DIAS SANDRA MARY ELIZABETH v. CATHAY PACIFIC AIRWAYS LTD

HCA 2372/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2372 OF 2002

---------------------

----------------------

----------------------------------------

D E C I S I O N

--------------------------------------

1.  This is the Plaintiff’s application under O.38, r.2A for leave to adduce her supplemental witness statement.  The application is opposed by the Defendant.

2.  At the hearing, Mr. Carolan (counsel for the Plaintiff) informs the court that, in light of the Defendant’s opposition, the Plaintiff has volunteered some revision to her supplemental witness statement attached to the summons.  The revised version (“the Statement”) can be found at pages 297-364 of the hearing bundle and it is this version that the Plaintiff will now seek to adduce.

3.  Notwithstanding previous communication and despite the Plaintiff’s revision, Ms. Lam (solicitor for the Defendant) informs the court that the Defendant still objects to paragraphs 4, 5, 6, 7, 8, 9, 10, 14, 15, 23, 26, 27, 28, 29, 30, 34, 35, 36, 37, 46, 48, 49, 51, 52, 53, 58, 72, 73, 74, 75, 76, 77, 78, 79, 80, 91, 94, 97, 128, 129, 130, 131, 132, 133, 134, 135 and 136 of the Statement.  The Defendant is not otherwise opposing the application.

Preliminary argument

4.  As a prelude to the main argument, Mr. Carolan mounts a preliminary attack on the Defendant’s opposition.  He submits that the stance taken by the Defendant is a waste of time and costs because:

(a)  There can be no valid objection to the Statement which is a response to the supplemental witness statement of Mr. Tsang Kin Chun (“Tsang II”) and the witness statement of Ms. Zara Chiu Ahmad Mustaffa (“Chiu I”) filed by the Defendant in June 2005. 

He refers me back in time to the order dated 29^th August 2005 made by consent, whereby the Defendant was granted leave to adduce Tsang II and Chiu I and the Plaintiff was granted leave to adduce a supplemental witness statement consequentially.  He explains that the Plaintiff did not adduce her supplemental witness statement back then because the Defendant then took out an application to re-amend its defence and to adduce a witness statement of Ms. May Tang.  The application was opposed by the Plaintiff and was only disposed of by Deputy Judge Muttrie in November 2005.  There then followed some more interlocutory matters and the action fell dormant in 2007.

In those circumstances, says Mr. Carolan, the Defendant’s opposition to the administrative act of filing the Statement is an obtrusive tactic.

(b)  Any legitimate concern the Defendant may have on the supplemental witness statement attached to the summons should have been addressed by the revision volunteered by the Plaintiff.

(c)  The proper way for the Defendant to object to any part of the Statement is to apply to strike them out at trial.  He relies on the following observation from Hong Kong Civil Procedure 2008:

“… any argument that the statement of a witness contains any inadmissible evidence or other objectionable material should be left to be heard after the witness has produced it at the trial, rather than dealt with by way of a prior application to compel the statement to be amended.”[1]

5.  Mr. Carolan submits that the task of evaluating whether certain part of the Statement is admissible or not should be left to the trial judge.  He cites the decision of Sakhrani J. dated 25^th January 2007 in Kralik James Christopher v Vtech Holdings Limited, HCA 2894/2004 as an example of the trial judge dealing with objections to witness statements. 

6.  He observes that the witness statements already filed by the parties also contain inadmissible evidence.  This is because the statements were put in before Deputy Judge Muttrie disallowed the Defendant’s application to add to its defence the averment about the alleged theft by the Plaintiff of a bottle of champagne belonging to the Defendant.  Moreover, both parties have amended their pleadings after filing of the statements.  He says that the Plaintiff will in due course apply to the trial judge to tidy-up the statements and expunge inadmissible parts and it would be better to leave a full picture to the trial judge.

7.  Mr. Carolan warns that any part(s) of the Statement expunged at an interlocutory stage may still be admitted by the trial judge.  He cites the following judgment inAllington Investments Corp v First Pacific Bancshares Holdings Ltd [1995] 2 HKC 567 at 569H-570B in support:

“It is important to bear in mind though the reason for expunging a witness statement or a part thereof may often be the inadmissibility of such evidence, it is not impossible for the matter to be decided on other grounds.  In the premises, it is not inevitable that an order expunging a witness statement or a part thereof would render the evidence wholly inadmissible for all purposes at the trial.  It is still open in some circumstances for the trial judge to exercise his discretion to allow the evidence, whether for a limited purpose or otherwise, notwithstanding that it is not contained in a witness statement.  When the trial judge’s attention is drawn to the order expunging that part of the evidence from the witness statement, it is almost inconceivable that he would not grant leave under O.28, r.2A(7) if the evidence should otherwise be admitted.  It can hardly be reasonable for an opposing party to object to such evidence on the ground that there had been non-compliance with r.2A if such a failure to comply was a result of that opposing party’s doing.”

8.  He further warns that the Plaintiff may lodge an appeal if I rule out any part(s) of the Statement.

9.  In the end, Mr. Carolan suggests that if I find any substance in the Defendant’s opposition, I should simply refer the application to the trial judge under O.32, r.12 and give suitable direction for the listing master to set the application down before the trial judge.  He relies on the following obiter dicta in Hong Kong Polytechnic University v. Next Magazine Publishing Limited [1996] 2 HKLR 260 at 266B-C in support:

“In those cases where an appeal is likely to be lodged whatever the decision of the master, costs would be saved in the long run if use was made of RSC O.32, r.12 for the master to refer to a judge any matter which he thinks should properly be decided by the judge.”

