YUEN OI YEE LISA v. HEATH CO LTD AND OTHERS

DCCJ 5441/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5441 OF 2003

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D E C I S I O N

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1. This is an amended application by the 1^st Defendant against the Plaintiff in these terms: -

(1) the Plaintiff’s Writ of Summons and Statement of Claim against the 1^st Defendant be struck out on the ground that this action against the 1^st Defendant is vexatious or is an abuse of the process of the Court;

(2) Further or alternatively, a determination of the question of whether the Plaintiff is, as a matter of law and/or construction of documents, precluded by a settlement agreement, as evidenced or constituted by:-

(i) the correspondence exchanged between the Plaintiff’s former solicitors, Messrs SH Chan & Co. Solicitors, and the 1^st Defendant’s solicitors between 12^th April 2003 and 27^th May 2003;

(ii) the tender of payment by the 1^st Defendant by way of a cheque in the sum of HK$20,000 plus an apology letter on 26^th May 2003; and

(iii) the Plaintiff’s acceptance of the said cheque and apology letter by her solicitors’ letter dated 27^th May 2003,

from bringing any further claim, or any civil claim, against the 1^st Defendant in relation to the Plaintiff’s complaint concerning the contacts made by the 1^st Defendant or its employee(s) to the Plaintiff’s former employers, including the Plaintiff’s claim in this action.

2. I shall first deal with the amended paragraph (2) of the Summons.    To determine this question I shall look into the correspondence exchanged between the Plaintiff’s former solicitors, Messrs S.H. Chan & Co and the 1^st Defendant’s solicitors Messrs. Johnson Stokes & Master during the period between 12^th April 2003 and 27^th May 2003.   The correspondence is found between pages 08 to pages 038 of Bundle B (“BD-B”) filed in this application.  

3. The first letter is dated 12^th April 2003 from Messrs. S. H. Chan & Co. to the 1^st Defendant at page 08 of BD-8.   This letter is headed by the heading “Re: Defamation”.   The letter sets out the background of the complaint of defamation perpetrated by Miss Sally Chong of the 1^st Defendant published to Mr. Loy Managing Director of Strombecker Hong Kong Limited   (hereinafter referred to as “Strombecker”) the former employer of the Plaintiff.  In the letter there is a demand to the 1^st Defendant to take the remedial action stated at page 2 of the letter as follows:-

(1) To deliver to the Plaintiff a written apology with copies to the Chief Executive Officer and the Board of Directors of the 1^st Defendant and its holding Company, Desa International Inc./HIG Capital in U.S.A.

(2) To stop making such defamatory statement from any staff of your Company to the public forthwith.

(3) Pay the Plaintiff a sum of HK$8,000.00 being our client’s legal costs.  To deliver the cheque for the said amount drawn in favour of the Plaintiff to the Plaintiff’s Solicitors for and on behalf of our client.

4. The letter ended by these words:

“Up to this moment, our client still has the greatest sincerity to settle this case amicably with your Company.  We are, therefore, instructed to withhold including any other damages suffered by our client at present.  However, we expressly reserve our client’s right to include her damages suffered by your defamation in addition to our client’s aforesaid demands if legal proceedings are instituted against your Company.”

5. I agree with the 1^st Defendant’s Counsel that it would seem from the aforesaid that the Plaintiff’s reservation to seek damages “in addition to the Plaintiff’s said demands” was only effective if the 1^st Defendant failed to settle this matter to the Plaintiff’s satisfaction.

6. The letter enclosed a “Statement of Facts Leading to Dismissal”.   This statement makes complaints well beyond the defamatory statements complained of and includes a complaint that Miss Sally Chong had sought to obtain the Plaintiff’s personal data from third parties without the Plaintiff’s consent and that the said Miss Sally Chong had called all the Plaintiff’s former employers for her personal data.

