XCHRX CHENG HO KEE AND OTHERS v. SECRETARY FOR JUSTICE

HCA 16883/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16883 OF 1999

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RULING AS TO DIRECTIONS

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1. The first seven Plaintiffs listed in the present title to this action were at the time of the issue of the writ all serving officers of the Correctional Services Department of the Hong Kong Government ('the CSD'). The eighth Plaintiff was at the time of the issue of the writ no longer serving with the CSD. These eight Plaintiffs represent as 'lead Plaintiffs' more than three thousand other Plaintiffs whose identities appear in annexures to the writ. The various Plaintiffs range in age and rank and each possesses their own individual record of service. Some are still serving in the CSD, some have resigned or are retired.

2. The Plaintiffs say that at various times during the course of their service, and at various institutions, they have been required to be on duty outside of their normal working hours, the form of that duty being described by the CSD as 'overnight on call duty'. That duty, according to the CSD, attracted a particular rate of remuneration. But whatever the description employed by the CSD, the Plaintiffs claim that the duty required them, in fact, to be on stand-by away from their homes, either at their usual places of work or in barracks, and as such should in terms of the Civil Service Regulations have attracted a higher rate of remuneration than that paid to them. Accordingly, they seek a declaration that each of them is entitled, by reason of the nature of their duty, to that higher rate and, consequent upon that declaration, an order that the Defendant pay them by way of arrears the difference, if any, between what they were paid and what they should have been paid.

3. The Defendant, who is sued on behalf of the Government of the Hong Kong SAR, denies that in terms of their conditions of service, the Plaintiffs have been wrongly paid. It is the Defendant's case that the conditions of service are subject not only to the Civil Service Regulations but also to 'government regulations and circulars, Departmental Instructions, and any Ordinance or Regulations' which apply from time to time to the particular office or department in which each Plaintiff has served. The defence, as pleaded, is, in my view, quite plainly based on the contention that, in terms of the conditions of service found in those various sources, the Plaintiffs have been correctly paid. Having said that, at this time the Defendant makes no admission as to whether any of the duties alleged by the Plaintiffs were performed nor is any admission made as to the nature of such duties or their duration. These remain matters to be proved by the Plaintiffs.

4. In summary, two issues arise: first, as to liability and, second, should liability be proved, as to quantum. But in addition, in respect of a substantial number of the Plaintiffs, a third issue arises, one pleaded by the Defendant in the following terms:

"Further and in any event, it is denied that the Plaintiffs or any of them are entitled to claim any sums which fell due more than 6 years prior to the issue of the Writ of Summons in this matter on 27 October 1999."

5. In reply, it is pleaded on behalf of the Plaintiffs that the Defendant has been guilty of a deliberate breach of duty - presumably a duty to pay the correct rate of remuneration - in circumstances in which that breach was unlikely to be discovered for some time and, as such, in terms of section 26 of the Limitation Ordinance, the claims are not time-barred.

6. In light of these issues, to have more than three thousand claims adjudicated in one trial would, of course, be so unwieldy as to be incapable of a manageable resolution. For that reason, it has always been anticipated that (initially at least) there would be a trial of only a limited number of claims. Counsel for the Plaintiffs have chosen to call these limited number of Plaintiffs 'representative Plaintiffs'. They originally identified eight such 'representative Plaintiffs' although they seek now to add another three. The submission is made that they will cover all the different classes of Plaintiffs and that accordingly, after trial, the findings in respect of each of them will, in practical terms, bind all those Plaintiffs who fall into the same class. Counsel for the Plaintiffs claim that these eleven are truly representative. However, the defence does not accept that the term 'representative' is accurate. The defence prefers the phrase: 'lead Plaintiffs'. As I understand it, counsel for the defence say that, while no doubt, the judgment after trial will have the effect of 'shaking a lot of apples out of the tree' as the parties do agree to be bound by the findings of principle made in that first trial, nevertheless as, in factual terms, each and every case is individual - although based on certain common provisions of terms of service - it will not necessarily follow that the trial of the first Plaintiffs will resolve all the claims. It is argued that the term 'representative' may therefore be confusing. At this juncture, before pleadings are even complete, I do not think that a great deal turns on this. The phrase 'lead Plaintiffs' is, however, broader and less contentious and at this time I prefer to use it.

7. Both parties have sought directions as to the future conduct of this litigation. But, while there is a measure of agreement between them, there are a number of matters which fall to be determined by myself. However, before turning to those individual matters, it is, in my view, appropriate, by way of general guidance, to take measure of the words of Bokhary JA (as he then was) in Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd [1994] 2 HKC 264 at page 270:

"None of the basic rules of pleading have anything to do with technicality. All of them have everything to do with practical justice. They have always been of importance. Never before as much as now. For these days, there are more and more cases so vast and so complex that they push practically to its limit our system's capacity effectively to cope with them. Any laxity in their proper management, whether in regard to pleadings or anything else, can all too easily result in such cases spinning into confusion if not chaos - even before trial but especially at trial."

