何妙鸞 v. 鄺譪慧 AND OTHERS

HCA 2367/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2367 OF 2015

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DECISION

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Introduction

1.  This is the hearing of the Plaintiff’s appeal against Master Michael Wong’s order dated 29 September striking out her re-amended statement of claim and dismissing her action with costs to the Defendants.  At the conclusion of the hearing, I formed a provisional view that the appeal ought to be dismissed.  However, I was sympathetic with the Plaintiff as it appeared to me that her emotional condition, putting it mildly, was the major cause for her commencing this action.  Hence, I suggested to adjourn the hearing to enable the parties to discuss a settlement with a view to mitigate the Plaintiff’s costs liability.  The suggestion was well received by both parties.  However, after a long adjournment, no settlement could be reached.  Hereunder are the reasons for my decision.

The applicable legal principles

2.  The Defendants’ striking-out application was made pursuant to Order 18, rule 19 of the Rules of the High Court or its inherent jurisdiction.  As a starting point, Order 18, rule 7 requires that every pleading must contain and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence.

3.  Under Order 18, rule 19, the court has jurisdiction to strike out pleadings at any stage of the proceedings on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court.

4.  The legal principles applicable to striking out applications are well established.   See: Hong Kong Civil Procedure (2017) [1]. Very briefly, the claim must be obviously unsustainable, the pleadings unarguably bad and that it be impossible, not just improbable, for the case to succeed before a court will strike out.  If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out.  See Ha Francesca v Tsai Kut Kan (No 1) [2].  If the defective statement of claim could be amended to savage the deficiency, it should not be struck out nor should the claim be dismissed.  The plaintiff should be allowed to produce a draft or proposed amended statement of claim to the judge at the time of the hearing.  If the defect is curable by the proposed amendment, leave should be granted to amend the statement of claim and the striking out application dismissed.  See: Patriarch Partners Media Holdings LLC v Wong Siu Wa Sammy & Another [3].

5.  Some of the Plaintiff’s grounds of appeal are directed at the master’s conduct of the hearing.  However, it is trite principle that an appeal against a master’s decision to a judge in chambers is conducted by way of rehearing.  As this is a rehearing, I do not find it necessary to address those grounds of appeal.  In such an appeal, the appellant has the right to open the appeal.  The court will determine the merit afresh.

The Plaintiff’s re-amended statement of claim

6.  The Plaintiff’s re-amended statement of claim consists of seven sections.  In the first section, she pleaded that the 3^rd Defendant is her immediate supervisor with managerial responsibility over her; that her working relationship with the 3^rd Defendant worsened when the 3^rd Defendant learned that she had obtained a master degree; that she handled the work of four persons and that the 3^rd Defendant started office persecution against her including mental torture, personal attack, defamation, discrimination, unfair and unjust treatment.  Few particulars of these office persecution were given.

7.  In the second section, she pleaded the events on 12 August 2011 and alleged that the 1^st Defendant deceived her into attending a consultation with the 2^nd Defendant believing that he was a psychologist and not a psychiatrist; caused her to be diagnosed as suffering from mental illness; defamed her and labelled her as a handicap; and caused others to believe and draw the inference that she was devoid of work ability.  She further alleged that the 3^rd Defendant was the mastermind behind the above plot and disclosed her true name and identity card number to the 1^st Defendant to give to the 2^nd Defendant’s clinic without her consent.  She specifically averred that she had told the 2^nd Defendant that she only wanted to see a psychologist and not a psychiatrist; that she had no psychiatric problem and did not need to take medicine; and that she completed the consultation after being told that it was just a chat.

8.  In the third section, the Plaintiff pleaded that she informed the 2^nd Defendant that she would not attend further consultation but the 2^nd Defendant did not respond.  She alleged that the 2^nd Defendant had disclosed her medical condition in breach of her privacy.  She did not allege to whom and what was the disclosure made.

