SIR ELLY KADOORIE & SONS LTD (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS) v. SAMANTHA JANE BRADLEY

HCA 518/2022

[2023] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 518 OF 2022

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DECISION

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INTRODUCTION

1.  This action is founded on the tort of harassment and has been commenced by the plaintiff (“SEKSL”)  (a corporate entity)  as a representative action for and on behalf of itself, its current and former officers, employees and agents, including its legal representatives, Messrs. Simmons & Simmons (“S&S”)  (collectively, “the Representees”).

2.  This Decision will deal with two summonses:

(1)  The Amended Summons filed by the defendant on 3 February 2023 (“the First Summons”)[1] pursuant to Order 14A rule 1 and Order 18 rule 19(1)(a)  of the Rules of the High Court (Cap. 4A, Laws of Hong Kong)  (“RHC”), for:

(a)  a declaration that, as a matter of law, a corporate entity has no cause of action against a person under the tort of harassment and, as a consequence:

(i)  SEKSL’s claims for injunctive relief and/or damages be dismissed; and

(ii)  SEKSL has no locus standi as plaintiff to represent the Representees and that the action herein be dismissed.

(b)  alternatively, if SEKSL is permitted to proceed to act as the representative plaintiff in this action, an order that the claims of all the Representees, except those of John Andrew Harry Leigh (“Mr Leigh”), be struck out on the grounds that, on the pleaded facts in the Statement of Claim, they have no common interest and/or cause of action against the defendant.

(2)  The Summons taken out by the defendant on 8 September 2022 (“the Second Summons”)  pursuant to, inter alia, Order 15 rule 12(1)  and Order 18 rule 19(1)(b)  to (d)  of the RHC, for an order that:

(1)  the Writ and Statement of Claim herein be struck out and the action dismissed on the grounds that it is scandalous, frivolous or vexatious, or it may prejudice or embarrass the fair trial of the action, or it is otherwise an abuse of process of the court;

(2)  alternatively, this action be stayed pending the conclusion of ongoing criminal and regulatory investigations of SEKSL and any of the Representees;

(3)  alternatively, SEKSL be prohibited from continuing this action as a representative action.

LEGAL PRINCIPLES ON PROCEDURAL MATTERS

3.  As various applications have been made by virtue of the two summonses before this Court, it may be more convenient to set out the legal principles applicable to the procedural matters involved at one go before I deal with those applications separately.

Striking out

4.  Au-Yeung J has helpfully summarised the relevant principles applicable to a striking out application in Sealegend Holdings Ltd v China Taiping Insurance (HK)  Co Ltd (HCAJ 95/2012, unreported, 24 October 2014), which I would adopt as follows:

“24. The court may, either of its own motion or on application, at any stage of the proceedings order to be struck out any claim on the basis, amongst others, that it is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the court: Order 18, rule 19(1)(b)  and (d).

25. A proceeding is frivolous when it is incapable of reasoned argument, without foundation or cannot possibly succeed. A proceeding is vexatious when it is oppressive or lacks bona fides. The expression ‘frivolous or vexatious’ includes proceedings which are an abuse of the process: Hong Kong Civil Procedure 2014, §18/19/8.

26. An ‘abuse of the process of the court’ connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery, and will, in a proper case (eg where an action is absolutely groundless or time-barred)  summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation: Hong Kong Civil Procedure 2014, §18/19/10.

27. The court has inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or ‘hopeless’ in the sense of being bound to fail: Hong Kong Civil Procedure 2014, §18/19/12, 16 and 21.

28. There should be no trial on affidavit. Disputed facts are to be taken in favour of the party whose pleading is under attack. See Hong Kong Civil Procedure 2014, at §18/19/4, paragraph (1).

29. The power to strike out should only be exercised in plain and obvious cases where the claim is obviously unsustainable. A claim must be so obviously unsustainable, the pleading unarguably bad, and it must be impossible, not just improbable, for the claim to succeed before the Court would strike it out. That a case may be weak and unlikely to succeed is no ground for striking it out. See Hong Kong Civil Procedure 2014, at §18/19/4, paragraph (1).

30. Strike out is not justified merely because the story told is highly improbable, and one which it is difficult to believe would be proved. A party’s claim or defence would be struck out only if it is a sham so that to rely on it must be an abuse of the process of the court. Even if one side has a ‘formidable case’, it does not mean that the other has no case. See Hutchvision Asia Ltd v Asia Television Ltd, HCA 6757/1992, 8 September 1993, per Godfrey J (as he then was), p6.

‘But any lawyer with any experience of private practice will be able to remember, only too well, those cases which appeared to be certainties but which, to his surprise, nevertheless failed and, by the same token, those cases which seemed bound to fail but which, to his surprise, nevertheless succeeded. It is for just this reason that the court will not embark, at this stage of an action, on a consideration whether the case of one side or the other is true or false. It will consider only whether the nature of the defence is such that it has to be characterised as an abuse of the process of the court, which is something else altogether.’

31. Where a party seeks to strike out another’s case as unsustainable, he will have to show the other party’s case to be ‘wholly imaginary, a myth or not bona fide’: Overseas Trust Bank Ltd v Coopers & Lybrand & Ors, CACV 109/1989, Fuad VP, 15 December 1989, p15.

32.  It is not sufficient to adduce evidence that is relevant for consideration.  The lack of proper explanation from the party whose pleading is sought to be struck out is not enough.  See Viva Steamship Co Ltd v Chow Lim Choy & Ors [2003] 1 HKLRD 663 (CA), at §11.”

Order 14A

5.  In Shell Hong Kong Limited v Yeung Wai Man Kiu Yip Company Limited [2003] 3 HKLRD 62, Chan PJ examined the nature of the Order 14A procedure as follows:

“20. The Order 14A procedure was first introduced in England in 1991 and in Hong Kong in 1992. The underlying policy of this Order is, as the Supreme Court Practice 1993 described, ‘to accelerate the final judicial disposal of an action at the interlocutory stage and thereby save the expense and delay which would otherwise arise not only if the action were to proceed to a full trial but also if the parties would be required to undertake the necessary pre-trial steps to prepare for such trial.’ Vol. 1 para. 14A/1-2/1, p. 175.

21. For the purpose of this appeal, I need only refer to the main provision in Order 14A rule 1(1)  which provides:

‘(1)  The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that –

(a)  such question is suitable for determination without a full trial of the action; and

(b)  such determination will finally determine (subject only to any possible appeal)  the entire cause or matter or any claim or issue therein.’

22. This rule may be invoked for a determination of a question of law or construction of any document by the court, provided that the two conditions in (a)  and (b)  above are fulfilled. The parties must either have consented to adopt such a procedure or have had the opportunity to be heard. Order 14A rule 1(3).

23. In cases which involve the determination only of a question of law or the construction of a document or where the whole case largely depends on the resolution of a question of law or the construction of a document, the Order 14A procedure is often adopted to put an early end to the entire case. However, it can be seen that under the condition in (b), this procedure can be invoked for the purpose of finally determining not only the entire cause or matter but also ‘any claim or issue’ in the cause or matter. It is not necessary for the making of an application under Order 14A that the determination of a question of law or construction of any document would finally determine the whole action. Such a requirement would be wrong as a matter of ‘interpretation of the order and as an exercise of discretion’. See Leggatt LJ in Korso Finance Establishment Anstalt v. Wedge & others, unreported, February 15, 1994, CA Transcript, at p.7 (in which it was held that an issue of construction was still suitable for determination under Order 14A even though a determination of this issue would not finally determine the entire action between the parties). It is sufficient if an issue in the case can be disposed of using such procedure. However, it is not contemplated that the parties would submit a trivial matter for determination under Order 14A. This would not only be contrary to the spirit and purpose of this procedure, but may also lead to possible abuse, resulting in unnecessary expense and delay and wastage of judicial time. No judge would accede to that sort of request or application in the proper exercise of his discretion.

24. It must also be noted that it is inappropriate to use this procedure if the issues of facts are interwoven with the legal issues to be determined. For obvious reasons, the question of law or construction of document cannot be dealt with on assumed or hypothetical facts. And if it is necessary for the court to hear evidence to resolve a factual dispute in order to come to a determination on the question of law or construction of document, it would not normally be suitable to invoke Order 14A.

25.  Hence, even if the conditions are satisfied, the court still has a discretion under rule 1 to decide whether to entertain an application under this Order.  He has to decide on the suitability of adopting the procedure in the case in hand before adjudicating on the merits […].”

