YUEN OI YEE, LISA v. CHONG KING PO, SALLY AND OTHERS

DCCJ7079/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7079 OF 2003

DCCJ7080/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7080 OF 2003

BETWEEN

DCCJ7081/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7081 OF 2003

BETWEEN

DCCJ7184/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7184 OF 2003

BETWEEN

DCCJ7185/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7185 OF 2003

BETWEEN

DCCJ7257/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7257 OF 2003

BETWEEN

DCCJ7258/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7258 OF 2003

BETWEEN

DCCJ2702/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2702 OF 2004

BETWEEN

(CONSOLIDATED PURSUANT TO ORDER OF HIS HONOUR
JUDGE A. TO DATED 3RD NOVEMBER 2004)

DCCJ378/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 378 OF 2005

BETWEEN

DCCJ442/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 442 OF 2005

BETWEEN

D E C I S I O N

1.  This is my decision in the consolidated action, DCCJ7079 of 2003, 7080, 7081, 7084, 7184, 7185, 7257 and 7258 of 2003, and 2702 of 2004 consolidated, and 378 and 442 of 2005.  These actions heard together in three summons.

2.  The defendants in the consolidated actions of DCCJ7078 to 7081, 7184, 7185, 7257, 7258 of 2003 and 2702 of 2004, (hereinafter referred to as consolidated actions), the 1st to the 10th defendants in DCCJ442 of 2005, and the 1st defendant in DCCJ378 of 2005, applied in four separate summonses to strike out the plaintiff’s Writ of Summons and Statement of Claim against them on the alternative grounds that they fail to disclose any reasonable course of action or are frivolous and vexatious, or constitute abuse of the process of court because:

(i)	confidentiality and privacy attached to the alleged defamatory letter dated 21 February 2003 of the defendants, and the same is subject to an implied undertaking that it would not be used for any purpose other than that for which they were disclosed; namely, the proceedings before the Equal Opportunities Commission or consequential court proceedings under the Sex Discrimination Ordinance; and/or
(ii)	the use or disclosure of the alleged defamatory letter dated 21 February 2003 in these proceedings is against public interest; namely, that such use or disclosure would result in the flow of information to or co-operation with the EOC being severely reduced; further or alternatively a determination of the question of whether the plaintiff is, as a matter of law, precluded from using or adducing as evidence the alleged defamatory letter dated 21 February 2003 for any purpose other than for the purposes of the proceedings before the EOC or consequential court proceedings under the Sex Discrimination Ordinance;
(iii)	this action against the defendants be dismissed.

3.  The aforesaid being part of the summons filed in the consolidated action and DCCJ442 of 2005, whereas the summons filed on behalf of the 1st defendant is as follows:

(i)	the plaintiff’s Writ of Summons and Statement of Claim against the 1st defendant be struck out on the alternative grounds that they fail to disclose any reasonable course of action or are frivolous and vexatious, or constitute abuse of process of the court because:
	(a)	confidentiality and privacy attached to the alleged defamatory e-mail of 3 March 2003 of the 1st defendant and the same is subject to an implied undertaking that it would not be used for any purpose other than that for which they were disclosed; namely the proceedings before the Equal Opportunities Commission or consequential court proceedings under the Sex Discrimination Ordinance; and/or the use or disclosure of the alleged defamatory e-mail of 3 March 2003 in these proceedings is against public interest; namely, that such use or disclosure would result in a flow of information to or corroboration with the EOC being severely reduced;
	(b)	further alternatively, a determination of the question of whether the plaintiff is, as a matter of law, precluded from using or adducing as evidence the alleged defamatory e-mail of 3 March 2003 of the 1st defendant for any purpose other than for the purposes of the proceedings before the EOC or consequential court proceedings under the Sex Discrimination Ordinance;
	(c)	this action against the 1st defendant be dismissed.

