DCEO11/2018
[2018] HKDC 1552
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES CASE NO 11 OF 2018
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| BETWEEN |
| | A | Claimant |
| and |
| | 林守光 | Respondent |
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Before: His Honour Judge Ko in Chambers (Open to public)
Date of Hearing: 3 December 2018
Date of Decision: 3 December 2018
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DECISION
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1. This is the claimant’s application under Order 15, rule 5(2) to strike out or stay the counterclaim of the respondent or for an order that the claim and the counterclaim be tried separately. Alternatively, the claimant seeks to strike out the counterclaim under Order 18, rule 19.
Background
2. By way of background, both parties were employed by the same religious organization in about 2015. The respondent was then the executive secretary (總幹事) and the claimant an assistant secretary (助理幹事) of the organization. They shared the same office and had contact at work.
3. According to the claimant, the respondent began massaging his stomach in early 2015 to help ease his gastric discomfort. In November and December 2015, there were occasions when the respondent, in the course of providing massage to him, lowered his trousers, peeped into his underpants, and touched his penis. It is his case that the respondent’s conduct constitutes unlawful sexual harassment under the Sex Discrimination Ordinance, Cap 480 (“SDO”).
4. The respondent denies any sexual harassment. According to him, he had been providing massage to the claimant out of kindness and with the consent of the claimant. He claims that the claimant had actively co-operated in those massage and denies lowering the claimant’s trousers or peeping into his underpants. However, he admits that there were occasions when he had touched the claimant’s penis accidentally.
Discussion
5. The respondent has included a counterclaim in his Notice in Response. It is pleaded in paragraph 16 of the counterclaim that all the allegations of the claimant in this case that the respondent has denied are false (“such false statements”). There follows the pleading that the claimant had knowingly and maliciously repeated such false statements to third parties both orally and in writing.
6. In the particulars provided, it is alleged that the following amount to defamation:
(a) On or about 12 January 2016, the claimant reported the matter to the police and gave a statement that contained such false statements.
(b) In early 2016, the claimant lodged a written complaint containing such false statements to the religious organization that they both worked in. Part of the claimant’s complaint was read out, in the absence of the respondent, in a general meeting on 7 March 2017 attended by about 100 participants.
(c) In December 2016 or January 2017, the claimant lodged a written complaint to the Equal Opportunities Commission containing such false statements.
(d) The claimant commenced this claim, which has attracted much media attention.
7. According to rule 4 of the District Court Equal Opportunities Rules, Cap 336G (“EO Rules”), the Rules of the District Court, Cap 336H (“RDC”), apply to and in relation to these proceedings subject to two qualifications:
(i) RDC is applicable to the extent that no provision is made in Part 2 of the EO Rules on the same subject matter; and
(ii) RDC should be read subject to the special provisions in the District Court Ordinance, Cap 336, in relation to Equal Opportunities proceedings, such as section 73B in relation to proceedings under the SDO.
8. Order 15, rule 2 of the RDC generally provides that a defendant in any action who alleges that he has any claim against a plaintiff may, instead of bringing a separate action, make a counterclaim in the action.
9. The above is subject to the court’s power under Order 15, rule 5(2) to order the counterclaim to be struck out or order it to be tried separately or make such other order as may be expedient if it appears to the court that the subject matter of the counterclaim ought, for any reason, to be disposed of by a separate action.
10. On the other hand, Order 18, rule 19 empowers the court to strike out a pleading if it discloses no reasonable cause of action, if it is scandalous, frivolous or vexatious, if it may prejudice, embarrass or delay the fair trial of the action, or if it is otherwise an abuse of the process.
11. The above rule applies generally to a counterclaim by operation of Order 18, rule 18.
12. At the hearing, it is not seriously disputed that the above rules apply to Equal Opportunities proceedings such as the present one.
13. Insofar as the test for exclusion of a counterclaim under Order 15, rule 5(2) is concerned, counsel do not differ much in their approach. Both counsel advocate a two-stage test based on local authorities in which Ernst & Young (a firm) v Butte Mining plc (No 2) [1997] 1 WLR 1485 was applied. The first question to be asked is whether the subject matter ought to be disposed of in a separate action. This essentially involves balancing the considerations of procedural convenience in favour of and against disposal in a separate action. The second question, which only arises if the first one is answered in the affirmative, is what order ought to be made. In that case, Lightman J elaborated (at 1496) that:
“The starting point in considering this issue is to determine what, if any, are the appropriate guidelines in the exercise by the court of its discretion under rule 5(2). I agree with Mr Boyle QC that the starting point is to be found in the dictum of Neill LJ in Boocock v Hilton International Co. [1993] 1 W.L.R. 1065, 1076c: ‘…the surest guideline for the exercise of any general discretion is to consider what the justice of the case demands.’ But, in deciding what the justice of the case demands, it is, in my view, necessary to have in the forefront of the mind of the statutory object of the creation of the counterclaim, namely procedural convenience.”
