TONG WAI YEE WINNIE v. SECRETARY FOR EDUCATION AND ANOTHER

CACV 18/2023, [2024] HKCA 881

On appeal from [2023] HKCFI 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2023

(ON APPEAL FROM HCAL NO. 1231 OF 2021)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

A. Introduction

1.  By his judgment given on 13 May 2022[1](“the Main Judgment”), Coleman J (“the Judge”) allowed the applicant’s application for judicial review, quashed the decision of the Education Bureau (“EDB”) not to offer the applicant a two-year contract to teach as a native-speaking English teacher (“NET”) at Fuk Wing Street Government Primary School (“the School”) in the academic years 2021/22 and 2022/23 (“Decision”), and awarded damages to the applicant to be assessed.

2.  By a subsequent judgment given on 3 January 2023[2] (“the Damages Judgment”), the Judge awarded to the applicant damages in the total sum of HK$695,238, comprising HK$692,108 as loss of earnings and HK$3,130 on account of the extra teacher registration fee.  The Judge did not allow the applicant’s claim for general damages on emotional distress in the amount of HK$3 million and future loss of earnings in the amount of HK$10,994,432.

3.  This is the applicant’s appeal against the Damages Judgment.

B.    Relevant facts

4.  The background and facts underlying the application for judicial review and the Judge’s findings have been set out in detail in the Main Judgment and the Damages Judgment.  In this judgment, we will only set out those facts that are directly relevant to the appeal.  They are largely taken from the two judgments of the Judge.

B1.  The NET Scheme  

5.  The judicial review in the court below arose out of the recruitment of a native-speaking English teacher in one of the government primary schools (“GPSs”) for the school years 2021/22 and 2022/23 under the NET Scheme run by the EDB.  

6.  Since 2002, the EDB has been running the NET Scheme which aims to improve the English proficiency of students in public sector primary schools.  Public sector schools include GPSs, which are operated by the EDB, and aided schools operated by sponsoring bodies which are non-government organisations.  The EDB maintains control or supervision over aided schools through, inter alia, the Education Ordinance, Cap. 279, and this extends to the hiring of teachers.

7.  Under the NET Scheme, NETs working in GPSs are under the employment of the Government as government employees whereas NETs working in aided schools are under the employment of the sponsoring bodies of the relevant schools.  

8.  At the material time in 2021, the NET Admin Team of the EDB would conduct an annual recruitment exercise to build up a pool of qualified candidates (“Candidate Pool”) for the selection and employment of NETs by public sector schools.  This was to ensure that candidates to be considered by the public sector schools met the eligibility criteria to teach as a NET.  The Candidate Pool contained the CVs of candidates who were in principle qualified to be further selected by the public sector schools.  The NET Admin Team would despatch these CVs to the public sector schools upon their request.

9.  Specifically, the NET Admin Team would supply to a requesting school a batch of 20 CVs randomly drawn from the Candidate Pool.  The school could make further request(s), and there was no limit to the number of requests that a school could make.  It would be for the school to arrange and conduct its own selection and interview process.  When a candidate had been selected, the school would inform the NET Admin Team who would then prepare a provisional offer of appointment after conducting qualification verification and salary assessment with the selected NET.

10.  NETs were employed on two-year contract.  From a policy perspective, there was no distinction between working in GPSs and in aided schools in terms of their role in the school and their remuneration package.  

11.  NETs employed strictly under the NET Scheme were termed “EDB NETs”.  Public sector schools could also employ NETs outside of the Scheme.  NETs thus employed were termed “school-based NETs”.  Compared to school-based NETs, EDB NETs would enjoy better remuneration packages while having to assume more school duties.

B2.  NET recruitment process in GPSs and aided schools in 2020/21

12.  At the material time in 2021, the appointment and re-appointment of NETs in aided schools were governed by the EDB Circular Memorandum No. 36/2021 dated 31 March 2021.  Among other matters, the memo stated that aided schools had the option of recruiting NETs directly on their own or entrusting the EDB to do so on their behalf.  The Judge had observed that there was confusion over whether this memo and the option of direct recruitment of NETs also applied to GPSs. 

13.  As to the NET recruitment procedures in GPSs, the only documentary evidence produced by the EDB is an internal memo dated 2 March 2021 with restricted access which was distributed to 12 GPSs with the contracts of their NETS expiring at the end of the 2020/21 school year.  The appendices to this memo gave the impression that GPSs had a discretion to decide on the renewal (or non-renewal) of the contract of NETs, and NETs could directly approach and bring themselves to the attention of GPSs and aided schools with NET vacancies.  It was also stated that the schools would conduct their own selection process and would be the actual decision-maker in the recruitment process.  The situation was further obscured by the fact that it was possible for GPSs to receive CVs of NET candidates from routes other than the NET Admin Team.  The CVs could, for example, come directly from prospective NETs or through referral from someone who was familiar with the needs of a recruiting school and happened to know a NET suitable for the post, such as a departing NET.  

14.  It is the uncertainty over whether GPSs were at liberty to receive CVs of candidates from sources other than the EDB that underscores the dispute in the proceedings below.

B3. The applicant’s recruitment process

15.  The applicant is a NET under the NET Scheme with over 15 years of teaching experience.  She had previously worked as a NET at the Tai Po Government Primary School (“TPGPS”) for 10 years until the end of the school year 2019/20 when her contract was not renewed. One of the colleagues whom the applicant had worked with during her teaching at TPGPS later became the principal of the School (“Principal Wong”).  

16.  After taking a year off, the applicant re-joined the Candidate Pool for the 2021/22 school year.  In mid-May 2021, the applicant sent her CV directly to some primary schools including the School.  Her understanding from enquiry made with the EDB NET Admin Team was that she could do so.  She subsequently attended two rounds of interview conducted by the School.  On 31 May and 2 June 2021, she was respectively informed by the School and the EDB that she had been selected by the School to be a NET for the academic years 2021/22 and 2022/23.  She informed them that she would take up the position and also furnished the necessary documents to the EDB to process the offer.

17.  On 20 July 2021, however, the applicant was informed by the EDB that she would not be given a provisional offer.  This decision of the EDB is the subject matter of the applicant’s judicial review application. 

B4.  Events leading to the Decision

18.  The EDB and the School gave different accounts for the Decision.   

19.  In the case of the EDB, there were two reasons for the decision not to make a provisional offer of appointment to the applicant.  The first reason is that the School had made a “procedural error” in failing to comply with an internal policy of the EDB whereby GPSs should only accept CVs of NET candidates from the EDB, and not from referrals or directly from the candidates (“the Policy”).  In this regard, the Judge found there was no document that actually set out the Policy and it was also not explained how the Policy was communicated to anyone.  

20.  Secondly, the EDB suspected there were improprieties on the part of the School, including deliberately breaching the Policy and attempting to cover up the breach.  The EDB suspected the School had selected the applicant before reaching out to the NET Admin Team on 31 May 2021 to request for a third batch of CVs that should include the applicant’s CV.  The EDB said that the School’s request for the third batch of CVs was a false pretence to circumvent the Policy.

