LICAYO, JINNA DIMINO v. SCULLY, SEAN JOSEPH

DCEO 7/2021

[2021] HKDC 1216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 7 OF 2021

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DECISION

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INTRODUCTION

1.  This is the First Hearing of this equal opportunities action.

2.  The respondent is absent.

3.  By the summons dated 7 September 2021, the claimant invites me to take the Notice of Claim and the Notice to Respondent filed herein to have been effectively served.  Alternatively, the claimant invites me to dispense with service of the said Notices on the ground that the respondent is evading service.  Either way, the claimant applies for judgment in terms of her claim in default of any response from the respondent.

THE CLAIM

4.  The respondent was a teacher teaching at Fung Kai Liu Yun Sum Memorial School (“School”).

5.  The claimant was employed by the respondent as a live-in foreign domestic helper between 12 September 2017 and 25 February 2019.  Her primary duties included taking care of the respondent, his wife and their three children and she was required to reside with the family.

6.  It is the claimant’s case that during the period from around October 2017 to January 2019, the respondent, by a continuing act or course of conduct, unlawfully sexually harassed her by making unwelcome sexual advances to her and/or engaging in unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated, and/or creating a sexually hostile and intimidating work environment, contrary to sections 2(5)  and 23(2)  of the Sex Discrimination Ordinance, Cap 480 (“SDO”).  The details of the impugned act or conduct are set out in the Notice of Claim.

7.  On 25 February 2019, the respondent formally terminated the claimant’s employment.

8.  On 27 March 2019, the claimant filed a complaint with the Labour Department for outstanding wages and entitlements under her employment contract.  The labour claim was later settled by the respondent.

9.  On 29 March 2019, the claimant lodged a sexual harassment complaint against the respondent with the Equal Opportunities Commission (“EOC”).  After the conclusion of the conciliation conducted by the EOC, the claimant commenced this action to seek the following relief:-

(a)  A declaration that the respondent had engaged in a conduct, or committed an act, that was unlawful under the SDO and that he must not repeat or continue the conduct or act;

(b)  An order that the respondent must provide a written apology to her;

(c)  Damages for injury to feelings in the sum of $150,000;

(d)  Punitive or exemplary damages in the sum of $20,000;

(e)  Costs; and

(f)  Interest.

SERVICE OF FORM 1 AND FORM 2

10.  After the Notice of Claim in Form 1 was filed, the court caused a copy of it, accompanied by the Notice to Respondent in Form 2 informing the respondent that he must respond if he wishes to oppose the claim and that in default of response or appearance the court may make an order in his absence, to be sent to the respondent at the address of the School by registered post in accordance with rules 8 and 18 of the District Court Equal Opportunities Rules, Cap 336G (“EO Rules”).

11.  On the service of the said Notices, the claimant filed the following affidavits/affirmations:-

(a)  the affidavit of a Mr Au-Yeung, who is a teacher of the School;

(b)  the affirmation of a Ms Lam, who is the Executive Officer of the School; and

(c)  the affirmation of Ms Wong, Legal Counsel of the EOC who is representing the claimant at the hearing.

12.  According to Mr Au-Yeung, the School received the envelope containing the said Notices on 23 July 2021.  That day happened to be the day the respondent was leaving Hong Kong for good after concluding his employment with the School.  Mr Au-Yeung was asked to personally deliver the envelope to the respondent when he bid him farewell at the airport.

13.  At about 12:30 pm on that day, Mr Au-Yeung met the respondent at the airport.  He handed over the envelope containing the said Notices to him and asked him to sign on the School’s dispatch book to acknowledge receipt of it. According to Mr Au-Yeung:-

“I saw him looking at the front of the Mail for a few seconds, after which he took my pen and wrote the words ‘Moved to Canada Return to sender’ on the Mail envelope which remained unopened. He then shoved the Mail back to me, said ‘no, no’, and crossed his arms out in front of him in the shape of an ‘X’, which I took to mean that he declined to take the Mail and sign on the School’s dispatch book.”

14.  Mr Au-Yeung returned to the School and gave the envelope to Ms Lam.

15.  According to Ms Lam, she reported the matter to the Principal and was asked to make enquiries as to what to do.  On 26 July 2021, she wrote the words “無此人（已離職）”[1] on a piece of paper and stuck it onto the envelope before sending the envelope back to the District Court.

DISCUSSION

16.  Under rule 18 of the EO rules, notices in Form 1 and Form 2 may be served on the respondent (i)  personally, (ii)  by registered post, (iii) by insertion through the letter box at the address of service, or (iv)  in any other manner that the Court directs.

17.  Personal service of a document is effected by leaving a copy of the document with the person to be served: Order 65, rule 2 of the Rules of the District Court.

18.  In Dynasty Line Limited v Sukamto Sia [2009] 4 HKLRD 454, the Court of Appeal provided the following guidance on personal service:-

“20. In terms of personal service, the process server must hand the relevant document to the person upon whom he has to serve. If that person will not accept the document, the only concession to practicality is for the server to tell him what the document contains and leave it with or near him: see Kenneth Allison Ltd v AE Limehouse & Co [1992] 2 AC 105 per Lord Goff of Chieveley.

21.  In terms of ‘leaving’, once the intended recipient (assuming him to have the required knowledge of its nature)  has been given a sufficient degree of possession of the document to enable him to exercise dominion over it for any period of time however brief, the document has been left with him in the sense intended by the rule: see Nottingham Building Society v Peter Bennett & Co (unrep., English Court of Appeal, 14 February 1997), per Waite LJ.”

