SIT KA YIN PRISCILLA v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

DCEO11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 11 OF 1999

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BETWEEN

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D E C I S I O N

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1.  This case has a long and sad history.  I have already outlined the development of this case in my earlier judgments and decisions, and I do not want to repeat the same here.

2.  After the trial of this case and the handling down of the Judgment on 11 February 2010 (“the Judgment”) and the Decision on Costs on 27 October 2010 (“the Decision”), the Plaintiff applied for legal aid and the Court received the Memorandum of Application of Legal Aid on 11 November 2010.  The Plaintiff then took out a summons dated 23 December 2010, applying for leave to appeal against the Judgment, the Decision and the various costs orders and interlocutory orders made by H.H. Judge Mimmie Chan and myself.  The summons was originally fixed before myself on 3 March 2011.  However, prior to the hearing, the Plaintiff applied to adjourn the summons on the ground that she was waiting for the final Decision of the Director of Legal Aid as to whether to provide legal aid to her in respect of the intended appeal proceedings.  By that time, I granted the application and directed the Plaintiff to serve the papers in respect of the appeal proceedings on the Defendant.

3.  The application was therefore adjourned to today, i.e. 17 May 2011. Prior to this hearing, the Plaintiff wrote to the Court applying to further adjourn the summons based on the same reason, that is, she was waiting for the final Decision of the Director of Legal Aid in respect of her legal aid application.  Being on leave myself, my learned brother, H.H. Judge Poon, refused the application for adjournment unless with the consent of the Defendant.

4.  In the hearing today, Mr Kwong, who was the same solicitor acting for the Plaintiff in the trial though he was then with another solicitors’ firm, appeared on behalf of the Plaintiff.  Mr Kwong informs me that he only received instructions from the Plaintiff yesterday, and he was only instructed to make an application to adjourn the hearing today.  In support of his application, Mr Kwong provides the Court with a few medical chits of the Plaintiff, and he informs the Court that the Plaintiff is still waiting for the final Decision of the Director of Legal Aid.

5.  Taking into account the history of this case, I do not consider it fair to the Defendant to further adjourn the hearing.  This case has dragged on for a long time, and the application for leave to appeal has already been adjourned once.  Further, from the medical chits supplied by Mr Kwong, there is no evidence that the Plaintiff is suffering from any serious sickness, and the Plaintiff has not produced any documentary proof to show that the Director of Legal Aid is still now considering her application.  Based on these reasons, I refuse the Plaintiff’s application to further adjourn today’s hearing.

6.  Mr Kwong is not making any submission on the merits of the application. 

7.  Except with the Decision, the application for leave to appeal against the Judgment and all the other decisions and costs orders were made out of time.  It is trite law that an application for leave to appeal out of time has to be supported by an affidavit deposing as to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. Further, an extension of time must be applied promptly (see: Hong KongCivil Procedure 2011, paragraph 59/4/10).

8.  No affidavit has been filed by the Plaintiff to provide an account of or an explanation for the delay in the launching of the application for leave to appeal in respect of the Judgment and all the previous costs orders and decisions on interlocutory applications.  Further, the Plaintiff has not put forward any argument or reasoning to support why these Judgment and decisions might be wrong.  In such circumstances, there is simply no basis for the Court to extend the time for the launching of the appeal against the Judgment and the various costs orders and decisions, and I therefore refuse to grant leave to appeal against these Judgment and decisions.

9.  So far as the Decision is concerned, the application for leave to appeal was made within time.  Despite that, the Plaintiff has not put forward any argument or reasoning to support why the Decision is wrong.  Further, as shown in the case of Choy Yee Chun v Bond Star Development [1997] HKLRD at 1327, the Court of Appeal has emphasised that the appellate court will not interfere with the exercise of the trial judge’s discretion in the award of costs, unless it be shown that the trial judge failed to exercise the discretion or exercised it upon a false principle or did not exercise it judicially.  The Court of Appeal has also stressed that it would be wrong for an appellate court to substitute its discretion for that of the trial judge, unless the appellate court is satisfied that the trial judge was plainly wrong.  I myself was well familiar with the facts and the history of this case, and I had also given detailed reasons as to why I made an adverse costs order against the Plaintiff in the Decision. As there is no merits in the intended appeal against the Decision, I also refuse the Plaintiff’s application for leave to appeal against the Decision.