10.  In response, Ms. Lam relies on the following judgment in Allington to justify raising the objections now:

“Witness statements are exchanged pursuant to O.38 r.2A of the Rules of the Supreme Court.  The reasons for giving such a direction are clearly set out in para.38/2A/2 at p.649 of Vol.1 of the 1995 Supreme Court Practice.  In general, such process serves to facilitate cost-effective and fair disposal of the proceedings.  It is a step in the preparation for trial, and would become evidence in the trial only if the court makes an order that such statement stands as the evidence in chief of the witness, or if the other side puts it in for cross-examination of the witness.  Disclosure of contents of the evidence of a witness in his witness statement is thus of interlocutory nature similar to the disclosure of documents in a list of documents.  The propriety of the contents of such documents, be it a witness statement or a list of documents, is a matter that can be dealt with as an interlocutory matter prior to trial.  The contents of a list of documents, i.e. the extent of discovery, must be dealt with as an interlocutory matter.  However, as the contents of a witness statement can become evidence in the trial, it is, in this respect, to be distinguished from a list of documents.  In the premises, it is open to the party to deal with disputes over the propriety of a witness statement or parts thereof either as an interlocutory matter before trial, or as a matter of evidence for the trial judge's discretion at the trial.  There can be no hard and fast rule when should be the proper time to deal with such a dispute.  It would depend on a variety of circumstances, including how far down the line the case has progressed, how close is it to the trial, whether it is necessary to have the dispute resolved in sufficient time before trial to avoid any unnecessary adjournment of trial, whether it is fair and just to have an early resolution of such dispute?  If the dispute arose only shortly before trial, it may be that there is little justification for not leaving it to be resolved by the trial judge, as little can be gained from a slightly earlier resolution of the dispute.  However, if the dispute relates to an important part of the case, an early resolution of the dispute might be necessary to enable the objecting party to know what evidence he will have to face, and to call in reply at the trial.”

11.  She says that the objections are taken from a case management point of view.  The Statement contains far more material than is necessary for the fair and expeditious disposal of the case.  For example,

(a)  it refers to unpleaded and irrelevant documents (e.g. the Defendant’s operations manuals);

(b)  it makes reference to on-going court proceedings involving other flight attendants which are irrelevant;

(c)  it contains irrelevant and prejudicial material (e.g. alleged questionable behaviour of the Defendant’s witnesses); and

(d)  it contains speculation, opinion and legal submission.

12.  She says that the Defendant needs to know what case it will have to meet at trial and to prepare for it.  If the Statement is admitted in its present form, the Defendant will have to widen its investigation, interview other potential witnesses and go through many more documents.  The costs of preparing the defence for trial will escalate disproportionately.  All these can be avoided if the Defendant’s concerns can be addressed now.

Correct approach

13.  Both parties cited Allington as an example of the court dealing with objections to witness statements before trial.

14.  Mr. Carolan, however, advises caution in relying on that case.  He says that the court there struck out parts of the witness statements containing hearsay evidence for which no hearsay notice had been given.  He observes that the law on the use of hearsay evidence in civil proceedings has since changed and the result would be different if the case were to be decided today.

15.  Although Mr. Carolan expresses reservation over Allington, he does not dispute the court’s jurisdiction to entertain objections to witness statements at the interlocutory stage.  In my view, the passage in Allington relied on by Ms. Lam (quoted above) is still good law and is particularly pertinent to the present application.

16.  The Plaintiff has lost her right to adduce a supplemental witness statement when she failed (for whatever reasons) to comply with the order dated 29^th August 2005.  O.38, r.2A(10) clearly provides that where a party fails to comply with a direction for the exchange of witness statements, he shall not be entitled to adduce evidence to which the direction related without the leave of the court.  The parties may not even extend by consent the period specified by the court for the exchange of witness statements[2].  That was why the listing master directed the Plaintiff to take out the present application.

17.  In my view, the concerns raised by the Defendant, if sustained, are legitimate.  For example, parties will need to know if they need to extend the scope of discovery to cover documents such as the Defendant’s operations manuals or documents pertaining to Ms. Chong’s case and Ms. Ms. Camaclang’s case.  They will also need to know if they need to adduce evidence to deal with allegations concerning the behaviour of the Defendant’s witnesses.  I have no doubt that an early determination of these concerns will promote certainty and assist parties to focus on the real issues in dispute.  This will hopefully help to save some time and costs. 

18.  Although this case was commenced in the Labour Tribunal and transferred to the Court of First Instance way back in 2002, it is far from being ready for trial.  The checklist hearing has been adjourned with no return date.  Leave to set this case down for trial is yet to be granted and no trial judge has been nominated.

19.  In those circumstances, I consider that the Defendant is quite justified in raising its objections to the Statement now as opposed to leaving it until trial.

20.  Had the Plaintiff (or indeed any party) been serious about inviting the trial judge to deal with the application (and the objections), she should have raised it earlier.  It was apparently not raised before the listing master when the Plaintiff was directed to take out this application.  It was also not raised at the call-over hearing of this application, resulting in the application being set down for argument before a master with one whole day reserved.  Parties have lodged in bundles, submissions and authorities before the hearing and are apparently fully prepared for the substantive argument.  By the time both parties finished their preliminary argument, the better part of the day was gone.  It is, in my view, certainly not conducive to good case management that applications to refer the substantive argument to a judge or the trial judge should be left until the substantive hearing before the master.

Relevant law on witness statements

21.  The Plaintiff’s application is made under O.38, r.2A.  O.38, r.2A(1) provides that the court’s power under that rule should be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case including (but not limited to):

(a)  the extent to which the facts are in dispute or have been admitted;

(b)  the extent to which the issues of fact are defined by the pleadings; and

(c)  the extent to which information has been or is likely to be provided by further and better particulars, answers to interrogatories or otherwise.