21.  The School’s position on the events leading to the Decision was given in Principal Wong’s affirmation[3].  Principal Wong’s evidence shows that the School was not aware of the existence of the Policy and had never received any memo or instruction from the EDB requiring GPSs to comply with such a policy.  She said the applicant’s recruitment procedure was transparent and the EDB was well aware that it had selected the applicant before it made the request on 31 May 2021 for the third batch of CVs.

22.  Principal Wong mentioned a telephone call in early May 2021 from a Mr Lo of the Government Schools Section (“GSS”) of the EDB, during which she was told to be alert to two NETs who required careful handling.  One of them was the applicant.  Mr. Lo, who was an Assistant Education Officer (Administration), did not dispute he had made the call, but denied having badmouthed any prospective candidate.  His evidence is that he was asked by his senior, Ms Ho, an Education Officer (GS), to contact the principals of four GPSs needing to recruit a replacement NET.  Principal Wong was one of the four principals.

23.  This telephone call from Mr Lo took place before the School conducted interviews for the NET position.  Eight candidates whose CVs were received by the School from different sources[4] were shortlisted for interview.  Principal Wong explained that the candidates were screened by the English Panel of the School without distinction or favour as to the source of their CVs.  After two rounds of interview, the applicant was selected.  Principal Wong had abstained from the final decision-making process since the applicant was her colleague at TPGPS.

24.  In light of his call in early May 2021, Principal Wong telephoned Mr Lo on 31 May 2021 to inform him that the applicant had been selected for the NET position.  Upon her enquiry, Mr Lo confirmed that the applicant was the same person he previously told her to handle carefully.  The matter was then brought to the attention of Ms Ho. Principal Wong had a telephone conversation with Ms Ho in which she explained the interview procedure of the School.  Ms Ho indicated she considered that the recruitment process was transparent and a contract could be offered to the applicant.    

25.  Principal Wong also mentioned a telephone conversation on 31 May 2021 between the School’s English Panel Co-ordinator and Ms W Chan of the NET Admin Team, during which it was made known that the applicant’s CV was not contained in the earlier batches of CVs sent by the NET Admin Team to the School.  Ms Chan then asked the School to request a third batch of CVs and she would include the applicant’s CV in the batch of CVs to be sent over.  The School accordingly made a request for CVs on 31 May 2021.  The evidence filed by the EDB on this part differs from Principal Wong’s account.  What is, however, not in dispute is that the applicant’s CV was indeed included in the third batch of CVs provided to the School on 1 June 2021. 

26.  On the same day (i.e. 1 June 2021), the School informed the NET Admin Team by fax that it intended to offer the NET post to the applicant.  This prompted the suspicion of a senior officer in the EDB that the School had circumvented the Policy.  An investigation by the EDB into the applicant’s recruitment process ensued, culminating in a specially convened meeting on 19 July 2021 attended by staff of, among others, the NET Admin Team and GSS.  It was decided at the meeting that no contract would be offered to the applicant.  

27.  On 20 July 2021, the EDB informed the applicant of the Decision.  The School and Principal were tasked with giving a substantive reply to the applicant.  Between late June 2021 and early April 2022, the EDB requested the School to submit a written report on its NET recruitment procedure and sought clarifications from the School over the recruitment process.  The report was completed on 2 July 2021, after several exchanges of draft between Principal Wong and her supervisor from the Sham Shui Po School Development Section.  

28.  By an email dated 29 July 2021, Principal Wong explained to the applicant that the School had misread the EDB Circular Memorandum No. 36/2021 and, after clarification with the EDB, had come to know that GPSs were not allowed to recruit NETs directly. This was followed by two other emails from Principal Wong.  The Judge found these emails, which were drafted with significant vetting and input from the EDB, exhibit a marked departure from the stance originally taken by the School in its communications with the EDB and in its 2 July 2021 report to the EDB. The Judge further found the reason for the Decision given in these emails does not match the reasons given for the Decision in the evidence filed by the respondents, as summarised in [19] and [20] above.

C.  The judicial review application

29.  By a Form 86 filed on 1 September 2021 together with a supporting affirmation, the applicant applied for leave to judicially review the Decision.  The grounds of review were summarised by the Judge at [123] of the Main Judgment.  In gist, the applicant claimed that the Decision was made in breach of various principles of public law.  She contended that the Policy was basically non-existent, or alternatively, was overly rigid or overly rigidly applied, that the conduct of the EDB amounted to bad faith, and the EDB had pre-determined that she would not be offered the NET post. 

30.  The applicant sought the following relief:

(1)  An order of certiorari to quash the Decision;

(2)  Damages for

(a)  loss of at least a two-year service contract under the EDB NET Scheme – Remuneration package;

(b)  emotional distress arising from: (i) the transfer of her personal data to the EDB personnel to incite communication of defamatory expression and to interfere with the NET recruitment process; (ii) the EDB deliberately making it difficult for her to get through the process, and making her wait for the issue of the provisional offer of appointment; (iii) her emotional and psychological stress after the Decision was communicated to her in having to ascertain why the decision-maker would have acted so unreasonably; and (iv) her feeling of humiliation, low self-esteem, loss of confidence and lack of motivation; and                                

(c)  all court fees;

(3)  Interim relief; and

(4)  A prohibition order.

31.  Leave to apply for judicial review was granted by the Judge on 8 February 2022. 

D.   The Main Judgment

32.  The issues for determination in the judicial review application included (1) the reviewability of the Decision; (2) whether the Policy did exist; (3) whether the Policy was overly rigid or was overly rigidly applied; (4) whether the Decision was irrational; (5) whether the EDB acted in bad faith; (6) whether the applicant has any legitimate expectation; (7) whether there was delay in giving the reasons for the Decision; and (8) whether there was interference with the applicant’s data privacy right.  

33.  On issues (1) to (3), the Judge held that the Decision was reviewable and amenable to judicial review, and the EDB’s actions amounted to a breach of their public law duties.  The Judge did not find it necessary to make any determination on whether the Policy existed in light of his other findings, though he considered it was strongly arguable that the Policy described in the proceedings did not exist.  The Judge held that even if the Policy had existed, it was not clearly communicated to those supposedly bound by and effecting it.  Further, and importantly, it was applied over rigidly in the applicant’s case.  Among other things, the Judge had regard to the fact the applicant was an eligible candidate selected by the School following an open and transparent process, but was deprived of the employment for which she had been fairly selected.  

34.  On issue (4), the Judge held that the Decision was irrational in that the EDB did not properly investigate the various suspicions it had against the School and the reasons it gave for the Decision did not match the reasons subsequently identified in the evidence filed by the respondents. 

35.  On issue (5), the Judge had regard to the evidence pertaining to the telephone call made by Mr Lo to Principal Wong in early May 2021, and observed, in obiter, that the call was unlikely the usual practice and would likely be understood as a discouragement from employing the applicant[5]. The Judge, however, did not reach a final determination on whether the conduct of the EDB amounted to bad faith as it was not necessary given his other conclusions and also in light of the absence of live evidence on the point.  At [205] of the Main Judgment, the Judge stated:

“Overall, on the evidence as a whole and its inherent likelihoods (and still bearing in mind bad faith is also a serious allegation), I think there is a strong possibility that Principal Wong had been called in early May to be warned to be alert to the Applicant and Michael. However, in light of my other conclusions, and without any live evidence on the point, I do not think it necessary for me to reach a final determination on this point.”