6.  In Rockwin Enterprises Limited v Shui Yee Limited & Others [2003] 3 HKC 174, Recorder Ma SC (as his Lordship then was)  explained that a three-step approach should be adopted in an Order 14A application:

“18. Once seized of an application under Order 14A, the court’s approach is essentially a three-step approach:

(1)  Is the relevant question one of law or of the construction of a document?

(2)  If so, is that question one that should be determined under the Order 14A procedure?

(3)  If the answer to (2)  is ‘yes’, what is the determination of that question and what orders should the court make as a consequence of determining that question?

19. Usually, step (1)  will cause little difficulty for the court to ascertain.

20. Step (2)  requires the court to be satisfied of the following:

(a)  That the question of law or construction is one that is suitable for determination without a trial. In other words, the court has all the necessary facts and matters before it in order to determine the question of law or construction.

(b)  That if so suitable and should it be determined by the court, that it will finally determine (subject to a possible appeal)  the entire cause or matter or any issue or claim therein.

(c)  Even if the above two conditions are fulfilled, that the court in its discretion is satisfied that the question is one that ought to be determined under Order 14A.

21. It is clear that the court has a residual discretion whether or not to embark on a determination of a question under Order 14A even where the first two requirements (set out in paragraphs 20(a)  and (b)  above)  are fulfilled. This is clear from the word ‘may’ in Order 14A, rule 1(1)  and from the authorities.

22.   […]

23. […] in my view, it does not follow that even if the determination of a question of law or construction would finally determine a claim or issue in the proceedings, the court should automatically be required to embark on the determination of a question under Order 14A. There is, as I have already remarked, a residual discretion vested in the court.

24. Quite how that residual discretion is to be exercised in any given case depends of course on the circumstances. In Korso Finance Establishment Anstalt v. John Wedge (unreported, 15 February 1994), two factors were relevant to the Court of Appeal’s decision to allow the appeal thereby enabling the question there to be determined under Order 14A:

(a)  The question of construction was a dominant feature of the case, going to what was described as an important issue, namely, the primary liability of the defendants in that case. As I have remarked, the letter of agreement to be construed was said to be at the ‘heart’ of the case.

(b)  If the question of construction was dealt with, this might or would enable the parties to avoid the expense of trial and assist them in the efficient disposal of the action.

25. These are no doubt relevant (and in some cases decisive)  considerations that a judge can legitimately take into account but there may be other considerations. Other considerations include the following:

(a)  The court can take an overall view of the matter to see the context in which the question arises. If the court is of the view that there would not be a great saving of time or costs in determining the question (or indeed if it feels quite the opposite), this would be a factor against adopting the Order 14A procedure. For example, if the question involves an issue that is not determinative of the action or is but one of many issues or which may at the end of the day be an academic one, a court may well not embark on a determination under Order 14A. In such situations, it may be that a determination by the court leading possibly to appeals at two further levels, will result in more delay and expense to the parties than if the whole matter was decided at one go at trial.

(b)  On the other hand, an issue may recur so much on a continuing basis that to determine it may not only be convenient but extremely desirable. For example, where the determination of an issue would result in the discovery process not being as extensive or expensive as might otherwise be the case, it may well be appropriate to use the Order 14A procedure.

26. It is of course not possible to set out all the circumstances which may be relevant in any given case to the exercise of the court’s discretion. Much will depend on the perception and instinct of the Judge seized of the matter.

27. Of course, the residual discretion becomes exercisable really only where the two requirements (referred to in paragraphs 20(a)  and (b)  above)  have been fulfilled. Here, it is important to emphasise that the question of law or construction is one that is suitable for determination without a trial. In other words, the court must have all the necessary facts and matters before it in order to determine the question of law or construction. Where the court is not seized of all relevant facts, it would be an extremely rare case (if ever)  in which the procedure under Order 14A would be adopted. In Cable & Wireless HKT International Limited v. New World Telephone Limited (Stone J, unreported, 5 April 2000, HCCL 229/1999), the main concern of the court was that the factual basis for the determination of the question he was invited to determine, was uncertain. On appeal, the Judge’s views were upheld by the Court of Appeal. I note that this approach is entirely consistent with those passages contained in Hong Kong Civil Procedure 2001 at paragraph 14A/2/4.

28.   Finally, on the assumption that Steps (1)  and (2)  have been overcome, Step (3)  involves the court actually determining the relevant question and making consequential orders flowing from its determination.”

7.  To J had further explained in China Ping An Insurance (Hong Kong)  Company Limited v Tsang Fung Yin Josephine & Another [2012] 2 HKLRD 674 that:

“18. The question of law or construction of document to be determined by the court under this Order should be stated or formulated in clear, careful and precise terms, so that there should be no difficulty or obscurity, still less any ambiguity, about what question has to be determined: Allen v Gulf Oil Refining Ltd [1980] QB 156.

19. The court’s discretion under Order 14A is very wide. The procedure can be invoked not only in respect of questions which finally determine the entire cause or matter, but also questions which finally determine any claim or issue, but the process does not contemplate that trivial matters would be submitted for determination: Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Another (2003)  6 HKCFAR 222. The court also has residual discretion not to embark on a determination of a question under this procedure even if the two requirements set out above are satisfied, if the court is not seized of all relevant facts: Rockwin Enterprises Ltd v Shui Yee Ltd & Others [2003] 3 HKC 174. The court is always uneasy in having to decide questions of legal principle without knowing the full facts: E (A Minor)  v Dorset CC [1995] 2 AC 633. In deciding whether to make a determination, the court has to take an overall view of the matter to discern the context in which the question arises and whether the determination goes to the core of the plaintiff’s case or the defendant’s defence or is merely one of a variety of issues for decision. If the determination will not finally or substantially determine the entire cause or matter, the court should exercise its residual discretion not to make a determination. This is because such a determination is often made in the absence of knowledge of the full facts of the case. If the court is not seized of all relevant facts and there are outstanding issues which have to proceed to trial, the court should not place itself in a precarious position in the event that the basis on which it made its determination earlier may turn out to be inconsistent with the facts subsequently found. In any event, it should not by making such determination bind its hands in its future fact finding.

20.  In considering an Order 14A application, the court has to determine: (1)  if the question raised is a disputed point of fact or law relied on by way of claim or defence; (2)  if such question is suitable for determination without a full trial of the action; and (3)  if such determination will finally determine the entire cause or matter or any claim or issue therein.  The decision whether to make a determination will have to be made on the basis of the parties’ pleadings and so much of the facts which are not in dispute.  Upon making a determination, the court may dismiss the cause or matter or make such order or judgment as it thinks fit.”

Locus standi to sue

8.  When the locus standi of a plaintiff in bringing a claim is challenged, what Deputy High Court Judge To said in Koo Ming Kown v Pacific Online Limited (HCA 2333/2016, unreported, 16 May 2017)  should be borne in mind:

“12. In 佛山市宏達發展公司清算組 v East Legend Investment Ltd [2009] 1 HKLRD 169 at [18], the Court of Appeal held that it is not appropriate to raise the challenge as to the plaintiff’s locus standi by way of defence. It must be raised at the outset or when it comes to the attention of the court or of the defence in the course of the proceedings. Once the issue has been raised it must be decided. It would be wrong to allow the action to go on without deciding the issue of standing because the defendant will not have a further chance to challenge it. Once it is clear that the action was improperly constituted, it must be brought to an end either by way of dismissal, striking out or stay. If a plaintiff has no locus standi, it must necessarily follow that his statement of claim, however well pleaded, could disclose no reasonable cause of action on his part and may also be scandalous, frivolous or vexatious. It may prejudice, embarrass or delay the fair trial of the action, which is bound to fail. Such a statement of claim must therefore be struck out and the action dismissed.”

Representative action

9.  Representative actions are governed by Order 15 rule 12 of the RHC which provides that:

“(1)  Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2)  At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant

(3)  A judgment or order given in proceedings under this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(4)  An application for the grant of leave under paragraph (3)  must be made by summons which must be served personally on the person against whom it is sought to enforce the judgment or order.

(5)  Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.

(6)  The Court hearing an application for the grant of leave under paragraph (3)  may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined.”

10.  It can be seen that an essential condition of a representative action is that the persons who are represented and the person or persons representing them should have the same interest in the same proceedings.

