CHAN LONG NING, CHRISTINE v. DICKSON CONCEPTS (RETAIL) LTD

DCCJ 1660/2024

[2025] HKDC 721

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1660 OF 2024

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DECISION

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1.  The plaintiff was a former employee of the defendant. The plaintiff claims for various losses purportedly arising from certain alleged wrongdoings of the defendant during her employment, which was terminated on 15 March 2020.

2.  This is the plaintiff’s appeal against the Order of Master Raymond Chu dated 28 November 2024 (“Order”), whereby it was ordered, inter alia, that:

a.  The plaintiff’s summons dated 22 October 2024 for leave to amend the Statement of Claim (“P’s Amendment Summons”) be dismissed;

b.  The plaintiff’s summons dated 30 October 2024 for a stay of various directions given by Master Vienne Luk on 21 June 2024 (“P’s Stay Summons”) be dismissed;

c.  The Writ of Summons and Statement of Claim (“Writ”) dated 27 March 2024 be struck out;

d.  The plaintiff’s action against the defendant be dismissed; and

e.  The plaintiff do pay costs of and occasioned by the defendant’s application by summons dated 12 June 2024 (“D’s Striking-out Summons”) for striking out be summarily assessed at $95,000 payable forthwith.

3.  An appeal from master to judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal and the judge treats the matter as though it came before him/her for the first time. The judge would give the weight it deserves to the previous decision of the master but he was in no way bound by it. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion: Bonita Co Ltd S A v Chark Yuk Ying Brenda trading as Brenda Chark & Co [2022] HKCFI 1221, §21.

4.  Having considered all issues involved in all three summonses, which are intertwined, I shall first deal with D’s Striking-out Summons, and then P’s Amendment Summons, to be followed by P’s Stay Summons.

History of the Dispute and the Present Proceedings

5.  Significant to the present appeal are several previous proceedings between the same parties. The procedural history of the present action is also complicated. I shall only summarise those events which are the most relevant to the present appeal:

i.  Previous events and proceedings

a.  Pursuant to an employment contract dated 17 December 2019, the plaintiff commenced employment with the defendant;

b.  On 15 March 2020, the plaintiff served a letter on the defendant claiming that her employment was immediately terminated, notwithstanding that the original final date was 19 March 2020 upon her failure to pass the probation on 12 March 2020;

c.  On 16 March 2020, the plaintiff filed a complaint to the Equal Opportunities Commission against the defendant for disability discrimination (“EOC Complaint”);

d.  On 20 April 2020, the Equal Opportunities Commission sent a letter to the defendant requiring the latter to respond to the EOC Complaint;

e.  On 6 May 2020, the defendant gave a substantive reply in respect of the EOC Complaint;

f.  On or about 16 June 2020, the plaintiff filed a claim with the Labour Tribunal (claim number LBTC 764/2020) against the defendant for compensation based on alleged “constructive dismissal” and “unilateral variation of the terms of the employment contract” (“LBTC Proceedings”). The plaintiff claimed for wages in lieu of notice in the amount of $3,650.39, and long service payment in the amount of $2,525.85;

g.  On 9 July 2020, at the first hearing of the LBTC Proceedings, the plaintiff and the defendant agreed to settle on the term that the defendant would pay the plaintiff $3,000 on a without admission of liability basis. Such settlement agreement was incorporated into the order of the Labour Tribunal on the same date (“LBTC Order”);

h.  On 12 August 2020, the Equal Opportunities Commission notified the defendant that it had decided to discontinue the investigation of the EOC Complaint as it was unsupported by the available information;

i.  On 5 October 2020, the plaintiff commenced another claim before this Court against the defendant (action number DCPI 3360/2022), based on the allegation that she had suffered depression and post-traumatic stress disorder as a result of (i) being treated unfairly, bullied and discriminated against by the defendant, and (ii) the defendant’s failure to prevent the unfair treatment, bullying and discrimination against the plaintiff whilst she was an employee (“DCPI Proceedings”);

j.  On 21 July 2023, the defendant applied under Order 18 rule 19 of the Rules of the District Court (“RDC”) for an order to strike out the DCPI Proceedings;

k.  On 29 November 2023, Master Stanley Ho ordered that the DCPI Proceedings be struck out (“DCPI Order”).

