LICAYO, JINNA DIMINO v. SCULLY, SEAN JOSEPH
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DCEO 7/2021
[2023] HKDC 772
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES ACTION NO 7 OF 2021
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BETWEEN | ||
| LICAYO, JINNA DIMINO | Claimant | |
| and | ||
| SCULLY, SEAN JOSEPH | Respondent | |
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| Before: | His Honour Judge Ko in Chambers (Paper disposal) |
| Date of Decision: | 9 June 2023 |
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DECISION
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A. Introduction
1. There are two applications before the court:
(a) The respondent’s summons dated 8 August 2022 to set aside the default judgment entered herein on 23 September 2021. (“the Set Aside Summons”)
(b) The respondent’s summons dated 5 January 2023 for the following order: “Miss Jinna Licayo was terminated in November 2018. Any evidence she has provided after November 2018 should be inadmissible. It has been contrived, edited, and expurgated. It is also irrelevant as she was no longer in my employ.” (“the Admissibility Summons”)
2. On 16 August 2022, I made an order nisi to set down the Set Aside Summons for paper disposal and set the timetable for filing of affidavits/affirmations and submissions to facilitate the argument. There had been no application for variation and the order nisi became absolute.
3. There was then an application by the claimant for leave to file and serve her affidavit in opposition to the Set Aside Summons out of time. On 9 November 2022, I granted retrospective leave for her to do so notwithstanding the respondent’s objection and revised the timetable correspondingly.
4. The respondent applied by summons dated 29 November 2022 to revisit my order dated 9 November 2022. By my decision handed down on 24 March 2023, that summons was dismissed: see [2023] HKDC 266.
5. In the meantime, the respondent took out the Admissibility Summons. By my directions dated 20 January 2023, the summons was set down for paper disposal together with the Set Aside Summons.
6. A list of the affidavits/affirmations and submissions filed by the parties for the purpose of the summonses is appended in Appendix A. The folio numbers of the documents have been added for easy reference.
B. Background
7. The respondent is a teacher by profession. He previously worked as a native English teacher at a primary school in Hong Kong (“the School”). He has since returned to Canada after completing his teaching contract in Hong Kong.
8. The claimant was employed by the respondent as a domestic helper in Hong Kong. She was required to live-in with the family and take care of the respondent, his wife and children whilst they were in Hong Kong.
9. It is common ground that the claimant’s employment was terminated by the respondent although there is a dispute as to the date of termination.
10. On 20 July 2021, the claimant commenced this action to claim against the respondent for sexual harassment under the Sex Discrimination Ordinance, Cap 480 (“the SDO”). She is represented by the Equal Opportunities Commission (“the EOC”) in these proceedings.
11. At the First Hearing held on 23 September 2021, the respondent was absent and no Notice of Response was filed. The EOC applied, under rule 13 of the District Court Equal Opportunities Rules, Cap 336G (“the EO Rules”), for default judgment on the monetary claim after abandoning the claim for declaratory relief and a written apology. Having considered the submissions, I entered interlocutory judgment against the respondent for damages to be assessed: see [2021] HKDC 1216.
C. Preliminary points
12. Before I come to discuss the Set Aside Summons and the Admissibility Summons, I need to deal with some preliminary points raised by the parties in argument.
C1. The respondent’s points
13. First, the respondent complained in his submissions dated 12 January 2023 (folio 58) that:
“[The EOC] is attempting to obscure the truth with procedure whilst not abiding by procedure themselves, for example by serving affidavits out of time, showing no respect for the Court’s initial order. Consequently, the latest correspondence from the EOC should be ignored and the decision DCEO7/2021 should be set aside…”
14. The claimant has filed two affidavits on 23 September and 3 December 2022 respectively. As noted above, retrospective leave had been granted for her to file her first affidavit out of time: see [2023] HKDC 266. Her second affidavit was filed on time, before the deadline of 7 December 2022: see para 5 of my directions dated 9 November 2022.
15. By “the latest correspondence from the EOC”, the respondent was referring to the submissions dated 11 January 2023 at folio 57. There the EOC made submissions on the three summonses taken out by the respondent (including the two summonses now being considered) and complained that the respondent had taken up the court’s resources unnecessarily and inefficiently in contravention of the underlying objectives of the Rules of the District Court, Cap 336H (“the RDC”). Apart from suggesting paper disposal, the EOC also sought directions to bar the respondent from filing new interlocutory applications without leave of the court.
16. On 20 January 2023, I set down the Admissibility Summons for paper disposal together with the Set Aside Summons. I also remarked that any application for restricted application order should be made by inter-partes summons in accordance with Practice Direction 11.3.
17. There is no merit in the respondent’s complaint.
18. Secondly, the respondent further complained in his submissions dated 21 February 2023 (folio 60) that:
“The Court had made it clear that no more submissions were to be made concerning this case, yet the EOC made a submission on February 15, 2023. I would like to request that the Court ignore this submission in its entirety. It is customary for the respondent to have the final submission.”
19. On 16 August 2022, I granted leave to the claimant to file and serve written submissions in opposition by 5 December 2022: see para 1(h) of my directions dated 16 August 2022. The deadline had been postponed to 16 February 2023: see para 6(c) of my directions dated 9 November 2022. The submission was therefore filed in pursuance of the court’s direction and on time.
