LEUNG KWAI LING, L v. CARMEL CHOW AND ANOTHER

HCA 1784/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1784 OF 2011

_____________

__________________________

DECISION

__________________________

1.  There are altogether 6 actions before the court. For easy reference, I will refer these 6 actions as Actions (A) to (F) as follows:

(i)  HCA 1784/2011 as Action (A);

(ii)  HCA 1785/2011 as Action (B);

(iii) HCA 2198/2011 as Action (C);

(iv) HCA 194/2012 as Action (D);

(v)  HCA 195/2012 as Action (E); and

(vi) HCA 251/2012 as Action (F).

2.  Ms Leung Kwai Ling (“Ms Leung”) is the common plaintiff of these actions.  The Independent Commission Against Corruption (“ICAC”) is the only defendant in Action (C) and the 2^nd-named defendant in the other 5 actions.  The 1^st-named defendants in the other 5 actions are all the former employees of ICAC.  None of these 1^st-named defendants has acknowledged service of the writs of summons or otherwise entered into appearance. Ms Leung has applied unsuccessfully to enter default judgments against each of these defendants.

3.  The claim in Action (C) has already been struck out by me on 23 February 2012.  The main outstanding applications before me are as follows:

(i)  the applications of the ICAC to strike out the claims in the other 5 remaining actions; and

(ii)  the applications of the ICAC for a Restricted Proceedings Order (“RPO”) in all the 6 actions.

4.  Ms Leung has also taken out various summonses before the court including, inter alia, applications to dismiss the ICAC’s applications, applications for specific discovery and application to restore the claim in Action (C).

Background

5.  The plaintiff was employed by the ICAC to work as a Commission Against Corruption Officer on 2 December 1997.  Her employment was terminated on 22 April 2000.  In Actions (A), (B), (D) and (E), the 1^st-named defendants were Ms Leung’s superiors involved in the appraisal of her work performance at the material times, while the 1^st-named defendant in Action (F) was responsible for handling Ms Leung’s complaints against the other officers of the ICAC.

6.  It is not easy to understand Ms Leung’s causes of action in the pleadings.  According to the respective Statement of Claim or Amend Statement of Claim of the 5 actions which the ICAC now seeks to strike out, it seems that Ms Leung is claiming damages and compensation:

(i)  against the various 1^st-named defendants (except the 1^st-named defendant in Action (F)) for the “harmful effects” on her job, employment prospects and feelings caused by their unfair, damaging or incorrect remarks about her employment with the ICAC, “failing which [she would claim] against the 2^nd defendant [ie the ICAC] as employer and for their keeping and making use of those documents”;

(ii)  presumably against the ICAC, for the “harmful effects” arising from what she regards as unfair or unsatisfactory treatment of her employment matters; and

(iii) against the 1^st-named defendant in Action (F) and presumably also the ICAC for unfair or unsatisfactory handling of her complaints in relation to the said employment matters.

7.  In the various affidavits filed by her, Ms Leung particularises the remedies she seeks as follows:

(i)  loss of her job with the ICAC and 10 more years of employment with the ICAC until retirement age at “SI rank”;

(ii)  loss of pension;

(iii)  “losing Labour Tribunal case and 2 High Court cases”; and

(iv) other losses or harm.

8.  The allegations in her pleadings are supplemented by the Further and Better Particulars and copies of documents exhibited to her various affidavits containing the alleged defamatory statements.  Apparently, Ms Leung is also suing the 1^st-named defendants in Actions (A), (B), (D) and (E) for defamation, though she has not expressly used this word in the pleadings.  Ms Leung’s case is that these officers’ defamatory statements against her, which were contained in Ms Leung’s appraisal reports and other documents, had contributed to the termination of her employment with the ICAC.  This, Ms Leung argues, would entitle her to an award of damages equivalent to the salaries and other fringe benefits of her original post as if she would have continuously worked in the ICAC until retirement age.  Ms Leung also alleges that the ICAC, as the employer of those 1^st-named defendants, should be vicariously liable for the defamatory remarks made by them in their official capacities.

9.  Action (F) is about the mishandling of Ms Leung’s complaints against her superiors and the ICAC.  It is not clear as to what cause of action Ms Leung is relying on to establish her claim.  One possibility is the tort of misfeasance in public office, and the other possibility is that it forms part of her cause of action in wrongful or unreasonable dismissal.

10.  As set out in the affirmation of Ms Kwan Yee Lan Sally (“Ms Kwan”), a senior staff involved in the management and administration of the ICAC, the termination of Ms Leung’s employment agreement with the ICAC was the subject matter of a Labour Tribunal case in which the ICAC was the defendant.  In that case, Ms Leung alleged that the ICAC was unfair in not renewing her employment contract and claimed compensation for loss of earnings up to her retirement age with gratuity.