36.  On issue (6), the Judge considered the legitimate expectation ground would add little to the main complaint, and made no finding on it.   Similarly for issue (7), the Judge was of the view that the delay ground did not add anything to his analysis on the main complaint.  He pointed out that while considerable time was taken by the EDB, ultimately a reason and a decision were given to the applicant[6].

37.  Finally, on issue (8) which concerns the complaint about breach of privacy rights and which is relevant to the present appeal, the Judge considered that it did not add much to the main complaint because the applicant’s personal data was only passed on within the departments of the EDB.  He held at [210] of the Main Judgment:

“As to the complaint about an interference with her data privacy rights, the Applicant says that it was inappropriate and in breach of the data privacy rules that her personal information was provided from one part of the EDB to another (for example, to enable the GSS to make the telephone call warning school principals about her). I do not think there is much in this complaint, not least where the passage of information was within the one department/bureau of the EDB, albeit that the EDB has several sections with separate and sometimes overlapping roles”.

38.  The Judge accordingly held that the judicial review application was made out. 

39.  On relief, the Judge considered that the Decision ought to be quashed and granted an order of certiorari, notwithstanding that with the passage of time it was no longer possible for the applicant to be appointed as a NET at the School for the 2021/22 school year.  The Judge also held that the applicant was entitled to damages and ordered the assessment to be conducted on paper.  

E.  The applicant’s case on damages  

40.  The applicant claims a total sum of HK$16,042,714 by way of damages and interest, which comprises the following:

(1)  General damages in the sum of HK$3,000,000 for the hurt and distress suffered by her, relying on the case of Chu Siu Kuk Yuen Jessie v Apple Daily [2002] 1 HKLRD 1.

(2)  Loss of earnings in the sum of HK$1,945,942, based on the loss of a two-year contract under the EDB NET Scheme – Remuneration Package.  This was calculated by taking her gross income for two years, and deducting from it her income as a school-based NET from October 2021 to July 2022 (i.e. HK$2,229,394 - HK$283,452 = HK$1,945,942).

(3)  Future loss of earnings in the sum of HK$10,994,432, relying on the case of K, Y and W v Secretary for Justice [2000] 3 HKLRD 777 (unreported) DCEO 3, 4 & 7/1999, 27 September 2000.  The amount was based on her annual salary multiplied by a multiplier of 14.34 (i.e. HK$63,891 x 12 x 14.34 = HK$10,994,432).

F.  The Damages Judgment

41.  The Judge awarded to the applicant HK$695,238 as damages for breach of contract, which comprised HK$692,108 as loss of earnings and HK$3,130 on account of the extra teacher registration fee damages.  The Judge rejected the claims for general damages for emotional distress and future loss of earnings. 

42.  The Judge accepted that the Court’s discretion to award damages should only be exercised where a private law cause of action is made out against the public body.  He considered that in light of his findings in the Main Judgment (as summarised in [21] of the Damages Judgment), it was obvious that the Decision had caused, at the minimum, an immediate, direct adverse financial consequence to the applicant. 

43.  The Judge held that a claim for damages for breach of contract could be inferred from the Form 86, which had included a claim for damages, and the applicant’s submissions.  He held that although the negotiation process between the applicant and the EDB did not give rise to an enforceable contract, there was a collateral contract between them that the applicant’s application for the NET position would be considered alongside other CVs submitted via the NET Admin Team.  He found the EDB had acted in breach of the collateral contract, which entitled the applicant to be compensated for her loss of earnings in the two school years of 2021/22 and 2022/23.  

44.  In quantifying the amount of loss of earnings, the Judge took the gross yearly income from a two-year contract under the EDB NET Scheme – Remuneration Package together with the various fringe benefits and contract gratuity which came with the contract to be the applicant’s deprived gross income.  From this, the Judge deducted her MPF contributions, the income she had received (as mitigated loss) from alternative employments, and income tax liability to arrive at her net loss of earnings after income[7]:

	HK$
Income from the two-year contract as a NET for 2021/22 and 2022/23 school year ($1,114,697 x 2 years)	2,229,394
Less
(i)  MPF contribution ($18,000 x 2 years)	(36,000)
(ii)  Income received from employment as a school-based NET from October 2021 to July 2022 ($22,452 for October 2021 + $29,000 x 9 months from November 2021 to July 2022)	(282,452[8])
(iii) Income derived from employment as an EDB NET in an aided school for the school year 2022/2023, hence there was no loss in that year	(1,096,697)
Net loss of earnings	814,245[9]
Less:   15% tax on income	(122,137)
Net loss of earnings after tax	692,108[10]

45.  The Judge also included in the damages for breach of contract the fee of HK$3,130 paid by the applicant to the HKCAAVQ[11] for teacher registration. 

46.  The Judge declined to grant general damages for hurt and distress for the reasons that (a) insofar as the applicant claimed that the telephone calls made by Mr Lo to the GPS principals amounted to defamation and that the Decision was motivated by bad faith, there was no finding of defamation or bad faith in the Main Judgment that could give rise to a cause of action for damages on these bases; (b) there was no evidence, medical or otherwise, to prove the causation of the applicant’s mental distress; and (c) the fact that the applicant had personal reasons not to consult a psychologist or psychiatrist could not justify the lack of supporting medical evidence.

47.  The Judge also considered that the claim for future loss of earnings was not made out, holding that (a) the case of K, Y and W v Secretary for Justice relied upon by the applicant to justify her claim of HK$10,994,432 was distinguishable on the facts; (b) it was not the applicant’s pleaded case that the Decision was made because of her inherent disability within the statutory definition in the Disability Discrimination Ordinance Cap. 487 or otherwise; (c) there was insufficient connection between his findings in the Main Judgment and any future loss of earnings; (d) it was unfair and inappropriate to assume any future wrongdoings given that there could be numerous reasons for the non-renewal or termination of an employee’s contract; and (e) it was open to an employer to terminate an employment contract on the terms of the contract and according to the relevant laws, though the context might be different in the present case.

48.  In all, the Judge awarded to the applicant damages in the total sum of HK$695,238 together with interest at judgment rate from 1 March 2022 until payment.  Due to an error in quantifying the loss of earnings, the Judge had overstated the award of damages by HK$850[12].  Since the respondents have not filed a respondent’s notice to challenge the Damages Judgment, we need not be concerned with the error.

G. This appeal

49.  The applicant appeals the Damages Judgment to this Court. In her Amended Grounds of Appeal filed on 12 June 2023 (“AGOA”)[13], the applicant raises the following grounds of appeal (respectively “Ground 1” to “Ground 5”):

(1)  The amount of loss of earnings awarded was inadequate. The Judge should have awarded the full amount of the deprived two-year employment contract, less the income tax. The Judge had failed to take into account[14]:

(a)  the EDB got away with not allowing her to work at the School despite the NET position was vacant at the time of the Main Judgment, and she had to go through another job-hunting process instead of simply being issued with a two-year contract with the School from 2022 to 2024;

(b)  the refusal of the relief of prohibition order sought in the Form 86 would increase the likelihood of the EDB officers “re-offending”, which has an impact on her potential loss of future earnings; and

(c)  the statement in [214] of the Main Judgment that “Secondly, it is also important to make it clear as to the lawful way to deal with the Applicant in her applications for employment in the coming academic year 2022/23, and thereafter.”