7. On the 25^th April 2003, Messrs. Johnson Stokes & Master replied admitting that Miss Sally Chong had contacted 3 ex-employers of the Plaintiff to obtain references of the Plaintiff without proper authority from the 1^st Defendant.   Other allegations are denied.   The letter contained an offer for full and final settlement of any claim of the plaintiff against the 1^st, the former 2^nd and 3^rd Defendants in relation to this matter and also in relation to the Plaintiff’s dismissal by the 1^st Defendant in these terms:-

(1) an apology letter to be tendered to the Plaintiff in terms therein stated. 

(2) The 1^st Defendant to use its best endeavour to restrain any defamatory statement to be made against the Plaintiff by any staff of the 1^st Defendant; and

(3) Payment to the Plaintiff the sum of HK$8,000 being legal costs incurred in this matter.

8. The letter stated that it did not think it proper to copy the apology letter to the holding companies of the 1^st Defendant, i.e. the former 2^nd  and 3^rd Defendants.     There was a request to the Plaintiff to withhold the harassment of the 1^st Defendant and its holding companies. 

9. On the 29^th April 2003, Messrs. S. H. Chan & Co wrote a letter in reply containing additional background facts in item 1 of the letter and seeking the following terms:-

“2. Information related to the names of the other 2 ex-employers contacted by Miss Sally Chong apart from Strombecker and other facts.

3. An amendment to the terms of the apology letter.”

10. There was a request for an answer to item 2. in the letter aforesaid and an apology letter and further legal fees in the sum of HK$5,000 totaling HK$13,000.  

11. In reply Messrs. Johnson Stokes & Master wrote on the 12^th May 2003 to state that the proposed amendment to the apology letter as set out in para 3(a) of the letter dated 29^th April 2003 aforesaid was not acceptable to the 1^st Defendant.   They also refused the request at item 2 of the same letter.   They offered the following terms:-

1. Payment of Legal fees in the sum of HK$13,000.

2. Apology letter in the terms offered by the 1^st Defendant as contained in the letter from Messrs. Johnson Stokes & Master dated 25^th April 2003 with necessary amendment related to the legal costs payable.

3. Payment of legal costs is made and the apology letter is delivered in full and final settlement of any claim of the Plaintiff against the 1^st Defendant, the former 2^nd and 3^rd Defendants including but not limited to any claim in relation to this matter and/or the Plaintiff’s dismissal by the 1^st Defendant.

12. In reply Messrs. S. H. Chan & Co. wrote on the 16^th May 2003 again with further background facts.  Then the offer for a quick and amicable settlement made without prejudice to the plaintiff’s right to institute any legal proceedings against the 1^st Defendant in respect of the other two ex-employers of the Plaintiff, the terms offered were:-

(i) Payment of legal costs in the sum of HK$20,000.

(ii) Delivery of an apology letter in terms proposed in the letter dated 25^th April 2003 from Messrs. Johnson Stokes & Master.

(iii) The payment of legal costs and the apology letter is delivered in full and final settlement of any claim of the Plaintiff against the 1^st and the former 2^nd and 3^rd Defendants in relation to Strombecker but excluding the other two ex-employers whose names the 1^st Defendant has refused to disclose.

13. Then a final letter from Messrs. S. H. Chan & Co. where reference is made to the without prejudice telephone conversation between Miss Wong of Messrs. Johnson Stokes & Master and their Mr. William Cheung that morning.   It was stated that they are instructed that for an amicable settlement the plaintiff is willing to accept their proposals in these terms:-

“1. Your client shall pay our client’s legal costs in the total sum of HK$20,000.

2. Your client delivered an apology letter (in the terms as agreed).

3. Your client and its holding company shall waive any claim against our client in relation to any allegation of harassment.

4. The payment of legal costs is made and the apology letter is delivered in full and final settlement of any civil claim in relation to this matter.

To expedite matter, please send the above apology letter together with the payment of HK$20,000 to us, for and on behalf of our client, within the next 5 days.”

14. The letter stated that the payment of legal costs and the apology letter is delivered in full and final settlement of any civil claim in relation to this matter.  