10.  I now hear the parties’ submissions on the costs of this application. 

(Discussion re summons)

11.  The summons is dismissed.

(Discussion re costs and certificate for counsel)

12.  In making the decision on the issue of costs in respect of this summons, I am aware of the provisions under section 73B(3) and section 73C(3) of the District Court Ordinance.  However, I am of the view that this application for leave to appeal is totally without merits.  The Plaintiff has not provided any reason to justify why the application was made out of time, and also there is simply no argument or reasoning provided by the Plaintiff as to why she says that the previous Judgment or decisions are wrong.  In such circumstances and based on the same reasons given in respect of my earlier decisions on costs, I also award the costs of this summons to the Defendant.

13.  In respect of counsel’s certificate, I agree that since the Plaintiff has not provided any supporting affidavit or supporting argument, it may not be necessary to engage counsel to deal with this particular case.  However, there has been unusual development of the case and there has been considerable delay in the proceedings.  In such circumstances, Mr Leung, who is the counsel well familiar with the facts of the case, would be in a much better position to deal with the argument himself.  In such circumstances, I also consider it reasonable to engage counsel in respect of the present application.

Mr Kwong Chi-ho, of Raymond Kwong & Co., for the Plaintiff

Mr Raymond Leung, instructed by Messrs Baker & McKenzie, for all Defendants

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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BETWEEN

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DECISION ON COSTS

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1.  This is a claim for damages allegedly caused by unlawful disability and sex discrimination. In the Judgment handed down on 11 February 2010, I dismissed the Plaintiff’s claim. At the request of counsel at the trial, the parties would prefer to make further submissions on the issue of costs after seeing my Judgment, and so the parties now come back before me to argue on this particular issue. Mr. Leung, counsel for the Defendants, asks for costs against the unsuccessful Plaintiff, while Mr. Dykes SC, counsel for the Plaintiff, resists the application.

The legal principles relating to costs in discrimination claims

2.  The detailed background of this case has already been outlined in my Judgment handed down earlier and so I do not want to repeat the same here.  Before I deal with the merits of the application, I would like to set out the legal principles involved.

3.  The normal rule of costs follow the event does not apply in discrimination claims.  S. 73B(3) of the District Court Ordinance, Cap. 336 (“the DCO”) provides that:

“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.”

S. 73C of the DCO provides for the same costs rule in respect of the claims under the Disability Discrimination Ordinance, Cap. 487 (“the DDO”).

4.  For the rationale of such rule, I would like to repeat the observations that I have made in the case of Cano-Shearer, Anne & Ors. v Cathay Pacific Airways Limited, unreported, DCEO No. 1/2001 (decision of HH Judge Lok on 23 September 2002):

“18. The rationale for such rule is clear. If the court always makes an order of costs against an unsuccessful plaintiff, it may discourage individuals who may have legitimate grievance in enforcing their civil right. On the other hand, I agree with [the Defendant’s counsel] that such indulgence should not go unchecked, otherwise parties who are sued as defendants may have to face with all sorts of unmeritorious claims, and the said statutory provision would be doing more harm than good. In particular, if the court cannot make any costs order in respect of procedural matters, the court will lose the power to control and regulate the progress of the proceedings. Hence, apart from the case that the proceedings were brought maliciously or frivolously, the court is given wide discretion to make an order of costs if there are ‘special circumstances’ which warrant so. Obviously, it would be very difficult for the court to list out all the special circumstances in which an order of costs should be made. However, the court should always bear in the mind the aforesaid considerations in deciding on the issue of costs in sex discrimination cases.”

5.  Hence, in order to depart from the general principle that each party should bear its own costs in discrimination claims, the party asking for costs has to establish that the case falls within either of the two limbs of the proviso stated in ss. 73B and 73C.  In determining whether a claim was brought maliciously or frivolously under the first limb, the court has to apply both a subjective and objective test.  In this regard, I would repeat the dicta that I have made in the Cano-Shearer Anne case:

“24. A case is obviously frivolous when the claimant subjectively knows that it is unmeritorious. A case may also be frivolous when objectively considered it is plainly without foundation and is bound to fail. In E.T. Maler Ltd. v. Robertson [1974] 1 ICR 72, the English National Industrial Relations Court was asked to consider, inter alia, the issue of costs relating to an appeal from the Industrial Tribunal. Under the relevant statutory provision, the Tribunal should not normally award costs unless it considers that a party has acted frivolously or vexatiously. Sir Hugh Griffiths said the following in p. 76:

‘If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it.’

In Wilson v. Phoenix Contracting Services (1998) EOC 92-936, the Victorian Anti-Discrimination Tribunal in Australia was asked to consider a similar provision relating to costs. The Tribunal said the following in page 78234 of the report:

‘The costs referred to in the section are party/party costs (including disbursements) and , notwithstanding sub-section (2), the discretion of the Tribunal to award costs is very wide.