(2)  The Judge erred in refusing to award general damages and loss of future earnings in that he failed to take into account the respondents’ motives and conduct which “aggravated the damage” to her, namely[15]:

(a)  the transfer and use of her personal data for a “new and bad purpose” as the telephone calls made in early May 2021 to discourage the four GPS principals from employing her had affected her professional reputation and future prospects;

(b)  she had been treated “shabbily” by the EDB;

(c)  the media report of her case subsequent to the Main Judgment had increased her anxiety and adversely affected her future prospects;

(d)  the adverse impact of the stigma of challenging the unlawful behaviour of senior figures of the EDB;

(e)  she would never be able to work for another government school in view of the EDB’s newly documented policy on NET recruitment which required the selection of NETs for government schools to be conducted through a central recruitment board of the EDB; and

(f)  the briefing held by the EDB on 12 August 2022 on the new policy had damaged her reputation and diminished her future prospects in GPSs.

(3)  The Judge failed to have proper regard to the Personal Data (Privacy) Ordinance Cap. 486 (“PDPO”) and the Defamation Ordinance Cap. 21 when dismissing her data privacy claim[16].

(4)  An award of punitive damages as claimed in Form 86 should have been made in light of the oppressive conduct of the EDB and the way she was treated by the EDB[17].

(5)  This is not a simple case of breach of contract but a case of public concern.  There is a clear lack of accountability on the part of the EDB officers as it was the second time they stopped her from being employed by a GPS despite her consistently good teaching performance.  Allowing a public authority to act in this manner will undermine the effectiveness and functionality of the judicial system[18].

50.  In summary, the applicant takes the view that “everything that may worsen” her loss or injury is relevant to the claim for damages and the assessment[19].  In essence, her case is that (a) the award for damages for loss of earnings is insufficient; (b) damages for future loss of earnings, general or aggravated damages for emotional distress should have been awarded on the ground of “bad faith” or bad behaviour[20], breach of her data privacy rights and defamation; and (c) exemplary or punitive damages should have been awarded to punish and deter similar conduct in the future. 

H.  Our reasons for judgment 

H1.  Relevant legal principles  

51.  Before considering the grounds of appeal, we would first set out some relevant legal principles.

52.  The Judge’s finding on breach of collateral contract and the assessment of damages are findings of fact.  The principles governing an appeal against a trial judge’s findings of fact are well-established: Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd (unreported) CACV 11/2015, 27 November 2015 at [11] to [24]; and ZJW v SY (unreported) CACV 10/2017, 1 December 2017 at [28] to [34].  In gist, the appellate court will only intervene when it is satisfied that the findings are “plainly wrong”.  Under the “plainly wrong” test, the court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a) which there was no evidence to support; (b) which was based on a misunderstanding of the evidence, or (c) which no reasonable judge could have reached. The threshold faced by an appellant is high.   

53.  In an appeal against assessment of damages, the appellate court will only interfere if the trial judge was in serious error or acted upon a wrong principle of law, or that the amount awarded was, in light of all the facts and circumstances of the case, outside the generous range of general damages open to the trial judge: Tong Siu Wai v Poon Wing Fu [2012] 5 HKLRD 407 at [14] and [15].

54.  As this is an appeal against the Judge’s award of damages, it is also important to have regard to some of the basic principles on damages[21]. First, the object of compensatory damages, which is the most common type of damages, is to put the claimant in the position as if the wrong had not occurred.  As a general rule, the court will require the defendant to give the claimant compensation for loss or injury suffered within the scope of the defendant’s duty.  Second, in practice damages may not provide a precise indemnity for the loss arising from a breach of contract due to a variety of limitations which reduce the measure of damages awarded by the court, such as where the loss is not within the scope of the protection of the particular contract or tort, the foreseeability or remoteness of the loss, the duty to mitigate and so on.  Third, it must be recognised that unless the loss suffered is a loss of money or something whose only value is monetary, compensation in money terms can never perfectly restore the loss or cure the injury.  Fourth, the claimant has the burden of proving both the fact and the amount of damage.  If neither is proved, the claim for damages will fail.  If only the fact of damage is proved but not its amount, this generally only leads to an award of nominal damages. 

55.  With these principles in mind, we turn to consider the grounds of appeal raised by the applicant.

H2.  Ground 1 - Loss of earnings award

56.  Ground 1 is a challenge to the amount of loss of earnings assessed by the Judge.  It is said that the amount assessed by the Judge (HK$692,108) is inadequate to compensate the applicant for the way the EDB had treated her.   

57.  Under Ground 1(a), the applicant argues that even after the Main Judgment, the EDB did not give her a two-year contract to work at the School even though the NET position remained vacant. As a result, she had to go through the entire job-hunting process and ultimately was employed as a school-based NET from October 2021 to July 2022 and thereafter as an EDB NET in an aided-school for the school years of 2022/23 and 2023/24.  On this basis, she should be compensated for the full amount of a two-year contract as an EDB NET.

58.  In our view, these arguments are misplaced. In the first place, the award of loss of earnings is a head of compensatory damages.  It is to compensate the actual pecuniary loss occasioned to the applicant.  At the hearing of the appeal, the applicant accepted that because she had found employment as an EDB NET for the 2022/23 and 2023/24 school years, she did not suffer any monetary loss of earnings for that period. In the absence of proof of actual pecuniary loss, there is simply no proper legal basis for awarding to her the income under a two-year contract as an EDB NET.  For this reason alone, this ground must be rejected.

59.  Second, in arguing that the amount awarded to her was inadequate, the applicant is effectively seeking to rely on matters that have occurred since the Main Judgment.  They include the fact that she had to go through the job-hunting process again for an EDB NET position and her correspondences with the EDB subsequent to the Main Judgment. At [5] of the Damages Judgment, the Judge pointed out these matters have no bearing on the assessment of damages:

“Before going into the detail, I would point out the following. In her various submissions – and in other correspondence sent to the Court – the applicant has continued to complain of the way in which she feels she has been dealt with by the EDB, in particular since my Judgment and in the context of her seeking employment for the academic year 2022/23 and so her prospects for subsequent years. I do not think the applicant’s suggestions that the EDB has disregarded my Judgment and its messages are helpful in deciding the current question of damages, and, as I do not think it either fair or appropriate to do so, I have not taken those matters into account except as I make clear.”

60.  We agree with the Judge that post-judgment events are not relevant and cannot be taken into account when assessing the damages to be awarded.  The Judge was duty-bound to act in accordance with the legal principles applicable to assessment of damages, and as he correctly pointed out[22], should not tailor a claim to achieve what might be perceived to be a fair result. Further, our task in this appeal is not so much to assess the adequacy of the damages awarded by the Judge but to consider whether the Judge had in any way acted upon a wrong principle of law.  

