LUCY MICHAELS v. CITYBASE PROPERTY MANAGEMENT LTD AND ANOTHER

HCPI 899/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 899 OF 2016

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DECISION

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1.  There were 2 summonses before me.  The first summons was taken out by the plaintiff for summary judgment against the defendants under Order 14.  And the second summons was taken out by the defendants to strike out the statement of claim and the action under Order 18 rule 19.

2.  Mr. Lok, counsel for the defendants invited me to deal with the striking out summons first, for if I struck out the action, I would not have to deal with the application of the plaintiff for summary judgment.  I agreed.  Anyway, I would cover both summonses in this ruling.

LEGAL PRINCIPLE ON STRIKING OUT SUMMONS

3.  Order 18 rule 19(1) of the Rules of High Court provides -

“(1) The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

4.  Mr. Lok had referred me to paragraph 18/19/4 of the Hong Kong Civil Procedure (2017).  The defendants accepted that it would only be in plain and obvious cases that the Court should exercise its summary powers to strike out the indorsement on any writ or any pleadings under the Rules of High Court.  There should be no trial upon affidavit.  Disputed facts were to be taken in favour of the party sought to be struck out.  Nor should the Court decide difficult points of law in striking out proceedings.  I agreed with the view of the learned editors.

5.  I would only add that if a statement of claim does not disclose the cause of action relied on, an opportunity to amend may be given even if the formulation of the amendment is not before the Court.  Or where the amendment would be far-reaching and so radical that to amount to a totally new pleading which would probably provoke a fresh application to strike out, the correct course would be to strike out.

6.  To rule on both summonses, I had to set out the claim of the plaintiff who was acting in person. I would first refer to the statement of claim which was attached to the Writ.

THE PLEADED CASE OF THE PLAINTIFF

7.  The plaintiff claimed that she and her daughter rented a flat at Vianni Cove (“the Flat”) in the first week of May 2012.  She claimed that Vianni Cove was managed by the 1^st and 2^nd defendants. 

8.  It was admitted in the defence that the 1^st defendant was and is still the manager of Vianni Cove according to the Deed of Mutual Covenant applicable to the property.  An on‑site office in the building was allocated to the 1^st defendant for the performance of its duty and was known as “Vianni Cove Management Service Centre”, the 2^nd defendant herein.  

9.  As the first objection, Mr. Lok submitted that the 2^nd defendant Vianni Cove Management Services Centre was not a legal entity and hence the claim against the 2^nd defendant should be struck out. 

10.  It is the claim of the plaintiff that since she moved into the Flat, a particular security guard ("the SG") had a practice of continuous offensive conducts.  No name was provided for this security guard but the plaintiff claimed that Mrs. Dorothy Lei, the Assistant Property Manager of the defendants, could identify him.

11.  It was not disputed that the SG spoke in Chinese and the plaintiff did not understand Chinese.  It was claimed that he would holler in Chinese in an intimidating manner.  On several occasions, he would address the plaintiff and her daughter in a harassing, provocative and abrupt manner, in an imposing and loud tone of voice while offending them in public.  The plaintiff just overlooked his attitude.  But on some occasions, she had to report the abusive language and manner to the supervisors at the security booth.

12.  Save for the above averment, I noted that no other particulars of the harassment or details of the provocative and abrupt manner had been given in the statement of claim.  Dates and number of such events were also missing.

13.  It was claimed by the plaintiff that she had complained to the supervisor(s) of the SG.  And on one occasion, the plaintiff was so offended by his manner and outburst anger and provocative tone of voice while getting his feet on the ground, she immediately complained to his supervisor who apologized on behalf of the SG.  She asked for the name of the SG but was not told.

14.  Further in the statement of claim, the plaintiff claimed that in one incident, the SG was patrolling in the building.  When he passed the door of the Flat, the plaintiff was then leaving the Flat with her daughter.  The SG kept on observing and scrutinizing them.  He also glanced inside the Flat.  It was claimed that he intimidated them and invaded their privacy.

15.  The plaintiff claimed that on 6 May 2014, the day she was moving out of the Flat, an elevator was reserved for their moving purpose.  It was loaded with their personal belongings.  And before she entered the lift, the lift (with their belongings) was released and served other residents on different floors.  She then discovered the SG was at the guard post who ignored her complaints.  She claimed that she had to contact the security guard of another Tower of the estate who assisted her to halt the lift and let her manoeuvre its operation again, after some 15 minutes.

