Case Detail

HCA 509/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 509 OF 2004

______________

BETWEEN

	袁靄儀 YUEN OI YEE LISA	Plaintiff
	and
	協峰電子有限公司 HEATH COMPANY LIMITED	1^st Defendant
	黎汝輝先生 LAI YU FAI	2^nd Defendant

______________

HCA 230/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 230 OF 2006

______________

BETWEEN

	YUEN OI YEE LISA	Plaintiff
	and
	HO YIU KUEN JACKY	1^st Defendant
	CHAN KAM WAH KENT	2^nd Defendant
	HEATH COMPANY LIMITED	3^rd Defendant
	LAI YU FAI	4^th Defendant
	DESA INTERNATIONAL INC	5^th Defendant
	DESA INTERNATIONAL LLC	6^th Defendant
	HIG CAPITAL	7^th Defendant
	HIG-DHP BARBADOS LTD.	8^th Defendant

______________

AND

HCA 272/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 272 OF 2006

______________

BETWEEN

	YUEN OI YEE LISA 袁靄儀	Plaintiff
	and
	LAI YU FAI 黎汝輝	Defendant

______________

(Heard Together)

Before: Hon. Lam J in Chambers

Dates of Hearing: 6 and 10 July 2006

Date of Judgment: 26 July 2006

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J U D G M E N T

_______________

1. The Plaintiff commenced a large number of legal proceedings in the High Court as well as the District Court regarding events leading to the termination of her employment with Heath Company Limited ["Heath"] in March 2003. The background facts have been set out in a number of judgments delivered in these actions. In addition to the judgments that I have referred to in my judgment of 28 December 2005 (reported at [2006] 1 HKLRD 679), there are two more recent judgments,

(a) Decision of Judge Ng in DCCJ 3524 of 2005, 13 January 2006;

(b) Judgment of the Court of Appeal in HCMP 1824 of 2005 and CACV 114 of 2005, 9 May 2006.

2. The current focus of the Plaintiff's attack is Mr Lai Yu Fai ["Lai"], the former Managing Director of Heath. The decision to dismiss her was not made by Lai. It was a decision of the top management of the U.S. parent company of Heath. However, the Plaintiff alleged that there were two crucial letters leading to such a decision:

(a) a complaint letter dated 21 February 2003 signed by her colleagues; and

(b) a group resignation letter dated 5 March 2003.

The Plaintiff believes that Lai instigated her colleagues to sign those letters in order to get her dismissed.

3. The Plaintiff also alleged that Lai discriminated against her on account of her gender and that he sexually harassed her whilst she was working at Heath.

4. The Plaintiff had made a complaint of sexual discrimination against Lai to the Equal Opportunities Commission ["the EOC"]. Submissions were filed by the parties. On 15 December 2003, the Commission informed the Plaintiff by letter that it would discontinue its investigation on the basis that the complaints were lacking in substance. The Plaintiff attempted to persuade the Commission to re-open the investigation without success in the first half of 2004.

5. In December 2003, the Plaintiff turned to litigations. A number of defamation and malicious falsehood actions were commenced against Heath and its staff. There was also an action claiming against Heath for damages for discrimination (DCEO 18 of 2004).

6. Lai left Heath in late 2003 and the Plaintiff had not been able to effect service on Lai until some time in 2005. The Plaintiff wishes to proceed with her actions against Lai.

7. On the other hand, Lai took out applications to strike out the claims of the Plaintiff against him.

8. In my order of 28 December 2005 in High Court Action 509 of 2004, it is envisaged that Lai would proceed with his applications to strike out the Plaintiff's claims against him and the order does not prejudice the Plaintiff in resisting such applications.

9. Lai applied for striking out in three actions, some of them were transferred from the District Court to the High Court to facilitate the same to be heard by this court together,

(a) HCA 509 of 2004;

(b) HCA 230 of 2006 (formerly DCCJ 3524 of 2005);

(c) HCA 272 of 2006 (formerly DCEO 3 of 2005).

HCA 509 of 2004

10. In this action, the Plaintiff sued Heath and Lai for defamation in respect of a number of documents. Some of these were documents prepared and submitted by Heath and Lai to the EOC in response to the Plaintiff's complaints. Apart from those, the Plaintiff also sued on the complaint letter of 21 February 2003 and the resignation letter of 5 March 2003.

11. The Plaintiff's claim against Heath was struck out by Tang J (as he then was) on 2 December 2004. His Lordship held that the claims are unarguable by reason of the absolute immunity conferred on documents supplied by Heath to the EOC for the purpose of dealing with the Plaintiff's complaint. Tang J also held that the action against Heath ought to be struck out as an abuse of process as it is obviously frivolous and vexatious.

12. However, as the Writ had not been served against Lai, Tang J did not deal with that part of the claims in the judgment of 2 December 2004.

13. Similar defamation claims against other staff of Heath had been struck out by Judge H C Wong in DCCJ 7079, 7080, 7081, 7184, 7185, 7527, 7528 of 2003, DCCJ 2702 of 2004, DCCJ 378 of 2005 and DCCJ 442 of 2005. In order to get around the difficulty of absolute immunity, the Plaintiff contended that she had been given a copy of the complaint letter of 21 February 2003 from a source other than the EOC investigation. She said Lai had forwarded to her a blind copy of the letter on 28 February 2003. This was denied by the defendants in those actions.

14. In the judgment of 20 July 2005, Judge Wong rejected the Plaintiff's contention and held that the Plaintiff was barred from advancing any claims of defamation based on that letter which she could only have obtained from the EOC investigation. Judge Wong further found the Plaintiff pursued the actions with the intention of aggravating the costs of the defendants and Heath, as such the actions were abuses of process of the court.

15. The Plaintiff appealed against the decision of Judge Wong. The appeal was brought out of time and an application for leave to appeal out of time was refused by Le Pichon JA. The Plaintiff renewed her application and it was heard by Rogers VP and Yuen JA in HCMP 1824 of 2005 on 25 April 2006. In the judgment of 9 May 2006, the Court of Appeal concluded that the Plaintiff did not have any prospect of success in the intended appeal and therefore leave was refused. The Court of Appeal again rejected the Plaintiff's claim of having obtained the complaint letter prior to the EOC investigation.

16. In HCA 96 of 2005, the Plaintiff attempted to sue Heath again for defamation in respect of statements supplied by the staff of Heath to the EOC and to revive the claims of defamation based on the letters written by them prior to the termination of her employment. The action was struck out by A Cheung J on 16 November 2005.

17. Lai was not a party to the striking out proceedings in those actions. Hence the matter has not been decided as between the Plaintiff and Lai. However, it is to be noted the same argument was advanced by the Plaintiff to sustain her cause of action against Lai in this action as the one she had deployed before Judge Wong and the Court of Appeal.

18. At the hearing before this court on 6 and 10 July 2006, the Plaintiff agreed that she could not sue in respect of documents obtained by her from EOC. She confirmed that her only source of the resignation letter was from the EOC for the purposes of the EOC investigation. However, she alleged that she had obtained a copy of the complaint letter from Lai in February 2003 before she was dismissed. This is the only document the Plaintiff still wishes to pursue in this action. She said Lai told her about the complaint letter on 24 February and gave her a copy of it on 28 February 2003. She further alleged that Mr Steve Marcum had gone through that complaint letter with her at the meeting between the two of them on 5 March 2003. Therefore, she submitted that her claim based on the complaint letter is outside the scope of absolute immunity.

19. In law, there are two different rules which might be applicable to prevent a party from using documents in the other proceedings to mount a claim in a fresh action. For documents that came into existence by reason of the previous proceedings (in the present context, that would cover the witness statements prepared for the EOC investigation), it would be covered by the immunity rule. In other words, since the documents were made for a privileged occasion (viz. the EOC investigation), whatever statements contained in them cannot give rise to any cause of action.

20. For documents that had been produced for other purposes but that were only disclosed to a putative plaintiff in the course of another set of proceedings, they are protected by another rule: the implied undertaking not to use the same for any collateral purpose.

21. This distinction was alluded to in the judgment of Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1992] 2 AC 177 at 211 to 212.

22. The complaint letter falls into the second category. It did not come into existence by reason of the EOC investigation. If the Plaintiff can establish that she had got a copy from a source other than the EOC investigation, the implied undertaking would not bite.

23. Hence, the crucial question is whether the Plaintiff's contention of alternative source of the complaint letter is so plainly unarguable that the action should be struck out.

24. As said, both Judge Wong and the Court of Appeal had decided against the Plaintiff on this crucial question. However, since that was not a decision between the Plaintiff and Lai, I should consider the issue afresh in the present context.

25. At this juncture, I should mention that Ms Tsang argued that the rule of issue estoppel barred the Plaintiff from re-visiting issues that had been decided. The submission was advanced mainly in the context of HCA 272 of 2006 but if she were right, I see no reason why it should not be applied in this action as well. She contended that there was a privy in interest between Lai and the other defendants who had been successful in striking out claims of the Plaintiff. Reference was made to Halsbury's Laws of Hong Kong Vol. 11(2) Para. 170.040 and Gleeson v J Wippell & Co [1977] 3 All ER 54.

