LAM HO YIN v. LI MING KEE AND OTHERS

DCEO 5/2024

[2024] HKDC 1927

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 5 OF 2024

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DECISION

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1.  There are two applications before this court on 19 September 2024:

a.  A summons to apply for an anonymity order taken out by the claimant dated 24 July 2024 (the “Anonymity Summons”);

b.  A summons to amend the Notice of Claims by, inter alia, adding the Fifth Respondent etc. taken out by the claimant on 6 August 2024 (the “Amendment Summons”)

The Amendment Summons

2.  As for this summons, no objection is raised by 1^st , 2^nd, 3^rd and 4^th respondents so has already an order in terms of the summons, including the order for the costs of the application be reserved (according to paragraph 6 of the Amendment Summons).

The Anonymity Summons

3.  The following is the decision on the Anonymity Summons.

Legal Principle

4.  This court has sum up the applicable legal principles on anonymity orders recently in the case of X v Mariani, Stefano [2024] HKDC 636, as follows:

“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)”

Background

5.  At the material time, the claimant was employed by the Government as an Assistant Trade Officer in the Strategic Trade Controls Branch of the Trade and Industry Department.

6.  The 1^st and 2^nd respondents were responsible for conducting the claimant’s performance appraisals and the claimant did not agree with the assessment for the period from 1 July 2022 to 31 December 2022.

7.  He filed an appeal before the 3^rd and 4^th respondents who considered that the assessment was “generally of consistent reporting standard”, save some adjustments.

8.  On 24 March 2023, the claimant first informed the 1^st and 2^nd respondents that he had been ill from 1 January 2023 and that he “might have been suffering from psychiatric disorder”.

9.  On 6 April 2023, the claimant lodged a complaint with the Equal Opportunities Commission (“EOC”) against the respondents alleging “various direct and indirect discrimination acts by different parties.”

10.  On 14 April 2023, the claimant informed the 3^rd and 4^th respondents that he had been diagnosed with having adjustment disorder

11.  On 28 April 2023, the claimant informed the 3^rd and 4^th respondents that he had been diagnosed with autism spectrum disorder (“ASD”).

12.  On 11 September 2023, the EOC discontinued its investigation into the claimant’s complaint pursuant to section 80(4)(e) of the Disability Discrimination Ordinance (Cap 487).

13.  On 20 September 2023, the claimant informed the 3^rd and 4^th respondents that he had (or “impressed to have” according to the attending clinical psychologist) obsessive-compulsive disorder traits (“OCD traits”) and ASD traits.

Considerations

14.  In considering the “weighing exercise” as above, the starting point is that the fundamental rule of open justice.

Substantive dispute in facts

15.  One important factor is that “open justice more ably promotes honesty on the part of the litigants” and “therefore, a consideration in the “weighing exercise” must be whether one litigant should be allowed to hide behind the shield of anonymity” (as per the Mariani case).

16.  I can see substantial dispute in facts in this case: the claimant’s case, in short, is that the respondents recognised the claimant’s manifestations of ASD and OCD in second half of 2022 but had conducted acts of disability discrimination as demonstrated in a letter and two appraisal reports as well as in incidents after such reports.

17.  On the other hand, the respondent’s defence is that, in short, the claimant demonstrated a decline in work performance since the first half of 2022 and his persistent substandard performance raised issues as to whether he could fulfil the inherent requirements of his job.

18.  As such, the crux of the argument is whether the appraisal assessments etc. were genuine and justifiable by facts and were not mere smokescreens to cover any unequal treatments. I might therefore anticipate substantive dispute in facts.

19.  The claimant has raised an argument that an anonymity order would not prejudice the respondents’ positions.

20.  I do not agree: in a case with potentially substantive disputes in facts, allowing one litigant to hide under the cloak of anonymity would seriously prejudice those who could not.

Social stigma

21.  The argument raised by the claimant is that disclosing such mental disability would attract a social stigma which would have a negative effect on his employment and social life.

22.  However, the claimant also admitted that he now suffered no discrimination because his new supervisor was accommodating, but if he needed to find a new job, it would be more difficult because of the social stigma.

23.  It would appear that the evidence produced by the claimant so far merely showed that the clinical psychologist had “impressions” that the claimant had certain personality “traits”.

24.  It is arguable that this may not amount to a “psychiatric disorder” (as the claimant alleged) or even a “medical condition”. The claimant was seen by clinical psychologists (who are not medical doctors) who would attend to psychological complaints like coping with stress and adverse personality traits.

25.  There is clearly a whole spectrum of “mental problems”. I am not convinced that there is evidence to show that there is any “psychiatric disorder” in this case. Otherwise, I would expect that the claimant would be referred to a psychiatrist (a medical doctor who might prescribe medications). Under those circumstances, one might arguably be able to put forward a stronger case of the risk of social stigma.

26.  In any event, even if this can be considered a “medical condition”, the mere risk of social stigma might not be enough:

“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 p Castelli & Another [1996] 1 FLR 534)

27.  The claimant argued that social stigma would cause social embarrassment and speculate that there might be difficulties in finding work if he needed to do so in the future.

28.  I cannot see social embarrassment and possible damage to professional reputation as exceptional circumstances. The evidence and arguments produced by the claimant clearly do not meet the cogent standard that justify a derogation from general principle.

Other arguments

29.  There has been some arguments surrounding a research article called “Study on Perceptions of Stigmatization and Discrimination of Persons with Mental Illness in the Workplace”.

30.  I do not find such research paper useful since the legal test should be conducted as a weighing exercise looking at the circumstances of that particular case. Statistics based on survey of the attitudes of the general public etc. are clearly not applicable to the legal test.

Claimant’s letter to the court dated 11 November 2024

31.  Some two months after the hearing and before the handing down of this decision, the claimant wrote to the court in an attempt to submit further evidence in support for his Anonymity Summons.

32.  I am of the view that this is entirely inappropriate and the court should not consider such evidence.

33.  In any case, such evidence only concerns whether he now agrees that he has not suffered from discrimination at his current work (see paragraph 22 above).

34.  This is not relevant to my consideration.

35.  In paragraphs 23 to 28 above, I have already addressed whether the claimant’s alleged condition should amount to a “psychiatric disorder” or “medical condition” in the circumstances, and further, even if such might cause any social embarrassment and possible damage to professional reputation, whether this should be regarded as “exceptional circumstances” in this case.

Conclusion

36.  In view of the above considerations, I would therefore dismiss the Anonymity Summons with costs reserved.