9.  In the fourth section, the Plaintiff pleaded the events between 15 August 2011 and 6 January 2012.  She alleged that the 1^st and 3^rd Defendants conspired together to disclose her personal data to the Human Resources Department of the University; that the 1^st Defendant disclosed to the Human Resources Department that she was diagnosed as suffering from psychiatric illness; and that the 1^st Defendant did not allow her to answer the 1^st Defendant’s telephone.  She alleged that the 1^st and 3^rd Defendants conspired together to remove her as the 1^st Defendant’s secretary.  She felt being disparaged, discriminated, laughed at and shunned by others.  She said that the 1^st Defendant had without her consent disclosed to others in writing or by causal conversation that she was diagnosed as suffering from psychiatric illness but she could not provide any evidence.

10.  In the fifth section, the Plaintiff pleaded the events between January and June 2012.  She made a formal application to Queen Mary Hospital for a copy of her medical report and wrote an e-mail to the 2^nd Defendant explaining the reason for her application, but the 2^nd Defendant did not respond.  In February she received a report from the 2^nd Defendant, which she alleged contained misrepresentation about her medical condition.  She said that if the 2^nd Defendant was not clear about her medical condition, he should have requested her for a follow-up consultation, but he did not.  She repeated her allegation of the 1^st and 3^rd Defendants’ oppressive conduct and unreasonable complaints which resulted in her being transferred out of the Breast Surgery Division.

11.  In the sixth section, the Plaintiff described an event in August 2012 in which she accused the 3^rd Defendant of attempting to force her to cover up the 1^st Defendant’s absence from duty by admitting it was her neglect in failing to file leave application form for the 1^st Defendant.  She refused and was asked to attend an interview with a senior manager of the Human Resources Department about the 1^st Defendant’s leave application and sponsorship matters. 

12.  In the seventh section, the Plaintiff described the events between March and August 2014.  During this period, the Plaintiff worked under the 4^th Defendant in the Colorectal Surgery Division. She alleged that the 4^th Defendant did not speak to her except scolding her; avoided contacts with her; did not allow her to answer the 4^th Defendant’s telephone; and sent e-mails to another colleague in breach of her privacy alleging she was suffering from mental illness.  She alleged that the 4^th Defendant identified her as suffering from mental illness and was a handicap.  She took sick leave from 26 August 2014.  When she returned for duty on 4 November 2014, the 3^rd Defendant did not allow her to return to her post in the Colorectal Surgery Division and assigned her to take up minor duty as a float secretary or a receptionist.  She repeated her complaint about discrimination and persecution.

13.  The Plaintiff’s re-amended statement of claim is difficult to understand.  In broad terms, her case is that the 3^rd Defendant, who was the departmental administrative manager with supervisory responsibility over her, became jealous of her when the 3^rd Defendant learned that she had obtained a master degree.  Then the 3^rd Defendant in collusion with the other Defendants started a course of office persecution against her leading to her transfer from the various divisions within the Department of Surgery eventually to the general office as a float secretary performing minor functions.  The persecution included defamation, discrimination, unfair and unjust treatment, severe mental distress and unauthorised disclosure of her personal data. It began with 1^st Defendant framing a case of her suffering a psychiatric condition by deceiving her into seeing the 2^nd Defendant, a psychiatrist.  Presumably, on the basis of that consultation, they spread defamatory rumours about her mental illness and inability.  As a result, she was shunned by her colleagues.   

The background

14.  The parties had filed one round of evidence. The facts set out below are based on the parties’ evidence which is not in dispute and the contemporaneous documentation which has never been disputed.

15.  The Plaintiff is a senior secretary working in the Department of Surgery of the Faculty of Medicine of the University of Hong Kong.  The 1^st and 4^th Defendants are associate professors in the Breast Surgery Division and the Colorectal Surgery Division respectively of the Department of Surgery.  The 2^nd Defendant is a professor of the Department of Psychiatry of the Faculty of Medicine who had given the Plaintiff a consultation session upon the referral of the 1^st Defendant.  The Plaintiff had never worked with him.  The 3^rd Defendant is the administrative manager of the Department of Surgery responsible for all administrative matters including secretarial service of the department.