11.  Both parties have referred this Court to the UK case of Lloyd v Google LLC [2022] AC 1217, in which the principles regarding representative actions have been discussed.  It is undisputed that those principles are applicable to proceedings in Hong Kong, and they are summarised as follows:

(1)  The phrase “same interest” is to be interpreted purposively in light of the underlying objectives and the rationale for the representative procedure.  The premise for a representative action is that claims are capable of being brought by (or against)  a number of people which raise a common issue (or issues): hence the potential and motivation for a judgment which binds them all.  The purpose of requiring the representative to have the same interest in the claim as the persons represented is to ensure that the representative can be relied on to conduct the litigation in a way which will effectively promote and protect the interests of all the members of the represented class.  Therefore, it is not possible where there is a conflict of interest between class members, in that an argument which would advance the cause of some would prejudice the position of others: [71];

(2)  However, a distinction needs to be drawn between cases where there are conflicting interests between class members and cases where there are merely divergent interests, in that an issue arises or may well arise in relation to the claims of (or against)  some class members but not others. So long as advancing the case of class members affected by the issue would not prejudice the position of others, there is no reason in principle why all should not be represented by the same person: [72];

(3)  Where the same interest requirement is satisfied, the court has a discretion whether to allow a claim to proceed as a representative action. The court must in exercising its discretion seek to give effect to the underlying objective of dealing with cases justly and at proportionate cost. Many of the considerations specifically included in that objective such as ensuring that the parties are on an equal footing, saving expense, dealing with the case in ways which are proportionate to the amount of money involved, ensuring that the case is dealt with expeditiously and fairly, and allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases – are likely to militate in favour of allowing a claim, where practicable, to be continued as a representative action rather than leaving members of the class to pursue claims individually: [75];

(4)  While it is plainly desirable that the class of persons represented should be clearly defined, the adequacy of the definition is a matter which goes to the court’s discretion in deciding whether it is just and convenient to allow the claim to be continued on a representative basis rather than being a precondition for the application of the rule. There is a general principle that membership of the class should not depend on the outcome of the litigation. Beyond that, whether or to what extent any practical difficulties in identifying the members of the class are material must depend on the nature and object of the proceedings: [78];

(5)  The ability to act as a representative under the rule does not depend on the consent of the persons represented but only on community of interest between them. There is ordinarily no need for a member of the represented class to take any positive step, or even to be aware of the existence of the action, in order to be bound by the result: [77]

(6)  It is not a bar to a representative claim that each represented person has in law a separate cause of action nor that the relief claimed consists of or includes damages or some other monetary relief. The potential for claiming damages in a representative action is, however, limited by the nature of the remedy of damages at common law.  What limits the scope for claiming damages in representative proceedings is the compensatory principle on which damages for a civil wrong are awarded with the object of putting the claimant – as an individual – in the same position, as best money can do it, as if the wrong had not occurred. In the ordinary course, this necessitates an individualised assessment which raises no common issue and cannot fairly or effectively be carried out without the participation in the proceedings of the individuals concerned. A representative action is therefore not a suitable vehicle for such an exercise: [80];

(7)  In cases where damages would require individual assessment, there may nevertheless be advantages in terms of justice and efficiency in adopting a bifurcated process as was done in Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229 whereby common issues of law or fact are decided through a representative claim, leaving any issues which require individual determination – whether they relate to liability or the amount of damages – to be dealt with at a subsequent stage of the proceedings: [81]

DISCUSSION

12.  I have already set out the orders which the defendant sought by virtue of the First Summons and the Second Summons respectively at the beginning of this Decision. 

13.  To recap:

(1)  Under the First Summons, the defendant asserted that since a corporate entity does not have any cause of action against another under the tort of harassment, therefore, SEKSL’s claims herein should be dismissed, and it has no locus standi to bring representative action for the Representees.  It was also prayed that, alternatively, even if SEKSL is permitted to proceed as a representative, save for the claims of Mr Leigh, all other claims herein should be struck out;

(2)  Under the Second Summons, the defendant asked that the action be dismissed on the grounds that the claim is scandalous, frivolous or vexatious, or it may prejudice or embarrass the fair trial of the action, or it is otherwise an abuse of process of the court; alternatively, it was said that the action should be stayed, pending criminal and regulatory investigations; and alternatively, that SEKSL be prohibited from continuing the action as a representative action.

14.  At the hearing, the defendant proposed that the alternative application under the First Summons (concerning representation action)  should be dealt with under the Second Summons because arguments in relation to appropriateness of bringing representative action in the present case would also be made under the Second Summons anyway. 

15.  On my part, in the circumstances of the present case, I do not think one has to distinguish so clearly as to whether an argument is made under the First Summons or the Second Summons as such.  Since both summonses have been listed to be heard by this Court at the same time, the Court may decide on the order of the issues to be dealt with.

16.  In the present case, there is no doubt that it is appropriate to deal with the application for declaration made pursuant to Order 14A and Order 18 rule 19(1)(a)  of the RHC first.

SEKSL’s claim

17.  It is trite that, for the purpose of the determination of the First Summons by virtue of which the defendant asked the Court to dismiss the plaintiff’s claim under Order 14A of the RHC and under Order 18 rule 19(1)(a)  of the RHC, the facts as pleaded in the Statement of Claim (as supplemented by SEKSL’s Further and Better Particulars)  are taken to be true.

18.  I will therefore summarise SEKSL’s pleaded case as follows, which is largely adopted from its skeleton submissions.

19.  The defendant worked in the legal department of SEKSL from 2009 until 2020, and since 2013 was the Director of Legal and Trust Management, in charge of its legal department.

20.  At all material times until early 2019, she reported to Mr Leigh, a director of SEKSL.

21.  In September 2020, the defendant asserted her belief that she would be the successor to Mr Leigh, who disputed this. The defendant insisted that Mr Andrew Brandler, Chairman of SEKSL (“Mr Brandler”), should confirm her expectation with members of the Kadoorie and McAulay families (“Families”), because if that were not the case, then she would have to consider her career options.

22.  Mr Brandler proceeded to seek such confirmation, and was informed that the Families were of the view that the defendant should not succeed Mr Leigh, and further determined that a search for an external candidate to replace Mr Leigh should be commenced. As it was anticipated that this arrangement would not be acceptable by the defendant, the Families decided that her employment should be terminated.

23.  Mr Brandler then gave the defendant notice of termination of employment on 29 October 2020.

24.  Negotiation between SEKSL and the defendant followed, which resulted in a Separation Agreement and a Consultancy Agreement (collectively “the Agreements”)  entered into between the aforesaid parties.

25.  Pursuant to the terms of the Separation Agreement, upon cessation of her full-time employment with SEKSL, the defendant would receive termination payments totalling HK$24,920,000, conditional on her compliance with the terms thereof. The said sum had been paid in full.

26.  Under the Consultancy Agreement, the defendant agreed to, upon request, provide services on a part time basis to SEKSL for 3 years (1 January 2021 – 31 December 2023)  for a total fee of HK$8,000,000 per year.

27.  The defendant’s full-time employment with SEKSL ended on 31 December 2020 in accordance with the Separation Agreement. Half a year later, on 15 June 2021, SEKSL exercised its contractual right of termination under the Consultancy Agreement to terminate the Consultancy Agreement.

28.  In the period from 1 December 2020 to early May 2022, the defendant sent over 500 emails (“the Emails”)[2], mostly containing repetitive, unfounded and extremely hostile accusations and claims against SEKSL and its associated individuals, to SEKSL and/or its officers, employees and/or agents, including S&S.

29.  The recipients of the Emails included, inter alia, Mr Brandler, Mr Leigh, Mr Philip Kadoorie (a director of SEKSL and member of the Kadoorie family), Mr William Mocatta (a director of SEKSL); as well as lawyers from S&S, including Ms Fiona Loughrey, Mr Eric Chan, Ms Eva Chan and Mr Julian Taylor. The accusations and claims in the Emails include:

(1)  Dishonesty, suppression of evidence, breach of anti-money laundering obligations, conspiracy to injure, fraud and/or other criminal offences including corporate manslaughter;

(2)  Breach of relevant laws or professional conduct rules, fraudulent behaviour, modern slavery or other inappropriate behaviour towards the defendant;

(3)  Intimidation, harassment, bullying, defamation, vilification, discrimination or victimisation of the defendant;

(4)  Bad faith on the part of SEKSL;

(5)  Exposing the defendant to criminal activity;

(6)  Coercion of the defendant into signing the Agreements under duress, or under illegal or fraudulent circumstances;

(7)  The arrangements described in the Agreements being “hush money” to incentivise the defendant not to raise certain matters with regulators including the Hong Kong Police or the Law Society of Hong Kong;

(8)  Breaches by SEKSL of the Agreements.

