Case Detail

YUEN OI YEE, LISA v. LEUNG YIK HON, FRED AND ANOTHER

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46151-EN-2005-08-12

YUEN OI YEE, LISA v. LEUNG YIK HON, FRED AND ANOTHER

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DCCJ7079/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7079 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHONG KONG PO, SALLY	1st Defendant
	KEN WONG	2nd Defendant
	JACKY HO	3rd Defendant
	KEN HUI	4th Defendant

____________________

DCCJ7080/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7080 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHIU WING WAH, WILSON	Defendant

____________________

DCCJ7081/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7081 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHAN KAM WAH, KENT	Defendant

____________________

DCCJ7184/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7184 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	KU LAI CHIU, CINDY	1st Defendant
	CHAN KWAI HING, CHANNY	2nd Defendant
	HO SIU KWAN, MANDY	3rd Defendant
	LEUNG MAN YEE, SOFIA	4th Defendant

____________________

DCCJ7185/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7185 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHAN KEUNG	Defendant

____________________

DCCJ7257/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7257 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	LEUNG YIK HON, FRED	1st Defendant
	LAM CHUN WAI, ANNO	2nd Defendant

____________________

DCCJ7258/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7258 OF 2003

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	TSE MEI PO, MABLE	1st Defendant
	CHOI YIN KI, ADA	2nd Defendant
	HO MAY HAR, SANNIE	3rd Defendant

____________________

DCCJ2702/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2702 OF 2004

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	LUI CHUNG TAK	1st Defendant
	TSUI YIU MING, ALLEN	2nd Defendant
	KUI SUK YIN, KIMMY	3rd Defendant

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

DCCJ378/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 378 OF 2005

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	LEUNG YIK HONG, FRED	1st Defendant
	HIG-DHP BARBADOS LTD	2nd Defendant
	HIG CAPITAL	3rd Defendant
	DESA INTERNATIONAL LLC	4th Defendant

____________________

DCCJ442/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 442 OF 2005

____________________

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHAN CHI TAK, RINGO	1st Defendant
	CHAN HON HUNG	2nd Defendant
	CHAU CHI SANG	3rd Defendant
	CHIK KIN WING	4th Defendant
	LAM KAI KUONG	5th Defendant
	LI CHI KEUNG, DENNIS	6th Defendant
	LUI CHIU MAN	7th Defendant
	MOK SHUT YING, JENNY	8th Defendant
	NGAI PING SUN	9th Defendant
	YEUNG CHUNG FAT	10th Defendant
	HIG-DHP BARBADOS LTD	11th Defendant
	HIG CAPITAL	12th Defendant
	DESA INTERNATIONAL LLC	13th Defendant

____________________

Coram: Her Honour Judge H C Wong in Chambers

Date of Hearing: 12 August 2005

Date of Decision: 12 August 2005

_____________

D E C I S I O N

______________

1. The plaintiff applies at today’s hearing for a stay or adjournment of her application for leave to appeal out of time pending the trial and outcome of the trial of High Court Action No. 509/2004 against the 2nd defendant in that action, Mr Lai, in the High Court. The application is opposed by Mr Mok, counsel for the defendants.

2. From what I am given to understand, Miss Yuen’s reasons for adjournment are that Mr Lai will be a vital witness to help her to prove her early knowledge of the existence of the two documents, the subject of which are central to the three actions here. She will attempt to obtain from Mr Lai at High Court Action 509/2004 such information to assist her information to assist her present actions and therefore she asks this court to adjourn or stay the application for leave to appeal until after completion of the trial of High Court Action 509/2004.

3. Mr Mok submitted that there will not be a trial of the High Court Action 509/2004 because Mr Lai is bound to rely on the judgment of Tang J (as he then was) of 2 December 2004, striking out Miss Yuen’s claim against the 1st defendant Heath in 509/2004.

4. Since the plaintiff’s claim against Heath and Mr Lai are based on their respective responses to the Equal Opportunities Commissions following the plaintiff’s complaint to that body, the same reasoning applies to Mr Lai’s case that had applied in Heath’s case and therefore Mr Lai would be able to use the same reasoning to strike out Miss Yuen’s claim against him. For this reason, Mr Mok contends that there will not be a trial of 509/2004.

5. Furthermore, Mr Mok submitted that it is unlikely Mr Lai would assist the plaintiff in the present three actions against his former staff and employer. Neither would the ICAC documents assist the plaintiff because HCA509/2004 was based on the EOC documents.

6. I agree with Mr Mok’s submission for the reasons set out in my decision of 20 July 2005. It is unlikely that Mr Lai, who is the defendant in two of the plaintiff’s actions, would willingly turn up as her witness to give evidence, although it may merely be the plaintiff’s so-called early knowledge of the complaint letter by the staff and the Leung e-mail. Therefore, even if it is true that Mr Lai had indeed surfaced after a two year absence to defend High Court Action 509/2004, it would still not assist the plaintiff. The ICAC documents would also be subject to the same degree of privilege and immunity as the EOC documents. If the EOC documents could not be used in these actions, I do not see how the ICAC documents could be used.

7. Miss Yuen may be trying to show that she had already had knowledge of the two letters when she went to the ICAC soon after her dismissal. It is incumbent upon her to produce such evidence at the last hearing and not hope that in future the High Court Action 509/2004 may come to trial and in the trial process the documents could be disclosed. It is not something that is likely to happen because so far as I can see the ICAC complaint made by the plaintiff against Mr Lai has little relevance so far as the High Court Action 509/2004 is concerned which are based on the responses by Heath and Mr Lai to the EOC.

8. So far as the merits of the plaintiff’s action against the defendants in these three actions are concerned, I cannot see that the plaintiff has shown any chance of success in the appeal whatsoever. Her claims were frivolous and vexatious and abuse of process of court, and for reasons I have set out in my decision of 20 July this year, there is no element of public interest whatsoever in spite of the plaintiff’s claim. For these reasons, I dismiss the plaintiff’s application for adjournment of the application and the application for leave to appeal.

9. I grant to the defendant costs of the two applications in the hearing with certificate for counsel.

(H C Wong)
District Court Judge

Representation:

Plaintiff, in person, present

Mr Johnny Mok, instructed by Messrs Johnston Stokes & Masters, for the 1st to 19th Defendants in the eight consolidated actions, 1st Defendant in DCCJ378/2005, and 1st to 10th Defendants in DCCJ442/2005

DCCJ7079/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7079 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHONG KING PO, SALLY	1st Defendant
	KEN WONG	2nd Defendant
	JACKY HO	3rd Defendant
	KEN HUI	4th Defendant

DCCJ7080/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7080 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHIU WING WAH, WILSON	Defendant

DCCJ7081/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7081 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHAN KAM WAH, KENT	Defendant

DCCJ7184/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7184 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	KU LAI CHIU, CINDY	1st Defendant
	CHAN KWAI HING, CHANNY	2nd Defendant
	HO SIU KWAN, MANDY	3rd Defendant
	LEUNG MAN YEE, SOFIA	4th Defendant

DCCJ7185/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7185 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHAN KEUNG	Defendant

DCCJ7257/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7257 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	LEUNG YIK HON, FRED	1st Defendant
	LAM CHUN WAI, ANNO	2nd Defendant

DCCJ7258/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7258 OF 2003

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	TSE MEI PO, MABLE	1st Defendant
	CHOI YIN KI, ADA	2nd Defendant
	HO MAY HAR, SANNIE	3rd Defendant

DCCJ2702/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2702 OF 2004

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	LUI CHUNG TAK	1st Defendant
	TSUI YIU MING, ALLEN	2nd Defendant
	KUI SUK YIN, KIMMY	3rd Defendant

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

DCCJ378/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 378 OF 2005

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	LEUNG YIK HONG, FRED	1st Defendant
	HIG-DHP BARBADOS LTD.	2nd Defendant
	HIG CAPITAL	3rd Defendant
	DESA INTERNATIONAL LLC	4th Defendant

DCCJ442/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 442 OF 2005

BETWEEN

	YUEN OI YEE, LISA	Plaintiff
	and
	CHAN CHI TAK, RINGO	1st Defendant
	CHAN HON HUNG	2nd Defendant
	CHAU CHI SANG	3rd Defendant
	CHIK KIN WING	4th Defendant
	LAM KAI KUONG	5th Defendant
	LI CHI KEUNG, DENNIS	6th Defendant
	LUI CHIU MAN	7th Defendant
	MOK SHUT YING, JENNY	8th Defendant
	NGAI PING SUN	9th Defendant
	YEUNG CHUNG FAT	10th Defendant
	HIG-DHP BARBADOS LTD.	11th Defendant
	HIG CAPITAL	12th Defendant
	DESA INTERNATIONAL LLC	13th Defendant

Coram: Her Honour Judge H C Wong in Chambers

Date of Hearing: 19 July 2005

Date of Decision: 20 July 2005

D E C I S I O N

1. This is my decision in the consolidated action, DCCJ7079 of 2003, 7080, 7081, 7084, 7184, 7185, 7257 and 7258 of 2003, and 2702 of 2004 consolidated, and 378 and 442 of 2005. These actions heard together in three summons.