4.  The first two summonses are identical.  The defendants in the consolidated action summons was re-amended on 10 June 2005, and became identical, or almost identical, to the summons in action DCCJ442 (“442”).  The consolidated action striking out summons was originally taken out on 14 December 2004, while the summons in 442 was taken out on 16 February 2005, and the summons in DCCJ378 of 2005 (‘378”) was taken out on 15 February 2005.

5.  On 13 July 2005, the 7th defendant joined in and lodged a similar summons to the summons in 442, filed by the 1st to 6th defendants and 8th to 10th defendants.

Background of the case

6.  The plaintiff, Miss Yuen, was an employee of Heath Company Limited between 15 October 2002 and 6 March 2003 as the finance and administration manager.  Her employment was terminated after four and a half months before the end of the six months’ probation period.

7.  Miss Yuen commenced a claim against Heath Company Limited (“Heath”) based on Heath’s Human Resources Officer’s telephone inquiries on three of her former employers in February 2003.  On 27 May 2003, the claim was settled.

8.  On 2 June 2003, Miss Yuen filed a complaint to the Office of Privacy Commissioner for Personal Data against the former employer, Heath, in respect of the said telephone inquiries.  That complaint was later withdrawn by the plaintiff, Miss Yuen, for the obvious reason that her claim had been settled on 27 May 2003.

9.  On 18 September 2003, Miss Yuen commenced an action in the District Court, DCCJ5441 of 2003, for damages against Heath for the same complaint.  This action was later struck out because of the 27 May 2003 settlement of  the earlier claim, based on the same complaint.

10.  On 16 July 2003, Miss Yuen filed a complaint at the Equal Opportunities Commission (“EOC”) against Heath and its former general manager and director, Mr Y F Lai, for gender discrimination resulting in her dismissal.

11.  On 2 August 2003, the EOC gave notice to Mr Lai about the complaint against him and informed him that an investigation would be conducted.  The EOC further asked Mr Lai to respond in writing the complaint laid against him and supply information with supporting documents relating to the complaint.  A similar notice and request was sent to Heath’s managing director.

12.  In response to the EOC notice, Mr Lai replied by letter on 11 September 2003, enclosing a complaint letter dated 21 February 2003 against the plaintiff signed by 29 staff members, and enclosing a bundle of supporting documents which included a copy of an e-mail message from Mr Fred Leung, the 1st defendant in DCCJ378, dated 3 March 2003.  I shall refer to this e-mail message as “the Fred Leung e-mail”.

13.  On 6 November 2003, the plaintiff, Miss Yuen, received from the EOC the response of Mr Lai to her complaint with the documents attached to his response for Miss Yuen’s further comments; this being the usual practice of the EOC investigation procedure.

14.  According to Miss Yuen’s Statement of Claim in DCCJ442 and the consolidated action, paragraph 12, she learned then for the first time there was a letter of complaint against her signed by 29 member of staff on 21 February 2003, addressed to Mr Lai.  This letter was attached to the fresh Statement of Claim in the consolidated action and the Statement of Claim in 442.

15.  On 15 December 2003, Miss Yuen was notified by the EOC that it is discontinuing the investigation for the reasons that the plaintiff’s relationship with other staff of Heath had deteriorated since January 2003, and that the replacement of the plaintiff’s position at Heath was female.  Consequently, the EOC concluded that her employment was not terminated because of her gender.

16.  On 18 November 2003, Miss Yuen wrote to 13 of Heath’s staff members demanding an apology letter from each of them in respect of their complaints to the vice-president of Heath, Mr Steve Marcum, on 5 March 2003 when he visited Hong Kong.  She further demanded compensations to be paid to a local charity by them.

17.  She sent an e-mail to Mr Marcum on 6 December 2003 informing him she would issue writs against the 13 staff members and a further 16 staff members should they refuse to issue apology letters and pay a donation to the Tung Wah Group of Hospitals.

18.  Up to this stage, there were no references in her correspondences to the 21 February 2003 complaint letter.

19.  It is not disputed that the apology letters and the donations would be used in opposing Heath’s application to strike out her claim in DCCJ5441 of 2003 at the time.

