CHUA, GRACE GONZALES v. SOBREVILLA, RHENNIE BOY FERNANDEZ

DCCJ 3750/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3750 OF 2015

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DECISION

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BACKGROUND

1.  This dispute arises out of the plaintiff’s employment of the defendant as her domestic helper in 2014.

2.  According to the plaintiff, she carries on a consultancy business.  Amongst other things, she arranges for contracts and immigration visas for individuals who wish to come to work in Hong Kong as domestic helpers.

3.  The defendant is from the Philippines. 

4.  He and the plaintiff entered into an employment contract dated 30 May 2013.  The contract was in a standard form and under its terms, the defendant was employed as a domestic helper and he was to work at the plaintiff’s residence in Yuen Long.

5.  The defendant arrived in Hong Kong on 13 February 2014.  What happened shortly after his arrival, in particular in February and March, is a matter of heated dispute.  The dispute has given rise to a string of legal proceedings between the parties during the ensuing years.

(a)   On 24 March 2014, the defendant lodged a claim for statutory entitlements arising out of the employment at the Labour Department.  The claim was referred to the Minor Employment Claims Adjudication Board (the “MECAB”).  It proceeded under claim number MB0369/2014(E).  In June 2014, the case was settled.

(b)   Then, on 3 July 2014, the defendant filed a claim at the Labour Tribunal under action number LBTC 1987/2014.  It was withdrawn shortly afterwards.

(c)   He then filed a further claim at the Labour Tribunal under action number LBTC 2466/2014 on 15 August 2014. After a number of call-over hearings, the action proceeded to trial which lasted 15 days.  In February 2015, the defendant’s claim was dismissed.

(d)   The defendant then sought leave from the Court of First Instance to appeal from that decision.  By a decision handed down on 7 June 2017, leave was refused.

6.  In other words, the position as of today is that the defendant has lost his case for statutory entitlements in respect of his employment by the plaintiff.

7.  As the parties have been involved in multiple proceedings, it would be more convenient to refer to them from now on by their last names – “Chua” for the plaintiff and “Sobrevilla” for the defendant.

8.  Their cases, as pursued and disclosed in the series of litigation, are as follows.

9.  Chua says that Sobrevilla refused to work after his arrival.  Initially, he claimed that he was tired and wanted to relax and meet his mother before starting work.  (His mother and sister both worked in Hong Kong.)  Later, he told Chua that he wanted to get his Hong Kong Identity Card first before reporting for duty.  On 1 March 2014, Chua spoke to him and gave him notice that his employment would be terminated by the end of the month.

10.  Sobrevilla’s account of what had happened is starkly different.

11.  His case is that a Mr Lalaan, a pastor of a church in Hong Kong, had arranged for his employment contract with Chua.  He had received a sum of $18,000 from Sobrevilla’s mother and sister as fees for the arrangement.  Sobrevilla says that he had all along been ready and prepared to work.  However, upon arrival, he was taken to stay at a workers’ shelter.  He waited there to be called upon by Chua to commence work.  But it was only about ten days later, ie, 23 February, that he finally met her in a church.  Still, it was not until 9 March that Chua took him to her home briefly.

12.  On that occasion, she asked him to estimate how much it would cost to replace some balcony tiles.  She paid him one month’s wage and food allowance.  A few days later, in a restaurant, Chua confessed that she had been paid $9,000 by Lalaan to enter into the employment contract with Sobrevilla but in fact she had had no real intention to employ him.  In other words, it was a sham arrangement. 

13.  Then, on 14 March, she asked Sobrevilla to sign certain documents acknowledging the receipt of some payments, namely, wages for February and wages in lieu of notice, travel and food allowance and cost of air ticket.  Initially he refused to sign them as he had not in fact received the full amounts as shown in those receipts.  But he eventually agreed to do so as Chua told him that the documents were really for his protection. 

14.  Sobrevilla was then advised by a support group and was told that he was entitled to treat the contract as having been constructively terminated by Chua on 14 March.  Then followed the series of litigation initiated by Sobrevilla as outlined above in which he sought various statutory entitlements under the labour legislation.  The gist of his complaint has been that Chua and Lalaan had conspired to defraud him into entering into the sham employment and that he was a victim of exploitation. 

15.  That is of course a very serious allegation to be made against Chua.  That is particularly so given that she is in the business of arranging contracts for domestic helpers from the Philippines.

16.  Chua commenced the present action in August 2015, which was a few months after Sobrevilla’s labour claim was dismissed but before the application for leave to appeal was heard. 

17.  Her claim is for “Lost of Moral Damages” which she puts at $500,000 “as a ball-park figure”.  The claim is apparently based on what happened between her and Sobrevilla over the past few years.

18.  The application now before me is Sobrevilla’s application to strike out Chua’s statement of claim and her further and better particulars.  Alternatively, Sobrevilla asks for a determination under Order 14A of the Rules of the District Court that his legal action at the MECAB and the Labour Tribunal was subject to absolute privilege and if so Chua’s claim be dismissed.

19.  In these proceedings, Chua acts in person whereas Sobrevilla, who is legally aided, is represented by Vidler & Co.  Ms Eugenie Chung of the firm appeared on his behalf at the hearing.

THE PLEADINGS

20.  Chua issued the writ on 14 August 2015.  Indorsed on the writ is a short handwritten paragraph entitled “Statement of Claim”.  It is necessary to set it out in full:-

“I have employed this person as domestic helper. He refused to work when he arrived in Hong Kong. Instead he filed complaints against me at the Labour Department, MECAB (Minor Claims Adjudication Board), Labour Tribunal. Recently he lost his case against me. He destroyed the reputation of my company. My business was ruined because of the troubles he did.”