20. The respondent had leave to file and serve written submissions in reply: see para 1(i) of my directions dated 16 August 2022 and para 6(d) of my directions dated 9 November 2022. Up to the date hereof, the respondent has not filed any reply submissions. Thus, he had been given the last say but did not exercise his right to do so.
C2. The claimant’s point
21. The preliminary point taken by the claimant is more substantial. The EOC noted that all of the affirmations filed by the respondent (including his wife’s affirmation) were affirmed before a Commissioner of Oaths in New Brunswick, Canada but none have been notarized.
22. In Top Flying Investment Ltd v Open Mission Assets Ltd [2006] 4 HKLRD 83, the late Mr Recorder McCoy SC explained that:
“30. … There can be no doubt that affidavits and affirmations sworn inside or outside the Hong Kong SAR, for proceedings in the Hong Kong SAR, before foreign legal practitioners are not merely ‘defective’ (as being potentially curable under O 41 r 4) but are fundamentally inadmissible and logically therefore incurable.
31. … A person ‘authorized by law to administer an oath’ in s 12 of the Oaths and Declarations Ordinance (Cap 11) does not include a person authorised by foreign law to administer an oath…
32. Under O 41 r 12(2), as modified by the effect of s 6 of the Hong Kong Reunification Ordinance (Cap 2601) and Schedule 8 of the Interpretation and General Clauses Ordinance (Cap 1), now provides that affidavits and affirmations sworn outside the Hong Kong SAR before a Chinese diplomatic or consular official or a notary public will be admissible in proceedings in the Hong Kong SAR: see s 10 of the Oaths and Declarations Ordinance. A foreign notary public may notarise documents outside the Hong Kong SAR for use in the Hong Kong SAR, but a Hong Kong SAR Notary Public may not notarise a document or otherwise exercise his office as a notary outside the Hong Kong SAR…
33. Another, wholly separate reason, which reinforces the conclusion that any affirmation or affidavit sworn out of this jurisdiction before a foreign lawyer (not a foreign notary), for use within this jurisdiction is not lawfully sworn and is inadmissible here, is found in the lack of sanction available in Hong Kong under the criminal law for such a scenario. A fundamental rationale for sworn evidence is that deliberate false evidence exposes the miscreant to penalty under the criminal law.”
23. Based on the above authority, the EOC has submitted that the Set Aside Summons and the Admissibility Summons should be dismissed as there is no valid supportive affidavit evidence.
24. Whilst I accept that affidavits sworn inside or outside Hong Kong before foreign legal practitioners for proceedings in Hong Kong are generally inadmissible, I do not think I should dismiss the summonses solely on that basis.
25. First, there is in fact no statutory requirement that the summonses must be supported by affidavit evidence.
26. The Set Aside Summons is made pursuant to rule 13(4) of the EO Rules, which simply provides that:
“The Court may, on any term that it thinks fit, set aside or vary any order made under subrule (2).”
27. As will be seen below, it is the EOC’s submission that the practice and procedure for setting aside default judgment in writ actions under Order 13, rule 9 of the RDC applies here.[1] In Hong Kong Civil Procedure 2023, it is noted that:
(a) One of the instances where an irregular judgment would typically be set aside is where the judgment was entered before actual default has been made by the defendant: para 13/9/6. Often, such irregularity can be discerned from the court file without the need for an affidavit from the defendant.
(b) If the judgment is regular, it is an almost inflexible rule that there must be an affidavit of merits from the defendant unless a manifestly arguable defence on the merits is apparent from the papers already before the court: para 13/9/21.
28. Thus, there is no inflexible rule that applications under Order 13, rule 9 must be supported by affidavit evidence. In my view, the court may similarly set aside a default judgment under rule 13(4) of the EO Rules in appropriate circumstances without the need for an affidavit from the respondent.
29. Turning to the Admissibility Summons, the respondent did not specify the jurisdictional basis of his application. Order 32, rule 1 of the RDC (which is applicable by virtue of rule 4 of the EO Rules) only requires the supportive affidavit to be filed at the same time as the summons “where, under the provisions of these Rules, such summons must be supported by affidavit”.[2] Nothing in the RDC requires the Admissibility Summons to be supported by affidavit.
30. Secondly, it is specifically provided in section 73B(5) of the District Court Ordinance, Cap 336, that:
“The Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (Cap 480) shall not be bound by the rules of evidence and may inform itself on any matter in such manner as it sees fit, with due regard to the rights of the parties to proceedings therein to a fair hearing, the need to determine the substantial merits of the case and the need to achieve a prompt hearing of the matters at issue between the parties.”
31. As this action was founded on the SDO, the above provision is engaged. This court is therefore not bound by the strict rules of evidence (such as that expounded in Top Flying) and may inform itself “on any matter in such manner as it sees fit”.
32. Having regard to the rights of the parties to a fair hearing and the need to determine the substantial merits of the case, I take the view that I should overlook the fact that the affirmations filed by the respondent have not been duly notarized and go on to consider the summonses on their merits.