22.  Parties have referred me to Hong Kong Civil Procedure 2008 on the relevant law on witness statements.

23.  This includes the following observation on supplementary statements of witnesses:

“Although there is no express provisions to this effect, the court has power, if it thinks fit to do so, to direct that a further written statement of a witness be served supplementary to that already served.  The better practice is that the evidence dealing with or contradicting any statements made by witnesses of the opposite party should be given orally rather than be dealt with by way of a supplementary statement … A supplementary statement may be allowed to be served to give the witness of a party the chance to fill in gaps in his own statement or to answer the statement of the opposite party.”[3]

24.  The following observation on contents of witnesses’ statements is also instructive:

“The overriding features of the written statements of the witness which may be served pursuant to the direction of the court … are:-

(1)  that they are intended for use at the trial itself; and

(2)  that they relate to issues of fact to be adduced at the trial.

Accordingly, the written statement of such a witness must contain only such material facts as the witness is able to prove of his own knowledge (cf. O.41, r.5(1) as to the content of an affidavit).  The written statement of witness is the equivalent of the oral evidence which that witness will give if called, in his evidence in chief at the trial…

Again, like the oral evidence of the trial witness, his written statement must not contain any inadmissible evidence … It must not contain any statement of information or belief even if the grounds and reasons thereof are given …

Like the oral evidence of the trial witness, a written statement must not contain any expressions of opinion, but be confined to matters of fact.” [4]

Present state of pleadings

25.  I shall begin the discussion by considering the extent to which the facts are in dispute or have been admitted and the extent to which the issues of fact are defined by the pleadings.

26.  Both parties have changed their case since the proceedings began.  There were several rounds of extensive amendments to the pleadings.  Probably due to the fact that the amendments were settled by different drafter at different times, the end product seems a bit convoluted. 

27.  The pleadings now before the court consist of:

(a)  the Plaintiff’s Amended Statement of Claim (“ASOC”), further and better particulars thereof, and the Re-Re-Amended Reply (“RRAR”); and

(b)  the Defendant’s Re-Re-Amended Defence (“RRAD”), and further and better particulars of the Amended Defence.

28.  It is common ground that the Plaintiff had been employed by the Defendant as a flight attendant.  She was dismissed by the Defendant with effect from 27^th February 2001 with payment of one month’s salary in lieu of notice. [5]

29.  It is the Plaintiff’s case that the express terms of her employment contract were contained in 3 documents: conditions of service cabin crew (1.1.86 version) (“COS”), staff benefits handbook (cabin attendant) (Revised 1.1.86 and subsequently as “Issued July 91”) (“Handbook”) and the offer letter dated 10^th September 1990[6].  The Defendant denies that the Handbook formed part of the contractual documents[7].

30.  The Plaintiff’s present claim comprises 5 aspects:

(a)  loss of use of the payment in lieu of notice received;

(b)  loss of use of the retirement grant received;

(c)  damages for non-compliance of the disciplinary and grievance policy (“DGP”);

(d)  loss of retirement grant (“RG”); and

(e)  loss of retirement travel benefit (“RTB”).

31.  I am told at the hearing that the parties are about to conclude a settlement on part of the action, which will dispose of the first two aspects.  Both Mr. Carolan and Ms. Lam agree that those two aspects are irrelevant to the present application.

(a)  Damages for non-compliance of DGP

32.  Both parties agree that DGP applied to the Plaintiff as part of her employment contract.[8]

33.  It is the Plaintiff’s case that[9]:

(a)  The Plaintiff’s employment could only be terminated by the Defendant by retirement upon the Plaintiff reaching the retirement age or by dismissal for disciplinary reasons.

(b)  According to DGP:

(i)  She was entitled to verbal/written/final warning, an interview and an opportunity to provide written explanation prior to any disciplinary action. 

(ii)  A decision to terminate her employment with payment in lieu of notice could only be made “in the event of a cabin crew member engaging in misconduct which amounts to a serious breach of the … member’s terms of service or for repetition of misconduct of a less serious nature” (DGP 8.1).

(iii)  She was entitled to submit a notice of appeal within 14 days after the date of written notification of a disciplinary decision.  The appeal would have taken 3 separate stages and she was entitled to adequate opportunity to make representations and submissions relating to the appeal.

(c)  The Defendant failed to follow the procedure set out in DGP in terminating her employment and was thus in breach of her employment contract. 

(d)  The proper disciplinary procedure would have taken at least one month to complete.  Hence, the Defendant is liable for one month’s salary and allowances or damages to be assessed.

34.  The primary defence is that the Defendant was entitled to terminate the Plaintiff’s employment:

(a)  with notice or payment in lieu of notice, as a matter of contract under COS 25(A) and by statute under s.7 of the Employment Ordinance[10]; or

(b)  without notice, as a matter of contract under COS 27 and by statute under s.9 of the Employment Ordinance [11],

and DGP expressly provides that its provisions do not restrict or limit the Defendant’s right to terminate the employment of a flight attendant[12].

35.  The Defendant says it terminated the Plaintiff’s employment by payment of one month’s salary in lieu of notice[13].  Furthermore, the Defendant would have justified terminating the Plaintiff’s employment without notice by reason of the Plaintiff’s poor performance, misconduct, and/or dishonesty as particularised in paragraph 14G of RRAD [14].