2. The defendants in the consolidated actions of DCCJ7078 to 7081, 7184, 7185, 7257, 7258 of 2003 and 2702 of 2004, (hereinafter referred to as consolidated actions), the 1st to the 10th defendants in DCCJ442 of 2005, and the 1st defendant in DCCJ378 of 2005, applied in four separate summonses to strike out the plaintiff’s Writ of Summons and Statement of Claim against them on the alternative grounds that they fail to disclose any reasonable course of action or are frivolous and vexatious, or constitute abuse of the process of court because:

(i) confidentiality and privacy attached to the alleged defamatory letter dated 21 February 2003 of the defendants, and the same is subject to an implied undertaking that it would not be used for any purpose other than that for which they were disclosed; namely, the proceedings before the Equal Opportunities Commission or consequential court proceedings under the Sex Discrimination Ordinance; and/or

(ii) the use or disclosure of the alleged defamatory letter dated 21 February 2003 in these proceedings is against public interest; namely, that such use or disclosure would result in the flow of information to or co-operation with the EOC being severely reduced; further or alternatively a determination of the question of whether the plaintiff is, as a matter of law, precluded from using or adducing as evidence the alleged defamatory letter dated 21 February 2003 for any purpose other than for the purposes of the proceedings before the EOC or consequential court proceedings under the Sex Discrimination Ordinance;

(iii) this action against the defendants be dismissed.

3. The aforesaid being part of the summons filed in the consolidated action and DCCJ442 of 2005, whereas the summons filed on behalf of the 1st defendant is as follows:

(i) the plaintiff’s Writ of Summons and Statement of Claim against the 1st defendant be struck out on the alternative grounds that they fail to disclose any reasonable course of action or are frivolous and vexatious, or constitute abuse of process of the court because:

(a) confidentiality and privacy attached to the alleged defamatory e-mail of 3 March 2003 of the 1st defendant and the same is subject to an implied undertaking that it would not be used for any purpose other than that for which they were disclosed; namely the proceedings before the Equal Opportunities Commission or consequential court proceedings under the Sex Discrimination Ordinance; and/or the use or disclosure of the alleged defamatory e-mail of 3 March 2003 in these proceedings is against public interest; namely, that such use or disclosure would result in a flow of information to or corroboration with the EOC being severely reduced;

(b) further alternatively, a determination of the question of whether the plaintiff is, as a matter of law, precluded from using or adducing as evidence the alleged defamatory e-mail of 3 March 2003 of the 1st defendant for any purpose other than for the purposes of the proceedings before the EOC or consequential court proceedings under the Sex Discrimination Ordinance;

(c) this action against the 1st defendant be dismissed.

4. The first two summonses are identical. The defendants in the consolidated action summons was re-amended on 10 June 2005, and became identical, or almost identical, to the summons in action DCCJ442 (“442”). The consolidated action striking out summons was originally taken out on 14 December 2004, while the summons in 442 was taken out on 16 February 2005, and the summons in DCCJ378 of 2005 (‘378”) was taken out on 15 February 2005.

5. On 13 July 2005, the 7th defendant joined in and lodged a similar summons to the summons in 442, filed by the 1st to 6th defendants and 8th to 10th defendants.

Background of the case

6. The plaintiff, Miss Yuen, was an employee of Heath Company Limited between 15 October 2002 and 6 March 2003 as the finance and administration manager. Her employment was terminated after four and a half months before the end of the six months’ probation period.

7. Miss Yuen commenced a claim against Heath Company Limited (“Heath”) based on Heath’s Human Resources Officer’s telephone inquiries on three of her former employers in February 2003. On 27 May 2003, the claim was settled.

8. On 2 June 2003, Miss Yuen filed a complaint to the Office of Privacy Commissioner for Personal Data against the former employer, Heath, in respect of the said telephone inquiries. That complaint was later withdrawn by the plaintiff, Miss Yuen, for the obvious reason that her claim had been settled on 27 May 2003.

9. On 18 September 2003, Miss Yuen commenced an action in the District Court, DCCJ5441 of 2003, for damages against Heath for the same complaint. This action was later struck out because of the 27 May 2003 settlement of the earlier claim, based on the same complaint.

10. On 16 July 2003, Miss Yuen filed a complaint at the Equal Opportunities Commission (“EOC”) against Heath and its former general manager and director, Mr Y F Lai, for gender discrimination resulting in her dismissal.

11. On 2 August 2003, the EOC gave notice to Mr Lai about the complaint against him and informed him that an investigation would be conducted. The EOC further asked Mr Lai to respond in writing the complaint laid against him and supply information with supporting documents relating to the complaint. A similar notice and request was sent to Heath’s managing director.

12. In response to the EOC notice, Mr Lai replied by letter on 11 September 2003, enclosing a complaint letter dated 21 February 2003 against the plaintiff signed by 29 staff members, and enclosing a bundle of supporting documents which included a copy of an e-mail message from Mr Fred Leung, the 1st defendant in DCCJ378, dated 3 March 2003. I shall refer to this e-mail message as “the Fred Leung e-mail”.

13. On 6 November 2003, the plaintiff, Miss Yuen, received from the EOC the response of Mr Lai to her complaint with the documents attached to his response for Miss Yuen’s further comments; this being the usual practice of the EOC investigation procedure.

14. According to Miss Yuen’s Statement of Claim in DCCJ442 and the consolidated action, paragraph 12, she learned then for the first time there was a letter of complaint against her signed by 29 member of staff on 21 February 2003, addressed to Mr Lai. This letter was attached to the fresh Statement of Claim in the consolidated action and the Statement of Claim in 442.

15. On 15 December 2003, Miss Yuen was notified by the EOC that it is discontinuing the investigation for the reasons that the plaintiff’s relationship with other staff of Heath had deteriorated since January 2003, and that the replacement of the plaintiff’s position at Heath was female. Consequently, the EOC concluded that her employment was not terminated because of her gender.

16. On 18 November 2003, Miss Yuen wrote to 13 of Heath’s staff members demanding an apology letter from each of them in respect of their complaints to the vice-president of Heath, Mr Steve Marcum, on 5 March 2003 when he visited Hong Kong. She further demanded compensations to be paid to a local charity by them.

17. She sent an e-mail to Mr Marcum on 6 December 2003 informing him she would issue writs against the 13 staff members and a further 16 staff members should they refuse to issue apology letters and pay a donation to the Tung Wah Group of Hospitals.

18. Up to this stage, there were no references in her correspondences to the 21 February 2003 complaint letter.

19. It is not disputed that the apology letters and the donations would be used in opposing Heath’s application to strike out her claim in DCCJ5441 of 2003 at the time.

20. At yesterday’s hearing, Miss Yuen admitted she would return to the EOC and ask the EOC to re-convene their investigation of her complaint armed with these apology letters. This was also the conclusion of H H Judge To in a striking-out application lodged by the defendants in the seven actions before the consolidation on 4 June 2003. I shall refer to this judgment later.