61.  In the present case, the Judge awarded damages on the basis that the EDB had breached a collateral contract.  The basic rule for an award of damages for breach of contract is to place the applicant, as far as a monetary award can do it, in the same position as if the contract had been performed in accordance with its terms: Richly Bright International Ltd v De Monsa Investments Ltd (2015) 18 HKCFAR 232 at [15]; and McGregor on Damages at [2-001] and [8-167].

62.  The Judge took the gross yearly income under the EDB NET Scheme – Remuneration Package together with various fringe benefits and contract gratuity as the gross deprived income. He then arrived at the net after tax loss of earnings by deducting the amount of MPF contributions required to be made by the applicant, the applicant’s income as a school-based NET (from October 2021 to July 2022) and an EDB NET (in the school year 2022/23), and the income tax liability.  The Judge’s approach and calculation are consonant with the law for assessing damages for breach of contract, namely to compensate the applicant as if a two-year contract as an EDB NET for the school years of 2021/22 and 2022/23 had been awarded to her. 

63.  The Judge had also correctly deducted the mitigated loss of the applicant from her gross yearly income as an EDB NET.  The amount of mitigated loss was based on the facts and figures provided by the applicant.  It is well established that a claimant must take all reasonable steps to mitigate his loss consequent upon the defendant’s wrong.  As the applicant had taken steps to mitigate her loss by securing alternative employments, she cannot generally recover the avoided loss: McGregor on Damages at [9-004] and [9-006].  The rationale of mitigation is as explained in McGregor on Damages at [9-014]:

“The extent of the damage resulting from a wrongful act, whether tort or breach of contract, can often be considerably lessened by well-advised action on the part of the person wronged. In such circumstances the law requires them to take all reasonable steps to mitigate the loss consequent on the defendant’s wrong, and refuses to allow them damages in respect of any part of the loss which is due to their neglect to take such steps. Even persons against whom wrongs have been committed are not entitled to sit back and suffer loss which could be avoided by reasonable efforts or to continue an activity unreasonably so as to increase the loss. This well-established rule finds it most authoritative expression in the speech of Viscount Haldane LC in the leading case of British Westinghouse Co v Underground Ry [1912] A.C. 673 at 689, where he said:

‘The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this principle is qualified by a second, which imposes on a claimant the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.’”

64.  We do not accept the applicant’s argument that she was “forced to mitigate her losses twice”.  It would appear that the applicant mistakably thinks that she is entitled to allow her losses to accrue consequent upon the EDB’s breach of contract.  It is pertinent to understand that when the court refers to the claimant having “a duty to mitigate”, this does not mean that the claimant owes an actionable duty to minimise her damage. A duty to mitigate is simply a common and convenient way of stating the rule.  The true meaning is that the claimant is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend to make good the loss. This was explained by Pearson LJ in Darbishire v Warran [1963] 1 WLR 1067 (cited in McGregor on Damages at [9-018]):

“It is important to appreciate the true nature of the so-called ‘duty to mitigate the loss’ or ‘duty to minimise the damage’. The claimant is not under any contractual obligation to adopt the cheaper method: if he wishes to adopt the more expensive method, he is at liberty to do so and by doing so he commits no wrong against the defendant or anyone else. The true meaning is that the claimant is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. In short, he is fully entitled to be extravagant as he pleases but not at the expense of the defendant.”

65.  We would further point out that once the trial judge had decided that steps were taken by the claimant to mitigate the loss, it is rarely appropriate for the appellate court to interfere with the judge’s conclusions based on the evidence before him.  This is because the question of what is reasonable for a person to do in mitigation of damages is a question of fact, which has to be considered in the circumstances of each particular case: Payzu v Saunders [1919] 2 KB 581; The Solholt [1983] 1 Lloyd’s Rep 605; Standard Chartered Bank v Pakistan National Shipping Corp [2001] 1 All ER 822 at [47]; and McGregor on Damages at [9-016].

66.  The applicant has acknowledged that the amount of loss of earnings assessed by the Judge is the compensation for the obvious direct adverse financial loss suffered by her[23].  She has also conceded that she suffered no monetary loss of earnings in the school years 2022/23 and 2023/24 because of her employment as an EDB NET.  It is also her case before the Judge that her alternative employment as a school-based NET in October 2021 to July 2022 was in mitigation of her loss of earnings[24]. The Judge had properly adverted to all these facts and evidence and correctly approached the issue of mitigation. 

67.  In short, there is no basis for this Court to interfere with his findings and assessment of the applicant’s loss of earnings. Ground 1(a) is not made out.

68.  Under Ground 1(b), the applicant argues that as the Judge did not grant any prohibition order, the EDB officers would “re-offend” and target her again, with the result that her future employment prospects as a NET will be adversely affected. 

69.  This is evidently an argument on loss of future earnings and has no relevance to the award of actual loss of earnings.  In any event, this ground is not arguable.  First, the Judge’s determination on whether to grant an order of prohibition as sought in the Form 86 forms part of the Main Judgment, from which there is no appeal.  Any complaint against the refusal of a prohibition order is not an issue in this appeal, which is against the Damages Judgment.

70.  Second, as explained by the Judge at [5] of the Damages Judgment and as noted above, the conduct of the EDB officers subsequent to the Main Judgment has no bearing on the quantum of damages.  For the same reason, the prospect of the EDB targeting her or behaving unreasonably, no matter how likely or unlikely, is not relevant to the Judge’s assessment of her loss of earnings.    

71.  Third, as noted above, the argument under Ground 1(b) is an argument that goes to future loss of earnings.  In this regard, the Judge had considered and rejected the claim for future loss of earnings for the reasons he gave at [55] to [59] of the Damages Judgment. Specifically, the Judge held (at [58]) that there was no sufficient link between his findings in the Main Judgment and any loss of future earnings, as there are numerous reasons affecting an employer’s decision not to renew or to terminate a particular employment contract.  We do not see any basis to interfere with this conclusion of the Judge.   

72.  As to Ground 1(c), the applicant argues that the compensatory damages award does not address the Judge’s concern stated in [214] of the Main Judgment, namely “it is also important to make it clear as to the lawful way to deal with the Applicant in her applications for employment in the coming academic year 2022/23, and thereafter.”  We do not consider there is merit in the argument.

73.  First, the statement relied on by the applicant cannot be read in isolation, divorced from the context in which it was made.  In [213] and [214] of the Main Judgment, the Judge discussed whether an order of certiorari should be made.  The statement relied upon by the applicant was one of the reasons he gave for concluding that the relief should be granted:

“213. Ms Chan [counsel for the respondent] submits that the quashing of the Decision would not, of course, result in issuance of a provisional offer to the Applicant. Rather, the quashing of the Decision would simply trigger a renewed discretionary exercise on the part of the EDB, where Mr. Lam has identified that the likely outcome would remain the same. Therefore, she says an order of certiorari is inapt or pointless.