19.  In that case, the process server caught up with the 1^st defendant at the airport when the latter was about to leave Hong Kong.  He told the 1^st defendant that he wanted to give him ‘court documents’ but the 1^st defendant refused to take the package.  He placed the package on the 1^st defendant’s trolley suitcase and the package fell off as the 1^st defendant walked away.

20.  The Court of Appeal (per Cheung JA with whom the other members of the Court agreed)  opined that:-

“24.  … While I accept that it was not difficult for [the process server] to inform the first defendant that the package consisted of a writ, my view is that it was sufficient for him to inform the first defendant that the package consisted of court documents.

25.  I agree with the view expressed by Hoffmann LJ (as he then was)  in Walters v Whitelock (unrep., English Court of Appeal, 19 August 1994)  that a practical approach must be adopted. It is sufficient to bring to the attention of the person being served that it is a legal document which requires his attention. The purpose of the requirement that he be told is that he should not be able to say that he ignored the document on the grounds that it was simply junk mail or something which did not necessarily require his attention at all.

26.  I do not accept that this approach is confined to situations where the person to be served was already engaged in legal proceedings with the other party and previously had been served with legal documents by the other party.  In my view so long as the person to be served knew that he was being served with court documents which required his attention, it was sufficient to constitute valid service provided the other conditions were fulfilled as well.”

21.  I agree with Ms Wong (the claimant’s counsel)  that in this case there is no issue whether Mr Au-Yeung had found the correct person to be served as he was formerly a colleague of the respondent at the School.  Mr Au-Yeung did hand to the respondent the envelope containing the said Notices.  The respondent had actual possession of it before he wrote “Moved to Canada Return to sender” on the front and returned it to Mr Au-Yeung.

22.  Unlike Dynasty Line, there is no evidence that Mr Au-Yeung had expressly told the respondent that the envelope contained “court documents”. But I accept Ms Wong’s submission that the respondent must have known that the envelope contained court documents because:-

(a)  Prior to the commencement of these proceedings, the EOC and the respondent had exchanged correspondence by which the EOC had indicated that legal proceedings would be commenced against the respondent.  The respondent had responded to the EOC in the course of the negotiation (such as his letters dated 27 November 2020 and 12 January 2021).  In the ultimatum dated 3 May 2021, the EOC threatened: “This is the last offer from Ms Licayo before she commences proceedings.  Please confirm in writing within 14 days of this letter whether you are agreeable to this offer.  In default, the offer will lapse and she shall commence proceedings against you without further notice…”.[2]

(b)  There is a remarkable Judiciary logo on the top left hand corner of the envelope.

(c)  The envelope is stamped with the stamp of the District Court and printed with the action number “DCEO 7/2021”.

23.  Indeed, I accept Ms Wong’s further submission that the respondent was deliberately evading service.  If the respondent did not know what was contained in the envelope, he would have signed to acknowledge receipt and taken a look at it.  After all, it might have come from the School.  If he had thought that the envelope contained junk mail or something which did not require his attention, he would have signed for receipt and simply discarded it.  The fact that he, after receiving the envelope, took time to ponder and then refused to sign before shoving it back to Mr Au-Yeung with the indication – in word and deed – that he refused to receive it is in my view testament of his realization of what the envelope contained.

24.  In Tang Yin Becky v Pang Chun Ngor, there was an issue as to whether service of a sealed order on the respondent (Ms Pang)  on 25 May 2019 at the MTR station was effective.  Ms Pang claimed that after receipt of the document from the process server, she immediately returned it and left upon learning that it came from the applicants.  Au Yeung J ruled that the personal service was effective and Ms Pang had clearly evaded service.[3]

25.  In Secretary for Justice v Seng Ming Ta, Peter, the respondent (Mr Seng)  was arrested by the ICAC and released on bail pending further investigations.  A notice was issued under section 14(1)  of the Prevention of Bribery Ordinance, Cap 201, for Mr Seng to furnish information for the investigation.  The envelope containing the notice was successfully sent to Mr Seng’s address by double registered mail.  A few days later, the envelope containing the notice was returned with the endorsement: “We refuse to accept this letter, (‘letter’ deleted), service.  Please return it to sender.”  Deputy High Court Judge Lugar-Mawson (as he then was), ruled that the magistrate had erred in refusing to accept that service of the notice had been good.  The learned Judge opined that:-

“The envelope bore a specific statement, ‘We refuse to accept this letter, (‘letter’ deleted), service. Please return it to sender.’ The only inference to be drawn from that is that the author, or the instigator, of that statement was aware that the envelope contained a notice and one which they did not want to accept. The only person who would be concerned about that must be the subject of the notice, the respondent himself.”[4]

26.  In the premises, I accept that the respondent must have realized what he was being served were court documents that required his attention and that the personal service effected on 23 July 2021 was valid.

27.  The respondent has neither responded in accordance with rule 10 of the EO Rules nor appeared at the hearing today.  Under rule 13 of the EO Rules, the claimant is entitled to apply for judgment in terms of her claim against the respondent.

DISPOSITION

28.  It is not the normal practice of the court to make a declaration without a trial, particularly when the declaration declares that the defendant in default has acted fraudulently.  However, that is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief is denied.[5]

29.  Furthermore, even if liability is established, there is an elaborate procedure to follow before the court would order the respondent to tender a written apology to the complainant.[6]

30.  Ms Wong has instructions not to press for declaratory relief and a written apology.  The claimant is content to have judgment entered in her favour for damages to be assessed and costs.

31.  For the above reasons, I enter judgment for the claimant against the respondent for damages to be assessed with costs up to and including this hearing, to be taxed if not agreed.

32.  Lastly, I thank Ms Wong for her able assistance.