袁靄儀 v. 協峰電子有限公司及另一人

HCMP1824/2005 and CACV 114/2006

HCMP1824/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1824 OF 2005

(ON INTENDED APPEAL FROM DCCJ 7079/2003, DCCJ 7080/2003,

DCCJ 7081/2003, DCCJ 7184/2003, DCCJ 7185/2003,  DCCJ 7257/2003,
DCCJ 7258/2003 &  DCCJ 2702/2004 [CONSOLIDATED];
DCCJ 378/2005 AND DCCJ 442/2005)

DCCJ 7079/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7079 OF 2003

BETWEEN

DCCJ 7080/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7080 OF 2003

BETWEEN

DCCJ 7081/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7081 OF 2003

BETWEEN

DCCJ 7184/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7184 OF 2003

BETWEEN

DCCJ 7185/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7185 OF 2003

BETWEEN

DCCJ 7257/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7257 OF 2003

BETWEEN

DCCJ 7258/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7258 OF 2003

BETWEEN

DCCJ 2702/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2702 OF 2004

BETWEEN

(CONSOLIDATED PURSUANT TO ORDER OF HIS HONOUR
JUDGE A. TO DATED 3RD NOVEMBER 2004)

DCCJ 378/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 378 OF 2005

BETWEEN

DCCJ 442/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 442 OF 2005

BETWEEN

AND

CACV 114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 114 OF 2006

(ON APPEAL FROM HCA 509/2004)

----------------------

(Heard Together)

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JUDGMENT

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Hon.  Rogers V-P:

1.  I agree with the judgment of Yuen JA and the orders proposed.  There will therefore be orders as indicated in paragraphs 40 and 51 below.

Hon. Yuen JA:

2.  There were two matters before us on 25 April 2006:

(1) in HCMP 1824/2005, the Plaintiff’s application for leave to appeal from an order of H.C. Wong, D.J. given on 20 July 2005 striking-out her writs in 8 District Court actions which had been consolidated, as well as in 2 other actions (DCCJ 378/2005 and DCCJ 442/2005);

(2) in CACV 114/2005, the Plaintiff’s appeal from Lam J’s refusal to give her leave in HCA 509/2004 under the Restricted Application Order ("RAO") provisions to add two persons as defendants.

Background

3.  It is necessary to refer to some background matters for an understanding of the grounds of appeal and this judgment.  In October 2002, the Plaintiff commenced employment with Heath Co. Ltd ("Heath").  The probation period was 6 months.  Before that period expired however, the Plaintiff’s employment was terminated on 6 March 2003.

21/2/2003 letter

4.  Before the termination, on 21 February 2003 when the Plaintiff was not in Hong Kong, a letter signed by 29 staff members of Heath ("the 21/2/2003 letter") complaining about the Plaintiff’s conduct was given to Lai Yu Fai the then general manager and a director of Heath. 

3/3/2003 e-mail

5.  On 3 March 2003, Fred Leung a staff member of Heath sent an e-mail ("the 3/3/2003 e-mail") to Steve Marcum, vice-president of Heath, describing the Plaintiff as "an ape" and the other staff (including himself) as "all monkeys in the forest". 

Initial proceedings launched by Plaintiff

6.  After her employment was terminated, the Plaintiff did the following:

(1) in April 2003, she instructed solicitors to write a letter before action to Heath complaining of defamation by a staff member arising from statements made by that staff member to companies for whom the Plaintiff worked before joining Heath;

(2) in May 2003 she issued court proceedings against Heath in respect of that incident (which were later settled);

(3) in June 2003, she filed a complaint with the Privacy Commissioner for Personal Data against Heath and Mr Lai (which were later withdrawn);

(4) in July 2003, she filed a complaint with the Equal Opportunities Commission ("EOC") against Heath and Mr Lai for gender discrimination (which the Commission later discontinued);

(5) in September 2003, she issued another set of court proceedings against Heath (which were later struck out)

She also made a report to the ICAC against Mr Lai.