214.     But, first, that submission ignores the effect of the passage of time since the Decision. Whilst it is obviously correct that the Applicant could not now be offered the NET post for the academic year 2021/22 (because that is almost over), even on a reconsideration, it seems to me that a finding that there has been a breach of public law ought to lead to the quashing of the Decision. Secondly, it is also important to make clear as to the lawful way to deal with the Applicant in her applications for employment in the coming academic year 2022/23, and thereafter.”

74.  Second, as the Judge made clear, the order of certiorari is to quash the Decision as it was made in breach of public law.  The order does not have the effect of mandating the EDB to consider exercising its discretion or its jurisdiction to act: Lewis & Knight, Judicial Remedies in Public Law (2020, 6^th edition) at [6-003] and [6-010].  The Judge’s statement at [214] of the Main Judgment cannot be read as an order or an indication that the EDB was required to reconsider the applicant’s application and/or to make a provisional offer to her to work in the School in the school year 2022/23 or thereafter.

75.  For these reasons, Ground 1 cannot stand.

H3.  Ground 2 – Damages for emotional distress and future loss of earnings

76.  Ground 2 relates to the applicant’s claims for general damages and future loss of earnings.  It is argued that the Judge should have awarded damages for emotional distress (HK$3 million) and loss of future earnings (HK$10,994,432) because of the respondents’ ill motives and bad conduct and their adverse impact on her. 

77.  Under Grounds 2(a) and (b), the applicant relies on the telephone calls made by Mr Lo of the GSS to GPS principals in early May 2021, which she contends amount to breach of her data privacy rights and bad faith.  The applicant submits that her personal data, namely her name, application form and all supporting documents, were  passed from the NET Admin Team directly or indirectly to the GSS and Mr Lo then contacted the GPS principals to discourage them from employing her.  She also refers to the telephone call from Principal Wong to Mr Lo on 31 May 2021 during which Mr Lo had confirmed her identity. 

78.  The applicant argues that, notwithstanding that it was a transfer of data within the EDB, the GSS is a third party who has no right to obtain her personal data, and the transfer and use of her personal data was for a “new and bad purpose”.  She submits that the Judge failed to see that the EDB had a scheme to prevent her from working in a GPS which amounts to bad faith and the EDB had “behaved badly”.  She further submits that the Judge failed to properly interpret the provisions in the PDPO, namely the data protection principles in section 3 (“DPP3”) on use of personal data and section 6 (“DPP6”) on access to personal data of Schedule 1[25] as well as section 64(3C).

79.  The applicant also draws assistance from the Code on Access to Information published by the government as providing a framework on access to information held by all government departments, and the Guidelines on Interpretation and Application for  assisting government departments in the interpretation and application of the Code.[26]  The applicant argues that paragraphs 2.14(a) and 2.15 of the Code and paragraph 2.14.10[27] of the Guidelines apply to her case such that the NET Admin Team had no right to transfer her personal data (such as her name) to the GSS, who is a third party even though it is a section within the EDB.  She submits that the PDPO does not provide that a section or department within the EDB is not a third party and the case of 803 Funds Limited shows that the EDB must have been aware of the Code and therefore must have known how to handle her personal data.  She complains that the Judge had downplayed her complaints in [210] of the Main Judgment.

80.  In response, Mr Hew for the respondents points out that there is no finding in the Main Judgment as to what was said during the telephone calls made to the GPS principals in early May 2021 and in the subsequent telephone call.  He submits that it has not been established that there was a transfer of the applicant’s personal data to a third party, irrespective of whether the GSS could be regarded as a third party within the meaning of the PDPO.  Nor has it been established that the applicant’s personal data had been used.  Overall, there is no determination or finding by the Judge of a breach of the PDPO or bad faith.  There is no appeal against the Main Judgment, which is binding on the applicant.

81.  We are of the view that the Judge is correct in holding that there is no proper basis for awarding damages for any pecuniary or non-pecuniary loss based on bad faith, or breach of the PDPO, or defamation, which we will discuss in the next section.  

82.  First, the Judge awarded damages on the basis of breach of contract, not on other causes of action or private law claims.  Bad faith is not itself a valid cause of action in substantive law.  As for breach of data privacy rights or the PDPO, it does not flow naturally from a breach of contract.  Nor is any loss associated with them a result of the kind that should have been within the contemplation of the parties at the time they contracted: Richly Bright International Ltd v De Monsa Investments Ltd at [15] to [23]. 

83.  With regard to the claim for distress or injury to feelings, it is well-established that damages are not generally recoverable for distress or disappointment caused by a breach of contract, even if such consequences were within the contemplation of the parties: Chitty on Contract (2021, 34^th edition) at [29-162]; Watts v Morrow [1991] 1 WLR 1421 at 1440C-H, 1445F-G; Bliss v South East Thames RHA [1987] ICR 800 at 717H-718D; and Addis v Gramophone Company Ltd [1909] AC 488 at 491.  Moreover, the Judge cannot be criticised for refusing to grant damages for distress claimed in the amount of HK$3 million in the absence of any supporting medical evidence since the applicant bears the burden of proving both the fact of psychological injury and the amount of damage claimed.

84.  Second, although breach of data privacy rights was raised as a ground of judicial review, this ground was not accepted by the Judge (see [210] of the Main Judgment), which is binding on the applicant. 

85.  Third, as Mr Hew correctly points out, there is no finding in the Main Judgment as to what actually transpired in the telephone calls made by Mr Lo of the GSS to the four GPS principals, including Principal Wong. In particular, there is no finding that there was misuse of the applicant’s personal data or violation of her data privacy rights.   

86.  The evidence as to the telephone calls made by the GSS was considered by the Judge under the ground of bad faith at [196] to [205] of the Main Judgment.  Although the Judge questioned the need for the GSS to contact the four GPS principals, he did not make any finding as to whether Mr Lo had badmouthed the applicant or whether he had given any instruction to the principals not to employ her.  At [201] of the Main Judgment, the Judge concluded that:

“201.  It seems clear on the totality of the evidence that the kind of telephone call made by Mr SK Lo of GSS is unlikely usual practice.  I also think there is some tension between the EDB’s suggestion that it was “normal” and the other points made by the EDB that this was a system everybody knew and fully understood and operated without question.  That is not to say that what Mr SK Lo is said to have told the school principals would necessarily be regarded as ‘badmouthing’ the Applicant or as a coded instruction not to employ her.  After all, what is alleged to have been said was to pay “attention to” or “handle carefully” these two NETs.  Against the history, it might have been that the alert or warning was to inform school principals that the Applicant had shown herself to be ‘not backward in coming forward’ and ready to engage in strongly-worded correspondence when faced with matters she found unsatisfactory.  But, if said along those lines, that would still likely be understood as at least discouragement from employing the Applicant.”

87.  Similarly, for the follow-up telephone call on 31 May 2021, although the Judge questioned the need for Mr Lo to emphasise to Principal Wong the importance of a fair selection of a competent NET, he did not make any finding as to the content of the call:

“202.  But it seems to me to be also highly significant that Mr SK Lo also speaks to the conversation he had when Principal Wong called him on 31 May 2021 – and about which there is less controversy.  In that call, Principal Wong told him she had identified a suitable replacement NET – and gave him the Applicant’s name – and asked if she could designate the Applicant to take up the NET vacancy.  The very fact that that call was made – which Ms Ho regards as unusual in itself, see below – lends some credence to the suggestion that there had been the previous call when Principal Wong had been warned about the Applicant.  There is cogency in the view that Principal Wong made this unusual call to ask GSS if she might designate the Applicant precisely because she had earlier been told by GSS to be alert to the Applicant.  Mr SK Lo says he emphasised to Principal Wong “the importance of a fair selection of a competent NET”. It might reasonably be asked why that needed to be emphasised at all, unless in the context of a concern that the Applicant was either not competent or might not be the subject of a fair selection.”