11.  Ms Leung’s claim was dismissed by the Labour Tribunal, and her application for leave to appeal against the decision of the Tribunal was also dismissed.  According to the decision of the Tribunal, Ms Leung’s employment contract with the ICAC was for a fixed period of time and renewal would have to be subject to satisfactory completion of her “current tour”.  The Tribunal found that the ICAC in fact offered an extension of contract to Ms Leung for 6 months on 11 February 2000.  Ms Leung did not accept and the ICAC informed her on 18 February 2000 that her employment would be terminated on 22 April 2000.  As the cessation of employment was caused by the effluxion of time, the Tribunal found that there was no basis to support Ms Leung’s claim for wrongful dismissal.

12.  Ms Leung sought essentially the same remedies in Action (C), but the claim was dismissed by me on 23 February 2012.  Ms Leung has also sued Mr C W Tung, the former Chief Executive of HKSAR, for his failure to handle her complaint against the ICAC (HCA 1595/2011), but that action was struck out by Master Levy on 4 November 2011.

The striking out applications

13.  Mr Law, Senior Government Counsel for the ICAC, argues that, given the final adjudication in the Labour Tribunal proceedings, all purported claims of Ms Leung apparently based on wrongful or unreasonable dismissal against the ICAC in its capacity as Ms Leung’s employer must be struck out.  I agree.  Any attempt to re-litigate the same cause of action is plainly an abuse of process, and Ms Leung should be barred from pursing the claims on wrongful or unreasonable dismissal by reason of the principle of res judicata.

14.  According to the supporting documents, it seems that Ms Leung is also suing the defendants for defamation.  As the Labour Tribunal has not ruled on this particular issue, the principle of res judicata does not apply.  Despite that, I am of the view that Ms Leung’s claims for defamation cannot possibly succeed and so such claims should also be struck out.

15.  According to my understanding of Ms Leung’s case, the alleged defamatory statements, which are all related to the work performance of Ms Leung, are contained in the following documents:

(i)  the affirmation made by Ms Kwan for the purpose of the present proceedings, which exhibited a statement made by her in the Labour Tribunal proceedings;

(ii)  various appraisal reports of the work performance of Ms Leung;

(iii)  written warning letter to Ms Leung; and

(iv) an internal memo of the ICAC dated 27 March 2000 which was a brief form of an appraisal report of Ms Leung.

16.  It is clear that the statements referred to in the affirmation of Ms Kwan are not actionable.  It is trite law that statements made in an affirmation or a statement brought into being for legal proceedings are covered by absolute privilege, against which no action on defamation will lie (see: Gatley on Libel and Slander, 10 ed, pp 397-398 and Tort Law and Practice in Hong Kong, 2 ed, p 672).   In any event, such statements, being only a description of what happened between Ms Leung and the ICAC, are fully justified.

17.  For the claims on defamation based on the statements in the appraisal reports and the possible claim on misfeasance in public office in Action (F), Ms Leung has to prove “malice” in order to establish such 2 causes of action.

18.  First, the alleged defamatory statements by the 1^st-named defendants in Actions (A), (B), (D) and (E) were contained in either internal correspondence or reports concerning the performance appraisal of Ms Leung or formal warning letter to her.  Those statements were purported to be statements of fact, opinion or comment, about the work performance of Ms Leung, which the respective 1^st-named defendants were under their duties as Ms Leung’s superiors to make and the recipients of such statements were also under a duty or had an interest to receive. In such circumstances, the statements are covered by qualified privilege.  Unless Ms Leung can prove that the makers of the statements were malicious, meaning the lack of honest belief in the truth of the statements or a dominant improper motive in making the statements, qualified privilege would serve as a valid defence to a claim on defamation (see:  Gatley on Libel and Slander, 10 ed, pp 437-438 and Tort Law and Practice in Hong Kong, 2 ed, pp 675-676 & 681-682).

19.  As to the possible claim on misfeasance in public office, Ms Leung has to prove either:

(i)  “targeted malice” specifically intended to injure Ms Leung; or

(ii)  “untargeted malice” involving the defendants knowing they had no power to commit the act and that it would probably injure Ms Leung and there was lack of honest belief that the act was lawful.

(see: Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324 and Asher Model Management Ltd v Carroll [2008] 4 HKLRD 250)

20.  “Malice” is a serious allegation and the court would not allow it to be made without proper evidence.  If such allegation is made irresponsibly, the court would exercise its jurisdiction to strike out the same.  The court would not allow any litigants to use litigation as a means to unreasonably insult others and abuse its process.  It is also an abuse of the process of the court to issue a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know any facts to support the claim (see: Choy Bing Wing v Chief Executive of HKSAR & Ors [2006] 1 HKLRD 666, 林哲民訴特佳機器廠有限公司及另一人, unreported, CACV 122/2004, 29 November 2005 and Kestronics (Hong Kong) Limited v Chiu Sik Kuen & Ors, unreported, HCA 4362/1993, 3 January 1994).

