LAM YAT PUN v. EQUAL OPPORTUNITIES COMMISSION

HCA 2404/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2404 OF 2005

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J U D G M E N T

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1. This is an application by the defendant to strike out the Statement of Claim and dismiss the whole action pursuant to Order 18 rule 19.  It comes before me in a 3-minute chambers hearing.  At the same time the plaintiff issues a summons for directions.  Both parties have agreed that I deal with the matters forthwith.  The right sequence is to deal with the defendant’s application first.

2. The claim by the plaintiff against the defendant, as I understand it, is that the defendant has failed and/or neglected to perform its duty whereby he has suffered loss and damage.  He claims for damages.  The background of this case is as stated in the following paragraphs.

3. The plaintiff was a communication officer employed by the Hong Kong Government.  In August 2003 he was transferred to the Control Centre of the Police Department, New Territories North.  About a month before the transfer, he suffered injury when he was robbed and as a result his right index finger cannot function in the normal way.

4. Because of the injury and the transfer to the new post, he was in depressed mood and had insomnia.  The medical reports suggested that he be transferred back to his former post with the railway control station.  His immediate superior, the Chief Communication Officer, did not act on it.  The plaintiff wrote to the District Commander of that area who also seemed to ignore his request.  The plaintiff made a complaint to the Equal Opportunities Commission (“the defendant”) on the ground of discrimination by reason of his disability.

5. The defendant has taken the following action as set out in the following chronology of main events:

Chronology of the main events
4 February 2005	The plaintiff lodged a complaint with the defendant alleging his two superiors were in breach of the provisions of the Disability Discrimination Ordinance.
Chronology of the main events (…cont’d)
5 February 2005	The defendant acknowledged receipt.
25 February 2005	The officer of the defendant met the plaintiff.
February – April 2005	Documents were produced by the plaintiff.
4 May 2005	The defendant informed the plaintiff that the defendant was reviewing the information supplied.
6 May 2005	The plaintiff urged the defendant to deal with the matter as soon as possible.
9 May 2005	A holding letter was sent by the defendant.
18 May 2005	Written complaints were formulated and sent to the two superiors.
13 June 2005	The Chief Communication Officer replied.
7 July 2005	The other District Commander replied.
2 August 2005	Further submission was made from the Chief Communication Officer.
9 August 2005	The plaintiff commented on the replies and made submission.
	Chronology of the main events (…cont’d)
3 September 2005	The defendant wrote to the plaintiff that “由於未有具體資料支持你指稱答辯人一及答辯人二基於你的殘疾而對你作出較差的對待，委員會現正考慮是否仍繼續跟進你的投訴。如你欲就你的投訴提供新資料，請於本年九月十三日或之前交予委員會，否則，委員會將對你的投訴作最後審核。”
9 September 2005	The plaintiff made further submission.
13 September 2005	The defendant decided not to continue with the investigation in both cases.
25 October 2005	The plaintiff asked for clarification of the decision.
31 October 2005	The defendant replied that it maintained its view.

6. I must say that the above chronology of the main events sets out what I consider as the most relevant ones.  I have left out those less important ones.  The question I have to decide is whether the defendant owes the plaintiff a duty to continue with the investigation and to assist him to prosecute this case and whether the defendant is negligent.

7. The principal function of the Commission, as I understand it, is to promote equality of opportunity between persons with a disability and persons without it.  The Commissioner is empowered to carry out any investigation in respect of matters of alleged discrimination and also to discontinue any investigation.

8.  I have read the papers submitted to me: I cannot say that the Commissioner is wrong in ceasing to further investigate the matter.  He has considered all evidence before him and come to a conclusion.  We must bear in mind that the Commissioner at that stage is not required to determine whether the alleged act is discriminatory.  What he says is that on the evidence before him there is not sufficient material to support the plaintiff’s case.  He has decided not to carry on with the investigation.  He can take into consideration many factors, one of which is the merits of case.  I have read the documents submitted and find that the Chief Communication Officer and the District Commander did not treat the plaintiff less favourably because of his incapacity.  I must say that my conclusion comes from the papers I have read.  I consider the merits of the case in the context of the present proceedings.  I am not making a ruling of his claim against the persons concerned or Hong Kong Government.  It is right for the Commissioner not to pursue the matter further.

9. I must also point out that the defendant owes the plaintiff no duty to assist the plaintiff to pursue his claim.  After considering all the circumstances the defendant is entitled to make its decision in the way it has done.  I find that the defendant has committed no wrong.  Accordingly, I strike out the plaintiff’s claim and dismiss his action.  I make no order in respect of the plaintiff’s summons for directions.

10. As to costs, I have the following observation.  The defendant takes out the application on three different grounds as set out in its summons.  In fact, it has taken advantage of 2^nd and 3^rd grounds and filed an affirmation in support.  In the defendant’s submission Ms. Yip for the defence relies mainly on the 1^st ground that the plaintiff’s claim discloses no reasonable cause of action.  She has hardly touched on grounds 2 and 3.  On the contrary, the plaintiff vigorously defends that he is not being frivolous or vexatious.  Neither has he intended to abuse the process of the Court.  He says that he is ignorant of the court procedure, which I have no doubt about it.  But, obviously, it is wrong for him to take the present proceedings.

11. I have observed his demeanour in court.  His submission has convinced me that he is a sensible and logical person.  I have sympathy on him.  He is definitely not the type of vexatious or frivolous litigants I came across in the past.  I come to the conclusion that he is not frivolous or vexatious.  I accept that he has no intention to abuse the process of the court.  However, I have no reason not to follow the general principle of costs following the event.  I intend to cut the defendant’s entitlement to the costs of this application by half.

12. I make the following order nisi in respect of costs:

(a)   Subject to (b) below, the defendant shall have the costs of this action to be paid by the plaintiff;

(b)   The defendant shall be entitled to only half of the costs of and incidental to the application;

(c)   All the costs are to be assessed by me with the following directions:

(i)   the defendant shall within 14 days after this order being made absolute file with the court and serve on the plaintiff a statement of costs for gross sum assessment;

(ii)  the plaintiff shall within 14 days thereafter file and serve on the defendant his list of objections with reasons; and

(iii) a date be fixed for hearing with half an hour reserved.

(d)   pursuant to Order 42 rule 5B unless an application has been made in writing to vary this costs order nisi, it shall become absolute 14 days after the receipt of this judgment.