XCHRX SAYURI TAKAKURA v. KAI SHING MANAGEMENT SERVICES LTD. and Another

HCA No. 12775/96

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R E A S O N S  F O R  D E C I S I O N S

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1. The Plaintiff claims against the 1st Defendant as employer of the 2nd Defendant for damages arising out of an incident in which the 2nd Defendant indecently assaulted the Plaintiff.

2. After pleading the incident of alleged indecent assault at paragraph 5 of the amended Statement of Claim the Plaintiff went on in paragraph 7 to plead " The aforementioned incident was carried out in the course of the 2nd Defendant's employment".

3. The 1st Defendant now applies to strike out paragraph 7 of the Amended Statement of Claim on the ground that it discloses no reasonable cause of action and/or that it is frivolous or vexatious or otherwise an abuse of the court's process.

4. For applications under Ord. 18 r.19 if it is on the ground that it is frivolous or vexatious or otherwise an abuse of the court's process then the Court can rely on affidavits.

5. In E (A minor) v Dorset CC [1994] 3 WLR 853 at 865 Bingham MR set out the principles to be applied when considering strike out applications. Per Bingham MR "It is clear that a Statement of Claim should not be struck out under R.S.C. Ord. 18 and 19 as disclosing no reasonable cause of action save in clear and obvious cases where the legal basis of the claim is unarguable or almost incontestably bad. .....This must mean that where the legal liability of a cause of action is unclear (perhaps because the law is in a state of transition), or in any way sensitive to the facts, or an order to strike out should not be made". This was followed in Yue Xiu Finance Co. Ltd. v. Dermot Agrew and others [1996], HKLR 137 at 141.

6. The question whether an employee was acting in the course of his employment depends on the facts and circumstances of each case. So it is a question of fact. Normally questions of fact should be left to the trial judge. But in the present case there is no dispute as to facts by the 1st Defendant. The 2nd Defendant had been tried and convicted in the Magistrates' Court of indecent assault.

7. The Plaintiff's case as pleaded in paragraph 2 of the Amended Statement of Claim is that "The 2nd Defendant is, or was on or about 8 July 1996, employed by the 1st Defendant as a security guard at the aforementioned premises" i.e. Villa Athena, Ma On Shan, New Territories. Clearly the act of indecent assault was an independent act wholly unconnected with the job of the 2nd Defendant as a watchman or securicor and that the indecent assault was not for the purpose of the 1st Defendant's business as a property management Company nor was such act within the scope of 2nd Defendant's employment. It is abundantly clear that the indecent assault was the act of the 2nd Defendant who was then on a folic of his own.

8. In the premises it is plain and obvious that the act as pleaded cannot be construed as having been carried out in the course of the 2nd Defendant's employment. I therefore order that paragraph 7 of the Amended Statement of Claim be struck out with costs.