LI CHI SUM v. SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF FIRE SERVICES

DCEO 11/2017 & DCEO 5/2018

(Consolidated)

[2024] HKDC 273

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NOS 11 OF 2017 & 5 OF 2018

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BETWEEN

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(Consolidated by the Order of Mr Registrar Ho

of the District Court dated 28 February 2018)

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DECISION

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A. Introduction and Background

1.  There are two applications before the Court:

(1) the Respondent’s application by summons dated 19 September 2022 to strike out paragraphs 11 to 17 of the Claimant’s Amended Consolidated Notice of Claim (“ACNOC”) on grounds of limitation (“Strike Out Application”); and

(2) the Claimant’s application by summons dated 1 August 2023 for leave to amend the ACNOC (“Amendment Application”).

2.  There is a long history to the disputes between the parties. The factual background was set out in section II of the Court of Appeal’s Judgment at [2021] HKCA 82 dated 20 January 2021 (“CA Judgment”).

3.  Since the CA Judgment, the second disciplinary proceedings[1] were completed, and the Claimant was convicted of the charges against him in December 2022. In April 2023, the Respondent informed the Claimant that his appeal against the convictions was unsuccessful and he was ordered to retire with full benefits. The Claimant has indicated that he intends to pursue further proceedings by judicial review.[2]

4.  For present purposes, it suffices to note that:

(1) The Claimant advances in these proceedings three causes of action against the Respondent, his former employer, namely disability discrimination, breach of employment contract and tort of negligence.

(2) In the prayer for relief of the ANOC, the Claimant seeks various declarations along with damages for inter alia discrimination and harassment under sections 11, 22 and 72 of the Disability Discrimination Ordinance (Cap 487) (“DDO”), breach of the Claimant’s employment contract, and personal injury by reason of the Respondent’s or the Fire Services Department (“FSD”) employee’s acts in allegedly causing and aggravating the Claimant’s psychiatric illness.

B. Amendment Application

5.  According to the Claimant’s counsel, Mr Chu, the Amendment Application was brought to seek leave to plead to recent matters, including those concerning the second disciplinary proceedings.

6.  The Respondent’s opposition to the Amendment Application is confined to paragraphs 40A and 40B of the draft Reamended Consolidated Notice of Claim (“Draft RACNOC”). According to the Respondent’s counsel, Ms Seto, the Respondent’s position was communicated to the Claimant for the first time in the Respondent’s Skeleton Submissions dated 24 November 2023.

7.  At the hearing, Mr Chu informed the Court that the Claimant no longer sought leave to amend in respect of the said paragraphs 40A and 40B.

8.  As the Respondent does not oppose the other proposed amendments, I grant leave to the Claimant to amend the ACNOC as per the Draft RACNOC (except for paragraphs 40A and 40B), and leave to the Respondent to make consequential amendments. The question of costs will be dealt with in accordance with paragraph 44 below.

C. Strike Out Application

9.  Turning to the Strike Out Application, the Respondent’s position is that the Claimant is precluded on limitation grounds from relying on ACNOC paragraphs 11 to 17 for his claims. Paragraphs 11 to 17 plead to alleged events happening between December 2010 and April 2012. The Respondent argues that the Claimant is time barred under section 82(1) of the DDO and section 27(4) of the Limitation Ordinance (Cap 347) (“LO”).

10.  In considering the Strike Out Application, I bear in mind the following principles which are well settled:

(1) The Court should only strike out a pleading in a plain and obvious case, and should not resolve any material factual dispute or difficult question of law in a strike out application.

(2) Where a limitation defence is raised, the onus is on the plaintiff/claimant to prove that the cause of action relied on accrued within the limitation period. This does not amount to reversal of the burden of proof: Lucy Michaels v Centaline Property Agency Limited & Ors [2020] HKCA 706, paragraph 53 (Kwan VP).

