HAVEAUX XAVIER MARIE GHISLAIN v. HONG KONG EXPRESS AIRWAYS LTD

HCA 1631/2021

[2024] HKCFI 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1631 OF 2021

(Transferred from Labour Tribunal Claim No. 1318/2020)

________________________

________________________

________________________

DECISION
(LEAVE TO APPEAL)

________________________

A.  Introduction

1.  By my Decision dated 29 December 2023 [2023] HKCFI 3073 (“Expert Evidence Decision”), I refused the Plaintiff’s application to adduce the Expert Report of Mr Danny Chow dated 30 July 2023, relating to the usage and reading a flight data labelled Quick Access Recorder (“QAR”)  data.

2.  On 17 January 2024, the Plaintiff issued a summons in the Court of Appeal seeking leave to appeal from my Expert Evidence Decision.  The Plaintiff subsequently learned that he ought to have first applied to the Court of First Instance for leave to appeal.  As a result, on 14 February 2024, the Plaintiff issued a summons returnable before me to pursue his application for leave to appeal from my Decision (“Leave Summons”).  I have agreed to deal with the Leave Summons even though issued out of time.

3.  On the same date, 14 February 2024, the Plaintiff also issued a further summons, said to be pursuant to RHC Order 41A rule 8, by which he sought “verification” of some of the documentary evidence filed by the Defendant in these proceedings (“Verification Summons”).

4.  I gave directions for both summonses to be dealt with together at a hearing on 6 March 2024.  Following the hearing, I dismissed the Verification Summons, but reserved my decision on the Leave Summons.  This is my Decision.

5.  In this Decision, I adopt as appropriate the abbreviations and definitions used in my Expert Evidence Decision.

B.  Verification Summons

6.  At the hearing, the Plaintiff asked to deal first with the Verification Summons.  I did.  The Verification Summons was fundamentally misconceived.  Hence, it was dismissed.

7.  Order 41A does not operate in the way which the Plaintiff wishes.  In essence, he says that various items of data or documentary evidence produced by the Defendant should be reviewed by the Court, so that the Court could conclude that evidence is not truthful.  Though not entirely clear, it seemed that the Plaintiff wanted the Court to conduct a review of the evidence so as either to verify the evidence or (as he would hope)  say that it is false – though he might have been asking for the Defendant to verify that the evidence it has put forward is indeed true.  The Plaintiff suggested that making the appropriate order on the Verification Summons is the only way that the Defendant and its legal team can be held accountable for their abuse of the legal system and by submitting false data and evidence.

8.  In his oral submissions, the Plaintiff sought to take me through various parts of the evidence so as to demonstrate why he could show it to be false in material respects.

9.  But, Order 41A actually provides for Statements of Truth for verifying certain types of document as is dealt with under the relevant rules.  Essentially the documents to be verified are pleadings, witness statements, expert reports and any other document the verification of which in accordance with Order 41A is required by any other provision of the RHC or by a practice direction.  Order 41A rule 8 – on which the Plaintiff sought to place reliance – empowers the Court to order a person who has failed to verify a document in accordance with Order 41 to verify that document.

10.  Order 41A is not the process by which the Court reviews evidence to decide whether or not it is true.  The review and weighing of evidence is ultimately, in a case such as the present, a matter for the trial (in so far as that evidence is relevant to the issues in dispute, and necessary and appropriate for addressing them).  Nor is Order 41A a process by which a party is required to say that the evidence it has produced is true.  If the evidence has been produced by a party together with an affirmation/affidavit, that party has in effect verified it as being true. Whether it is in fact true is something to be tested at the trial.

11.  In short, if a party’s position is – as it is the Plaintiff’s position in this case – that some data and evidence put forward by the the other party is inaccurate or not true, he can (but only in so far as it is relevant and necessary at trial)  seek to establish that inaccuracy or falsity by the usual means of deploying contrary evidence, through cross-examination and with submissions at the trial.

12.  I also note that all pleadings so far filed in this case have already been verified pursuant to Order 41A, and the rules in Order 41A add nothing further to the forthcoming trial process.

