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

DCEO 11/2017 & 5/2018 (Consolidated)

[2022] HKDC 379

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NOS 11 OF 2017 & 5 OF 2018

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(Consolidated by the Order of Mr Registrar Ho of the District Court dated
28 February 2018)

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REASONS FOR DECISION

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1.  By summons dated 25 August 2021, the claimant in this set of consolidated proceedings (“the Consolidated Action”) applies for leave to amend his Consolidated Notice of Claim dated 8 August 2018 (“the CNC”). The proposed amendment in its entirety is opposed by the respondent. As explained below, in the course of the hearing, the claimant withdrew part of the amendment sought, leaving to be adjudicated the Amendments in Dispute (defined below).

2.  At the conclusion of the hearing, I gave leave to amend with written reasons to be provided. These are my reasons.

3.  The claimant is represented by Mr Chu Wai Kei and the respondent by Ms Kay Seto, both of counsel.

4.  Preceding and cumulating to the commencement of the Consolidated Action and then to the present application is a protracted history of events beginning in 2011.

Factual background

5.  Cheung JA has succinctly summarized the factual background when the learned JA gave the judgment of the Court of Appeal in January 2021[1] regarding the claimant’s appeal against the order of HHJ Winnie Tsui staying the Consolidated Action pending the conclusion of the second disciplinary proceedings in respect of the claimant’s suspected disciplinary offences committed between January and July 2012. I gratefully adopt the learned JA’s summary:-

“2.1  The following factual background is extracted from the judgment below:

1)  The claimant joined the Fire Services Department (‘the FSD’) as a fireman in 2002.

2)  Under the framework laid down by the Fire Services Ordinance (‘the FSO’), Cap. 95, he is a ‘member of other ranks’.

3)  The claimant claimed that from about 2011 onwards, he was suffering from depression, anxiety, delusionary disorders and adjustment difficulties in his job.

4)  On 23 August 2011, he attempted to commit suicide at the Kong Wan Fire Station by jumping from height. He was diagnosed with adjustment disorder shortly afterwards. He alleges that his mental illness had ‘affected his thought processes, perception of reality, emotions or judgment or … had resulted in disturbed behaviour’.

5)  Sick leave was granted to him from 23 August to 2 October 2011. On 3 October 2011, he was certified by doctor to be mentally stable and mentally fit to resume work. On 4 October 2011, he resumed operational duties.

6)  Between 2010 and 2012, the claimant underwent four special appraisals and his performance was rated either ‘poor’ or ‘very poor’. The claimant said that these special appraisals were conducted in disregard of his mental illness.

2.2  On 18 July 2012, the Director of Fire Services (‘the Director’) interdicted the claimant for investigation into ten suspected disciplinary offences, which were alleged to have been committed between 18 January and 4 July of the same year, pursuant to section 14(1)(b) of the FSO.

2.3  On 25 February 2013, the Director instituted disciplinary proceedings against the claimant (‘the first disciplinary proceedings’). The proceedings were concluded in March 2015 and the claimant was found guilty.

2.4  The ten charges that the claimant faced in the first disciplinary proceedings can be grouped into four categories:

1)  On three occasions, without reasonable cause, he failed to promptly and diligently participate in station training which was part of his duty. This was contrary to paragraph (4)(a) of Schedule 1 to the FSO.

2)  On three occasions, he acted in a disorderly manner by holding a mobile phone and acting like he was making an audio and/or video recording of members of the FSD, causing nuisance to them. This was contrary to paragraph (12) of Schedule 1 to the FSO.

3)  On three occasions, he acted in a disorderly manner by making insulting remarks concerning other members of the FSD in offensive and foul language in conversations. This was contrary to paragraph (12) of Schedule 1 to the FSO.

4)  On one occasion, without good and sufficient cause, he removed his uniform and accoutrements from his locker and left them unattended on the floor and left the fire station, contrary to lawful written order. This was contrary to paragraph (2) of Schedule 1 to the FSO.

2.5  Between February 2014 and March 2015, a total of six hearings were scheduled. The first five hearings were either adjourned or suspended. The sixth hearing took place on 13 March 2015. The presiding officer proceeded with that hearing, notwithstanding that the claimant was absent. The finding was that all ten disciplinary charges were proved.

2.6  In late March 2014, the claimant sent to the FSD two medical certificates regarding his mood and mental condition. In light of this, the first disciplinary proceedings were suspended. The FSD considered that a medical board should be convened to investigate, among other things, (1) whether the claimant’s work performance and suspected misconduct were related to his health condition, and (2) whether he was fit to attend the disciplinary proceedings. For that purpose, the claimant’s consent was necessary.

