CHEUNG MAN CHEUNG v. CATHAY PACIFIC AIRWAYS LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

ACTION NO 7308 OF 1991

-----------------

-----------------

-----------------

JUDGMENT

-----------------

1. I suppose one should say that it's unusual, certainly for me, to give a judgment immediately at the end of a trial that has lasted more than five days. Usually a judge wants to give some thought to matters that have been raised. The truth is, that in this matter there is very little that needs to be thought about to any great depth, and I am of the view that it is time that this matter was brought to an end.

2. The plaintiff has claimed under his contract of employment with the defendant. He claims that at the end of May, 30 May 1991, the defendant, in breach of the agreement, purported to dismiss him on a summary basis. The contract between the parties was a written one and imported certain conditions of service. One of those provisions in the conditions of service was in clause 9 paragraph (c) (iii) which, in express terms, permitted either party, that is the plaintiff or the defendant, to terminate the agreement by giving three months notice. That is the provision under which the defendant acted in this case.

3. The defendant makes no argument about this being an express condition of service, but as far as I can understand his case it is suggested that the defendant did not, as a matter of practice, use this provision, and it is suggested that the defendant did not in this case use that provision bona fide. Whether or not as a matter of practice the defendant did not use that clause is, in my judgment, neither here nor there. There is no suggestion in the pleadings, and certainly nothing in the evidence at all, to suggest that the defendant ever, in the case of the plaintiff in this case, waived that provision so that it was no longer entitled to use it. Consequently, in my view the defendant was entitled to use that provision to terminate the contract, and did so perfectly lawfully. There is no evidence at all to suggest that it used that provision in breach of any obligation of good faith.

4. The plaintiff has suggested from time to time during this case that because he was appointed to a permanent and pensionable position, that in some way this meant that the clause I have referred to did not apply to him. This simply cannot be so, of course. The description of his position as permanent and pensionable was nothing more than that, a description, and cannot possibly by any argument whatsoever mean that an express provision of a contract is somehow not applicable in his circumstance. It follows, in my view, that the plaintiff has no claims whatsoever under this head, and his claim is dismissed.

5. Under the contract he also claims the reimbursement of the sum of $4,350 which he paid in respect of tuition fees for a postgraduate diploma course in management studies. It is so, of course, that the plaintiff did sponsor him on this course, and if he had continued in employment with the defendant no doubt he would have been paid the cost of that course. It is quite clear to me, however, that the whole purpose of an employer sending employees on to a course of this nature and agreeing to sponsor that employee is for the benefit of the employer. It must be in contemplation of the parties that the employee would return when the course is completed and has successfully graduated, and that his or her knowledge and skills acquired during that course would then be used to the advantage of the employer.

6. If that situation does not develop in that way, that is, that the employee does not in fact continue with employment after acquiring the knowledge and skills of the course, then it must follow, in my view, that there is no entitlement to be repaid for the cost of the course. It would of course be a different matter if the contract had been terminated in breach of the agreement, a refund then of such a course would probably be part of the damages claimable, but that is not the case here. Accordingly, I find that that claim is not well-founded either.

7. The last claim under the contract that the plaintiff has, he says, is that he was not given a certificate of service upon cessation of his employment. He says there was an implied term in the agreement that he would be provided with such a certificate. There is nothing express of course in the agreement to this effect, and there is no reason why one should imply such a term for business efficacy. The certificate of service, which was no more than that - that is, simply a statement of the period of the employee's employment with his master - would of course be of no value whatsoever. In fact, as I suggested to the plaintiff during the trial, it might well be worse than having nothing at all.