21.  Further and better particulars were sought.  Chua answered the request by a letter dated 18 January 2016.  It comprised two pages (this time typewritten), together with 19 pages of attachments.  In the letter, Chua set out, amongst other things, how Sobrevilla had refused to work for her which led to her decision to terminate the contract.  She also gave a description of the types of works undertaken by her consultancy business.  More relevantly for present purposes, she explained what she meant by “the troubles” as pleaded in her statement of claim.

22.  Again, it is necessary to quote the relevant paragraphs in full:-

“… Went to the news paper which subsequently published an enormous article which was injurious to my reputation and my business (attached). He even persuaded a reporter from the newspaper to attend court. A separate action in being considered against the publisher’s of the newspaper.

He has used others to telephone me with threats and allegations. He has further taken every opportunity to tell fake accusations (proven false at the Labor Tribunal) to everyone he meets

Many of my friends and acquaintances have reported this to me and my income and reputations have suffered accordingly.

He complained at Hong Kong Immigration Department on 25 March 2015.

He has prolonged all legal issues in Hong Kong including 15 hearings in the labor court (where he lost the case). I believe that all of these actions are solely as a result of his desperation to stay in Hong Kong. I further believe he is supporting himself here by working illegally for a door to door delivery company.

These are the “troubles” I have referred to in my complaint.”

23.  Amongst the attachments, I should highlight two documents.

24.  First, a letter written by Sobrevilla to the Director of Immigration dated 25 March 2014.

(a)   The title of the letter read “Application for extension of stay and Complaint of Exploitation by employer and unlicensed recruiter”. 

(b)   In the letter, Sobrevilla informed the Director that he was pursuing his claim for statutory entitlements following Chua’s dismissal and for that purpose, he would wish to apply for an extension of stay in Hong Kong. 

(c)   He gave a brief outline of what had happened after his arrival in Hong Kong.  He made a number of serious allegations against Chua:-

“… When I met her, she asked me to sign two payment receipts both of which were falsely dated …

I initially refused to sign the documents as they were not true and I have not received the payments. She said it was not a problem and that it was for my protection. I therefore signed the documents even though I did not receive any payment.

…

I am a victim of exploitation by Mr Lalaan and the employer both of whom defrauded me of $18,000 with a promise of a legitimate job as a domestic worker. I have also been advised that I am in fact a victim of human trafficking by these people and that I could file a complaint with the Employment Agencies Administration against Mr Lalaan for operating as an employment agent without a license and for charging excessive and illegal commission. I will be assisted by Helpers for Domestic Helpers in this regard.

Both Mr Lalaan and his wife, Jocelyn Lalaan who signed an employment contract with a Filipino domestic worker and my employer, Grace Gonzales Chua, should be investigated and barred from employing foreign domestic workers in the future.

… ”

25.  Second, an article the source of which is not clear.  This seems to be the “enormous article” referred to in the further and better particulars although the printout is only one page long.  It is stated at the top of the printout that it was posted on 9 December 2014. The article appears to be a report of one of the call-over hearings at the Labour Tribunal and proceedings brought by Sobrevilla against Lalaan at the Small Claims Tribunal.  Sobrevilla was reported to have said in court that Chua had cheated him and that she had had no plans to employ him.

26.  Shortly after Chua’s letter, Sobrevilla filed his defence on 26 January 2016.  No reply was filed by Chua. The pleadings were therefore deemed to be closed on 19 February 2016.

THE APPLICATION

27.  However, it was not until almost a year later that Sobrevilla took out the present striking out/Order 14A application. No issue was however taken with its apparent lateness at the hearing.

28.  The striking out application is pursued under Order 18, rule 19 and/or the inherent jurisdiction of the court. Affidavit evidence was filed, in which the factual cases pursued in the previous proceedings are substantially repeated by both sides.  Copies of some of the documents filed and relied on in those proceedings were also exhibited. More notably, they include the claim and defence documents lodged with the Labour Department, the MECAB and the Labour Tribunal.  The written decision of the Labour Tribunal dismissing Sobrevilla’s claim also forms part of the exhibits.

ANALYSIS

29.  There are two distinctive features which stand out in this case.

Two distinctive features

30.  First, the way in which Chua’s pleadings are drafted.   I have to say that the drafting has presented some difficulties for one to gain a proper understanding or appreciation of her case or its full extent.  They are certainly drafted or worded in a style which is very different from how a legal practitioner would usually draft a pleading. By that, I mean a reasonably competent lawyer would be expected to, first, set out his client’s factual case in an intelligible manner and, secondly, identify the cause of action or (as the case may be) defence directly and explicitly and, in each case, would do so with clarity and precision. 

31.  Here, having read Chua’s pleadings, I have to say I find it difficult to follow and understand her factual case in the first place, let alone identify any cause of action which may arise from those facts.  Ms Chung submitted that the defendant really has had to engage in some guesswork in trying to know what Chua is in fact contending.  I share that sentiment.

32.  An obvious illustration is that throughout the statement of claim, Sobrevilla is not even mentioned or identified by his name.  In that document, Chua merely refers to “this person” and “he”. Strictly speaking, one can only gather that Chua is making her claim against an unknown male individual.  And that would be all.  But, obviously, given that the statement of claim is indorsed on the writ, which is issued to Sobrevilla, a reasonable reader could readily supply the mental link that “this person” means Sobrevilla.  And I am prepared to make that link myself. 

33.  However, needless to say, there is a limit to how much guesswork the court can legitimately undertake in order to make sense of a party’s pleading.  After all, it is for the party to tell the other side and the court what his case is about in a clear and intelligible manner.  It is not the court’s role to second guess a party’s case.  In fact, it would not be fair to that party either, as the court can easily guess wrong if the language employed is unclear, ambiguous, equivocal or imprecise.  The scope of “guessing” is really very limited.