30.  The vast majority of the accusations and claims in the Emails are wholly untrue and have no basis in fact.

31.  The defendant also sent some of the emails to persons outside SEKSL and S&S, in order to make unfounded complaints and false allegations about SEKSL, its officers, employees, agents and/or legal representatives.

32.  The defendant’s course of conduct was deliberate and sufficiently repetitive in nature such that any person ought reasonably to have known that it would cause anxiety, emotional distress to other persons, namely, SEKSL, its officers, employees, agents and/or legal representatives who received and/or read the Emails and/or to whom the receipt of Emails is reported.  

33.  The defendant knew that, or alternatively was reckless as to whether her course of conduct in sending the Emails would amount to harassment of SEKSL, its officers, employees, agents and/or legal representatives, causing them to suffer injury (including but not limited to anxiety and emotional distress)  and/or financial loss.

34.  SEKSL had attempted to mitigate the effects of the harassment through various self-help measures.  However, all of these measures were ultimately to no avail.

35.  By reasons of the defendant’s acts of harassment, SEKSL, its officers, employees and/or agents (including its legal representatives S&S)  have suffered loss and damage, including suffering from distress and anxiety:

(1)  Significant anxiety, emotional distress and annoyance have been caused to those who have received, read and/or been targeted by the Emails;

(2)  Mr Leigh has suffered stress, anxiety and annoyance as a result of the defendant’s conduct, such that he has had to seek medical attention;

(3)  Other individuals to whom the defendant has directed her Emails or of whom she has written in her Emails, which include officers, employees and/or agents, including its legal representatives in S&S, have suffered anxiety, distress and/or annoyance as a result of her conduct;

(4)  Even when the emails were sent to S&S only (from late October 2021 onwards), the Emails included accusations of wrongdoing of the utmost seriousness concerning historical dealings between SEKSL and the defendant.  Accordingly, SEKSL’s officers and employees (including Mr Leigh)  were informed of the emails (including the content thereof)  by S&S shortly after their receipt of the same.  Such instant notification of the hostile and unfounded emails has caused significant anxiety, emotional distress and/or annoyance to SEKSL’s officers and employees (including but not limited to Mr Leigh);

(5)  By reason of the defendant’s conduct, SEKSL and the persons associated with it, including Mr Leigh, have been required to expend significant time and costs to deal with the same, including on seeking legal advice to consider the appropriate course of action to take in response to the Emails, which led to financial loss in the form of legal fees.

Declaration – parties’ respective contentions and the issues

36.  It was the argument of Mr Kirpalani (together with Mr Payne)  that:

(1)  SEKSL has no cause of action against the defendant under the tort of harassment and its claims in the action for injunctive relief and/or damages must be dismissed;

(2)  It follows from Order 15 rule 12(1)  of the RHC that SEKSL has no standing to represent the Representees and, since the action is unsalvageable by any of the Representees, the entire action must be dismissed.

37.  On the other hand, Ms Lau (together with Mr Chan)  argued that a corporate plaintiff like SEKSL does have standing to bring a harassment claim, either as an independent cause of action, or at any rate where it brings the claim as a representative action on behalf of its harassed employees or agents.

38.  There are thus two issues:

(1)  Does a corporate plaintiff like SEKSL have cause of action against the defendant under the tort of harassment?

(2)  Even if it does not, can it bring the claim as a representative action on behalf of its employees or agents?

39.  I will consider these two issues in turn below. However, before that, I will deal with some procedural points taken by the plaintiff.

Procedural objections

40.  As aforesaid, the First Summons was filed pursuant to Order 14A and Order 18 rule 19(1)  of the RHC.

41.  As far as Order 14A of the RHC is concerned, it was argued on behalf of SEKSL that the First Summons does not state in clear and precise terms what the question of law or construction that the Court is required to determine.

42.  Paragraph 1 of the First Summons seeks an order that:

“a declaration that, as a matter of law, a corporate entity has no cause of action against a person under the tort of harassment […]”

43.  With greatest respect, I do not know how SEKSL can say validly that the question of law has not been stated clearly/precisely.

44.  Insofar as it is SEKSL’s contention that the question of law has to be stated in question form such as “whether a corporate entity has any valid cause of action under the tort of harassment”, I do not accept such an argument.

45.  It should be borne in mind that pursuant to Order 14A rule 2 of the RHC, an application under Order 14A rule 1 for determination of a question of law can even be made orally in the course of any interlocutory application.  It goes without saying that, in such a case, the question would not be set out in a summons as such.  So long as the parties are clear as to what the question of law is about, there is no room for complaining that the Order 14A application is procedurally defective.  In the present case, I am satisfied that there can be no doubt about what the question of law is about.

46.  SEKSL then complained that the First Summons was not accompanied by any supporting affidavit, and it was submitted that:

“It is necessary for an O.14A application to be supported by affidavit evidence deposing to the factual context and basis for the O.14A application, otherwise it would simply not be possible for the Court to properly ascertain whether the O.14A procedure is appropriate and to properly answer the question of law at hand […]”[3]

47.  In support of the above proposition, SEKSL cited Ding Huirong v China Times Securities Ltd[2020] HKCFI 978, in which the Court cited Hong Kong Civil Procedure 2020, volume 1, paragraph 14A/2/7 which reads:

“The summons should be supported by affidavit evidence deposing to all the material facts relating to the question of law or construction to be determined by the court […]”

48.  I agree that in some Order 14A applications, especially when an applicant raises a question of construction of document for the Court’s determination, he may well have to file an affirmation in support. However, whether it is necessary to do so depends on the circumstances of the case.  It should be noted that neither Order 14A rule 1 nor rule 2 stipulates that an application under Order 14A must be supported by affidavit. 

49.  Take the present case as an example.  The defendant is now arguing that even accepting the entirety of SEKSL’s case as pleaded in the Statement of Claim, the action should be struck out if the Court finds the question of law in the defendant’s favour.  I wonder what material facts should be set out in the affidavit evidence as proposed by SEKSL’s counsel.  In fact, if the defendant simply sets out SEKSL’s pleaded case in her supporting affidavit, it is most likely that, even if such an affidavit is not expunged, she would not be awarded any costs of such an affidavit in the event she succeeds in her application. 

50.  SEKSL’s argument on lack of affidavit is therefore rejected.

51.  Ms Lau for SEKSL had also made submissions that it is inappropriate to adopt the Order 14A procedure in the present case because of various reasons.  With respect, I reject her submissions for the following reasons:

(1)  Her submissions that “locus standi is a mixed question of law and fact” and that the present case involves issues of facts interwoven with legal issues, thus making it unsuitable for determination under Order 14A has over-generalised the situation.  For the purpose of her application for declaration under paragraph 1 of the First Summons, the defendant is apparently prepared to accept that the Court would take SEKSL’s pleaded case as true.  There is no issue of fact at all as far as this application is concerned;

(2)  I do not accept that the alleged novelty of the issue at stake would make it inappropriate for the matter to be disposed of pursuant to Order 14A herein;

(3)  Neither do I accept her submissions that the application under Order 14A was a belated afterthought and a misconceived attempt to circumvent the higher threshold for striking out under Order 18 rule 19 of the RHC.  It is not uncommon for an applicant for striking out a pleading under Order 18 rule 19 to apply under Order 14A as an alternative if the ground of application involves the determination of a question of law.  This practice has even been described as “advisable” in Hong Kong Civil Procedure 2023, vol.1 at paragraph 18/19/3 (page 547 at sub-paragraph (5)).

52.  On the other hand, adopting the three-step approach in Rockwin Enterprises Limited (supra), I am of the view that the question of law is suitable for determination without a trial, because such determination would finally determine the entire matter herein.  I further hold that the Court should exercise its discretion in deciding on the matter under Order 14A of the RHC.

Corporate plaintiff bringing harassment claim in its own right

53.  I will now turn to the main issue of the defendant’s application concerning corporate entity’s cause of action of tort of harassment.