C.  Leave Summons

C.1  Expert Leave Decision

13.  In my Expert Evidence Decision, and before dealing with the discussion and conclusion:

(1)  I set out (at §§10-26)  a brief summary of the parties’ respective pleaded cases in the SOC and Defence.  I mentioned (at §27)  that the Plaintiff had filed a Reply to Defence, but I did not think it necessary to refer to that for the purposes of the application to adduce expert evidence.

(2)  I identified (at §§28-35)  a summary of the competing arguments on the application.

(3)  I set out (at §§36-39)  the principles regarding the admission of expert evidence.

(4)  I dealt (at §§40-54)  with what had occurred on an earlier strike out and Order 14A application dealt with by a Master, and why that did not preclude my addressing the same question of law in the context of the application to adduce expert evidence.

(5)  I traversed (at §§55-83)  the law on the Implied Duty, and my view as to the correct legal position on that law.

14.  After canvassing these various matters, I refused to grant leave to the Plaintiff to adduce his intended expert evidence because I took the view that the expert evidence would not be of help to the Court in resolving the issues in dispute justly.

15.  As I expressed (in §86)  the Court does not exist to determine disputes between parties which would have no legal consequence, or which it is not necessary to resolve for the just resolution of the dispute.  I took the view that, whatever the rights and wrongs about the Incidents and the subsequent investigations of them, and the presentation of materials in that regard, those matters are ultimately irrelevant to the legal consequences flowing from the termination of the Plaintiff’s contract of employment with the Defendant, which termination was made expressly on the contractual terms and by reference to the governing statutory provisions.

16.  Put shortly, I held that any approach which suggests that the Implied Duty applies to the termination of employment is wrong in law.  Further, an action for wrongful dismissal (in breach of contract)  could in any event yield no more than the salary which should have been paid during the contractual period of notice.

17.  In the course of reaching my decision, I touched on the point (at §11)  that the Plaintiff had asserted by his SOC that the Defendant was in breach of an implied duty of trust and confidence or wrongful dismissal under “Chapter 9 of the Labour Law”.  I took that reference as a mistaken reference to section 9 of the EO, which relates to summary termination by an employer of a contract of employment without notice and without payment in lieu of notice.  Subsequently (at §75), I stated that section 9 appeared to me to be irrelevant where as a matter of fact the Plaintiff’s employment was not terminated summarily by the Defendant, but in accordance with the notice provisions in the contract and sections 6 and 7 of the EO.

18.  Incidentally, I reserved the question of costs to a subsequent hearing at which I could consider and give consequential directions in light of my ruling, and in particular that part of it relating to the law as regards the implication of a term of mutual trust and confidence into an employment contract, when that contract is terminated.  That hearing has since been fixed for 10 April 2024.

C.2  The Proposed Appeal

19.  Some of what is set out in the Leave Summons does not really identify proposed grounds of appeal, but rehearses some of the Plaintiff’s case, including his allegations that the Defendant has provided inaccurate or false data and materials.  There is much repetition of the Plaintiff’s case, identification of the contest between his case and that of the Defendant, and why the expert report was obtained so as to assist the Court in resolving that contest.  However, it seems to me that the Plaintiff has sought to raise broadly the following potential grounds of appeal:

(1)  The Expert Evidence Decision is biased towards the Defendant, because there was no consideration or indication that any of the Plaintiff’s arguments documented in the expert report sought to be adduced or at the hearing were ever considered.  For example, the expert evidence was not just related to Annexures 1, 2 and 3 Screenshots, but included reference to other documents.  Further, the Plaintiff has produced evidence to show multiple examples of the Defendant being in breach of CAD 712.  The Court chose not to address any of these materials presented notwithstanding reference to them during the Plaintiff’s submissions, raising questions as to the impartiality of the Court.

(2)  The Master dealing with the strike out/Order 14A hearing clearly communicated his view that only a review of the evidence presented by the Defendant to the Court would provide clarity, and if the review identified data had been fabricated against the Plaintiff, that would confirm the grounds as to the reason why the Defendant first requested the Plaintiff to undergo a psychiatric assessment and then terminated his employment after the Plaintiff approached the authorities.

(3)  The Plaintiff claims that the Defendant was in breach of the Implied Duty, when associated with the conduct of the Safety Investigations, believing the Defendant was “targeting” the Plaintiff, as a result of which he was suspended from checking and training duties with associated allowances cancelled.  In other words, this was not the cause of the termination, but the suspension from employment.