34.  The other distinctive feature is that one cannot fully appreciate Chua’s factual case without resort to the affidavit evidence.  For instance, in the further and better particulars, she refers to the “15 hearings in the labor court” without even identifying the action number.  When read on its own, the allegation is vague and thus fails to inform Sobrevilla the exact factual case which he is supposed to meet.  On the other hand, when read in conjunction with the affidavit evidence, such as the decision of the Labour Tribunal, it would seem tolerably clear that Chua is in fact referring to the 15-day trial which took place at that tribunal in late 2014.  Again, this involves some guesswork.  It is questionable how far the court can go in trying to ascertain Chua’s facts by attempting to supply the missing links or gaps.  I must remind myself that there is indeed very little room to do so.

35.  But, more importantly, the fact that her facts may not be gathered or gleaned from her pleadings alone amounts to a defect in those pleadings.  If and insofar as Chua is relying on things said or done at the Labour trial as the factual premise for a cause of action (eg, defamation or malicious prosecution), she should have pleaded the material facts on which she relies for her claim.  This would no doubt include (at least) the proper identification of the trial.  As observed, Chua has failed to do that in her pleadings.  Technically speaking, it is not open to her to point to her affidavit evidence in order to make good her pleadings.

Principles on pleadings

36.  It is trite that all material facts in support of a cause of action should be clearly and properly pleaded: Order 18, rule 7(1).  The purpose of pleadings is to fairly and precisely inform the other side and the court of a party’s case so that the issues in dispute, and the true extent of the dispute, can be identified at the outset. Proper preparation of the case, including the gathering of relevant factual evidence, can then follow. 

37.  Pleadings impose a necessary discipline, which is vital and fundamental for the effective and efficient progress of an action.  That is because the identification of the real issues is not only for the benefit of the parties but also for the court in managing and trying cases.  This is true, whether before or after the Civil Justice Reform.  It is only through properly drafted and formulated pleadings that the real issues are fully and properly presented before the court.  By reference to these issues, the court can then case manage effectively and efficiently at every stage of the proceedings which would ultimately facilitate a proper adjudication of those issues at trial.  See, eg, the well-known and oft-quoted passages from Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795 at paragraphs 6 to 8, per Ma CJHC; Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at paragraphs 23 to 26, per Ma CJ; Hong Kong Civil Procedure 2017 at 18/7/7.

38.  Furthermore, following from the fundamental premise that it is the pleadings that will define the issues in a trial and dictate the course of proceedings throughout the life of the action, “it will be the pleaded issues that define the scope of the evidence, and not the other way round” (my emphasis): Kwok Chin Wing at paragraph 21.

39.  While these comments were made in the context of whether a party should be allowed to run unpleaded issues in a trial, they are equally true and apposite in the present context where the court’s task is to determine whether a party’s pleading is properly formulated such that she should be allowed to carry on and run her case based on those pleadings.   It is inconceivable to allow a party to proceed with a case which is incomplete on the face of the pleading.  The opponent and his legal team would be left scratching their heads as to how to defend.  Furthermore, no sensible case management of the action can be anticipated.  The whole action would be “derailed” from the very beginning.

40.  It follows that if Chua’s pleadings do not reveal her facts (and, consequently, her cause of action) when read on their own without resort to the affidavit evidence, it is open to the court to hold that the pleadings are for that reason bad and strike them out straightaway.

41.  I shall have to return to this issue shortly when I examine the pleadings more closely below.  I would however add that in this regard I should also consider whether, instead of striking out her pleadings if they are found to be incomplete, she should be given an opportunity to amend the pleadings on the basis that she may have a case based on the affidavit evidence.

42.  But, at this juncture, suffice it for me to make a broad observation that in many respects, Chua’s pleadings are problematic because many of the pleaded allegations, when read on their own, do not present any meaningful case.  It is only after one refers to her affidavit evidence that her case gradually emerges and becomes clearer.  My remark on the allegation of “15 hearings” above is but one example only. 

43.  The reason I highlight these unusual features of her pleadings at this point is really to illustrate the difficulties of Sobrevilla and also the court to gain a proper appreciation of her factual case and hence, most importantly, to know what her causes of action against Sobrevilla are.  As mentioned above, there is only so much guesswork I can reasonably and legitimately undertake in the course of examining her pleadings in order to decide whether they should be struck out.  It is this exercise on which I now embark. 

Potential causes of action

44.  When the statement of claim is looked at on its own, it clearly does not reveal any cause of action. 

(a)   It refers to Sobrevilla (improperly described as “this person” – see paragraph 32 above) filing “complaints” against Chua at the tribunals. 

(b)   It goes on to say that Sobrevilla lost his case and he “destroyed the reputation” of Chua’s company and her business was ruined because of “the troubles he did”. 

(c)   Her claim is for “Lost of Moral Damages”.

45.  The content of the “complaints” is not pleaded.  How those “complaints” have destroyed the reputation of her or her company is not explained.  The “troubles” are not spelt out.  How ultimately those “troubles” had caused her loss is not known.  In that sense, the statement of claim is plainly inadequate as a pleading in that the other party is at a complete loss as to her factual case and, hence, her cause of action.

46.  Chua then had a second opportunity of clarifying her case.  That opportunity was afforded by Sobrevilla’s request for further and better particulars.  When the two-page letter, which contains the requested particulars, is read on its own without reference to the attachments, it still does not disclose any discernible cause of action either. For instance:-

(a)   She pleads that Sobrevilla “used others to telephone me with threats and allegations”, without specifying who the “others” were or what the “threats and allegations” were or were about.