C1. DDO

11.  It is not in dispute that the Claimant’s claims under the DDO are subject to the limitation period prescribed in DDO section 82(1), which provides (insofar as relevant for present purposes) as follows:

“The District Court shall not consider a claim under section 72[3] unless proceedings in respect of the claim are instituted before the end of the period of 24 months, beginning—

(a) when the act complained of was done…”

12.  As noted above, ACNOC paragraphs 11 to 17 concern matters which purportedly took place between December 2010 and April 2012. It is specifically contended that during this period, the Respondent:

(1) required the Claimant to go through 4 additional appraisals at short intervals;

(2) based on the said appraisals, successively stopped the Claimant’s salary increment, deferred his salary increment and recommended him for retirement;

(3) considered or recommended the Claimant to retire; and

(4) in an alleged bid to expel the Claimant from the FSD, asked the Claimant to consent to his referral to assessment by the Medical Board, which (it is alleged) could result in his being recommended for retirement with retirement benefit on medical grounds.

13.  These acts were apparently done, on the Claimant’s own pleaded case, more than 24 months before he commenced these proceedings on 14 July 2016. A claim based on them is thus prima facie time barred under DDO section 82(1).

14.  In response, the Claimant seeks to rely on DDO section 82(5)(b), which provides that “[f]or the purposes of this section…any act extending over a period shall be treated as done at the end of that period”.

15.  The issue is therefore whether any of the complained acts in ACNOC paragraphs 11 to 17 is an act extending over a period and such period did not end earlier than July 2014 (being 24 months before these proceedings commenced).

16.  Both parties refer to Tsang v Cathay Pacific Airways Ltd [2002] 2 HKLRD 677. The case concerned section 86 of the Sex Discrimination Ordinance (Cap 480), which is the equivalent of DDO section 82. There the Court of Appeal reviewed the English authorities and drew a distinction between (i) a complaint of a “one-off” discriminatory decision whether or not it has a long-term effect; and (ii) one of application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time: paragraphs 65 to 68 (Le Pichon JA).

17.  In the context of the DDO, (i) is governed by the general provision in section 82(1), whereas (ii) is “an act extending over a period” for which section 82(5)(b) applies.

18.  Having considered the relevant pleas in the ACNOC and the parties’ submissions, I do not think DDO section 82(5)(b) assists the Claimant. This is because the acts complained in ACNOC paragraphs 11 to 17 are “one-off” in nature. While they might have continuing consequences on the Claimant or (as the Claimant’s counsel submits) “linkage” with one another or with acts alleged elsewhere in the ACNOC, this does not turn them into continuing acts. There is also no plea to the effect that the complained acts constituted, or were instances of the application of, a discriminatory policy or regime by the Respondent.

19.  As a fall-back, the Claimant seeks to invoke DDO section 82(3), which states:

“Notwithstanding subsections (1) and (2), the District Court may consider any claim or complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

20.  The applicable principles are again not in dispute. In Siu Tung Choi v Foo Lum Holdings Ltd [2016] 1 HKLRD 1411, HHJ Alex Lee (as he then was) held (at paragraph 29) that:

“Although s.82(3), DDO gives the court a discretion to consider a claim which is out of time if it is just and equitable to do so, it has not spelled out the specific factors to which it should have regard. I accept the submission of Mr Chiu, with which Ms Seto does not seem to disagree, that in exercising the discretion, the court would be assisted by a consideration of the matters listed in s.30(3) of the Limitation Ordinance (Cap.347), insofar as they are applicable. I bear in mind, however, that the six specific factors listed there are non-exhaustive and that s.82(3), DDO requires the court to look at “all the circumstances”. I note also that it is well-established that under s.30 of the Limitation Ordinance it is for the plaintiff to show that it is equitable to allow the claim to proceed, and it is for the defendant to show prejudice if the claim is to proceed: see Cheung Yin Heung v Hang Lung Real Estate Agency Ltd. In my view, similar onuses should be placed on the claimant and the respondent respectively in relation to s.82(3) DDO. As aforesaid, when considering whether it is just and equitable to allow the claim to proceed, the court is entitled to take into account affirmation evidence filed by the parties.”