21. On 15 December 2003, Miss Yuen commenced three actions, namely, Action Nos. DCCJ7079, 7080 and 7081 of 2003, against three of the 13 staff members. On 19 December 2003 and 24 December 2003, she commenced four further actions against the remaining 10 of the 13 staff members under DCCJ7184, 7185, 7257 and 7258 of 2003.

22. Mr Mok criticised her intention of issuing multiple actions was to aggravate Heath and the defendants’ costs, and this was also concluded by H H Judge To in his decision of 4 June 2003, which I shall come to later on.

23. On 4 March 2004, Miss Yuen commenced defamation proceedings against Heath and Mr Lai in High Court Action 509 of 2004. Meanwhile, the defendants in the seven District Court actions applied by summons to strike out the Statement of Claim filed by the plaintiff against them. The application was heard and decided by H H Judge To on 4 June 2004.

24. The defendant exhibited numerous e-mail messages sent by Miss Yuen to Mr Marcum in 2003 and 2004 at the hearing before H H Judge To. These and other documents and e-mails were placed before H H Judge To exhibited to the defendant’s affidavits. It can be seen that H H Judge To took into his consideration these correspondences in his decision of 4 June 2004.

25. I shall refer to the relevant passages of H H Judge To’s decision given on 4 June, for the sake of completeness. Under paragraph 24 on page 15 of his decision he said:

“It could be seen that the terms of the apology demanded by the plaintiff were much wider than she would be entitled to in an action in defamation. Items B, C and E are not related to defamation. Obviously, the plaintiff’s purpose of obtaining apologies in those terms is to use them as evidence against Heath in High Court Action 509 of 2004, and to enable her to reopen the EOC investigation.”

26. Later on, in the last sentence of the same paragraph, he said:

“The plaintiff is patently misusing the court’s process to achieve the collateral advantage not properly available to her in the course of properly conducted proceedings.”

27. In paragraph 26, the latter part, appearing on page 18 of his judgment he said:

“This e-mail shows that the plaintiff is taking pleasure in issuing different writs for different causes of action apart from separate action for individual defendants. This explains why the four actions subsequent to these seven District Court actions were not instituted together. Her purpose is obviously to increase Heath’s costs in defending her claims.”

28. He made further references to various correspondence by e-mail from the plaintiff to Mr Marcum and at paragraph 30 on page 18, Judge To said:

“I think these correspondences are more than ample to demonstrate that the plaintiff’s real purpose of instituting multiple action was not only to aggravate Heath’s costs in defending her claims, but to make it so costly as to force Heath into submitting to her action in HCA 509 of 2004, and to settle with her for a substantial payment.”

29. Judge To found that the defendants had made out a case of abuse of process of the court. However, he further found that the plaintiff had established a prima facie case of defamation which has caused the plaintiff to lose her job. He further found the burden to be on the defendants to raise the defence of justification of fair comment. He allowed the plaintiff’s seven actions to be consolidated and gave directions for further conduct of the proceedings. This appeared in paragraph 31 of Judge To’s decision on page 19:

“The defendants have made out a case of abuse of process of the court. The next issue is whether the plaintiff’s actions should be dismissed or stayed. It has not been argued by the defendants that the letter of 21 February 2003 was not defamatory. Thus, there is a prima facie case of defamation, and the defamation has caused the plaintiff to lose her job. The burden is then on the defendants to raise the defence of justification of fair comment. Thus, the plaintiff appears to have a good and proper cause of action to trial. There is nothing to suggest that the proceedings could not be put back on the right track so that they could be conducted in a proper manner.”

30. It was on this basis that a fresh Statement of Claim was filed after the consolidation of the seven actions by the plaintiff on 8 November 2004. In the fresh Statement of Claim of this consolidated action the plaintiff based her claim on malicious falsehood, relying on the staff complaint letter of 21 February 2003.

31. In the present application to strike out, the defendants relied on the judgment of Tang J (as he then was) in High Court Action 509 of 2004, handed down on 2 December 2004. Mr Mok was the counsel appearing on behalf of the 1st defendant, Heath, in that action.

32. Mr Mok’s striking-out summons before Tang J (as he then was) is identical to the three summonses issued in the consolidated action and 442 of 2003 at the present hearing. He adopted the same submissions raised before Tang J. It was: as a matter of law, information and evidence provided by a witness or potential witness in an investigation and possible court proceedings are covered by an implied undertaking not to use them for collateral purposes; that the witnesses are further protected by an absolute privilege or immunity.

33. In Tang J’s judgment, he examined the House of Lords’ decision in Taylor & Anor v Director of the Serious Fraud Office [1999] 2 App. Case 177, the Court of Appeal decision of Mahon v Rahn 2 [2000] 1 WLR 2150. After considering the decision of the House of Lords in Taylor, Tang J held in paragraph 19 on page 14 of his judgment:

“As noted above, the implied undertaking rule applies not only to statements made for the purposes of the investigation, but also documents in existence at the time when the investigation commenced and which were given to the police or investigators for the purposes of the prosecution.”

34. In paragraph 20:

“As for immunity from suit, Lord Hoffman was of the view that it would fall within the underlying rationale for the defence to extend the protection which already existed for witnesses to persons who were not witnesses.”

35. In this context he had, under paragraph 18 of his judgment, referred to Lord Hoffman’s dictum at page 211B of the report of the case of Taylor, which was repeated under paragraph 18. It is the last paragraph of that quotation:

“In my opinion, therefore, the disclosure of documents by the prosecution as unused material under its common law obligations did generate an implied undertaking not to use them for any collateral purpose. I agree with the reasoning of Brooke LJ on this point in Mahon v Rahn and I think that Sir Michael Davies was right to strike out the action for the reasons which he gave.”

36. Quoting the passage in the Taylor case, the judgment of Lord Hutton on immunity of witnesses giving statements at an investigation, Tang J further held in paragraph 22 on page 16 of his judgment:

“This is further support for the view that the immunity covers claims based on alleged malicious falsehood as well.”

37. In paragraph 23 he said:

“I turn to consider Mahon v Rahn 2, which extended the immunity beyond criminal investigation. That was a case where the Court of Appeal was concerned with the response to a financial regulator who wanted more evidence to bolster its case on appeal that an appellant was a fit and proper person to carry on investment business before the securities association.”

38. In paragraph 194 of the judgment, Brooke LJ said:

“Important though the investigation of crime undoubtedly is, I have not found it possible to make a logical distinction between the situation in which a criminal investigator seeks evidence to support a criminal charge and a situation in which a financial regulator seeks evidence to put before a tribunal to the effect that someone is not a fit and proper person to conduct investment business. It appears to me, and I did not really need Dr Pulse’s(?) evidence to confirm it, that the flow of information to financial regulators might be seriously impeded if its informants feared that they might be harassed by libel proceedings. And if it was impeded in this way, the purposes of Part 1 of the Financial Services Act (1986) of protecting the public from unfit investment advisers will be put at risk. For these reasons, I would allow the defendant’s appeal in the first issue and hold that the TSA letter was published on an occasion which attracted absolute privilege.”

39. Paragraph 24, Tang J held:

“In my opinion, the underlying rationale of the defence of immunity from suit applies with equal force to information supplied to the EOC in this case.”

40. He then referred to the Sex Discrimination Ordinance, Cap. 480, the long title, and in paragraph 26 he said further:

“In my opinion, the flow of information to EOC might be seriously impeded if its informants feared that they might be harassed by libel proceedings. I would add claims based on alleged malicious falsehood as well.”

41. In paragraph 31 of his judgment, Tang J held:

“The plaintiff also relies on the complaint handling procedures information for the respondent and the passage quoted in paragraph 6 above concerning investigation confidentiality. He said that when the 1st defendant first responded to the EOC notice it purported to make the answer private and confidential and on condition that the contents should not be disclosed to the plaintiff. However, that was not acceptable to the EOC, who refused to accept the response on such a condition. That was for obvious reasons, because in order for the EOC to investigate and deal with the complaint it would need to seek the response of the complainant to the response by the respondent to the complaint. The complainant submitted, and this was not disputed by Mr Mok, that the 1st defendant then did not insist that its response must not be communicated to the respondent. However, I do not think that this helps the plaintiff at all. The implied undertaking, as well as the immunity from suit, apply nevertheless to such response. The fact that the 1st defendant’s response would be supplied to the plaintiff for his response would not sanction its use for any purpose outside the ordinance.”