16.  Another major complaint was also related to the day when the plaintiff moved out of the Flat on 6 May 2014.  She was waiting with her belongings in the lobby for a van to arrive to take her belongings.  Paragraph 8 of the statement of claim described a scene when the SG was hollering in the guard desk at the lobby, attracting a number of other residents.  Presumably the plaintiff did not understand what was said. The plaintiff was told by the residents that the SG was furious because the plaintiff and her daughter were using the trolley cart to carry their belongings.  But the day before, the plaintiff was allowed by other security guards to use the trolley.

17.  The plaintiff also claimed that a cleaning lady conspired with the SG to continue with the shouting of verbal assault on 6 May.  The cleaning lady was addressing other residents while looking at and pointing to the trolley cart with the plaintiff's belongings. The cleaning lady used Chinese and the contents of her “speeches” were not stated in the statement of claim.  It was claimed that the SG and the cleaning lady continued with the scene for over 70 minutes.  And to pacify them, the plaintiff had to take the trolley with their belongings to dispose of in the rubbish bin in order to return the trolley. 

18.  The claim of the plaintiff had been grouped into various subtitles in the statement of claim, which hopefully could assist this Court to understand the basis of her claim.  The first cause of action was breach of duty. It was claimed at paragraph 12 that the SG did not conform to the duty owed to the plaintiff by the said intentional insulting acts of assault.  In breach of his duty of care as a security guard, he had caused the plaintiff tremendous fear, humiliation and anxiety.  However, no particulars of the duty the SG owed to the plaintiff as claimed was given, nor his relationship with the 1^st and/or 2^nd defendant(s) was mentioned. As mentioned, no details of the insulting act or assault were given, except as set out above. 

19.  Secondly, a claim on the dreadful behaviour.  The plaintiff was repeating the alleged verbal abuse by the SG.

20.  Thirdly, exposure to danger and physical harm as pleaded in paragraph 14.  The plaintiff repeated the incident on 6 May 2014 claiming that the SG humiliated, embarrassed and demeaned the plaintiff and her daughter in public, and endangered their lives. 

21.  Fourthly, intentional infliction of emotion distress was claimed under paragraph 15.  The plaintiff repeated that the act of the SG was on a continuous basis leading to humiliation.  The plaintiff claimed to suffer from inability to focus on her business operation and suffered loss of business opportunities.

22.  In her written submission, the plaintiff raised further cause of action, including defamation, section 45 of Race Discrimination Ordinance, and harassment.  I shall come to her submission later.

THE DEFENDANTS’ CASE ON THE STRIKING OUT SUMMONS

23.  The defendants filed the affirmation of Li Wan Hing on 10 August 2016 in support of their application to strike out the action.

24.  Mr. Li said in his affirmation that “Vianni Cove Management Service Centre” was simply the on-site office of the 1^st defendant, which is devoid of any capacity of being sued.

25.  It was trite that a business centre or office could not be sued as it did not possess legal capacity.  A plaintiff had to identify the legal person, be him a natural person or a limited company or a group of persons.  That person(s) should be named as defendant.  At the hearing, I asked the plaintiff if she knew the entity of the 2^nd defendant, which by the name on the pleading did not appear to be a natural person, a limited company, or a partnership.  The plaintiff suggested that she had seen some form of a certificate or licence. No documentary proof was adduced with her affidavit. 

26.  Pausing here, the plaintiff had after the hearing lodged a number of letters with this Court.  Further submission had not been requested and they would not be considered for this application.  Any attempt to file additional evidence would be ignored as no leave was granted to file additional evidence.

27.  I believe that the only conclusion would be to strike out the claim and action against the 2^nd defendant, which I would order later.  I would proceed to consider the claim against the 1^st defendant who indeed admitted they were the operator of 2^nd defendant.

28.  Mr. Lok raised 2 general arguments to strike out the statement of claim and the action.  Mr. Lok submitted that there was no direct claim against the 1^st defendant. Accordingly, the claim of the plaintiff had to be based on vicarious liability.  But the SG had not been identified in the statement of claim, nor the identity of the cleaning lady.  It was difficult to see how liability could be attributed to the 1^st defendant on the basis that he was an employer of these 2 persons.