54.  It is undisputed between the parties that tort of harassment exists in Hong Kong and that it is rooted in the common law, in contrast to the position in UK where it exists on a statutory footing under the Protection from Harassment Act 1997 (“the UK PHA 1997 Act”).

55.  In Lau Tat Wai v Yip Lai Kuen Joey[2013] 2 HKLRD 1197,Anthony Chan J held that:

“Tort of harassment

56. I believe that the current state of the law in Hong Kong has been accurately summarised by the learned author of Tort Law in Hong Kong, 3^rd edn, at p 717-719:

‘(2)  In jurisdictions such as Hong Kong, where there is no general protection from harassment legislation as there is in the UK, and where a common law tort of harassment has yet to develop (see eg Chang Ming Fang Jacqueline v Zhang Zi Qiang (unrep., HCA 2714/2006, [2009] HKEC 1411)),

…

(4)  The High Court of Singapore has now recognised a common law tort of harassment (see Malcomson v Mehta [2001] 4 SLR 454). In Hong Kong, that stage has not been reached. In Etacol (Hong Kong)  Ltd v Sinomast Ltd [2006] 4 HKC 572 (11.3 above), a case concerning threats and intimidation in the course of debt collection, Deputy Judge Carlson (in Chambers)  granted summary judgment to the plaintiffs for distress suffered on the basis of the tort of harassment. However, he did not explain the genesis of the tort action, cited no authorities, and made no reference to the position in England, where, according to Hale LJ in Wong v Parkside Health NHS Trust (above), there was no tort of harassment prior to the passing of the Protection From Harassment Act 1997.

(5)  However, Deputy Judge Carlson’s award of damages for harassment may signal the beginning of the development of the tort action in Hong Kong. Although Rogers V-P in Wong Wai Hing v Hui Wei Lee [2001] 1 HKLRD 736 (11.3 above)  thought that “harassment is not illegal”, support can be found in the judgment of Cheung J in Wong Tai Wai v Hong Kong SAR Government (above)  where he said:

(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…

(7)  The Law Reform Commission of Hong Kong Report on Stalking recommended the introduction of a criminal offence of harassment (Chapter 6), and more to immediate purposes, a tort remedy for a person who pursues a course of conduct which would have constituted the offence of harassment (Chapter 9). A victim of harassment would be able to claim damages for any distress, anxiety and financial loss caused, and to apply for an injunction to prohibit the defendant from doing anything which causes the plaintiff alarm or distress. No action has been taken on the recommendations since the publication of the report in 2000, although another consultation paper was initiated by the government in 2011. …’

[…]

59. I am unable to see any reason why there should not be a tort of harassment to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds. It means that, eg, intrusion on privacy is difficult to prevent and it is hard for the victim to escape the harassment.

60. In Singapore, where the social conditions are not very different to those of Hong Kong, the tort of harassment has been recognised since 2001 (see Malcomson Bertram & Anr v Naresh Mehta [2001] 4 SLR 454 at 470H to 474A).

61. This case serves to demonstrate that the time must have come for Hong Kong to recognise this tort.

The parameters

62. What are the parameters of this tort? First, I respectfully adopt the observation made by Lee JC in Malcomson in connection with the definition of harassment at 464F:

‘For the purposes of this application, I shall take the term ‘harassment’ to mean 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. This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.’

63.    Second, it should be remembered that the development of common law is incremental, responding to the facts of the cases brought before the court.  Hopefully, a codified body of law to provide for a remedy against harassment will soon come into place, and that will avoid a piecemeal development of the law which is inherent in the common law system. 

64.  Third, like most of the established tortious causes of action, there should be a mental requirement of the wrongdoer as well as damage to the victim in order to constitute the tort of harassment. 

65.  In respect of the former, I do not believe that it is necessary to show intention on the part of the wrongdoer to cause injury to the victim.  The lower threshold of recklessness as to whether the victim would suffer injury from his act would suffice.  The lower threshold is justified when physical or mental harm can be involved.

66.  As regards the kind of injury or damage which may ground an action in tort of harassment, one can envisage that the harassment can result, at one end of the scale, physical injury and, at the other end, mere humiliation.  The correct balance has to be struck.  Further, different person can react differently to the same type of harassment.  A mature and confident person may feel humiliated about a course of conduct, whereas a younger and more sensitive person may be affected with serious anxiety.  However, a wrongdoer must take his victim as he finds him.

67.  Under the UK Protection from Harassment Act 1997, s.3, damages can be awarded as a civil remedy for anxiety caused by harassment.  However, anxiety has not been defined in the Act.

68.  I believe that the right balance has been struck in the above Act and I take the view that anxiety on the part of the victim, which has been caused by harassment, would satisfy the threshold for this cause of action.  

69.  Financial loss, eg, the cost of moving, can of course ground, and is recoverable under, this cause of action.” (emphasis added)

56.  As can be seen above, when Anthony Chan J considered that the time has come for the tort of harassment to be recognised in Hong Kong, his Lordship has taken into account the decision of the High Court of Singapore in Malcomson v Mehta [2001] SGHC 308, in which Lee Seiu Kin JC, having explained that the term “harassment” would be taken to mean “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”[4] in that case, went on to say at [55]:

“[…] In Singapore we live in one of the most densely populated countries in the world. And the policy of the government is to further increase the population. It will make for an intensely uncomfortable living environment if there is no recourse against a person who intentionally makes use of modern communication devices in a manner that causes offence, fear, distress and annoyance to another. Mehta had embarked on such a course of conduct by making the mobile phone calls along with his other acts of nuisance. He ought reasonably to know that such acts would cause worry, emotional distress, annoyance to Malcomson. In the law of negligence, a person has a duty to ensure that he does not cause any damage to others. Such acts are unintentional but they result in physical harm to the victim. Surely in respect of intentional acts that cause harm in the form of emotional distress, the law is able to provide a recourse. The fact that in such cases it is difficult to quantify damages should not, in my opinion, hinder the court from giving the appropriate relief. In the present case, as I suspect will generally be the situation in most cases of this nature, what the plaintiffs essentially want are not damages but an injunction restraining Mehta from continuing with such acts. I see no reason of policy against order Mehta to stop such behaviour. They do not further the common good. Instead they cause the plaintiffs to lose time and emotional energy which can be better spent on more productive activities. Just as importantly, those acts do not contribute anything to the welfare of Mehta and an injunction from the court would in all probability steer him into a positive direction and at the very least make him get on with his life.”

57.  Anthony Chan J considered that the situation in Hong Kong is similar to that in Singapore.  He took the view that people in Hong Kong (who also live in a small place)  should be protected by the tort of harassment. His Lordship’s approach was then followed by a number of other Hong Kong cases.

58.  In X & Another v Z [2020] HKCFI 826, Coleman J had the following to say:

“13. Unlike, for example, in the United Kingdom, there is no statutory provision in Hong Kong creating the tort of harassment. But even in the UK legislation, there is no definition of harassment. Rather, harassment is an ordinary English word with a well understood meaning. In Hong Kong, the tort of harassment was summarised in Secretary for Justice v Persons Unlawfully and Wilfully Conducting etc [2019] 5 HKLRD 500 at §22, drawing on Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at §§62-69.

14. The tort of harassment relates ordinarily to a course of conduct by a person by words or action directly or through third parties, sufficiently repetitive in nature that any person ought reasonably to know would cause worry, emotional distress or annoyance to another person. The requirement that there be a course of conduct identifies that the conduct must have occurred on at least two occasions in relation to the person allegedly harassed. But whatever is the number of occasions must, in the circumstances, be sufficiently repetitive in nature to trigger the tort. The conduct must be overt, that is deliberate.

15. The applicable test as to whether or not there has been harassment is an objective test, applied to the particular circumstances of the case. Context is important. The court’s assessment includes whether the conduct has crossed the boundary from the regrettable to the unacceptable, or from the unattractive to the oppressive. The mental element required is being reckless as to whether the victim would suffer injury from the conduct.

