X v. MARIANI, STEFANO

DCEO 11/2023

[2024] HKDC 636

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 2023

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DECISION

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1.  This is the application by Respondent under a Summons filed on 27 October 2023 to set aside or discharge the Anonymity Order (the “AO”) granted on an ex-parte basis in favour of the Claimant by this court on 4 October 2023.

2.  As a matter of background, this is a claim based on sexual harassment as defined in the Sex Discrimination Ordinance (Cap. 480). The Claimant and the Respondent were former colleagues in a Hong Kong law firm (“the Law Firm”). The necessity of the AO, as stated under paragraphs 58 to 65 of the 1^st Affidavit of the Claimant (“C’s 1^st Affidavit”) (Hearing Bundle A, page 22-23) were:

a.  evidence to be disclosed being “highly detailed in terms of the acts of sexual harassment” which would be “widely reported and / or circulated in the mainstream media”;

b.  jeopardy to the privacy of the Claimant’s family (e.g. “constantly approached by the press”);

c.  implications to the Claimant’s reputation at her work place;

d.  “adverse public reaction” and risk to “the Claimant’s psychological and / or physical integrity” due to a diagnosis of HPV being “a material part of the factual matrix” and this is a “highly sensitive, private and confidential piece of personal information”; and

e.  Balance of convenience being that the Claimant cannot be adequately compensated by damages if the AO is not granted.

3.  The Respondent’s grounds for the application to set aside the AO (paragraph 3 of the Respondent’s Skeleton Argument) were:

a.  material non-disclosure;

b.  perjury;

c.  deliberately misleading the Court; and

d.  abuse of process by the Claimant.

4.  For the current set aside application, the Respondent has filed 2 Affidavits (R’s 1^st Affidavit and R’s 2^nd Affidavit), an Affirmation of Chan Oi Lam (“COL’s Affirmation”) and an Affidavit of Kevin Richard Bowers (“KRB’s Affidavit”). The Claimant has filed a 1^st Affidavit of X under the AO but for the sake of clarity, this will be referred to as “C’s 2^nd Affidavit”.

Legal principles of Anonymity Orders

5.  It is trite that the court has inherent jurisdiction to make an anonymity order (L v Equal Opportunities Commission & Others [2002] 3 HKLRD 178).

6.  The legal principles for granting anonymity orders are well-settled: the starting point and general rule of open justice is that judicial proceedings are held in public and the parties are named in judgments. Open administration of justice is a fundamental principle of common law (X&Y v Z [2020] HKCFI 826).

7.  This general principle of open justice is of great importance from the perspective of administration of justice for a number of reasons. Amongst such are that: the public nature of proceedings deters inappropriate behaviour on the part of the court; it maintains the public’s confidence in the administration of justice; and it makes uninformed and inaccurate comment about proceedings less likely (Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354).

8.  Hon Coleman J in the case of X & Y and Z has summed up the matters for consideration for derogations from this principle. I have summarized the test as a “weighing exercise” as follows :

a.  One most important, if not decisive, consideration is that the nature or circumstances of the particular case are such that the application of the general principle in its entirety would frustrate or render impracticable the administration of justice, but any derogations from general principle must be strictly necessary as measures to secure proper administration of justice;

b.  Besides this, considerations of relevant interests, rights and freedoms (e.g. Articles 10 and 16 of the Hong Kong Bill of Rights) must also be taken into account in a balancing act;

c.  it can only be justified in exceptional circumstances;

d.  facts and issues are specific to each application;

e.  establishing such derogation from general principle lies requires clear and cogent evidence and the burden lies with the applicant;

f.  Any derogation granted, where justified, should be no more than strictly necessary to achieve the purpose; and

g.  After applying this test, the court is under the duty to either grant or refuse it as a matter of obligation and not discretion.

9.  Various precedents have provided examples of instances where such applications were granted or (the X & Y and Z case, Re BU [2012] 4 HKLRD 417):

a.  where an applicant has clearly articulated fears of risk to life or safety, whether of themselves or others, that would be a basis to have the proceedings anonymized;

b.  a case involving a child or vulnerable person, or personal information about the lives of those under 18 and their welfare may be injured if such details are revealed and their names are known; and

c.  a case of blackmail when refusing to grant would have made any injunctive relief meaningless.

10.  However, there are also examples when such are refused:

a.  if the application was used simply to protect privacy or avoid embarrassment (R v Westminster City Council, ex p Castelli & Another [1996] 1 FLR 534); and

b.  case involving, by themselves, the following matters: publicity of litigation leading to embarrassment and inconvenience; economic damage (even very severe economic damages); professional embarrassment (and possible damage to professional reputation) etc. (the Asia Television Ltd case)

Justification for an ex-parte application

11.  The first argument raised by Mr. Jeremy Bartlett SC, counsel for the Respondent (“Mr. Bartlett”), was whether there was a need for an ex-parte application.

12.  The justification in this case was urgency. As stated in paragraph 66 of C’s 1^st Affidavit (Hearing Bundle A, page 24):

“…I am advised and believed that the first act of sexual harassment by the Intended Respondent against me in the above factual matrix took place during the Foxglove Incident on 2 November 2021. I am therefore advised and verily believed that the two-year limitation period in respect of this sexual harassment incident will soon expire, and I therefore humbly pray the Honourable Court may grant the Anonymity Order on an urgent basis.”