21.  In the pleadings and the supporting documents, Ms Leung only repeatedly asserts her disagreement with the comments on her work performance by her former superiors.  Ms Leung may have different views about the appraisals, but there is no evidence or basis to allege malice, lack of honest belief or a dominant improper motive in the making of those statements. Similarly, there is nothing to suggest that the 1^st-named defendant in Action (F) intended to injure Ms Leung or lacked honest belief in his action in dismissing Ms Leung’s complaints against her superiors and the ICAC.  By reason of the serious nature of the allegations, it is incumbent upon Ms Leung to make out the evidential basis of her case, without which her claims against the defendants must be dismissed.

22.  Apart from the above reasons, it is clear that Ms Leung’s claims against the ICAC are all time-barred.  Apart from the statements made by Ms Kwan in the present proceedings, all the alleged defamatory statements were made some time in 1999 and 2000.  The limitation period of 6 years has long expired and Ms Leung has not suggested any reason why the purported causes of action based on defamation should not be time-barred.  Since the ICAC has already indicated that it will rely on the defence of limitation and there is nothing adduced by Ms Leung to rebut such defence, Ms Leung’s claims against the ICAC are bound to fail.

23.  Hence, I strike out the Statements of Claim or Amended Statements of Claim in Actions (A), (B), (D), (E) and (F) and dismiss the claims in these actions.

The RPO applications

24.  I then turn to the RPO applications.  According to the landmark case of Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1, a RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the court’s process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the court, in circumstances where a RPO would be a proportionate response.

25.  Ms Leung knew that her earlier claim in the Labour Tribunal had been dismissed when she instituted Action (C), in which substantially the same remedies were sought.  This demonstrates that Ms Leung has abused, and has a tendency of continue abusing, the court’s process by seeking persistently to re-litigate in fresh proceedings the cessation of her employment agreement with the ICAC.  In addition, the action in HCA 1595/2011 against the former Chief Executive and the actions sought to be struck out in the present hearing are all concerned with similar, if not the same, subject matter and without viable legal ground.  Despite the striking out of the claims in the earlier actions, Ms Leung is persistently pursing similar claims against the persons and authority allegedly responsible for the termination of her employment with the ICAC.  If RPOs are not made in these proceedings, it is likely that Ms Leung will continue the abuses.

26.  There are also two additional reasons why RPOs should be made.  Firstly, as shown by the voluminous summonses taken out by Ms Leung, she has a tendency of taking out a large number of unnecessary and misconceived applications before the court.  To a great extent, this shows that unless and until Ms Leung obtains the result she wants, she would keep on repeating taking out these unnecessary applications.  Hence, the court should put a stop to all these abuses.

27.  Secondly, there is also serious delay in pursuing the claims in the various proceedings.  Ms Leung should have known that extension will not lightly be granted in the case of such serious delay in view of her experience in the Labour Tribunal proceedings, and yet Ms Leung still indulges in commencing new actions against various persons and authority in the High Court without suggesting any legal basis as to how the time-bar may be lifted.  In such circumstances, to prevent further abuses of process, granting a RPO against Ms Leung is an appropriate response to prevent anticipated interference with the administration of justice.

28.  As mentioned above, Ms Leung has taken out quite a number of applications in the present proceedings.  I do not propose to deal with each of these applications save as to say that all of them are unnecessary and misconceived.  Given that the various actions are liable to be struck out, there is no point for Ms Leung to ask for specific discovery of documents or personal details of the various 1^st-named defendants in the actions.  For Action (C), since I have already struck out the claim on 23 February 2012, there is no basis or justification for the court to restore the action.  I therefore dismiss all the other applications returnable before me in the hearing on 4 October 2012.

29.  Based on the aforesaid, I make the following orders in Actions (A), (B), (D), (E) and (F):

(i)  the Statement of Claim or Amended Statement of Claim against the ICAC be struck out and the plaintiff’s claim against the ICAC be dismissed;

(ii)  an order in terms of the RPO stated in the various summonses and I myself would be the designated judge for the purpose of the RPO.

30.  I have already struck out the claim in Action (C).  As the RPOs in the other 5 actions have already covered the claim in Action (C), it is not necessary for me to restore the claim in Action (C) just for the purpose of making a RPO against Ms Leung.

31.  For all the 6 actions, I also make an order that all summonses returnable before me in the hearing on 4 October 2012 be dismissed.

32.  I make the following order nisi relating to the issue of costs:

(i)  for Actions (A), (B), (D), (E) and (F), Ms Leung do pay to the ICAC the costs of the action, including the costs of the striking out and RPO applications;

(ii)  for all the 6 actions, Ms Leung do pay to the ICAC the costs of Ms Leung’s other summonses and applications dismissed by me as mentioned in the preceding paragraph.

The order nisi shall be made absolute 14 days after the date of the handing down of this Decision.