EOC investigations and supply of 21/2/2003 letter and 3/3/2003 e-mail

7.  After the EOC received the Plaintiff’s complaint in July 2003, it proceeded to launch investigations.  In August 2003, it asked Heath and Mr Lai to respond to the Plaintiff’s complaint. 

8.  On 11 September 2003, Heath and Mr Lai (then still with Heath) responded to the EOC to the effect that the Plaintiff’s employment had been terminated not because of gender discrimination but because of her conduct. 

9.  In support of their response, Heath and Mr Lai supplied the 21/2/2003 letter and the 3/3/2003 e-mail to the EOC.

10.  As part of its routine procedure, the EOC then sent copies of the 21/2/2003 letter and the 3/3/2003 e-mail to the Plaintiff.

11.  Soon after this, the Plaintiff demanded apologies from some of the signatories to the 21/2/2003 letter.

Defamation proceedings in District Court

12.  On 15 December 2003, on the same day that the EOC discontinued investigations, the Plaintiff issued writs in the District Court against some of the signatories of the 21/2/2003 letter alleging that they had defamed her.

13.  Between 15 December 2003 and 24 December 2003, 7 writs were issued against 16 signatories.  Another writ was issued in 2004 (DCCJ 2702/2004) against 3 other individuals for malicious falsehood.  Another writ was issued in 2005 (DCCJ 442/2005) against 10 other individuals and 3 companies (not including Heath) for defamation.

14.  In 2005, DCCJ 378/2005 was issued against Mr Leung (who was already a defendant in an earlier District Court action) and the same 3 companies, alleging that he had defamed her in the 3/3/2003 e-mail.

Defamation proceedings in the High Court

15.  On 4 March 2004, the Plaintiff issued proceedings in the High Court against Heath and Mr Lai, also for defamation and/or malicious falsehood.  This claim was summarized by Tang J (now Tang JA) in his judgment of 2 December 2004 as follows (para. 11):

"It [the Statement of Claim] also contained a document headed ‘a concise Statement of Claim’ in which the nature of the plaintiff’s claim was stated to be defamation and false statements given to the EOC.  It appears from the concise Statement of Claim as well as the ‘Statement of Claim in details’ that the plaintiff’s claim was based on exhibits A and B, namely, the letters dated 11 September 2003 by the 1^st defendant and the 2^nd defendant respectively to the EOC.  However the Statement of Claim also had exhibited to it three other documents which were marked exhibits C, D and E to the Statement of Claim.  Exhibit C are a number of signed statements by various staff members of the 1^st defendant.  Exhibit D is a letter dated 21 February 2003 signed by 16 (sic) members of the 1^st defendant’s staff.  Exhibit E is a letter dated 5 March 2003 from 27 staff members giving notice to the 1^st defendant that they would resign on 5 March 2003 by one month’s notice.  The plaintiff accepted that all these documents were supplied by the EOC to her for her response in connection with her complaint".

District Court defendants’ strike-out application before Judge To

16.  Meanwhile in February 2004, the defendants in the District Court proceedings issued a summons for an order that all proceedings be dismissed or stayed on the ground that they were vexatious or an abuse of the process. 

17.  The grounds (set out in the skeleton submission of Mr Johnny Mok, counsel for the defendants) were that the proceedings were an abuse because:

(1)  they were instituted for the purpose of achieving a collateral advantage beyond the proper scope of the actions, viz. not to obtain damages from the individual staff members, but to obtain evidence to support her case against Heath, and

(2)  the proceedings were conducted in a manner designed to cause the defendants expense and harassment. 

18.  On 4 June 2004, To D.J. stayed the proceedings on the grounds advanced by the defendants. 

19.  However, he did not set aside the writ because "it has not been argued by the Defendants that the letter of 21 February 2003 was not defamatory".  He considered that accordingly there was still a prima facie case of defamation against the defendants and he subsequently ordered on 3 November 2004 that the Plaintiff serve a fresh statement of claim.  This was filed on 20 December 2004 when an amended writ was issued.