26. On the facts, Gleeson v J Wippell & Co [1977] 3 All ER 54 seems to be a decision unfavourable to Lai. The plaintiff's claim against a manufacturer of shirts for copyright infringement failed in a previous action. Then it pursued against another party who had requested the manufacturer to make the shirts in question. The defence in the second action raised a plea of issue estoppel. Megarry VC held that the plaintiff was not barred by dismissal of the previous action from pursuing against the defendant in the second action.

27. The Vice Chancellor considered the question of privity of interest in the light of the observations of Lord Reid in Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 911-2. Three points were made by His Lordship, acknowledging this to be a difficult subject and no clear statement of principle had been stated,

(a) Privity of interest refers to something more than mere curiosity or concern;

(b) Having regard to the underlying rationale for issue estoppel, there must be a sufficient degree of identity between the successful defendant in the previous action and the defendant in the second action before the latter can evoke the doctrine to bar the plaintiff from pursuing against him by reason of the decision in the first action;

(c) Privity takes effect whether that party wins or loses. Hence, the identity between the defendants in the two actions must be of such a native that it would be just to hold the defendant to be bound by an unfavourable result in the first action even if it was an action to which he was not a party.

28. It was the last point which gives rise to the greatest difficulty to the defendant's argument of issue estoppel in Gleeson. The same can be said in the present case. If there had been a decision in favour of the Plaintiff in the earlier cases, I wonder if Lai would regard it as fair and just to hold him to be liable in this action without giving him an opportunity to advance his case.

29. I am aware that there is an authority which at first blush may seem to be in favour of Lai: North West Water Limited v Binnie [1990] 3 All ER 547. But Gleeson was not referred to in that judgment. Further, as explained in the more recent decision of Sweetman v Nathan [2002] EWHC 2458 (QB), North West Water actually concerned with a previous decision in which both parties to the second action were co-defendants in the first action although the relevant issue was decided in the earlier action without any contribution notice between them.

30. At the same time, a more recent Court of Appeal decision suggests that the doctrine of privity of interest in the context of issue estoppel has a narrow compass in that it does not apply to a successor in title who had acquired the interest before the judgment, see Powell vWiltshire [2005] QB 117. As I have not heard submissions from the parties on these cases, I do not wish to express any views on the precise limit of this doctrine.

31. For the purpose of this judgment, I will just confine myself to what I have already said in the light of Gleeson. I will proceed on the basis that there is no issue estoppel in this case.

32. Be that as it may, the points canvassed in the judgments of Judge Wong and the Court of Appeal are those Lai could fairly rely upon to invite this court to reject the Plaintiff's allegation of alternative source of the complaint letter. One can hardly fail to note the inconsistent stance taken by the Plaintiff in Paras. 10 and 12 of her fresh statement of claim mentioned in Para. 33 of the judgment of the Court of Appeal.

33. The Plaintiff submitted that contrary to what is said in Para. 34 of the Court of Appeal judgment, there were contemporaneous evidence to support her case of alternative source. First, she said she had referred to the complaint letter in the statement of facts prepared by herself that was attached to her solicitors' letter dated 12 April 2003. In that statement, the Plaintiff had the following entry regarding what happened on 28 February 2003,

"Sally Chong did not take her annual leave as told by YF Lai. In the morning, YF Lai held various meetings with all departments and staff in different groups without my existence. Afterwards, YF Lai came into my room and said to me that all staff have prepared a ‘Complaint Letter' about me to be presented to Steve Marcum. YF Lai also said all staff did not like my management style and I was not suited into the company's cultures. I pleaded YF Lai in a humble manner to let me talked with all staff. I wanted to learn the nature of their cultures and would like to improve myself. …"

34. Second, the Plaintiff said she had mentioned about the complaint letter in her EOC complaint. She reiterated what I quoted above regarding the events on 28 February 2003 at Para.13 of her EOC complaint of 16 July 2003. In Para. 18 of the EOC complaint, the Plaintiff said,

"… Mr Lai told me in advance on 28 February 2003 that all staff would present a complaint letter to Mr Marcum, which came true on 5 March 2003 …"

35. Third, the Plaintiff said Lai admitted in his EOC response of 11 September 2003 that after he learnt of the complaint from the staff on 21 February 2003, he considered he had the responsibility to discuss with the Plaintiff about the complaint. After the Plaintiff returned to Hong Kong, Lai discussed with her about her attitude and management style causing resentment amongst the staff.

36. I have examined these three pieces of evidence with care. Whilst they are capable of establishing that Lai had told the Plaintiff about the existence of a complaint letter from the colleagues of the Plaintiff, they by no means support the assertion of the Plaintiff that Lai had given her a blind copy of the letter or had shown it to her on 28 February 2003. On the contrary, the way in which the Plaintiff referred to the complaint letter in her statement of facts and EOC complaint suggest she did not have any copy of the complaint letter when she wrote those documents. She said nothing about the contents of the complaint letter. Uncharacteristically, in those documents she did not refute the criticism leveled against her in the complaint letter. She thought it was a letter to Mr Marcum (whilst the complaint letter was actually addressed to Lai).

37. There was no reference whatsoever in those documents to the belated assertion by the Plaintiff (which started to surface only after Tang J's judgment) that Lai had emailed a blind copy of the complaint letter to her and she had forwarded the same to Miss Fanny Chan.

38. In her statement of facts, the Plaintiff said these under the entry for 5 March 2003,

"In the afternoon, Steve Marcum had meetings with various staff or group of staff, as previously arranged. Accordingly to YF Lai, some staff complained about me to Steve Marcum, which I hadno knowledge of the cause and nature." (my emphasis)

This does not sit well with the Plaintiff's story that she had already got a copy of the complaint letter on 28 February 2003.

39. In her email dated 3 March 2003 to Lai with copies to all the staff (at p. 43 of the Plaintiff's bundle of documents prepared for the striking out hearing), she requested Lai to organize a meeting with all the staff for her to explain herself. However, she was again uncharacteristically silent in that email about the matters set out in the complaint letter.

40. The Plaintiff did not offer any believable explanation about her inconsistent stance identified in Para. 33 of the Court of Appeal judgment.

41. The so-called blind copy of the complaint letter produced by the Plaintiff to support her claim was attached to an email sent by the Plaintiff to the solicitor for Heath on 29 April 2005 (the email at p. 1404 of the hearing bundles prepared by the Defendant with the blind copy at p. 1406). Comparison with the original of the complaint letter showed a number of discrepancies.

42. After Ms Tsang referred this court to such discrepancies, the Plaintiff admitted to this court that she had re-typed the blind copy based on what she had got from Lai through email.

43. The end of the copy produced by the Plaintiff was as follows,

"List of 29 staff out of total of 35

The six persons did not include in the list were:
1. YF Lai 4. Idy Leung of accounts
2. Lisa Yuen 5. Raymond Li
3. Fanny Chan of accounts 6. The Janitor"

44. At the hearing before me, the Plaintiff said at the meeting with Lai on 28 February 2003, she was not told who had signed the complaint letter and the blind copy emailed to her did not include the signatures. This was also the response of the Plaintiff to the judgment of the Court of Appeal in her letter dated 11 May 2006 (see sub-paragraph (e) at p. 9 of the Plaintiff's hearing bundle). Hence, the copy of the complaint letter produced by the Plaintiff could not have been prepared before she had got a true copy of the complaint letter from the EOC.

45. Having regard to all the evidence before me, I am satisfied that it is plain and obvious that the Plaintiff does not have a believable case in having obtained a blind copy of the complaint letter from Lai on 28 February 2003 even though she might have been told about the existence of such a document at that stage. It is clear to me that this story of blind copy of the complaint letter was the Plaintiff's plot to salvage her claim in the wake of the judgment of Tang J.

46. Without any copy of the complaint letter and in the absence of specific knowledge as to the contents of that letter (as demonstrated by her vagueness in her reference to the complaint letter in the pre-EOC investigation documents she relied upon), the Plaintiff did not have sufficient materials to enable her to launch any claim for defamation. She would not even be able to establish who had signed the complaint letter, not to mention that the complaint letter contained anything defamatory of her.

47. In other words, she could only formulate her claim by reference to what had been said in the complaint letter by having obtained a copy of that letter from the EOC investigation.

48. Her case is therefore caught by the implied undertaking rule. Since no leave had been obtained for such collateral use of the document, the action should be struck out.

49. In any event, there are other serious defects in the claim for defamation. First, I have serious problem as regards how the complaint letter can be read as capable of being defamatory of the Plaintiff. It was a letter from the staff expressing concern about their working environment and atmosphere. The only reference to the Plaintiff was in paragraph 3 voicing concern about privacy of the staff not being respected. The Plaintiff did not begin to plead how such allegation was defamatory of her. The Plaintiff had not identified clearly which particular statements in the complaint letter are defamatory of her. Her Statement of Claim does not comply with the rules of pleadings, see Hong Kong Civil Procedure 2006, Para. 82/3/2.

50. Second, the letter was from the staff to the senior management to express their dissatisfaction. Plainly, it was a privileged occasion: the staff has a legitimate interest in voicing their concern whilst the management has a legitimate interest in receiving the same.

