DCEO 7/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES CASE NO 7 OF 2015
________________________
BETWEEN
鄺俞心
Claimant
and
雅居物業管理有限公司
Respondent
________________________
Coram:
HH Judge Ko in Chambers (Open to the public)
Date:
21 August 2017 at 10.54 am
Present:
Mr Kenneth Lam, of Kenneth Lam, for the claimant
Transcript of the audio recording
COURT:
This is the respondent’s application to strike out the claimant’s notice of claim and to dismiss the action.
By way of background, the claimant was employed by the respondent between 18 and 24 August 2014. On 21 August 2014, the claimant felt unwell and consulted a Chinese medicine doctor after work. She was diagnosed as suffering from flu, 外感, and was granted two days’ sick leave. She called in sick immediately that evening and did so again the next morning. When she returned to work on 24 August, her employment was terminated.
It is the claimant’s case that the fact that she was suffering from flu constituted a disability under the Disability Discrimination Ordinance. In this action, the claimant claims that the respondent had unlawfully discriminated against her by dismissing her on the ground of her disability, in contravention of sections 6 and 11 of the ordinance. She asks for a declaration to that effect and damages.
The respondent has yet to file a notice of response. According to the affirmation filed in support of this application and the submissions made by the respondent’s counsel, Mr Yung, the main defence of the respondent is that the claimant was not dismissed, but that she resigned on her own accord.
The respondent seeks to strike out the claim on the ground that it is frivolous, vexatious or otherwise constitutes an abuse of the court’s process. The main plank of Mr Yung’s argument is that the claim is bound to fail because the claimant had signed on a form called 離職申請表, indicating her intention to resign after 24 August 2014, as she had other plans.
Mr Yung submits that the claimant has provided contradictory explanations on the form. On the one hand, she claims in paragraph 17 of her witness statement that the form, including the signature attributed to her, is a forgery. On the other hand, she alleges in paragraph 20 of her affirmation in opposition that, and I quote:
“Whilst I signed on the paper, I was not explained about the contents of the paper. Also, I did not read the contents of the paper, since I was emotional and crying at the scene. I also felt coerced by the authority of Mr Choy(?) and Miss Ho(?). Due to the way Mr Choy presented the paper to me, I believed the paper was an acknowledgement of return of uniform. I did not write any words on the paper, apart from my signature. Since I did not read the contents of the paper and was not given a photocopy of the same, I am not unable(able?) to confirm whether the paper is the alleged application form for termination of service exhibited on Miss Ho’s affirmation.”
Mr Yung argues that neither explanation has merits.
Firstly, the Equal Opportunities Commission, who assisted the claimant in commencing this action, has ceased to act for her after obtaining expert advice on the authenticity of the handwritings on the form. The implication is that there is no substance in the forgery allegation.
Secondly, the form is very short and written in simple Chinese. It is unbelievable and incredible, so the argument goes, that the claimant could have mistaken about its effect and content.
On the face of it, the form tends to contradict the claimant’s case and favour that of the respondent, but the claimant has provided some explanation. The inconsistency alleged by Mr Yung is only apparent from the affirmation in opposition. By dismissing the action now, the claimant will be deprived of the opportunity to explain herself further and fully regarding the form.
I do not share Mr Yung’s optimism that the explanation presently offered by the claimant is necessarily contradictory and incredible. The respondent has tried to obtain a copy of the expert report from the Equal Opportunities Commission and the expert, but to no avail. What the respondent can say at most, at this stage, is that there is so far no expert evidence in support of the forgery allegation.
But that must be viewed in the context of the claimant’s elaboration in her affirmation that, whilst she might have signed on a paper, she does not know if that paper is the form now under dispute.
Ultimately, it is for the trial judge to decide whether the claimant was dismissed by the respondent or she resigned voluntarily. In so doing, the judge will take into account all the evidence, including the testimony of those present when the claimant’s employment was terminated, such as the claimant herself; the claimant’s immediate supervisor, Mr Choy; and the respondent’s chief building supervisor, Miss Ho; as well as the documentary evidence, such as the form.
It is for the judge to decide if the claimant’s explanation over the form is to be accepted after hearing her fully. What is more, the claimant has exhibited in her affirmation the written statements of Mr Choy, confirming that the claimant had been unreasonably dismissed, 無理解僱, upon the instruction of Miss Ho, because the claimant had taken sick leave just a few days after starting work with the respondent.
Mr Yung seems to suggest that these statements are recent fabrications, as the Equal Opportunities Commission would not have ceased to act for the claimant if the statements existed.
The Equal Opportunities Commission’s application to cease to act for the claimant was supported by an affirmation stating the grounds of the application, but that affirmation has been sealed under Order 67, rule 6A.
I do not think I should speculate on why the Equal Opportunities Commission has ceased to act for the claimant.
It is trite that only in plain and obvious cases that the court should exercise its summary powers to strike out a claim and that there should be no trial upon affidavit (see Hong Kong Civil Procedures 2017, paragraph 18/19/4).
In my view, the present application is an attempt to invite the court to try this case on affidavit. This is not advisable, according to the authorities. Based on the limited evidence now available, I am not convinced that it is plain and obvious that the claim should be struck out.
Lastly, Mr Yung complains that there had been no action on the part of the claimant for 10 months, after the Equal Opportunities Commission had ceased to act for her in these proceedings.
On this, the claimant confirms her intention to proceed with this action and explains that her inaction was due to the fact that she mistakenly thought this case had ended upon the Equal Opportunities Commission ceasing to act for her. She only realised that this action was still alive when she received the respondent’s solicitor’s correspondence.
Mr Yung confirms that the respondent is not applying to strike out the claim for want of prosecution, but only mentions that in passing by way of background. In any event, the Court of Final Appeal has confirmed that mere delay would not suffice (see Hong Kong Civil Procedures 2017, paragraph 25/L/2).
For these reasons, the respondent’s summons is dismissed. I will now hear the parties on costs.
(Proceedings between 11.05 am and 11.12 am not required)
Having heard submissions on costs, I order the respondent to pay the claimant the costs of this application. I am going to do summary assessment.
(Proceedings between 11.12 am and 11.26 am not required)
Now, I am going to assess the claimant’s costs summarily at $20,000, $20,000.
(Proceedings from 11.26 am not required)
Hearing adjourns - 11.30 am
21 August 2017
I/we certify that to the best of my/our ability and
This transcript is endorsed pursuant to s.60 of the District Court Ordinance, Cap.336.
(Justin Ko)
Acting Chief District Judge