Heath’s strike-out of HCA 509/2004 before Tang J

20.  In the meantime however, Heath applied to strike-out the writ in HCA 509/2004 (at that stage, Mr Lai, the 2^nd Defendant had not been served).  The grounds for this application was that the proceedings should be dismissed because absolute privilege or immunity from suit attached to the 21/2/2003 letter and the 3/3/2003 e-mail, which had been disclosed to the EOC for the purpose of its investigations under conditions of confidentiality and an implied undertaking that they would not be used for any other purpose, or that the use of those documents in the proceedings was against public interest.

21.  On 2 December 2004, Tang J struck out the writ against Heath on those grounds.  In para. 11 of his judgment, the judge had specifically noted:

“the plaintiff accepted that all these documents [the documents on which the Plaintiff based her claim] were supplied by the EOC to her for her response in connection with her complaint”.

22.  Before us, the Plaintiff acknowledged that to be the case.  She agreed that she did not allege before Tang J that she had the documents (the 21/2/2003 letter and the 3/3/2003 e-mail) at any time before the EOC gave them to her as part of their investigations.

23.  The Plaintiff appealed from Tang J’s order but had an order for security for costs made against her.  Although she has lodged an appeal from the order for security, that has not been heard due to delay on account of the Plaintiff’s application for legal aid which has since been refused .  In the meantime, she has failed to pay the security and there was no stay of the order for security, so Tang J’s order stands. 

Strike-out of the District Court actions by Judge H.C. Wong

24.  Following Tang J’s order on 2 December 2004 and the Plaintiff’s filing of a fresh statement of claim in the consolidated District Court actions on 20 December 2004, the defendants in the District Court actions applied to strike out the writs again, this time on the same grounds as in HCA 509/2004.

25.  The Plaintiff objected to the summonses on the grounds essentially that:

(a)  she had in fact been supplied with the 21/2/2003 letter and the 3/3/2003 e-mail even before they were supplied to her by the EOC and

(b)  the defendants were estopped from relying on the absolute immunity or confidentiality or implied undertaking grounds because they had failed to raise them before Judge To.  

26.  On 20 July 2005,  Judge H.C. Wong struck out the District Court actions, adopting the reasoning of Tang J in HCA 509/2004.

Application for leave to appeal

27.  The Plaintiff sought leave to appeal from that order.  Leave was refused by the judge and by Le Pichon JA on paper, hence the renewed application before this court.

Discussion

28.  I take the view that the judge was correct.  The Plaintiff has not sought to argue before us that Tang J was wrong as a matter of law in holding that there was immunity from suit or confidentiality or an implied undertaking.  Rather she sought to escape the effect of that judgment by reference to the arguments I have set out in para. 25. 

(a) Evidence shows documents obtained from EOC investigation

29.  In respect of (a), the Plaintiff argued before us that the true version of the facts was that she did have those documents before they were supplied to her by the EOC.  What is true or not can only be assessed by the court on the evidence put before it.  The judge did not accept the Plaintiff’s latest version to be true.  Apart from the matters referred to in paras. 45- 46 of the judgment, there was also clear contemporaneous evidence entitling the judge to arrive at that conclusion. 

30.  First, I refer to the flurry of activities initiated by the Plaintiff immediately after her termination (para. 6 above).  The solicitors’ letter before action referred to a staff member Sally Chong who was said to have made defamatory remarks to the Plaintiff’s former employers.  Miss Chong was also one of the signatories to the 21/2/2003 letter.  However the solicitors’ letter before action did not refer to the 21/2/2003 letter.   

31.  Secondly, it will be noted that none of the proceedings initiated by the Plaintiff during those few months contained any reference to the 21/2/2003 letter or the 3/3/2003 e-mail.

32.  Thirdly, I have referred to the fact that the Plaintiff had never alleged before Tang J that she had these documents before the EOC supplied them. 