51. Third, the Plaintiff attributed the complaint letter to Lai even though he was the addressee of the letter as opposed to the writer of the letter. The only basis that the Plaintiff had pleaded to support her allegation that Lai aided and abetted the staff in drafting the letter was that the allegations contained in the letter should be strictly confidential and known only to Lai and Sally Chong and to the Finance and Administration department. Having regard to the matters set out in the complaint letter, I find that assertion to be obviously unarguable. I cannot identify anything in that letter coming anywhere close to information of such confidential nature. There is simply no basis to suggest that Lai had aided and abetted in the drafting of the letter.

52. Fourth, the Plaintiff's own case is that Mr Marcum did not dismiss her after reading the complaint letter. She was only dismissed by reason of the resignation letter. Hence, it is difficult to see any causal connection between the complaint letter and her claim for $13 odd million based on her loss of income until retirement age.

53. The whole claim against Lai is without any merit and I will strike out the same.

HCA 230 of 2006

54. This is a claim based on two witness statements from the staff of Heath. Those statements had been filed with the EOC and then subsequently retracted. The solicitors for Heath included them in an affidavit filed in HCA 509 of 2004.

55. Even though the statements were retracted, they were nevertheless prepared for a privileged occasion, viz. the EOC investigation. They were therefore protected by absolute immunity.

56. I therefore arrive at the same conclusion as A Cheung J in HCA 96 of 2005 that there cannot be any claim for defamation based on these witness statements.

57. The Plaintiff's claim in this action is therefore struck out.

HCA 272 of 2006

58. In this action, the Plaintiff claimed against Lai for contravention of the Sex Discrimination Ordinance ["SDO"] Cap. 480. Section 76 creates statutory torts with regard to act of discrimination or act of sexual harassment which is unlawful by virtue of Part III and IV of the SDO.

59. Section 86(1) sets a time lime of 24 months for lodging a claim in respect of such statutory torts. Section 86(3) gives the court the power to consider any claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

60. The 24 months' time limit starts to run from (a) the time when the act complained of was done; or (b) if there is a relevant report by the EOC in a formal investigation, the day on which the report is published.

61. There is no relevant report in the present case. The Plaintiff had never made any complaint to the EOC regarding her allegations of sexual harassment. As regards her complaint of sexual discrimination, the EOC considered that there was insufficient evidence to warrant any formal investigation and the procedure under Section 71 of the SDO had never been evoked. No report had been published. The preliminary investigation was discontinued under Section 84(4)(e) of the SDO.

62. Hence, the relevant time limit is the one set by Section 86(1)(a), viz. 24 months from the acts complained of.

63. The Plaintiff submitted that the five months taken by the preliminary investigation of EOC should not be counted. I see no legal basis for such a submission. The wordings of Section 86(1) are clear. Short of a formal investigation with the publication of a report by the EOC, the primary time limit under Section 86(1)(a) is applicable. The EOC has duly alerted the Plaintiff to the relevant time bar.

64. The Plaintiff commenced DCEO 3 of 2005 in the District Court on 28 June 2005. All the acts complained of took place before her dismissal on 6 March 2003. The action is brought outside the 24 months time limit. Unless the court exercises its discretion under Section 86(3) to entertain the claim out of time, the action should be struck out as it is time barred.

65. Should the discretion under Section 86(3) be exercised in favour of the Plaintiff? The test is whether it is just and equitable to do so having regard to all the circumstances of the case.

66. An important consideration is the merit of the claims. As far as the claim based on sexual discrimination is concerned, I am firmly of the view that it has no merit. There is no suggestion that the Plaintiff was discriminated against in being employed by Heath. Section 11(1) of the SDO is therefore not applicable. Under Section 11(2) of the SDO, discrimination against a woman is unlawful in the context of an employment in three areas. The relevant sub-section is Section 11(2)(c), viz. by dismissing her.

67. However, it is plain from the indisputable facts of the case,

(a) Lai did not take part in the decision to dismiss the Plaintiff;

(b) The senior management decided to dismiss the Plaintiff by reason of the group resignation letter which clearly showed the incompatibility between the Plaintiff and most of her colleagues. The letter was, even on the Plaintiff's case, handed to Mr Marcum with a round of applause by the staff.

68. Objectively speaking, the evidence clearly points to a serious problem in the relationship between the Plaintiff and her colleagues. The Plaintiff might have difficulties in seeing that in February 2003. But the problem must have been there for quite some time.

69. Whatever Lai might have said to the Plaintiff about her management style simply has no bearing on the dismissal. The Plaintiff simply has no case on the casual link between the remarks of Lai and her dismissal.

70. I do not see how the Plaintiff can succeed in a claim based on Section 11 of SDO. It would only be a waste of time and costs to permit such a claim to be brought pursuant to Section 86(3).

71. Turning to the claim based on sexual harassment, the relevant section is Section 23(3) of the SDO. As mentioned, this claim had not been raised in the EOC complaint. Nor was it raised in DCEO 18 of 2004. Whilst the Plaintiff might account for a slight delay for her complaint on sexual discrimination by reason of the EOC complaint, this has no bearing to her sexual harassment claim. The Plaintiff said at the hearing that she had hoped that the EOC could resolve all her problems. If that were so, it is difficult to see why she did not include the sexual harassment claim in her EOC complaint.

72. Section 2(5) of the SDO defines sexual harassment. There is no suggestion that Lai made any sexual advance or request for sexual favours to the Plaintiff. Therefore the potentially relevant limbs of sexual harassment for present purposes are,

(a) The person engages in other unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimated (section 2(5)(a)(ii)); or

(b) The person engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for her (section 2(5)(b)).

73. The allegations of sexual harassment are in Paras. 59 to 69 of the Statement of Claim. They can be grouped under the following categories,

(a) Lai shared dirty jokes with her or in her presence during lunches;

(b) Lai told her about the affairs of other colleagues;

(c) The playing of a game with sexual undertone by the staff during annual dinner with the connivance of Lai;

(d) Lai addressed the Plaintiff as "Lee Sze Nine".

74. I fail to see how (d) can be conduct of a sexual nature as defined in Section 2(7). I am however prepared to assume (without deciding) for present purposes that the other acts can arguably come within that definition.

75. To constitute harassment under Section 2(5)(a)(ii), the conduct has to be unwelcome. There were correspondence between Lai and the Plaintiff by emails after the dismissal of the Plaintiff. In none of those did the Plaintiff complain about sexual harassment. The Plaintiff did not act as if she had been subject to sexual harassment by Lai. In an email dated 23 April 2003 from the Plaintiff to Lai, she said,

"I used to respect and support you … I also praised you in front of Steve Clanton and told him I used to get along with you well …" (at p. 619 of the Defendant's hearing bundles)

Then on 28 April 2003, the Plaintiff wrote to Lai,

"I swear my life that I used to treat you as my trustworthy friend …" (at p. 622)

76. Given such attitude of the Plaintiff, she would have difficulties in persuading the court that a reasonable person in the position of Lai would have anticipated that she would be offended, humiliated or intimated by these alleged conducts.

77. There was also no reference to sexual harassment in the statement of facts attached to the Plaintiff's solicitors' letter of 12 April 2003.

78. The Plaintiff referred to Moonsar v Fiveways Express Transport Ltd [2004] UKEAT 0476-04-2709. It was held in that case that the lack of complaint at the time of the incident did not afford a defence to a claim of sex discrimination under the Sex Discrimination Act 1975. There was however a specific finding in that case that the plaintiff found the behaviour of her colleagues to be unacceptable. The definition for sexual harassment under the English legislation is not the same as that in the SDO. I do not think that case provides much assistance in the present context.

79. In my view, it is also tenuous to suggest that the alleged conducts of Lai created a sexually hostile or intimidating work environment for the Plaintiff. The Plaintiff did not appear to rely on this limb in her Statement of Claim. In any event, there is nothing to suggest she found her working environment sexually hostile or intimidating.

80. In the exercise of discretion under Section 86(3), the court is also entitled to take into account the bona fide (or the lack thereof) of the Plaintiff in advancing a belated claim of sexual harassment. The evidence suggests that she is pursuing the claim with a view to embarrass and harass Lai and to extract a settlement offer from Heath. The emails of 27 June 2005, 10 August 2005 and 20 September 2005, from the Plaintiff to the solicitor acting for Lai (at p. 934, 860 and 935 of the Defendant's bundles) demonstrate that the Plaintiff regarded her claim as a laughing matter and a gamble in which she had nothing to lose, that she intended to pursue these litigations relentlessly to prolong the pain and suffering to Lai. The Plaintiff told this court at the hearing that she would not pay a single dollar to Lai even if she lost since she had no means.

81. Hence, it is likely that Lai would suffer great prejudice in terms of costs and prolonged anxiety if the discretion were exercised in favour of the Plaintiff under Section 86(3).

82. Given the inherent weakness in the Plaintiff's case, the prejudice that Lai might suffer, the vexatious manner in which the Plaintiff indicated she would pursue this litigation, the lack of cogent explanation as to why the sexual harassment claim was not raised earlier (viz. when the Plaintiff brought the EOC complaint when Lai was still working at Heath), I do not think it is just and equitable to extend the time to enable this sexual harassment claim to be considered under Section 86(3).