16.  The Plaintiff has been working in various divisions in the Department of Surgery since 1985.  She worked as the 1^st Defendant’s secretary from March 2010 until May 2012 and as the 4^th Defendant’s secretary from March to August 2014.  Then she proceeded on about three months’ sick leave.  On her returned from leave on 4 November 2014, she was deployed to work as a float secretary in the general office. 

17.  Up until 31 March 2009, the Plaintiff had an average good appraisal report assessed by a team of reviewer comprising of one emeritus professor, the professorial head of department and an administrative staff member, none of whom included any of the Defendants herein.  For the year ending 31 March 2010, the same team of reviewers gave her an unsatisfactory report containing four unsatisfactory rating out of six performance indicators.  She was then posted to the secretarial pool of the Breast Surgery Division and became a secretary to the 1^st Defendant.  For the year ending 31 March 2011, she received a good appraisal report with five good rating showing marked improvement over the previous year.  Remarkably, the 1^st Defendant was one of the reviewers who replaced the professor, while the other two reviewers were the same.  This report discredits the Plaintiff’s case of unfair and biased treatment by the 1^st Defendant.  But, according to the Plaintiff, it was in August 2011 that her relationship with the 3^rd Defendant worsened.  For the year ending 31 March 2012, she received an unsatisfactory report with unsatisfactory rating for all six performance indicators.  The team of reviewers comprised of the 1^st Defendant, the professorial head of department who replaced the emeritus professor and another administrative staff member.  This report is consistent with the Plaintiff’s case of persecution by the 3^rd Defendant after she learned about the Plaintiff having obtained her master degree. While the Plaintiff appeared to disagree with the appraisal at the time, the authenticity of the appraisal reports as records of her work performance is not disputed.  She was then transferred out of the Breast Surgery Division to the general office.

18.  In March 2014, the Plaintiff was posted to the Colorectal Surgery Division where she worked until she proceeded on sick leave in August 2014.  When she returned from leave on 4 November 2014, she was posted to the general office work as a float secretary.

The consultation with the 2^nd Defendant

19.  The central theme of the Plaintiff’s case is that the 3^rd Defendant was the mastermind behind her persecution which began with her instigating the 1^st Defendant to deceive the Plaintiff into attending a consultation session with the 2^nd Defendant.   It was on the basis of that consultation that they launched defamatory rumours against her and commenced the other course of office persecution.  The events leading to that consultation and the consultation itself are germane and material facts in this action.  Hereunder is the Defendants’ evidence relating to these events extracted mainly from the Defendants’ affirmations which is not disputed by the Plaintiff and contemporaneous documents which are also relied on by the Plaintiff.

20.  At 6:03 pm on 11 August 2011, the 1^st Defendant received an incomprehensible e-mail from the Plaintiff accusing her of assisting another person described as “him” and causing personal problems to her.  The 1^st Defendant immediately called the Plaintiff to ask her what the e-mail was about; what she thought the 1^st Defendant had done; and who was “him” referred to in the e-mail.  The Plaintiff replied that it did not matter but did not elaborate.  The e-mail is reproduced hereunder:

“ I realize what is happening in these few days. I am surprised what you help him do this.

To my parents, they do all the best for me so that I have no grounds to blame them. To him, my anger and hatred drives him to be crazy to make a wrong decision. I have no ground to blame him. I need to take up full responsibilities of this matter. It is very complicated that I do not want to say one word of “apology” and one word of anything.

Yesterday, I was sitting at the foot of budha and listening Buddhism teaching. I understand that I have hurted him also. The best way which everyone know all are my faults. Would you transfer my wrong meanings to them which I will not transfer my pains to other people? I have sent best blessings to them for all the best in future.