D. The Admissibility Summons
33. The three affirmations filed by the respondent in support of the summons are as follows:
(a) The one at folio 54 relates to the summons dated 29 November 2022 which has been disposed of by [2023] HKDC 266.
(b) The one at folio 55 is to authorize a Miss Ng to seal the Admissibility Summons for him.
(c) In the last one at folio 56, the respondent reiterated that the claimant’s employment had been terminated in November 2018 and that:
“12. Any evidence she has provided after November 2018 should be inadmissible as it has been contrived, edited and expurgated. It is also irrelevant as she was no longer in my employ.
13. [The EOC] has failed to disclose this evidence in its entirety to me.
14. Had Miss Licayo been completely honest and forthcoming with [the EOC] it is doubtful that they would have agreed to represent her.”
34. The respondent did not specify what post-November 2018 evidence he is objecting to. The EOC has identified three pieces of documentary evidence annexed to the claimant’s witness statement that fit the description. According to the EOC:
(a) The excerpt of WhatsApp messages exchanged between the parties on 16 January 2019 is relevant to the complaint under para 1(4)(o) of the Notice of Claim (ie Act 6 discussed below).
(b) The excerpt of Facebook messages exchanged between the claimant and her aunt on 17 January 2019 is evidence of the fact that she was offended, humiliated or intimidated by what had happened, which is an element of the statutory tort.
(c) It is expressly stated in the letter dated 25 February 2019 signed by the respondent that “[y]our last working day will be February 25, 2019”. The letter is relevant to the dispute about the date of termination.
35. In my view, the following basic principle on admissibility of evidence, taken from para 2-01 of Phipson on Evidence, 20th edition (2022), is apposite:
“The paramount test of the admissibility of evidence is whether or not it is relevant … Evidence is prima facie admissible if it is relevant to an issue of which the tribunal is seised. The initial definition of the issues take place prior to the trial when each party makes known to the other party the nature of the case which it is intended will be made. The general rule is therefore that evidence must be directed and confined to the proof or disproof of the issues as settled by the formal documents, whereby each party formally sets out its case …”
36. For the reasons articulated by the EOC, I agree that such post-November 2018 evidence is relevant to the issues in dispute and therefore prima facie admissible.
37. The respondent’s complaint that the evidence “has been contrived, edited and expurgated” is usually dealt with at trial. As Mummery LJ said in Beazer Homes Limited v Peter Stroude [2005] EWCA Civ 265 at para 9:
“In general, disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the judge at the substantive hearing of the application or at the trial of the action, rather than at a separate preliminary hearing. The judge at a preliminary hearing on admissibility will usually be less well informed about the case. Preliminary hearings can also cause unnecessary costs and delays.”
38. The Admissibility Summons is therefore dismissed.
39. In passing, it is noted that the respondent has also adduced post-November 2018 evidence in terms of an excerpt of his WhatsApp exchanges with one Gary Lester: see the annexure to his affirmation (folio 56). Although there is no date on the screenshot, it is apparent from paras 16-17 of his witness statement that the exchanges took place “a few months” after the claimant’s employment had been terminated.
E. The Set Aside Summons
E1. Applicable legal principles
40. I agree with the EOC that the well-established principles applicable to setting aside default judgment under Order 13, rule 9 of the RDC is applicable here. Those principles have been noted in Hong Kong Civil Procedure 2023 and are summarized below:
(a) The principle is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure. See para 13/9/1.
(b) In exercising their power to set aside default judgments, the Hong Kong courts distinguish between a judgment that was obtained irregularly and one that was not so obtained. See para 13/9/2.
(c) Irregular judgment will be set aside without regard to the merits of the proposed defence. Instances where an irregular judgment would typically be set aside include bad or ineffective service of the writ, premature judgment, judgment entered for too much, judgment obtained by fraud and judgment entered against a minor or patient. See paras 13/9/4-13/9/9.
Although the court will not consider the merits of the defence, it does not mean that it would shut its eyes to the surrounding circumstances and why things went wrong. There is a residual discretion to impose terms for the setting aside of an irregular judgment by having regard to the parties’ conduct. In past cases, irregular judgments were set aside on condition that payments into court were made where the defendant had evaded service, where there was substantial delay in applying to court to set aside the judgment, and where the defendant had not condescended to showing any defence on the merits to the plaintiff’s claim. See para 13/9/10.
(d) The power to set aside a default judgment which has been entered regularly is discretionary and such power is unconditional. The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default.
On an application to set aside a regular default judgment, the major consideration is whether the defendant has shown a defence on the merits to which the court should pay heed, not as a rule of law, but as a matter of common sense. It is not sufficient to show a merely “arguable” defence and the defendant must show that he has “a real prospect of success”. To do so, he must satisfy the court that his case and the evidence that he adduces in support of it is potentially credible and carries some degree of conviction. Thus, the court must form a provisional view of the probable outcome of the action. However, where the ultimate outcome would depend on whose evidence is believed and no provisional view of the probable outcome of the action can be formed without a trial, the appropriate test to determine whether the defendant has a real prospect of success is whether the defence “could well be established” at trial.