13.  The Claimant has now admitted that this date was wrong. In C’s 2^nd Affidavit, under paragraphs 32 and 35 (Hearing Bundle A, pages 81 and 82):

“…When I was giving instructions to my solicitors, I was, with the benefit of hindsight, mistaken as to the date of the Foxglove Incident…which was the first act of direct sexual harassment as pleaded in the Notice of Claim; since my WhatsApp records did not go back to November 2021, I had to rely on memory and the diary entries on my work computer to recall the date. This led me to believe that the Foxglove Incident took place on or around 2 November 2021.”

“After I read the WhatsApp records in November 2021 that the Respondent sent and had an opportunity to refresh my memory, I managed to ascertain with my solicitors that the Foxglove Incident in fact took place on 30 November 2021, hence the Notice of Claim refers to that date at paragraph 7 thereto.”

14.  The Respondent has questioned the truthfulness of this explanation. The court is not in a position to decide such at this stage. Suffice to say, even if the court accepts that the Claimant was under a mistaken perception of urgency, this may still not be enough to justify the need for an ex-parte application.

15.  Mr. Bartlett referred the Court to Practice Directions 11.1 which concern “ex-parte, interim and interlocutory applications for relief”. In particular, paragraph 7 draws a distinction between “urgency” which requires an immediate order, and “the need for confidentiality” which requires an ex-parte hearing.

16.  Mr. Bartlett argued that the parties, via their respective lawyers, have been in correspondence (concerning the Respondent’s threat of defamation action against the Claimant) since 30 August 2023 (Demand Letter from the Respondent’s solicitors, Bowers, to the Claimant, Hearing Bundle B1, pages 394-402). This was around two months before the ex-parte application. There was clearly no basis for any need for confidentially or secrecy for the application.

17.  Thus, even if there was “perceived” urgency, there would only be a need for an immediate order. The circumstances would still not justify an ex-parte application.

18.  Indeed, the Claimant has not provided any reason why Bowers was not notified at all of the application.

19.  As Hon Colemen J stated under paragraphs 152 to 154 of the judgment of the X, Y and Z case:

“152. It is settled law that natural justice requires all parties to be heard save in the most exceptional circumstances. Such circumstances might be extreme urgency or secrecy.

153. Therefore, ex-parte orders are only made where the situation is of genuine urgency, where there is no time to warn the defendant of what is proposed, or where the purpose of the injunction will or may be frustrated if the defendant is informed of what is proposed.

154. Where an order is improperly obtained ex parte, it can set aside on that ground alone.”

20.  Although Hon Colemen J was referring to an application for an injunction on an ex-parte basis, I cannot see why the same test of “extreme and genuine urgency or secrecy” should not apply to any ex-parte applications.

21.  Rather surprising, the Claimant now raised the Respondent’s threatened defamation proceedings as another reason for urgency (paragraph 65 of the C’s 2^nd Affidavit, Hearing Bundle page 97):

“The other pressure or urgency I faced was in relation to the threatened defamation proceedings against me. I knew that my claim of harassment were true and justified but I was still considering whether or not to initiate proceedings…In fact the threatened defamation proceedings left me with little option but to proceed swiftly.”

22.  Ms. Elizabeth Herbert, counsel for the Claimant (“Ms. Herbert”), elaborated this further during the hearing. She explained that the Respondent would have named the Claimant in the defamation claim rendering the AO meaningless so there was this urgency to make the application before the Respondent initiated the action.

23.  Firstly, this would again only provide a further reason for an urgency. It could hardly be described as a case of such “extreme” urgency that there was no time to notify the Respondent (or Bowers) under the circumstances.

24.  Indeed, if the Claimant was concerned that notifying the Respondent might trigger an immediate defamation action (and thus rendering an AO meaningless), then the proper way would have been an urgent application for an immediate order for an interim AO for both parties, and to seek a return date for substantive arguments both parties. The Claimant has not provided any explanation why she did not do so.

25.  Importantly, one must question why this “further reason for urgency” was not disclosed in the ex-parte application.

26.  Indeed, the Claimant completely failed to disclose all the matters regarding the threatened defamation action and the correspondence between the parties (and/or their respective solicitors).

27.  This is a very serious material non-disclosure: the court might otherwise be alerted to the fact that this was not a simple and straightforward sexual harassment claim and would have considered the implication of the AO to the Respondent in the background of existing allegations of defamation.

28.  I will go into further details of this matter below under “Material non-disclosure”.

Material non-disclosure

29.  Irrespective of whether an ex-parte application was justifiable, given that was the route the Claimant chose to embark upon, she must therefore need to:

“comply with the high duty to make full, fair and accurate disclosure of all material information to the court and to draw the court’s attention to significant factual, legal and procedural aspects of the case” (paragraph 30, Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003)

30.  Although the above quote is from English Practice Guidance, the fundamental principles stated within should also apply in Hong Kong. The Court of Appeal has applied various other paragraphs from such and has stated that:

“the law set out in those paragraphs stated succinctly the fundamental principles which are equally applicable in Hong Kong” (TCWF v LKKS (unreported, CACV 154 & 166/2012, 29 July 2013)

31.  Indeed, there cannot be any dispute as to this duty: it is a “general principle which applies to all applications for relief to be granted on an application made without notice” (Commercial Injunctions 7^th Ed Steven Gee QC 9-001).