There is no general rule adopted by this Tribunal that the successful party is entitled to costs (see Murphy v. Colorific Lithographics ADT of Vic, 22 January 1997). In exercising its discretion the Tribunal must have regard to the nature of the jurisdiction. If orders for cost are made too readily, people might be deterred from coming to the Tribunal and, to that extent, the policy of the legislation would be frustrated.

In Delmonaco v. NRU Worklife Pty Ltd. (ADT of Vic, 3 April 1997), … … … the Tribunal said:

“We therefore find that the Respondent has been put to needless expense in defending a claim that should not have been brought against her.  It is not simply a case of a complaint having failed.  It is a case where a Complainant has made a complaint without any reasonable grounds for expecting that it might succeed.  In such circumstances, we think that it is appropriate to order costs in favour of the Respondent.”

… … …

The Tribunal should not lightly find that a claim should not have been brought.  It is the intention of the legislation that a person with a bona fide claim will bring it to the Commission and, if it is not resolved, have the matter determined by the Tribunal.  On the other hand it must be recognised that an accusation of unlawful discrimination can have serious consequences for the person accused (see Gray v. Ritossa Supreme Court of Victoria 21 October 1993 per Nathan J) and should not be made without due cause.’

In Hong Kong, by virtue of the second limb of s. 73B(3), the court has a much wider discretion in approaching the issue of costs in sex discrimination claims.”

Merits of the application

6.  I then turn to the merits of the application. In the present case, the claim for sex and disability discrimination was made by a former Director of the Gender Division of the Equal Opportunities Commission (“the EOC”).  By reason of her work, she was supposed to have some knowledge of the anti-discrimination law in Hong Kong.  On the other hand, the 1st Defendant herein, the EOC, is the very organisation entrusted with the statutory duty to eliminate discrimination in Hong Kong, and 2^nd and the 3^rd Defendants were the respective Chairman and Chief Executive of the EOC at the material time.  Because of the unique features of the present case and the positions held by the various parties at the material time, the allegations made by the Plaintiff were particularly serious.  In the event that the Plaintiff’s allegations were found to be substantiated, it would have a serious impact on the work and the reputation of the EOC.

7.  In a nutshell, the Plaintiff complains that she had been unfairly treated in the course of her employment, including that, inter alia, she was denied the opportunity of acting up the post of the Chief Executive, attending the training course for the staff members of the EOC at Tsing Hua University and an overseas conference in Seoul.  According to the Plaintiff, the Defendants also made some unjustified criticisms against her work performance which ultimately led to termination of her employment.  She complains that she had been so unfairly treated because of her gender and disabilities, the latter of which included, inter alia, neck pain and regular high fevers.

8.  The Defendants deny that there was any discrimination on their part, and the Plaintiff’s employment was terminated solely because of her poor work performance.  Further, the Defendants were not aware of any significant disabilities suffered by the Plaintiff when she was working in the EOC, and so any management decisions made in respect of the Plaintiff could not have been influenced by the proscribed grounds stated in the DDO.

9.  At the trial, the evidence showed that the Plaintiff’s claim is totally without merits.  The EOC’s then Legal Adviser, Madam Alexandra Papadopoulos, was a female senior staff who was of the same rank as that of the Plaintiff.  She was taking more sick leave than the Plaintiff, and yet she was offered the opportunity of acting up the post of the Chief Executive and there was no suggestion to terminate her employment like that of the Plaintiff.  The Plaintiff was not asked to attend the overseas conference in Seoul because that conference was about disabilities issues, and the conference was not directly related to the work of the Plaintiff who was responsible for gender issues.  In fact, the Plaintiff attended an overseas conference on gender issues in Miami much earlier on her own, and it was therefore quite absurd for the Plaintiff to say that she had been unfairly treated in this regard.  Further, the staff members of the EOC took turn to attend the training courses at Tsing Hua University and the selection process in respect of the first course had nothing to do with the gender of the staff members concerned.

10.  After listening to the evidence of the case, I came to the firm conclusion that the case only involved a personnel dispute between the Plaintiff and the senior management of the EOC.  Very serious allegations had been made by a former senior staff of the EOC against her colleagues who were responsible for eliminating discrimination in the community, and yet there was no evidence to substantiate the complaints which were no more than suspicion on the part of the Plaintiff.  Further, there was not even one single hint in the evidence which might suggest that the management decisions of the EOC were affected by any of the proscribed grounds, nor was there any evidence to show that the EOC had been adopting a discriminatory practice against any of its employees.