83. Without the time extension, the action should be struck out.

Results

84. I order all three actions against Lai be struck out and dismissed. There shall be a costs order nisi that Plaintiff shall pay Lai's costs in all three actions, such costs to be taxed if not agreed.

(M H Lam)
Judge of the Court of First Instance
High Court

Plaintiff, in person

Ms Christine Tsang, instructed by Messrs Kennedys, for the Defendant (LAI YU FAI)

HCMP 1087/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1087 OF 2005

____________

IN THE MATTER OF SECTION 27(1) OF THE HIGH COURT ORDINANCE, CAP. 4

____________

BETWEEN

	THE SECRETARY FOR JUSTICE	Applicant
	and
	YUEN OI YEE LISA Alias LISA YUEN, LISA LEE and 袁靄儀	Respondent

____________

HCA 96/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 96 OF 2005

____________

BETWEEN

	袁靄儀	Plaintiff
	and
	協峰電子有限公司	Defendant

____________

HCA 509/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 509 OF 2004

____________

BETWEEN

	袁靄儀	Plaintiff
	and
	協峰電子有限公司	1^st Defendant
	(為美資公司HIG-DHP Barbados Ltd. 全資附屬機構，前為Desa International LLC)
	黎汝輝先生	2^nd Defendant

____________

Before: Hon Lam J in Court

Date of Hearing: 20 December 2005

Date of Decision: 28 December 2005

Date of Reasons for Decision: 9 January 2006

_______________________________

REASONS FOR DECISION

________________________________

1. On 27 May 2005, the Secretary for Justice applied by originating summons for what I would call a Section 27 order against Lisa Yuen [“Yuen”], the defendant in HCMP 1087 of 2005. The application was made under Section 27 of the High Court Ordinance.

2. Yuen issued a summons to strike out the Section 27 application and I dismissed her striking out application on 28 October 2005. The substantive Section 27 application was adjourned at the request of the Secretary for Justice to 20 December 2005. I have accounted for these in my Reasons for Decision of 3 November 2005. On the materials before the court, the main dispute seems to be whether a Section 27 order is the proportionate measure to deal with Yuen as opposed to other less draconian orders. Of course, Yuen did not accept that she is a vexatious litigant and she objected to being branded as such.

3. After the hearing of 28 October 2005, the claim by Yuen (as plaintiff) against Heath Company Limited [“Heath”] in High Court Action No. A96 of 2005 was struck out by A Cheung J on 16 November 2005. The learned judge also directed the question whether a Restricted Proceedings Order [“RPO”] should be made against Yuen to be heard before me on 20 December 2005. Directions were also given as to the filing of evidence regarding the RPO matter.

4. There appears to be some misunderstanding on the part of the solicitors for Heath. Evidence was mistakenly filed by them in the Section 27 proceedings. Heath is not a party to the Section 27 proceedings and it has no right to be heard in the context of that application. A Cheung J did not grant leave to Heath to intervene in the Section 27 proceedings. The learned judge only directed that the RPO matter was to be heard by this court on 20 December 2005 in the context of HCA 96 of 2005.

5. On 8 December 2005, this court held a direction hearing. That hearing was useful not only in terms of rectifying that mistake, but also in terms of the developments leading to the final resolution of the Section 27 proceedings in the way it did on 20 December 2005. At that hearing, Yuen indicated that she did not wish to continue with her proceedings other than her claims against a person whom I shall call Lai. To facilitate the effective consideration of the RPO matter, a draft RPO and RAO was given to the parties for comments in the event that this court were to conclude that the case warrants a RPO and RAO.

6. On 30 November 2005, in HCA No. 509 of 2005, Yuen (as plaintiff in that action) issued a summons returnable before me at the same time as the Section 27 proceedings. Lai is the defendant in that action. Another summons was issued by Yuen on 19 December 2005. Given that Lai will attend the hearing of 20 December, this court considered it was appropriate to give advance notice to Lai about the draft RPO and RAO and invite comments from him.

7. Yuen issued several summons in HCMP 1087 of 2005 which had to be dealt with on 20 December 2005,

(a) Paragraphs 2 and 3 of a summons dated 27 October 2005;

(b) A summons dated 7 December 2005;

(c) A summons dated 12 December 2005.

8. Altogether, three set of proceedings (with several summonses issued thereunder) were before me on 20 December 2005,

(a) The Section 27 proceedings in HCMP 1087 of 2005 and Yuen’s summonses;

(b) The RPO matter in HCA 96 of 2005;

(c) The summonses in HCA 509 of 2005 taken out by Yuen against Lai.

9. On 20 December 2005, after hearing all the parties, this court indicated that a RPO and RAO would be made. Thereupon, the Secretary for Justice decided to withdraw the Section 27 proceedings. The RPO and RAO was made on 28 December 2005.

The RPO and RAO

10. The litigation history of Yuen is set out in the following judgments,

(a) Judgment of Judge C B Chan of 27 April 2004 in DCCJ 5441 of 2003;

(b) Judgment of the Court of Appeal of 18 March 2005 in HCMP 2038 of 2004;

(c) Judgments of Judge To of 4 June 2004 and 26 July 2004 in DCCJ 7079, 7080, 7081, 7184, 7185, 7257, 7258 of 2003;

(d) Judgment of Deputy Judge Tracy Chan of 29 January 2005 in those actions;

(e) Judgment of Judge H C Wong of 20 July 2005 and 12 August 2005 in DCCJ 7079, 7080, 7081, 7184, 7185, 7257, 7258 of 2003 and DCCJ 2702 of 2004, DCCJ 378 and 442 of 2005;

(f) Judgment of Judge Yuen of 27 May 2005 in DCEO 18 of 2004;

(g) Judgment of Judge Marlene Ng of 10 August 2005 in DCCJ 3524 of 2005;

(h) Judgment of Tang J of 2 December 2004 in HCA 509 of 2004;

(i) Judgment of A Cheung J of 16 November 2005 in HCA 96 of 2005.

It was attached to the judgment of A Cheung J a table setting out the progress of the various actions commenced by Yuen and their disposals. I am not going to recite what have been set out in those judgments. As I said in Paragraph 33 of my judgment in Choy Bing Wing v Chief Executive of HKSAR HCA 2351 of 2005, 23 December 2005, this court is entitled to consider what has been decided in previous actions and the findings of the judges as to the nature of and vexation occasioned by the previous actions in dealing with a RPO and RAO matter as well as a Section 27 application (see also Para. 41 of my judgment in Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16 December 2005).

11. On the materials before me and in the light of the conclusions set out in those judgments, there is no doubt in my mind that it is necessary and proportionate to impose restraints upon Yuen to prevent further abuses of the legal processes. She had commenced one action after another seeking to litigate on matters basically arising from the termination of her employment. Most of her actions had been struck out by the court. The vexatious nature of her actions are set out in those judgments and it is not necessary for me to repeat the same. She had difficulties in accepting unfavourable results and she simply commenced fresh proceedings after defeats in previous actions. She conducted litigation in manners calculated to increase the costs burden on her adversaries. She had occasionally resorted to using insulting languages in putting forward her case, e.g. by calling others “monkeys”. She repeatedly made unfounded allegations against Tang JA and lawyers acting for her opponents, including allegations of conspiracy. She has threatened to commence legal proceedings against the lawyers.

12. Another form of vexation exhibited by Yuen is her propensity to write numerous letters to the court and copied her correspondence with others (including lawyers acting for the other sides) to the court. It is not appropriate for a litigant to write to the judge unless there are specific matters that the court seeks the parties’ written comments. This rule applies irrespective of whether a litigant is legally represented or otherwise. If a party has an application to make, the proper course is to issue an inter parte summons. If he or she feels that there are factual matters that are relevant to any application before the court which he or she wishes to put forward, an affidavit or affirmation should be filed.

13. A litigant in person cannot write to the court in the pretext of seeking guidance or direction. It is not the function of the court to give advice to a litigant. Hence, I included the following paragraph in my directions on 21 September 2005,

“There should not be any interim communication with the court by letters without leave. Any party intending to apply to court for directions should apply by summons. Correspondence sent to the court without leave will not be read.”

14. Yuen had observed that direction for a while. Unfortunately, after the hearing of 28 October 2005, she relapsed and repeatedly wrote to this court without permission. The situation worsened after mid November and recently she wrote to this court almost on a daily basis. Notwithstanding that her attention had been drawn to the aforesaid direction, she persisted in adopting such course.

15. In the future, as stated in my RPO and RAO, this court will not read any correspondence sent to this court by Yuen except her RPO leave application or her RAO leave application.

16. I annex to this Decision the terms of the RPO and RAO that I made against Yuen. Several matters require explanation. I am grateful to the parties in respect of their inputs and assistance in these regards.

17. The first point that I want to discuss is whether a RPO can cover subject matters which have not been litigated. In Ng Yat Chi v Max Share [2005] 1 HKLRD 473, the Court of Final Appeal discussed RPO in the context of re-litigation. However, in my judgment, it would be wrong to read the judgment of the Court of Final Appeal as confining the use of RPO to deal with abuses stemming from re-litigation. As I said in Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16 December 2005, the categories of abusive proceedings are never closed and re-litigation is a common but by no means exhaustive form of vexation.