42. In paragraph 37, he said further:

“The 1st defendant was not a party to the District Court proceedings although, as the plaintiff said, the 1st defendant had not denied the 1st defendant was funding the defence of those proceedings. Mr Mok has informed me, and it is quite clear from the judgment of 4 June 2004, that no argument based on implied undertaking or immunity from suit was advanced before Judge To.”

“38. I do not believe the fact that there are those other pending proceedings is a good reason for a stay of the present action. It is not for me to decide whether those proceedings could be struck out based on the implied undertaking on immunity from suit. I am not concerned with them.”

“39. However, I am quite satisfied that the plaintiff’s claim ought to be dismissed. The documents were supplied to the defendant for the purpose that she should be able to respond to them for the purpose of EOC’s investigation. Although the responses and information supplied might be admissible under action brought under section 76 of the ordinance, or other purposes under the ordinance, I am satisfied that there was an implied undertaking not to use the supplied response or documents for the purpose of proceedings in defamation or malicious falsehood, so I would dismiss the plaintiff on this ground. I am also satisfied that the absolute immunity from suit for defamation and malicious falsehood based on Taylor and Mahon v Rahn No. 2 applied to information and documents supplied pursuant to an investigation by the EOC, so that the 1st defendant could not be sued in respect of them.”

“40. I turn to consider whether the Statement of Claim and the action ought also to be struck out as an abuse of process of the court. As the learned editors of the Hong Kong Civil Procedure put it at Order 18/19/10, ‘The categories of conduct rendering a claim of frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances, and for this purpose, considerations of public policy and the interests of justice may be very material.’.”

“41. I refer to the matters set out in paragraphs 13 and 14 above, having regard to the flimsiness of the plaintiff’s claim and the conduct related above. I believe her claim to be an abuse of process. The matter must be approached with common sense. Even if, which is not my view, with ingenuity, one might discover one or more moot points in favour of the plaintiff, that is not a good reason to allow the claim to go ahead. In my opinion, the plaintiff has no reasonable cause of action and it would be an abuse of process to allow her to pursue this claim with her avowed intention of forcing the 1st defendant to expend substantial time and money in the defence of her claim.”

43. Mr Mok submitted that the same reason applies in the consolidated action. In DCCJ378, the plaintiff relies on the Fred Leung e-mail instead of the staff complaint letter of 21 February 2003. In DCCJ442 she pleaded a similar case as in the consolidated action because in the Statement of Claim, although she claimed later on she did not learn about the staff complaint letter from the EOC documents, she claimed she had an early knowledge of the letter of her complaint before her termination on 5 March 2003. It should be 6 March 2003.

44. She alleged in her affirmation of 5 March 2005, that Mr Lai had forwarded a blind copy of a complaint letter dated 21 February 2003 from his e-mail server at work on 28 February 2003. This appeared under paragraph 4 of her affirmation of 5 March 2003. She repeated the same early knowledge of the Fred Leung e-mail of 3 March 2003, in a similar affirmation in Action DCCJ378. Her allegations were denied by the defendants.

45. In Miss Anita Lam’s affirmation, she referred to the staff at Heath, including a Miss Fanny Chan of the accounts department investigating with the assistance of Mr Lai and Miss Chan’s computers. They could find no records of forwarding to Miss Chan by Mr Lai of the 21 February complaint letter or the 3 March e-mail from Fred Leung to Miss Fanny Chan’s computer, or to the plaintiff’s computer. Furthermore, these later allegations, which Mr Mok submitted are afterthoughts of the plaintiff, are contrary to paragraph 12 of the plaintiff’s Statement of Claim in the consolidated action and DCCJ442.

46. Mr Mok submitted that Mr Lai could not have e-mailed the said complaint letter of 21 February 2003 to the plaintiff, because the letter was a typed letter signed by 29 staff members. It was not an e-mail which could be easily forwarded, inadvertently or otherwise, by Mr Lai to the plaintiff. It is also unlikely that Mr Lai would forward this letter or the 3 March e-mail to the plaintiff, it was not to Mr Lai’s advantage to do so.

47. I am convinced that Mr Mok’s submission is reasonable and logical under the circumstances, taking into consideration that it was only in later affirmations after December 2004 that the plaintiff referred to the fact that she had an early knowledge of these documents, while in all previous pleadings and affirmations she referred to the fact that she came to know of the complaint letter after she was sent by EOC the documents supplied by Mr Lai in his response to the EOC.

48. So far as the DCCJ378 is concerned, in respect of the Fred Leung e-mail, for the same reason referred to above, the plaintiff, according to Mr Mok, is not allowed to use documents obtained from the EOC and the said e-mail is not to be used, therefore, in the proceedings.

49. On the other hand, there was no submission made at the hearing yesterday that the publication of this particular document was libellous or considered to be libellous and that the plaintiff may have a genuine cause of action against the writer of the e-mail, provided that the plaintiff is able to prove her claim by calling one or more witnesses to whom the document was sent, proving publication of the defamatory statement.

50. I turn now to the document, the e-mail itself. Miss Yuen claimed in paragraphs 10, 16 and 17 of her Statement of Claim in 378 that she was defamed because she was called “an ape”, while Mr Leung described himself and his colleagues as “all monkeys in the forest”. I was referred to an e-mail in the EOC documents from Mr Lai’s response of the same date as the Fred Leung e-mail, 3 March 2003, from Miss Yuen to Mr Lai. In this e-mail, she wrote: “I trust there are monkeys (two or three) playing around behind my back.”

51. Presumably, that was why Mr Fred Leung sent the 3 March 2003 e-mail to Mr Marcum, telling him the story of the “monkeys in the forest of fruit trees”. It is obvious that it was a description first employed by the plaintiff herself in the earlier e-mail. If the term or description in the story told by Mr Leung is defamatory of the plaintiff, the same surely must apply to the plaintiff herself when she called her staff “monkeys” in her e-mail earlier that day sent to Mr Lai and copied to all staff of Heath.

52. The background of the reference to “monkeys in the forest” in Mr Fred Leung’s e-mail speaks for itself. The story was told by Mr Leung. It cannot possibly be considered defamatory if he was reciting a story involving animals. Furthermore, if the reference and the term was first used by the plaintiff herself, surely it must be the case that she did not consider that it should be in any way defamatory. The same standard should apply when one reads the document from the plaintiff to all the staff, that the same term being adopted by one of the staff in an e-mail sent on the same day copied to all staff of Heath. I am, therefore, not convinced that the plaintiff has a sustainable claim on defamation in 378.

53. Based on an analysis of the judgment of Tang J and the dicta in his judgment, I find the same rationale applies equally to the present case in the consolidated action and 442, and 378 too so far as it relates to the 12 February 2003 letter on malicious falsehood.

54. I am satisfied that the letter of complaint was a privileged document and there is an implied undertaking rule applicable to the EOC investigations for the protection of witnesses. As Tang J put it in paragraph 26 of his judgment:

“The flow of information to the EOC might be seriously impeded if its informants feared that they might be harassed by libel proceedings. I would add claims based on alleged malicious falsehood as well.”

55. On the aforesaid basis, and on the basis that the 21 February 2003 complaint letter obtained from the EOC could not be used in proceedings other than for the purpose it was obtained, that is, the EOC investigations and EOC court proceedings if it relates to the Sex Discrimination Ordinance, there is therefore no cause of action raised by the plaintiff. In any event, I find that the plaintiff’s Statement of Claim failed to disclose any reasonable cause of action and is frivolous and vexatious and an abuse of process of the court. Therefore, I strike out the plaintiff’s Statement of Claim.

56. I am further satisfied that the writ of summons should be struck out and dismissed, because like the High Court Action 509 of 2004, the conduct of the plaintiff and the approach to the series of litigation with the intention of increasing and aggravating the costs of the defendants and her former employer Heath amounts to an abuse of process of court, it would be scandalous and against public policy to allow her to pursue her claim any further. Therefore, I dismiss the writs of summons in the consolidated actions, 442 and 378 of 2003.