32.  Gee further identfies (under paragraph 9-003) the “materiality” which requires disclosure in an ex-parte application,:

“The applicant is permitted to apply without notice only on the basis that he has complied with this duty…governed by the same principles…to act in the utmost degree of good faith. The duty extends to placing before the court all matters which are relevant to the court’s assessment of the application…The test as to materiality is an objective one…it is no excuse for the applicant subsequently to say he was genuinely unaware, or did not believe, that the facts were relevant or important.

All matters which are relevant to the “weighing operation” that the court has to make…must be disclosed. This includes disclosures to the court of matters which are or may be adverse to the applicant.

…

The duty of full and frank disclosure only extends to those issues which can be said to be material to the decision which the judge had to make on the application. Materiality depends on every case on the nature of the application and the matters relevant to be known by the judge when hearing that application…”

33.  Ms. Herbert referred the court to paragraph 14 of the judgment of the L case:

“14. …We recognise that the actions were brought by the plaintiff himself and generally speaking, a plaintiff has to accept the publicity and embarrassment that he may encounter in court proceedings. However, we are satisfied that in the context of the nature of the proceedings brought by the plaintiff, administration of justice is best served by making such an order.” (my underlining)

34.  By this reference, Ms. Herbert argued that “those issues which can be said to be material to the decision which the judge had to make on the application” for an application for an Anonymity Order should only go as far as information concerning “the context of the nature of the proceedings”. As such, since the Claimant has made a disclosure of the “sexual nature” of the proceedings, it should be considered an adequate full and frank disclosure.

35.  In my view, Ms. Herbert has quoted the passage from the L case completely out of context.

36.  In the same judgment, Cheung JA has set out at length (paragraphs 3 to 13) the legal principles for granting an Anonymity Order (similar to paragraph 7 of this Judgment). Paragraph 14 was a conclusion of his considerations of the facts and issues of that case, and he went to explain such considerations in paragraph 15. Cheung JA was clearly not proposing a new legal principle that, somehow, Anonymity Order should be granted by simply looking at “the context of the nature of the proceedings”.

37.  Indeed, if Ms. Herbert was correct, then Anonymity Orders should be granted upon disclosure of any “sexual nature” in a claim. As any sexual harassment proceeding, by definition, must necessarily involve “sexual nature” in the context, the granting of Anonymity Orders must then be almost routine and automatic upon application in all such claims. This is clearly not the law.

38.  Instead, as stated in paragraph 8 above, it is trite that the legal test for granting an Anonymity Order is a “weighing exercise” with many matters for the court to consider.

39.  As such, the most important question to be asked is: has the Claimant discharged her duty of “placing before the court all matters which are relevant to the court’s assessment of the application”?

40.  Firstly, it must be of note that “the test as to materiality is an objective one” and “it is no excuse for the applicant subsequently to say he was genuinely unaware, or did not believe, that the facts were relevant or important”.

41.  As such, the duty placed upon the Claimant was that the material disclosed must be objectively true. The fact that she now admits that she has made a subjectively genuine mistake as to the date of the “Foxglove Incident” means that she has failed this duty even on this very first hurdle.

42.  Further, it is no answer to a complaint of non-disclosure that even if all relevant matters were disclosed, the decision would have been the same (Gee 9-003, Behbehani v Salem [1989] 1 WLR 723). In any case, this defence, even if raised, is not available to the Claimant: if the objective truth was disclosed, the Court would be alerted to the fact that there was no urgency in the application and would not have granted the application.

43.  More importantly, the Claimant is under the duty to disclose “all matters which are relevant to the “weighing operation” that the court has to make” which includes “matters which are or may be adverse to the applicant”.

44.  As such, it is the “high duty” for the Claimant to disclose all matters relevant including matters which may show how and why the application for Anonymity Order might be opposed by the Respondent.

45.  Although the Claimant did exhibit some 112 pages of the WhatsApp records between her and the Respondent, she only directly quoted from records exhibited in reference to her allegations of the Respondent’s “derogatory or disparaging remarks against his female colleagues” (paragraph 16 of C’s 1^st Affidavit, Hearing Bundle A page 10).

46.  Such allegations are clearly not matters relevant to the application for Anonymity Order.

47.  The Respondent in R’s 1^st Affidavit exhibited the entire content of the WhatsApp message. By comparison, it is clear that the Claimant has only exhibited about 50% of the records in the ex-parte application.

48.  The Claimant did quote further WhatsApp messages sent around the time the relationship ended (around 30 December 2022) (paragraphs 48 and 49 of C’s 1^st Affidavit, Hearing Bundle A page 20). She stated that she “attempted to end the relationship amicably” and that “the state of affairs as it was then” was not what she wanted. However, she did not exhibit these WhatsApp messages records: the last message in her exhibit ended with a message at 22:59:14 on 29/12/2022.

49.  Mr. Bartlett questioned that these passages were selectively quoted when the context of the entire conversation was not disclosed.

50.  Mr. Bartlett also took the court through many of such WhatsApp messages in details. I need not repeat the details here. I am not conducting a mini-trial on affidavits. I need not, and should not, make any factual findings at this stage.

51.  However, by my plain reading on the face of these messages within the whole context, I agree with Mr. Bartlett that they appear to show that this was simply a romantic affair, entered into freely and consensually, and it ended by mutual agreement because of various factors (including perhaps a mismatch of expected level of commitments). Importantly, at least on the face of these records, I find no obvious evidence of any accusation of improper conduct of any description by either party.