36.  The Defendant further says that:

(a)  on a proper construction of DGP, the Plaintiff was not entitled to a warning before termination[15], there was no right of appeal against a decision to terminate or that the Defendant was not obliged to follow the appeal procedure in DGP[16], and the Defendant was not required to maintain or reinstate the Plaintiff pending the outcome of an appeal even if there was a right of appeal[17]; and

(b)  the Defendant has fully complied with DGP to the extent required of it and to the extent which the Plaintiff availed herself of DGP[18].

37.  For the above defences, the Defendant denies the Plaintiff’s claim for damages for failing to comply with DGP.

38.  In reply, the Plaintiff avers that:

(a)  on a true and proper construction, COS 25(A) did not provide the Defendant with a right to terminate the Plaintiff’s employment.  Furthermore, the clause was void for illegality being contrary to ss.12, 15, 15A and 70 of the Employment Ordinance[19];

(b)  the only contractual right of the Defendant to terminate her employment was provided in COS 27 and DGP 8.1 which would have required disciplinary action[20]; and

(c)  of the poor performance, misconduct and dishonesty alleged in paragraph 14G of RRAD, only the incident mentioned in paragraph 14G(d)(ii) was referred to by the Defendant at the time of termination[21].

(b)  Loss of RG

39.  This claim is based on the terms of COS.  The Plaintiff says she should be entitled to RG calculated at 180% of her final monthly basic salary for each completed year of service.  However, she was only paid an amount calculated at 100%.  Hence, she claims for the balance.[22]

40.  The Defendant’s defence is three-fold:

(a)  The Plaintiff gave up her rights to RG under COS when she opted to join the Swire Group Retirement Benefits Scheme (“SGRBS”) with effect from 1^st November 1993.  Upon her termination, the Plaintiff has already received benefits from SGRBS.  In the premises, the Plaintiff is estopped from claiming RG under COS.[23]

(b)  Under the terms of SGRBS and COS, the Plaintiff was not entitled to benefits calculated at 180%, as she did not leave employment on her “Normal Retirement Date”.[24]

(c)  The Plaintiff had no entitlement to RG under the terms of COS, DGP and SGRBS by reason of the fact that the Defendant would have been justified in terminating the Plaintiff’s employment without notice due to her poor performance, misconduct and/or dishonesty as particularized under paragraph 14G of RRAD.[25]

(c)  Loss of RTB

41.  The Plaintiff claims that she is contractually entitled to RTB according to the provisions in the Handbook, and she calculated her entitlement to be $7,560,000.[26]

42.  Again, the defence is three-fold:

(a)  The Defendant denies that the Handbook formed part of the employment contract.  It is the Defendant’s primary case that RTB is discretionary and subject to the Defendant’s policy published from time to time.[27]

(b)  If the Handbook formed part of the employment contract, the Plaintiff’s entitlement to RTB was forfeited upon termination, in accordance with the provisions in the Handbook, COS and DGP, by reason her poor performance, misconduct and/or dishonesty as particularized under paragraph 14G of RRAD.[28]

(c)  The Defendant also disputes the Plaintiff’s calculation.[29]

43.  Having set the scene for the discussion, I shall now turn to the disputed paragraphs in the Statement.

Discussion on the specific objections

44.  The disputed paragraphs can be grouped together for discussion based on their content and the nature of the objection.

(a)  Objections to para.4-10, 14, 15 and 23 of the Statement

45.  These disputed paragraphs are included in the section entitled “Suspension and Termination”.  Put very simply, the Plaintiff considers her suspension and subsequent termination to be personal.  She offers her own interpretation of the events leading to her termination in these paragraphs.  For example:

(a)  In paragraph 4, she contrasts Mr. Tsang’s account in his first witness statement as to how an investigation should be carried out with the fact that she received the first suspension letter on the same day as Ms. May Tang’s reports and prior to any investigation.

(b)  In paragraph 5, she says that her prime accuser Ms. Tang was interviewed by Mr. Tsang without the presence of any witness.  She complains that Mr. Tsang has failed to give an account of Ms. Tang’s interview.  She was not given an opportunity to review any statement received from other witnesses and to challenge her accusers.

(c)  In paragraph 6, she refers to s.11(1) of the Employment Ordinance and argues that suspension without pay and benefits should be reserved for serious cases.  She complains that her case did not fall into that category and the Defendant’s initial stance in suspending her without pay and benefits was in breach of the normal rules.

(d)  In paragraph 7, she complains that the timeline of the Bombay incident and her suspension shows that the Team Office and Ms. Tang were using the incident as an excuse to terminate her employment.  She says that although Ms. Tang had the authority to suspend her on the spot in Bombay, she did not do so.  Ms. Tang waited until after the crew had arrived back in Hong Kong before so doing and she expects Ms. Tang to have discussed with the Team Office before filing the reports against her.  She also complains that although Ms. Abreo was interviewed on the day when Ms. Tang submitted her reports, Ms. Abreo was only subsequently asked to write a report.

(e)  In paragraph 8, she forensically examines the two reports submitted by Ms. Tang and concludes that the first one appears to have been “completely whited out and rewritten”.  She says she believes that the first report must have been not convincing enough to justify her termination and so Ms. Tang was given help to rewrite it.