20.  At yesterday’s hearing, Miss Yuen admitted she would return to the EOC and ask the EOC to re-convene their investigation of her complaint armed with these apology letters. This was also the conclusion of H H Judge To in a striking-out application lodged by the defendants in the seven actions before the consolidation on 4 June 2003.   I shall refer to this judgment later.

21.  On 15 December 2003, Miss Yuen commenced three actions, namely, Action Nos. DCCJ7079, 7080 and 7081 of 2003, against three of the 13 staff members.  On 19 December 2003 and 24 December 2003, she commenced four further actions against the remaining 10 of the 13 staff members under DCCJ7184, 7185, 7257 and 7258 of 2003.

22.   Mr Mok criticised her intention of issuing multiple actions was to aggravate Heath and the defendants’ costs, and this was also concluded by H H Judge To in his decision of 4 June 2003, which I shall come to later on.

23.  On 4 March 2004, Miss Yuen commenced defamation proceedings against Heath and Mr Lai in High Court Action 509 of 2004.  Meanwhile, the defendants in the seven District Court actions applied by summons to strike out the Statement of Claim filed by the plaintiff against them.  The application was heard and decided by H H Judge To on 4 June 2004.

24.  The defendant exhibited numerous e-mail messages sent by Miss Yuen to Mr Marcum in 2003 and 2004 at the hearing before H H Judge To.  These and other documents and e-mails were placed before H H Judge To exhibited to the defendant’s affidavits.  It can be seen that H H Judge To took into his consideration these correspondences in his decision of 4 June 2004.

25.  I shall refer to the relevant passages of H H Judge To’s decision given on 4 June, for the sake of completeness.  Under paragraph 24 on page 15 of his decision he said:

“It could be seen that the terms of the apology demanded by the plaintiff were much wider than she would be entitled to in an action in defamation.   Items B, C and E are not related to defamation.  Obviously, the plaintiff’s purpose of obtaining apologies in those terms is to use them as evidence against Heath in High Court Action 509 of 2004, and to enable her to reopen the EOC investigation.”

26.  Later on, in the last sentence of the same paragraph, he said:

“The plaintiff is patently misusing the court’s process to achieve the collateral advantage not properly available to her in the course of properly conducted proceedings.”

27.  In paragraph 26, the latter part, appearing on page 18 of his judgment he said:

“This e-mail shows that the plaintiff is taking pleasure in issuing different writs for different causes of action apart from separate action for individual defendants.  This explains why the four actions subsequent to these seven District Court actions were not instituted together.  Her purpose is obviously to increase Heath’s costs in defending her claims.”

28.  He made further references to various correspondence by e-mail from the plaintiff to Mr Marcum and at paragraph 30 on page 18, Judge To said:

“I think these correspondences are more than ample to demonstrate that the plaintiff’s real purpose of instituting multiple action was not only to aggravate Heath’s costs in defending her claims, but to make it so costly as to force Heath into submitting to her action in HCA 509 of 2004, and to settle with her for a substantial payment.”

29.  Judge To found that the defendants had made out a case of abuse of process of the court.  However, he further found that the plaintiff had established a prima facie case of defamation which has caused the plaintiff to lose her job.  He further found the burden to be on the defendants to raise the defence of justification of fair comment.  He allowed the plaintiff’s seven actions to be consolidated and gave directions for further conduct of the proceedings.  This appeared in paragraph 31 of Judge To’s decision on page 19:

“The defendants have made out a case of abuse of process of the court.  The next issue is whether the plaintiff’s actions should be dismissed or stayed.  It has not been argued by the defendants that the letter of 21 February 2003 was not defamatory.  Thus, there is a prima facie case of defamation, and the defamation has caused the plaintiff to lose her job.  The burden is then on the defendants to raise the defence of justification of fair comment.  Thus, the plaintiff appears to have a good and proper cause of action to trial.  There is nothing to suggest that the proceedings could not be put back on the right track so that they could be conducted in a proper manner.”