52.  The Claimant, in C’s 2^nd Affidavit, advanced her own interpretations on these WhatsApp messages.

53.  Again, I need not go into details of the Claimant’s explanations: I need not decide on such interpretations or find facts at this stage.

54.  Instead, the issue here is that the Claimant has failed to draw the attention of the court to these messages which show, at the very least, a prima facie defence against the allegations of sexual harassment and thus an important matter regarding the rights and interests of the Respondent.

55.  This is obviously a very important matter which should be considered by the court in the “weighing exercise” relevant to the application for the AO.

56.  It is no defence to put the burden on the court and claim that many of the WhatsApp messages have been exhibited at the ex-parte application, so the court could have read them and understood the significance. These WhatsApp records alone came to some 112 pages.

57.  As Gee stated under paragraph 9-005:

“It will usually not be a sufficient answer to an allegation of non-disclosure for an applicant to say that the relevant information giving rise to the defence was contained in an exhibit, though not referred to in the body of the affidavit in the context of a possible defence. Exhibits to such affidavits are often voluminous. Because without-notice applications are frequently dealt with comparatively shorty and the judge may not have had the opportunity of considering the papers in details before the hearing, the applicant has the responsibility of ensuring that all relevant points are presented clearly and distinctly…the applicant must “identify the crucial points for and against the application, and not rely on the mere exhibition of numerous documents”…”

58.  A further example of such highly selective disclosure concerns a meeting note of the Law Firm.

59.  According to C’s 1^st Affidavit (paragraph 50, Hearing Bundle A page 20), the Claimant reported the alleged sexual harassment to her supervisor at the Law Firm who then arranged a meeting for her with the Respondent’s supervisor (“R’s Supervisor”) and the senior partner of the Law Firm.

60.  There was then a second meeting between the Claimant and R’s Supervisor on 22 February 2023 during which (paragraph 54 of C’s 1^st Affidavit, Hearing Bundle A page 21):

“…I was told by her that she reprimanded the…Respondent, and he promised not to repeat this. A note of this meeting is at exhibit…”

61.  The meeting note of this second meeting (“the Meeting Note”) was, indeed, exhibited by the Claimant in the ex-parte application (Hearing Bundle B1 pages 305-306).

62.  Mr. Bartlett drew the court’s attention to paragraphs 2 and 8 of the Meeting Note:

“2. (R’s supervisor) recapped the conversation she had with (the Claimant) on 13 Jan 2023 in which she advised (the Claimant) that based on the information available, there were insufficient evidence or grounds to support the claim for sexual harassment. However, (the Respondent) was reprimanded and he promised to never do this again. (The Claimant) confirmed her understanding and agreement to the firm’s conclusion.

…

8. …(The Claimant) indicated that from the advice she got, she has a plausible civil claim against (the Respondent) but not criminal as the relationship is likely considered to be consensual. By passing (the Claimant) admitted that she was probably about 20% responsible for this for being naïve.”

63.  The Meeting Note was “acknowledged and agreed as an accurate record” by the Claimant who signed underneath this statement and dated 23 February 2023 (Hearing Bundle B1 page 306).

64.  Therefore, the Meeting Note recorded that, during this meeting, the Claimant has “confirmed her understanding and agreement” to the Law Firm’s “conclusion” that “based on the information available, there were insufficient evidence or grounds to support the claim for sexual harassment”. The Claimant has also indicated that she has received advice that “the relationship is likely considered to be consensual”.

65.  Clearly, in the ex-parte application, the Claimant has selectively referred to just one sentence (regarding the “reprimand” and “promise”) in paragraph 2 of the Meeting Note. Although she has exhibited the entire Meeting Note, she did not draw the court’s attention to what was written before or after that sentence, and there was no mention of paragraph 8 at all.

66.  The Claimant now sought to explain (paragraph 7, 17 and 36 of C’s 2^nd Affidavit, Hearing Bundle A page 71, 75 and 36) that signing the Meeting Note did not “equate to an agreement” with the Law Firm’s conclusion: it was only a confirmation of what R’s Supervisor said during the meeting. In fact, she disagrees with the conclusion.

67.  I need not, at this stage, decide on the credibility of such an explanation. It does not matter what the Claimant now claims is her interpretation of the Meeting Note. It also does not matter that she may explain that she has not draw the court attention to those passages because she believes that this is irrelevant or not important.

68.  These are, taken to the highest, her subjective views and beliefs.

69.  As stated above, “the test as to materiality is an objective one” and “it is no excuse for the applicant subsequently to say he was genuinely unaware, or did not believe, that the facts were relevant or important”.

70.  Objectively, the Law Firm’s conclusion (amongst others) as recorded in the Meeting Note was clearly very relevant to the application for Anonymity Order and should be considered by the court in the “weighing exercise”.

71.  The very least that the Claimant should have done was to draw the court’s attention to these passages and provided her own explanations as to the meaning and interpretation of such at the time of the ex-parte application. The Claimant has clearly completely failed to discharge her “high duty to make full, fair and accurate disclosure”.

72.  Indeed, it would be hard to imagine how the Claimant would have disclosed one sentence in the middle of a paragraph in the Meeting Note but somehow failed to notice what was stated before and after that sentence. After all, she herself has attended that meeting after which she signed the Meeting Note.