29.  The plaintiff replied that the SG could be identified by the manager of the defendants.  She also said in her written submission that the defendant would have the obligation to identify their own employees.  She also said that the defendant (I presume she was referring to the 1^st defendant and its staffs) had confirmed to have checked the name of the SG after she lodged a complaint.  But it was not clear which incident she was referring to. 

30.  The plaintiff had referred to one or two incidents when she complained to the supervisor of the SG in the statement of claim.  Again there were no particulars on dates of incidents, names of the supervisors and any other information that the SG could be identified or traced.

31.  It seemed the plaintiff was of the view that the duty was on the defendant to identify the 2 persons.  I could not agree.  As submitted by the plaintiff, “cause of action” is “a set of facts or legal theory that gives an individual or entity the right to seek a legal remedy against another”, which I agreed.  But it would also be important to spell out the set of facts and legal basis of the claim in the pleadings with sufficient particulars and details in order that a defendant could know the case that he would be facing, and to prepare for evidence in defence.  And this Court would determine the case according to the pleadings of the parties.  Order 18 rule 12(1) provides –

(1)  Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing-

(a)    particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies;

(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies; and (L.N. 404 of 1991)

(c) where a claim for damages is made against a party pleading, particulars of any facts on which the party relies in mitigation of, or otherwise in relation to, the amount of damages. (L.N. 404 of 1991)

32.  The Rules of High Court prescribed the requirement of particulars.  I would not say that by failing to identify the SG and the cleaning lady the plaintiff's case must fail.  But it would be an encumbrance upon the plaintiff to give particulars of the incident(s), including time, dates and other persons who would be in the scene for the incident and the SG to be identified.  Otherwise the defendant would not be in a position to investigate and prepare properly its defence.  And one of the prime purposes of pleadings was to set out the case with such details that a defendant would not be taken by surprise.  

33.  When the necessary particular of a claim is not pleaded, the cause of action has not been properly set out in the statement of claim.  So the plaintiff would fail to discharge her duties to plead the cause of action.  And the statement of claim is liable to be struck out.  While I agreed that there appeared to be lacking of particulars in the statement of claim, I had to look at the individual claims of the plaintiff and to determine if the pleaded case or any part of it disclosed a reasonable cause of action.  I also had to consider if a chance should be given to the plaintiff to rectify the defect by providing the particulars by way of amendment to the statement of claim.  The submission of Mr. Lok would be considered again in respect of each head of claim later herein.

34.  The second and main argument of Mr. Lok was, taking the case of the plaintiff to the highest, she was claiming that the SG had a personal spite against the plaintiff and her daughter.  And the Court had held that personal spites and vengeance would fall outside the scope of the employer’s employment resulting in a lack of close connection between an employee's action and the employer, and the 1^st defendant (assuming it was the employer) would not be liable for such act. 

35.  Mr. Lok had analysed the pleaded case of the plaintiff in paragraph 15 of his written submission which I would not repeat.  In gist, he said the case of the plaintiff was that the SG treated the plaintiff differently from other residents.  The SG developed grudges, bitterness and hatred towards the plaintiff and her daughter.  This was not the behaviour of regular security guards.  It was his argument that an employer was only liable for the tort committed by its employee if such tortuous act was so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.

36.  Mr. Lok referred to a number of cases to demonstrate the legal principle of “close connection test”.  I believed the principle had been nicely summarised by Deputy District Judge Amy Chan in Tsang Sau Yan v Man Shing Cleaning Service Co Ltd DCPI2757/2012.  I quote from the judgment –

“53. In a House of Lords case of Lister and othrs v Hesley Hall Ltd, [2001] 2 WLR 1311, where it was held that an employer is liable for the tort committed by its employee if such tortuous act is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.

54. This “close connection test” was approved by the Court of Final Appeal in Ming An Insurance Co (HK) Ltd and Ritz‑Carlton Ltd (2002) 5 HKCFAR569. In that case, Bokhary PJ said at p 581J:-

“25. …… I regard close connection as the basic criterion for vicarious liability in regard to all torts committed by an employee during an unauthorized course of conduct, whether intentional wrongdoing or mere inadvertence is involved.  This is not to say that this criterion is to be treated like a statutory formula.  Its application is always to be undertaken in context.  I dare say that the requisite connection will prove in practice to be more readily found in certain types of case than in others.  But the basic criterion having been applied, the disposal of each case will always turn ultimately on its own facts and the particular considerations which they raise. ”

55. In the same case, Litton NPJ also held at p 584B:-

“35. As stated in Winfield and Jolowicz on Tort 16^th ed. (2002) at para 20.9 the underlying idea is that the injury done by the servant must involve a risk sufficiently inherent in or characteristic of the employer’s business that it is just to make the employer bear the loss.”