30.  It was on this basis that a fresh Statement of Claim was filed after the consolidation of the seven actions by the plaintiff on 8 November 2004.  In the fresh Statement of Claim of this consolidated action the plaintiff based her claim on malicious falsehood, relying on the staff complaint letter of 21 February 2003.

31.  In the present application to strike out, the defendants relied on the judgment of Tang J (as he then was) in High Court Action 509 of 2004, handed down on 2 December 2004.  Mr Mok was the counsel appearing on behalf of the 1st defendant, Heath, in that action.

32.  Mr Mok’s striking-out summons before Tang J (as he then was) is identical to the three summonses issued in the consolidated action and 442 of 2003 at the present hearing.  He adopted the same submissions raised before Tang J.  It was:  as a matter of law, information and evidence provided by a witness or potential witness in an investigation and possible court proceedings are covered by an implied undertaking not to use them for collateral purposes; that the witnesses are further protected by an absolute privilege or immunity.

33.  In Tang J’s judgment, he examined the House of Lords’ decision in Taylor & Anor v Director of the Serious Fraud Office [1999] 2 App. Case 177, the Court of Appeal decision of Mahon v Rahn 2 [2000] 1 WLR 2150.  After considering the decision of the House of Lords in Taylor,  Tang J held in paragraph 19 on page 14 of his judgment:

“As noted above, the implied undertaking rule applies not only to statements made for the purposes of the investigation, but also documents in existence at the time when the investigation commenced and which were given to the police or investigators for the purposes of the prosecution.”

34.  In paragraph 20:

“As for immunity from suit, Lord Hoffman was of the view that it would fall within the underlying rationale for the defence to extend the protection which already existed for witnesses to persons who were not witnesses.”

35.  In this context he had, under paragraph 18 of his judgment, referred to Lord Hoffman’s dictum at page 211B of the report of the case of Taylor, which was repeated under paragraph 18.  It is the last paragraph of that quotation:

“In my opinion, therefore, the disclosure of documents by the prosecution as unused material under its common law obligations did generate an implied undertaking not to use them for any collateral purpose.  I agree with the reasoning of Brooke LJ on this point in Mahon v Rahn and I think that Sir Michael Davies was right to strike out the action for the reasons which he gave.”

36.  Quoting the passage in the Taylor case, the judgment of Lord Hutton on immunity of witnesses giving statements at an investigation, Tang J further held in paragraph 22 on page 16 of his judgment:

“This is further support for the view that the immunity covers claims based on alleged malicious falsehood as well.”

37.  In paragraph 23 he said:

“I turn to consider Mahon v Rahn 2, which extended the immunity beyond criminal investigation.  That was a case where the Court of Appeal was concerned with the response to a financial regulator who wanted more evidence to bolster its case on appeal that an appellant was a fit and proper person to carry on investment business before the securities association.”

38.  In paragraph 194 of the judgment, Brooke LJ said:

“Important though the investigation of crime undoubtedly is, I have not found it possible to make a logical distinction between the situation in which a criminal investigator seeks evidence to support a criminal charge and a situation in which a financial regulator seeks evidence to put before a tribunal to the effect that someone is not a fit and proper person to conduct investment business.  It appears to me, and I did not really need Dr Pulse’s(?) evidence to confirm it, that the flow of information to financial regulators might be seriously impeded if its informants feared that they might be harassed by libel proceedings.  And if it was impeded in this way, the purposes of Part 1 of the Financial Services Act (1986) of protecting the public from unfit investment advisers will be put at risk.  For these reasons, I would allow the defendant’s appeal in the first issue and hold that the TSA letter was published on an occasion which attracted absolute privilege.”

39.  Paragraph 24, Tang J held:

“In my opinion, the underlying rationale of the defence of immunity from suit applies with equal force to information supplied to the EOC in this case.”

40.  He then referred to the Sex Discrimination Ordinance, Cap. 480, the long title, and in paragraph 26 he said further:

“In my opinion, the flow of information to EOC might be seriously impeded if its informants feared that they might be harassed by libel proceedings.  I would add claims based on alleged malicious falsehood as well.”