I hold “enlightened attitudes” to my love, my life, my problems, my challenges and all other people. In these eight years, many people put serious cruelty and pains on me. I do not want to put one dust to hurt others. In this year, I learn to put down all my unhappiness and pains. I do not hate, blame and hurt him any more. I do not wrongly liove [love] him in these past seven years. I understand his problems. Not for marriage, I put his love permanently in my heart. You must understand how painful to erase my deep love from my heart.

Thank you very much very much a lot a lot for your kind protection, kindness, help and care. Do not promise him to do any request on me?

Everyone believe that I am the most wicked lady which is very good to me so that no one would like to make troubles and play on me. I am OK with this. I will concentrate all myself to my thesis and my work.

With best regards,

Constance”

The 1^st Defendant became concerned about the Plaintiff’s health and her ability in performing her duties. 

21.  On the next morning, the 1^st Defendant reported the incident to the head of department and informed the 3^rd Defendant.  She also arranged a meeting with the Plaintiff and the 3^rd Defendant.  During the meeting, the Plaintiff expressed that she had been suffering from stress and some personal issues for some time and felt that her colleagues were continuously checking on what she was doing.  She said she had some relationship problem but did not elaborate.  She did not explain why she sent the e-mail.  After the meeting, the 1^st and 3^rd Defendant and the head of department discussed the matter further and decided to refer the Plaintiff to a psychiatrist as they were worried about her condition and considered that there was a risk that she could hurt herself or others.

22.  Then the 1^st Defendant had a discussion with the Plaintiff and recommended her to consult a psychiatrist.  The Plaintiff agreed.  This part of the evidence is disputed by the Plaintiff who said that she was tricked into seeing the 2^nd Defendant believing he was a psychologist.  I consider the Plaintiff’s allegation incredible, but in any event on the basis of the Plaintiff’s own evidence, this dispute is immaterial.  This is because at the time of the consultation, she knew the 2^nd Defendant was a psychiatrist but nevertheless agreed to proceed with the consultation.  

23.  The 1^st Defendant referred the Plaintiff’s case to the Head of the Psychiatry Department of the University, Professor Sham, giving him the Plaintiff’s name and her identity card number. On the same day, the Plaintiff had a consultation session with the 2^nd Defendant as Professor Sham was on leave.  After the consultation, the Plaintiff told the 1^st Defendant that she was feeling better and that the 2^nd Defendant would arrange a further session with her.  She said that as she would be proceeding on a week’s leave she would attend that session after her leave. The 2^nd Defendant also informed the 1^st Defendant by telephone that he found the Plaintiff had been suffering from a lot of stress and had some delusion and that a further session had been arranged for the Plaintiff.  He did not inform her about his diagnosis.

24.  On 15 August 2011, the Plaintiff wrote to the 2^nd Defendant and requested him to close her patient’s file because she did not have any psychiatric problem.  She mentioned that she thought the consultation was a psychological consultation and not a psychiatric consultation.  On 17 August 2011, the 2^nd Defendant informed the 1^st Defendant that the Plaintiff declined further consultation.

25.  Leaving aside the disputed issue as to whether the 1^st Defendant had tricked her to see a psychiatrist, ie the 2^nd Defendant, instead of a psychologist, on the basis of the Plaintiff’s e-mail, the 1^st Defendant’s evidence is not in dispute and could not be doubted.  A medical consultation was arranged, be it with a psychiatrist or a psychologist, out of concern for the Plaintiff’s well-being and her ability in discharging her duties. The speed with which the 1^st Defendant handled the Plaintiff’s issue arising out of her e-mail and the fact that the consultation was arranged very expeditiously within hours on the following day reflect the genuineness of the 1^st Defendant’s concern for the well-being of the Plaintiff. 

The diagnosis

26.  The 2^nd Defendant did not know the Plaintiff.  He had a consultation with her on 12 August 2011 which lasted for two hours.  His provisional diagnosis was that she showed symptoms of a delusional state, which may indicate a diagnosis of a delusional disorder or depressive disorder.  That diagnosis was not definitive as he needed to conduct further assessment.  The Plaintiff agreed to attend a further session, but later requested to close her patient’s file.