73.  As such, I see some force in Mr. Bartlett’s argument that this went beyond a simple failure of material non-disclosure, but was a deliberate attempt to mislead the court.

74.  In passing, I note that Mr. Bartlett also raised “perjury” as a ground to set aside. As stated above, I should not, and need not, make any factual findings at this stage, so I am not in the position to find perjury nor consider it in the “weighing exercise”.

75.  Another serious material non-disclosure, which I have briefly touched upon above, concerns the threatened defamation action.

76.  According to paragraphs 27 to 33 of R’s 1^st Affidavit (Hearing Bundle A pages 42-43):

a.  between 4 April and 10 August 2023, the Claimant has used “an anonymous email address” to publish (allegedly) “untrue and defamatory statement” about the Respondent to at least two barrister chambers and a law firm;

b.  The Respondent instructed Bowers to send a letter before action to the Claimant on 30 August 2023 “demanding, amongst other things, that the Claimant should sign and return the enclosed letters of retraction and an undertaking bot to repeat the defamatory statements that she had made, in default of which” the Respondent threatened defamation proceedings;

c.  There were replies from the Claimant and then her solicitors, Hugill & Ip (“H&I”). On 26 September 2023, H&I wrote to Bower setting out various allegations of sexual harassment against the Respondent but without admission or denial that the Claimant had sent the said emails; and

d.  On 3 October 2023, the Claimant took out the ex-parte application for the AO supported by C’s 1^st Affidavit without notice to the Respondent nor his solicitors.

77.  The Claimant has now admitted that she was the author of the said anonymous emails (paragraph 24 of C’s 2^nd Affidavit, Hearing Bundle A page 78):

“Regarding the emails….whilst I was the one who sent the emails, I deny that they defamatory or libellous in any way; the contents of the emails present the truth…”

78.  I need not be concerned with whether the contents of the emails are defamatory or not: the issue here is (as discussed before) that none of these hugely relevant material matters was disclosed before the court at the ex-parte application.

79.  Clearly, the Claimant has all along knew that she has sent out anonymous emails which the Respondent alleged to be defamatory, and she was aware that the Respondent has threatened defamatory proceedings.

80.  Objectively, these are important matters that the court must consider in granting an Anonymity Order: these are evidence adverse to the application which concerns the interests of the Respondent. The Respondent would no doubt object to the application because he would surely raise that granting of the AO for the benefit of the Claimant alone would be a further defamatory attack on him, now with likely even greater publication by public accessible court documents like the Notice of Claim.

81.  The Claimant did not disclose such matters at all and has not alerted the court as to the potential publicity impact of an Anonymity Order which only protected her own identity against the background of a threatened defamatory action. She also has not, as stated above, sought an interim Anonymity Order covering both parties pending an inter-partes hearing.

82.  I find such failures to be very serious material non-disclosure. Indeed, one might find merit in Mr. Bartlett’s submission that these constitute an abuse of process in which the court process was hijacked as means to further publicise her allegations against the Respondent, now with the Claimant hiding behind the shield of anonymity.

83.  To recap the question in paragraph 39 above: has the Claimant discharged her duty of placing before the court all matters which are relevant to the court’s assessment of the application? The answer is clearly a resounding “no”.

Honesty of litigants

84.  I would also agree with Mr. Bartlett’s observation that open justice more ably promotes honesty on the part of the litigants. The case clearly involves substantial factual disputes, and with professional reputations, amongst others, at stake.

85.  Therefore, a consideration in the “weighing exercise” must be whether one litigant should be allowed to hide behind the shield of anonymity.

The medical reports

86.  The Claimant has exhibited two medical reports: one in support of her ex-parte application (“Dr. Pak’s Report”) and a second one in the current set-aside application (“Dr. Lam’s Report”).

87.  In C’s 1^st Affidavit, under paragraph 53 (Hearing Bundle A page 21), the Claimant stated:

“On 9 January 2023 I consulted Dr. Pak Yu Ting…Dr. Pak’s note of my consultation with her (dated 11 September 2023) is at exhibit…Dr. Pak observed that I was suffering from mood symptoms including excessive worries, anxious ruminations, low mood, increased restless, difficulty resting, feelings of guilt and self-blame…I continue to seek professional counselling and therapy on a regular basis due to the emotional trauma and distress that I have suffered.”

88.  I note that Dr. Pak’s Report dated 11 September 2023 (Hearing Bundle B1 page 303) only mentioned one consultation on 9 January 2023.

89.  Indeed, the information provided in Dr. Pak’s Report appeared to come from just one consultation. For example, the penultimate paragraph stated:

“Mental state examination on that day….She was noted as tearful throughout the session.” (my underlining)

90.  The report does not mention any further consultation, session, examination, professional counselling or therapy with Dr. Pak after 9 January 2023.

91.  Incidentally, it would appear from the report that “Dr. Pak” is not a medical doctor. She is a counsellor with a BA in Psychology and a Master of Arts on Counselling Psychology etc.. In fact, it appears that she is not addressing herself as “Dr.” at all, but this is minor matter.