ii.  The present proceedings

l.  On 27 March 2024, the plaintiff commenced the present action against the defendant by filing the Writ endorsed with a very brief Statement of Claim which only contained the following statement:

“本人於2020年3月12日，在持續受欺凌的情況下，被上司以歧視性和蔑造的理由解顧。本人精神健康受損和財政上蒙受損失，本人要求賠償。”

m.  On 5 April 2024, the plaintiff served a purported Statement of Claim dated 2 March 2024 (“Purported SOC”) on the Defendant. On the back page of the Purported SOC, it was stated to have been filed with the Court on 2 March 2024 (i.e. before the filing of the Writ), which could not be the case. In fact, the Purported SOC was never filed with the Court;

n.  On 3 May 2024, the defendant proposed to the plaintiff that parties should enter into a consent summons to seek leave for the plaintiff (i) to amend the Writ to change the original Statement of Claim into a general indorsement of claim, and (ii) to file the Purported SOC with the Court;

o.  On 9 May 2024, the plaintiff refused the said proposal of the defendant;

p.  On 12 June 2024, the defendant filed (i) D’s Striking-out Summons and (ii) a supporting affirmation;

q.  On 21 June 2024, Master Vienne Luk gave directions for the disposal of D’s Striking-out Summons (“Master Luk’s Directions”), including the direction that the plaintiff should file and serve her affirmation in opposition on or before 19 July 2024;

r.  As of 19 July 2024, the plaintiff had not filed any affirmation in opposition;

s.  On 3 October 2024, the plaintiff filed an affirmation in support of her purported application for amending the Statement of Claim (“Amendment Affirmation”). A draft Amended Statement of Claim (“Draft ASOC”) was exhibited in the said affirmation. However:

i.  The plaintiff had not filed any summons for leave to amend the Statement of Claim at that point of time; and

ii.  The Draft ASOC was not the same document as the Purported SOC. At the substantive hearing of the present appeal, the plaintiff confirmed that she would rely only on the Draft ASOC, instead of the Purported SOC, to sustain her claim against the defendant.

t.  On 22 October 2024, the plaintiff filed (i) the P’s Amendment Summons for leave to file the Draft ASOC, and (ii) another affirmation in support;

u.  On 30 October 2024, the plaintiff filed (i) the P’s Stay Summons, and (ii) an affirmation in support;

v.  On 28 November 2024, Master Raymond Chu granted the Order as summarised in paragraph 1 above;

w.  On 9 December 2024, the plaintiff filed a notice of appeal against the Order (“NOA”);

x.  On 21 January 2025, the plaintiff filed yet another affirmation (“P’s Appeal Affirmation”) purportedly in support of the NOA. However, no application for adducing the same for the purpose of the present appeal has been taken out.

Preliminary issue

6.  I shall first deal with the admissibility of P’s Appeal Affirmation.

7.  At the beginning of the substantive hearing of the appeal, I drew the plaintiff’s attention to Order 58 rule 1(4) of the RDC, which restricts the filing of further evidence on appeal against a master’s decision. Further evidence can only be filed in two situations, namely:

a.  There are matters which have occurred after the date on which the decision was given; or

b.  There are special grounds requiring so.

8.  In P’s Appeal Affirmation, the plaintiff explained that it was her understanding that the NOA required evidence in support.

9.  At the substantive hearing, when I referred her to the restrictions under Order 58 rule 1 of the RDC, the plaintiff asked for an adjournment such that she could cure the technical mistake by filing a proper application with proper justifications.

10.  The defendant objected to any adjournment and submitted that P’s Appeal Affirmation should not be admitted as evidence in the appeal.