The identity and number of 'lead Plaintiffs'.

8. As I have said, counsel for the Plaintiffs originally chose eight 'lead Plaintiffs': those listed in the heading to this ruling. They now seek, by consent, to add three more persons to that list; namely, Leung Man Lung, Tam Wai Fu and Esmail Maurice. This makes for a total of eleven 'lead Plaintiffs'.

9. The defence, however, has suggested that the presently listed 2nd and 8th Plaintiffs should be replaced by more suitable Plaintiffs; namely, Chief Officer Khalid Mahmood Khan and ex-Principal Officer Antonio Joe da Silva. Counsel for the defence have also suggested, an additional 'lead Plaintiff'; namely, ex-Assistant Officer I Wong Loy Kam. Reasons why these gentlemen are considered more suitable have been detailed in an affirmation made by a senior member of the CSD's Human Resource Section.

10. Counsel for the Plaintiffs take strong objection to the substitution of their two chosen Plaintiffs by Chief Officer Khan and ex-Principal Officer da Silva. They are not resistant, however, to the addition of ex-Assistant Officer I Wong. At the first hearing in November of this year, Mr McCoy, senior counsel for the Plaintiffs, protested that it was for the Plaintiffs to decide how best to present their case, a role not to be usurped - no doubt for tactical reasons - by the Defendant.

11. While that, as a matter of fundamental procedural principle, may be correct, having read the affirmation of the senior member of the CSD's Human Resource Section, I am satisfied that the suggested substitutions are not made for any 'tactical' purpose as that term is usually understood in litigation.

12. What must be remembered is that the case for each and every Plaintiff will have to be decided eventually. If the 'lead Plaintiffs' chosen by counsel for the Plaintiffs are not truly 'representative' that will only add to both costs and time and will mean that a greater number of Plaintiffs not chosen as 'lead Plaintiffs' may have to have their claims individually adjudicated. In the circumstances, it seems to me to be perfectly equitable for the Plaintiffs suggested by the defence to be added to the list of 'lead Plaintiffs' rather than substituted for those already chosen. That way, those persons chosen by counsel for the Plaintiffs will remain but, perhaps out of an abundance of caution, three persons believed by the defence to be (in their category) more 'representative' will also have their cases adjudicated. It is therefore my direction that the three persons suggested by the defence be added to the list of 'lead Plaintiffs'. There will therefore be a total of fourteen 'lead Plaintiffs'. That, I believe, while making the trial more comprehensive, will not render it too unwieldy; certainly not when compared to the total number of Plaintiffs who exceed three thousand in number. As to the numbering of those extra 'lead Plaintiffs', I will leave that to counsel for the Plaintiffs.

Issues to be resolved at the trial.

13. In their suggested directions, counsel for the defence have made the following proposals; namely -

(a) The trial of this matter in the Lead Cases be limited to consideration of the question whether those Plaintiffs are entitled to the declaration prayed for in the Statement of Claim ("the Preliminary Issue").

(b) Should the Plaintiffs in the Lead Cases be successful at trial, there be tried at a subsequent hearing (not to be heard before the expiry of 6 months following delivery of Judgment in the Preliminary Issue) the assessment of how much overtime allowances are due and owing by the Defendant to the Plaintiffs, such hearing being released from the trial Judge should he so direct.

14. I presume that counsel for the defence seek to have the 'limitation issue' resolved at trial. Certainly counsel for the Plaintiffs seek to have that resolved and, in addition, ask that, if the lead Plaintiffs are successful, the quantum of their claims be assessed too.

15. I do see the sense of leaving over the quantum issues to be resolved at a separate hearing or series of hearings, perhaps before Masters of this Court. I also anticipate that, should the 'lead Plaintiffs' be successful at trial, no doubt the quantum of a good many of the claims will be resolved by the parties direct. But having said that I am of the opinion that, if the Plaintiffs are successful on liability, the quantum of their claims should be resolved at trial and not left over for a possible later hearing. I say so for the following reasons:

(i) with only eleven 'lead Plaintiffs' the preparation, examination and testing of the necessary evidential material will not place too onerous a burden on the parties nor will it unduly extend the trial;

(ii) although at this juncture it is not certain, it may transpire that, in assessing the quantum of individual claims, the judgment may identify a methodology which can later be adopted by other tribunals in assessing quantum;

(iii) the judgment may also identify and adjudicate upon any particular points of principle or fact that arise and become points in issue: that too will assist later tribunals;

(iv) there is, I believe, much to be said for Mr McCoy's point that, having brought their claims to trial, the 'lead Plaintiffs' are surely entitled, if successful, to be informed of the measure of their success in monetary terms rather than having to wait for some later hearing. As I see it, a fully-rounded judgment will not only complete matters for the 'lead Plaintiffs' but will in itself be a more complete guide for later tribunals which may be tasked with resolving questions of quantum for the remaining three thousand odd Plaintiffs.