56. He continued at p 586D:-

“42. Hence, in seeking an answer to the question …… it must be remembered that the issue is not free standing, and matters such as the servant’s duties at the time when the tort occurred, whether he was acting in the interests of the employer or solely for himself, et cetera, are still relevant. And, casting one’s eyes a little wider, the court should also have regard to the business activities of the employer broadly speaking and ask if the risk which gave rise to the damage … was created by those activities.””

37.  The plaintiff had referred me to the case of Ming An Insurance’s case and submitted that the issue was fact oriented.  I noted in two of the cases referred to me by Mr. Lok, the ruling on this issue was given after trial. 

38.  As Mr. Lok submitted, there should be no trial on affidavit at the interlocutory stage. Assuming for a moment that the tort claimed was established against the SG and/or the cleaning lady, it would be a matter to be determined with the fact leading to the dispute whether the act was so closely connected with the employment and/or the work that the employer should be held liable.  I did not agree that I could determine this issue at the interlocutory stage. I did not agree with Mr. Lok on his argument that the defendant would not be liable in any event.  I would again take his argument in my consideration of each head of claim hereinafter.

39.  I would move on to consider each claim alleged in the statement of claim to see if it should be struck out.

BREACH OF DUTY

40.  Mr. Lok in his submission grouped this head of claim with the claim of intentional infliction of emotional distress. 

41.  It is the argument of Mr. Lok that there could be no claim for “breach of duty” or “intentional infliction of emotional distress” unless the plaintiff had shown actual damages suffered. 

42.  A careful reading of the statement of claim showed that the duty of care had not been pleaded.  What was the duty that the SG and/or cleaning lady owed to the plaintiff?  Was it contractual or common law duty?  And as this was a claim against the 1^st defendant, what was the relationship of the SG and the cleaning lady with the defendant that it could be liable?  As analysed above, these particulars had to be given and proven at the trial for the plaintiff to succeed with the claim.  Without these particulars, the plaintiff had not set out the claim on breach of duty that she alleged.  She would not stand a chance of success notwithstanding the term “breach of duty” was used. 

43.  The particulars of the agreement to the conspiracy had not been pleaded either.

44.  I also agreed with Mr Lok that for a claim for breach of duty of care, and intentional infliction of emotional distress which I would consider hereinafter, damages had to be particularised and established to maintain the action.  It was the burden on the plaintiff to plead any psychological injury or other actual physical injury or damages she suffered, or the claim would not be actionable. In the present case, the claims on damages were scattered around the statement of claim.  The plaintiff claimed that she suffered from fear and emotional stress.  She suffered for embarrassment.  It caused her insomnia.  And the acts led to her inability to focus on her business operation, causing her to loss business opportunities.  They also disturbed her physical health led to a prompt weight loss.

45.  If the plaintiff was claiming that she suffered personal injuries, according to Order 18 rule 12(1A), the plaintiff shall serve with her statement of claim a medical report substantiating all the personal injuries alleged in the statement of claim, and a statement of damages.  These had not been complied with and if the plaintiff were to claim personal injuries, further particulars on her injury should be given.  This could be rectified upon filing of statement of damages and her medical report, which had not been filed as the case was originally issued in the General Civil List and was then transferred to the Personal Injuries List before this hearing.

46.  Summing up, the claim on breach of duty should be struck out unless the plaintiff could provide the particulars on the duty that the SG and cleaning lady owed her, and the relationship she claimed that existed at the material time between the SG and the cleaning lady and the 1^st defendant that made the 1^st defendant liable for the act of the SG and the cleaning lady. And if she claimed damages for personal injuries, she had to set out the injury she suffered from the alleged breach of duty and to file a statement of damages and the medical report in accordance with Order 18 rule 12(1A).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

47.  Mr. Lok referred to the English House of Lords’ decision, Wainwright v Home Office [2004] 2 AC 406 and invited me to read the following passages in the judgment –

“In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manner but I am not sure that the right way to deal with it is always by litigation.