2.7  There was much back-and-forth over the grant of consent by the claimant. Eventually, on 11 March 2015, he returned a signed consent form to the FSD. However, the presiding officer rejected it as the claimant’s signature was not witnessed, as required in the form. The claimant was absent at the hearing which was held two days later on 13 March 2015. The presiding officer declined to further adjourn the hearing and made the guilty finding after evidence was heard.

2.8  On 16 July 2015, the Director imposed the punishment of ‘dismissal without retirement benefits’ on the claimant for all the charges.

2.9  The claimant applied for judicial review in respect of the guilty finding made by the presiding officer. The claimant succeeded in the judicial review before Wilson Chan J on 9 March 2018 (see judgment under HCAL 89/2015 at [2018] HKCFI 498).

2.10  Wilson Chan J granted a declaration that the presiding officer’s refusal to adjourn the first disciplinary proceedings so that a medical board could be convened was unlawful. He quashed the guilty finding of the charges and the punishment. He made an order of mandamus requiring the Director to convene a medical board on the claimant.

2.11  Wilson Chan J’s reasons were, among other things, that the Director’s refusal to accept the claimant’s consent form for want of a witness’ signature was unreasonable because the witnessing was not required under the FSD guidelines and there was no valid or cogent reason for this requirement. Further, under the FSD guidelines, medical advice from the medical board ‘is obviously necessary for deciding whether or not there is causation between the officer’s disability and his misconduct’ (paragraph 32). In the absence of such medical evidence, the presiding officer’s finding that there was no such causation was not supported by evidence, was without basis and could not stand.

2.12  Pursuant to the order imposed by Wilson Chan J, on 2 August 2018, a medical board was convened to examine the claimant.

2.13  On 24 August 2018, the board sent its report to the Director. It stated that the claimant appeared to be in remission of his mental illness but he would warrant regular follow-up and treatment. At the end of the report, the board opined that:

1)  The claimant’s health condition at the material time provided an exculpatory or mitigating factor for his alleged misconduct under the charges.

2)  He is mentally capable of discharging the principal duties of a fireman.

3)  He is fit to attend a formal disciplinary inquiry.

2.14  On 4 December 2018, the board sent a second report to the Director. At the end of the report, the board expressed the same opinion as in the first one. In addition, the board made references to some treatment records of the claimant in 2012. The board also added that there is a chance of relapse of the claimant’s mental illness and he therefore warrants regular follow-up. However, it is difficult to comment on the scenarios that might trigger a relapse. They could be perceived as ‘those that are in incident grounds or those that involve conflicts with colleagues’.

2.15  On 4 February 2019, the Director requested the medical board to provide further clarification of its opinion on, among other things, the risk of relapse, the risk that such relapse may affect the claimant’s discharge of his duties and the safety of the claimant and others.

2.16  On 15 March 2019, the medical board sent its supplementary report to the Director. It stated that it is difficult to estimate the risk of relapse because his mental condition could be affected by many factors. Further, it could not comment on the impact of any relapse on the claimant’s work performance or safety of others during fire-fighting and rescue operations.

2.17  Then, on 25 March 2019, the Director invited the claimant to make representations on whether the second disciplinary proceedings based on the same ten charges should be resumed. On 9 April 2019, the claimant opposed such resumption.

2.18  By letter dated 31 October 2019, the respondent stated that the FSD would go ahead with the second disciplinary proceedings.

2.19  While the judicial review proceedings were in progress, i.e. from September 2015 to March 2018, the claimant, commenced two actions against the respondent:

1)  In July 2016, he issued a writ under DCCJ 3425/2016. It was indorsed with a statement of claim settled by counsel under the Bar Free Legal Services Scheme. In essence, his causes of action were disability discrimination, breach of employment contract and negligence. In October 2017, the action was transferred to the equal opportunities list and re-designated as DCEO 11/2017.

2)  In November 2017, he took out a claim in the Labour Tribunal under LBTC 3634/2017, claiming damages for breach of employment contract. The following month, by agreement, the case was transferred to the District Court and became DCCJ 5720/2017. By order dated 28 February 2018, the second action was also transferred to the equal opportunities list and re-designated as DCEO 5/2018 and was consolidated with the first action.

2.20  The consolidated action came before the Judge on 14 June 2018. She directed that consolidated notice of claim and consolidated notice of response be filed. The pleadings had since been filed.