(b)   She says that Sobrevilla “has further taken every opportunity to tell fake accusations (proven false at the Labor Tribunal) to everyone he meets”.  Again, the content of the “fake accusations” are not spelt out.  It is impossible to know how these “fake accusations” had led to her loss.

47.  These generic allegations simply do not reveal any coherent or plausible factual account as they are “empty” allegations which have no meaningful content at all.  However, when the letter is read together with the attachments, most significantly, the letter to the Director of Immigration and the newspaper article as identified in paragraphs 24 and 25 above, it seems that there are potentially pleaded facts based on which Chua may claim against Sobrevilla for defamation and malicious prosecution.

48.  On the whole, having undertaken some guesswork which I believe to be within the legitimate but restricted scope, there appear to me to be four potential causes of action which may be open to Chua.  In this striking out application, I shall need to consider the following:-

(a)   Do the statements made in the letter to the Director of Immigration give rise to an arguable case of defamation?

(b)   Does the plea that Sobrevilla made complaints to the Labour Department, the MECAB and the Labour Tribunal give rise to an arguable case of defamation?

(c)   Does the plea relating to the newspaper article give rise to an arguable case of defamation?

(d)   Do Chua’s pleadings disclose any arguable case of malicious prosecution?

49.  I shall deal with each of these issues in turn.

(a)  The letter to the Director of Immigration

50.  In the letter, Sobrevilla made a number of serious allegations against Chua accusing her (and Lalaan) of fraud and claimed that he was “a victim of human trafficking by these people”.  He urged the Director of Immigration to conduct an investigation and bar them from employing foreign domestic workers in the future.

51.  Insofar as Chua is relying on these statements to raise a claim of defamation against Sobrevilla, there is clearly a prima facie case.

52.  In this regard, Ms Chung’s submission is that the claim will however be met by a complete defence of absolute privilege.  If that is the case, the defamation claim is bound to fail.  In support of this submission, she relies on a series of English cases on immunity from suit, namely, Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 and Westcott v Westcott [2009] QB 407.

53.  The law recognises that, in some circumstances, the public interest requires that a person should be protected from liability for publishing a defamatory statement, even though the words cannot be proved to be true or defended as honest opinion.  The protection, which is generally referred to as “privilege”, has evolved and expanded in scope over time.  At common law, there are two types – absolute privilege and qualified privilege.  Where the former applies, the person who publishes the defamatory statement has a complete defence and will not be held liable.  On the contrary, the latter is a defeasible defence in the sense that it can be defeated if it is shown that the defendant was actuated by malice and thus misused the privilege: Duncan and Neill on Defamation (4^th edition) at 15.01.  (The terms “absolute privilege” and “immunity from suit” are often used interchangeably and I consider that in the present context, there is no material difference between the two terms; cf Duncan and Neill at 16.01, footnote 1.)

54.  The question in this case is whether Sobrevilla’s letter is covered by absolute privilege.

55.  It is trite that no action of libel and slander lies against those who take part in a trial, whether judges, counsel, witnesses or parties, for words written or spoken in the course of any proceedings before any court recognised by law and that includes the contents of documents put in evidence.  This remains true even though the words were written or spoken maliciously, without any justification or excuse or from personal ill-will and anger against the person defamed.  Thus the immunity is absolute and it cannot be defeated even by proof of malice: see, eg, Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 451 per Lopes LJ (quoted in Duncan and Neill at 16.17); Lincoln v Daniels [1962] 1 QB 237 at 257; Taylor at 207F, per Lord Hoffmann.

56.  The underlying policy of the rule is to encourage those who participate in court proceedings to express themselves freely.  The interests of justice require that they should not be inhibited by the thought that they might be sued for something they say in court: Taylor at 208D-E; Duncan and Neill at 16.18.  In Wong Shui Kee Roger v Victor LL Chu [2003] 1 HKC 125, Ma JA stressed (at paragraphs 25 to 27) that the underlying rationale for the defence of absolute privilege in judicial proceedings “is of course the public interest”, “the public interest consists of the administration of justice” and it is this aspect that one must bear in mind at all times when considering questions in this context.

57.  It has been recognised that absolute privilege may be abused and it can operate to the advantage of someone who is untruthful, malicious, revengeful or self-interested.  A person may say things in court which is injurious to another person’s reputation and which he knows to be untrue and he may even do so out of pure self-interest.  Nevertheless, he is protected by absolute privilege and is thus immune from a defamation suit. In such circumstances, it has been accepted that the higher public interest of encouraging freedom of speech and communication in judicial proceedings outweighs the injustice arising from such instances of abuse.  The balance of public interest lies in favour of affording absolute privilege in respect of things said in judicial proceedings, notwithstanding the potential scope for abuse: see, eg, Taylor at 221H-222B per Lord Hutton.

58.  Over the years, the scope of absolute privilege has expanded, albeit at a slow pace and in an incremental manner.  While, as a matter of logic, the privilege is underpinned by the same rationale whether things are said or written in the course of (or in contemplation of) civil or criminal proceedings, different questions and scenarios arise when considering its applicability because of the many differences, in nature and procedure, between the two types of proceedings.  In this part of the Decision, I shall focus on the development of the privilege in the context of criminal proceedings, as Sobrevilla’s letter was concerned with potential criminal offences.

(a)   The privilege covers not only what is said or written in the course of the proceedings before a court but also documents which are brought into existence from the inception of the proceedings onwards and for the purpose of those proceedings.  The privilege is then extended to cover statements made by a person in preparing a proof for trial: Watson v M’Ewan [1905] AC 480 at 487; Lincoln v Daniels at 257.

(b)   In Evans, it was held that the immunity would protect a witness or possible witness in a criminal investigation if it can fairly be said that his statement is part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated (192B-D).