18. The Court of Final Appeal clearly expected the court in the exercise of its inherent jurisdiction to develop flexible and proportionate responses to meet the challenges presented by vexatious litigants and abuses of court processes, see Paras. 6 and 101 of the judgment in Ng Yat Chi. The Chief Justice identified the justification for RPO at Para. 8,

“Just as the court can protect itself against anticipated abuse by making a preventive order directed at future applications in existing proceedings, so it can similarly protect itself by making a preventive order directed at abusive proceedings that may be institute in the future. The justification is that in view of the past conduct of the party concerned, it is apprehended that that party may commence fresh proceedings which may be abusive.”

19. If the materials before the court support a conclusion that the party concerned is, unless restrained by the court, likely to commence proceedings that are not re-litigations but are otherwise abusive, I see no reason why the court should not grant a RPO to prevent the abuse. It is well established that the court can restrain the issue or advertisement of a winding-up petition if such petition is an abuse of process. The abuse in that context usually has nothing to do with re-litigation. In my judgment, in an appropriate case, the court should take immediate step by way of RPO to prevent abuses not involving re-litigations. I have in fact done so in Choy Bing Wing v Chief Executive of the HKSAR HCA 2351 of 2005, 23 December 2005 at Para. 43.

20. Mr Wong SC properly reminded this court that in holding that the scope of a RPO can extend beyond re-litigation, we are taking a step beyond the RPO sanctioned by the Court of Final Appeal in Ng Yat Chi.

21. In the present context, having regard to the history of the disputes between the parties and the conducts of Yuen in the past, I am satisfied that it is appropriate to include the matters set out in Part B of Schedule 1 as subject matters of the RPO. Most of them are matters that have been canvassed in previous actions. As far as the new matters are concerned, they could properly be regarded as matters arising from the conduct of the previous actions or relating thereto, e.g. debit notes, banana coupons, injury to feelings. Since Yuen had threatened to launch legal proceedings regarding those subjects and such claims are clearly without any merits whatsoever and given her propensity as shown by her conduct of her previous actions, I am of the view that they should be included in the RPO.

22. For the benefit of Yuen, I will explain why her so-called injury to feelings claim has no merit. The crux of her complaint is that the Section 27 proceedings were engineered by solicitors for Heath and it had caused her substantial psychological harm. She regarded the Section 27 application as unmeritorious and by her summons of 27 October 2005 counterclaimed damages for injury to feelings against the Secretary for Justice and that solicitors firm. Procedurally, that solicitors firm is not a party in HCMP 1087 of 2005 and Yuen had not applied for leave to join that firm as a party. Hence, she could not advance such a “counterclaim” in the context of this set of proceedings. More importantly, it was the Secretary for Justice who decided to commence the Section 27 application. Even though the solicitors might have brought the matter to the attention of the Secretary for Justice in the first place, there is nothing to suggest that the Secretary had not exercised independent and professional judgment before coming to a decision to issue the proceedings in HCMP 1087 of 2005.

23. As I said in Ma Kwai Chun, the Secretary for Justice should have balanced the public interest in curbing abuses of process in civil proceedings and the constitutional right of a litigant’s access to court before making such a decision. The Secretary for Justice was represented by respectable and responsible counsel. I did not discern anything to suggest that such balance had not been taken into account prior to the issue of proceedings. To the contrary, once this court indicated that a RPO and RAO would be made, the Secretary properly withdrew the Section 27 application.

24. One cannot judge the merit of the Section 27 application by reference to the ultimate withdrawal. The law relating to RPO is in a state of flux and it is understandable that prior to this judgment, those advising Heath or the Secretary for Justice considered that a RPO confining to abuses by way of re-litigation would not be a sufficient protection. Yuen had demonstrated by her conduct in the previous actions that she does not lack ingenuity in terms of putting forward new causes of action to create a platform for ventilating her vendetta against her previous colleagues. Insofar as necessary, I would hold that the Secretary for Justice acted reasonably and responsibly in commencing HCMP 1087 of 2005.

25. Further, the Secretary had all along conducted the Section 27 application reasonably. Given the constitutional implications of a Section 27 order, this court cannot make such an order without the examination of the merit even though a respondent consents to the same. Hence, Yuen’s offer for a consent summons to be issued cannot obviate a hearing of the matter. In any event, Yuen withdrew her consent shortly before the hearing on 28 October 2005.

26. Given my conclusion as to the propriety of the Section 27 proceedings, Yuen’s injury to feelings claim is doomed to fail. In so saying, I should not be taken to mean that a Section 27 order would be made if the matter were pursued. Although I am inclined to hold that the statutory criteria under Section 27 has been satisfied, this court still has to exercise its discretion by reference to the circumstances of the case and the principle of proportionality. The RPO and RAO is a significant factor (but not the only factor) that the court will have to take into account. What I am saying is that irrespective of the final outcome, given the circumstances surrounding the issuing and the prosecution of the Section 27 proceedings up to its withdrawal, Yuen has no basis in law to claim any damages for whatever anxiety or suffering stemming from this piece of litigation.

27. The next subject I shall discuss is whether the RPO and RAO should cover appeals. In Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, the Chief Justice made some observations as to the levels of court that may make RPO and RAO in Paragraphs 14 and 15. Ribeiro PJ further elaborated on the same at Paragraphs 125 to 137. It would appear from their Lordships’ judgment that the power to prevent abuse of the appellate process should be exercised by the Court of Appeal (see in particular Paras. 15 and 132). In Practice Direction 11.3, Paragraph 16 explicitly provides for the making RPO and RAO regarding appeals by the Court of Appeal. Paragraph 15 of the Practice Direction provides for the right of appeal against a RPO and RAO and the right to appeal against refusal of RPO or RAO leave.

28. Hence, it is not for this court to make a RPO or RAO to restrict Yuen from exercising any right of appeal. If any party deems it necessary, he or she can take up the matter in the Court of Appeal.

29. I now turn to judicial review. Yuen indicated that she wishes to commence fresh judicial review proceedings. In her summons of 7 December 2005 in HCMP 1087 of 2005, paragraph 1 sought leave to apply for judicial review against a decision of the Equal Opportunities Commission. The Commission had discontinued with the investigation of Yuen’s complaint of gender discrimination against Heath and Lai. Yuen subsequently brought Equal Opportunities Action No. 18 of 2004 in the District Court. The claim was struck out by Judge Yuen on 27 May 2005. She had been granted leave to appeal and the appeal is CACV 272 of 2005. Based on the materials placed before me, I cannot discern any basis for judicial review. In any event, Yuen could and should pursue her equal opportunities claims in CACV 272 of 2005 instead of proliferating litigation by commencing yet another fresh set of proceedings by way of judicial review.

30. In Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, Paras. 19 and 20, the Chief Justice sounded a note of caution regarding extension of RPO to cover judicial review. However, the question had been left open. I bear in mind that under Order 53, leave is required before a litigant can commence judicial review proceedings. However, there are material differences between a leave application under Order 53 and a RPO leave application. The test for Order 53 leave is whether the material before the court disclosed matters which might on further consideration demonstrate an arguable case for the grant of the relief sought or a prima facie case that something warranting investigation has gone wrong, see Ho Ming Sai v Director of Immigration [1994] HKLR 21. The judge who deals with an application for leave under Order 53 would not have the benefit of the information regarding the history of vexatious litigious activities of the applicant. An application for leave which on its face is quite arguable may in substance be a renewed attempt to vex some third parties who had been involved in the previous saga. In England, it was held by the Court of Appeal that once a statutory order had been made, leave was required before a litigant can apply for leave to issue judicial review proceedings, see Ex p Ewing [1991] 1 WLR 388. This has recently been confirmed in Ewing v Office of the Deputy Prime Minister [2005] EWCA Civ 1583, 2 November 2005.

31. Another difference between an Order 53 leave application and a RPO leave application is that the latter can be dealt with on papers whilst the former would entail a hearing if the applicant requested for the same. One of the evils caused by vexatious litigations identified in Ng Yat Chi is the waste of judicial resources. This applies equally to hearing vexatious Order 53 leave applications.

32. In principle, I am of the view that a RPO can be extended to cover judicial review applications. On the facts of the present case, given the risk of Yuen commencing judicial review proceedings that I have already alluded to, I hold it is proportionate to extend the RPO to cover applications for leave under Order 53.

33. I was also invited to extend the scope of RPO and RAO to cover proceedings in the Labour Tribunal, Small Claims Tribunal and Administrative Appeals Board. Given that the Court of First Instance can make RPO in respect of proceedings in the District Court (see Practice Direction 11.3 Para. 8), I see no reason why it could not be extended to proceedings in the Labour Tribunal and Small Claims Tribunal. An analogy can be drawn with the English Divisional Court making an order covering Employment Appeal Tribunal (see AG v Mensah [2004] EWHC 1441 (Admin), 13 May 2004). A RPO or RAO is in substance an injunction and this court has the power to grant an injunction to safeguard the proper administration of justice. At the same time, the exercise of such power has to be balanced against a litigant’s right of access to the court. Hence, the terms of the RPO and RAO must be proportionate to the extent of vexation caused by that litigant.