(4)  The Court failed to take proper account of the reference to Chapter 9 of the Labour Law which identifies a statutory restriction on termination of employment contracts, including where the employee is giving evidence or information to the authorities.  The failure to take into account Chapter 9, whilst at the same time including other sections of the legislation which are irrelevant to the cause of action, also raises the question of bias.

(5)  The Court failed to make reference to Chapter 10 of the Labour Ordinance, which had been included in the application, and which deals with eligibility and remedies for employment protection following unreasonable and unlawful dismissal.

(6)  The Court failed to review the Amended Reply to Defence, which might have led to a different conclusion than was reached in §§87 and 88 of the Expert Evidence Decision.

20.  In his oral submissions, the Plaintiff emphasised that his case is that the Defendant targeted him for what he had to say to the authorities, and the chronology and email chain made clear that this was happening.  He also stated that his termination was directly tied to his approaching the CAD with complaints of fabrication of data.  At no stage was his suspension lifted, and the next step was termination.  Therefore (he asked rhetorically)  how was the termination not related to his approach to the authorities?  In fact, his approach to the authorities was the reason why he was terminated, as it was connected to the evidence he was providing to the authorities.

21.  The Plaintiff also made reference to section 72B of the EO, which provision he said was triggered by his communication with the CAD who were conducting an investigation (albeit later withdrawn).

22.  The Plaintiff further submitted that the breach of the Implied Duties what initiated his removal from the extra duties, and subsequently his termination.

C.3  Whether to Grant Leave

23.  It is convenient to begin with the Plaintiff’s references to what he calls Chapters 9 and 10 of the Labour Ordinance.  In fact what he is apparently referring to is not a part of any ordinance, but rather a handbook issued by the Labour Department which seeks to summarise certain aspects of the EO.  Chapter 9 of that handbook relates to termination of contract of employment, and there is a passage which states that an employer shall not dismiss an employee under certain circumstances, including:

Giving evidence or information to the authorities

An employer shall not dismiss an employee by reason of his giving of evidence or information in any proceedings or inquiry in connection with the enforcement of the Employment Ordinance, work accident or breach of work safety legislation.

24.  Though the handbook does not identify the relevant section said to identify this statutory restriction, it seems to be a reference to section 72B of the EO.  In so far as it is material, and as now relied on by the Plaintiff, that section provides as follows:

72B.  Employment not to be terminated, etc. by reason of fact that employee has given in proceedings under Ordinance, etc.

(1)  No employer shall terminate, or threaten to terminate, the employment of, or in any way discriminate against, any of his employees by reason of the fact that the employee has -

(b)  given information to a public officer in any inquiry made by such officer for the purposes of or in connection with the enforcement of this Ordinance

25.  However, that provision is plainly irrelevant to the current circumstances as it deals only with information given in the context of an inquiry made by a public officer for the purposes of or in connection with the enforcement of the EO.  The Plaintiff’s approach to the CAD does not fall into that category.

26.  Nor does the Plaintiff’s reference to Chapter 10 of the handbook assist.  That chapter relates to what is described as the Part of the EO which aims at discouraging employers from dismissing or varying the terms of the employment contract of their employees in order to evade their liabilities under the EO, which is again not what this case might concern.

27.  In any event, my decision to refuse leave for the Plaintiff to adduce expert evidence – as made and reasoned in the Expert Evidence Decision – was based on my view of the correct law relating to the alleged Implied Term in the context of termination of employment.  The Plaintiff has not criticised that view as being incorrect.  Nor has he criticised my summary of the principles applicable on applications to adduce expert evidence.  In short – except by his reference to “Chapters 9 and 10” and section 72B (but see above)  – the Plaintiff does not suggest that I fell into any legal error.

28.  Instead, the Plaintiff has sought to draw some attention away from the termination, and to re-focus the case on the suspension. As I understand it, he said the termination flowed from the suspension, which was related to the internal investigations and his subsequent approach to the authorities.  Hence, the termination was not a breach of the Implied term, but the way he was dealt with before termination and on suspension was a breach.