41.  In paragraph 31 of his judgment, Tang J held:

“The plaintiff also relies on the complaint handling procedures information for the respondent and the passage quoted in paragraph 6 above concerning investigation confidentiality.  He said that when the 1st defendant first responded to the EOC notice it purported to make the answer private and confidential and on condition that the contents should not be disclosed to the plaintiff.  However, that was not acceptable to the EOC, who refused to accept the response on such a condition.  That was for obvious reasons, because in order for the EOC to investigate and deal with the complaint it would need to seek the response of the complainant to the response by the respondent to the complaint.  The complainant submitted, and this was not disputed by Mr Mok, that the 1st defendant then did not insist that its response must not be communicated to the respondent.  However, I do not think that this helps the plaintiff at all.  The implied undertaking, as well as the immunity from suit, apply nevertheless to such response.  The fact that the 1st defendant’s response would be supplied to the plaintiff for his response would not sanction its use for any purpose outside the ordinance.”

42.  In paragraph 37, he said further:

“The 1st defendant was not a party to the District Court proceedings although, as the plaintiff said, the 1st defendant had not denied the 1st defendant was funding the defence of those proceedings.  Mr Mok has informed me, and it is quite clear from the judgment of 4 June 2004, that no argument based on implied undertaking or immunity from suit was advanced before Judge To.”
“38.	I do not believe the fact that there are those other pending proceedings is a good reason for a stay of the present action.  It is not for me to decide whether those proceedings could be struck out based on the implied undertaking on immunity from suit.  I am not concerned with them.”
“39.	However, I am quite satisfied that the plaintiff’s claim ought to be dismissed.  The documents were supplied to the defendant for the purpose that she should be able to respond to them for the purpose of EOC’s investigation.  Although the responses and information supplied might be admissible under action brought under section 76 of the ordinance, or other purposes under the ordinance, I am satisfied that there was an implied undertaking not to use the supplied response or documents for the purpose of proceedings in defamation or malicious falsehood, so I would dismiss the plaintiff on this ground.  I am also satisfied that the absolute immunity from suit for defamation and malicious falsehood based on Taylor and Mahon v Rahn No. 2 applied to information and documents supplied pursuant to an investigation by the EOC, so that the 1st defendant could not be sued in respect of them.”
“40.	I turn to consider whether the Statement of Claim and the action ought also to be struck out as an abuse of process of the court.  As the learned editors of the Hong Kong Civil Procedure put it at Order 18/19/10, ‘The categories of conduct rendering a claim of frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances, and for this purpose, considerations of public policy and the interests of justice may be very material.’.”
“41.	I refer to the matters set out in paragraphs 13 and 14 above, having regard to the flimsiness of the plaintiff’s claim and the conduct related above.  I believe her claim to be an abuse of process.  The matter must be approached with common sense.  Even if, which is not my view, with ingenuity, one might discover one or more moot points in favour of the plaintiff, that is not a good reason to allow the claim to go ahead.  In my opinion, the plaintiff has no reasonable cause of action and it would be an abuse of process to allow her to pursue this claim with her avowed intention of forcing the 1st defendant to expend substantial time and money in the defence of her claim.”

43.  Mr Mok submitted that the same reason applies in the consolidated action.  In DCCJ378, the plaintiff relies on the Fred Leung e-mail instead of the staff complaint letter of 21 February 2003.  In DCCJ442 she pleaded a similar case as in the consolidated action because in the Statement of Claim, although she claimed later on she did not learn about the staff complaint letter from the EOC documents, she claimed she had an early knowledge of the letter of her complaint before her termination on 5 March 2003.  It should be 6 March 2003.

44.  She alleged in her affirmation of 5 March 2005, that Mr Lai had forwarded a blind copy of a complaint letter dated 21 February 2003 from his e-mail server at work on 28 February 2003.  This appeared under paragraph 4 of her affirmation of 5 March 2003.  She repeated the same early knowledge of the Fred Leung e-mail of 3 March 2003, in a similar affirmation in Action DCCJ378.  Her allegations were denied by the defendants.