34. Ms Cheng helpfully referred this court to the guidance set out in Lester and Pannick, Human Rights Law and Practice on the relevant principles of proportionality applied by Hartmann J in Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 at Para. 121. Modifying the same to fit into the present context, the following tests are relevant,

(a) The measures designed must be rationally connected to the vexation occasioned or likely to be occasioned by the litigious activities of the RPO litigant;

(b) The means used to impair the right of access to court must be no more than is necessary to accomplish the objective of curbing the vexatious litigation of the RPO litigant.

35. In the circumstances of the present case, I am satisfied that it is proper for this court to extend the RPO and RAO against Yuen not only to proceedings in the District Court but also to proceedings in the Labour Tribunal and Small Claims Tribunal. She had indeed commenced proceedings in the Small Claims Tribunal. Since the subject matter of Yuen’s complaints previously litigated revolved around circumstances leading to the termination of her employment by Heath, it is also legitimate and proportionate to include proceedings in the Labour Tribunal in the RPO.

36. With regard to proceedings in the Administrative Appeals Board, Yuen had an appeal against the decision of the Privacy Commissioner about her complaint against Sally Chong. Since it is the exercise of a right of appeal and I do not have full submissions on whether the jurisdiction to prevent abuses of judicial proceedings could be extended to an appellate body dealing with administrative complaints, I prefer to leave the question open at this stage. I therefore exclude the appeal to the Administrative Appeals Board from the scope of the RPO and RAO.

Yuen’s summonses in HCMP 1087 of 2005

37. Paragraph 2 of Yuen’s summons dated 27 October 2005 sought to counterclaim for injury to feelings. I have already explained why such a claim is doomed to fail. That paragraph was therefore dismissed.

38. Paragraph 3 of the same summons sought an order from this court that the Secretary for Justice shall donate $100,000 for charity purpose “as to be given under [Yuen’s] choice”. That seems to be a claim advanced on the basis of Yuen’s letter dated 26 September 2005 to the Secretary for Justice in which Yuen asked the Secretary to vacate the hearing of 28 October 2005 and requested the matter be disposed of by way of a consent summons. In paragraph 8 of that letter, Yuen unilaterally asserted that if the Secretary did not confirm the disposal of the matter by way of consent summons or vacation of hearing date of 28 October 2005, Yuen would regard the Secretary’s silence as acceptance of, inter alias, donation of $100,000 to the Tung Wah Group of Hospital. As I have explained above, a Section 27 application is not a matter that can be disposed of by way of consent summons. In any event, there is no legal basis whatsoever for Yuen to impose unilaterally such an obligation on the Secretary. The court will not compound Yuen’s vexation by entertaining such an application. That paragraph was also dismissed.

39. Turning to her summons of 7 December 2005, Yuen asked for leave to apply for judicial review against the Equal Opportunities Commission. For reasons already given above, I do not see any merits in that application. Paragraph 2 of the summons sought an appeal out of time regarding HCA 96 of 2005. This should not be a matter canvassed in these proceedings. Application should be made to the Court of Appeal for leave to appeal out of time if Yuen so wished. Paragraph 3 of the summons asked for leave to commence an action against the solicitors for Heath based on a debit note of $29 million and other actions against the existing defendants. Those intended proceedings are obviously vexatious and no leave will be granted by this court. Paragraph 4 of the summons invited this court to consider the validity of CACV 272 of 2005. As explained above, it is not for this court to say whether that appeal is valid or otherwise. The matter can be, if necessary, canvassed in the Court of Appeal. On the whole, the summons was dismissed.

40. Coming next to her summons of 12 December 2005, Paragraph 1 sought a consent summons as per the Originating Summons. I do not need to repeat why I think the matter cannot be disposed of by way of consent summons. Paragraph 2 sought consent summons for a RAO and RPO for all appeals. I have explained why it is not for this court to make RPO and RAO for appeals. Paragraph 3 related to the hearing of DCCJ 3524 of 2005 on 16 and 17 January 2006. The RPO and RAO should have taken care of the matters and parties should have no difficulty in applying jointly to vacate the hearing on those dates. Paragraph 4 of the summons sought consolidation and transfer of the District Court proceedings against Lai. I have already given leave for a joint application to be made in the District Court. Until such transfer, this court is not seized with those cases except in regard to the RPO and RAO leave applications. Paragraph 5 of the summons sought the appointment of medical officer to assess Yuen’s injury to feelings. That paragraph cannot survive my dismissal of Yuen’s injury to feelings claim.

Yuen’s summonses in HCA 509 of 2005

41. By a summons of 30 November 2005, Yuen sought the following relief,

(a) An order to compel Lai to file affidavit evidence to support some of Yuen’s allegation;

(b) An order to compel other ex-colleagues of Yuen to file affidavit evidence to support Yuen’s version of facts;

(c) An order to subpoena some ex-colleagues to give evidence to support Yuen’s version of facts.

42. There is a pending striking out application by Lai against Yuen’s claim. The matter is therefore still at an interlocutory stage.

43. As explained during the course of hearing, this court does not have the power to compel others to file evidence to support the case of one party. Whether Lai wishes to file affidavit for the purpose of the striking out application is a matter for him to decide with the benefit of advice from his lawyer. If Yuen is able to procure affidavit evidence from her ex-colleagues, she could file the same to oppose the striking out application. However, if she could not procure their co-operation in obtaining affidavits from them, she would have to rely on her own evidence to resist the striking out application. If her claims survive the striking out application, the matter will go to trial. For the purpose of trial, the court can issue subpoena to compel the attendance of witnesses insofar as they are within the jurisdiction. However, there is no guarantee that their evidence would be favourable to Yuen or otherwise. Yuen must also have some basis for her belief that these witnesses could give relevant evidence before the court would accede to her application for the issue of a subpoena.

44. Given that the striking out application has yet to be decided, it would not be appropriate for the court to grant the relief set out in the summons. The summons was therefore dismissed.

45. Yuen took out another summons on 19 December 2005. She sought leave to file affidavit evidence or witness statement from a Miss Ford of Heath. She had yet to procure such a witness to give her an affidavit or witness statement. As explained above, the court cannot order a witness to give her a witness statement or affidavit. The summons was therefore dismissed.

(M H Lam)
Judge of the Court of First Instance
High Court

Ms Yuen Oi Yee Lisa alias Lisa Yuen, Lisa Lee and袁靄儀, in person
(Defendant in HCMP 1087/2005, Plaintiff in HCA96/2005 and HCA 509/2004)

Mr Horace Wong, SC and Mr Bernard Man, instructed by Department of Justice, for the Plaintiff in HCMP 1087/2005

Ms Yvonne Cheng as amicus curiae in HCMP 1087/2005

Miss Anita Lam, of Messrs Johnson, Stokes & Master, for the Defendant in HCA 96/2005

Ms Christine Tsang, of Messrs Kennedys, for the Defendant in HCA 509/2004

ANNEX
HCA 96/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 96 OF 2005

____________

BETWEEN

	袁靄儀	Plaintiff
	and
	協峰電子有限公司	Defendant

____________

HCA 509/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 509 OF 2004

____________

BETWEEN

	袁靄儀	Plaintiff
	and
	協峰電子有限公司	1^st Defendant
	(為美資公司HIG-DHP Barbados Ltd. 全資附屬機構，前為Desa International LLC)
	黎汝輝先生	2^nd Defendant

____________

BEFORE THE HONOURABLE MR. JUSTICE LAM
IN CHAMBERS

______________________

ORDER

______________________

UPON hearing the Solicitors for the Defendant, the Amicus Curiae, Leading Counsel for the Secretary for Justice and Solicitors for Mr. Lai Yu Fai and the Plaintiff acting in person

IT IS ORDERED that:-

(a) That subject to sub-paragraphs (b) and (c) below, Yuen Oi Yee Lisa alias Lisa Yuen, Lisa Lee and 袁靄儀 ("Lisa Yuen") is prohibited from commencing any fresh proceedings by whatever originating process, including judicial review proceedings ("fresh proceedings") concerning any matters involving or relating to or touching upon or leading to or arising out of the proceedings set out in Part A of Schedule 1 ("the Relevant Proceedings") and the subject matters set out in Part B of Schedule 1 without the leave of Lam J or, in his absence, A. Cheung J ("the designated judge") being first obtained ("the RPO").

(b) Notwithstanding the other provisions in this order, Lisa Yuen is at liberty to commence or proceed with the following,

(i) her appeals in CACV 389 of 2004 and CACV 272 of 2005;

(ii) her application in HCMP 1824 of 2005;

(iii) if she so wishes, an appeal against this order.

(c) Notwithstanding the other provisions in this order, for the avoidance of doubt, Lisa Yuen shall also be at liberty to resist the striking out applications by Lai Yu Fai in HCA 509 of 2004, DCCJ 3524 of 2005 and DCEO 3 of 2005 and to apply jointly with Lai Yu Fai for the transfer of the latter two cases to the Court of First Instance. This court shall give further directions as to future conduct of those cases upon such transfer.