57. So far as the plaintiff’s application in the consolidated action is concerned applying to this court to waive all costs against her for the 1½ day hearing on 3 and 4 June 2003, and the costs of this hearing and application before me, her grounds were that the defendants in the consolidated action have applied for a second time, using the same reasons of absolute immunity and implied undertaking which had been heard by Judge To on 3 and 4 June last year.

58. I cannot find any references to these two grounds in Judge To’s decision of 4 June 2004, other than a reference to the case Mahon v Rahn when referring to the advantage that the plaintiff may hope to obtain using the EOC documents. In any event, a fresh Statement of Claim had been filed in the consolidated action, and different causes of action have been pleaded by the plaintiffs. The defendants, therefore, are entitled to apply again to strike out not the original Statement of Claim but the fresh Statement of Claim filed under the consolidated action. Even though using the same grounds as the abuse of process of court, and no reasonable cause of action, frivolous and vexatious as the basis of their applications, we are looking at a different Statement of Claim altogether.

59. Furthermore, Judge To had already given the plaintiff a chance to file a fresh Statement of Claim in the consolidated action and this consolidated action should not be allowed to carry on ad infinitum. If only the Statement of Claim is struck out and not the action itself, the plaintiff will be given the chance of filing a fresh Statement of Claim again and again.

60. For the reasons already given, and for the reason that this case should not be allowed to go on indefinitely, thus constituting further abuses of process of court, I consider that the action should be struck out and dismissed.

61. So far as the argument as to issue estoppel is concerned, Mr Mok referred to the judgment of Kempster JA in the case of Lily Cheung v Standard Chartered Bank CA159 of 1987, date of judgment 15 February 1988, at page 616 of the report:

“In so far as the doctrine of issue estoppel per rem judicatam is regarded in its narrow sense, it is, as Mr Fung properly concedes, applicable only to final judgments and orders of a competent tribunal, domestic or foreign, and not to those which, like that of Deputy Judge Cruden where absence of finality appears on the face of the record, it can be varied, reopened or set aside by the same, as contrasted with an appellate tribunal.”

62. And at page 617, at D, he said further:

“For my part, I cannot regard it as an abuse of the process of a party to successive interlocutory proceedings not to deploy his full battery of argument at the first opportunity. Indeed, at such a stage when discovery and research are incomplete, he should not be expected to have binding elections.”

63. For the aforesaid reasons, I refuse the plaintiff’s application for costs of the applications. As to the costs order of Judge To on 4 June 2004, I have no jurisdiction to set it aside or waive it. Only the Court of Appeal can do that when the plaintiff succeeds in an appeal of Judge To’s order, and, in so far as I can understand, there has been no such appeal.

64. So far as the costs of the application and costs of the hearing are concerned, I grant costs to the defendants, to be taxed if not agreed, with certificate for counsel.

(H C Wong)
District Court Judge

Representation:

Plaintiff, in person, present

Ms A Lam, of Messrs Johnson, Stokes & Master, for 1st to 19th Defendants in the eight consolidated actions, and 1st Defendant in DCCJ378/2005, and 1st to 10th Defendants in DCCJ442/2005

Court of Appeal refused, plaintiff's renewed application for leave to appeal. Please refer to HCMP1824/2005 and CACV114/2006 dated 9 May 2006

DCCJ 7079/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7079 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	CHONG KING PO, SALLY	Defendant

____________________

DCCJ 7080/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7080 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	CHIU WING WAH WILSON	Defendant

____________________

DCCJ 7081/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7081 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	CHAN KAM WAH, KENT	Defendant

____________________

DCCJ 7184/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7184 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	KU LAI CHIU CINDY	1stDefendant
	CHAN KWAI HING CHANNY	2ndDefendant
	HO SIU KWAN MANDY	3rdDefendant
	LEUNG MAN YEE SOFIA	4thDefendant

____________________

DCCJ 7185/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7185 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	CHAN KEUNG	Defendant

____________________

DCCJ 7257/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7257 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	LEUNG YIK HONG, FRED	1 st Defendant
	LAM CHUN WAI, ANNO	2nd Defendant

____________________

DCCJ 7258/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7258 OF 2003

____________________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	TSE MEI PO, MABLE	1 st Defendant
	CHOI YIN KI, ADA	2nd Defendant
	HO MAY HAR, SANNIE	3rd Defendant

Before: His Honour Judge To in Chambers

Date of Hearing: 4 June 2004

Date of Judgment: 4 June 2004

_______________

DECISION

_______________

Background

1. This is an application by the Defendants for an order that all further proceedings in these seven actions brought by the Plaintiff be dismissed or stayed on the ground that these actions are vexatious or an abuse of the process of the Court. The Plaintiff was the former Finance and Administration Manager of Heath Company Limited ("Heath") during the period from 15 October 2002 to 6 March 2003. The Defendants in these seven actions were her former colleagues in Heath.

2. According to the Plaintiff, the circumstances which led to her instituting these actions are as follows. Since taking up her appointment with Heath, she discovered certain mismanagement on the part of the General Manager and Managing Director, Mr YF Lai ("Lai"). Some of the acts of mismanagement alleged were related to the appointment of an expensive Human Resources Officer, Ms Sally Chong ("Sally Chong"). This created some animosity in Sally Chong against her. For the purpose of this application, there is no need for me to go into details about the alleged acts of mismanagement.

3. During the course of her employment, the Plaintiff took part in the negotiation of the sale of Heath by its US holding company, Desa International Inc ("Desa") & HIG Capital and she was required to report the progress of the negotiation to Desa during the period from 17 to 23 February 2003. Quite unknown to the Plaintiff, on 21 February 2003, while she was away in the USA, twenty-nine of thirty five employees of Heath signed a letter addressed to Lai complaining about the Plaintiff’s conduct of the affairs of Heath, which the Plaintiff says is untrue and defamatory of her.

4. Upon the Plaintiff’s return from the USA on 24 February 2003, she was informed by one of her ex-employers, Mr Loy ("Loy"), that Sally Chong repeatedly tried to obtain past records of the Plaintiff’s employment with Loy and said something defamatory of the Plaintiff.

5. On 5 March 2003, all the staff of Heath signed a group resignation letter which Mr Fred Leung (Defendant in Action No DCCJ 7257/2003) handed to Mr Steve Marcum, a director of Heath who was visiting Hong Kong at the time. As a result, Heath terminated the Plaintiff’s employment.

6. On 2 June 2003, the Plaintiff made a complaint to the Privacy Commissioner for Personal Data against Heath for contravening the Personal Data (Privacy) Ordinance in respect of Sally Chong's unauthorised use of her personal data in contacting her former employers. This complaint was withdrawn upon Heath tendering an apology and paying the Plaintiff a sum of $20,000.

7. In July 2003, the Plaintiff made a gender discrimination complaint to the Equal Opportunities Commission (the "EOC") against Heath and Lai for terminating her employment allegedly on the basis of her gender. Subsequently, the EOC discontinued the investigation of her complaint as it was satisfied that the Plaintiff was not dismissed on the basis of her gender.

8. On 18 September 2003, the Plaintiff issued legal proceedings in the District Court against Heath, HIG Capital and Desa for improperly using her personal data to contact her former employers, inappropriately obtaining her personal data from her ex-employers and failing to disclose the identity of the ex-employers whom Sally Chong had contacted. The action against Heath was struck out by HH Judge CB Chan on 18 December 2003, presumably because of the earlier settlement between the Plaintiff and Heath while the service of the writ on Desa and HIG Capital was set aside.

9. In the meantime, in November 2003, as a result of her gender complaint, the EOC disclosed to the Plaintiff her colleagues' letter of 21 February 2003 and their statements to EOC written on the letterhead of Heath. The Plaintiff felt aggrieved because those statements. and the content of the letter of 21 February 2003 were untrue and defamatory of her. On 18 November 2003, she issued letters before action to thirteen of her former colleagues demanding an apology and a donation to a local charity by 24 December 2003. No settlement was reached.