33.  Fourthly, the Plaintiff herself has asserted in paras. 10 and 12 of her fresh statement of claim (filed in the District Court actions) that she only learnt of the 21/2/2003 letter from the EOC responses:

"10. However, Mr Steve Marcum changed his mind suddenly in the morning of 6^th March 2003 by terminating my service and giving me a simple reason of ‘non cultural fitness’.  Without knowing the real reason behind the screen, I had a golden hand shake with Mr Steve Marcum before I left the company. 

12. On 6^th November 2003 exactly after 8 months from my termination, I received a bundle of replies from Mr Lai and Mr Steve Marcum, forwarded to me by the EOC.  From the bundle of replies, I  then started to learn there was  a letter of complaint signed by a group of 29 staff on 21^st February 2003 while I was still in USA, which followed by a group resignation of 27 staff excluding Miss Sally Chong and Mr Kent Chan from a list of 29 staff who signed their letter on 21^st February 2003".  (Emphasis added). 

34.  By way of contrast, no contemporaneous evidence has been  advanced by the Plaintiff in support of her present version that she was aware of the 21/2/2003 letter and the 3/3/2003 e-mail before she received them from the EOC.

(b) No issue estoppel

35.  In respect of (b), there is no issue estoppel or res judicata in the strict sense as it is clear from Judge To’s judgment exactly what had (and what had not) been argued before him.  At that time, the Defendants were seeking to strike out the claim on the basis that the actions were pursued for the purpose of collateral advantages.  At para. 15 of his judgment , the judge recorded the defendants’ then arguments as follows:

"The Defendants’ complaint of abuse of process is based on the multiplicity of actions instituted by the Plaintiff, which Mr Mok says were designed both to achieve for the Plaintiff collateral advantages, namely multiple recovery, evidence  to be used against Heath in another action and re-opening of the EOC inquiry, and to cause the Defendants (Heath and other defendants in related actions) problems beyond those ordinarily encountered in the course of properly conducted litigation, namely aggravating their legal costs and adverse publicity".  

36.  It is clear from that summary of the Defendants’ complaint that at that time, the Defendants had not sought to strike out the actions on the grounds later brought before Tang J (immunity from suit or confidentiality or implied undertaking).

37.  It is true that in para. 9 of his skeleton before Judge To, Mr Mok had said:

"P also relies on certain witness statements prepared by some of Ds for the purposes of the EOC investigation [A20, 23, 24, 25, 27, 28, 38].  It is trite law that no action can be founded upon witness statements which came into being in the course of investigation by a statutory tribunal.  Absolute immunity attaches to these statements: see Mahon v Rahn (no.2) [2001] 1 WLR 2150" (Emphasis added).

However it can be seen that the reference to immunity was in relation to "witness statements which came into being in the course of investigations".  Mr Mok was not addressing the 21/2/2003 letter and the 3/3/2003 e-mail which had come into being before the investigations and which did not come into being in the course of investigations.

38.  However I have also considered the question whether the Defendants may nevertheless be caught by the wider aspect of res judicata, which has sometimes been called the Yat Tung principle after the judgment in Yat Tung Co v Dao Heng Bank [1975] AC 581.

39.  I do not think the Defendants are affected by the Yat Tung principle.  Quite apart from the debate over the applicability of the principle to interlocutory proceedings (Hong Kong Civil Procedure 2006, para. 18/19/11), the short answer is that the version of the Statement of Claim before Judge To did not plead that the 21/2/2003 letter and the 3/3/2003 e-mail were only supplied to the Plaintiff as part of the EOC investigation.  The allegation that "from the bundle of replies, I  then started to learn there was  a letter of complaint signed by a group of 29 staff on 21^st February 2003" was only added in para. 12 of the fresh statement of claim which was before Judge H.C. Wong.  Accordingly, it cannot be said that the Defendants are abusing the process by re-litigating matters which could and should have been raised before.

Order in HCMP 1824/2005

40.  In conclusion therefore, I do not see any prospects of success in the Plaintiff’s proposed appeal from Judge H.C. Wong’s decision and I would refuse leave to appeal.