29.  But, I do not think that was how the case was originally argued on the application, nor is it the natural reading of the way in which the case has been formulated by the Plaintiff in the SOC.  The thrust of his case is that he was targeted and his employment was terminated because he gave information to the authorities.

30.  In summary, looking at the broad potential grounds of appeal, which I sought to paraphrase above, my views on them are as follows:

(1)  The criticism of bias appears to arise from a misunderstanding as to my approach, and I do not think it is reasonably arguable.  With respect, I did not overlook the extent of the potential expert evidence, nor did I choose not to review it in detail for any incorrect reason.  Rather, I held that the dispute between the parties in relation to the Incidents was factually irrelevant to the circumstances of the termination, and the Plaintiff’s claim flowing from that termination.  Hence, the proposed expert evidence was unnecessary for the just resolution of the dispute.  That was because of my view as to the correct law relating to the alleged Implied Term, which view the Plaintiff has not sought to suggest was incorrect.

(2)  I carefully analysed the matters relating to the hearing before the Master who dealt with the strike out/Order 14A application.  Having done so, I took the view that there was nothing to prevent me addressing the relevant legal question which seemed to me to be central to the application to adduce expert evidence.  Not least in the context of what was ultimately a case management decision, I do not think it reasonably arguable that this course was not open to me.

(3)  The Plaintiff’s claim that the Defendant was in breach of the Implied Duty was primarily argued by the Plaintiff by reference to the matter of termination of employment.  I do not think the Plaintiff argued the application for leave to adduce expert evidence on the basis that the alleged breach of the Implied Duty was not the cause of the termination, but just the suspension from employment.  Indeed, even on this application for leave to appeal, the Plaintiff has in submissions specifically sought to link the breach of the Implied Duty to the termination of his employment (see above).

(4)  The reference to “Chapter 9” was based on a misunderstanding that it was the legislation itself, rather than merely a commentary or handbook issued by the Labour Department, seeking broadly to summarise some provisions of the EO.  Hence, there was no relevant failure to take into account Chapter 9, and instead it was correct to make reference to the actual sections of the legislation which might be relevant to the claim. To do that is not reasonably arguable biased.

(5)  Nor was it reasonably arguably necessary for there to have been reference to Chapter 10, which had also been mistaken by the Plaintiff as being part of actual legislation when it is not.

(6)  The Plaintiff’s claim must be set out in the SOC, so it is not reasonably arguable to suggest that a different conclusion would have been reached had there been reference to the Amended Reply to Defence.

31.  Notwithstanding the above points, I have considered whether the SOC might be read in such a way as to identify that the pleaded breach of the Implied Duty is in relation to or limited to the circumstances of the Plaintiff’s employment at the time of his suspension (and hence only prior to and unconnected with the termination).  As stated above, I do not think that is how the SOC naturally reads or is formulated – nor was it how it was apparently argued.  Even if that were so – perhaps by reference to the heads of loss (i)  to (iv)  claimed in §103 of the SOC – those claims alone form a very small percentage of the overall claim made in this action.

32.  Those claims are: (i) loss of additional appointment allowance; (ii) loss of training hours allowance and simulator training allowance; (iii) loss of flying hours overtime and standby allowance; and (iv) difference in MPF voluntary contribution for items (i), (ii)  and (iii).  The total of those claims is under HK$437,000 – well inside the District Court’s jurisdictional limit on claims.  There is also no clearly pleaded allegation made by the Plaintiff that the Defendant was not entitled to suspend him from the positions which he says caused him the loss.

33.  I think it would be disproportionate to engage in expert evidence of the sort put forward by the Plaintiff in his application.  To put it another way, that expert evidence does not seem to be necessary for the just resolution of the dispute.

34.  In conclusion, though I granted the necessary extension of time to make the application, I refuse the Plaintiff’s application for leave to appeal made by the Leave Summons.

D.  Costs

35.  I make no order as to costs on the Verification Summons.

36.  As to the costs of the Leave Summons, I currently see no reason why the costs should not follow the event, and my current view is therefore that the Plaintiff should pay the Defendant’s costs of the Leave Summons.  However, as I have reserved the question of costs on the expert evidence application to the hearing on 10 April 2024, I think it best to reserve the question of costs of the Leave Summons to be dealt with also at that hearing.