2.21  The respondent then applied to stay the consolidated action.”

6.  By its judgment hand down on 20 January 2021, the Court of Appeal set aside the order granting the stay.

7.  In mid-July 2021, the claimant sought the respondent’s consent to the proposed amendment, which the respondent refused and thus this application.

The proposed amendments

8.  The proposed amendments can be conveniently divided into 2 groups.

9.  The 1^st group of amendments consists of the proposed §§25A, 25B, 26(6), 28(7), 32(9) 34(5), 36(6) and 40(19). They seek to introduce the allegations that, among other things, (a) the queries by the Director of Fire Services (“the Director”) made to the Medical Board, (b) the indication by the Fire Service Department to resume the disciplinary proceedings against the claimant, and (c) the making of the application by the respondent before HHJ Winnie Tsui to stay the Consolidated Action (“the Stay Application”) were continued oppression and harassment of the claimant, breaches of the employment contract and breaches of the Director’s duty of care owed to the claimant.

10.  The 2^nd group consists of a new §40B and a sentence to be added to §41. They in gist plead that the Director and other “superiors”, “employees and/or agents” conspired together to “get rid of the Claimant as soon as possible” and that all the matters complained of in §§4 to 26 of the CNC were alleged to be part of the conspiracy.

11.  At the hearing after a round of preliminary discussion and recognizing that the particulars required to be pleaded in support of a conspiracy claim were lacking, the claimant withdrew his application for leave to amend in respect of the 2^nd group. Mr Chu indicated that the claimant would in due course renew an application to amend to add the conspiracy allegations with the required particulars.

12.  The claimant also withdrew the amendments in respect of §§32(9) and 34(5) relating to the allegation that there was an express term in the employment contract that was breached, as in the proposed amendments there was no averment as to what that particular express term was and where it could be found.

13.  What remained at issue therefore was the 1^st group except §§32(9) and 34(5) (“the Amendments in Dispute”).

Legal principles

14.  The relevant principles guiding whether to allow an amendment of pleadings are trite and not disputed here between the parties. Of relevance is the most basic tenet that amendments should be made as are necessary to enable the real question in controversy between the parties to be decided; and that, on the other hand, leave should be refused where it can be demonstrated that the new claim based on the proposed amendment is bound to fail or that it discloses no reasonable cause of action.

Discussion

15.  As set out in §§2.2 to 2.8 of the summary of Cheung JA and as pleaded in §§9 to 25 and 28 of the CNC, the commencement of the disciplinary proceedings, certain manner as to how they were proceeded with and various actions taken by the Director along the way were already an integral part, if not the main part, of the claimant’s present claim of discrimination and harassment. The Amendments in Dispute only seek to introduce the later and more recent development of the disciplinary proceedings, which by the proposed amendment was alleged to be a continuation of the discrimination and harassment. In my view, it would be anomalous and unjust if the claimant is allowed to bring into the Consolidation Action for adjudication only the earlier part of what happened in respect of and relating to the disciplinary proceedings and not the later and remaining part. The Amendments in Dispute would enable the claimant to fully ventilate his claim in respect of the disciplinary proceedings and therefore enable the real question in controversy between the parties to be decided.

16.  The only ground of opposition against the Amendments in Dispute was that they disclosed no reasonable cause of action or were bound to fail.

17.  Ms Seto, arguing the respondent’s position the best she could, referred to (a) section 6 of the Disability Discrimination Ordinance (“DDO”) which set out what amount to discrimination, (b) the opinion of the Medical Board as pleaded in the proposed §§25A(3) that the claimant was fit to attend a formal disciplinary proceedings, and (c) the latest supplementary report of the Medical Board dated 15 March 2019 that the claimant was found to be “in remission of his mental illness, namely adjustment disorder with depressive reaction”, and submitted that there was no discrimination, directly or indirectly, as the Director decided to resume the disciplinary proceedings and to make the Stay Application based on such medical opinion and the Director was not treating the claimant less favourably than he treated or would treat a person without a disability.

18.  Based on the same materials and submission, Ms Seto also contend that there was no reasonable cause of action regarding the breach of implied term claim and the negligence claim and that they were thus bound to fail.

19.  Though the ground was labeled as “no reasonable cause of action”, the respondent by that submission in fact was asking this court to summarily without trial decide the matter in favour of the respondent and against the claimant.

20.  As discussed with counsel in the course of submission, the question of whether the Director has discriminated or harassed the claimant within the meaning of the DDO by commencing the disciplinary proceedings, resuming them, and by taking the many actions along the way will be some of the main issues, if not the central one, to be adjudicated at trial.