88.  Notwithstanding his view that there was a strong possibility that Principal Wong was called in early May 2021 to be alert to the applicant and another candidate, the Judge did not make any finding or draw any inference on the evidence that the telephone calls involved unlawful use of the applicant’s personal data.  The Judge expressly held at [205] of the Main Judgment that it was not necessary for him to determine the issue in light of his other conclusions and in the absence of any live evidence on the point.

89.  In the absence of any finding or holding that there was a violation of the applicant’s privacy rights and/or a breach of the PDPO, there is neither evidential nor legal basis for making an award of damages, compensatory or aggravated, for breach of data privacy rights or bad faith.

90.  Fourth, it also follows that there is no occasion for the Judge to consider or apply the provisions in the PDPO.  In any event, it is doubtful whether the evidence supports the applicant’s complaint that the applicant’s personal data had been used for a “new and bad purpose”.

91.  Under DPP3 (4), Schedule 1 of the PDPO[28], a purpose is a “new purpose” if it is not the same as the original purpose for which the data was to be used at the time of collection of the data, or a “purpose directly related to” the original purpose.  On the evidence before the Judge, it seems that the only personal data which had been deployed in the telephone calls made by the GSS in early May 2021 would be (i) the applicant’s name and (ii) the fact that she had applied for the NET position in a GPS or the School. The state of the available evidence falls short of substantiating a claim that the transfer or use of the data was for a purpose other than the recruitment of NETs.  The applicant’s reliance on DPP6 (access to personal data) is misplaced because DPP6 concerns what the data subject (i.e. the applicant) is entitled to do with her personal data, and not about the use of personal data by a data user.   

92.  Fifth, as to the Judge’s view that the transfer of the applicant’s information was simply within the departments of the EDB and not to a third party, this is a justified view having regard to the fact that the NET Admin Team and the GSS are both under the purview of the EDB, and the definition of “third party” in section 2 of the PDPO[29], which refers to any person other than (a) the data subject; (b) a relevant person in the case of the data subject; (c) the data user; or (d) a person authorized by the data user to use the data.

93.  Sixth, the case of 803 Funds Limited v Secretary for Education does not assist the applicant.  In the first place, the Code and the Guidelines concern access by the public to information held by government departments. The various paragraphs in the Code and the Guidelines relied on by the applicant bear no relevance to the issue under consideration. Further, the issue in the case was whether the EDB was justified in withholding from the public information relating to its investigations into the professional misconduct of teachers.  It was against this background that the Code and the Guidelines were engaged, as they set out the scope within which information held by government departments may be made available to the public. The case is not about transfer of data or information from a government department to a third party.

94.  For these reasons, Ground 2(a) and (b) fail.                          

95.  In Ground 2(c) to (f), the applicant relies on a number of matters that arose after the Main Judgment as showing the respondents’ ill motives and bad conduct and justifying her claim for general damages. They include media reporting of her case, the adverse effect on her reputation by reason of being stigmatised as having challenged the EDB officers, the newly documented policy of the EDB on central recruitment of NETs and the EDB’s briefing on the new policy held on 12 August 2022, both of which adversely impacted on her future employment prospects. 

96.  As discussed above (see [70] above), the Judge was correct to refuse to take into account post-judgment matters and new complaints raised subsequent to the Main Judgment.  The matters set out in Ground 2(c) to (f) do not form any part of the evidence and facts in the judicial review hearing before the Judge.  By the Main Judgment, the Judge had already decided on the grounds upon which the judicial review was made out, and also the form of relief to be granted.  It is not open to the applicant to rely on post-judgment events and/or advance new complaints in the proceeding to assess the quantum of damages to be awarded or in this appeal.   

97.  In sum, Ground 2 fails.

H4.      Ground 3 – Breach of data privacy rights and defamation

98.  Ground 3 is a complaint that the Judge did not have regard to the applicant’s entitlement to damages for breach of data privacy rights and defamation.  We have in the discussion under Ground 2(a) and (b) above considered the applicant’s arguments relating to damages for breach of data privacy and/or the PDPO.  For the reasons we have given, this part of Ground 3 has no merits.  

99.  As to the complaint that the Judge failed to have proper regard to the Defamation Ordinance Cap. 21, no particulars were provided in the AGOA.  The applicant’s written submissions[30] refer to the following matters which the applicant says amount to defamation:

(1)  Mr Lo’s telephone calls in early May 2021 to four GPS principals warning them to pay attention to the applicant;

(2)  The telephone call on 31 May 2021 from Principal Wong to Mr Lo during which her identity was confirmed by the GSS;

(3)  The mention of her name at the internal meeting on 19 July 2021 attended by senior EDB officers, during which the decision was made not to hire her;

(4)  A telephone call on 25 July 2021 during which Principal Wong was told by the EDB that the Decision was made by “Headquarters”; and

(5)  The mention of her judicial review case during the EDB briefing session for senior personnel of GPSs held on 12 August 2022.

100.  The primary obstacle that the applicant faces in contending that she should be awarded damages for defamation is that defamation was not a ground relied on for seeking relief. Nor was it an issue raised in the judicial review application.  This is evident from [123] and [126] of the Main Judgment which set out the grounds of review and the issues for determination.  In the judicial review context, the scope of the review is strictly defined by the Form 86: Lau Kong Yung & Ors v Director of Immigration (1999) 2 HKCFAR 300, at 340B–F.  The applicant had only stated at [77] of her affirmation in support of the Form 86 that her reputation had been damaged at the moment her personal data was passed from the NET Admin Team to the GSS.  This, however, is hardly sufficient.     

101.  First, damage to, or loss of, reputation is not the same as a cause of action based on the tort of defamation.  To sustain a plea of defamation, the claimant has to state all the facts necessary for the purpose of formulating a complete cause of action on defamation: Gatley on Libel and Slander (2022, 13th edition) at [28-001].  There are also technical rules and principles for ascertaining and determining the meaning of the defamatory words complained of and how the meaning of these words would convey to the mind of an ordinary, reasonable and fair-minded reader.  If the applicant had wished to pursue damages for defamation, she had to state it clearly and also properly formulate her claim in the Form 86.  It is a mandatory requirement to state the relief sought and the grounds on which it is sought in the Form 86.  Although the applicant is not legally represented, she is under a duty to comply with the legal requirements as well as the rules of the Court: Ho Ka Man v The Privacy Commissioner for Personal Data [2018] HKCFI 814 at [11].  The Judge cannot be expected to plough through her affirmation and submissions to see if she was seeking damages for defamation or to formulate for her a cause of action which was not raised or particularised to the standard required by the law.