16. Damage to the victim is necessary to constitute the complete tort. Harassment can result in a range of reactions, extending from physical injury at one end of the scale to mere humiliation at the other. The correct balance has to be struck in the particular circumstances. Anxiety is capable of constituting damage, and financial loss would also be recoverable.” (emphasis added)

59.  In Lin Man Yuan v Kin Ming Holdings International Ltd & Another (HCA 219/2008, unreported, 3 June 2015), Lok J also stated that:

“220. As to whether such tort should exist in common law, I agree with the reasoning of A Chan J in Lau Tat Wai that the tort of harassment should exist ‘to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds’. In particular, intrusion on privacy is difficult to prevent and it is hard for the victim to escape harassment. Further, a claimant in a claim for harassment has to establish the various ingredients of the tort as mentioned in the next paragraph, and I cannot see the reason as to why a person, who knows that his harassment would cause worry, emotional distress or annoyance to another person, or reckless as to whether the victim would suffer injury as a result of the harassment, should not be liable for damages caused to the victim as a result. So long as there is intention to inflict harm on the victim, there should be no difference between damages caused by a physical act of violence or a series of harassing conducts. Hence, if there is a need for Kin Ming or Mr Kho to rely on such cause of action, I accept that the tort of harassment exists as part of the common law in Hong Kong.” (original emphasis)

Having referred to the principles and the elements of the tort of harassment as set out by Anthony Chan J in Lau Tat Wai (supra), his Lordship continued:

“222. Again I find that these elements exist in the present case. There were repeated and persistent telephone calls threatening to do harm to Mr Kho and his family members, and also repeated and persistent unsolicited visits by the agents to Mr Kho’s office with intimidating and threatening demeanour. These conducts were sufficiently repetitive in nature, which Madam Lin and Mr Huang Rui-fu should have known would cause worry, emotional distress and annoyance to Mr Kho. As a result of such harassment, Mr Kho had suffered mental distress. Hence, Madam Lin and Mr Huang Rui-fu are also liable for damages for harassing Mr Kho.

223. Kin Ming, as a corporation, also claims for damages and injunctive relief against Madam Lin and Mr Huang Rui-fu for intimidation and harassment. It is clear that the tort of intentional infliction of injury is regarded as a tort of trespass to person. Harassment is a variant of the tort of intentional infliction of injury, and so I do not accept that Kin Ming, as a corporation, can sue Madam Lin and Mr Huang Rui-fu for such tort.” (emphasis added)

60.  It was considered necessary by the High Court of Singapore in Malcomson that the tort of harassment had to be recognised because people living in a densely populated country like Singapore had to be better protected especially in the light of the advancement of modern communication technology, as the improper use of such technology could cause offence, fear, distress and annoyance to another.  As aforesaid, Anthony Chan J considered that the situation in Hong Kong is similar to that in Singapore.  His view was shared by Lok J as can be seen above.

61.  In my view, the above background against which the tort of harassment was recognised both in Singapore and in Hong Kong must be borne in mind when we consider whether a corporate entity can be a victim of the tort of harassment.

62.  It should also be emphasised that it is one of the essential elements that there be proof that the alleged tortfeasor ought reasonably to know that his course of conduct would cause worry, emotional distress or annoyance to another person.

63.  Taking into account:

(1)  worry, emotional distress or annoyance can only be felt/suffered by natural persons;

(2)  the population density of a country/place is a concept which is only relevant when we are talking about living individuals as opposed to corporate entities,

I am of the view that corporate entities cannot be victims of the tort of harassment as such.

64.  SEKSL attempted to rely on the concept of attribution to argue that even though a corporate entity admittedly cannot suffer worry, emotional distress or annoyance, it is a legal construct and must act through its human agents.  It was therefore said that where acts are committed against the human agents acting on behalf of a company which are calculated to cause worry, emotional distress or annoyance on their part, the company ought as a matter of principle have a sufficient interest / locus to bring an action in respect of such harassment.  

65.  In effect, it was suggested that apart from the well recognised principles on attribution of knowledge, state of mind, etc., there should also be attribution of feelings.  I am not prepared to accept such a novel proposition which is simply not supported by any authority.   Furthermore, the tort of intentional infliction of injury is regarded as a tort of trespass to natural person, and harassment is a variant of the tort of intentional infliction of injury.  It is simply not right if a corporate entity is given the right to sue under the tort of harassment even though it is its employees who have suffered injury, despite the fact that such employees have been injured only because they are employed by that particular corporate entity.

66.  It has also been argued by SEKSL that because it has suffered financial loss, it is entitled to sue in its own right under the tort of harassment.  In my view, this argument is misconceived.  If a company cannot suffer worry, emotional distress or annoyance (as accepted by SEKSL’s counsel), that would be the end of its case on tort of harassment.  The alleged financial loss cannot salvage the company’s claim under this tort.

67.  Counsel for SEKSL also referred to the case of Etacol (Hong Kong)  Ltd v Sinomast Ltd [2006] 4 HKC 572, and submitted that this authority tends to support the notion that a corporate entity can bring a claim in harassment.  However, as pointed out by the learned author of Tort Law in Hong Kong (quoted by Anthony Chan J in Lau Tat Wai (supra)  – see [55] above), there was no explanation in Etacol on the genesis of the tort action nor citation of any authorities in support.  Furthermore, it is apparent from the learned Judge’s Judgment in Etacol[5]that his Lordship followed the approach of the Court of Appeal decision in Wong Wai Hing v Hui Wei Lee [2001] 1 HKLRD 736 which concerned the torts of assault and intimidation.  Most important of all, it appears that there was no argument made in Etacol on the very issue which is before this Court, namely, whether a corporate entity can bring a claim under the tort of harassment.  I therefore, with respect, decline to hold that a corporate entity can be a victim of the tort of harassment by virtue of this case.

68.  Both parties have referred this Court to many other authorities from Singapore and UK.  As the tort of harassment in both these countries is governed by statutes which have no Hong Kong equivalent, I am of the view that the Court has to be cautious when reading those authorities, which might involve the interpretation of those statutes, in which case the assistance which this Court may obtain from those authorities would be much limited. 

69.  I will start with another decision of the High Court of Singapore – Ting Choon Meng v Attorney-General [2016] 1 SLR 1248.

70.  As a matter of background, while the Singapore High Court in Malcomson (supra)  recognised the tort of harassment, that decision was not followed by the High Court in AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan. [2013] SGHC 158.  In light of the uncertainty, the Protection from Harassment Act was enacted in Singapore in 2014 (“the Singapore PHA Act”).  Despite its name, harassment was not the only concern of this new piece of legislation, as its long title stated that it is an Act:

“to protect persons against harassment and unlawful stalking and to create offences, and provide civil remedies related thereto or in relation to false statement of fact”[6]

71.  Back to the case of Ting Choon Meng.  In this case, the respondent had made and published certain statements of fact about the Singapore Ministry of Defence.  The Attorney General took the stance that those statements were false, who therefore sought (and was granted)  relief under section 15 of the Singapore PHA Act which provided, inter alia, that:

“(1)  Where any statement of fact about any person (referred to in this section as the subject)  which is false in any particular about the subject has been published by any means, the subject may apply to the District Court for an order under subsection (2)  in respect of the statement complained of.

(2)  Subject to section 21(1), the District Court may, upon the application of the subject under subsection (1), order that no person shall publish or continue to publish the statement complained of unless that person publishes such notification as the District Court thinks necessary to bring attention to the falsehood and the true facts.

(3)  The District Court shall not make an order under subsection (2)  unless the District Court is satisfied on the balance of probabilities that —

(a)  the statement of fact complained of is false in any particular about the subject; and

(b)  it is just and equitable to do so.”

72.  One of the issues raised therein (which counsel for the defendant herein submitted to be relevant to the case before this Court)  was whether the Government had the right to invoke section 15 of the Singapore PHA Act, which the High Court took it as a question of the interpretation of the word “person” in section 15(1)  of the said Act.

73.  This Court’s attention has been drawn to the following parts of the judgment of See Kee Oon JC:

“39. In my view, the purpose and object of ss 3 to 7 and 11 of the Act is to protect persons from the detrimental emotional or psychological impact of the words or deeds of other persons, as is evident from the references to ‘harassment, alarm or distress’ in ss 3, 4 and 7 and the fear of violence in s 5 and the requirement that such deleterious emotional or psychological effects must have arisen before those provisions of the Act may be invoked. The Act thus recognises that the emotional or psychological impact occasioned by such conduct can be severely disruptive and traumatising or even devastating to a person’s well-being, and that is the reason it has created a tiered system of reliefs or remedies that together form a coherent response to this social problem. Section 15 is part of that system and so its purpose is to be construed in the light of that overall design of the Act.