27.  Several months later, in January 2012, the Plaintiff requested for a copy of her medical report expressly for the purpose “to prove the patient who denied have any psychiatric illness”.  Pursuant to her request, the 2^nd Defendant furnished a report.  In the report, he related what the Plaintiff told him during the consultation, including her belief that colleagues could know what she was thinking; that she had hot temper at home with her elderly parents; that she had stresses arising from the death of her pet cat, her studying for a Ph D degree and looking after her parents with memory problems.  She mentioned in particular that she felt a colleague had been interested in her romantically which she realised was not the case and she tried to adjust by getting involved in Buddhism and in a new relationship.  This explains her e-mail to the 1^st Defendant.   In conclusion, the 2^nd Defendant said:

“ My impression is that the patient showed symptoms of a delusional state. This could be in the context of a delusional disorder or a depressive disorder. Her definitive diagnosis needs to be clarified with further assessment over time.”

The case against the 2^nd Defendant

28.  I shall first deal with the Plaintiff’s case against the 2^nd Defendant.  It is simple, straight forward and revolves around a small scope of evidence, most of which is undisputed.  The pleaded case against the 2^nd Defendant is contained in the section 2 of her re-amended statement of claim.  In essence, the Plaintiff alleged that she was deceived into attending a consultation with the 2^nd Defendant thinking he was a psychologist and the consultation was part of the 1^st and 3^rd Defendants’ design “to cause her to be diagnosed as suffering from mental illness”.

29.  Despite the numerous allegations of discrimination and defamation made against the 1^st, 3^rd and 4^th Defendants, no such allegations have been pleaded against the 2^nd Defendant.  While it is alleged that the 1^st and 3^rd Defendants had conspired together to trick the Plaintiff into attending a consultation with a psychiatrist, the Plaintiff never pleaded that the 2^nd Defendant was a party to that conspiracy.  There is no allegation by the Plaintiff that the 2^nd Defendant made any representation to the other Defendants or indeed to anybody that the Plaintiff was mentally ill or was suffering from any psychiatric illness.  All that is alleged against the 2^nd Defendant is that he gave her a consultation session, which was part of the 1^st and 3^rd Defendants’ design “to cause her to be diagnosed as suffering from mental illness”.  That cannot found any cause of action against the 2^nd Defendant.

30.  Before striking out this pleading and dismissing the action against the 2^nd Defendant, I shall consider whether the defect could be cured by amendment. To cure that defect, the least the Plaintiff has to do is to introduce a plea that the 2^nd Defendant was a party to the deception and he made a false report about the Plaintiff’s mental condition.

31.  Despite all the allegations of deceptions made against the 1^st and 3^rd Defendants, the Plaintiff asserted that he told the 2^nd Defendant that she only wanted to see a psychologist and not a psychiatrist and that the 2^nd Defendant told her that that was unimportant as it was just a chat and seeing a psychiatrist was nothing out of the ordinary.  Clearly, the 2^nd Defendant had not deceived the Plaintiff as to his expertise not being that of a psychologist and had never been a party to that deception.  On the basis of the Plaintiff’s own evidence, it would be impermissible to plead that the 2^nd Defendant was a party to the conspiracy with the 1^st and 3^rd Defendants.

32.  As for the falsity of the report, it is not the Plaintiff’s evidence that the account given by the 2^nd Defendant as to what happened during the two hours’ consultation is untrue.  She has no dispute about the 1^st and 2^nd Defendant’s account of what led to the consultation.  She does not dispute that she sent her e-mail of 11 August 2011 to the 1^st Defendant.  In particular, she does not dispute that what the 2^nd Defendant recorded in the medical report was what she had told him; that she felt her colleagues knew what she was thinking by merely looking at her; that she felt her colleagues were jealous of her; and that management was watched over her.  She does not dispute that the 2^nd Defendant only made a provisional, but not definitive, diagnosis that she showed symptoms of a delusional state, which may indicate a diagnosis of a delusional disorder or depressive disorder.  She does not dispute that the 2^nd Defendant said he needed to conduct further assessment before he could make a definitive diagnosis.  While complaining that the 2^nd Defendant should have asked her to attend a follow-up assessment if he was not sure about her diagnosis, it was she who decided not to attend the follow-up session.  The report was prepared in February 2012 and not in contemplation of litigation which did not commence until three years later.  It was prepared at the request of the Plaintiff for her expressed purpose, which was “to prove the patient who denied have any psychiatric illness”.  There is nothing to suggest that the facts and opinion stated therein are false. 