8. The first thing that a potential employer would want to know is what the previous employer thought about the potential employee with a view to considering whether he would be suitable for employment with them. What would prejudice the plaintiff is, of course, the absence of some kind of reference or testimonial which would assist him in obtaining other work. There is clearly, of course, no obligation upon an employer to give such a testimonial or reference, and certainly not in the circumstances of this case where I have found that the agreement was lawfully terminated. Accordingly, I find that there is no implied term in the contract to provide any kind of certificate of service simply stating the fact of employment. If this is indeed what the plaintiff wants, and I am inclined to doubt it, the defendant has made it perfectly clear that it is prepared to write a letter saying that he was employed by them from the commencement of his employment until he was dismissed.

9. The plaintiff also has a claim against the defendant based on an alleged libel. This claim is based on a document written by the defendant's general manager in the management information system group, which was the group in which the plaintiff was working at the time, Mr Boulter. That was addressed to the plaintiff in the first instance, a copy to the plaintiff's indirect superior, Mr Yeung, his immediate superior, Mrs Bodiley, and Constance Au, the personnel manageress in the defendant.

10. The defamatory words alleged by the plaintiff in this communication were that in annual reviews, at least as far back as 1986, it showed that the plaintiff's attitude should be improved and he should be less aggressive and abrasive, to be more considerate for other people's point of view and to listen. It went on to say that a history of his progress through the department shows that he was moved from the Comms - that's the communications section - from SPG - the special projects group - because of similar disappointments on the part of management and colleagues. The document was somewhat longer than that, but that is the substance of what is said to be defamatory of the plaintiff.

11. The defendant says that these criticisms of the plaintiff were substantially true. The evidence, in my view, amply bears this out. There is a consistent theme in the evidence, both from those who are presently employed by the defendant, those who were employed by the defendant but are no longer so, and people who were employed by those in a business relationship with the defendant, some of whom are no longer in such position, and are indeed no longer in Hong Kong.

12. The oral evidence given in court was from the plaintiff's immediate superior, Mrs Bodiley, and his indirect superior at the time, Mr Yeung. There were other statements adduced under hearsay notices from a number of other people. I appreciate, of course, quite fully that that evidence has not been tested by being on oath or subject to cross-examination, but there is ample evidence from Mrs Bodiley and Mr Yeung which supports what Mr Boulter had to say in that communication to the plaintiff.

13. The plaintiff himself gave evidence. I find that he was not a satisfactory witness. I cite one particular incident which indicates what I feel is the value of his evidence. Mr Yeung spoke about an incident when he was required to interview the plaintiff in the course of his duties as part of a performance appraisal scheme, and when he spoke to the plaintiff he asked him to tell him, Mr Yeung, about his weaknesses. There is, of course, nothing unusual about this at all when an employer is anxious to run an efficient business and to ensure, as far as it is possible, that its employees are developing in their careers. The plaintiff's response to this not unusual question was, in my view, remarkable. He essentially said to Mr Yeung: Mind your own business. What he in fact said to him was: "Why don't you tell me about your weaknesses first?"

14. I made it quite clear to the plaintiff during the course of the trial that I found this extraordinary. I said this to enable him to perhaps persuade me that there was some unusual circumstance which justified such extraordinary behaviour by a subordinate to a more senior employee placed in authority over him. He said that he had reacted in this way because Mr Yeung was asking him, not about his work, not about his weaknesses in relation to his work, but in relation to his private life, but the plaintiff was quite unable to give any kind of basis for such a belief.

15. When that interview continued Mr Yeung asked the plaintiff, in essence, why he thought that there were difficulties in his relationships with other people. The plaintiff, in essence, said in reply that he had no difficulties, it was the difficulties of the other people that Mr Yeung should be concerned about. I do not accept that the plaintiff had any real belief that Mr Yeung was improperly inquiring into his private life, and I take it that his reaction, the plaintiff's reaction to Mr Yeung's query, was simply symptomatic of his general attitude to the defendant and those placed in authority over him and, indeed, those with which the defendant had commercial relationships.