11.  Based on the evidence in the present case, there are amble reasons for the court to conclude that the Plaintiff’s claim was brought frivolously.  If the Plaintiff had been more objective, I would expect her to reach the same conclusion about the merits of her claim.  It is very difficult for me to understand why the Plaintiff, with an impressive curriculum vitae, was so obsessed with her claim.  It might be the case that her emotional disturbance experienced after the termination of her employment had clouded her judgment.  But if one approaches the facts of the case objectively, one would not be too difficult to reach the conclusion that the Plaintiff’s claim should not have been brought in the first place.  I therefore order the Plaintiff to pay for the costs of the action under the first limb of ss. 73B(3) and 73C(3) of the DCO.

12.  In the case that I am wrong on the above conclusion, I also find that there are special circumstances in the present case which warrant an award of costs against the Plaintiff under the second limb of the proviso.  As I have mentioned in the Cano-Shearer Anne case, the court has to take into account the objects of the anti-discrimination legislations and the legitimate right of the defendant in dealing with the issue of costs in the case of an unsuccessful discrimination claim.  On the one hand, the court is conscious of the fact that an award of costs against an unsuccessful plaintiff may discourage other potential plaintiffs of pursuing their complaints in courts.  On the other hand, if a plaintiff who brought an unmeritorious claim does not have to bear any responsibility if he loses the claim, the court will be flooded with a lot of unmeritorious claims.  As I see it, this could not have been the intention of the legislature.

13.  The dispute between the parties in the present case was no more than a personnel dispute.  As mentioned in my Judgment, there was not even one single hint in the evidence which could possibly suggest that the management decisions made in respect of the Plaintiff were in any way influenced by the proscribed grounds.  If the court does not make an award of costs against the Plaintiff, any person whose employment was terminated by his employer can file an unmeritorious claim without any consequences.  This simply cannot be right.  Hence even if the claim of the Plaintiff is not a malicious or frivolous claim within the meaning of the first limb of the proviso, there are still special circumstances in the present case which warrant an award of costs against the Plaintiff.  I therefore so order.

14.  Both sides had engaged senior counsel to the conduct the trial.  However, the present case only involves simple factual disputes between the parties and so I doubt whether it was appropriate to engage senior counsel for the trial.  Having said that, the Defendants had all along instructed one counsel to conduct the proceedings, and it was only because of the engagement of senior counsel on the part of the Plaintiff in the latter part of the proceedings that the Defendants had engaged a senior counsel to conduct the trial.  In such circumstances, there is no reason to deny the Defendants’ request for certificate for two counsel.  Furthermore, there was so much at stake for the Defendants in these proceedings.  In the case that the Plaintiff’s allegations were found to be substantiated, it would have a serious impact on the work and the reputation of the EOC.  Hence, despite that the present case is not a particularly complicated one, I would grant certificate for two counsel in favour of the Defendants.

Costs and delay in the present case

15.  Having dealt with the costs issues, I would like to make some observations about the delay and the amount of costs incurred in this particular case.  The Plaintiff’s employment was terminated in 1997, but the trial of this action took place 12 years later in 2009.  I am also given to understand that substantial costs had been incurred by the Defendants in defending the claim.  But if one looks at the facts at the trial, it would not be too difficult for the court to conclude that the Plaintiff’s claim is one totally without merits.  In such circumstances, one particular question pops up to my mind: why do we need to spend so much time and money to resolve this relatively simple dispute?

16.  Undoubtedly, the Plaintiff is mainly responsible for the delay in the proceedings.  The Plaintiff’s alleged cause of action accrued before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements, and there was total inaction on her part in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue two Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

17.  In the period from 1999 to 2005, the Plaintiff had also engaged in various satellite litigations against the EOC under the Personal Data (Privacy) Ordinance, Cap. 486 by making no less than 3 complaints to the Privacy Commissioner Office.  She also lodged no less than 3 appeals to the Administrative Appeals Board against the decisions of the Privacy Commissioner for Personal Data.  All the appeals were dismissed by the Board.

18.  The Plaintiff filed a Notice to Act in Person on 28 September 2006.  After that, there were quite a number of unnecessary interlocutory applications before the court in 2007 and 2008.  The Plaintiff did not attend the trial in November 2008 and as a result the trial took place one year later in November 2009.