21.  It is clear in my view that the question in this case of whether there was discrimination and/or harassment is far from straight forward, is fact sensitive and much more nuanced. The question clearly could not be decided by the simple analysis now presented by Ms Seto based only on the consideration of the very limited materials selected by the respondent.

22.  Equally clear to me is that whether there was an alleged breach of the alleged implied term and whether there was negligence are also very fact sensitive questions that should be left to be adjudicated at trial rather than summarily adjudicated.

23.  Cheung JA’s overview of the main issues in the Consolidated Action[2], particularly pertaining to the disciplinary proceedings, put the above point in perspective, which I again gratefully quote:-

“6.7 Apart from the progress of the case, what was equally important is the nature of the consolidated action and the second disciplinary proceedings. The former comprises of, among other things, the issue of disability discrimination. The claimant claimed that he suffered from mental illness which affected his outward behaviour. He described that as ‘disturbed’ or ‘distorted’ behaviour. He claimed in his Notice of Claim that his disabilities and distorted behaviour gave the appearance of him being disobedient, undisciplined, being impolite and arrogant towards his superiors, emotionally out of control, lack of objectivity and lack of sound judgment. The claimant said that the bringing of the ten disciplinary charges amounts to a discriminatory act on the part of the Director :

‘9. In March 2015, the Claimant was warned of and eventually charged with 10 disciplinary offences which related entirely to his distorted behaviour, such as trivial matters of handling his own uniform, failure to attend training at times when he did not feel fit and well, personal clashes with his superiors, use of foul language and/or his excessive writing to other government departments to ventilate his grievances and complaints about his superiors.

10. The Director discriminated against the Claimant in view that the charges were laid because of his personal clashes between the Claimant and his superiors, and not in view of his disobedience of established disciplines.’

6.8 In respect of the breach of employment contract and negligence claim the claimant claimed that the Director owed him a duty of care not to do anything which would or would tend to worsen, aggravate or trigger his psychiatric illness or provoke his disturbed behaviour further and that the Director was in breach of such duty.

6.9 The Director denied that there was any discrimination against the claimant. He denied that the FSD knew of the mental illness of the claimant. The ten charges were laid in connection with the claimant’s disobedience and undisciplined acts on the ten occasions.

6.10 One can see immediately that the ambit of the consolidated action is far wider than the second disciplinary proceedings and the issues are far more nuanced...”

24.  In the premises, I was of the clear view that it had not been demonstrated to me by the respondent that the claims to be brought by the Amendments in Dispute were bound to fail or did not disclose a reasonable cause of action.

25.  By reasons expressed above, I gave leave for the Amendments in Dispute, with consequential leave to the respondent to file and serve an Amended Notice of Response within 28 days.

Costs and way forward

26.  Having announced my decision at the close of the hearing, I then heard counsel on the question of costs. There is no dispute that the claimant should pay the respondent the costs of and incidental to this application for amendment. Each party was partly successful in the contest – the claimant won on the Amendments in Dispute while the claimant withdrew in the last minute the other amendments and therefore should pay costs thereby thrown away. Ms Seto contended that nevertheless the respondent should pay at least part of the costs of this hearing. She said that regarding the Amendments in Dispute (and indeed regarding other allegations in the CNC), the claimant has not specified which section and/or sub-section of the DDO it was alleged that the respondent has breached, and therefore it was reasonable for the respondent to oppose. I noted that in the correspondence exchanged before the claimant took out this summons, the respondent simply refused to consent without making any query with the claimant as to which section of the DDO was alleged to have been thereby breached. In any case and in the circumstances, I did not find such criticism sufficient to justify why consent had not been reasonably given in respect of the Amendments in Dispute. In my discretion, I therefore ordered that the costs of and incidental to this application for amendment be to the respondent save that there be no order as to the costs of this hearing.

27.  These two actions were commenced respectively in July 2016 and November 2017 before they were transferred to the equal opportunities list and re-designated. Years have lapsed. After the order for stay was set aside in January 2021 the parties have not restored this Consolidated Action for a directions hearing. This matter need to move forward. For that purpose and at the close of the hearing, I have scheduled a directions hearing and have made directions framing a timetable for the claimant to apply for further amendments to his pleading (as he indicated) and for the respondent to take out such applications, if advised, before the coming hearing to seek further and better particulars and to make such application to properly ventilate its repeatedly verbose defence that many aspects of the claim are time-barred and should not be considered by the court.