It does not provide a remedy for distress which does not amount to recognized psychiatric injury and so far as there may by a tort of intention under which such damage is recoverable, the necessary intention was not established.

The unjustified infliction of humiliation and distress does not, without more, suffice at common law to constitute a tort.”

48.  I agreed with Mr. Lok that the tort of intentional infliction of emotional distress was not actionable per se, i.e. only actionable when the plaintiff suffered actual injuries.  It is also said in the judgment of Bharwaney J in Fung Chun Man v Hospital Authority and another HCPI1113/2006 that –

“The law of negligence does not provide a remedy for distress which does not amount to a recognized psychiatric illness^[1], unless the distress, anxiety or fear is accompanied by a physical injury.^[2]”

49.  In coming to the comment, Bharwaney J also referred to the Wainwright’s case. I would also refer to the judgment of the Court of Appeal decision of Wong Tai Wai David v. The Hong Kong SAR Government CACV 19/2003 when the claim of harassment and intentional infliction of harm had been discussed.  Chung J made the following comments -

“36. Based on the above brief survey of the case law on harassment and intentional/reckless infliction of harm, some observations may be made:

(1) little guidance on the common law can be obtained from the English courts now because of the statutory provisions there, which have no Hong Kong equivalent;

(2) disregarding the statute, it is arguable that a tort of harassment per se, or as part of a tort of intentional (or reckless) infliction of injury (physical or mental), exists at common law;

(3) it is arguable whether a tort of intentional (or reckless) infliction of injury, if it exists, sounds in damages;

(4) it is arguable that even if the two torts (or one of them) do not exist as such at present at common law in England (where at least in relation to harassment there has been legislative intervention, thus removing the need for common law development), the common law in Hong Kong may include the tort(s); and

(5) it is arguable whether the tort(s) require(s) as one of its/their essential elements the suffering of actual physical injury or known psychiatric illness, or whether mere distress or humiliation would suffice.

37.  Furthermore, if the tort(s) does/do exist, it would seem that the essential mental requirement (of the wrongdoer) has to be the intentional or at the lowest, reckless, infliction of injury – physical or mental. An intentional or reckless state of mind toward the act under complaint is not sufficient.  The wrongdoer must have intended to inflict injury (physical/mental) on the victim, or at the lowest, must have been reckless as to whether the victim would have sustained such injury as a result of his act.  (By injury here, I am using it in a general sense to include also mere distress and humiliation, in case the same is sufficient to ground a claim.)”

50.  The plaintiff submitted that the actions or conduct of the defendant (which I presume referred to the alleged act of the SG) was extreme and outrageous.  The defendant acted intentionally and/or recklessly causing severe emotional distress to the plaintiff.  But it would be necessary for the plaintiff to give particulars on the acts which was extreme and outrageous, and the fact she relied on to show the intention of the SG and the cleaning lady was to inflict injuries.

51.  It was again the burden of the plaintiff to plead the psychological injury or other actual physical injury or the claim would not be actionable.  As discussed above, she had to plead the damages caused and to file the statement of damages.

52.  I agreed with Mr. Lok that the case as pleaded did not have sufficient particulars and details to establish a cause of action on intentional infliction of emotional distress.  There were insufficient particulars on the act of the SG as aforesaid.  And there were insufficient particulars on the injury.  Hence it would be a matter of insufficient pleadings and while I agreed with Mr. Lok that the statement of claim on intentional infliction of emotional distress may be struck, yet I believed it would be appropriate to give an opportunity to the plaintiff to amend the statement of claim.

HARASSMENT

53.  While the term of harassment had not been used in the statement of claim, the other claim of the plaintiff could be grouped under the heading of harassment.  She raised the claim also in her submission.

54.  Mr. Lok agreed with the discussion of Chung J in Wong Tai Wai David’s case which also touched on harassment.  He also referred me to the judgment of Anthony Chan J given in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197.  I referred to the judgment of DHCJ Marlene Ng given in Lam Yuk Wing v Yu Lai Wa HCA4/2005 on a brief summary on the law on harassment.