(f)  In paragraph 9, she says that Flight Attendants Union has received many complaints from crew members about Mr. Tsang, and his team had been “routinely flouting company policy while management looked the other way”.  She further complains that Ms. Linda Chong, Ms. Zara Chiu, Ms. Shirley Au-Yeung and Ms. Quince Chong have all indulged in “highly questionable behaviors leading up to and after [her] termination”.  She goes on to complain:

(i)  that the most trivial of incidents were highlighted and placed on record against her;

(ii)  about two bullying incidents by Ms. Linda Chong and that she was “led to believe by someone who worked with [Ms. Chong] that she was going to use her influence in the Team Office to terminate her employment”.  Her request to Mr. Tsang to remove Ms. Chong from her case was denied and “it came as no surprise that what was supposed to be a discussion of just three outstanding incidents, none of them violations, suddenly turned into a serious disciplinary interview…”;

(iii)  that Ms. Abreo was “pressured to present the picture required of her”.  The Plaintiff describes Ms. Abreo as “a nervous junior crew who supported an ailing father in Bombay and could not afford to lose her job”.  She says that Ms. Abreo was first interviewed on their return from Bombay at which time “she could not support [Ms. Tang’s] allegations and no report was filed by her”.  Later on, Ms. Abreo was interviewed again.  She was shown the Plaintiff’s performance profile by Ms. Chong and was encouraged to “add a few things to her statement”.  Given the fact that Ms. Abreo did not take contemporaneous notes at the time of the Bombay incident and that the report was only filed a week later, she does not believe Ms. Abreo’s account and quotes to be entirely correct; and

(iv)  The case concerning her sick leave in Paris was wrong in that the Defendant had failed to check if it was authorized by a doctor.

(g)  In paragraph 10, she complains that the Defendant has changed its line(s) of defence in this case over the years.

(h)  In paragraph 14, she complains that she was singled out by Mr. Tsang and his team (especially Ms. Linda Chong and Ms. Zara Chiu).  She says her termination seems to be a foregone conclusion as soon as she complained about Ms. Chong’s bullying tactics in June 2000.

(i)  In paragraph 15, she complains that Ms. Lam was neither interviewed nor issued a warning for her misconduct.

(j)  In paragraph 23, she complains that no action was taken against Ms. Tang for her misconduct.

46.  Ms. Lam says that the Plaintiff has already given an account of the facts surrounding her suspension and termination in her first statement already filed.  What the Plaintiff is trying to do here is to question the motive behind the decision to terminate her employment and to challenge the character of the Defendant’s witnesses.

47.  Ms Lam observes it is the Plaintiff’s pleaded case that her employment was terminated by payment of one month’s salary in lieu of notice[30].  As such, it will be futile for her to question the underlying motive in dismissing her.  She relies on Reda v Flag Ltd [2002] UKPC 38 at para.42-43 and submits that a power to dismiss without cause is a power to dismiss for any cause or none.

48.  Ms. Lam further observes that the Plaintiff is not claiming any relief arising from the manner of her dismissal.  Relying on Johnson v Unisys Ltd [2001] 2 All ER 801, she submits that the Plaintiff has no right at common law anyway to claim for financial losses arising from the unfair manner of her dismissal.

49.  Commenting specifically on the disputed paragraphs, she says that:

(a)  Since the Plaintiff has already dealt with her suspension and the letters in her first statement, paragraph 4 serves no purpose.

(b)  The Defendant is not required to take on the role of the court in its investigation and the Plaintiff is not entitled to an account of Ms. Tang’s interview or to review the documents as contended in paragraph 5.

(c)  Paragraph 6 is in the nature of legal submission and the correctness of the decision to suspend the Plaintiff has no relevance as she is not seeking any relief in that regard.

(d)  Paragraph 7 is pure speculation on the part of the Plaintiff and contains statement of belief or opinion as opposed to statement of fact.

(e)  The Plaintiff assumed the role of a handwriting expert and gives an opinion on the reports in paragraph 8.

(f)  The Plaintiff attempts to attack the character of the Defendant’s witnesses in paragraph 9.  The allegations, which are speculation and hearsay, are not probative to the issues in dispute.  It is also oppressive and unfair for the Plaintiff to mount general attack on their character, as the Defendant will be unable to deal with such general allegation.

(g)  Paragraph 10 contains conjectures and postulation of the Defendant’s strategy in defending itself, which is irrelevant.

(h)  Paragraph 14 contains the Plaintiff’s own opinion as to the existence of a conspiracy against her as opposed to any statement of fact and is irrelevant.

(i)  The Plaintiff is not privy to Ms. Lam’s circumstances and what she alleges in paragraph 15 can only be speculation without probative value.

(j)  The alleged misconduct of Ms. Tang in paragraph 23 has not been pleaded and is irrelevant to the issues in dispute.

50.  I am in general agreement with Ms. Lam.  The Plaintiff has already given an account of the facts surrounding her suspension and termination in her first statement.  It is not her pleaded case that she has been unfairly dismissed and she is not claiming any relief based on that ground. 

51.  The Plaintiff is clearly attempting to smear the character of the Defendant’s witnesses and to suggest a conspiracy against her.  In my view, all these are irrelevant given the Defendant’s own pleaded case and the issues in dispute.  The Plaintiff should take guidance from Hong Kong Civil Procedure 2008 in drafting her statement.  It should relate to the issues in dispute and be confined to matters of fact, and should not contain expressions of opinion.

52.  Paragraph 9(d), however, should be looked at in a different light.  When it is read together with paragraph 34 of the Statement, it is clear that the Plaintiff is attempting to answer the allegation pleaded in paragraph 14G(a)(iii) of RRAD.  As such, it relates to an issue in dispute and should be allowed.

53.  Hence, all these disputed paragraphs except paragraph 9(d) should be expunged.

(b)  Objections to para.26-30, 58 and 133-136 of the Statement

54.  The Plaintiff says that other dismissed flight attendants had received RTB after their dismissal.  In these disputed paragraphs, she gives detailed account of the case of Ms. Courtney Chong and the case of Ms. Annie Camaclang.  She complains that she has not been given discovery in this action of documents pertaining to these 2 cases.