33.  The Plaintiff said she was not suffering from any mental illness.  She said she had requested Professor Y K Wing of the Department of Psychiatry of the Chinese University for a consultation. However, the professor declined her request but promised to give her assistance if she was subject to discrimination.  There is no medical evidence to contradict the evidence in the 2^nd Defendant’s report.  The 2^nd Defendant has not made any diagnosis, not even a provisional one.  He only expressed his impression that the Patient showed symptoms of a delusional state and he need further assessment to make a definitive diagnosis.  That is well justified by what the Plaintiff told him during the consultation.  Apart from a vague mention that Professor Wing would help her, the Plaintiff has no evidence to challenge the correctness of the 2^nd Defendant’s report. There is no evidence that the 2^nd Defendant caused her to be diagnosed as suffering from mentally illness when she was not.

34.  However, the issue here is not whether the Plaintiff was suffering from mental illness but whether the 2^nd Defendant was a party to cause the Plaintiff to be diagnosed as suffering from mental illness.  Nothing in the report or in the evidence produced by the Plaintiff supports the allegation that the 2^nd Defendant has done anything to spread any rumour about the Plaintiff suffering from any mental illness.

35.  In conclusion, the second section of the re-amended statement of claim as it stands disclosed no reasonable cause of action against the 2^nd Defendant.  On the undisputed evidence from the Plaintiff and the 2^nd Defendant, there is no evidence to support any possible claim that the 2^nd Defendant was a party to the conspiracy between the 1^st and/or the 3^rd Defendant in deceiving the Plaintiff to attend a consultation with the 2^nd Defendant to cause her to be diagnosed as being mentally ill and to launch a series of office persecution against her.  The pleading as against the 2^nd Defendant is irreparable and must be struck out as disclosing no reasonable cause of action and the Plaintiff’s action against him should be dismissed.

The case against the 1^st Defendant

36.  The pleaded case against the 1^st Defendant is contained in the second, fourth and sixth sections of her re-amended statement of claim.  In essence, the Plaintiff alleged that the 1^st Defendant deceived her into attending a consultation with the 2^nd Defendant.  She pleaded that she believed she was to consult a psychologist and not a psychiatrist.  No particulars were given of the deceptive means used by the 1^st Defendant.  Next, she alleged that the 1^st Defendant caused her to be diagnosed as suffering from mental illness.  Again, no particulars were given as to how the 1^st Defendant caused her to be so diagnosed.  Then, she made a general allegation of the 1^st Defendant defaming her; labelling her as a handicap; and causing others to draw the inference that she had no working ability.  Again, there was a dearth of particulars.