16. To a large extent the plaintiff doesn't deny the facts relied upon by the defendant. He seems to accept that he didn't perhaps have the personal contact with other people within his organisation, but seems to believe that he had no obligation to do so. He seems to accept that when his superiors asked him about how he saw his career developing, where he would like to go, what he would like to do, and he responded that: "I have no wishes at all, I will do precisely what I am told to do, and that's it", that that was not in some way negative, unhelpful and uncooperative, which it was, of course.

17. So my finding is that where the plaintiff's evidence conflicts with that of Mrs Bodiley and Mr Yeung, I have no hesitation in accepting the evidence of the witnesses for the defendant. Quite apart from the inherent more attractiveness of their evidence, what they have to say is corroborated by the contemporary documents. Naturally, as the plaintiff has pointed out, those documents do not recite in terms precisely what the witnesses have said, one wouldn't expect them to do so. It is quite clear to me from the history of this whole matter that the defendant and its senior employees have, over the years, bent over backwards to try and accommodate the plaintiff.

18. It is quite clear that everybody who came in contact with him respected his technical skills and his abilities in the technical area, and also his intelligence. Clearly, the defendant was anxious to try and retain those skills. It is clear that to some extent the defendant was prepared to put up with the plaintiff's eccentricities to enable it to continue to employ him. But as things developed, it seems clear to me that what happened was that the senior employees of the defendant simply decided that it was not worth the candle. The plaintiff was simply too difficult to fit into an organisation, no matter how useful his skills were.

19. What is impressive about the evidence, those who gave oral evidence before me and that contained in the hearsay notices - I again repeat that, that I use that only insofar as it is interesting to see the consistency of the theme running through all that evidence - nobody suggests that the plaintiff was not in many respects a valuable employee. The theme is a good man, good at his job, his technical skills were good. There is no suggestion that he was lazy or didn't apply his skills but, they all say consistently, difficult. Difficult to deal with, difficult within the organisation, difficult with people outside the organisation with whom he was required to work. That consistent theme is impressive.

20. All the plaintiff can say about all this is that they lied, they all lied, and he is quite unable to give any kind of plausible explanation for why a disparate group of people should come up with the same consistent story in the absence of some enormous conspiracy. The plaintiff appreciates this, and he has to say in the end that there was such a conspiracy, that all these people conspired against him. That, of course, is little short of ridiculous. There is no evidence whatsoever which would suggest that these people from different backgrounds, different employers, different motivations if you like, should come together in a scheme to damage the plaintiff.

21. My conclusion is that on all the evidence I find, indeed, the plaintiff was in his working life with the defendant unnecessarily aggressive and abrasive and was not considerate of other people's points of view and he did not listen to those views with the proper care and respect that one would expect in such an organisation. Consequently, the alleged defamatory words are, in my judgment, substantially true and a defence of justification is established.

22. Even if, however, I am wrong in that regard, and there is some measure of defamation in what Mr Boulter said, then it is quite clear that that communication was written on a privileged occasion. He had a duty to write it. Those to whom he copied it had a duty to receive it, and an interest to receive it. As I said, Mr Yeung was his indirect superior, Mrs Bodiley his direct superior, and Constance Au was the personnel manageress. Each one of them you would expect in the ordinary course of things to want to know for the interests of the defendant, their employer, what Mr Boulter had said to the plaintiff. Quite clearly this is a classical case of a privileged communication; privileged of course in a qualified sense, and that privilege can be destroyed only if the plaintiff is able to establish that those employees concerned were activated by malice, that is, they were not doing what it seemed they were doing, that is, that Mr Boulter was not writing to the plaintiff pointing out his weaknesses, but that there was some other indirect purpose here.

23. It is still not entirely clear to me what the plaintiff suggests was that indirect purpose, but I think, if I understand him properly, it is suggested that Mr Boulter was not genuinely issuing a warning to him, but was in some way lacking in good faith and had some kind of, to use the plaintiff's own words, hidden agenda. This, of course, cannot be so. The defendant was not obliged to give the plaintiff a warning unless it was perhaps proceeding under the disciplinary procedure, which it clearly wasn't. The defendant, especially after the long history of this case, was perfectly entitled to call the plaintiff in and say: "Mr Cheung, we have come to the end of the road, here is three months pay in lieu of notice, off you go."