55.  The Plaintiff’s claim on RTB is based on the terms of the Handbook.  At trial, the primary question will be whether the Handbook formed part of the Plaintiff’s employment contract.  If not, then the court will consider whether according to the Defendant’s published policy the Plaintiff should be entitled to such benefits as a matter of discretion.  If the court finds that the Handbook formed part of the employment contract, it will then decide if the Plaintiff’s entitlement has been forfeited as contended by the Defendant.  If it finds in the Plaintiff’s favour, then the court will consider the question of quantum.

56.  Therefore, whether or not other retired flight attendants might have received RTB after their employment with the Defendant had been terminated is neither here nor there.  Ms. Lam further relies on the following judgment in Kelly v Cathay Pacific Airways Ltd [2007] 4 HKLRD 881 at 887, which involved another flight attendant of the Defendant claiming for RTB, to bring home the point that the court in construing the Plaintiff’s employment contract will not be assisted by the evidence of other users:

“Mr. Simon Lui [i.e. the flight attendant’s counsel] referred to The Interpretation of Contracts by Kim Lewison QC, to show that the evidence of acts of user is admissible as an aid to the construction of the contract of employment.  We do not believe this is of assistance.  As we have mentioned, the dispute between the parties is over whether the RTB was contractual or discretionary.  So evidence of user would not help.  But, as is clear from The Interpretation of Contracts at para.11.05, the authorities cited therein related to the interpretation of parcels clauses.  As Megarry J (as he then was) in St Edmundsbury & Ipswich Diocesan Board of Finance & Another v Clark (No 2) [1973] 1 WLR 1572, and quoted by Lewison, said:

‘… One may accept to the full that it (this doctrine) does not apply to commercial contracts or, for that matter, to any language of obligation, whatever the document.’”

57.  In any event, according to the Plaintiff, although Ms. Chong and Ms. Camaclang had once been granted RTB after their termination, their entitlement has since been withdrawn by the Defendant.  Their claims against the Defendant for reinstatement of RTB are still ongoing.  So, the cases of Ms. Chong and Ms. Camaclang do not in fact advance the Plaintiff’s cause.  I do not see how the trial judge in this case can be asked to determine also whether Ms. Chong and Ms. Camaclang should be entitled to RTB under their respective employment contract.  Providing discovery on those 2 cases in such circumstances is, in my view, not justified.

58.  These paragraphs should therefore be expunged.

(c)  Objections to para.34-37 of the Statement

59.  The Plaintiff attempts to respond to paragraphs 29-35 of Mr. Tsang’s first statement in these disputed paragraphs.

60.  The Defendant objects to them because the Plaintiff merely seeks to contradict Mr. Tsang’s evidence by repeatedly accusing him of getting his facts wrong but without providing any substantive answer.

61.  I will allow these paragraphs.  The Plaintiff is responding to some of the allegations made by Mr. Tsang on her alleged poor performance, misconduct and dishonesty.  The Plaintiff has elaborated on why she considers Mr. Tsang to be wrong in these paragraphs.  Whether the Plaintiff’s explanation should be accepted should be left to the trial judge.

(d)  Objections to para.46, 48 and 49 of the Statement

62.  Mr. Tsang dealt with the events leading to the Plaintiff’s dismissal in paragraphs 31-44 of his first statement.  In paragraph 36(iii), he mentioned about the Plaintiff’s letter reciting an accident involving Ms. Tang on board a flight from Hong Kong to Bombay.  Mr. Tsang then stated that “Ms. Tang, the alleged ‘victim’ in the accident, never filed a Cabin Safety Report, which she would have had an obligation to do as an ISM, if she, like the Plaintiff, had considered the accident of such gravity as warranting ISD’s attention.”

63.  In paragraph 3 of Tsang II, Mr. Tsang clarified that “Upon further enquiry with the Inflight Safety and Standards Section in ISD, however, it was discovered that Ms. Tang had filed such a report…”.

64.  In these disputed paragraphs:

(a)  The Plaintiff claims that she had consulted Mr. Pinto, Assistant Manger Safety Training, before sending out her letter, which was copied to Mr. Pinto.

(b)  She says she fails to understand why Mr. Tsang did not check carefully before claiming in his first statement that Ms. Tang had not filed a corresponding report. 

(c)  She suspects that Ms. Tang’s report was never in fact filed, as there is no date stamped on it.

(d)  She claims to have checked with Mr. Ian Williams, Technical Training Manager, about one month after the accident and was told that no Cabin Safety Report had been filed.  She then makes the point that “Mr. Tsang has ‘found’ a copy of it in the ISD Safety Training Department, when it was not there when I checked in March 2001.”

65.  To start with, the subject accident has not been pleaded.  In any event, Mr. Tsang has already accepted his mistake on the existence of Ms. Tang’s report (which corroborates the Plaintiff’s allegation).  I fail to see how an investigation into these allegations can contribute to the fair and expeditious disposal of this case.  These paragraphs should therefore be expunged.

(e)  Objections to para.51-53 of the Statement

66.  These disputed paragraphs contain the Plaintiff’s response to paragraph 4 of Tsang II.

67.  Ms. Lam is not contending that these paragraphs are irrelevant.  Rather, she finds them objectionable because, according to her, the Plaintiff has only stated her disagreement without providing any substantive answer.

68.  Although paragraph 38/2A/10 of Hong Kong Civil Procedure 2008 states that the better practice is for a witness to deal with or contradict the witness statements of the opposite party orally at the trial, this is merely a suggestion.  In any event, the Plaintiff has stated more than her disagreement in these paragraphs.  Even if I were to exclude them now, the Plaintiff will no doubt reiterate them again orally at trial when dealing with Mr. Tsang’s evidence.  In the exercise of my discretion, I shall allow these paragraphs.