10. Between 15 and 24 December 2003, the Plaintiff issued these seven sets of proceedings in defamation against thirteen of her former colleagues. These include three separate actions filed on 15 December 2003 individually against Sally Chong, Wilson Chiu and Kent Chan (Action No DCCJ 7079-7081 of 2003), two actions filed on 19 December 2003 against Cindy Ku, Channy Chan, Mandy Ho and Sofia Leung (Action No DCCJ 7184 of 2003) and against ChanKeung (Action No DCCJ 7185 of 2003) and two actions filed on 24 December 2003 against Fred Leung and Anno Lam (Action No DCCJ 7257 of 2003) and against Mable Tse, Ada Choi and Sannie Ho (Action No. DCCJ 7258 of 2003). All these seven District Court actions are founded on defamation and on the same set of facts.

11. Subsequent to these seven actions, which formed the subject matter of these applications, the Plaintiff instituted three other sets of proceedings in the High Court and one in the District Court between 4 March 2004 and 24 May 2004 against Heath, five of its directors, Lai, Sally Chong and another three of her former colleagues. These four actions are founded on contravention of the Personal Data (Privacy) Ordinance, malicious falsehood and defamation and are also based on the same set of facts as those in the seven District Court actions.

12. On 2nd February 2004, the Defendants took out the present seven summonses to apply for a stay or dismissal of the seven District Court actions.

The law

13. The relevant legal principles on what constitutes an abuse of process have been usefully summarised by Simon Brown LJ in Broxton v McClelland and Another [1995] EMLR 485, Lexis transcript, 30 January 1995. After referring to a number of authorities, Simon Brown LJ said at page 2:

"Rather than cite at length from these authorities, I propose instead to set out what I believe to be the central principles emerging from them:

1) Motive and intention as such are irrelevant (save only where "malice" is a relevant plea): the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point. As was said by Glass JA in Champtaloup v Thomas (1976) 2 NSWLR 264, 271 (see Rajski v Baynton 1990) 22 NSWLR at 134):

'To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation. '

2) Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court's processes are being misused to achieve something not properly available to the Plaintiff in the course of properly conducted proceedings. The cases appear to suggest two distinct categories of such misuse of process:
i) the achievement of a collateral advantage beyond the proper scope of the action - a classic instance was Granger v Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship's register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ's judgment in Goldsmith v Sperrings Limtied [1977] 2 All ER 566, [1977] 1 WLR 478 at page 503 D/H of the latter report.
ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the Defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.
3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a Plaintiff from bringing an apparently proper cause of action to trial.

14. I think the above dicta represent the correct principles of law applicable to striking out an action on the ground of abuse of process. In summary, an action is an abuse only if the Court's processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. There are two categories of such misuse of process: the achievement of a collateral advantage and the conduct of proceedings in a manner designed to cause problems to the defendant. It is only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a Plaintiff from bringing an apparently proper cause of action to trial. The Court should balance, on the one hand, the plaintiff s right to bring an apparently proper cause of action to trial and, on the other, the defendant's right to be protected from being abused. Thus, the corollary I would add is that even if the defendant has made out a case of abuse of process, where justice permits, a plaintiff should be allowed to maintain his action on conditions, including a stay of the action, which are sufficient to ensure the proceedings will be conducted in a proper manner without the court's proceedings being misused.

15. 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.

Collateral advantage - multiple recovery

16. The present seven District Court actions are instituted against thirteen of the Plaintiff's former colleagues who signed the letter of 21 February 2003. In each action, the Plaintiff claims damages equivalent to her annual salary of $559,000. These seven District Court actions should be viewed in the context of the Plaintiff's series of litigations, including the three subsequent High Court actions and one District Court action. In HCA 509 of 2004, the Plaintiff claims damages for defamation against Heath and Lai in the amount of $13,421,941 being her loss of income for about 24 years until her retirement. In HCA 1108 of 2004, the Plaintiff claims against Sally Chong for defamation and contravention of the Personal Data (Privacy) Ordinance. She claims two sums of $755,348.83, each sum being her loss of income as at 6 May 2004 and an injunction requiring, among other things, Sally Chong to disclose the identities of the Plaintiff's ex-employers whom she had contacted. In HCA 1258 of 2004, the Plaintiff claims against the directors of Heath damages for negligence, malicious falsehood and injury to feeling in the amount of $20,132,912 and a similar injunction. In DCCJ 2702 of 2004, she claims loss of employment for malicious falsehood. All these actions are founded on the same set of facts. The seven District Court actions and HCA 509. of 2004 in particular are founded solely on defamation, while HCA 1108 of 2004 included a claim in defamation. Had the Plaintiff conducted her litigation properly, these proceedings could have been consolidated in one or two actions.

17. The Plaintiff explains that she was aggrieved by Sally Chong contacting her ex-employers and defaming her professionally. She was informed by Heath's solicitors, Messrs Johnson Stokes & Master ("JSM") that Sally Chong had spoken to three of her ex-employers, but JSM refused to disclose the identities of those ex-employers. She knew one of them was Loy but wished to ascertain the identities of the other two so that she could right herself. She approached Lai, but Lai refused to disclose their identities. She was not satisfied with Lai' s promise to send apologies to the other two ex-employers. So, she instituted the actions. This may explain why she instituted HCA 1108 of 2004 against Sally Chong and HCA 1258 against the directors of Heath but not why she instituted the seven District Court actions separately, which are the subject matter of these applications.

18. Mr Mok submits that the Plaintiff is seeking multiple recovery by claiming the same loss of annual income seven times in seven different actions and in claiming against Heath for the loss of her income for her entire working life. In addition, the Plaintiff has threatened to issue defamation proceedings against the remaining sixteen of her former colleagues. The Plaintiff explains that she never intended to profit from the litigation and it was her intention to extract an apology from the Defendants and a nominal sum which she would donate to a charity after deducting her costs of the litigation. She would then show the apologies to Steve Marcum to prove that Heath was wrong in terminating her, services As the Defendants refused to comply, she had to issue the proceedings and it remains her intention to donate the compensation less her costs to charity.

19. Whatever was the Plaintiff s intention with the damages, it is neither binding on her nor relevant for my consideration. The fact is that she has claimed seven sums of $559,000 against the Defendants and further sums against Heath. On the face, she is seeking multiple recovery. However, one must have regard to the fact that the Plaintiff is a layperson and does not know much about the law and procedure and how to quantify her damages. Presumably, she just picked her loss of annual income as her damages in respect of each of the seven District Court actions. However, in reality, any damages, if awarded, will have to be assessed. Since the defamation arose out of one set of facts and as a joint enterprise of her twenty-nine former colleagues, if she recovers damages in one action, it is unlikely that she will recover anything other than a nominal award in the other six actions. She might also be deprived of her costs. I do not think there is a real likelihood of multiple recovery. The more serious complaint, however, is her instituting multiple actions.

Collateral advantage - obtaining evidence against Heath

20. On the other hand, Mr Mok submits that the Plaintiffs seven District Court actions are an abuse of process as she never intended to obtain compensation from the Defendants and her real purpose was to obtain the letters of apologies as evidence to be used against Heath in HCA 509 of 2004 and to re-open the EOC inquiry. The ultimate target was to make Heath pay her very substantial amount of damages. He argues that these are advantages which are beyond the proper scope of the action.

21. The Plaintiff is explicit as to her purpose in commencing these seven actions in the District Court and the High Court. She said in her affirmation:

"There are strong evidence proved that I am not seeking a profit out of litigation but just an apology from the defendant(s) but to contribute any profit after the disbursements out of litigation, to a charity. My aim is just to seek the damages and compensations from the company [in the Court of First Instance] instead of the defendant(s) [in the District Court] who are just being employed but used to be my good friends before my termination. The defendant(s) are proved to be instructed by someone to do the acts without knowing the legal consequence."