92.  In C’s 2^nd Affidavit, made in opposition to the current set aside application, it was stated under paragraph 62 (Hearing Bundle page 92-97):

“…as a result of my ordeal, I have had to seek professional therapy and psychiatry…There is now produced and show to me…a copy of the psychiatric report of Dr. Lam Chun dated 17 November 2023. The only reason why I did not seek psychiatric assistance earlier was because I was unaware that it was covered under (the Law Firm’s) health insurance policy, and to do so out of private funding would have been prohibitively expensive…”

93.  Dr. Lam’s Report (Hearing Bundle B3 pages 713-720) is dated 17 November 2023. He is indeed a psychiatrist (thus a specialist medical doctor) and stated that the first presentation was 31 October 2023 (with follow-ups on 7, 9, 10, and 14 November 2023). There was a mention of a further follow-up scheduled on 23 November 2023 which presumably the Claimant did attend because the photographs of her prescription of various psychiatric medications (Hearing Bundle B3 p. 721) showed the date of dispensing: “23/11/2023”.

94.  Dr. Lam only mentioned one occasion that the Claimant has seen a psychologist (presumably “Dr.” Pak) for counselling “in or around January 2023” and that the Claimant has attempted “art therapy”.

95.  I also note that Dr. Lam referred to the Claimant as “the female victim” or “the victim” throughout the report. Further, the vast majority of the report (from the bottom of Hearing Bundle B3 page 713 to the top of page 718) was substantially a recital of the subjective history provided by the Claimant.

96.  From this history, Dr. Lam opined that:

“…Should she be stripped of her anonymity as a victim, I fear for her life a treating doctor…As such, I respectfully request the court’s leniency and protection in the matter, and to allow the victim to remain anonymous as she has already been irreversibly and irrevocably violated by this traumatic incident carried out over a period of years at the hands of the defendant…”

97.  I am somewhat troubled by this opinion.

98.  Firstly, as Mr. Bartlett rightly submitted, Dr. Lam was giving a quasi-opinion on law: in effect, the court was “requested” not to apply the appropriate legal principles in these proceedings but simply find for the Claimant because of her (alleged) medical condition. Dr. Lam has clearly overstepped his role.

99.  Secondly, Mr. Bartlett also questioned the timing of this consultation.

100.  It would appear that the Claimant consulted Dr. Pak only once in January 2023 and did not return to see her at all. Then, some 9 months later, she consulted Dr. Lam on 31 October 2023. This was exactly 4 days after the Respondent took out the current set aside application.

101.  Mr. Bartlett questioned whether this consultation was merely the Claimant’s tactical move to counter the application instead of her having any genuine medical need.

102.  As stated above, the Claimant has explained this apparent delay in seeking psychiatric in her affidavit:

“The only reason why I did not seek psychiatric assistance earlier was because I was unaware that it was covered under (the Law Firm’s) health insurance policy, and to do so out of private funding would have been prohibitively expensive.”

103.  However, this explanation was inconsistent with what Dr. Lam stated as the reason for her “late” presentation at his clinic (Hearing Bundle B3, page 718):

“In or around October 2023, the victim’s physical condition worsened and she had to be admitted to Hospital for surgical removal…This caused a severe plummet in the victim’s mood for several reasons…made her re-live the atrocity and re-experience the helplessness. She felt violated all over again…She developed suicidal ideations again as a result.

The above incident led her new presentation to my psychiatric clinic around a week later…”

104.  The Claimant claimed under oath that the “only” reason for the delay was a “funding” problem, but it would appear that she told Dr. Lam a completely different reason: a “severe plummet of mood” due to surgery.

105.  Dr. Lam also reported that since late-November 2022, the Claimant has already been suffering from symptoms like “self-mutilating behaviour…which often leave wounds on her body for days” and “suicidal ideations and plans of jumping from height” etc. (Hearing Bundle B3, page 716)

106.  However, there was no mention of such alarming symptoms when Dr. Pak saw the Claimant on 9 January 2023. This date was within 1-2 months of such symptoms allegedly arising but Dr. Pak only recorded:

“…excessive worries, anxious ruminations, low mood, increased restless…”

107.  I found that surprising.

108.  Indeed, if the Claimant was suicidal to the extent that she has plans to jump from height, one might question why “funding” a private psychiatrist would be such a problem that caused some 9 months (or almost 1 year, according to the date when the symptoms allegedly first occurred) of delay. She was working as a lawyer after all. Alternatively, there are plenty of psychiatrists in the public sector. There was no evidence that she had ever attempted to arrange for such.

109.  Further, if the Claimant has actually disclosed to her husband (around or after early-December 2022 according to Dr. Lam’s Report, Hearing Bundle B3, page 716) that she was suicidal with plans to jump from height, this would have been a dire emergency.

110.  Instead of worrying about “funding”, one would reasonably expect the husband to take her immediately to an Accident and Emergency Department in the nearest hospital where she would likely have an urgent assessment by a psychiatrist. There would likely be nominal hospital fees charged by the Hospital Authority. Of course, there was no evidence of any such attendance.

111.  As such, the medical history recorded by Dr. Pak and Dr. Lam and the Claimant’s explanations do not appear to make much sense when read together.

112.  Thirdly, I note that there was no mention that any contemporaneous documents (e.g. the WhatsApp messages, the Meeting Note) were disclosed to Dr. Lam.

113.  Instead, Dr. Lam has addressed the Claimant as “the victim” right from the beginning of the report. Further, he has, at great lengths, recited the version of events given by the Claimant without question.