45.  In Miss Anita Lam’s affirmation, she referred to the staff at Heath, including a Miss Fanny Chan of the accounts department investigating with the assistance of Mr Lai and Miss Chan’s computers.  They could find no records of forwarding to Miss Chan by Mr Lai of the 21 February complaint letter or the 3 March e-mail from Fred Leung to Miss Fanny Chan’s computer, or to the plaintiff’s computer.  Furthermore, these later allegations, which Mr Mok submitted are afterthoughts of the plaintiff, are contrary to paragraph 12 of the plaintiff’s Statement of Claim in the consolidated action and DCCJ442.

46.  Mr Mok submitted that Mr Lai could not have e-mailed the said complaint letter of 21 February 2003 to the plaintiff, because the letter was a typed letter signed by 29 staff members.  It was not an e-mail which could be easily forwarded, inadvertently or otherwise, by Mr Lai to the plaintiff.  It is also unlikely that Mr Lai would forward this letter or the 3 March e-mail to the plaintiff, it was not to Mr Lai’s advantage to do so.

47.  I am convinced that Mr Mok’s submission is reasonable and logical under the circumstances, taking into consideration that it was only in later affirmations after December 2004 that the plaintiff referred to the fact that she had an early knowledge of these documents, while in all previous pleadings and affirmations she referred to the fact that she came to know of the complaint letter after she was sent by EOC the documents supplied by Mr Lai in his response to the EOC.

48.  So far as the DCCJ378 is concerned, in respect of the Fred Leung e-mail, for the same reason referred to above, the plaintiff, according to Mr Mok, is not allowed to use documents obtained from the EOC and the said e-mail is not to be used, therefore, in the proceedings.

49.  On the other hand, there was no submission made at the hearing yesterday that the publication of this particular document was libellous or considered to be libellous and that the plaintiff may have a genuine cause of action against the writer of the e-mail, provided that the plaintiff is able to prove her claim by calling one or more witnesses to whom the document was sent, proving publication of the defamatory statement. 

50.  I turn now to the document, the e-mail itself.  Miss Yuen claimed in paragraphs 10, 16 and 17 of her Statement of Claim in 378 that she was defamed because she was called “an ape”, while Mr Leung described  himself and his colleagues as “all monkeys in the forest”.  I was referred to an e-mail in the EOC documents from Mr Lai’s response of the same date as the Fred Leung e-mail, 3 March 2003, from Miss Yuen to Mr Lai.  In this e-mail, she wrote: “I trust there are monkeys (two or three) playing around behind my back.”

51.  Presumably, that was why Mr Fred Leung sent the 3 March 2003 e-mail to Mr Marcum, telling him the story of the “monkeys in the forest of fruit  trees”.  It is obvious that it was a description first employed by the plaintiff herself in the earlier e-mail.  If the term or description in the story told by Mr Leung is defamatory of the plaintiff, the same surely must apply to the plaintiff herself when she called her staff “monkeys” in her e-mail earlier that day sent to Mr Lai and copied to all staff of Heath.

52.  The background of the reference to “monkeys in the forest” in Mr Fred Leung’s e-mail speaks for itself.  The story was told by Mr Leung.  It cannot possibly be considered defamatory if he was reciting a story involving animals.  Furthermore, if the reference and the term was first used by the plaintiff herself, surely it must be the case that she did not consider that it should be in any way defamatory.  The same standard should apply when  one reads the document from the plaintiff to all the staff, that the same term being adopted by one of the staff in an e-mail sent on the same day copied to all staff of Heath.  I am, therefore, not convinced that the plaintiff has a sustainable claim on defamation in 378.

53.  Based on an analysis of the judgment of Tang J and the dicta in his judgment, I find the same rationale applies equally to the present case in the consolidated action and 442, and 378 too so far as it relates to the 12 February 2003 letter on malicious falsehood.