19.  Despite that the Plaintiff is the one mainly responsible for the delay in the proceedings, I believe that a more simplified set of procedural rules can reduce some of such delay.  After the implementation of the civil justice reform in 2009, the court has already adopted a more pro-active approach in the case management of discrimination claims. The court has referred appropriate cases for mediation with some successful results.  The court would also set speedy timetables for the progress of the cases with a view to reduce some of the delays.  Dispite that, the court is still faced with a lot of interlocutory applications such as applications for extension of time to file pleadings, applications for provision of further and better particulars of pleadings and striking out applications.  Although there are no formal statistics, my observation as the judge-in-charge of the Equal Opportunities List shows that there were more such interlocutory applications in discrimination claims than other ordinary civil claims.

20.  As I see it, the problem may lie with the use of pleadings in the adjudication of discrimination claims.  One of the features of such kind of actions is that they usually involve a series of incidents over a period of time which eventually lead to the ultimate detriment suffered by the complainant, for example the termination of the complainant’s employment. These incidents are usually closely related.  Because of the large numbers of incidents involved, the legal advisers often take great care in listing out all such incidents in the pleadings and the relationship between them.   On the other hand, litigants in person may experience great difficulty in listing out all their complaints clearly in the pleadings.  The result is that the pleadings may become very lengthy documents, which would in turn lead to a lot of interlocutory applications such as applications for provision of further and better particulars and striking out applications.

21.  With the lengthy technical pleadings, one can also easily overlook some of the important facts of the case, which was actually what happened in the present case.  There was some evidence revealed at the trial which clearly showed that the Plaintiff’s claim was unmeritorious, but for some reasons they did not appear in the pleadings.  Firstly, the Plaintiff claimed that there was a practice in the government and public institutions that, in the case that there was an acting post available, all the staff members who were eligible would take turn to act.  The evidence revealed at the trial clearly showed that such allegation was untrue.  There were two Chief Equal Opportunity Officers working under the Plaintiff at the material time, one was a man and the other one was a woman.  However on every occasion when the Plaintiff was absent from the office, the Plaintiff would arrange for the male Chief Equal Opportunity Officer to act in her post.  This showed that acting appointment was made based on merits and operational needs only.  If there was such a practice as alleged by the Plaintiff, one would query why she had not adopted such practice herself.  Secondly, the evidence at the trial showed that Madam Alexandra Papadopoulos, who was a female staff taking more sick leave than that of the Plaintiff, was offered the opportunity of acting up the post of the Chief Executive.  It showed that the Defendants had not adopted a discriminatory practice against the employees of the EOC, and yet the Plaintiff complained that she was denied the opportunity of acting up by reason of her gender and disabilities.  For some reasons, these facts did not appear in the pleadings and the parties might not appreciate the significance of these facts until the trial itself.  In such circumstances, one would query the wisdom of continuing to adopt the pleadings system in the adjudication of discrimination claims.

22.  In a number of jurisdictions including the United Kingdom (with the exception of the adjudication of non-employment related discrimination claims), Australia and Canada, the courts or tribunals have already dispensed with formal pleadings in the adjudication of discrimination claims.  Instead, complainants and respondents have to file more informal Points of Claim or Points of Defences.  The procedural rules are also less complicated.

23.  In my opinion, the time is now ripe for us to review whether the pleadings system is suitable for the adjudication of discrimination claims.  One must bear in mind that anti-discrimination statutes are social legislations which involve the protection of civil rights.  In order not to deter complainants with legitimate grievances of enforcing their rights in the court, discrimination claims should be adjudicated in a speedy manner. The costs of such kind of proceedings should also be reduced as much as possible.  I believe that the use of more simplified claim forms can, to a great extent, achieve such result.

Mr. Philip Dykes SC and Mr. Andrew Mok, instructed by Messrs. T. K. Cheng & Co., for the Plaintiff

Mr. Raymond Leung, instructed by Messrs. Baker & McKenzie, for the Defendants

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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BETWEEN

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JUDGMENT

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1.  This is an unusual case, in which the Plaintiff, who was a former Director of the Gender Division employed by the Equal Opportunities Commission (“the EOC”), is suing her former employer and supervising officers for damages caused by unlawful disability and sex discrimination. The EOC is the very organisation entrusted with the statutory duty to eliminate discrimination in Hong Kong.

The nature of the Plaintiff’s claim

2.  The EOC, the 1^st Defendant herein, was established in May 1996 with the statutory duty of promoting equal opportunities in Hong Kong. Dr. Cheung Mui Ching Fanny (“Dr. Cheung”), the 2^nd Defendant herein, was appointed as the first chairman of the EOC.

3.  After her appointment, Dr. Cheung was responsible for setting up the structure of the EOC and employing the senior officers of the institution. Madam Ho Choi Wai Yee Angela (“Madam HO”), the 3^rd Defendant herein, was employed as the first Chief Executive of the EOC. Prior to that, Madam Ho had been working in the Labour Department for about 28 years.