40. Therefore, even though s 15 of the Act makes no overt reference to the emotional or psychological impact of a false statement of fact, its place in the ‘tiered’ scheme created by the Act means that the underlying if unexpressed rationale for providing protection against false statements is that these statements have a detrimental emotional or psychological impact on their intended subject even if they do not rise to the level of harassment. Returning to the words of the Minister for Law in the parliamentary debates excerpted above at [31], the ‘lower tier of remedy’ in s 15 was instituted as a ‘self-help’ remedy because it was thought that there were ‘many victims who will feel that as long as there is some redress, without having to claim damages, they would be satisfied because their feelings of alarm or distress would be settled or as long as the truth is set out’ [emphasis added]. The Minister also summarised the broad philosophy animating the entire Act thus: ‘look at the consequences to the victims, and ask whether these consequences – that threat, abuse, alarm, distress – need to be protected against; and then decide ourselves, the extent to which the law should intervene and give remedies’ [emphasis added]. These references to ‘feelings of alarm or distress’ strongly suggest that the emotional or psychological impact of a false statement of fact on the subject of that statement is the true mischief that s 15 endeavours to address.

41. It follows that the scope of s 15 is not so wide as to encompass all false statements but is confined to false statements that are capable of affecting their intended subject emotionally or psychologically, which presupposes that the subject of the false statement is a human being, endowed with sentient consciousness and capacity to feel the impact of such falsehood. In this connection, it is pertinent to recall the Minister for Law’s observation in respect of the ‘thinking’ behind s 15, which took into account the poll on REACH showing that ‘people should have a legal right to require that factual inaccuracies about themselves be corrected’ [emphasis mine]: the collective noun ‘people’, as distinct from ‘persons’, generally contemplates only human beings. It is also pertinent in my view that the Minister had prefaced his observations on s 15 by pointing out that ‘we should really give the people the ability to help themselves and try and sort out matters themselves wherever possible’. Hence, in my judgment, the meaning of ‘person’ in s 15(1)  of the Act excludes the Government, and the Government may not avail itself of the remedy under s 15 of the Act.

42. […] in my opinion, reading s 15 purposively and in harmony with the rest of the Act leads to the conclusion that s 15 was not intended to extend beyond certain false statements of fact, viz, those capable of affecting their subjects emotionally or psychologically, and a consequence of this is that there is effectively an inherent requirement that the subject of the false statement be a human being.

[…]

44.    Having held that only human beings may avail themselves of the remedy under s 15 of the Act, I should clarify that this does not necessarily preclude recourse to s 15 whenever false statements are directed against entities other than human beings. […]  an allegation ostensibly aimed at a corporate body might be, in substance, an allegation against the human beings who manage that corporate body. If that is so, it is open to those human beings to seek redress under s 15 of the Act, and nothing in my decision in these appeals should be taken to exclude that possibility; whether or not a s 15 order is subsequently made in their favour is, of course, a separate matter altogether that will depend on the facts of the particular case. In these appeals, however, relief under s 15 of the Act is sought not by any human officer within the Government but by the Government itself, and in my opinion this is not something that is available to it.”

74.  It can be seen that See JC, when considering section 15 of the Singapore PHA Act, has taken into account, inter alia:

(1)  The purpose and object of the Act, including the “tiered scheme” created by the Act;

(2)  The speech of the Minister of Law of Singapore in the Parliamentary debate;

(3)  The “thinking” behind the enactment of the said section.

75.  In these circumstances, I do not think this authority may assist this Court in the present case.

76.  The defendant has also referred to the Court of Appeal decision of Ting Choon Meng v Attorney-General [2017] 1 SLR 373, by which the Court of Appeal upheld (by majority)  See JC’s Judgment.  Without disrespect to counsel, I think it suffices to quote the following paragraph of the Singapore Court of Appeal’s Judgment:

“36. In summary, there is little – or no – evidence in favour of the appellant’s submission as compared to the evidence in favour of the respondent’s submission. Indeed, interpreting s 15 in the manner set out above is, in our view, consistent with the entire scheme and structure of the Act (which would apply throughout only to the individual (and human)  victims of harassment as well as unlawful stalking. On the other hand, interpreting s 15 in the contrary manner, as argued for by the appellant, would lead to the insertion of a right on behalf of entities (other than human beings)  that would sit incongruously (and be out of sync)  with the other provisions of the Act, especially when the Act is viewed as an integrated as well as hollistic whole […]” (original emphasis of Andrew Phang Boon Leong JA)

77.  The reasoning in support of the conclusion reached by the Singapore Court of Appeal shows that little guidance can be obtained from the case for the Hong Kong Court.

78.  I now switch to consider case authorities from the UK.

79.  As aforesaid, the tort of harassment in UK is also governed by statute – the UK PHA 1997 Act.

80.  The only pre-UK PHA 1997 Act case relied on by SEKSL was Old Grovebury Manor Farm Ltd v W. Seymour Plant Sales & Hire Ltd & Another[1979] 1 WLR 263.  It was said that this case indicated that a claim in harassment could be brought by a company. 

81.  However, it appears that the tort of harassment had never come into existence in UK before the UK PHA 1997 Act was enacted.  In paragraph 14-18 of Clerk & Lindsell on Torts (23^rd Edition (2020)), the learned author wrote:

“A common law tort of harassment? In the 1990s a number of cases appeared to suggest that a tort of harassment based on the principle in Wilkinson v Downton[7] could be developed. In Hunter v Canary Wharf Ltd[8] Lord Hoffman noted that there was no necessary reason to confine Wilkinson v Downton to the intentional infliction of psychiatric injury but noted also that the Protection from Harassment Act 1997 rendered it unnecessary to consider how a common law tort of harassment might have developed. In Wong v Parkside Health NHS Trust[9] the Court of Appeal confirmed that the 1997 Act had effectively precluded the development of a common law tort of harassment.”

82.  Furthermore, if one reads the case of Old Grovebury Manor Farm Ltd (supra)  more closely, it can be appreciated that this is an intimidation case.  This can be demonstrated by referring to the following part of the Decision:

“[…] The defendant company alleges that ever since it went into occupation as assignee or purported assignee it has been the victim of a course of harassment by the plaintiff company. The defendant company claims that it has suffered damage in excess of £20,000 as a result of the wrongful activities of the plaintiff company or its officers or servants. These large damages are based on an alleged deduction of petrol sales due to obstruction and intimidation on the part of the plaintiff company. The defendant company has raised a counterclaim against the plaintiff company accordingly.” (at 266G – H)

83.  Moreover, from the judgment, it seems that it was not argued therein by the plaintiff that the defendant had no cause of action against the plaintiff.

84.  Therefore, SEKSL’s case cannot be assisted by the aforesaid authority.

85.  SEKSL’s counsel then relied on the case of Huntingdon Life Sciences v Curtin[1998] Env LR D9 (15 October 1997)  and drew this Court’s attention to the fact that Schiemann LJ (Thorpe LJ agreeing)  had granted an ex parte injunction to the applicant company therein to restrain harassment, and interpreted the word “persons” in the UK PHA 1997 Act as including bodies corporate.

86.  Reference should be made to the following part of the Judgment, in which Lord Justice Schiemann explained:

“There is little difficulty on the information before us in coming to the conclusion that the plaintiff is the subject of harassment. It did occur to me that the word ‘person’ in the Act might refer merely to an individual and not to a company but the Act does not say so, on the contrary, it uses the word ‘individual’ elsewhere in references to Scotland but not in the sections with which we are concerned. In those circumstances, the presumption in the Interpretation Act that ‘person’ includes ‘bodies corporate’ should prevail, at any event for the purposes of a short term injunction […]”

87.  It is therefore clear that the English Court of Appeal’s decision was reached upon its interpretation of the UK PHA 1997 Act which has no Hong Kong equivalent.  Such an authority is therefore unhelpful for our purpose.

88.  SEKSL then relied on a number of other English authorities including Royal Institution of Chartered Surveyors & Anor v Rushton [2017] EWHC 1205, Ashford Borough Council & Another v Mr Fergus Wilson [2021] EWHC 2542, Pertemps Medical Group Limited v Imraan Ladak [2020] EWHC 163 and Cheshire West and Chester Council & Others v Robert Pickthall [2015] EWHC 2141 and submitted that in these English authorities, bodies corporate have successfully applied for injunctions to restrain harassment.  