114.  These are clear indications that Dr. Lam has already taken to believe that the history provided by the Claimant was entirely truthful (without, as it appears, benefit of any contemporaneous documents on the events). He has clearly based his opinion on that belief: the “request for the court’s leniency and protection” towards the Claimant was based upon “this traumatic incident carried out over a period of years at the hands of the defendant”.

115.  In passing, I also note that the Claimant appeared to have failed to disclose to Dr. Lam the anonymous emails she has sent.

116.  One wonders how this missing history may affect Dr. Lam’s diagnosis of Post-Traumatic Stress Disorder. Dr. Lam Report documented rather severe avoidance behaviours (e.g. the Claimant allegedly could not even be “in the vicinity” of the defendant’s old room and “suffered from panic attacks” and “need to remove herself from the scene” during meetings in the same meeting rooms etc., Hearing Bundle B3, page 717). One would imagine that writing such anonymous emails would necessarily require the Claimant to be reminded of such traumatic incidents.

117.  As I have observed in previous occasions, the medical history given by a patient to a doctor should not be treated the same as evidence given under oath and cross-examined in court. The finding of facts is the role of the court and not the treating doctor (nor the independent medical experts).

118.  This may be even more relevant for psychiatric opinions because, as I understand, the basis of diagnosis in psychiatric illnesses may often rely substantially on subjective medical history. There may be very few, if any, objective investigations (e.g. X-rays, MRI scans, blood tests), which may help confirm such a diagnosis. Indeed, I note that Dr. Lam did not report the use of any objective investigations in arriving at his opinion.

119.  I am of the view that, in general, whenever a medical opinion is entirely or substantially based upon, or at least significantly affected by, elements in the subjective medical history, the court should only consider such opinion after the due process of fact-finding exercise at trial has confirmed the truthfulness of that medical history.

120.  This consideration is even more important in the current case given that, as stated above, there are clearly substantial disputes in facts.

121.  Of course, I am not conducting a mini-trial on affidavits so I am not making any factual findings at this stage. Suffice to say, in view of the many questions raised above, I cannot see why the court should place any weight on Dr. Lam’s and Dr. Pak’s reports and opinion at this stage.

122.  I note in passing that the Respondent has also exhibited a medical report but the doctor was not seeking to “request” for the court’s decision in one way or another. In any case, I will similarly not place any weight on it at this stage.

Other considerations

123.  Mr. Bartlett also submitted that the existence of the AO is now rendered nugatory because the Claimant’s identity has already been disclosed and widely discussed and disseminated in online social media.

124.  In particular, COL’s Affirmation exhibited a screenshot as of 12 October 2023 of a comment posted on 11 October 2023 containing a photograph of the Claimant on an online forum. I also note the evidence in KRB’s Affidavit which essentially suggests that one may be able to work out the identity of the Claimant from some knowledge of the details of the case and information available online.

125.  I do not agree that such is enough to rendered the AO nugatory. Being able to identify a person by conducting internet research, as I understand, can often be done without much difficulties in this age of internet and social media. But this is very different from the identity having received “substantial publicity” with “the name already in the public domain” (R v Westminster City Council, ex-parte Castelli & Anor [1996] 1 FLR 534).

126.  In the “weighing exercise”, I have also re-considered the Claimant’s interests as stated in the original ex-parte applications (see paragraph 2 above).

127.  However, two of the Claimant’s grounds: namely, that evidence to be disclosed being “highly detailed in terms of the acts of sexual harassment” which would be “widely reported and / or circulated in the mainstream media” and implications to the Claimant’s reputation at her work place (as stated in paragraphs 2(a) and (c) above) are simply arguments for protecting privacy, avoiding publicity of litigation leading to embarrassment, inconvenience, professional embarrassment (and possible damage to professional reputation).

128.  As stated in paragraph 10 above, the court should not grant anonymity orders on such arguments alone by themselves.

129.  As for the grounds of privacy to the Claimant’s family and young child (e.g. “constantly approached by the press”) (as stated in paragraph 2 (b) above), this again would be a protection of privacy and avoiding inconvenience matter.

130.  The Claimant’s husband and (especially) her child were not directly involved in these alleged events at all. I cannot see any relevance of any of their personal information in the proceedings. Indeed, I cannot see how the child’s life or welfare may be “injured” if the Claimant’s name is made known.

131.  As for the grounds regarding social stigma attached to the HPV infection (paragraph 2(d) above), I note that the courts have not recognised, subject to exceptional circumstances, embarrassment or other inhibitions arising out of medical conditions as justifying anonymity (R v Westminster City Council, ex-parte Castelli & Anor [1996] 1 FLR 534).

132.  Further, I note the unchallenged evidence (from an article titled “Let’s talk about HPV: 6 common questions answered” by Karis Betts, Senior Health Information manager at Cancer Research UK exhibited as SM-8 by the Respondent, Hearing Bundle B3 page 450-454) that HPV is a really common virus and most people will have it at some point in their lifetime, and that is why the article advised taking HPV vaccinations and cervical screening against cervical cancer.

133.  Suffering from HPV infection cannot be considered an exceptional circumstance. As such, I would think that any “adverse public reaction” and “social stigma” attached to such infection should be relatively small.

134.  As a passing comment, without expert evidence, I cannot not resolve the dispute about the source of the infection, and I don’t need to do so at this stage.