In exercising the discretion, the court has regard to all relevant circumstances, such as why the default occurred, the defendant’s conduct after he had notice of the proceedings, any explanation for the time taken where there has been delay in making the application, and any prejudice that would be caused to the plaintiff if the default judgment were to be set aside. These other relevant factors will then be weighed against the dominant factor of the merits in order to see where the justice of the case lies.
The court has power to impose terms when setting aside a regular judgment, such as requiring the defendant to pay the plaintiff’s costs, giving security for the plaintiff’s costs or ordering that an account be taken between the parties where what is in dispute is the amounts involved. Where a defendant has a reasonably arguable defence which ought to be allowed to go to trial, there must be something specific in the defendant’s conduct or in the case, which justify the imposition of a condition. See paras 13/9/12-13/9/15.
41. Thus, the board issues that require determination are:
(a) Whether the default judgment was entered regularly or irregularly?
(b) Whether the court should exercise its discretion to set aside the default judgment?
E2. Discussion
E2a. Whether the default judgment was entered regularly or irregularly?
42. This depends on whether the Notice of Claim in Form 1 and the Notice to Respondent in Form 2 (collectively called “the said Notices”) were validly served on the respondent or not.
43. As recorded in my decision in [2021] HKDC 1216:
“11. On the service of the said Notices, the claimant filed the following affidavits/affirmations:-
(a) the affidavit of a Mr Au-Yeung, who is a teacher of the School;
(b) the affirmation of a Ms Lam, who is the Executive Officer of the School; and
(c) the affirmation of Ms Wong, Legal Counsel of the EOC who is representing the claimant at the hearing.
12. According to Mr Au-Yeung, the School received the envelope containing the said Notices on 23 July 2021. That day happened to be the day the respondent was leaving Hong Kong for good after concluding his employment with the School. Mr Au-Yeung was asked to personally deliver the envelope to the respondent when he bid him farewell at the airport.
13. At about 12:30 pm on that day, Mr Au-Yeung met the respondent at the airport. He handed over the envelope containing the said Notices to him and asked him to sign on the School’s dispatch book to acknowledge receipt of it. According to Mr Au-Yeung:-
‘I saw him looking at the front of the Mail for a few seconds, after which he took my pen and wrote the words ‘Moved to Canada Return to sender’ on the Mail envelope which remained unopened. He then shoved the Mail back to me, said ‘no, no’, and crossed his arms out in front of him in the shape of an ‘X’, which I took to mean that he declined to take the Mail and sign on the School’s dispatch book.’
14. Mr Au-Yeung returned to the School and gave the envelope to Ms Lam.
15. According to Ms Lam, she reported the matter to the Principal and was asked to make enquiries as to what to do. On 26 July 2021, she wrote the words ‘無此人（已離職）’ [meaning, ‘No such person (Vacated office)’] on a piece of paper and stuck it onto the envelope before sending the envelope back to the District Court.”
44. In the respondent’s affirmations at folios 27 and 30, he alleged that:
“1. I was never properly served. I was about to go through security at Hong Kong International Airport when my colleague, [Mr Au-Yeung] presented me with an envelope. I had no reason to believe this to be a summons as I did not believe that [C] could litigate against me whilst being immune from litigation herself. I had attempted to litigate against her earlier in the year but was told by the Small Claims Tribunal Judge that I could not litigate against someone that is living outside of Hong Kong. I presumed that the envelope was yet another extortion letter from the EOC demanding $10,000, so I rejected it.
2. [Mr Au-Yeung] is not an officer of the Court.”
45. As I have said in para 22 of my decision in [2021] HKDC 1216, the respondent had been warned by the letter before action that there would be litigation if no compromise was reached. There is a remarkable Judiciary logo on the top left hand corner of the envelope. The envelope was also affixed with the stamp of the District Court and printed with the action number of this action. Given the Judiciary logo, the stamp of the District Court and the case number on the envelope, the respondent must have realised that the envelope contained court documents. On the other hand, there was nothing to indicate that the envelope came from the EOC. I do not believe that he had mistaken it to have come from the EOC.
46. The lame excuse now put forward by the respondent confirms my ruling in para 23 of that decision that the respondent was deliberately evading service. On 23 July 2021, he must have thought that by shoving the court documents back to Mr Au-Yeung and leaving the jurisdiction, he would be immune from litigation.
47. There is no requirement under Hong Kong law that the process server must be a court officer.
48. For these reasons, I rule that the personal service effected on the respondent at the airport on 23 July 2021 was valid. The default judgment was therefore regularly entered.
49. Given my ruling, it behooves the respondent to show a meritorious defence.
E2b. Whether the court should exercise its discretion to set aside the default judgment?
The claimant’s case
50. According to para 1(4) of the Notice of Claim (“NOC”), it is the claimant’s claim that: “During the period from around October 2017 to January 2019, the Respondent, by a continuing act or course of conduct as particularised below, unlawfully sexually harassed the Claimant by making unwelcome sexual advances to her and/or engaging in unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the Claimant would be offended, humiliated or intimidated, and/or creating a sexually hostile and intimidating work environment…”.