11.  After considering the situation, the plaintiff’s request and the defendant’s submissions, I refused to grant any adjournment and ruled that P’s Appeal Affirmation should not be admitted into evidence for the purpose of the present appeal. I reserved my reasons, which are as follows:

a.  The matters stated in P’s Appeal Affirmation were not matters that occurred after the hearing before Master Raymond Chu;

b.  The remaining possible route for adducing P’s Appeal Affirmation is to establish the special grounds under Order 58 rule 1(4);

c.  It is well established that to invoke the special grounds, conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 have to be satisfied: Hong Kong Civil Procedure 2025, §58/1/3;

d.  The conditions set out in Ladd v Marshall are:

i.  The evidence could not have been obtained with reasonable diligence for use at the hearing below;

ii.  The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

iii.  The evidence must be such as is presumably to be believed.

e.  Most of the substance of P’s Appeal Affirmation is argumentative in nature. There are, insofar as I can ascertain, only three evidential matters, namely:

i.  The defendant’s internal policy about equal opportunities and non-discriminative working environment;

ii.  A medical report about the plaintiff’s condition by Dr. Siu Wang Chin Simon, a specialist in psychiatry, dated 8 May 2021 (“Dr Siu’s Report”); and

iii.  Various WhatsApp messages dated January 2020 between the plaintiff and her colleagues.

f.  For the defendant’s internal policy, the plaintiff did not specify when exactly did she obtain the said document. Instead, the plaintiff merely alleged that it could not be obtained before the LBTC Proceedings which were settled over 3.5 years before the commencement of the present proceedings. The defendant has therefore failed establish that the internal policy could not have been obtained with reasonable diligence for use at the hearing below;

g.  The same failure applies to the medical report as well as the WhatsApp messages, which on the face are both in the defendant’s possession well before the hearing before Master Raymond Chu;

h.  Therefore, for all three pieces of new evidence, the first condition under Ladd v Marshall cannot be satisfied;

i.  In any event, I do not consider each of the three pieces of evidence would have an important influence (let alone decisive effect) on the result of the case. I shall set out my analysis on this condition together with my analysis of the merits of the plaintiff’s appeal.

The Plaintiff’s Claim in the Present Action

12.  The defendant accepts that, in disposing of the Striking-out Application, the court should consider the plaintiff’s pleaded case in the Draft ASOC even though P’s Amendment Summons is yet to be allowed.

13.  Briefly summarised, the plaintiff’s pleaded case in the Draft ASOC contains the following causes of action:

a.  The defendant had breached the employment contract by wrongfully dismissing the plaintiff and unilaterally altering working conditions (“Employment Contract Claim”);

b.  The defendant subjected the plaintiff to unfair and/or discriminatory treatment based on the plaintiff’s health condition and age (“Discrimination Claim”); and

c.  As a result of the defendant’s wrongful dismissal, the plaintiff suffered post-traumatic stress disorder (“Psychiatric Injury Claim”). The plaintiff also pleaded the contents of Dr Siu’s Report in support of the pleaded claim.

The defendant’s substantive grounds for striking out the present claim

14.  The defendant applies for striking-out on three grounds, namely:

a.  The Employment Contract Claim is an abuse of process because of the LBTC Order, and it should fall within the exclusive jurisdiction of the Labour Tribunal in any event;

b.  The Discrimination Claim suffers a series of problems under the Disability Discrimination Ordinance, Cap 487 (“DDO”); and

c.  The Psychiatric Injury Claim is an abuse of process in light of the DCPI Order which has substantively disposed of the said claim.

15.  The legal principles in respect of the disposal of an application for striking out a claim under O 18 r 19 of the RDC are trite and are not repeated herein.

Ground 1: Jurisdiction of the Labour Tribunal and the LBTC Order

16.  Section 7 of the Labour Tribunal Ordinance, Cap 25 (“LTO”), provides that:

“Jurisdiction of the tribunal

(1) The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2) Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.