21.  The matters listed in LO section 30(3), which I shall regard as non-exhaustive, are as follows:

(1) the length of and the reasons for, the delay on the part of the plaintiff;

(2) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed under the statutory provision;

(3) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(4) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(5) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(6) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

22.  The Claimant has not filed any affirmation evidence in support of his case on DDO section 82(3). Instead, he seeks to rely, by way of counsel’s submissions, on various matters set out in pleadings to make the point that the period of delay “largely overlaps with the period where [he] suffered from mental disorder”, and that he “was busy handling the disciplinary proceedings against him”.[4]

23.  The Claimant was out of time under DDO section 82(1) for 2 years and 3 months up to 3 years and 7 months (depending on which complained act one is concerned with in ACNOC paragraphs 11 to 17). The delay is not minor. The matters submitted by the Claimant’s counsel are not self-evidently sufficient explanation for the delay. It is in my view incumbent upon the Claimant to file affirmation evidence to explain the delay and any other matters relevant to the Court’s exercise of discretion. Absent such explanation, I do not think the Claimant can begin to invoke section 82(1) to lift the time bar.

24.  I should mention that the Respondent filed the Affirmation of Yeung Sui-sang on 24 November 2023 to explain the prejudice which the Respondent says he would suffer if the Claimant’s claims based on ACNOC paragraphs 11 to 17 were allowed to proceed. Mr Chu does not object to the filing of this affirmation, but takes issue with the veracity and/or extent of the prejudice asserted therein. Given my view in the preceding paragraph, it would not be necessary to resolve the parties’ dispute in this regard. Suffice it to note that the prejudice asserted by the Respondent is not prima facie incredible, given the long lapse of time since the happening of the events pleaded in ACNOC paragraphs 11 to 17.

25.  For the above reasons, the Claimant is time barred insofar as his claims under the DDO is based on matters pleaded in ACNOC paragraphs 11 to 17, and the Court shall not consider such claims insofar as they are based on the said pleas by virtue of DDO section 82(1).

C2. Tort

26.  As to the Claimant’s cause of action in tort, the Respondent submits that it is governed by LO section 27, which provides (insofar as relevant for present purposes):

“Time limit for personal injuries

(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an Ordinance or imperial enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2) Section 4 shall not apply to an action to which this section applies.

(3) Subject to section 30, an action to which this section applies shall not be brought after the expiration of the period specified in subsections (4) and (5).

(4) Except where subsection (5) applies, the said period is 3 years from—

(a) the date on which the cause of action accrued; or

(b) the date (if later) of the plaintiff’s knowledge.”

(Emphasis added)

27.  “Personal injuries” is interpreted in LO section 2 to include “any disease and any impairment of a person’s physical or mental condition, and injury shall be construed accordingly”.

28.  Mr Chu accepts that LO section 31(4) prescribes the limitation period for the Claimant’s cause of action in tort.

29.  In my view, the Claimant’s concession is fairly made. His claim in tort is clearly one for damages for personal injuries:

(1) ACNOC paragraph 40 pleads that, in breach of his duty of care to the Claimant, the Respondent negligently caused, allowed or suffered certain acts to be done, which “eventually worsened, aggravated, triggered and/or provoked the Claimant’s psychiatric illness of adjustment disorders and disturbed behaviour”.

(2) The prayer for relief seeks at paragraph (7) “[d]amages for personal injury by reason of the Director’s or FSD employees’ acts in causing and aggravating the Claimant’s psychiatric illness”.

30.  It is trite that a cause of action in tort accrues when real and actual damage resulting from the tortious conduct is incurred. The acts pleaded at ACNOC paragraphs 11 to 17 allegedly caused damage to the Claimant, and such damage (in the form of psychiatric illness) was incurred more than 3 years before he commenced these proceedings on 14 July 2016. A claim based on these is therefore time barred under LO section 27(4).

31.  The Claimant has not asked to invoke section 30(1) of the LO, which provides that where it appears to the Court it would be equitable to allow an action to proceed, the provisions in inter alia section 27 may be dis-applied. In any event, I have already considered the relevant principles and factors in the context of DDO section 82(3). I do not think the Claimant is entitled to rely on LO section 30(1) for the reasons set in paragraphs 22 and 23 above.

C3. Contract

32.  At the hearing, I asked parties what the applicable limitation period is for the Claimant’s cause of action in contract. Specifically, the Claimant pleads that the Respondent was in breach of “the express terms of the Claimant’s employment and the guidelines under the Disability Circular[5]”, as well as “implied terms of mutual trust and confidence in the Claimant’s employment in the FSD”: ACNOC paragraphs 32 to 38. I note that the alleged particulars of breach include the matters complained of at ACNOC paragraphs 11 to 17: see ACNOC paragraphs 34(2), (3), (14), (15), 35(4), (5) and 36(4).