(c)   Then, in Taylor, the House of Lords held that absolute privilege attaches to statements made to or by an investigator in the course of a criminal investigation.  That case concerned statements made (i) by one investigator to another, (ii) by an investigator to a person helping with the inquiry, and (iii) to an investigator by a person helping the inquiry who is not intended to be called as a witness (213H).  It was a novel category, to which absolute immunity had not been held to attach before (214A).  The reason for the extension is that it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are subsequently disclosed (214G-215A).

(d)   The House of Lords also held that as far as immunity of witnesses is concerned, it does not matter whether or not the witness is in fact called to give evidence at trial.  The immunity attaches in either case.  The rationale is that the person in question must know at the time he speaks whether or not the immunity will attach.  If it depends upon the contingency of whether he will be called as a witness, the value of the immunity will be destroyed (214E).

(e)   Then, finally and most relevantly for present purposes, in Westcott, the English Court of Appeal held that a person who makes a complaint to the police, thereby instigating a police investigation which does not lead to a prosecution, also enjoys absolute privilege in respect of that complaint.  (In that case, a daughter-in-law telephoned the police and reported that her father-in-law had flipped and hit her and her six-month-old baby.  The father-in-law was not charged and later sued the daughter-in-law for defamation.) 

(f)   The Court of Appeal took the view that the rationale expressed in Taylor (as set out in sub-paragraph (d) above) equally applies to initial informants of possible crimes.  This is because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted.  All those who participate in the investigative process, whether they are informants, investigators or prosecutors, are entitled to the benefit of absolute privilege in respect of the statements which any one of them may make in the process (paragraph 34). Ward LJ said (at paragraph 36):-

“The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. Mr Craig’s distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged.” (emphasis added)

59.  It has also been stressed that the defence of qualified privilege would not be adequate protection to the class of persons entitled to immunity.  In Taylor, the following remarks were made:-

“Under the existing rules all those who participate in a criminal investigation in good faith are entitled to claim the protection of qualified privilege. But that is an imperfect protection, because qualified privilege requires to be pleaded and established as a defence. No action can be struck out on the ground of qualified privilege.” (per Lord Hope at 219E)

“In my opinion the argument should not prevail that the defence of qualified privilege would give adequate protection to investigators and those who spoke to them because I consider that there would be a real risk that an unfounded allegation of malice made by a plaintiff bringing an action for defamation would subject an investigator or informant to harassment to which he should not be subjected.” (per Lord Hutton at 221D-E)

60.  Throughout the cases, however, the courts have cautioned that the application of absolute immunity is not to be extended to novel categories merely by analogy.  The test of whether to extend or not is a strict one – necessity must be shown: see Taylor at 213C-214D. This is because where absolute immunity applies, a plaintiff who is aggrieved by a defamatory statement is effectively shut out of the claim, even where the statement was false and made maliciously – see paragraph 57 above.  In each case, the proper question to ask is whether immunity is necessary for the administration of justice.  Regard must be had to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle: Wong Shui Kee Roger at paragraphs 23 to 27; Taylor at 214D.

61.  Having set out the legal principles governing absolute privilege, I now turn to consider whether the statements made by Sobrevilla against Chua to the Director of Immigration in the letter alleging fraud fall to be protected by absolute privilege.

62.  In my view, they clearly do.

63.  Sobrevilla wrote the letter in March 2014.  It is plain that the letter served two purposes.  First, he asked for an extension of his stay in Hong Kong in order to pursue the labour claim against Chua.  Secondly, he reported the (alleged) misconduct on the part of Chua (and Lalaan), sought an investigation by the Immigration Department and requested that they be barred from employing foreign domestic workers in the future.

64.  The misconduct complained of was capable of amounting to criminal offence, including, for instance, conspiracy to defraud and, possibly, making a false statement for obtaining a visa – an offence under section 42(1)(c) of the Immigration Ordinance, Cap 115.  Thus, when writing the letter, Sobrevilla was acting as an informant making a complaint to the relevant government authority in respect of a potential crime.  It was to be expected that upon receiving such a complaint, the Immigration Department would carry out an investigation as it saw fit and, where appropriate, take steps to prosecute the case.

65.  The present situation therefore falls squarely within Westcott, the only difference being the identity of the investigating authorities.  In my view, that difference is immaterial as both authorities (the police and the Immigration Department, respectively) are carrying out the same investigative functions but with respect to different categories of crimes.  In that sense, I would not regard the present case as a novel situation.  Accordingly, Westcott applies.  The statements made in Sobrevilla’s letter are covered by absolute privilege and Sobrevilla is therefore immune from any defamation suit which Chua wishes to bring in respect of them.

66.  But even if I am wrong and I should treat the present case involving a complaint to the Director of Immigration of a crime as a novel category, there is no doubt in my mind that it is necessary for the administration of justice to extend absolute immunity to cover the present complaint.  The reasoning expressed in Evans, Taylor and Westcott applies with the same force in this situation.

67.  Accordingly, insofar as the complaints contained in the letter are concerned, Sobrevilla is entitled to the benefit of absolute immunity.  It does not matter that no prosecution followed as a result of the complaints (as it seems to be the case).  Nor does it matter that his account of facts was not subsequently accepted by the Labour Tribunal.  Insofar as Chua is seeking in her pleadings to claim against Sobrevilla for defamation in respect of those complaints, that claim is bound to fail.

(b)  The complaints to the Labour Department, the MECAB and the Labour Tribunal

68.  If and insofar as Chua is making a defamation claim based on the fact (which is common ground) that Sobrevilla had filed complaints or claims against her at the Labour Department, the MECAB and the Labour Tribunal, the pleadings, when read on their own, are clearly and seriously defective as they simply do not disclose any such cause of action.