89.  However, the applications in those cases were all made pursuant to section 3A of the UK PHA 1997 Act.  As SEKSL’s counsel admitted:

“As a result of amendments introduced in 2005, s.7(5)  of the [UK PHA 1997 Act] states that references to a person, in the context of harassment of a person, are references to a person who is an individual. But while corporate claimants thus cannot be victims of harassment under the statutory scheme of the [UK PHA 1997 Act], they can nevertheless apply for injunctions. S.3A(2)(b)  permits any person who is or may be a person falling within s.1(1A)(c),[10] even if that person is not ‘a victim of the course of conduct in question’ under s.3A(2)(a), to apply for an injunction to restrain conduct amounting to harassment. There is nothing in the statute to indicate that such a person cannot be a body corporate.”

90.  It is thus apparent that those authorities cannot assist SEKSL because Hong Kong does not have the equivalent of section 3A of the UK PHA 1997 Act.

91.  I therefore conclude that a corporate entity has no standing to make a claim under the common law tort of harassment in its own capacity.  The question of law should therefore be answered in favour of the defendant. 

Corporate plaintiff bringing harassment claim for its employees/agents

92.  Pursuant to Order 15 rule 12 of the RHC, it is an essential condition of a representative action that the persons who are to be represented and the person representing them should have the same interest in the same proceedings.

93.  If SEKSL does not have any cause of action under the tort of harassment, the “same interest” condition simply cannot be satisfied.

94.  However, SEKSL submitted that it may commence a representative action as it did on behalf of its employees, agents, etc., and it was said that it is so even if the Court does not follow the approach explained in numerous English authorities on the ground that they were decided on the basis of section 3A of the UK PHA 1997 Act.

95.  In this regard, heavy reliance had been placed on MBR Acres Ltd & Ors v Free the MBR Beagles & Anor[2021] EWHC 2996 and Canada Goose UK Retail Ltd v Persons Unknown[2020] 1 WLR 417.

96.  It should be pointed out right away that the claimants in MBR Acres Ltd were actually relying on sections 3 and 3A of the UK PHA 1997 Act when they made their application for injunction[11].  For the reason which I have explained above, it is highly doubtful as to whether this case is helpful to SEKSL’s submissions.

97.  Be that as it may, Ms Lau and Mr Chan still contended that the case supports SEKSL’s submissions.  They relied on what Nicklin J held therein at [88] that:

“[…] A corporate entity is not a ‘person’ capable of being harassed under s.1(1): s.7(5)  [of the PHA] and Daiichi UK Ltd v Stop Huntingdon Animal Cruelty [2004] 1 WLR 1503. However, a company may sue in a representative capacity on behalf of employees of the company if that is the most convenient and expeditious way of enabling the court to protect their interests: Emerson Developments Ltd v Avery [2004] EWHC 194 (QB)  [2]. Alternatively, claims for an injunction under s.3A may be brought by a company in its own right: Harlan Laboratories UK Ltd v Stop Huntingdon Animal Cruelty [2012] EWHC 3408 (QB)  [5]-[9]; Astrellas Pharma v Stop Huntingdon Animal Cruelty [2011] EWCA Civ 752 [7].” (emphasis added)

98.  They also drew the Court’s attention to what the learned Judge stated at [50] in Canada Goose UK Retail Ltd:

“A corporate entity is not a ‘person’ capable of being harassed under the Act: section 7(5)  and Daiichi Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty [2004] 1 WLR 1503. However, a company may sue in a representative capacity on behalf of employees of the company if that is the most convenient and expeditious way of enabling the court to protect their interests: Emerson Developments Ltd v Avery [2004] EWHC 194 (QB)  at [2].” (emphasis added)

99.  On the basis of the aforesaid authorities, SEKSL submitted that it could sue in a representative capacity on behalf of its employees if that is the most convenient and expeditious way of enabling the court to protect their interests.

100.  As the learned Judge relied on the case of Emerson Developments Ltd v Avery [2004] EWHC 194 (QB)  (at [2])  in both authorities, we should take a look at the Emerson case more closely.  In this case, Mr Justice Field started his Judgment by introducing the background of the case as follows:

“1. This is an application for injunctive relief under section 3 of the Protection Against Harassment Act 1997 (‘the Act’). The first five claimants are companies constituting a corporate group (‘the Emerson Group’), which carries on the business of owning, managing and letting real property. The second claimant owns Blays House in Egham, Surrey, which it leases to Yamanouchi UK Limited (‘Yamanouchi’)  under a commercial lease for ten years, which commenced on 31^st January 2003. The sixth claimant, Mr Wilson, is a director of the first three claimants, and is a full-time employee of the first claimant. He sues on behalf of himself and all of the other employees of the corporate claimants (‘the Emerson employees’).

2. On 15^th January of this year, His Honour Judge Clark, sitting as a High Court judge, made an order granting leave for Mr Wilson to represent the Emerson employees in these proceedings under CPR 19.6. It was argued by Mr Westgate, who appeared for the first three defendants, that there was an insufficiency of common interest for Mr Wilson to sue in this capacity. I reject that submission. […] In my judgment, the representation by Mr Wilson of the many employees of the Emerson Group is a most convenient and expeditious way of allowing the court the opportunity of protecting the interests of all those employees. Accordingly, I do not propose to disturb the permission granted by His Honour Judge Clark.” (emphasis added)

101.  One can immediately appreciate that in the Emerson case, it was not the company which was bringing the representative action, but Mr Wilson, who was a director.  Hence, the case is not about a company bringing representative action on behalf of its employees at all.

102.  However, SEKSL’s counsel argued that it does not matter, because, they said, all that Nicklin J was doing in both MBR Acres Ltd and Canada Goose UK Retail Ltd was to draw an analogy from the situation in Emerson to corporate plaintiffs.  With respect, I cannot accept that submission, because it is plain from the judgments quoted above that the learned Judge was simply applying the approach of Emerson, without saying that he was just drawing an analogy from what was done in Emerson.  Further, his Lordship could not do so anyway because in so doing he would be ignoring the requirement of CPR 19.6(1)  which, like our own Order 15 rule 12(1)  of the RHC, also laid down the “same interest” requirement. 

103.  Hence, insofar as it is suggested that Hong Kong Court should allow a corporate plaintiff to sue on behalf of its employees, agents, etc., for the tort of harassment if it is the most convenient and expeditious way of enabling the Court to protect their interests, I reject that argument.

SEKSL’s claim for damages

104.  The defendant also sought to argue that even if SEKSL can maintain a claim for harassment, its claim for damages is hopeless and bound to fail.  

105.  In this regard, it should be borne in mind how the First Summons was structured.  It reads:

“[…] an application on the part of the Defendant for an Order that:-

1. A declaration that, as a matter of law, a corporate entity has no cause of action against a person under the tort of harassment and, as a consequence:

(a)  the claims of [SEKSL] in this action for injunctive relief and/or damages be dismissed; and

(b)  SEKSL has no locus standi as plaintiff to represent the representees in this action and the entire action be dismissed;

[…]” (emphasis added)

106.  It can therefore be seen that, in the First Summons, the defendant has not sought to dismiss SEKSL’s claim for damages in the event the Court holds that it has a cause of action under the tort of harassment. 

107.  I therefore do not think it right to consider this aspect of the defendant’s submissions.  In any event, given this Court’s conclusion that SEKSL has no cause of action under the tort of harassment, the defendant’s submissions on damages are academic.

Conclusion

108.  I am of the view that a corporate entity has no standing to make a claim under the common law tort of harassment in its own capacity. 

109.  In such circumstances, it is also inappropriate for SEKSL to commence a representative action on behalf of the Representees.

110.  In my view, it is plain and obvious that SEKSL’s claim against the defendant should be struck out.

OTHER GROUNDS OF STRIKING OUT AND APPLICATION FOR STAY

111.  Given the above conclusion, without disrespect to counsel, I do not propose to deal with the other grounds upon which the defendant applied for striking out of this action.  Nor do I think it is necessary to deal with the defendant’s application for stay because I agree with her view that the whole action should be dismissed.  The issue of stay has therefore become academic.

ORDER

112.  For reasons of the aforesaid, it is ordered that SEKSL’s claims against the defendant be dismissed.

COSTS

113.  I order that SEKSL shall bear the defendant’s costs of the action (including the costs of the First Summons and the Second Summons), such costs shall be taxed if not agreed, with certificate for two counsel.

114.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper)  within 14 days hereof.