(3) …”

17.  The Schedule of the LTO sets out, inter alia, the following claim:

“1. A claim for a sum of money, whether liquidated or unliquidated, which arises from –

(a) the breach of a term, whether express or implied…, of a contract of employment…

(aa) …

(b) the failure of a person to comply with the provisions of the Employment Ordinance (Cap 57)…”

18.  The combined effect of section 7 and the Schedule of the LTO is that the Labour Tribunal shall have exclusive jurisdiction over claims based on a breach of an employment contract and/or any provisions of the Employment Ordinance (Cap 57).

19.  If any claim is within the exclusive jurisdiction of the Labour Tribunal, such claim must be commenced in the Labour Tribunal as it is not actionable in any other court in Hong Kong (including the District Court), and then it is for the Labour Tribunal to exercise its discretion to decline jurisdiction and/or to transfer such claim to another court: Weng Chi-Cheong v Barclays Capital Asia Limited, HCA 741/2016, Deputy High Court Judge Marlene Ng (as she then was), 6 December 2016, at paragraph 42.

20.  In the Draft ASOC, insofar as the Employment Contract Claim are concerned, all pleaded reliefs are for damages and compensation. In such event, the Employment Contract Claim is squarely within the exclusive jurisdiction of the Labour Tribunal and not actionable in this court.

21.  On the basis of lack of jurisdiction, I am satisfied that the Employment Contract Claim is liable to be struck out.

22.  For completeness, I also accept the defendant’s argument that the Employment Contract Claim should also be struck out for being an abuse of process based on the principle laid down in Henderson v Henderson (1843) 3 Hare 100, whereby a party to a litigation is prohibited from bringing a second claim (or counterclaim) against his or her opponent in respect of matters which might have been (but was not) brought forward as part of the subject in an earlier claim.

23.  The rule of Henderson v Henderson was further explained in Lucky Money Limited & Ors v Guangzhou Chung Kin Engineering Company & Ors, HCA 542/2007, Deputy High Court Judge Au-Yeung (as she then was), 6 January 2011, at paragraph 58, that it was not confined to a claim which led to a judgment but also to one which led to a compromise.

24.  In the Form of Claim (Form 2) of the LBTC Proceedings, the plaintiff set out the grounds for the claim as “Constructive dismissal” and “Unilateral variation of the terms of employment contract” without any further particulars.

25.  In the Draft ASOC, the plaintiff pleaded “wrongful dismissal” as well as “unilateral variation of the terms of the employment contract”, with full particulars of the said claims.

26.  During the substantive argument, the defendant expressly refrained from asserting that the LBTC Order had the contractual effect of barring the plaintiff raising the Employment Contract Claim. Instead, the defendant argued that the Employment Contract Claim should be barred by the principle of Henderson v Henderson.

27.  It was pleaded in §§11-12 of the Draft ASOC that:

“11. The Plaintiff previously lodged a complaint with the Labour Tribunal for unfair dismissal. While the matter was settled by consent, the Plaintiff notes that the Labour Tribunal verbally commented that the Plaintiff had been badly treated by the employer during her employment.

12. The Plaintiff contends that the current claim is distinct from and goes beyond the matters settled in the Labour Tribunal.”

28.  The pleaded matters provide no answer to the restriction under the Henderson v Henderson principle. The question is whether the current claim could have been brought before the Labour Tribunal in the LBTC Proceedings, not whether the current claim and the previous claim concern the same matter.

29.  In all affirmations filed by the plaintiff in the present action, I do not see any valid explanations as to why the Employment Contract Claim as pleaded in the Draft ASOC could not have been brought forward at the LBTC Proceedings.

30.  As such, the Employment Contract Claim is also barred by the Henderson v Henderson principle. It should be struck out.

Ground 2: The Discrimination Claim and the Disability Discrimination Ordinance, Cap 487 (“DDO”)

31.  In the Draft ASOC, the Discrimination Claim is pleaded for dual purposes, namely both as a breach of the employment contract and a stand-alone cause of action under the DDO.

32.  Insofar as the Discrimination Claim as a breach of the employment contract, the defendant relied on s 71 of the DDO as well as Sunny Tadjudin v Bank of America, National Association, HCA 322/2008, unreported, 28 October 2008 to argue that the Discrimination Claim could not be a contractual claim but solely a matter within the DDO.