135.  Ms. Herbert also argued that discharging the AO would not help the Respondent since his name was already out in the open, and he could clear his name if he would eventually win the case. I hardly think this should be a consideration: I agree with Mr. Bartlett that the Claimant should not be allowed to reap the benefit of the AO if the court finds that it was improperly obtained.

136.  Other arguments are also raised. I will not go into each of them. Suffice to say that I have considered all matters raised.

Events subsequent to the hearing on 12 January 2024

137.  After the substantive hearing was concluded, H&I took out a Summons on 29 January 2024 for leave to adduce an Affirmation of Hugill, Adam Scott (“ASH”) dated 29 January 2023 and documents exhibited (“ASH’s 1^st Affirmation”) as evidence for the purposes of the current application.

138.  Bowers did not oppose to this summons for the sake of saving time and costs but proposed further directions including leave for the Respondent to file and serve affidavit in response.

139.  On 5 February 2024, the court granted an order in accordance to Bowers’ proposed directions. And the Respondent subsequently filed and served a 3^rd Affidavit on 9 February 2024 (“R’s 3^rd Affidavit”)

140.  I will now consider such evidence.

141.  ASH’s 1^st Affirmation stated that 4 emails were sent to various persons on 27 January 2024 (some 15 days after the hearing for the current application), apparently by a person adopting the name of “Rurik Chan” (exhibited as ASH-2).

142.  All four emails contain long and somewhat random rantings on various matters in the current case. I will only summarise the contents.

143.  The first email appears to be sent to the Claimant and a lawyer from the Law Firm and also ASH, and copied to various lawyers and media organisations. This email raised various criticisms against a certain law firm for “failing to stand up” for the Respondent etc. It also attached two photographs of the Claimant.

144.  The second email, sent to the Claimant and copied to various lawyers, appears to raise criticisms against the Claimant and contained some vague threats like “You are now my target for as long as you live” and “You will not be safe” etc.

145.  The third email, again sent to the Claimant and ASH but also to Bowers and copied to various other lawyers, appears to be addressing the Respondent directly. The content appears to provide some observations and advice to the Respondent.

146.  The fourth email, addressed to the Managing Partner of the Law Firm and copied to various lawyers seems to be ranting on criticisms against the Claimant and H&I.

147.  ASH also raised concern whether the person, by using the name “Rurik”, which apparently was also the name of a convicted murderer, was “to instil additional fear and intimidation” when making such threats. In any case, the Claimant has made a police report on the matter on 27 January 2024 (ASH-2).

148.  I am of the view that whether the emails are genuine and constitute any crimes are matters for the police to investigate and not a matter for this court.

149.  Nevertheless, on the assumption that these emails are genuine, the only relevance of such to the current application is that they confirm my view (as stated above) that in the age of internet and social media, it is not difficult to identify a person (or at least the person’s email contacts) by conducting internet research.

150.  Indeed, these emails illustrate that an Anonymity Order would not afford any reliable protection in such respect in this day and age. Seeking police assistance, as the Claimant has done, is the proper way. I am sure that the police would be investigating the matter and providing any necessary advice to her.

Conclusion

151.  In view of the above considerations, in particular the concern with the lack of justification of the ex-parte application and the very serious material non-disclosure, I am of the view that the “weighing exercise” is firmly on the side of the Respondent, so I think this Anonymity Order should be set aside.

152.  However, in view of the “no-return” nature of the set aside order, I am prepared allow an appropriate time-frame for such order to be activated pending any further application.

153.  As for costs, I am aware of the usual provision that each party bear its own costs in proceedings under the Sex Discrimination Ordinance (Cap. 480) (District Court Ordinance section 73B (3), Cap.336). However, I think this matter concerns “special circumstances” in view of the above-mentioned concern about the conduct of the ex-parte application brought by the Claimant. Pending any application to vary the cost order nisi, I would make an award for costs in favour of the Respondent on an indemnity basis.

154.  I will therefore make the following orders:

a.  The ex-parte Order of this court made under DCZZ 8/2023 dated 4 October 2023 be set aside or discharge after 14 days from the date of this Decision; and

b.  There be a costs order nisi for costs of this application be to the Respondent to be taxed on an indemnity basis with Certificate for Senior Counsel.

A further matter

155.  After obtaining the AO, H&I has written to Bowers on 11 October 2023 (Hearing Bundle B2 page 428) enclosing the AO and stating:

“…should your client commence his threatened defamation proceedings against our client (“Threatened Proceedings”) it is most likely that you/your client will be in breach (which directly or indirectly) of the Anonymity Order, given that the two proceedings rely on the same factual matrix and, should those facts be made available to the public during the course of the Threatened Proceedings, members of the pubic would have little difficulty identifying our client as the Claimant in the DCEO proceedings.”

156.  H&I then proposed that if the Respondent would proceed in the defamation action, the Claimant would consent for an anonymity order to be made in her favour in that action too.

157.  During the hearing, Mr. Bartlett raised the question whether the AO (in particular the wordings used) meant that the Respondent (and his solicitors) would be stifled in naming the Claimant in a defamation action or risk a breach of a court order.

158.  I think this matter is not relevant to the current application and in any case, premature: the Respondent has yet to commence any defamation action or make any application in that action regarding the issue. In any case, my decision in this application is to set aside the AO.