15. Pursuant to such settlement Messrs. Johnson Stokes & Masters by letter dated 26^th May 2003 performed the settlement agreement by:-

(1) delivering the apology letter; and

(2) tendering a cheque in the sum of HK$20,000.

16. There is an explanation of what transpired in the telephone conversation between Miss Wong of Messrs. Johnson Stokes & Master and the Plaintiff’s solicitors on the 20^th May 2003 at paragraph 4 of the Affirmation of the Plaintiff at page 40 of Bundle B.   In this paragraph, the Plaintiff stated that Miss Wong called Messrs. S. H. Chan & Co on the 20^th May 2003 to offer her client’s proposals in the exact terms of paragraph 1 to 4 of the acceptance letter of the 20^th May 2003.  However Miss Wong insisted that they would not disclose any information in respect of the other two ex-employers information of which was sought by the Plaintiff.   Messrs. S. H. Chan & Co. told Miss Wong pursuant to the Plaintiff’s instructions that the Plaintiff would pursue her  further claim to the Personal Data Commissioner and take this matter out of their respective control.  Any contravention of the Personal Data (Privacy) Ordinance when found is a criminal offence.   Therefore the Plaintiff’s solicitors has emphasized in writing “ of any civil claim in relation to this matter.”

17. The explanation is clear that instructions had been given by the Plaintiff to her solicitors, for the reasons given aforesaid, to enter into full and final settlement of “any civil claim” in relation to this matter.  It would seem that the Plaintiff well knew that “any civil claim” included all civil claims.  This is clear as the Plaintiff stated she was intending to file her complaint in relation to Miss Chong’s breach of the Personal Data (Privacy) Ordinance in relation to the two other ex-employers (other than Strombecker) with the Privacy Commissioner for Personal Data.  Any contravention of the Ordinance found could lead to criminal proceedings.  It would seem to me in the light of all that transpired that any “civil claim in relation to this matter” as referred to in the letter dated the 20^th May 2003 from the Plaintiff’s Solicitors to the Defendant’s Solicitors include all claims in the matter canvassed in the correspondence between the parties and the matters canvassed cover the factual basis of the claim in the Statement of Claim herein and also the claim for damages under Section 66 of the Personal Data (Privacy) Ordinance in the action herein.   

18. Although I had carefully listened to the submissions of the Plaintiff, it seems that she had specifically given instructions to her solicitors to accept the terms of Miss Wong of Messrs. Johnson Stokes & Master as contained in paragraphs 1 to 4 of the letter dated 20^th May 2003 from her solicitors to Messrs. Johnson Stokes & Master.   The letter of apology given to the Plaintiff did contain the elements stated in paragraph 3 (1) (a) to (c) of the letter of Messrs. Johnson Stokes & Master dated 25^th April 2003.  

19. In my view, the correspondence exchanged between the Plaintiff’s former solicitors Messrs. S. H. Chan & Co Solicitors and the 1^st Defendant’s Solicitors Messrs. Johnson Stokes & Master between 12^th April 2003 and 27^th May 2003 and the subsequent tender of payment by cheque by the 1^st Defendant in the sum of HK$ 20,000 together with an apology letter dated 26^th May 2003 and the Plaintiff’s acceptance of the said cheque and apology letter by her solicitors letter dated 27^th May 2003 precludes the Plaintiff from bringing any further civil claim against the 1^st Defendant including the Plaintiff’s claim in this action.

20. In view thereof, I find that the Plaintiff’s present Writ of Summons and Statement of Claim being a civil claim in respect of the issues covered by the terms of settlement should be struck out on the ground that this action against the Defendant is vexatious or is an abuse of the process of the Court.   I therefore make this order:

The Plaintiff’s Writ of Summons and Statement of Claim against the 1^st Defendant be struck out together with an order nisi for costs of the action and this application including all costs reserved in relation to this application to be paid by the Plaintiff to the 1^st Defendant with Certificate for Counsel.   The Plaintiff’s action against the 1^st Defendant be dismissed.