37.  The 1^st Defendant filed in an affirmation explaining how the consultation was brought about.  The Plaintiff responded by a six-page affirmation and a bundle of exhibits comprising of 223 pages.  Most of her response was about her work performance and other un-pleaded matters.  But nowhere did she challenge the 1^st Defendant’s account of how the consultation was brought about.  She did not dispute about sending the e-mail to the 1^st Defendant on 11 August 2011; her subsequent conversation with the 1^st Defendant; and her agreement for the 1^st Defendant to arrange a medical consultation for her.  Leaving aside the disputed issue as to whether the 1^st Defendant had deceived her into seeing a psychiatrist instead of a psychologist, on the basis of the Plaintiff’s e-mail, the 1^st Defendant’s evidence is not in dispute and could not be doubted.  The spontaneity with which the events took place starting from the Plaintiff’s e-mail to the 1^st Defendant left no room to speculate, not to mention accommodate, the Plaintiff’s allegation that the consultation with the 2^nd Defendant was orchestrated by the 3^rd Defendant behind the scene pursuant to her agreement with the 1^st Defendant.  On the contrary, the speed with which the 1^st Defendant handled the Plaintiff’s issue arising out of her e-mail and the fact that the consultation was arranged very expeditiously within hours on the following day reflect the genuineness of the 1^st Defendant’s concern for the Plaintiff’s well-being and her ability in discharging her duties.  The consultation with the 2^nd Defendant was triggered by the Plaintiff’s e-mail.  It could not have been the result of a conspiracy between the 1^st and 3^rd Defendant or one which was orchestrated by the 3^rd Defendant behind the scene. 

38.  The Plaintiff did not plead how she was deceived into attending the consultation.  Assuming in her favour that her case is that the 1^st Defendant had falsely represented to her that it would be a psychological consultation, on the Plaintiff’s own evidence, she consented to the consultation knowing that the 2^nd Defendant was a psychiatrist and not a psychologist.  It was on that basis and with the understanding that the 2^nd Defendant was a psychiatrist that the Plaintiff had her consultation.  She even paid the fee after conclusion of the consultation.  She could not have been deceived into attending a psychiatric consultation.  Even if the 1^st Defendant had falsely represented to her about the nature of the consultation, on her own case that representation was not operative because she knew it was not true.

39.  The Plaintiff has not pleaded any fact as to how the 1^st Defendant caused the 2^nd Defendant to diagnose her as suffering from mental illness.  She does not dispute the 2^nd Defendant’s evidence that he could not reach a definitive diagnose without a further consultation and that she initially agreed to attend but later declined.

40.  There are other un-particularized allegations of office persecution jointly committed by the 1^st and 3^rd Defendants, such as oppression (越加嚴重壓迫), disparaging and ridiculing (蔑視和嘲笑) her, which the Plaintiff admitted was what she felt but she has no evidence.  Order 18, rule 7 of the Rules of the High Court requires that every pleading must contain and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence.  The Plaintiff’s allegations against the 1^st Defendant is wholly devoid of particulars.  She has filed over 200 pages of exhibits in opposition to the Defendants’ striking out application, including e-mails, letters, work record, duty lists and other documents.  That could not cure the defect of her re-amended statement of claim.  It is not for the Defendants to search through those voluminous exhibits and second guess what the Plaintiff’s case against them was and to plead their defence.  Furthermore, on her own admission, these complaints were just her subjective feeling and she has no evidence, or rather material facts, in support.  It is impossible for the 1^st Defendant to know what case she has to meet.  Such pleading is clearly vexatious or frivolous: Kaisilk Development Limited v Urban Renewal Authority [4].

41.  The Plaintiff’s case against the 1^st Defendant is premised on the 1^st Defendant deceiving her into attending a psychiatric consultation and causing her to be diagnosed as suffering from mental illness and from that diagnosis to launch persecution against her.  For reasons as explained above, that basic premise on which her allegation of office persecution and defamation was launched absolutely collapsed.  While the allegation of office persecution could stand alone, there is a total lack of particulars.  In conclusion, the pleading against the 1^st Defendant must be struck out as vexatious or frivolous and otherwise abuse of the process of the court and the Plaintiff’s action against the 1^st Defendant be dismissed.

Action against the 3^rd Defendant

42.  The 3^rd Defendant is the administrative manager with overall managerial and supervisory responsibility over the Plaintiff.  The Plaintiff’s case against her is that their working relationship worsened after the 3^rd Defendant learned that she had obtained a master degree and then in collusion with the 1^st Defendant they deceived her into attending a consultation with the 2^nd Defendant, caused her to be diagnosed as suffering from mental illness and pursued a course of office persecution against her.  She alleged that the 3^rd Defendant was the mastermind behind her persecution and that the 3^rd Defendant attempted to force her to cover up the 1^st Defendant’s absence without leave.  She also made other un-particularized allegations of defamation and discrimination.