16. Accordingly, it is my direction that the three issues of liability, limitation and quantum be dealt with at trial.

The nature of Defendant's pleadings.

17. Mr Chain, junior counsel for the Plaintiffs, submitted that, as the Defendant has not specifically pleaded that any distinction between rank and institution may effect the claims of the Plaintiffs, in the absence of any amendment to the pleadings, Defendant should not be entitled to argue such a distinction at trial.

18. But, as I have already indicated, in my view, the defence as pleaded is plainly based on the contention that each claim is to be assessed on the applicable conditions of service. Inherent in that is the contention that, if the terms and conditions of service differentiate between rank, institution or other factors in identifying what rates, if any, are to be paid, then those differentiations must be taken into account. In this regard, the first paragraph of Defendant's plea reads:

"Pending the provision of Further and Better Particulars and/or the service of Interrogatories herein and/or further investigation by the Defendant, no admission is made as to the identity, rank, place of work or any other detail relating to the service history (if any) of each Plaintiff. In the premises, paragraphs 1, 2 and 3 of the Statement of Claim are not admitted."

19. In the circumstances, I am not prepared, in the absence of an amendment, to restrict the Defendant in the manner suggested by Mr Chain.

Requests for further and better particulars made by the Defendant.

20. The defence has made three requests for further and better particulars which either remain unanswered or have not yet been answered to the satisfaction of the defence.

21. The first request is made in respect of paragraph 3 of the Statement of Claim and seeks the rank(s) of each Plaintiff and the institution(s) where each served at times material to his or her claim.

22. The second request is made in respect of paragraph 14 of the Statement of Claim and flows from the averment that some of the Plaintiffs were paid a special allowance. The defence seek to discover which Plaintiffs were paid a special allowance and to be given appropriate details of those payments.

23. Initially, as I understand it, the solicitors for the Plaintiffs protested that such information was not in their clients possession and was in the possession of the Defendant. But that, of course, is no answer. In this regard, the Supreme Court Practice 1999, Volume I at page 339 (18/12/63) reads:

"Facts within applicant's own knowledge - It is sometimes urged as an objection to an application for particulars that the applicant must know the true facts of the case better than his opponent. But this objections is misconceived: each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story."

24. In the circumstances, I am satisfied that the 'lead Plaintiffs' should supply the requested further and better particulars and indeed, on behalf of the Plaintiffs, Mr Chain has very fairly conceded that the 'lead Plaintiffs' do bear this obligation. The only question is when.

25. Orders may sometimes be given that the final particulars should only be given after discovery. See, for example, the Supreme Court Practice 1999, Volume I at page 339 (18/12/65):

"Inability to give - The party from whom particulars are sought often declares that he cannot give any further information, or that he cannot do so without laborious research or exhaustive inquiry. Such objections, if genuine, are often met by an order that he shall deliver forthwith the best particulars which he can at present give, with liberty to supplement them within specified period after discovery and inspection has been completed."

26. In my view, it is a pity that the Plaintiffs have not already sought the necessary particulars (at least in respect of their 'representative Plaintiffs') as these - or a material portion of them - could have been made available some time ago. In this regard, a letter from the Defendant dated 31 July 1999 states the following:

"Regarding your request for true copies of the Government records relating to the alleged overtime performed by your clients, wer have no objection to providing you with copies of the extracted and consolidated records, so far as our client still have records of the same, relating to duties and shifts on any specified date(s) of your clients subject to the production of the Data Request Authorization Form duly signed by your clients and the payment of reasonable copying charges. In the Data Request Authorization Forms, your clients should indicate against the specified date(s) the name of the institution they worked and their rank at the material time. Presently, we are instructed that our client has only kept records for the past few years in most, if not all, cases. Further, in view of the number of officers involved, it would not have been possible for our client to verify and make copies of the records within 14 days from the date of your letter. Copies of the same will be sent to you for your reference as soon as practicable ..."

27. But on reading this letter, certain difficulties present themselves. First, Government, it seems, may not have all the relevant data, especially that of some antiquity. Second, in order to retrieve the data, they require from the Plaintiffs the names of the various institutions where they worked at the relevant times and their corresponding ranks; all of this being information which the Plaintiffs, at best, only possess in part or which is subject to the fallibility of memory.