The purpose is also reflected in her letters before action to the thirteen Defendants dated 18 November 2003. In the letters, the Plaintiff demanded an apology letter to be sent to her care of Steve Marcum and various sums of compensation (depending on her view of the culpability of the Defendant) in the form of charitable donations before 24 December 2003. Except in the case of Sally Chong, the donations demanded were not substantial and in due course, were reduced to a token amount. The Plaintiff is equally explicit as to her purpose regarding the apologies. She said in her letter dated 27 January 2004 to the Defendants' solicitors:

"Upon apologies to have received from your above clients, I must prove to Mr Steve Marcum, Mr Jim Wiese and Miss Kathy Ford who have made a wrong decision to have terminated my loyal service rendered to its subsidiary in Hong Kong, as well as to the EOC who have discontinued its investigation on my complaint made against Heath Company Limited and Mr YF Lai for the contravention of Sex Discrimination Ordinance which have nothing to do with your above clients. The EOC discontinued its investigation due to its belief on your above clients' statements as being inserted in the reply of Mr Steve Marcum to the EOC, were true and fair. The EOC claims that they do not have power or authority to judge the statements true or false but just pass the responsibility to the Judges through legal proceedings instead."

She said the same in her e-mail to Lai on 11 December 2003:

"Please note that my purpose to force your 29 staff for an apology plus a minimal of donation was only forcing them to be 'witnesses in opposite' (污點證人) and let your company and holding companies know they have made a wrong decision to terminate my employment, which I should deserve for loss of damages and compensations till I find another job or my retirement age."

22. Thus there is no doubt that the Plaintiff intended to obtain the apologies as evidence against Heath in HCA 509 of 2004 and possibly other action and to re-open the EOC inquiry. On the face, these Defendants defamed the Plaintiff and caused her to lose her job. She is entitled to vindicate herself. Usually a letter of apology with a nominal compensation is an acceptable form of settlement in an action in defamation. If indeed she is successful in the action, she would be entitled to an award of damages. An award, even if a nominal one, has the same effect as a letter of apology. She would be entitled to use the letter of apology in just the same way as she may use a judgment made in her favour.

23. However, the terms of the "apology" she demanded is peculiar. In her letter dated 27 January 2004 to JSM, she spelt out the terms of the "apology" she required as follows:

"Mainly, I require them to apologize for the following wrong doings which caused to my dismissal, loss of income, severe injury to feelings and other mental & substantial damages: -

(a) Their unfounded, defamatory, false and fraudulent statements written in English and signed by them jointly addressed to Mr Y F Lai alone (for the purpose to be given to Mr Steve Marcum only, as under instruction to do so) dated 21st February, 2003 while I was still in USA. On the same day, Miss Sally Chong was found to have contacted my ex-employer(s) and defamed me seriously with or without the company's or Mr Y F Lai's knowledge and approval.

(b) Their coerced actions by rendering group resignation in a letter given to Mr Steve Marcum as a threatening weapon with copies made to the top management team in USA, in the evening of 5th March 2003 ..

(c) Their individual signed and approved statements all written in Chinese dated 10th September, 2003 being inserted into the English reply of Mr Steve Marcum made to the Equal Opportunities Commission (EOC) were found defamatory, false and fraudulent with malicious intention to do so, although the statements were well prepared and typed by one person only.

(d) Mr Fred Leung's email dated 3rd March 2004 was found defamatory and to have injured my feelings to describe me as an Ape while admitting they were all monkeys in a forest ....

(e) Without the above commitments and wrong doings of your clients, I might be promoted and required to report directly to the top management team in USA rather than Mr Y F Lai upon my return from USA, as mentioned by Mr Steve Clanton, the CFO in USA. All the above emails, false and defamatory statements, events and incidences were only come to my knowledge on 6th November 2003, upon receipt of a letter from the EOC. I used to have no knowledge of those defamatory statements and reasons for my termination on 6th March 2003. Mr Steve Marcum just told me the reason of "non-cultural fitness" without giving me a chance to present another side of the pictures.

24. It could be seen that the terms of the apology demanded by the Plaintiff was much wider than she would be entitled in an action in defamation. Items (b), (c) and ( e) are not related to defamation. Obviously, the Plaintiff’s purpose of obtaining apologies in those terms is to use them as evidence against Heath in HCA 509 of 2004 and to enable her to re-open the EOC investigation. In item (c), the Plaintiff is seeking to obtain a confession from the Defendants that their statements to the EOC were untrue and defamatory. It is trite law that no action in defamation can be founded upon statements given to a statutory tribunal in the course of its investigation: see Mahon v Rahn (No 2) [2000] 1 WLR 2150. The Plaintiff will not be successful in an action based on those statements and is not entitled to seek to an apology in respect of those statements. An apology along those lines from Lai, the General Manager and Managing Director of Heath, as per item (e) goes a long way to prove substantial damages for the Plaintiff in her action against Heath. A judgment in favour of the Plaintiff in an action in defamation based on the letter of 21 February 2003 will not have those effects. The Plaintiff is patently misusing the Court's process to achieve a collateral advantage not properly available to her in the course of properly conducted proceedings.

Aggravating the Heath's or the Defendants' costs in defending the claim

25. Here, the Defendants' complaint is that by instituting multiple proceedings, the Plaintiff is deliberately aggravating the Defendants' costs in defending her claims. The Plaintiff’s explanation for not suing the thirteen fonner colleagues in one action is a benevolent one. She says that she picked her friends as the first targets for instituting action in the hope that the letters before action would be able to provoke their conscience into apologising and set an example to the other fonner colleagues. How that idea would commend to the Plaintiff and to her friends being so chosen, I do not know. It rather occurred to me that she was probably adopting the tactic of divide and conquer. In so doing, she is at least aggravating the Defendants' costs, if not seeking a collateral advantage.

26. Her intention to aggravate the Defendants' costs can be seen from her letter to JSM dated 27 January 2004, which I quoted above. In the later part of that letter, she wrote:

"Furthermore, they ought to incur expensively in legal cost (be it paid by their rich supporters behind them or own personal expenses) and face the risk of sharing the sad incidences with their names or even photographs on all newspapers one day."

This shows that she wanted the Defendants, or Heath which is financing their defence, to be penalised in having to incur more legal costs in defending the separate actions she instituted, which would not have been incurred had she sued them all in one action.

27. The Plaintiffs purpose in aggravating the Defendants' costs is also reflected in her e-mail to Steve Marcum on 13 January 2004 in which she wrote:

"If you are going to pay at least over HK$100,000.00 each to your staff as expensive legal costs or professional fees for their individual and personal claims which are not allowed to be deductible in the company's profit and loss account, you ought to accrue of over HK$1,300,000.00 in the budget of FY2005. If I were you, I prefer to pay my loss of income during my unemployment period instead, i.e. HK$559,000.00 x period of year of unemployment ....

Furthermore, the above legal cost is achieved without taking into account of civil case no.: DCCJ 5441.2003 which Heath Company Limited had already incurred or be responsible for over HK$150,000.00 as legal cost, ... "

The Plaintiff knew that Heath is financing the Defendants' costs of the litigation. By mentioning "individual and personal claims", it is obvious that she knew it would cost Heath more to defend separate actions against each Defendant than if the Defendants were sued in one action. It is also obvious from the above e-mail that her purpose for instituting separate actions is to make it costly to defend and to coerce Heath into settling her action in HCA 509 of 2004.

28. Again, on 15 January 2004, she e-mailed Steve Marcum and wrote:

"I must appoint different experts or solicitors or barristers to act for me in different writs under each and individual separate issue. The defendants (your staff) are all over 18 and legal entities for any legal proceedings under common law."

This e-mail shows that the Plaintiff is taking pleasure in issuing different writs for different causes of action apart from -separate action for individual Defendants. This explains why the four actions subsequent to these seven District Court actions were not instituted together. Her purpose is obviously to increase Heath's costs in defending her claims.

29. On 4 February 2004, the Plaintiff wrote to Steve Marcum as follow:

"I enjoy today's Summons in court and the results were expected, as delay as usual by all solicitors. It seems that all the defendants of action numbers are now blocked in a taxi and the metre of taxi is jumping fast and charging every second although it is in a serious traffic jam. However, I am just poor enough of not affording a taxi for the process (not even the actual case and hearing yet) but just cycling hard with my bicycle which has no metre charge. The taxi driver is happy to have a serious traffic jam because the metre of taxi is charging even though it runs slow or even not moving on the road. Do you understand my given example of this philosophy for the present process of all legal proceedings?"