43.  My finding in respect of the Plaintiff’s case against the 1^st Defendant is equally applicable to her case against the 3^rd Defendant.  Her case that the 1^st and 3^rd Defendants conspired to deceive her to attend a consultation with the 2^nd Defendant to cause her to be diagnosed as suffering from mental illness absolutely collapsed.

44.  As for the allegation of attempted cover up of the 1^st Defendant’s absence without leave, there is no dispute that the 3^rd Defendant had made enquiries about that matter with the Plaintiff by asking her if she would verify the leave applications of the 1^st Defendant.  She was given the option to either verify the leave application by signing a form provided by the Human Resources Department or to attend an interview with that department.  The Plaintiff chose the latter course.  It is impossible to derive from this incontrovertible evidence what the Plaintiff’s cause of action is; what was the persecution; and what damage she has suffered.

45.  The Plaintiff complained about being transferred out of the Breast Surgical Division and then out of the Colorectal Surgical Division and put on minor duties.  She felt being disparaged and ridiculed, but admitted that she has no evidence in support.  The 1^st, 3^rd and 4^th Defendants gave explanations, which are all related to the Plaintiff’s performance.  Putting those difference aside, on her own admission, the Plaintiff is unable to plead the material facts in support of her claim.  It is impossible for the 3^rd Defendant to know what case she has to meet.  Such pleading must be struck out as frivolous or vexatious and otherwise abuse of the process of the court and the action be dismissed.

Action against the 4^th Defendant

46.  The Plaintiff was posted to the Colorectal Surgery Division as a float secretary in March 2014 where she worked with the 4^th Defendant. There is no dispute that the 4^th Defendant did not allow her to answer her telephone.  The reason given by the 4^th Defendant was that she was not satisfied with the Plaintiff’s work performance.  The Plaintiff proceeded on sick leave from 25 August 2014.  Upon her return to work on 5 November 2014, she was posted to work as a float secretary in the general office and as a receptionist.  She alleged, without giving particulars, that the 4^th Defendant was prejudiced against her; made unjustified complaints about her work performance; identified her as suffering from mental illness; discriminated her; damaged her reputation; made unfair performance appraisal which ultimately resulted in her transfer out of the Colorectal Surgical Division. 

47.  Many of the exhibits filed by the Plaintiff in her affirmation in opposition to the Defendants’ application to striking out are directed at these disputes.  While the Plaintiff’s performance is a material issue in dispute, the crucial element of the Plaintiff’s case against the 4^th Defendant remains unclear.  There is no indication of the material facts relied on by the Plaintiff in support of her allegation that the 4^th Defendant identified her as being mentally ill and handicapped; discriminated her; subjected her to prejudicial, unfair and unjust treatment.  It is impossible for the 4^th Defendant to know what the Plaintiff’s case against her was.  Her pleading as against the 4^th Defendant should also be struck out as frivolous or vexatious and otherwise abuse of the process of the court and her action be dismissed.

Claim based on disability discrimination

48.  Section 72 of the Disability Discrimination Ordinance gives exclusive jurisdiction to the District Court over such claims for disability discrimination in the employment context.  Thus, to the extent that the Plaintiff’s claim is founded on disability discrimination, such claim must be dismissed as this court has no jurisdiction.  In addition, as regards those claims arising from events occurring in 2011 to 2012 concerning the 1^st to 3^rd Defendants, they are statute-barred under section 82 of that Ordinance which provides for a limitation period of 24 months.

Conclusion

49.  For the above reasons, the Plaintiff’s re-amended statement of claim must be struck out as frivolous or vexatious and otherwise abuse of the process of the court as against the 1^st, 3^rd and 4^th Defendants; and as disclosing no reasonable cause of action as against the 2^nd Defendant.  Accordingly, I uphold the master’s decision and dismiss the Plaintiff’s appeal with costs to the Defendants.