28. In the circumstances, while ideally I would have preferred the Plaintiffs to supply the particulars before discovery, I believe that the present reality of the situation dictates that the Defendant first make discovery of the relevant records in its possession related to the 'lead Plaintiffs' and that thereafter the Plaintiffs do distil and present those particulars which they say are relevant to their claim. If it was to be the other way around, I can foresee a good deal of administrative difficulty resulting in delay and unwarranted costs.

29. This still leaves, however, a third request for further and better particulars sought from the Plaintiffs in respect of what I have called the limitation issue. On my understanding, this request is not dependent on the archival material that I have made reference to above. Mr Chain has accepted that a reply is required and I will accordingly make an order in that regard for it to be supplied expeditiously.

Discovery.

30. The Plaintiffs seek early discovery. I am, however, persuaded by Mr Fok, senior counsel for the Defendant, that unrealistic directions in this regard will inevitably result in applications for extensions of time: a further waste of costs and extra time burdens placed on the Court. We are now into early December. The Christmas season is almost upon us followed by the Lunar New Year. I must take these festivals into consideration. My directions as to time have, therefore, been relatively generous. The reverse side of the coin, however, is that the court will not be overly sympathetic to any future requests for extension of time.

Liberty to apply.

31. Directions of this kind related to large and complex litigation often require 'fine tuning'. There will, therefore, be liberty to apply.

32. One matter which concerns me but was not, as I remember, canvassed at the hearing is the matter of the various requests for further and better particulars in respect of the balance of the Plaintiffs; that is, those body of persons who do not now constitute the 'lead Plaintiffs'. I can foresee a time when particulars concerning those persons will be demanded by the defence. The matter of discovery flows from or is collateral to this too. What will be the initial ambit of discovery? If, as I understand to be the case, discovery is made in respect of the 'lead Plaintiffs' only, when, if at all, will formal discovery be required in respect of the balance of the Plaintiffs? At this juncture, I believe I can leave such matters to the good administrative sense of counsel. Should further directions be required, application can be made.

Costs.

33. As to the matter of general directions, I am satisfied that the correct order is one of costs in the cause. Costs related to the requests for further and better particulars made by the defence present a more difficult problem and in respect of those matters only I will order that costs be reserved. In my judgment, they require further argument at an appropriate time.

Directions.

34. My directions are, therefore, as follows:

1. That the claims of the following Plaintiffs ('the lead Plaintiffs') shall be tried as lead cases, the remaining Plaintiffs (and in respect of those remaining Plaintiffs, the Defendant) agreeing to be bound by findings of principle in the lead cases: the lead Plaintiffs being -

1 Cheng Ho Kee
2 Pang Chung Yin
3 Cheng Po Chuen
4 Lau Siu Yin
5 Poon Chi Ming
6 Law Kam Kuen
7 Lau Kon Ching
8 Lui Ho Yeung
9 Leung Man Lung
10 Tam Wai Fu
11 Esmail Maurice
12 Khalid Mahmood Khan
13 Antonio Joe Da Silva
14 Wong Loy Kam.

2. That the Plaintiffs shall be at liberty to so number and order the lead Plaintiffs as they deem fit, leave being granted to amend the writ (and other pleadings) accordingly.

3. That the fourteen lead cases shall be tried in respect of all issues relevant to those cases, these issues to include the liability of Defendant, consequent damages (or assessment of loss), the issue of limitation and costs.

4. That on or before 23 February 2001 each party shall file and serve upon the other lists of documents as to documents which are or have been in their possession, custody or power in relation to the lead Plaintiffs.

5. That there shall be inspection of documents within 7 days of service of the list of documents.

6. That the parties do exchange such witness statements relating to the lead cases as they wish to reply upon at trial on or before 27 April 2001. Such witness statements shall stand as the evidence-in-chief of the witnesses unless (and until) otherwise directed.

7. That in respect of the lead Plaintiffs, the Plaintiffs do file and serve no later than 4.30 p.m. on 19 March 2001 Further and Better Particulars of the Statement of Claim pursuant to the Defendant's 1st and 4th Requests made in writing on 21 December 1999.

8. That in respect of the lead Plaintiffs, the Plaintiffs do file and serve no later than 4.30 p.m. on 8 January 2001 Further and Better Particulars of the Reply pursuant to the Defendant's Request made in writing on 21 August 2000.

9. That there be liberty to apply.

10. That costs related to these directions shall be in the cause with the exception of costs related to the Defendant's requests for further and better particulars referred to in paragraphs 7 and 8 above; in respect of those requests costs shall be reserved. In respect of both orders of costs, fit for counsel.