102.  Second, damages for loss of reputation is not normally awarded for breach of contract since the protection of reputation is the role of the tort of defamation: Chitty on Contracts, at [29-166]. The kind of foreseeable financial loss which may be recovered for loss of reputation caused by a breach of contract in the context of unfair dismissal cases has no application in the present case because the Judge did not find a breach of employment contract.  He awarded damages on the basis of breach of a collateral contract to consider the applicant’s application on the same footing as other candidates whose CVs were submitted via the NET Admin Team.

103.  In any event, the applicant’s claim for damages based on loss of reputation, particularly with regard to Mr Lo’s telephone calls to the GPS principals, had been considered and rejected by the Judge for the reasons he gave at [39] to [46] and [55] to [59] of the Damages Judgment. Importantly, as the Judge held at [44] of the Damages Judgment, there was no finding as to what was said in the telephone calls:

“ If reference is intended to be to the phone calls made by Mr SK Lo to the GPS principals as amounting to defamation, Ms Chan says that is mere assertion, because there was no such finding in the Judgment, nor any finding that what was allegedly said was defamatory.  In so far as it is said by the Applicant that the Decision was motivated by bad faith, there is no such finding of the existence of bad faith, where “bad faith” is in any event not itself a valid cause of action in substantive law.”

104.  Similarly, the Judge had given consideration to the applicant’s argument that she had been wrongfully labelled as a “trouble-maker” and had suffered loss of future earnings[31]. The Judge rejected the claim on the basis that there was no sufficient link between his findings in the Main Judgment and any loss of future earnings and that there are many reasons for the non-renewal of an employee’s contract such that it would neither be fair nor appropriate to assume any future wrongdoing by the EDB.  

105.  For the above reasons, Ground 3 fails.    

H5.  Grounds 4 and 5 – Exemplary or punitive damages 

106.  The thrust of the applicant’s arguments under Grounds 4 and 5 is that given the oppressive and unreasonable conduct of the EDB and his express dissatisfaction on the stance and acts of the EDB[32], the Judge should have awarded punitive damages to punish the EDB and to deter similar conduct in the future.

107.  The respondents, on the other hand, argue that the applicant is not entitled to exemplary damages whether based on breach of contract or of data privacy rights.  Mr Hew points out that exemplary or punitive damages were not raised in the judicial review application.  Furthermore, exemplary or punitive damages are not available in Hong Kong in actions for breach of contract, but only for tort or if expressly authorised by statute: Addis v Gramophone Ltd [1909] AC 488; Chitty on Contract at [29-067] to [29-068]; McGregor on Damages at [13-016]; and Halsbury’s Laws of Hong Kong at [340.349].  It is also submitted that section 66 of the PDPO only provides that an individual who suffers damages may be compensated for damages from the data user, and there is no provision in the PDPO entitling the applicant to seek exemplary damages.  

108.  We agree there is no proper basis for the Judge to consider or award exemplary or punitive damages in the present case. Leaving aside whether such damages can be awarded for breach of contract, it is clear that a claim for exemplary damages was not sought in the judicial review application.  The applicant’s submissions on assessment of damages also made no mention of such a claim.  The applicants only asked the court to “do whatever is possible … to deter similar unlawful and despicable acts” of the EDB, and to award “a reasonable amount of monetary compensation” in light of the “outrageously unlawful acts” of the EDB[33].  In the circumstances, the issue of exemplary or punitive damages was not before the Judge.  It was not open to him to consider making an award of exemplary or punitive damages.  

109.  Punitive damages was raised for the first time in the Notice of Appeal[34].  As discussed above, this is not permissible.  Among other things, Order 18 rules 8(3) and 12(1)(c) of the Rules of the High Court, Cap 4A (which apply to judicial review applications by reason by Order 53 rule 7(2)) require a claim for exemplary damages to be specifically pleaded together with the facts relied on.  The Form 86 has not sought a relief of exemplary damages or set out the material facts relied on for seeking exemplary damages.  The applicant cannot just rely on the use of “strong words” in the Form 86 and supporting affirmation and/or the reference to the “oppressive and unreasonable decision” of the EDB to rescind her provisional offer as providing a pleaded claim for exemplary damages.  This is because the basis of a claim for exemplary damages is different to that of a claim for compensatory damages and the facts relied upon will also for the most part be different, and it is thus necessary for the claimant to clearly differentiate between the different heads of damages claimed: Allan v Ng & Co (a firm) [2012] 2 HKLRD 160 at [89] to [91].

110.  Furthermore, in an award of exemplary or punitive damages, the Court has to consider a wide range of factors such as whether the claimant’s cause of action is one in respect of which an award of such damages can be made, whether the claim has been sufficiently pleaded, the punitive and vindictive objectives for this type of award, whether the compensatory damages awarded is adequate to achieve the objectives, and whether the damages sought fall into the three categories of cases and the conditions under each category in which exemplary awards are possible: see McGregor on Damages at [13-017] to [13-030]; and Halsbury’s Laws of Hong Kong at [340.349].  Therefore, a court tasked with an assessment of exemplary or punitive damages is faced with a plethora of considerations which are fact-sensitive and not necessarily straight-forward.  Without a proper foundation for the claim, this Court simply does not have the necessary legal or evidential basis to assess the merits of the arguments advanced on appeal for the first time[35].

111.  For these reasons, we do not find it necessary to specifically address the various arguments advanced by the applicant to justify her claim for exemplary or punitive damages.  Grounds 4 and 5 are dismissed.

I.  Conclusion and costs

112.  For all the above reasons, we are not satisfied that there is any proper basis for interfering with the Judge’s assessment of damages. Accordingly, we dismiss the appeal.

113.  The respondents ask for the costs of the appeal.  In our view, this is a case that merits a departure from the usual rule of costs follow the event.  For the reasons explained below, we consider it is appropriate to make no order as to the costs of the appeal.

114.  First, having considered the Main Judgment as a whole and the sentiments expressed by the Judge at [1] of the Damages Judgment, we are of the view that, though the present appeal is devoid of merit, the adverse financial consequences suffered by the applicant was a direct result of the  high-handed Decision made by the EDB.  The Judge was clearly unimpressed with the reasons given by the EDB for the Decision, the way the EDB treated the applicant and her application, and the stance and manner adopted by the EDB in defending the Decision[36].  We share the observations made by the Judge.

115.  Second, the EDB was less than satisfactory in the evidence filed below, including seeking to attribute a reason (i.e. the Policy) to the Decision which could not stand in light of the other evidence in the case.  In public law cases brought against a public body, the court expects full candour and frank disclosure of all material facts by the relevant parties. In the present case, however, the evidence filed by the respondents had only presented a part of the picture.  It was only until the emergence of Principal Wong’s affirmation that the court was afforded a fuller picture of what transpired in the recruitment process of the applicant.  We agree with the Judge that the School’s understanding of the NET recruitment process and its stance on the Policy were highly relevant to an overall consideration of the case and should have been brought to the court’s attention by the EDB in the first instance.  

J.  Disposition   

116.  Accordingly, we make the following order:

(1)  The appeal is dismissed.

(2)  There is no order as to costs of the appeal.