CACV 114/2006

41.  I then come to CACV 114/2006.  By way of background, I should mention that the Secretary for Justice had in May 2005 instituted proceedings in HCMP1087/2005 for an order under s.27 High Court Ordinance that the Plaintiff be made a vexatious litigant.  Further, in HCA 96/2005 (another writ issued by the Plaintiff against Heath), A. Cheung J had on 16 November 2005 struck out the writ but directed that the question whether a Restricted Proceedings Order ("RPO") should be made against the Plaintiff be heard.

42.  On 20 December 2005, Lam J heard the s.27 proceedings as well as the RPO proceedings.  After the judge indicated that an RPO and RAO would be made, the Secretary for Justice withdrew the s.27 application. 

RAO

43.  On 28 December 2005, Lam J made an RPO and an RAO against the Plaintiff.  As part of the RAO, the Plaintiff was prohibited from making any application to the court in HCA 509/2004 without the leave of the designated judge (Lam J) being first obtained.

Plaintiff’s application for leave under RAO

44.  On 13 March 2006, the Plaintiff made a written application to Lam J for leave to add Mr Marcum and Miss Kathy Ford (another vice-president of Heath) as defendants in HCA 509/2004 and to file a fresh statement of claim alleging principally how Mr Marcum and Miss Ford (and Mr Lai, the existing 2^nd defendant) were aware that she (the Plaintiff) was aware of the 21/2/2003 letter and the 3/3/2003 e-mail before they were supplied to her by the EOC.

Refusal of leave

45.  On 14 March 2006, Lam J refused leave on the ground that:

"The materials submitted and the draft Fresh Statement of Claim do not disclose any arguable cause of action against Miss Ford and Mr Marcum.  It is yet another attempt to vex the staff of Heath".

Appeal

46.  The Plaintiff appealed Lam J’s refusal of leave.  The procedure of an appeal against the refusal of an RAO leave application is provided for under para. 15(b) of Practice Direction 11.3.

Plaintiff’s arguments

47.  Before us, the Plaintiff argued that she wishes to join Mr Marcum and Miss Ford as defendants, not because they have done any wrong to her, but because she wished them to give evidence to support her allegation that she had obtained the 21/2/2003 letter and the 3/3/2003 e-mail before they were supplied by the EOC.  She is facing a strike-out application by Mr Lai, the 2^nd Defendant in HCA 509/2004, and she is aware that procedurally it is not possible for her to serve subpoenas on Mr Marcum and Miss Ford for them to attend the strike-out application and give oral evidence.  The Plaintiff is therefore seeking to join them as defendants so that they would be forced to say in their defences whether she indeed had the documents before they were supplied by the EOC.

Discussion

48.  From the Plaintiff’s arguments, it is clear that the application to join Mr Marcum and Miss Ford and to file a fresh statement of claim involving them was to achieve the collateral advantage of forcing them to reply to her allegations so that (she hopes) she could resist Mr Lai’s strike-out application.  That is a misuse of the process of the court.  The Plaintiff should have been aware of this, as that was the ground on which Judge To had stayed her actions in his judgment of 4 June 2004.

49.  Accordingly, Lam J was clearly right when he refused leave under the RAO leave application.

Application to file fresh statement of claim ancillary to application to add defendants

50.  As a matter of completeness, I would add that the "fresh statement of claim" in the RAO leave application was not restricted to inserting matters involving Mr Marcum and Miss Ford.  There were also new allegations made against Mr Lai, the existing 2^nd Defendant.  However, from Lam J’s grounds for refusing leave (which I have set out at para. 45), it is apparent that he has assumed that the application for leave to file the fresh statement of claim was ancillary to the application to join Mr Marcum and Miss Ford.  This appeal has also been dealt with on that assumption.

Order in CACV 114/2006

51 The Plaintiff's appeal against Lam J's refusal of leave under the RAO leave application is dismissed.