51. The six impugned acts or conduct particularised in the NOC have been summarised by the EOC as follows:
(a) The respondent’s entering the bathroom naked while the claimant was taking a shower. (Act 1)
(b) The respondent’s masturbating in front of the claimant when the claimant entered the respondent’s bedroom. (Act 2)
(c) The respondent’s walking around the residence naked in the claimant’s presence. (Act 3)
(d) The respondent’s making unwelcome sexual requests and remarks to the claimant. (Act 4)
(e) The respondent’s making unwelcome sexual requests to the claimant and masturbating in front of the claimant in a hotel room. (Act 5)
(f) The respondent’s making unwelcome sexual requests to the claimant’s by WhatsApp. (Act 6)
52. The last three require some elaboration.
(a) The unwelcome sexual requests and remarks that the claimant is complaining in Act 4 are that: (i) on a day between September and November 2018, the respondent sent her a WhatsApp message asking her to come out of her room to watch pornography with him; and (ii) on two occasions during the same period, the respondent asked her why she was not horny.
(b) The background of Act 5 is that the respondent had wanted the claimant to spend the Christmas holiday with his wife and children in Canada after their relocation in June 2018. However, she had twice unsuccessfully applied for a Canadian visa due to her limited travel history. The respondent decided to take her travelling out of Hong Kong with a view to furthering her chance to obtain a visa by getting more immigration stamps on her passport. She agreed to travel with the respondent because she considered that the intended trip to Canada as well as the trips out of Hong Kong to obtain more immigration stamps on her passport were working trips which were necessary for the continuation of her employment with the respondent.
On one occasion in September 2018, the respondent took her to Macau. They had to stay in the same room as the respondent had only booked one king-size bed hotel room. She slept on one side of the bed after putting some pillows between herself and the respondent.
On another occasion in November 2018, the respondent took her to Shenzhen and they stayed in a twin-bed hotel room. On the morning of 4 November 2018, after she had taken a shower and was getting changed, the respondent shouted to ask her not to get dressed but to show her breasts. When she refused and left the bathroom area, she saw the respondent having his genitals exposed and that he was masturbating. The respondent asked her again to show him her breasts so that he could ejaculate but she refused and went to the other side of the room to avoid him.
(c) The claimant’s case in Act 6 is that she had returned to the Philippines to await the result of her third Canadian visa application. After the application was refused, the respondent asked her in January 2019 to return to Hong Kong. When she asked the respondent to buy her an air ticket to return to Hong Kong, he replied that he would do so on condition that “[the claimant would] have to get up in the morning and give [the respondent] coffee and a hand job”.
53. The claimant has provided details of her allegations in her witness statement, which have been verified by affidavit for the purpose of the Set Aside Summons.
The respondent’s case
54. The respondent has generally denied the claim.
(a) In para 18 of his affirmation (folio 30), he stated “I am innocent of the offences of which I have been accused.”.
(b) In para 1 of his witness statement (folio 34), he stated “[n]o matter how thin you make a pancake; it still has two sides. Jinna Licayo’s version of events is complete mishengas [sic] based on hyperbole and fabrication. The evidence and testimony of the witnesses will clearly support my account.”
55. Apart from general denial, he also dealt with some of the impugned acts:
(a) On Act 1, he stated that: “She claims that I routinely entered the washroom while she was occupying it, and yet again this is perjury. On one occasion at 5:30AM as per my routine, I walked into the washroom to shower only to be startled by Licayo’s presence. There was no reason for her to be there at such an early hour. I had every reason to believe that she was asleep, and that the facility was unoccupied.”[3]
He later elaborated that: “I lived in Tin Liu Tsuen, Yuen Long and worked in Fanling. So, it was indeed my routine to shower at 5:30 am and then make my way to Fanling to have breakfast before work. There was absolutely no reason for Jinna Licayo to be awake at that early hour. At the time of that 5:30 am encounter with Miss Licayo in the washroom, I believed it to be just inopportune timing. Since then, I have come to believe she intentionally orchestrated the encounter.”[4]
(b) On Act 2, he responded that “[t]here are several witnesses that confirm that Licayo left my home with me to get a massage on the evening in which she claims that I masturbated in her presence.”[5]
The respondent’s wife elaborated that: “I was hosting a party that evening with my friends. My husband was in bed with a sore back. I suggested that he go into Yuen Long for a massage to see if that would help. My husband took my advice and went for a massage, but he also brought Jinna Licayo with him and treated her to a massage too … It is strange that someone alleging harassment would go for a massage with her alleged harasser. I am certain that my husband was not masturbating as he normally needs to take a tablet to assist him with sexual matters.”[6]
(c) On Act 3, he said that: “Her claims that I perambulated about my home sans attire are entirely false. I did on occasion walk about in a t-shirt and underwear.”[7]
His wife also stated that: “My husband never walked around naked. He did walk around in a t-shirt and boxer shorts which is more than he would wear at the beach.”[8]
(d) On Act 5, he only responded to the Shenzhen trip: “The evidence clearly demonstrates that Licayo’s diatribe is a fabrication. The evidence shows that her account of her stay in Shenzhen is a pure falsehood.”[9]