(a) 2. That all applications for leave to issue fresh proceedings covered or which may be covered by the RPO ("RPO leave applications") must be made in writing to the designated judge (and not to any other judge or to a master) enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced.

3. That at least 7 days before filing an RPO leave application, Lisa Yuen shall notify in writing each intended defendant of her intention to make such application, enclosing a copy of the aforesaid draft document by which the fresh proceedings are intended to be commenced, and if a response is received by the applicant, that she shall file a copy thereof with her RPO leave application; and that, in any event, each intended defendant shall be entitled, but shall be under no obligation, to place before the court any desired representations regarding any such intended proceedings of which he/she/it has notice.

4. That in the event that the designated judges are not available to hear the RPO leave application, the same shall be dealt with by another judge designated by the Chief Judge of the High Court.

5. That all RPO leave applications and all matters ancillary thereto shall be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs.

6. That if, contrary to the RPO, Lisa Yuen seeks to issue fresh proceedings covered or which may be covered by the RPO without prior leave of the designated judge, and if such fact should come to the notice of the Registry of the High Court, District Court, Small Claims Tribunal, Labour Tribunal or to the notice of any master, judge or judicial officer, the Registry, master or judge or judicial in question shall forthwith refer those proceedings to the designated judge for a decision as to whether the proceedings should be permitted to continue or be dismissed.

7. That if, contrary to the RPO, Lisa Yuen purports to serve on one or more defendants any fresh proceedings (whether or not the purported fresh proceedings are brought to the notice of the designated or some other judge, master or judicial) without at the same time serving on the defendant(s) a copy of an order giving leave to proceed or a direction that leave is not required, such defendant(s) should be entitled to make no response pending notification of the court's decision in relation to those proceedings; and, insofar as necessary, time for acknowledging service or for otherwise responding to such fresh proceedings shall be deemed extended accordingly.

8. That Lisa Yuen is prohibited from making any further or pursuing any issued application to the court tribunal (including any application to set down for trial) in the proceedings set out in Schedule 2, whether before or after judgment, without the leave of the designated judge being first obtained ("the RAO").

9. That all applications for leave to issue or pursue an application in the proceedings set out in Schedule 2 ("RAO leave applications") must be made in writing to the designated judge (and not to any other judge or to a master) without giving notice of the application to the intended respondent.

10. That in the event that the designated judges are not available to deal with the RAO leave application, the same shall be dealt with by another judge designated by the Chief Judge of the High Court.

11. That all RAO leave applications and all matters ancillary thereto shall be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs.

12. That where leave to make the substantive application is granted, service of the order giving leave must accompany service of the substantive application in question, which substantive application shall be heard by a judge and not a master unless the designated judge otherwise directs.

13. That if, contrary to the RAO, Lisa Yuen seeks to issue or pursue an application in the proceedings set out in Schedule 2 without prior leave of the designated judge, the purported application shall forthwith be referred by the Registry to a master for such application to be dismissed in accordance with the RAO.

14. That if, contrary to the RAO, Lisa Yuen purports to serve any application in the proceedings set out in Schedule 2 on any respondent without at the same time serving on that respondent a copy of a sealed order giving leave to issue or pursue such application, such application shall automatically stand dismissed, so that neither that respondent nor the court would be required to take any steps in response.

15. That the proceedings and applications referred to in the RPO and the RAO includes proceedings and applications of whatever nature in the Court of First Instance, the District Court, the Small Claims Tribunal, the Labour Tribunal.

16. That the RAO shall not prohibit Lisa Yuen from responding to applications taken out by the other parties in the proceedings set out in Schedule 2.

17. That the RAO and RPO shall not prohibit Lisa Yuen from exercising her right of appeal to the Court of Appeal.

18. That notification of this Order shall be given to the respective Registrars of the High Court, District Court, Small Claims Tribunal, Labour Tribunal, who shall take note of the terms hereof and shall take all necessary steps to ensure due compliance with this Order.

19. Lisa Yuen shall pay the costs of Heath regarding the RPO and RAO application.

20. The following summonses taken out by Lisa Yuen are dismissed,

(a) A summons dated 30 November 2005 in HCA 509 of 2004;

(b) A summons dated 19 December 2005 in HCA 509 of 2004.

21. The following costs order nisi is made.

(a) Lisa Yuen shall pay the costs of Heath in the application for RPO and RAO;

(b) Lisa Yuen shall pay the costs of Lai Yu Fai as regards the following summonses in HCA 509 of 2004,

(i) summons of 30 November 2005;

(ii) summons of 19 December 2005.

(c) Save as provided for in (b) above, the costs as between Lisa Yuen and Lai Yu Fai shall be reserved and to be dealt with at the conclusion of the striking out applications.

22. Except her written application to this court for leave pursuant to this order, Lisa Yuen’s letters or faxes to this court will not be read and there will not be any response thereto from this court.

Dated the 28^th day of December 2005

Registrar

Schedule 1

Part A

The Relevant Proceedings

1. DCCJ 5441 of 2003 (Lisa Yuen -v- Heath Co. Ltd. ("Heath"); Desa Int'l Inc and HIG Capital)

2. HCMP 2038 of 2004 (on an intended appeal from DCCJ 5441 of 2003)

3. HCSD 39 of 2004 (application to set aside statutory demand)

4. Consolidated Action No. DCCJ 7079 of 2003 (comprising of DCCJ 7079 of 2003; DCCJ 7080 of 2003; DCCJ 7081 of 2003; DCCJ 7184 of 2003; DCCJ 7185 of 2003; DCCJ 7257 of 2003; DCCJ 7258 of 2003; and DCCJ 2702 of 2004) (Lisa Yuen -v- Chong King Po, Sally ("Sally Chong"); Ken Wong; Jacky Ho; Ken Hui; Chiu Wing Wah Wilson; Chan Kam Wah, Kent; Ku Lai Chiu Cindy; Chan Kwai Hing Channy; Ho Siu Kwan Mandy; Leung Man Yee Sofia; Chan Keung; Leung Yik Hong, Fred; Lam Chun Wai, Anno; Tse Mei Po, Mable; Choi Yin Ki, Ada; Ho May Har, Sannie; Lui Chung Tak; Tsui Yiu Ming, Allen; Kui Suk Yin, Kimmy)

5. HCMP 2791 of 2004 (on an intended appeal on costs from DCCJ 7079 of 2003; DCCJ 7080 of 2003; DCCJ 7081 of 2003; DCCJ 7184 of 2003; DCCJ 7185 of 2003; DCCJ 7257 of 2003; DCCJ 7258 of 2003) (Lisa Yuen -v- 16 staff members of Heath)^a

6. DCCJ 378 of 2005 (Lisa Yuen -v- Leung Yik Hong Fred; HIG-DHP Barbados Ltd.; HIG Capital and Desa Int'l LLC)

7. DCCJ 442 of 2005 (Lisa Yuen -v- Chan Chi Tak Ringo; Chan Hon Hung; Chau Chi Sang; Chik Kin Wing; Lam Kai Kuong; Li Chi Keung Dennis; Lui Chiu Man; Mok Shut Ying, Jenny; Ngai Ping Sun; Yeung Chung Fat; HIG-DHP Barbados Ltd.; HIG Capital and Desa Int'l LLC)

8. HCMP 1824 of 2005 (on an intended appeal from Consolidated Action No. DCCJ 7079 of 2003; DCCJ 378 of 2005 and DCCJ 442 of 2005)

9. HCA 509 of 2004 (Lisa Yuen -v- Heath (協峰電子有限公司) and Lai Yu Fai (黎汝輝))

10. CACV 389 of 2004 (on appeal from HCA 509 of 2004)

11. HCA 1108 of 2004 (Lisa Yuen -v- Sally Chong (莊瓊寶))

12. HCA 1258 of 2004 (Lisa Yuen -v- John Steven Marcum; James Richard Wiese; Stephen Lance Clanton; Edward G. Patrick and Kathy Ford)

13. DCEO 18 of 2004 (Lisa Yuen -v- Heath)

14. HCMP 1743 of 2005 (on an intended appeal from DCEO 18 of 2004)

15. HCA 96 of 2005 (Lisa Yuen -v- Heath (協峰電子有限公司))

16. HCMP 1087 of 2005 (The Secretary for Justice -v- Lisa Yuen)

17. DCEO 3 of 2005 (Lisa Yuen -v- Lai)

18. DCCJ 3524 of 2005 (Lisa Yuen -v- Ho Yiu Kuen, Jacky; Chan Kam Wah, Kent; Heath; Lai; Desa International Inc.; Desa International LLC; HIG Capital; HIG-DHP Barbados Ltd.)

