

95.  The defendant submitted that the description for (a), ie pp 4 to 12 was incorrectly decided as those pages were created before the date that the defendant mistakenly opened the plaintiff’s mail and thus were not “material created for the purpose of being shown to the lawyer”.  I agree.  pp 4 to 12 could not attract LPP by itself.

96.  I further agree with the AAB’s decision that the attachments described as (b) to (d) do not attract LPP because (b) and (c) are copies prepared by the plaintiff herself, and (d) is a copy of a public document which no confidentiality can attach.

97.  However, despite attachments (a) to (d) themselves are not covered by LPP for the various reasons stated, they could be protected from disclosure if their disclosure would, or might reasonably be anticipated to, betray the trend of the advice given: See Phipson on Evidence §§23-54 (18^th ed, 2013).  This is recognised in the landmark case Lyell v Kennedy (1884) LR 27 Ch D 1.

98.  Bowen LJ stated in Lyell v Kennedy at p 31 that:

“A collection of records may be the result of professional knowledge, research, and skill, just as a collection of curiosities is the result of the skill and knowledge of the antiquarian or virtuoso, and even if the solicitor has employed others to obtain them, it is his knowledge and judgment which have probably indicated the source from which they could be obtained. It is his mind, if that be so, which has selected the materials, and those materials, when chosen, seem to me represent the result of his professional care and skill, and you cannot have disclosure of them without asking for the key to the labour which the solicitor has bestowed in obtaining them.”

99.  Thus, it was held that although mere copies of unprivileged documents were themselves unprivileged, the whole collection, being the result of the professional knowledge, skill, and research of his solicitors, must be privileged – any disclosure of the copies and photographs might afford a clue to the view entertained by the solicitors of their client’s case.

100.  I therefore agree with the AAB’s decision that these attachments form part of the OGC Report which can only be one that would, or might reasonably be anticipated to, cast light on the advice given by the in-house lawyer to the defendant regarding the plaintiff’s previous litigation whom she was party to.

101.  For this reason, I am of the view that the attachments (a) to (d) of the OGC Report should not be disclosed.

Copies

102.  As discussed, attachments (a) to (d) are copies of non-privileged documents.  They themselves attract no LPP.

103.  However, as submitted by the defendant, there exists another ground for the defendant to rely on to dismiss the plaintiff’s discovery of the OGC Report, iethe rule in The Palermo [1883] 9 PD 6.  As summarized in Phipson on Evidence at §23-52, “where a non-privileged document which is not in the power of a party to litigation is copied for a privileged purpose, the copy is privileged even though the original would not be if the party had the original.”  Copies were held to be privileged in The Palermo because they were obtained for the purposes of the action and “to form part of the brief”.

104.  This rule has been followed in the Australian case of Commissioner of Australian Federal Police and Another v Propend Finance PTY Limited and Others [1997] 188 CLR 501.  It held that LPP attached to a copy document which was provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings, even where the original document was not privileged.

105.  Despite contrary dicta as pointed out by the defendant in Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223 and the Sixteenth Report of the Law Reform Committee on privilege in Civil Proceedings [1967] Cmnd 3472, Bingham LJ made it clear in his judgment in Ventouris v Mountain [1991] 1 WLR 607 that he was not seeking to call into question the principle in The Palermo.  This view is supported by the authors of the leading texts of Phipson on Evidence (18^th ed.) §23-52, footnote 216 and Documentary Evidence, (11^th ed.), Hollander §16-06, footnote 15 where both works reject the dicta in Buttes Gas and Oil Co.  For that reason, I would follow the established rule in The Palermo, which was followed in Watson v Cammell Laird & Co (Shipbuilders and Engineers) [1959] 1 WLR 702.

106.  The Palermo rule is however subject to one exception.  It does not apply where the litigant has or formerly had the original in his possession.  Privilege cannot attach to a copy created for a privileged purpose when that copy is merely a replacement of an original which the party would have been bound to produce on disclosure. (See Phipson on Evidence at §23-53). 

107.  Based on the description of the attachments (b) to (d) by the AAB and the corrected description made by the defendant on attachment (a) above, I am not satisfied that the defendant has the original of the documents in its possession.  Thus, I do not consider the exception to The Palermo rule applies in this case.

Partial waiver

108.  I agree with the defendant that insofar as the plaintiff is seeking to suggest that the OGC Report is no longer privileged on the basis that it was disclosed to the AAB, such argument is wholly without any merits and should be rejected.  I agree with the defendant’s counsel that the OGC Report was disclosed to the AAB only to assist the Board to determine whether the report was privileged and as such was only a partial waiver: see AAB’s decision dated 12 January 2011 at §§54-58 and CITIC Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701, at §§ 32-38.     

Conclusion on issue 5

109.  In conclusion, it is my view that the main body of the OGC Report certainly attracts LPP.  While the attachments (a) to (d) of the OGC Report would not by themselves attract LPP, however, they should not be disclosed as they could shed light on the trend of the advice given by the in-house lawyer to the defendant.  Further, I accept that attachments (a) to (d) should not be not disclosed based on The Palermo rule also.

110.  Therefore, the OGC Report should not be disclosed by way of discovery of documents.

CONCLUSION

111.  In conclusion, I find in favour of the defendant in the 5 main issues listed out above.

112.  Therefore, on the defendant’s summons, I make the following orders in favour of the defendant:-

(a) A declaration that the amended writ of summons issued on 15 August 2013 has not been duly served on the defendant;

(b) An order that the service of the amended writ of summons by registered post sent on 13 August 2014 be set aside for irregularity;

(c) An order that the service of the statement of claim on the defendant on 3 September 2014 be set aside for irregularity; and

(d) An order that the plaintiff’s claims for loss and damages arising out of the alleged wrongful dismissal contained under §§1 and 2 of the amended writ of summons and §§3, 7 and 9 of the plaintiff’s statement of claim dated 1 September 2014 be struck out.

113.  For reasons stated above, I would also dismiss the plaintiff’s summons for discovery of the OGC Report.

114.  I would make an order nisi on costs in favour of the defendant for the above 2 summonses with certificate for counsel, such costs to be summarily assessed by me on paper.  The costs order nisi will become absolute after 14 days in the absence of any application to vary the same.  The defendant is directed to lodge with the court a statement of costs within 7 days after the expiry of the above 14 days period and the plaintiff to file a statement of objection within 7 days thereafter.