54.  I am satisfied that the letter of complaint was a privileged document and there is an implied undertaking rule applicable to the EOC investigations for the protection of witnesses.  As Tang J put it in paragraph 26 of his judgment:

“The flow of information to the EOC might be seriously impeded if its informants feared that they might be harassed by libel proceedings.  I would add claims based on alleged malicious falsehood as well.”

55.  On the aforesaid basis, and on the basis that the 21 February 2003 complaint letter obtained from the EOC could not be used in proceedings other than for the purpose it was obtained, that is, the EOC investigations and EOC court proceedings if it relates to the Sex Discrimination Ordinance, there is therefore no cause of action raised by the plaintiff.  In any event, I find that the plaintiff’s Statement of Claim failed to disclose any reasonable cause of action and is frivolous and vexatious and an abuse of process of the court.  Therefore, I strike out the plaintiff’s Statement of Claim.

56.  I am further satisfied that the writ of summons should be struck out and dismissed, because like the High Court Action 509 of 2004, the conduct of the plaintiff and the approach to the series of litigation with the intention of increasing and aggravating the costs of the defendants and her former employer Heath amounts to an abuse of process of court, it would be scandalous and against public policy to allow her to pursue her claim any further.  Therefore, I dismiss the writs of summons in the consolidated actions, 442 and 378 of 2003.

57.  So far as the plaintiff’s application in the consolidated action is concerned applying to this court to waive all costs against her for the 1½ day hearing on 3 and 4 June 2003, and the costs of this hearing and application before me, her grounds were that the defendants in the consolidated action have applied for a second time, using the same reasons of absolute immunity and implied undertaking which had been heard by Judge To on 3 and 4 June last year.

58.  I cannot find any references to these two grounds in Judge To’s decision of 4 June 2004, other than a reference to the case Mahon v Rahn when referring to the advantage that the plaintiff may hope to obtain using the EOC documents.  In any event, a fresh Statement of Claim had been filed in the consolidated action, and different causes of action have been pleaded by the plaintiffs.  The defendants, therefore, are entitled to apply again to strike out not the original Statement of Claim but the fresh Statement of Claim filed under the consolidated action.  Even though using the same grounds as the abuse of process of court, and no reasonable cause of action, frivolous and vexatious as the basis of their applications, we are looking at a different Statement of Claim altogether.

59.  Furthermore, Judge To had already given the plaintiff a chance to file a fresh Statement of Claim in the consolidated action and this consolidated action should not be allowed to carry on ad infinitum.  If only the Statement of Claim is struck out and not the action itself, the plaintiff will be given the chance of filing a fresh Statement of Claim again and again.

60.  For the reasons already given, and for the reason that this case should not be allowed to go on indefinitely, thus constituting further abuses of process of court, I consider that the action should be struck out and dismissed.

61.  So far as the argument as to issue estoppel is concerned, Mr Mok referred to the judgment of Kempster JA in the case of  Lily Cheung v Standard Chartered Bank CA159 of 1987, date of judgment 15 February 1988, at page 616 of the report:

“In so far as the doctrine of issue estoppel per rem judicatam is regarded in its narrow sense, it is, as Mr Fung properly concedes, applicable only to final judgments and orders of a competent tribunal, domestic or foreign, and not to those which, like that of Deputy Judge Cruden where absence of finality appears on the face of the record, it can be varied, reopened or set aside by the same, as contrasted with an appellate tribunal.”

62.  And at page 617, at D, he said further:

“For my part, I cannot regard it as an abuse of the process of a party to successive interlocutory proceedings not to deploy his full battery of argument at the first opportunity.  Indeed, at such a stage when discovery and research are incomplete, he should not be expected to have binding elections.”

63.  For the aforesaid reasons, I refuse the plaintiff’s application for costs of the applications.  As to the costs order of Judge To on 4 June 2004, I have no jurisdiction to set it aside or waive it.  Only the Court of Appeal can do that when the plaintiff succeeds in an appeal of Judge To’s order, and, in so far as I can understand, there has been no such appeal.

64.  So far as the costs of the application and costs of the hearing are concerned, I grant costs to the defendants, to be taxed if not agreed, with certificate for counsel.