69.  The only reference is in the statement of claim – see paragraph 20 above.  She pleads that Sobrevilla lost his case and he destroyed the reputation of her company.  There is nothing in the rest of the statement of claim, the further and better particulars or the attachments which says anything further about what was said or written in those complaints, let alone what defamatory meaning they bore.  The requirements for what needs to be pleaded to support a claim of defamation are set out in Hong Kong Civil Procedure 2017 at 18/12/22.  Further, 18/7/8 provides that in defamation actions, the words complained of must appear in the body of the pleading.  Any defamation claim that may be raised by Chua in this regard is bound to fail, as it is, quite simply, a bare and empty claim.  For that reason, that part of Chua’s pleadings ought to be struck out.

70.  In the affidavit evidence, a copy of the Registration of Claim filed by Sobrevilla with the Labour Tribunal is exhibited.  So is the Tribunal’s written decision dismissing his claim.  In the labour proceedings, he made the allegations of fraud and human trafficking against Chua.   (Whether he made the same allegations initially at the Labour Department and later at the MECAB is less than clear.)  However, as remarked in paragraphs 36 to 41 above, it is not the evidence which defines the issues. One must resort to the pleadings alone to ascertain the issues in dispute. Chua’s pleadings, in their present state, cannot be saved by the affidavit evidence.

71.  Here, the question becomes whether, instead of striking out her claim in this regard, I should exercise my discretion to grant leave to Chua to amend her pleadings to incorporate the substance of those complaints as revealed in the affidavit evidence: Hong Kong Civil Procedure 2017 at 18/19/4, paragraph (2).

72.  In my view, I do not consider that it is appropriate to exercise my discretion to grant leave to amend for the following reasons:-

(a)   First, the facts presently pleaded are manifestly incomplete.  One would not even describe them as bare-bones of a claim.  It is simply very far off from what a proper pleading should look like.

(b)   Chua was indeed given a second opportunity to improve her case.  Yet, she did not make good use of it so far as her present complaints are concerned.  I do not consider that further indulgence should be granted to her.  I need also to bear in mind the interests of Sobrevilla and the prejudice that will be caused to him by allowing the matter to drag on because of Chua’s defective drafting and her failure to make good.

(c)   In this regard, it ought to be borne in mind that an unrepresented litigant must abide by the rules and procedures of the court like all other litigants: see, eg, Re Ho Suk Bing, Rita CACV 205/2009, 16 July 2010 at paragraph 13, per Kwan JA.  A court may sometimes be prepared to give some leeway to a litigant in person when it comes to case management or procedural matters.  However, when it comes to matters which have a fundamental importance on the substantive rights of the parties (such as pleadings) and decisions which will have an ongoing and long-lasting impact on the effective conduct of a case, the court should be vigilant against granting too much indulgence to an unrepresented litigant at the expense of her opponent.

(d)   Here, Chua has not complied with the rules on pleadings, not once but twice.  I am not prepared to give her yet another chance.

73.  Following from this, it is not necessary to consider if she is allowed to incorporate, by amendment, the allegations of fraud which would potentially give rise to a claim in defamation, whether that claim is bound to fail as she would equally be met by a complete defence of absolute privilege for things said or written in the proceedings before the MECAB and the Labour Tribunal.

74.  However, as Ms Chung has also made submissions in this regard, I shall set out my thoughts on this.

75.  As noted in paragraph 55 above, it is trite that a person is immune from a claim of defamation for things which he said in the course of giving evidence in proceedings before a court of law and that includes documents which are brought into existence from the inception of the proceedings onwards and for the purpose of those proceedings.  This immunity extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act: see, eg, Trapp v Mackie [1979] 1 WLR 377 at 379A.

76.  The issue here therefore becomes this – do the MECAB and the Labour Tribunal qualify as courts of law or those tribunals as described above?

77.  In Trapp, the House of Lords laid down important guidance as to the criteria which are relevant to determine whether a tribunal is protected by absolute privilege.  Lord Diplock identified the following questions (at 379G-H):-

“So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.”

78.  On the first question, the tribunal must be “recognised by law”, although it needs not necessarily be constituted or recognised by statute.  On the second question, it would be relevant to consider whether the tribunal is making a decision between the parties or affecting the status or rights of any person.  If it is, the tribunal gains much similarity with a court of law, in terms of the duty that it discharges, and would seem to be exercising a judicial rather than administrative function.  On the third question, it is important to examine the procedure of the tribunal to see how far such procedure differs from that of a court, eg, whether the proceedings are conducted in public or private, the tribunal’s power to compel the attendance of witnesses, its power to administer the oath and its power to enforce decisions which it makes etc.  On the fourth question, it is relevant to consider whether the decision the tribunal makes is binding and authoritative in its own right (whether subject to appeal or not). See Trapp at 379H-383A; Duncan and Neill at 16.24 to 16.25.

79.  But the above considerations are helpful by way of guidance only.  They are not determinative criteria.  One should consider all aspects of the nature of the tribunal in question and determine the cumulative effect of all the relevant characteristics in order to answer the question – whether the tribunal acts in a manner as nearly as possible similar to that of a court of justice (per Lord Diplock at 383H-384C; per Lord Fraser at 388A-C).

80.  In considering the attributes of the tribunal, it is important also to bear in mind the underlying rationale of why only those tribunals which act in a manner similar to a court of justice would be covered by absolute privilege.  In Royal Aquarium, Fry LJ said (at 477):-

“Courts are, for the most part, controlled and presided over by some person selected as specially qualified for the purpose; and they have generally a fixed and dignified course of procedure, which tends to minimise the risks that might flow from this absolute immunity.” (emphasis added)

81.  It may be said that the more the tribunal acts like a court, the less likely a party or witness who appears before it will act irresponsibly or inappropriately.  That provides some justification for attaching absolute immunity to the tribunal.  But, perhaps more importantly, if a tribunal discharges a judicial or quasi-judicial function as that of a court of law, the public policy of encouraging those whose participate in its proceedings to express freely and without fear of potential defamation lawsuit would apply with similar, if not equal, force.