4.  Madam Sit Ka Yin Priscilla (“Madam Sit”), the Plaintiff herein, was employed as the first Director of the Gender Division of the EOC in September 1996. She has an impressive curriculum vitae. She was formerly a chief inspector employed by the Police Force. She then studied law and became a qualified solicitor in Hong Kong. Madam Sit worked in the then Attorney General’s Chambers and the Law Society before joining the EOC in September 1996.

5.  Her employment was terminated on 25 September 1997 with immediate effect. The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants. She also claims that there was disability harassment against her at the relevant time and she had been victimised by reason of her gender.

(i)  The claims under the Disability Discrimination Ordinance, Cap. 487 (“the DDO”)

6.  Regarding the claims under the DDO, Madam Sit claims that she was suffering from the following disabilities in about June 1997:

(i)  neck injury;

(ii)  severe muscular and other pains in neck and right arm;

(iii)  substantially increased immobility; and

(iv)  regular high fevers.

7.  At the commencement of the trial, Madam Sit applied for leave to adduce further medical report by one Dr. Lam Tat Chung Paul which tends to suggest that Madam Sit was also suffering from anxiety and depressive symptoms when she worked in the EOC. However for the various reasons set out in my Ruling dated 9 November 2009, I refused the application.

8.  It is Madam Sit’s case that the Defendants were aware of her disabilities alleged in the pleadings. Despite such knowledge, Dr. Cheung and Madam Ho made a number of unjustifiable criticisms against her work performance whilst ignoring the poor work performance of the other employees. Eventually, the EOC, as advised by Dr. Cheung and Madam Ho, terminated the employment of Madam Sit without giving any warning or opportunity to her for explanation. Madam Sit claims that such conducts on the part of the Defendants amount to unlawful disability discrimination and harassment.

(ii)  The claims under the Sex Discrimination Ordinance, Cap. 480 (“the SDO”)

9.  I then turn to the claims under the SDO. When the EOC was first set up in 1996, there were two directors in the institution: Madam Sit as the Director of the Gender Division and one Mr. Tong Kin Sang Frederick (“Mr. Tong”) as the Director of the Disability Division. These posts, together with the post of the Legal Adviser, were of Directorate Grade 2 whilst the post of the Chief Executive was of Directorate Grade 3.

10.  It is Madam Sit’s case that she had been treated less favourably by reason of her gender in the following instances:

(i)  Madam Sit had never been allowed to act up the post of the Chief Executive, whereas Mr. Tong was appointed as Acting Chief Executive whilst Madam Ho was on leave or absent from office in the respective periods from 2 December 1996 to the end of January 1997 and from 29 May to 13 June 1997;

(ii)  Mr. Tong was selected to attend a training course at Tsing Hua University in March and April 1997 organised for the senior staff of the EOC;

(iii)  Mr. Tong was given paid leave to attend an overseas conference relating to disability issues in Seoul from 23 to 30 September 1997;

(iv)  Mr. Tong was given favourable treatment in the case review exercise in that he was allowed to discuss with Madam Ho on the conduct of the exercise and was given time to rectify his mistakes;

(v)  there had been a number of complaints made against Mr. Tong whereas there was no such complaint lodged against Madam Sit, and yet more favourable treatment was given to Mr. Tong in various matters in the daily operation of the EOC;

(vi)  Madam Sit’s employment was terminated without complying with the Procedures for Handling Complaints and Grievances from EOC staff and Disciplinary Policy and Procedures of the EOC, where such Procedures were invoked in the case of the treatment of two other male employees of the EOC.

Madam Sit therefore claims that the Defendants had unlawful discriminated against her by reason of her gender.

11.  Regarding the claim for sex discrimination by way of victimisation, Madam Sit alleges that in a meeting with Dr. Cheung in May 1997, she asked Dr. Cheung to offer her the opportunity of acting up the post of Acting Chief Executive. During the meeting, Madam Sit asked Dr. Cheung about the selection criteria for choosing the acting appointee, to which she received no reply. Madam Sit then indicated that the EOC might be guilty of sex discrimination if she was not allowed to act up such post.

12.  As the EOC had no selection criteria for choosing the acting appointee, the EOC was in breach of the Code of Practice on Employment under the SDO issued by the EOC itself. By denying her the opportunity of acting up, wrongfully accusing her of performing poorly at work and terminating her employment without giving any reason or opportunity for her to explain, Madam Sit claims that there had been sex discrimination by way of victimisation against her.