33.  Ms Seto submitted that the applicable period remains 3 years under LO section 27(4). Her first line of argument is that since the claims in the present action consist of or include damages in respect of personal injuries to the Claimant, that is sufficient to bring the matter within the ambit of LO section 27(1).

34.  I do not think this is the correct analysis. As is evident from the wording of LO section 27(4)(a), the limitation period is 3 years from “the date on which the cause of action accrued”. One should therefore consider if a particular cause of action is for damages that consist or include damages in respect of personal injuries to the Claimant.

35.  Ms Seto then submitted that, in any event, the Claimant’s cause of action in contract is caught by LO section 27(1) because (i) it is for damages for breach of duty by virtue of a contract and (ii) the damages claimed consist of or include damages in respect of personal injuries to the Claimant.

36.  I therefore enquired with Mr Chu what type(s) of damages the Claimant is seeking for his cause of action in contract. Mr Chu said such damages include:

(1) damages for loss of salary increments; and

(2) damages for personal injuries.

37.  The type(s) of damages the Claimant seeks is not at all clear from the ACNOC. Paragraph 38 is a general plea (without particulars) that “[b]y reason of the Director’s breach of the aforesaid express and/or implied terms of employment, the Claimant has suffered loss and damage”. It then states that “[d]etails of such loss and damage will be set out in a Statement of Damages to be filed separately”. But no such Statement of Damages has been filed. The prayer for relief at paragraph (6) seeks, again in general terms, “[d]amages for breach of the Claimant’s employment contract”.

38.  There is no specific plea, as Mr Chu acknowledged, for damages for the Claimant’s alleged loss of salary increments. In any event, given Mr Chu’s acceptance that the damages sought for the Claimant’s cause of action in contract include damages for personal injuries, that would bring the matter within the remit of LO section 27(1).

C4. Other Submissions

39.  For completeness, I shall deal with the following submissions by the parties.

40.  Mr Chu made the point that even without ACNOC paragraphs 11 to 17, that would not be fatal to the Claimant’s causes of action which are also based on other pleaded matters. The matters in ACNOC paragraphs 11 to 17 are “factual background” and should be allowed to remain.

41.  In this regard I accept Ms Seto’s submission that ACNOC paragraphs 11 to 17 are objectionable because they do form part of the basis on which the Claimant seeks damages in these proceedings under his various causes of action. This is apparent from the particulars set out at ACNOC paragraphs 28(2) and (4) (under DDO); 34(2), (3), (14), (15), 35(4), (5) and 36(4) (in contract); and 40(3) (in tort) (“Other Paragraphs”). ACNOC paragraphs 11 to 17 are thus liable to be struck out.

42.  On the other hand, Ms Seto made the further submission that the Court should strike out the Other Paragraphs on its own volition if it were to accede to the Strike Out Application. As these Other Paragraphs are not referred to in the Respondent’s summons and Ms Seto’s request was only made for the first time at the hearing, I am not minded to accede to the request. The parties will be at liberty to address the Court on the implications of this decision (if any) on the Other Paragraphs at trial.

D. Conclusion

43.  For all the reasons above, I order that:

(1) Paragraphs 11 to 17 of the ACNOC be struck out on the ground that they are statute-barred under section 82(1) of the DDO and section 27(4) of the LO;

(2) Leave be to the Claimant to amend the ACNOC as per the Draft RACNOC (except for paragraphs 40A and 40B); and

(3) Leave be to the Respondent to make consequential amendments to its Consolidated Notice of Response, to be filed and served within 28 days from the date of this order.

44.  I was given to understand at the hearing that there were without prejudice correspondence between the parties that may be relevant to the issue of costs. As such and as indicated at the hearing, I shall direct the parties to lodge their submissions on costs as follows:

(1) Each of the Claimant and the Respondent do file and serve written submissions of not more than 5 pages on the costs of the Amendment Application and the Strike Out Application, including the costs of the hearing, within 7 days; and

(2) Any written reply submissions of not more than 3 pages shall be filed and served within 7 days thereafter.

45.  I thank counsel for their assistance.