“Lok J recently in Lin Man Yuan v Kin Ming Holdings International Limited & anor[3] summarised the conflicting authorities and agreed with A Chan J in Lau Tat Wai v Yip Lai Kuen Jacky[4] that the tort of harassment exists in Hong Kong. I respectfully agree with A Chan and Lok JJ. On such basis, the elements of the tort of harassment explained by A Chan J in Lau Tat Wai and summarised by Lok J in paragraph 222 in Lin Man Yuan are as follows:

“(i) ‘harassment’ means a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person [at §62];

(ii) the mental element required is reckless as to whether the victim would suffer injury from the defendant’s conduct [at §65]; and

(iii) the plaintiff must have suffered damage as a result of the harassment; anxiety would suffice, though the defendant must take the victim as he finds him; financial loss is also recoverable [at §§66‑69].”

55.  The plaintiff claimed that for a period of about 2 years, the SG had been harassing her and her daughter.  What had not been pleaded sufficiently was the number of occasions or the frequencies.  There were no particulars of the harassment which I believed it would be the same set of incidents as mentioned above, and which the plaintiff would be obliged to give detailed particulars before the defendant could indeed answer. 

56.  Mr. Lok sought to argue that the words of the SG could not be understood by the plaintiff and would not create worry, emotional distress or annoyance.  The conduct could be an act or series of acts amounting to harassment.  If the plaintiff relied on the acts, including the facial expression of the SG, his stepping on the floor, these should be set out in details when the Court could be in a better position to assess if the plaintiff had raised a cause of action for trial.

57.  I would not go through all the cases as submitted.  It must be seen that whether certain course of act or conduct amounted to harassment depends on the circumstance of each case.  It would be a matter for the trial judge.  I should not rule on the merit for the purpose of this striking out application.  But I could see the point of Mr. Lok that the plaintiff’s case was not clear and lacking in particulars to the extent that the cause of action had not been properly set out.  I adopted the same approach that the plaintiff should propose draft amendment on her claim with sufficient details and particulars.  And I need not to repeat that the plaintiff had to plead with particulars her injuries and/or damages suffered.

58.  In her written submission, the plaintiff raised some new causes of action which I would consider.

RACE DISCRIMINATION ORDINANCE

59.  The plaintiff raised for the first time a claim under the Race Discrimination Ordinance, in particular section 45(1) which provides –

“(1) It is unlawful for a person, by any activity in public, to incite hatred towards, serious contempt for, or severe ridicule of, another person or members of a class of persons on the ground of the race of the person or members of the class of persons.”

60.  Mr. Lok rightly pointed out that this head of claim had not been pleaded.  And there was no reference in the statement of claim that the act of the SG or the cleaning lady was an act incited by hatred or contempt on the ground of the race of the plaintiff.  If this had to be raised, this would be a new cause of action, and there was no sufficient particular of the complaints.

61.  Mr. Lok further submitted that according to section 70 of the Race Discrimination Ordinance, the claim should be brought in the District Court. 

62.  I suspected the reference by the plaintiff to the Race Discrimination Ordinance was to quote section 47 that the employer would be liable for unlawful acts committed by their employees in the course of employment, whether or not they knew about the act of their employees.  But this section was not of general application to other tortuous claim under common law.

63.  In conclusion, this head of claim which was not pleaded would not be treated as a claim in the action.  And I see no justification for allowing an amendment to this issue in particular when the plaintiff could not persuade me that this claim should be brought in the High Court instead of the District Court.

DEFAMATION

64.  The plaintiff said in her written submission that on 6 May 2014, the SG and the cleaning lady made offensive statement and acted with malice in making such statement.  Consequently, the plaintiff and her daughter who had always been proud of the neighbour’s respect and friendship, “suffered damages, including damage to their reputation, specially caused by the defamatory statement.”

65.  I noted that the 1^st defendant claimed that the plaintiff moved out on 4 May 2014, and not on 6 May.  But the more important consideration was what was the defamatory statement?  This must be the core of this head of claim.  The words uttered by the SG and/or the cleaning lady had to be set out in exact wordings for this Court to rule at the trial if the statement was defamatory.  If there was no pleaded statement, the plaintiff could not begin to maintain her alleged claim on defamation.

66.  I also noted that the plaintiff was relying on the same incident on 6 May 2014 when she moved out as I set out above.  I could see no justification to allow the plaintiff to amend to include the alleged claim of defamation.  

67.  In conclusion, I could see no merit for the new claim as alleged to be included as a new cause of action. 

CONCLUSION AND RULING

68.  In conclusion, I would first strike out the claim against the 2^nd defendant which was just an on-site office of the 1^st defendant which had no legal entity (as I had analysed above).  Costs should be to the 2^nd defendant but the complication here was that the 2^nd defendant was indeed operated by the 1^st defendant.  I would give an order nisi that the 1^st defendant should have the costs of defending on the claim against the 2^nd defendant.  