(iii)  Relief claimed by Madam Sit

13.  By reason of the alleged discrimination, harassment and victimization, Madam Sit claims the following relief:

(a)  loss of salary, bonus and other contractual benefits up to and including 9 September 1999;

(b)  continuing loss of salary, bonus and benefits;

(c)  loss of gratuity payment;

(d)  compensation for injury to feelings under s. 72(3) of the DDO and s. 76(6) of the SDO; and

(e)  punitive and exemplary damages.

14.  In the opening submission, Mr. Aiken SC, counsel for Madam Sit, indicates that his client would not pursue the claim for continuing loss of salary, bonus and benefits.

The Defendants’ case

15.  The Defendants dispute that they were guilty of any of the unlawful acts alleged by Madam Sit. According to the Defendants’ pleaded case, the EOC terminated Madam Sit’s employment by reason of her “persistent sub-standard performance”. In the Answers to Request for Further and Better Particulars of the Amended Defence filed on 16 February 2002, the Defendants rely on the following 9 incidents (“the 9 Incidents”) to support their allegation that the work performance of Madam Sit was sub-standard:

(i)  failing to properly relate instructions to, and to supervise, her subordinates regarding the preparation for a visit of the All China Federation of Women from Mainland China in July 1997;

(ii)  failing to properly relate instructions to, and to supervise, her subordinates in the preparation of a brief to commission a research study on the “genuine occupational qualification” under s. 12 of the SDO;

(iii)  failing to ensure that the latest version of the Executive Summary of the “Baseline Survey on Equal Opportunities on the Basis of Gender” as approved by Dr. Cheung was sent to the Government Printer;

(iv)  failing to properly handle and respond to a complaint by the Hong Kong Federation of Trade Unions delegation and the Coalition on Concern for Women’s Employment Rights regarding the incompatibility between certain provisions of the SDO and the Women and Young Persons (Industry) Regulations (“the WYPIR”) between November 1996 and April 1997;

(v)  insufficient knowledge, poor presentation skills and poor performance in answering questions relating to the incompatibility of certain provisions of the SDO and the WYPIR at a public seminar held by the EOC on 5 May 1997;

(vi)  failing to properly plan and organise the formulation and drafting of the Code of Practice under the Family Status Discrimination Ordinance, Cap. 527 according to the instructions given by Madam Ho in July 1997;

(vii)  failing to review all the complaints files handled by the Gender Division in accordance with the instructions given by Madam Ho, relying on subordinates to conduct the case review exercise for her, and Madam Sit’s defensive and unpleasant attitude towards Dr. Cheung when inadequacies of the case review exercise were pointed out to her;

(viii)  failing to properly supervise, monitor, direct or report the development of the Computerized Complaint Handling System (“CCHS”) between March and September 1997 and delegating the work to her subordinates without proper communication or supervision resulting in complications in a contractual dispute with LECCO Consultants Limited (“LECCO”), the supplier and developer of the CCHS, and Madam Sit’s defensive and unpleasant attitude towards Dr. Cheung and Madam Ho when the above failures were pointed out to her; and

(ix)  failing to prepare for management meetings resulting sometimes in Madam Sit having to leave the meetings to consult with her subordinates in order to answer queries from the management regarding issues within her sphere of responsibilities including: (a) the visit of the All China Federation of Women as mentioned above; (b) the “genuine occupation qualification” as mentioned above; and (iii) the CCHS project.

16.  By reason of Madam Sit’s poor work performance, Dr. Cheung made a recommendation to the Administration & Finance Committee of the EOC (“the A & F Committee”) to terminate the employment of Madam Sit. In the meeting of the A & F Committee on 24 September 1997, Dr. Cheung made a report about the following 5 areas of deficiency of Madam Sit whilst working as the Director of the Gender Division (“the 5 Areas of Deficiency”):

(a)  poor work performance, including sub-standard performance as a senior administrator;

(b)  poor leadership, including inappropriate delegation of work to her subordinates, inadequate supervision and failing to provide proper guidance to her subordinates;

(c)  poor management skill, including failing to get herself informed of the details of the projects or works that she was supervising and insufficient contribution of ideas in meetings and the operation of the EOC;

(d)  poor public performance at seminars; and

(e)  inadequate knowledge about her job.

The Defendants are relying on the 9 Incidents as examples to substantiate their assessment of Madam Sit’s work performance as summarised in the 5 Areas of Deficiency.  The Defendants also claim that Madam Sit’s poor performance in at least one of the seminars had adversely affected the public image of the EOC.