33.  The defendant did not develop such argument substantively. As the matter stands, I am not convinced that either s 71 of the DDO or the Sunny Tadjudin judgment had the extensive effect as contended by the defendant. However, in the absence of further assistance, I shall not express a conclusive view on this matter one way or another.

34.  In any event, the relevance of such issue is limited, if any. If the Discrimination Claim were part of the Employment Contract Claim, it should be struck out together with the Employment Contract Claim as I have held above.

35.  Insofar as the Discrimination Claim being a stand-alone cause of action under the DDO, the defendant contends that it should have been time-barred pursuant to s 82(1) of the DDO, which provides that a claim based on, inter alia, discrimination against employees under s 11 of the DDO (which is apparently the only cause of action relevant to the present action even though there is no express pleading of any provisions of the DDO in the Draft ASOC) should be brought within 24 months after the act complained of was done, or the District Court (which has an exclusive jurisdiction) shall not consider such claim.

36.  Section 82(3) further provides that the District Court has a discretion to consider any claim that is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

37.  The only matter that would be relevant to whether the plaintiff might commence the Discrimination Claim out of time is her assertion in the Amendment Affirmation that she “only became fully aware of the details of the situation” of one Michele Lau (who joined the defendant around the same time as the plaintiff did and passed probation because she did not take sick leaves) after the filing of the Purported SOC. The plaintiff asserted that such evidence would be crucial to the Discrimination Claim.

38.  I do not consider that the plaintiff had provided any valid justification for an extension of time under s 82(3):

a.  The onus is on the claimant to show that it is equitable to allow the claim to proceed out of time, whilst it is for the respondent to show prejudice if the claim is allowed to proceed, and the court would be assisted by a consideration of the matters listed in s 30(3) of the Limitation Ordinance, Cap 347, even though those matters are not exhaustive and s 82(3) requires the court to consider all the circumstances: X v Melvyn Kai Fan Lai & Anor [2019] 1 HKLRD 163, §35;

b.  The act that the plaintiff complained of took place in or before March 2020;

c.  The present action was commenced on 27 March 2024 when the Writ was filed;

d.  Over 4 years had lapsed between the act complained of and the commencement of the present action;

e.  The plaintiff gave no explanation as to why she could not have discovered the full details of the situation of Michele Lau within 2 years after she left the defendant;

f.  In fact, the plaintiff did not explain at all as to what effort she had put in to collect any evidence in support of the Discrimination Claim;

g.  The Equal Opportunities Commission had investigated the plaintiff’s relevant complaints and decided to discontinue the investigation;

h.  The defendant has cooperated in the investigation of the Equal Opportunities Commission by providing a substantive reply;

i.  In all proceedings commenced by the plaintiff, the defendant has not contributed to any delay, but instead has shown an evident intent to conclude those matters, all of which arose from the relatively short employment of the plaintiff, as soon as possible; and

j.  Considering all those factors, it would not be just or equitable to allow the plaintiff to bring the Discrimination Claim outside of the 24-month period as provided in s 82(1).

39.  For reasons above, the Discrimination Claim is struck out.

Ground 3: Striking out of the DCPI Proceedings

40.  The defendant contends that the Psychiatric Injury Claim should be struck out as it offends (i) the doctrine of res judicata by relitigating the same subject matter in the DCPI Proceedings which were struck out pursuant to the DCPI Order (against which there was no appeal), and/or (ii) the rule in Henderson v Henderson by bringing new claims (if any) in the present proceedings which could have been brought in the DCPI Proceedings.