56. The respondent has otherwise not responded to Act 4 and Act 6 specifically.
57. On the other hand, the respondent has resorted to attack the credibility of the claimant. He offered the following reasons for her claim:
(a) “The termination of Jinna Licayo in November 2018 was the casus belli that inspired this litigation. She would no longer be paid for doing very little. No longer would she be pampered with trips home for Christmas, Easter, and her daughter’s graduation. She would no longer have her choice [of] red or white wine with dinner and most importantly, she would no longer be able to exploit my generosity for her own financial gain. This reality was too much for her to bear.”[10]
(b) “Jinna Licayo is conflating her own salacious behavior as mine. On several occasions, Licayo articulated the fact that she shaves her genitals but, with less than polite language … It was Licayo that began making suggestive remarks to me after returning to Hong Kong in September 2018. Perhaps, she was comfortable doing so in the absence of my wife and children. I nevertheless ignored them. I had every reason to believe that she would soon be in Canada with the rest of my family.”[11]
(c) “The enterprise of her duplicity is clear and undeniable. Licayo is a mythomaniac that will employ any tactic necessary for financial gain. Someone with audacity to ask for money, including a transfer of $60,000HK is hardly in an unbalanced power relationship.”[12]
(d) “Licayo’s symphony of falsehoods has been conducted by Mr Gary Lester… Over the years, I had maintained cordial relationship with Mr Lester until I declined to attend a social event that he was hosting. After this, I was the subject of his hostilities. He asked me to sign and date a false document, Jinna Licayo’s termination letter. He directed Licayo to take me to the Labour Tribunal for back wages. Mr Lester also directed Licayo to make these false allegations against me. Licayo was happy to oblige as a prolonged case allowed her to make more money working illegally, while waiting for the Labour case to be resolved.”[13]
(e) “After her termination in November of 2018, … Licayo, claimed that I owed her money for her trip from manila to Hong Kong. I gave her the money for the trip, and she signed an agreement that was also signed by Adrian Burke and myself stating that she would make no further financial demands of me regarding the contract or otherwise. There were 3 copies of this agreement, one for each of the signatories.”[14]
(f) “After a few months of working illegality while waiting to take her relative’s position with Gary Lester, she asked me to sign and date a false document, her termination letter. Testimony will show that on the day that Licayo came to my home in Yuen Long to pick-up her termination letter she asked me for part-time employment. This is certainly not the behavior of someone that is a victim of sexual harassment.”[15]
58. The respondent also complained that:
(a) “In a further effort to inflict damage upon me, Licayo told my first domestic helper, now mother-in-law, Jane Cacabilos that I was having an affair with her sister. This fictitious nonsense has deeply damaged my family dynamic. My children no longer enjoy a relationship with their grandfather. My wife’s relationship with him has also been deeply fractured.”[16]
(b) “Jinna Licayo has made contact with one of the witnesses. Jinna Licayo has contacted my current employer in an attempt to have me terminated … I have been defamed in the media before any evidence has been presented.”[17]
The claimant’s reply
59. The claimant says she is extremely upset by the accusations and denies she has displayed any salacious behavior or made suggestive remarks to the respondent.
60. In relation to Act 1, she says it was her (and never the respondent’s) routine to take morning showers before her day of work.
61. In relation to the allegation against Mr Lester, she explains that she came to know Mr Lester when the respondent took her to Mr Lester’s apartment. At that time, Mr Lester employed the claimant’s aunt as a foreign domestic helper. After her employment with the respondent had been terminated, she started to look for a new employer with the help of her aunt and eventually entered into a new contract with Mr Lester. She says she has no idea why the respondent made such baseless allegations against Mr Lester.
62. She says she was pressured by the respondent into signing the document dated 24 March 2019 in order to get reimbursement for a one-way airfare to Manila, which should be her entitlement upon the termination of her employment. She had no intention that such a document would constitute a waiver of her claim for sexual harassment under the SDO.
Discussion
63. Based on the information now before the court:
(a) For Act 1, whilst the respondent has admitted once entering the bathroom when the claimant was taking a shower, he offered an innocent explanation. The dispute remains whether the respondent had “often entered the bathroom … either wholly naked, or was only wearing his underpants” as alleged by the claimant.
(b) Whether the respondent masturbated in front of the claimant as alleged in Act 2 is a factual dispute that cannot be resolved on affidavit evidence.
(c) For Act 3, whilst the complaint mostly relates to the period “[a]fter the Wife and the Children had left Hong Kong for Canada”, the claimant did refer to an incident “[o]n a day between October 2017 and June 2018” where the respondent walked around the house naked in the presence of his wife but “[t]he Wife did not however react to the Respondent’s behavior.”[18] It is not without significance that the respondent’s wife has filed an affirmation to deny such allegation.
(d) It is the claimant’s case that in January 2019, the respondent offered to reimburse her air ticket on condition that she would delete all her WhatsApp chat records with him and she complied in order to get the reimbursement. Whilst she had sent some screenshots to her aunt before and thus preserved some record, the WhatsApp screenshots in evidence mostly relate to Act 6. It does not appear that Act 4 is supported by any documentary evidence.
(e) The disputes pertaining to the hotel visits in Act 5 can only be resolved at trial.