82.  Applying the above principles to the present case, it is plain and obvious that both the MECAB and the Labour Tribunal qualify for absolute immunity as the MECAB acts in a manner similar to a court of justice and the Labour Tribunal is itself a court of law.

83.  In respect of the MECAB:-

(a)   It was established under the Minor Employment Claims Adjudication Board Ordinance, Cap 453 (section 3(1)).

(b)   The MECAB has limited jurisdiction to adjudicate minor employment claims, ie, claims for statutory or contractual rights arising out of employment, not exceeding $8,000 per claimant.  See the Recital, section 5(1) and the Schedule.

(c)   Its powers are exercised by officers known as “adjudicating officers” (section 3(4)).

(d)   Procedures are laid down in the Ordinance for the filing of a claim, fixing of a hearing and service of documents (eg, sections 12 and 13).

(e)   Hearings are generally conducted in public (section 15).

(f)   The hearing should be conducted in an informal manner.  The MECAB may order production of documents and put to a party or witness questions.  It may also investigate any matter which it considers relevant to the claim (section 17).

(g)   During the hearing, the MECAB may allow a witness or a party to give evidence on oath or unsworn.  The rules of evidence do not apply but the MECAB may receive any evidence which it considers relevant (section 26).

(h)   The adjudicating officer will make an order or award in respect of the claim as soon as possible after the conclusion of the hearing (section 21(1)).  Such decision is subject to appeal to the Court of First Instance on points of law or issue of jurisdiction (section 31).

(i)   An award or order of the MECAB may be registered in the District Court and on registration become a judgment of the District Court and may generally be enforced as such (section 37).

84.  Having considered the jurisdiction, duties, functions, attributes, mode of conduct and the binding nature of the decisions of the MECAB, I am of the clear view that it acts in a manner very similar to a court of justice such that absolute immunity should attach to proceedings before it.  In terms of its procedures, there are obvious differences when compared with those of a court, eg, it is to conduct hearings in an informal manner and rules of evidence do not apply generally. Nevertheless, these differences are not material enough for me to arrive at the opposite conclusion, especially when they are looked at against the underlying rationale of absolute privilege.

85.  In respect of the Labour Tribunal:-

(a) It was established under the Labour Tribunal Ordinance, Cap 25.

(b) As the recital makes clear, it has limited civil jurisdiction to hear cases arising out of employment. (See also the Schedule.)

(c) It is established as a court of record and all proceedings shall be heard and determined by a presiding officer or a deputy presiding officer sitting alone (section 3).

(d) The professional qualifications of a presiding officer are substantially the same as those of a permanent magistrate (section 4A; cf section 5AA of the Magistrates Ordinance, Cap 227).

(e) The Ordinance contains elaborate provisions covering matters on commencement of proceedings (Part 4), procedure (Part 5), review and appeal (Part 6) and enforcement (Part 7).

86.  The Labour Tribunal is established as a court of record under statute.  For the purpose of absolute privilege, it is plain and obvious that it qualifies as a court of justice.  In this regard, I also draw support from various observations made with regard to the status of the Labour Tribunal, invariably confirming it to be a court (albeit in different contexts).  In Ho Lan Fong v Lam Gook [2004] 3 HKLRD 47, A Cheung J referred to it as an inferior court having an inherent jurisdiction to regulate its own practice and procedure (at paragraphs 36 and 47).  In Ho Chee Sing James v Secretary for Justice [2015] 4 HKLRD 311, Deputy High Court Judge Saunders highlighted that the Tribunal is a court of record and it may punish behaviour amounting to contempt summarily (at paragraph 51).  Also, relevantly for present purposes, in Lok Ming Restaurant v Lau Kwai Chong HCME 7/1999, 2 December 1999, Deputy High Court Judge Li contrasted the status of the Labour Tribunal as a court of law with the MECAB, saying that the latter has no such status (and deciding therefore that the MECAB has no inherent power to approve settlement).

87.  By reason of that status alone, the proceedings before the Labour Tribunal would be covered by absolute immunity. Even though the hearings are conducted in an informal manner and the presiding officer has an investigative function (section 20) and the rules of evidence do not apply (section 27(2)), these matters do not detract from its status as a court.  (In any event, even if I am wrong on that, having considered its jurisdiction, duties, functions, attributes, mode of conduct and the binding nature of its decisions, like the MECAB, the conclusion must be that it acts in a similar manner to other courts of justice for present purposes.)

88.  To sum up, even if I granted leave to Chua to amend her pleadings to incorporate a claim for defamatory statements made before the MECAB or the Labour Tribunal or in the course of and for the purpose of those proceedings, that claim would be bound to fail as Sobrevilla could raise a complete defence of absolute privilege.

(c)  The newspaper article

89.  In view of the above, this issue can be quickly disposed of.

90.  If and insofar as Chua is making a claim of defamation in respect of the newspaper article, it is bound to fail as against Sobrevilla.

(a)   Such a claim would properly be made against the newspaper, not Sobrevilla.

(b)   Even assuming that Chua is relying on what Sobrevilla said as quoted in the article, her claim (if any) would be met by a complete defence of absolute immunity as those things were reported to have been said in a hearing before the Labour Tribunal.