14. In the present case, the respondent’s counsel has submitted that there are common issues to be tried (such as whether the touching of the claimant’s penis by the respondent was accidental) and common evidence (such as the testimony of the claimant and the respondent) on the claim and the counterclaim.
15. In my view, there is no procedural convenience in having these two claims tried at the same time. Although both claims arose out of the same factual matrix, namely the alleged sexual harassment of the claimant by the respondent, they are based on very different causes of action with very different elements. On the claimant’s claim, the focus is on the respondent’s conduct and the claimant’s reaction. See the definition of “sexual harassment” in section 2(5)(a) of the SDO. On the respondent’s counterclaim, on the other hand, the focus is on the publication(s) and the meaning(s) of the words published.
16. The parties have covered much ground in preparing the sexual harassment claim for trial. Both parties have confirmed in their respective questionnaire that the pleadings are in order. Discovery is done. Direction was given at the last hearing in July 2018 for the exchange of witness statement(s). The claimant is ready to exchange witness statements. On the part of the respondent, however, it is said that he may only do so 56 days after the provision of third party discovery to be applied for by the respondent.
17. Turning to the counterclaim, the respondent’s pleading is, in my view, lacking in material particulars. The respondent has only pleaded generally to the falsity of all that is alleged by the claimant that has been denied by the respondent. There is no pleading on the actual words published, let alone the defamatory meaning(s) alleged. This much is conceded by the respondent’s counsel. The nature and extent of the alleged publication(s) is also unclear. See generally Bullen & Leake & Jacob’s Hong Kong Precedents of Pleadings, 2nd Edition (2018), chapter 16.
18. The claimant has yet to file a defence to the respondent’s counterclaim. He will not need to do so if his present application is granted. In the event that his application is dismissed, it is likely that he will have to seek further and better particulars on the counterclaim before he may be in a position to plead substantively in his defence.
19. As submitted by the claimant’s counsel, the claimant’s claim is ready to be set down for trial, pending the respondent’s witness statements. Given the different focuses of their respective claim, there is no reason for the respondent to defer the preparation of his witness statements in relation to the claimant’s claim until after he has sought third party discovery in relation to his counterclaim.
20. On the other hand, it appears that the respondent is still unsure about his case on defamation. He is seeking time (28 days) to take out an application for third party discovery against the police and the religious organization on the claimant’s complaint. See answer 8 in his questionnaire. This is so notwithstanding the fact that the claimant’s statement(s) to the police, his complaint to the religious organization, and his complaint to the Equal Opportunities Commission have all been disclosed in his list of documents filed herein two months ago. It is not known when the respondent will put his house in order and plead sufficiently to his counterclaim.
21. In terms of evidence, the respondent has indicated in his questionnaire that he intends to adduce psychiatric evidence on quantum in his counterclaim. That relates to the pleading in paragraph 18 of the counterclaim that he is receiving psychiatric treatment as a result of the alleged defamation. If the two claims are tried separately, there is no issue on the respondent’s mental health when the claimant’s sexual harassment claim is tried.
22. There is another point debated in argument. The claimant is represented by the Equal Opportunities Commission in these proceedings under section 85 of the SDO. The claimant’s counsel has doubted if the Equal Opportunities Commission may fund the defence to the respondent’s counterclaim if the counterclaim is allowed to proceed with the claim, as the defamation claim is not “an act which is unlawful by virtue of a provision of [the SDO]” in terms of section 84(1).
23. There is no need for me to rule definitively on the scope of the Commission’s assistance under section 85, as it is my view (by the preceding reasons) that there is no procedural convenience in having the two claims tried together. The additional uncertainty adds to the inconvenience. In my view, it is to everyone’s interest that the sexual harassment claim should be resolved as soon as possible. This is particularly so as the respondent has alleged that he is still suffering mentally as a result of the claimant’s allegations.
24. As to the second question, I take the view that the counterclaim should be struck out, leaving the respondent to commence fresh proceedings for his defamation claim, if so advised. First, there is no limitation issue involved. Secondly, the respondent presently requires time to seek discovery from third parties. He may commence proceedings as and when his defamation claim takes shape.
25. Turning now to the alternative application, I also take the view (by the foregoing analysis) that the counterclaim will embarrass, in terms of overloading the trial with unnecessary issues and evidence, and delay the fair trial of the claimant’s claim and should be struck out under Order 18, rule 19(1)(c).
Disposition
26. For the above reasons, I order that the counterclaim pleaded in the Notice in Response be struck out, but without prejudice to the respondent commencing a fresh action on the same or similar cause of action against the claimant.
| | (Justin Ko) |
| | Acting Chief District Judge
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Mr Martin Wong instructed by Equal Opportunities Commission for the claimant
Mr Roy Bowie Yip Wing-san instructed by Yu Sun Yau Mak & Lawyers for the respondent