(f)  Objections to para.72-76 of the Statement

69.  These disputed paragraphs are supposed to contain the Plaintiff’s response to paragraphs 21-24 of Tsang II entitled “The Plaintiff’s Records of Meetings”.

(a)  In paragraph 72, the Plaintiff says that after the interview on 21^st February 2001, she was informed that she had been suspended without pay or benefits until further notice and was asked to handover her company identity cards without which she could not access the Defendant’s premises or obtain medical benefits.  She says she was asked to prepare a report on the spot.  She complains that the rapid and extreme response indicates her dismissal to be predetermined.

(b)  In paragraphs 73-74, the Plaintiff mentions about an incident in which Mr. Tsang allegedly took out a “rectangular box-like object wrapped in a paper bag” and claimed that to be a camera which contained photographs taken at the Bombay hotel of the content of her crew bag.  She says Mr. Tsang attempted to use that to obtain an admission from her but to no avail.  She complains that Mr. Tsang’s behaviour confirmed her belief that he was planning to dismiss her without serious investigation.

(c)  In paragraphs 75-76, the Plaintiff first complains that she had not been informed that the interview on 26^th February 2001 was a termination interview.  She says she did not take notes at the interview as she had not been advised to do so and so she only prepared her record subsequently at home.  She also says that section 5 of DGP would have given her the right to have an observer present at the interview.  Secondly, she says she has since been led to believe that the Defendant might have electronically recorded the interviews although she did not see any recording device at the time.  She says the fact that Ms. Zara Chiu has produced contemporaneous notes for the first interview but did not take notes consistently at the interview confirms her belief.  Thirdly, she points out that there is no audio recording or “contemporaneous notes” to confirm wither her version or Ms. Chiu’s version.

70.  In my view, paragraphs 72-74 do not in fact relate to Tsang II.  They seek to challenge Ms. Tsang’s character and go to the motive behind the decision to terminate the Plaintiff’s employment.  As I have endeavoured to explain above, these are irrelevant to the issues in dispute.

71.  In objecting to paragraphs 75-76, Ms. Lam says that the Plaintiff’s belief that the interview might have been recorded is irrelevant and that the allegations contained in these paragraphs are not statements of fact but mere conjectures on the part of the Plaintiff.  I agree.  In addition, the Plaintiff has not pleaded any breach of section 5 of DGP in her claim based on alleged non-compliance with DGP.

72.  I therefore expunge paragraphs 72-76.

(g)  Objections to para.77-80 of the Statement

73.  In Chiu I, Ms. Zara Chiu briefly states her employment history with the Defendant, her appointment as a Performance Development Executive (“PDE”) between 1990 and 2005, the work nature of a PDE, and her involvement with the Plaintiff as a PDE including issuing the written warning dated 21^st June 2000 and attending the interviews held on 21^st and 26^th February 2001.

74.  These disputed paragraphs are put under the title “Zara Chiu Ahmed Mustaffa’s witness statement dated 17^th June 2005” in the Statement.  It is clear that the Plaintiff seeks to generally attack the character of Ms. Chiu as well as her other colleagues in these paragraphs.  For example, she says that:

(a)  PDE used to be called “coordinator”, which was regarded by some to be a bad word.  Despite the change of title, many PDEs remain the same.  No particular skills or requirements were necessary to become a PDE, just a bit of seniority and a friend who is already a coordinator.

(b)  The Defendant was a relatively small airline in the 1970s and employed a much smaller crew.  So, the crews from that time naturally established a good rapport.  She says that Mr. Tsang and the older sister of Ms. May Tang both joined the Defendant in the 1970s, while Ms. May Tang and her other sister, Ms. Zara Chiu and Ms. Linda Chong all joined in about 1983-4.  Hence, they would have got to know each other very well over the years.

(c)  Her accusers did not file a complaint immediately whilst the airplane was still airborne.  Instead, they visited the Team Office after their flight to discuss with colleagues there including Ms. Zara Chiu and Ms. Linda Chong to confirm that their grievances would be accepted by the Team Office before filing their complaints.  In paragraphs 80(a)-(d), she implicates Ms. Steele, Ms. Lim, Ms. Zara Chiu and Ms. May Tang who have all filed a report against her. 

75.  Ms. Lam challenges these paragraphs because the Plaintiff merely seeks to discredit the Defendant’s witnesses which is not probative.  In reply, Mr. Carolan says that the Plaintiff should be entitled to respond to Chiu I.

76.  I agree with Ms. Lam that the disputed paragraphs have no probative value.  Ms. Chiu merely sets out her employment history and her appointment as PDE as background to her involvement with the Plaintiff.  The qualification for PDEs and what others might once have considered about the title “coordinator” are, in my view, irrelevant.  The suggestion that since the Defendant’s witnesses joined the Defendant at or about the same time and so they must have teamed up against the Plaintiff is another facet of the conspiracy theory which is irrelevant.  What will be of relevance at trial is whether the poor performance, misconduct and dishonesty alleged against the Plaintiff could be established by evidence.  The Plaintiff has already provided her explanation in her first statement.  What she now seeks to do in paragraphs 80(a)-(d) is not to fill in gaps but to smear her accusers.  As I have explained above, this should not be allowed.

77.  Furthermore, I accept Ms. Lam’s submission that if these paragraphs were allowed, the Defendant would have to interview all those persons named which would mean more time and costs.