19. Small Claims Tribunal Claim No.SCTC073254 of 2005 (Lisa Yuen -v- Kenny Lau)

20. Small Claims Tribunal Claim No.SCTC074306 of 2005 (Lisa Yuen -v- Lai)

Part B

List of Subject Matters falling within the scope of the RPO

(i) all telephone calls made by Sally Chong to Lisa Yuen's former employers in 2003, prior to the termination of Lisa Yuen's employment with Heath Company Ltd on 6th March 2003 ;

(ii) Sally Chong's alleged use, collection, access to and/or misappropriation of Lisa Yuen's personal data and/or Lisa Yuen's CV during Lisa Yuen's employment with Heath;

(iii) Heath's refusal to provide Lisa Yuen with the names of the ex-employers contacted by Sally Chong in or around February 2003;

(iv) the Settlement Agreement, embracing all facts and matters covered by the terms of the Settlement, concluded between Heath and Lisa Yuen in May 2003 ("the Settlement");

(v) the alleged conspiracies or collusion between Lai and Sally Chong in bringing about the termination of Lisa Yuen's employment with Heath;

(vi) all letters, documents, statements, materials and information supplied by Heath and Lai to the Equal Opportunities Commission ("the EOC") in connection with Lisa Yuen's complaint against Heath and Lai under the Sex Discrimination Ordinance plus all matters leading to the provision of such letters, documents, statements, materials and information;

(vii) the Witness Statements of Sally Chong, Ken Wong, Jacky Ho, Ken Hui; Chiu Wing Wah, Wilson, Chan Kam Wah, Kent, Ku Lai Chiu, Cindy, Chan Kwai Hing, Channy, Ho Siu Kwan, Mandy, Leung Man Yee, Sofia, Chan Keung, Leung Yik Hong, Fred, Lam Chun Wai, Anno, Tse Mei Po, Mable, Choi Yin Ki, Ada, Ho May Har, Sannie, Lui Chung Tak, Tsui Yiu Ming, Allen, Kui Suk Yin, Kimmy plus all matters leading to the drafting or otherwise preparation of any one of these Witness Statements;

(viii) the staff complaint letter signed by 29 staff members of Heath dated 21st February 2003 ("the Staff Complaint Letter"), plus all matters leading to the drafting or preparation of the Staff Complaint Letter;

(ix) the mass resignation letter of 27 staff members of Heath, dated 5th March 2003 plus all matters leading to the staff members' mass resignation or the drafting or preparation of the resignation letter;

(x) Heath's termination of Lisa Yuen's employment on 6th March 2003, embracing all facts, matters, internal discussions, investigations, interviews with current and former staff members by Heath's management leading to or that resulted in the decision to terminate Lisa Yuen's employment with Heath and any alleged conspiracy between Lai and other staff members in connection with such termination of employment;

(xi) Leung Yik Hong, Fred's ("Fred Leung") email to the management of Heath of 3rd March 2003;

(xii) any instructions given to Fred Leung by Lai leading to the writing of the email of 3rd March 2003;

(xiii) Lisa Yuen allegedly being addressed or referred to as an Ape, whilst the other staff members being referred to as monkeys and Lisa Yuen’s threatened claims for racial discrimination in connection with these alleged comments;

(xiv) all unlawful acts under the Sex Discrimination Ordinance allegedly committed by Heath or by any of its current/former staff members including:-

- Lai's alleged comments to Lisa Yuen that Danny To, Lisa Yuen's predecessor, could tolerate the mistakes and inefficiencies of his subordinate better than Lisa Yuen, who is a female;

- Lai's alleged suggestion that Danny To, at his age and was unmarried, could get on well with staff and found Sally Chong suitable to work for him;

- Lai allegedly accusing Lisa Yuen of nitpicking on her subordinates' mistakes and that Lisa Yuen only dwelt on minor matters;

- Lai's alleged dislike of Lisa Yuen and allegedly addressing her as a "師奶" in front of others ;

- Lai’s alleged statement that he regretted hiring a woman like Lisa Yuen for the job of a financial manager;
- Lai’s alleged statement that he regretted having chosen Lisa Yuen in preference to the other male candidates during the recruitment exercise;
- Lai’s alleged comments that Danny To, being a male department head, was generous to all staff and fought for the benefits of his colleagues whilst Lisa Yuen, though a female, was neglecting the staff welfare and benefits;
- Lai’s alleged sharing dirty jokes with Lisa Yuen, including the alleged romance affairs of Heath’s staff members or Lai;
- Lai’s alleged sharing sexual games done by Heath’s staff members during the trip to Taiwan;
- Chan Kam Wah, Kent’s alleged playing a dirty game during annual dinner;
- Any instructions given by Lai in connection with the above;
- Heath’s current/former staff members, alone or together with other persons, allegedly engaged in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for Lisa Yuen.
(xv) Sally Chong's alleged personal attacks, misconduct and wrongful acts against Lisa Yuen, embracing her alleged bad-mouthing Lisa Yuen; her alleged putting up of a Chinese Poster that Lisa Yuen should not take any incoming letters from Sally Chong's letter tray, her alleged defamatory remarks to other staff members of Heath against Lisa Yuen, and her alleged inciting other staff members of Heath to draft the Staff Complaint Letter;

(xvi) Heath's alleged breaches of the terms of the Settlement Agreement, embracing its alleged instructions to staff members of Heath to give written statements to the EOC and its solicitors' alleged phone call to Lisa Yuen's employer in Pun Yu on or around 17th September 2004;

(xvii) all claims or allegations against Kenny Lau relating to or touching upon Kenny Lau's involvement in giving instructions for the conduct of any of the Relevant Proceedings;

(xviii) all claims or allegations against Heath, its holding or associated companies, their current and former employees, officers and directors for their participation or instructions given in relation to any of the Relevant Proceedings or as a result of each of its/her/his/their involvement or participation in any of the Relevant Proceedings;

(xix) all claims or allegations against judges and other officers of the Court or Tribunals, lawyers (including solicitors, trainee solicitors, legal executives, legal clerks and counsel, other than lawyers acting for Lisa Yuen), Johnson Stokes & Master (including all employees, partners, consultants of Johnson Stokes & Master), Messrs. Kennedys (including all employees, partners and consultants of Messrs. Kennedys) the former and current Secretaries for Justice and officers and clerks of the Department of Justice for or in respect of their participation in or conduct of the Relevant Proceedings, or as a result of their involvement in any of the Relevant Proceedings. For the avoidance of doubt, the said claims and allegations shall include any form of allegations or demands arising from the fact that the said persons or any of them were involved in any of the Relevant Proceedings in whatever capacity, such as:-
(a) Lisa Yuen's threatened claims against Johnson Stokes & Master and/or their employees in relation to her alleged request to them to deliver certain banana coupon(s) to Mr. Leung Kwok Hung and Mr. Woo.
(b) claim(s) or proceedings against Johnson Stokes & Master, the current and former Secretaries for Justice/the Department of Justice, Kennedys and/or against any of their current and/or former employees, officers, partners, consultants, counsel involving or relating to or touching upon or leading to any demand (including but not limited to demands involving or relating to or touching upon or leading to any form of coupon or monetary claim) or debit note (including her debit note to Johnson Stokes & Master for HK$29 million) issued or to be issued by Lisa Yuen
(c) claim(s) or proceedings against Johnson Stokes & Master and/or the current and former Secretaries for Justice and/or the Department of Justice, Kennedys and/or against any of their respective current and/or former employees, officers, partners, consultants, counsel involving or relating to or touching upon or leading to or arising out of any claims or counterclaims by Lisa Yuen for losses, damages, donation, injury (including any psychiatric or psychological injury) or injury to feelings howsoever arising
(d) claims or proceedings involving or relating to or touching upon or leading to all debit notes (howsoever arising) issued or to be issued by Lisa Yuen to any party identified in this Order.
(xx) all claims or allegations against witnesses and deponents for the evidence given, or to be given, in the Relevant Proceedings.

Schedule 2

(i)	DCCJ 5441 of 2003
(ii)	HCSD 39 of 2004
(iii)	Consolidated Action No. DCCJ 7079 of 2003 (comprising of DCCJ 7079 of 2003; DCCJ 7080 of 2003; DCCJ 7081 of 2003; DCCJ 7184 of 2003; DCCJ 7185 of 2003; DCCJ 7257 of 2003; DCCJ 7258 of 2003; and DCCJ 2702 of 2004)
(iv)	HCA 509 of 2004
(v)	HCA 1108 of 2004
(vi)	HCA 1258 of 2004
(vii)	DCEO 18 of 2004
(viii)	HCA 96 of 2005
(ix)	DCCJ 378 of 2005
(x)	DCCJ 442 of 2005
(xi)	HCMP 1087 of 2005
(xii)	DCCJ 3524 of 2005
(xiii)	Small Claims Tribunal Claim No. SCTC073254 of 2005
(xiv)	Small Claims Tribunal Claim No. SCTC074306 of 2005
(xv)	DCEO 3 of 2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 96 OF 2005

	袁靄儀	Plaintiff
	AND
	協峰電子有限公司	Defendant

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 509 OF 2004

	袁靄儀	Plaintiff
	AND
	協峰電子有限公司	1^stDefendant
	(為美資公司HIG-DHP Barbados Ltd. 全資附屬機構，前為Desa International LLC)
	黎汝輝先生	2^nd Defendant

O R D E R

Filed on 28^th day of December 2005

Plaintiff's appeal to Court of Appeal dismissed. Please refer to CACV114/2006 dated 9 May 2006

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