(d) Malicious prosecution

91.  In the statement of claim, Chua pleads that Sobrevilla filed complaints against her at the Labour Department, the MECAB and the Labour Tribunal and that he lost his case.  In the further and better particulars, she further pleads that Sobrevilla “has prolonged all legal issues in Hong Kong including 15 hearings in the labor court (where he lost the case)” and that it is her belief that all of his actions are “solely a result of his desperation to stay in Hong Kong.”  In her affidavit, she says:-

“The time and opportunities were missed, because of his purpose for his visa extension of stay in Hong Kong and it is frivolous and vexatious.  All the attached papers showed his disturbances and wasting my time for almost two years.”

92.  It is not immediately apparent and not entirely clear whether by these pleas, Chua is mounting a claim of malicious prosecution against Sobrevilla.  Or is she confining her claim to defamation?  She seems to be suggesting that Sobrevilla instituted those legal proceedings against her in the past few years solely for the purpose of extending his stay in Hong Kong; and, because of his wrongful pursuit of those proceedings, she suffered loss to her reputation and her business.

93.  As noted at the outset, there is a limit to the extent of how much guesswork the court can legitimately undertake in ascertaining the nature and scope of a party’s claim.  Nevertheless, it is necessary to first look into the law on malicious prosecution and then ascertain whether Chua has raised a potential arguable claim in this area.

94.  While malicious prosecution of criminal proceedings is a well-recognised tort, the same cannot be said of that of civil proceedings.  In the criminal context, such a cause of action may arise in the wake of unsuccessful criminal proceedings.  Where the criminal charge is unfounded and ultimately fails, the person charged, having defended himself, may suffer loss, whether it is financial, reputational or otherwise.  Same or similar loss may arise where an unfounded and ultimately unsuccessful civil claim is brought against a defendant.  However, the cause of action of malicious prosecution of civil proceedings has long been confined to restricted and discrete categories of civil cases, such as malicious presentation of a winding up order or bankruptcy petition: Clerk & Lindsell (21^st edition) at 16-01.

95.  The breakthrough came in the form of the majority decision (by 3 to 2) of the Privy Council in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366.  Malicious prosecution of civil proceedings is recognised as a viable tort at common law.  Three years later, in Willers v Joyce [2016] UKSC 43,the Supreme Court held, again by a majority (this time by 5 to 4), that such a tort is available as a matter of law.  At first instance, the defendant succeeded in striking out a claim founded on malicious prosecution of civil proceedings as it was unknown to English law.  This was reversed by the Supreme Court which held that such a claim was available to the claimant and the claim should be allowed to proceed to trial.

96.  This development in England was noted in a decision of the Court of Appeal in Hong Kong in Sum Cheung Wai v Tsui Hin Yuet [2016] 4 HKLRD 742 at paragraph 21, per Lam VP, though the issue did not arise for resolution in that case.  More relevantly for present purposes, in Yanfull Investments Ltd v Datuk Ooi Kee Liang HCA 687/2015, 15 April 2016, in the hearing of an interlocutory application, L Chan J, after referring to Crawford Adjusters, said that he was not convinced that the claim for malicious prosecution of civil proceedings before him is “so devoid of merit that [he] can strike it out” – see paragraphs 34 to 37.  The appeal to the Court of Appeal was dismissed – see CACV 114/2016, 15 March 2017.  As such, there seems to be an implicit acceptance that this is also a viable tort in Hong Kong.

97.  In light of the above English and Hong Kong authorities, it seems clear to me that if and insofar as Chua’s claim relies on malicious prosecution of the string of labour proceedings brought by Sorbrevilla against her, it cannot be struck out on the ground that the tort itself is not recognised at law.

98.  For completeness, I should also add that while Sobrevilla would be immune from suit in respect of the things he said or wrote in the course of and for the purpose of legal proceedings when faced with a claim in defamation, he enjoys no such immunity if he is defending against a claim of malicious prosecution.  This is because the wrong which lies at the heart of the latter tort is the manipulation of the legal system.  In such a case, the immunity is not available to the manipulator.  In Crawford Adjusters, Lord Kerr said (at paragraph 101):-

“It should not be used as a charter for improper resort to legal proceedings to achieve an aim unrelated to their professed purpose.”

99.  For the rationale behind the distinction, see further Taylor at 215 (per Lord Hoffmann) and 219 (per Lord Hope); Yanfull at paragraphs 66 to 68, per Kwan JA.

100.  There are four essential elements in the tort of malicious prosecution:-

(a)   The plaintiff was prosecuted by the defendant.

(b)   The prosecution was determined in the plaintiff’s favour.

(c)   It was without reasonable and probable cause.

(d)   It was malicious.

See, eg, Clerk & Lindsell at 16-09; Sum Cheung Wai at paragraph 11; Crawford Adjusters at paragraph 34; Willers at paragraph 5.

101.  Here, on the face of Chua’s pleadings, the third and fourth elements are simply missing.  It does not necessarily follow from the fact that Sobrevilla had lost his case that he had brought it without reasonable and probable cause in the first place.  The burden is always on the plaintiff to establish each and every one of these elements: Clerk & Lindsell at 16-09.

102.  For this reason, the material facts which ought to be pleaded to establish the essential elements of malicious prosecution are absent in Chua’s pleadings.  As such, they do not disclose any reasonable cause of action under this head.  For the same reasons as set out in paragraph 72 above, I would not exercise my discretion to grant leave to Chua to amend and fill in the gaps. 

103.  To sum up, none of the four potential causes of action, which Chua may be relying on as revealed by her pleadings, have any chance of success.

ORDER

104.  In conclusion, the statement of claim and the further and better particulars do not disclose any reasonable cause of action.  For that reason, I order that they be struck out and Chua’s claim be dismissed.

105.  I further make an order nisi that Sobrevilla do have costs of the action and this application, including any reserved costs, to be taxed if not agreed, and that his own costs be taxed in accordance with the Legal Aid Regulations.