This e-mail explains her "philosophy" for instituting multiple actions and shows that she takes pleasure in Heath having to incur legal costs in each proceeding while she did not have to as she was able to appear in person. It follows that the purpose of instituting multiple actions was to make Heath pay more.

30. I think these correspondences are more than ample to demonstrate that the Plaintiff's real purpose of instituting multiple actions was not only to aggravate Heath's costs in defending her claims but to make it so costly as to force Heath into submitting to her action in HCA 509 of 2004 and to settle with her for a substantial payment. The Plaintiff never intended to recover from these Defendants, presumably because she knew they could not afford her claim and any judgment obtained against them would be empty. The Plaintiff intended to recover against Heath as she had made clear in her affirmation and in her submission made in Court. I am satisfied that these proceedings are conducted in a manner designed to cause the Defendants problems of costs in that they cannot pool their financial resources together to defend her claim jointly or to aggravate Heath's costs in defending the claims for its employees. I am also satisfied that these proceedings are conducted in a manner designed to force Heath into settling the Plaintiffs claim in HCA 509 of 2004 by paying her a substantial amount. In this respect, the Plaintiff is also seeking a collateral advantage as well. This is a clear case of abuse of the process of the Court.

Should the actions be dismissed or stayed

style="text-align:justify">31. The Defendants have made out a case of abuse of process of the Court. The next issue is whether the Plaintiff’s actions should be dismissed or stayed. It has not been argued by the Defendants that the letter of 21 February 2003 was not defamatory. Thus, there is a prima facie case of defamation and the defamation has caused the Plaintiff to lose her job. The burden is then on the Defendants to raise the defence of justification or fair comment. Thus the Plaintiff appears to have a good and proper cause of action to trial. There is nothing to suggest that the proceedings could not be put back on the right track so that they could be conducted in a proper manner. In the circumstances, justice requires that the Plaintiff should not be deprived of her right to go to trial. Accordingly, I order that the Plaintiff’s actions be stayed save for the purpose of applying for consolidation with other existing actions between the Plaintiff and related parties. Upon consolidation, directions for the further and proper conduct of the proceedings may be sought.

Costs

32. The Defendants are successful in these applications and must be entitled to their costs. If a plaintiff abuses the process of the Court, costs are unnecessarily incurred and wasted. Not only that the defendant should be entitled to recover all his costs, i.e. case on an indemnity basic, there is no reason why he should be kept out of his costs until the conclusion of the action. The plaintiff should face the consequence of immediate taxation and payment brought by his own abuse of the process of the Court. I therefore consider it always appropriate in a case of abuse of process of in Court that the plaintiff should usually be ordered to pay the costs of the defendant on an indemnity basis and forthwith. This is a clear case of abuse of process. The Plaintiff conducted her proceedings in bad faith. One of her purposes for instituting seven separate actions was to aggravate the Defendants' costs. As a result, unnecessary and excessive costs have been incurred and wasted. However, having regard to the conduct of the Defendants which led to these litigations, I am prepared, and for this occasion only, to err on the side of leniency without ordering the Plaintiff to pay costs on an indemnity basis. But this is certainly an appropriate case in which costs should be ordered to be paid forthwith. Accordingly, I make an order that the Plaintiff shall pay the Defendants' costs with certificate for counsel and such costs are to be taxed, if not agreed, and paid forthwith.

Conclusion

33. For the above reasons, the proceedings brought by the Plaintiff in these seven actions are stayed save for the purpose of applying for their consolidation with other existing actions between the Plaintiff and related parties. The Plaintiff shall pay the Defendants' costs of these applications with certificate for counsel. Such costs are to be taxed, if not agreed, and to be paid forthwith.

Signed
(Anthony To)
Judge of the District Court

Plaintiff, in person

Mr. Johnny Mok, instructed by Messrs Johnson, Stokes & Master for the Defendants

(i)	confidentiality and privacy attached to the alleged defamatory letter dated 21 February 2003 of the defendants, and the same is subject to an implied undertaking that it would not be used for any purpose other than that for which they were disclosed; namely, the proceedings before the Equal Opportunities Commission or consequential court proceedings under the Sex Discrimination Ordinance; and/or

(ii)	the use or disclosure of the alleged defamatory letter dated 21 February 2003 in these proceedings is against public interest; namely, that such use or disclosure would result in the flow of information to or co-operation with the EOC being severely reduced; further or alternatively a determination of the question of whether the plaintiff is, as a matter of law, precluded from using or adducing as evidence the alleged defamatory letter dated 21 February 2003 for any purpose other than for the purposes of the proceedings before the EOC or consequential court proceedings under the Sex Discrimination Ordinance;

(iii)	this action against the defendants be dismissed.

(i)	the plaintiff’s Writ of Summons and Statement of Claim against the 1st defendant be struck out on the alternative grounds that they fail to disclose any reasonable course of action or are frivolous and vexatious, or constitute abuse of process of the court because:

	(a)	confidentiality and privacy attached to the alleged defamatory e-mail of 3 March 2003 of the 1st defendant and the same is subject to an implied undertaking that it would not be used for any purpose other than that for which they were disclosed; namely the proceedings before the Equal Opportunities Commission or consequential court proceedings under the Sex Discrimination Ordinance; and/or the use or disclosure of the alleged defamatory e-mail of 3 March 2003 in these proceedings is against public interest; namely, that such use or disclosure would result in a flow of information to or corroboration with the EOC being severely reduced;

	(b)	further alternatively, a determination of the question of whether the plaintiff is, as a matter of law, precluded from using or adducing as evidence the alleged defamatory e-mail of 3 March 2003 of the 1st defendant for any purpose other than for the purposes of the proceedings before the EOC or consequential court proceedings under the Sex Discrimination Ordinance;

	(c)	this action against the 1st defendant be dismissed.

“The 1st defendant was not a party to the District Court proceedings although, as the plaintiff said, the 1st defendant had not denied the 1st defendant was funding the defence of those proceedings. Mr Mok has informed me, and it is quite clear from the judgment of 4 June 2004, that no argument based on implied undertaking or immunity from suit was advanced before Judge To.”

“38.	I do not believe the fact that there are those other pending proceedings is a good reason for a stay of the present action. It is not for me to decide whether those proceedings could be struck out based on the implied undertaking on immunity from suit. I am not concerned with them.”

“39.	However, I am quite satisfied that the plaintiff’s claim ought to be dismissed. The documents were supplied to the defendant for the purpose that she should be able to respond to them for the purpose of EOC’s investigation. Although the responses and information supplied might be admissible under action brought under section 76 of the ordinance, or other purposes under the ordinance, I am satisfied that there was an implied undertaking not to use the supplied response or documents for the purpose of proceedings in defamation or malicious falsehood, so I would dismiss the plaintiff on this ground. I am also satisfied that the absolute immunity from suit for defamation and malicious falsehood based on Taylor and Mahon v Rahn No. 2 applied to information and documents supplied pursuant to an investigation by the EOC, so that the 1st defendant could not be sued in respect of them.”

“40.	I turn to consider whether the Statement of Claim and the action ought also to be struck out as an abuse of process of the court. As the learned editors of the Hong Kong Civil Procedure put it at Order 18/19/10, ‘The categories of conduct rendering a claim of frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances, and for this purpose, considerations of public policy and the interests of justice may be very material.’.”

“41.	I refer to the matters set out in paragraphs 13 and 14 above, having regard to the flimsiness of the plaintiff’s claim and the conduct related above. I believe her claim to be an abuse of process. The matter must be approached with common sense. Even if, which is not my view, with ingenuity, one might discover one or more moot points in favour of the plaintiff, that is not a good reason to allow the claim to go ahead. In my opinion, the plaintiff has no reasonable cause of action and it would be an abuse of process to allow her to pursue this claim with her avowed intention of forcing the 1st defendant to expend substantial time and money in the defence of her claim.”