41.  A comparison between the statement of claim in the DCPI Proceedings (“DCPI SOC”) and the Draft ASOC shows the following:

a.  The pleaded cause of action in the DCPI SOC, in gist, was that the plaintiff was treated by the defendant unfairly and discriminated due to her disability/health problems (which were caused by the cold temperature at the workplace and led to the need for sick leave) and therefore failed her probation. As a result, the plaintiff suffered from post-traumatic stress disorder and depression. The plaintiff has also pleaded parts of the contents of Dr Siu’s Report as the descriptions of her injuries;

b.  Almost all matters pleaded in the DCPI SOC were repeated in the Draft ASOC;

c.  The only part of the DCPI SOC that was not repeated in the Draft ASOC was the pleaded particulars of the defendant’s purported faults at §§13-24 of the DCPI SOC;

d.  On the other hand, the Draft ASOC contains the pleas of the Employment Contract Claim and the Discrimination Claim. The Draft ASOC also contains further matters that were not pleaded in the DCPI SOC. For example, two incidents that happened on 31 January 2020 and 28 February 2020 respectively were new allegations pleaded in the Draft ASOC in support of the alleged discrimination and unfair treatment. The plaintiff also pleaded further evidence, namely the purported situation of Michele Lau (as summarised in paragraph 37 above), and her appraisal form which showed a purported mistake of her attendance which caused her to fail the probation.

42.  I find that the Psychiatric Injury Claim is liable to be struck out for the following reasons.

43.  First, the defendant’s categorisation of the Psychiatric Injury Claim as a cause of action that is separate and distinct from the Discrimination Claim or the Employment Contract Claim might be slightly misleading:

a.  If one were to read the Draft ASOC more carefully, the pleaded depression and post-traumatic stress disorder arose from the purported disability discrimination. Therefore, the Psychiatric Injury Claim was in fact part of the Discrimination Claim;

b.  On the other hand, in the Draft ASOC, the plaintiff prays for a relief for “Damages for mental distress resulting from the breach of contract”, ie the damages for mental distress were part of the Employment Contract Claim;

c.  One way or another, the Psychiatric Injury Claim was not a stand-alone tortious claim which is independent from the Discrimination Claim or the Employment Contract Claim as pleaded in the Draft ASOC;

d.  Therefore, for reasons I have set out above for striking out the Discrimination Claim or the Employment Contract Claim, the Psychiatric Injury Claim should also be struck out accordingly.

44.  Second, I accept the defendant’s argument that the Psychiatric Injury Claim should be struck out by the operation of the principle in Henderson v Henderson:

a.  Given the two incidents on 31 January 2020 and 28 February 2020 were not pleaded in the DCPI SOC, the cause of action therein was not identical to the Psychiatric Injury Claim (even though the difference is marginal) for the purpose of res judicata;

b.  However, there is no apparent reason why those two incidents (which all happened before the DCPI SOC was filed) could not be pleaded in the DCPI SOC;

c.  There was no appeal against the DCPI Order for striking out the claim therein; and

d.  The Psychiatric Injury Claim is therefore barred by the operation of the principle in Henderson v Henderson.

P’s Amendment Summons

45.  Given the claim as pleaded in the Draft ASOC are liable to be struck out for reasons set out above, P’s Amendment Summons should also be dismissed accordingly.

P’s Stay Summons

46.  The plaintiff’s main reason in support of P’s Stay Summons was her application for filing the Draft ASOC, ie P’s Amendment Summons, which has been dismissed for reasons above. Therefore, P’s Stay Summons should be dismissed accordingly.

47.  In any event, the reasons in support of P’s Stay Summons are misconceived. The plaintiff should have filed any affirmation in opposition to the application for striking out in accordance with Master Luk’s Directions instead of asking for a stay of such directions.

Disposition

48.  The plaintiff’s appeal against the Order by way of the notice of appeal dated 9 December 2024 be dismissed.

49.  The defendant should be entitled to the costs of the appeal. Upon considering the defendant’s statement of costs date 27 January 2025 and the plaintiff’s oral reasons for objection given during the hearing, I summarily assess the defendant’s costs of the appeal as $70,000. For avoidance of doubt, I have allowed the cost of the counsel for the defendant, whose assistance was necessary and helpful on this occasion.

50.  Therefore, there be a cost order nisi that costs of the appeal be to the defendant and be assessed as $70,000.