24. There was absolutely no need for the defendant to conspire with the others, as I understand it must have been the case, in order to lead indirectly by some convoluted route to the dismissal of the plaintiff. If there was no need to do that, then it is very difficult to understand why this indirect motivation should have been in the mind of Mr Boulter. There is no evidence whatsoever, not even from the plaintiff himself, that there was any kind of indirect motive, any kind of malice at all in the publication of this document.

25. All the plaintiff could do, both in his evidence and when addressing the court, was to raise what he saw as real possibilities of one kind or another. In my judgment there is no basis at all for any kind of, even suspicion, quite apart from the probabilities, even a suspicion that there was any kind of malice by the defendant here. As I have said earlier, the defendant's conduct tends to the contrary.

26. Reading through the documents during the course of the plaintiff's career with the defendant it is clear, as I have said before, that his superiors were prepared to give the plaintiff a lot of leeway. They were prepared to try and accommodate his somewhat odd behaviour. That is not the conduct of people who had some kind of improper motivation to get rid of the plaintiff. When one considers that at any time at all the defendant could have terminated the plaintiff's employment with no trouble at all, with no possibility of complaint, years before they actually did it, then any suggestion that they were motivated by malice becomes ludicrous. Accordingly, the plaintiff's claim in respect of liable is also dismissed.

27. There remains only the question of costs. Mr Yu for the defendant has urged me to award costs on an indemnity basis. He says that the behaviour of the plaintiff justifies such an order. Perhaps in other circumstances I would agree with that. In many ways the plaintiff's behaviour has been disgraceful. In the words of the authority, his conduct of this case has been an affront. He has made wild allegations about almost everybody in sight. When he is lost for some kind of motivation for somebody doing something against him, then he thinks nothing of making allegations without any evidence at all, and some of those allegations quite disgraceful.

28. He suggests even that the defendant's solicitors were indulging in criminal and fraudulent behaviour. He suggests that they were trying deliberately to conceal documents from me. Such a suggestion is, of course, quite ridiculous. The documents are in the court file, there is no question of anybody trying to conceal them. He suggests that people were incompetent. He suggested that a Mr Chau was a cheat and that he was involved in the embezzlement of money from the defendant. He suggests that Mr Chau gave no real service to the defendant and was cheating by taking his salary. Again, no basis for these suggestions whatsoever.

29. However, I have come to the conclusion, after listening to the plaintiff over the past five and a half days, that there is a measure of lack of responsibility, and I mean that in the sense that I feel that sometimes he is not aware of what he is doing. I know perfectly well - he has told me only a short time ago - that he accepts responsibility for everything he has done. My own view, however, is that he is a man with many talents, but that he has a serious personality problem. I don't expect him to listen to me and take my advice, because I have tried to tender that to him already, but I put it on record that I do think that he needs some help.

30. He is a man, as I have said, with many talents, but he has a defect which could ruin his life. Unless he sorts that out he is heading for this kind of thing time and time again. His life will be ruined. Because I have that firm impression - that what people have said about him, that is, that he does not listen, he does not listen to other people's opinions, that he is very strong in his views - indicates to me that there is perhaps a way it could be said that he cannot help himself in this sort of matter and I am reluctant in those circumstances to exercise my discretion to award indemnity costs against him.

31. Mr Yu made it clear that what he wanted was some kind of indication from the court that it thoroughly disapproved of what the plaintiff has done. The defendant has that. What I have said I think makes it clear. I do not think the defendant can be criticised in this matter to any substantial degree at all, and that the plaintiff has on occasions let his mouth run away with him when he has made outrageous suggestions about servants of the defendant and other people involved, including the defendant's own solicitors which I regard as totally unjustified. Accordingly, I simply award costs on the ordinary basis.