(f) The claimant’s case on Act 6 is supported by the WhatsApp screenshots that she had sent to her aunt.[19] Whilst the respondent has gone into great length in discrediting the claimant, he did not deny the exchanges or try to put a different gloss on the exchanges by showing his own record.
(g) Those WhatsApp exchanges are also relevant to the respondent’s challenge to the claimant’s credibility.
64. In my view, the WhatsApp screenshots adduced by the claimant has paled the respondent’s denial for Act 6 and weakened the challenges to the claimant’s credibility. Be that as it may, it remains for the claimant to prove her case of “a continuing act or course of conduct” of sexual harassment from around October 2017 to January 2019. The court’s findings on the circumstances of the impugned acts would also impact on the assessment of the injury to feelings suffered by the claimant and her claim for punitive or exemplary damages. The disputes involved are mostly factual and are substantial. The ultimate outcome would depend on whose evidence is believed at trial. I do not think I can form a provisional view of the probable outcome of this case at this stage.
65. The respondent’s denial is partly supported by his wife and carries some degree of conviction. On that basis, it may be said that the defence could well be established at trial and the respondent has shown a defence with a real prospect of success. Subject to the court’s jurisdiction to impose terms, I think the default judgment should be set aside.
66. In L&M Specialist Construction Ltd v Wo Hing Construction Co Ltd [2000] 3 HKLRD 262 at 269D-I, Ribeiro JA (as he then was) said this:
“In my view, it must be rare that a payment into court is made a condition of setting aside a judgment. It may in theory do so, as the court apparently did in the relatively old case of Richardson v Howell (1892) 8 TLR 445, where the defence is considered shadowy and in what one might call ‘conditional leave to defend territory’. However, there is a certain logical tension between a court deciding that the defendant has a real prospects of succeeding in his defence and the court considering at the same time that the defence is in shadowy realms. While I do not consider such an outcome impossible, I would expect it to be exceedingly rare …
As the Court of Appeal in City Construction Contracts (London) Ltd v Adam (unrep, The Times, 4 January 1988) pointed out, there may be other reasons for requiring payment into court. There, it was a perceived need ‘to encourage the proper future conduct of the litigation and to provide a measure of security for the plaintiff’ …
The abovementioned examples of course are not exhaustive. However, to my mind, what they show is that where the defendant has a reasonably arguable defence which ought to be allowed to go to trial, there must be something specific in the defendant’s conduct or in the case which justifies the imposition of a condition such as that imposed here. There must, in other words, be some material upon which the court can exercise its discretion in that manner: Ratnam v Cumarasamy [1965] 1 WLR 8.”
67. In my view, this is one of those rare occasions where a payment into court should be made a condition of setting aside the default judgment. First, Act 6 is well supported by documentary evidence. Secondly, given the respondent’s past conduct in evading service and the fact that he is physically beyond the jurisdiction, there is a real risk that any judgment which the claimant may ultimately obtain would be an empty one. Thirdly, the respondent has delayed in applying to set aside the default judgment. After the interlocutory judgment was entered on 23 September 2021, the court received a facsimile transmission dated 22 November 2021 from the respondent complaining about the judgment. By a reply dated 26 November 2021, the court referred the respondent to rule 13(4) of the EO Rules and urged him to seek independent legal advice. There were other correspondences from the respondent and the court reiterated its previous reply: see the court’s letter dated 13 July 2022. The respondent only took out the Set Aside Summons on 8 August 2022, about 10 months after the default judgment. I agree with the EOC that the delay on the part of the respondent is inexcusable.
68. According to the NOC, the claimant is claiming damages for injury to feelings in the sum of HK$150,000 and punitive or exemplary damages in the sum of HK$20,000. The EOC proposed that if the court is minded to impose condition, the respondent should be asked to pay HK$150,000 into court within 28 days.
69. In my view, the default judgment should only be set aside on condition that the respondent makes a payment into court in the sum of HK$30,000. The amount is set having regard to the need to encourage the proper future conduct of this litigation by the respondent and to provide a measure of security for the claimant.
F. Conclusion
70. For the above reasons, the Admissibility Summons is dismissed. The respondent do pay the claimant’s costs of opposing the summons in any event.
71. On the Set Aside Summons, there be the following orders:
(a) Upon the respondent making a payment into court on or before 7 July 2023 in the sum of HK$30,000 to be held to the credit of this action, (i) the interlocutory judgment entered herein on 23 September 2021 be set aside; (ii) the directions for assessment of damages dated 8 March 2022 be abrogated; (iii) the respondent do file and serve a Notice of Response on or before 4 August 2023; (iv) there be discovery of documents in accordance with Order 24, rule 2 of the RDC on or before 1 September 2023, and inspection in accordance with Order 24, rule 9 of the RDC on or before 15 September 2023; (v) the affidavits/affirmations filed by the parties for the purpose of the Set Aside Summons do stand as witness statements of the filing party; (vi) apart from the aforementioned affidavits/affirmations and the witness statements already filed, there be liberty to file and serve further witness statements (if any) on or before 13 October 2023; (vii) there be a Case Management Conference on 30 October 2023 at 10:00_am in the District Court before a Judge in chambers with 1 hour reserved; and (viii) the costs of and incidental to the Set Aside Summons be to the claimant in any event.