78.  I will disallow these paragraphs.

(h)  Objections to para.91, 94, 97 and 128-132 of the Statement

79.  In paragraphs 15 and 16 of Mr. Nipperess’s statement, he stated that the long standing policy and the nature of RTB are reflected in documents such as COS, the Handbook, Staff Benefits Handbooks issued in 1992 and 1993, an explanatory memo dated 11^th February 1993 and a Concessional Travel Policy dated 1997.  Such benefit is described as “concessions” and “privileges” in these documents which connotes a discretion on the part of the Defendant.

80.  In paragraph 91, the Plaintiff refers to the section of COS relating to “Rebated Travel” and observes that the word “discretionary” is not used there.  In paragraph 94, she details the documents which supplemented COS over the years.  These documents include the Defendant’s newsletters, operations manuals, Concessional Travel Policy dated 1995, medical booklets dated 1997 and 1998 and related annual statements, various letters and circulars.  In paragraph 97, she recounts how her entitlement to medical benefits under COS and the Handbook has been changed.

81.  Furthermore in paragraphs 128-132, the Plaintiff:

(a)  disputes that the use of “concessions” and “privileges” means such benefits are non-contractual;

(b)  cites the definition of “benefit”, “privilege”, “concession”, “grant” and “discretion” in Chambers Everyday Dictionary;

(c)  argues, with illustrations, that the Defendant has used the terms “benefit”, “privilege”, “concession” interchangeable in some documents to describe a right; and

(d)  states that there is no blanket discretionary clause in either COS or any version of the Handbook.

82.  Ms. Lam objects to the above paragraphs because:

(a)  paragraph 91 is legal submission;

(b)  paragraph 94 is contrary to the pleaded case of the Plaintiff that the express terms of her employment contract were contained in the three documents pleaded and the Plaintiff is attempting to allege other contractual documents;

(c)  the Plaintiff’s medical benefits is not in issue; and

(d)  the Plaintiff has put forward legal arguments in paragraphs 128-132 as opposed to statements of fact. 

83.  In reply, Mr. Carolan says that the Plaintiff is merely attempting to comment on the language used in the relevant documents.  He says he needs more time to study the documents mentioned in paragraph 94 before he can point out how they are relevant.  He says from his own experience that witnesses usually like to comment on documents and trial judges will ignore their comments if they are irrelevant.  He questions why the Defendant does not object to other paragraphs in the same vein.

84.  It is the Defendant’s case that RTB is discretionary and is subject to the Defendant’s policy published from time to time[31].  Mr. Nipperess has enumerated the documents in which the Defendant’s policy was published.  In my view, the Plaintiff is quite entitled to name the document(s) which she says contained the Defendant’s policy.  The identification of these documents is a statement of fact.

85.  Although these paragraphs may have the effect of expanding the scope of discovery, this seems inevitable given the Defendant’s express reliance on its policy on RTB as published from time to time.  Mr. Nipperess has certainly gone beyond the Handbook to illustrate the Defendant’s policy. 

86.  My reading of paragraph 94 is that the Plaintiff is merely giving an account of how COS is supplemented or updated by various documents over the years.  It does not necessarily mean that all the documents mentioned therein are relevant.  Even the Plaintiff’s counsel cannot justify their relevancy at the hearing.  The scope of discovery should be judged by relevancy of the documents to the matters in question in the action.  I shall leave it to the good sense of the parties’ legal advisers to advise them on the relevancy of those documents and whether they need to be disclosed.

87.  In short, I will allow these paragraphs except paragraph 97.  Paragraph 97 should be expunged for the reason advanced by Ms. Lam.

Conclusion

88.  For the above reasons, I grant leave to the Plaintiff to file and serve the Statement save that paragraphs 4-8, 9-9(c), 10, 14-15, 23, 26-30, 46, 48-49, 58, 72-80, 97 and 133-136 should be expunged.

89.  On costs, I am of the preliminary view that the Plaintiff’s application is occasioned by the course of litigation and the Defendant has substantiated its objections.  In those circumstances, I make a costs order nisi that:

(a)  the costs of and occasioned by the Plaintiff’s application (including the costs of the call-over hearing) be in the cause; and

(b)  the costs of the hearing before me be paid by the Plaintiff to the Defendant in any event to be taxed if not agreed.

[1] At para.38/2A/9.

[2] See O.38, r.2A(2).

[3] See Hong Kong Civil Procedure 2008, para.38/2A/10.

[4] See Hong Kong Civil Procedure 2008, para.38/2A/6.

[5] See para.1-2 & 9 of ASOC; para.2-3 & 9 of RRAD.

[6] See para.1 of ASOC.

[7] See para.2, 5 & 15 of RRAD.

[8] See para.9A(e) of ASOC; para.14E & 14M of RRAD.

[9] See para.7, 9A-9C of ASOC.

[10] See para.8-8B of RRAD.

[11] See para.9A & 8A of RRAD.

[12] See para.14F of RRAD.

[13] See para.9 of RRAD.

[14] See para.9A of RRAD.

[15] See para.14J(a) of RRAD.

[16] See para.14J(b) of RRAD.

[17] See para.14K of RRAD.

[18] See para.14E, 14H, 14I & 14L of RRAD.

[19] See para.4 of RRAR.

[20] See para.5 of RRAR.

[21] See para.6 of RRAR.

[22] See para.3-4 & 9(ii)-(iii) of ASOC.

[23] See para.4A-4C of RRAD.

[24] See para.13F-14C of RRAD.

[25] See para.14D of RRAD.

[26] See para.5 & 10-11 of ASOC.

[27] See para.6 & 15 of RRAD.

[28] See para.16 of RRAD.

[29] See para.16A-18 of RRAD.

[30] See para.9 of ASOC.

[31] See para.6 & 15 of RRAD.