69.  And the claims against the 1^st defendant were lack of particulars and that the cause of action had not been properly and sufficiently pleaded as aforesaid.  The deficiency of particulars was to an extent that the cause of action could not be understood, and the 1^st defendant would not have sufficient particulars to prepare its defence.  On the statement of claim as it stands, it should be struck out.  With the analysis above, I consider it an appropriate case to allow the plaintiff to rectify the defect by suggesting amendment.  But if the amendments were not satisfactory, the statement of claim should then be struck out and the action be dismissed. 

70.  The plaintiff shall within 28 days lodge with me and serve on the 1^st defendant her proposed draft amended statement of claim and her statement of damages.  I would deal with direction on medical evidence if I allow the action to continue.  If the 1^st defendant agrees with the amendment, it is to inform me and the plaintiff that they would agree to the amendment and direction would be given in chamber for the amendment and the issue of costs could be dealt with at the next Checklist Review hearing.  If the defendant disagrees with the amendment, a short hearing of 1 hour be fixed by the 1^st defendant before me in consultation of counsel’s diary.  And the costs of the striking out summons between the plaintiff and the 1^st defendant be reserved.

ORDER 14 APPLICATION

71.  As I had analysed the plaintiff’s claim, I should also deal with the application by the plaintiff for summary judgment.

72.  While the defendants intended to strike out the plaintiff’s claim, the 1^st defendant had filed its defence.  Mr Li’s affirmation also objected to the plaintiff’s application for summary judgment.   

73.  The purpose of summary judgment is set out in Hong Kong Civil Procedure 2017:

“ …… The underlying policy of the summary procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in a case in which the defendant clearly has no defence to the plaintiff's claim …… When applied for, it is for the defendant to show that there is a triable issue or an arguable defence if he is to be allowed his day in court. ……”

74.  In Ng Shou Chun v Hung Chun San [1994] 1 HKC 155, Godfrey J noted it was not appropriate to embark on a mini‑trial on affidavit evidence. The court should ask itself the question whether what the defendant says is credible or believable.  If so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment.  Bokhary J.A. (as he then was) said in Re Safe Rich Industries Ltd [1994] H.K.L.Y. 183

“The test at the summary stage is indeed as simple as whether the defendant’s assertions are believable. But it must be recognized – because failure to recognize it would create a debt-dodger’s charter – that whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute.”

75.  Mr Lok submitted that even if I refused to strike out the Action, there was clearly triable issue raised by the defendant and unconditional leave should be granted to the defendant to defend the case.

76.  The claim of the plaintiff had been analysed above and I would  not repeat.  With the above analysis, and assuming the plaintiff was entitled to proceed with the Action, all the claims of action raised would involve finding of facts. 

77.  The one major dispute on 6 May 2014 was that, the defendant denied that the plaintiff moved out on 6 May 2014 and claimed that the plaintiff moved out on 4 May 2014.  The date would be relevant on the evidence to be adduced.  And on the use of the lift, on 4 May 2014, the defendant admitted that a lift was reserved for the use of the plaintiff.  It was submitted that the lift was vacant when it was released for use by other residents (paragraph 12 of the defence).

78.  Another point to be noted was there was no plea on the relation between the SG and the 1^st defendant.  And as argued by Mr Lok, the act of an employee could in some case be personal spite and vengeances falling outside the scope of his employment duty.  This had to be tested and ruled by looking at all the circumstances of the case.  And this is indeed the crux of the plaintiff’s claim which could not be ruled without an oral hearing.

79.  It was trite that I should not embark on a mini trial on affidavit.  For these reasons, the application for summary judgment was bound to fail and I would therefore dismiss the summons with order nisi that the defendants do have costs of the summons with certificate for counsel.

80.  If I refuse to strike out the Action, I have to give leave to the defendant to defend the case and consequential directions.  These would be considered when I rule on the striking out summons again after the plaintiff has filed her draft amended statement of claim and statement of damages.

81.  And for the order of costs, I am minded to summarily assess the costs when the order becomes absolute.  I would therefore direct the receiving party to lodge the statement of costs in due course and direction would be given after I have ruled on the balance of the striking out summons.