(b) Upon the failure on the part of the respondent to make a payment into court as hereinbefore provided, (i) the interlocutory judgment entered herein on 23 September 2021 do stand; (ii) the directions for assessment of damages dated 8 March 2022 do stand; and (iii) the respondent do pay the claimant’s costs of and incidental to the Set Aside Summons in any event.
72. I agree with the EOC that there are special circumstances warranting a costs order against the respondent under section 73B(3) of the District Court Ordinance, Cap 336,[20] in terms of the unmeritorious Admissibility Summons, the respondent’s conduct in evading service which prompted the Set Aside Summons and the delay in applying to set aside the default judgment.
| ( Justin Ko ) Chief District Judge |
Ms Wong Hoi Ting, Legal Counsel of Equal Opportunities Commission, for the claimant
The respondent acting in person
Appendix A
Documents submitted by the parties for the purpose of the Set Aside
Summons and the Admissibility Summons
| Date | Set Aside Summons (folio 29) | Admissibility Summons (folio 53) |
| 18 July 2022 | Respondent’s affirmation (folio 27) | – |
| 25 July 2022 | Respondent’s wife’s affirmation (folio 28) | – |
| 8 August 2022 | Respondent’s affirmation (folio 30) | – |
| 12 August 2022 | Respondent’s witness statement (folio 34) | – |
| 23 September 2022 | Claimant’s affidavit (folio 38) | – |
| 28 September 2022 | Respondent’s affirmation (folio 41) | – |
| 25 November 2022 | Respondent’s affirmation (folio 47) | – |
| 3 December 2022 | Claimant’s 2nd affidavit (folio 48) | – |
| 29 December 2022 | – | Respondent’s affirmation (folio 54) |
| – | Respondent’s affirmation (folio 55) | |
| – | Respondent’s affirmation (folio 56) | |
| 11 January 2023 | – | EOC’s submissions (folio 57) |
| 12 January 2023 | – | Respondent’s submissions (folio 58) |
| 15 February 2023 | EOC’s submissions | |
| 21 February 2023 | Respondent’s submissions (folio 60) | |
Appendix B
Excerpts of WhatsApp messages allegedly exchanged between the parties
on 16 January 2019
| The claimant | |
| You’ll have to get up in the morning and give me coffee and a hand job. | |
| Hand job? | |
| It would be nice | |
| On no, sorry i can’t | |
| You know I need relief.. Especially if you are living with me | |
| But its not my job to do that, I can wake up early to prepare your breakfast, i will the house, do laundry but not that | |
| I know. That’s why you being around isn’t a good idea |
…
| No I wont, just tell me when you let me back in HK to fix stuff | |
| Fix stuff? | |
| Yes my stuff in your stuff, to find job… If I got new employer I need to process papers… | |
| All I want is a cup of coffee and a hj | |
| Send your wife back to hongkong to do that… | |
| That is why I need one. She doesn’t care about that She would care about fucking but not a hj | |
| Well find a girlfriend to do that |
…
| I will leave a key with Alice You can find some part time work and make extra money while you are was to find a full time job | |
| Never mind, i will whatsapp u if i will go get my stuff | |
| I won’t be home until late tomorrow night Are you not going to stay with me? | |
| No | |
| Why not? | |
| Im not comfortable anymore | |
| I am not going to touch you |
[1] Order 13, rule 9 of the RDC: “Without prejudice to rule 7(3) and (4), the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.”
[2] Order 32, rule 1 of the RDC: “Except as otherwise provided in these Rules, every interlocutory application not made ex parte must be made by summons, and where, under the provisions of these Rules, such summons must be supported by affidavit, such affidavit shall be filed at the same time as the summons.”
[3] Para 5 of his witness statement (folio 34).
[4] The second paragraph in his submissions (folio 52).
[5] Para 8 of his witness statement (folio 34).
[6] Paras 2-4 of the respondent’s wife’s affirmation (folio 28).
[7] Para 4 of his witness statement (folio 34).
[8] Para 1 of the respondent’s wife’s affirmation (folio 28).
[9] Para 7 of his witness statement (folio 34).
[10] Para 2 of his witness statement (folio 34).
[11] Paras 3 & 6 of his witness statement (folio 34).
[12] Para 9 of his witness statement (folio 34).
[13] Para 10 of his witness statement (folio 34).
[14] Para 16 of his witness statement (folio 34).
[15] Para 17 of his witness statement (folio 34).
[16] Para 18 of his witness statement (folio 34). See also para 16 of his affirmation (folio 27) and paras 7-8 of his wife’s affirmation (folio 28).
[17] Paras 14-15 & 18 of his affirmation (folio 27).
[18] Para 1(4)(d) of the NOC.
[19] See the excerpts at Appendix B.
[20] Section 73B(3) of the District Court Ordinance: Each party to any proceedings in the Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (Cap 480) shall bear its own costs unless the Court otherwise orders on the ground that – (a) the proceedings were brought maliciously or frivolously; or (b) there are special circumstances which warrant an award of costs.