17.  In specific reply to the claims on disability discrimination and harassment, the Defendants claim that Madam Sit, like many other employees of the EOC, occasionally took time off to attend medical consultations, and Madam Sit had not told them of her alleged disabilities. Whilst the senior management of the EOC was not aware of any significant disabilities allegedly suffered by the Madam Sit, the treatments received by her could not have been caused by any consideration other than her persistent sub-standard work performance.

18.  In specific reply to the claim on sex discrimination, it is the Defendants’ case that acting appointment was made on merits only. As Mr. Tong was a competent and suitable officer, he was appointed twice as Acting Chief Executive during the period of Madam Sit’s employment with the EOC. Further, the Legal Adviser, Madam Alexandra Papadopoulos (“Madam Papadopoulos”), was appointed once as the Acting Chief Executive during the relevant period, and so the selection of the acting appointee could not have been affected or influenced by consideration such as the gender of the appointee.

19.  Regarding the complaint for not able to attend the training course held at Tsing Hua University, the Defendants simply say that it was not possible for all the senior staff of the EOC to attend the course at the same time. In 1997, Dr. Cheung and Mr. Tong attended the course with about half of the senior staff, and it was the plan of the EOC that the other remaining senior staff of the EOC, including Madam Ho and Madam Sit, would attend the next training course to be organised in 1998.

20.  Relating to the complaint for not able to attend the overseas conference, namely “Rehabilitation International”, held in Seoul in September 1997, the Defendants say that that conference was actually about disability issues. As such conference was directly relevant to the work of Mr. Tong, it was only natural for him to attend the conference on behalf of the EOC. In fact, Madam Sit represented the EOC by herself to attend the Global Summit of Women in Miami in the United States in the period from 7 to 15 January 1997. Hence, the selection of delegates to attend overseas conferences had nothing to do with the gender of the particular delegate.

21.  In defence to the claim on sex discrimination by way of victimisation, the Defendants maintain that Madam Sit had never mentioned to Dr. Cheung, whether in a meeting in May 1997 or on any other occasions, that the EOC would be guilty of sex discrimination if Madam Sit was denied the opportunity of acting up the post of Chief Executive. The treatments received by Madam Sit were only caused by her sub-standard work performance and she was not therefore victimised in any way.

History of the present litigation

22.  I have already set out the history of this litigation in my decision given on 3 November 2008. However for the purpose of this judgment, I would also like to give a brief summary as to why this trial is taking place about 12 years after the termination of Madam Sit’s employment.

23.  Madam Sit’s alleged causes of action accrued around the time when her employment was terminated on 25 September 1997. The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period. The writ was not served until September 2000 which was close to the end of the validity of the writ. There was then delay on the part of Madam Sit in the exchange of witness statements, and there was total inaction on her part in pursuing the action between September 2003 to September 2006. In view of the inaction on the part of Madam Sit, the Defendants had to issue 2 Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

24.  In the period from the year 1999 to 2005, Madam Sit had also engaged in various satellite litigations against the EOC under the Personal Data (Privacy) Ordinance, Cap. 486 by making no less than 3 complaints to the Privacy Commissioner Office (“PCO”). Those complaints were all related to Madam Sit’s requests for personal data relating to the termination of her employment. She also lodged no less than 3 appeals to the Administrative Appeals Board (“AAB”) against the decisions of the PCO. All the appeals were dismissed by the AAB.

25.  Madam Sit’s claim had all along been handled by a firm of solicitors until 28 September 2006 when she filed a Notice to Act in Person. There were then various interlocutory applications before the court in 2007 and 2008.

26.  The trial date was originally fixed on 3 November 2008 with 15 days reserved. However, Madam Sit failed to turn up on the first day of the trial and applied by fax to adjourn the hearing. For the reasons given on 3 November 2008, I refused Madam Sit’s application and dismissed her claims against the Defendants.

27.  On 28 November 2008, Madam Sit took out an application to set aside the order made by me on 3 November 2008. According to Madam Sit, she was suffering from adjustment disorder, depression and severe psychological stress in or about November 2008 and as a result she could not attend the trial. She also adduced expert medical evidence to support her application. As I accepted that Madam Sit could not attend the trial by reason of genuine sickness which necessitated in-patient treatment, I set aside the order made against her. The trial date had to be refixed to November 2009, and that is why this trial is now taking place about 12 years after the termination of Madam Sit’s employment.

Evidence in support of Madam Sit’s case

(i)  Madam Sit

28.  There is no serious dispute between the parties about the legal principles to be applied in this case and the main battlefield is about factual issues. Hence, I propose to deal with the evidence of the witnesses first.

29.  Apart from the evidence from his doctor Dr. Arthur Chiang Si Chung, Madam Sit is the only witness in support of her case.

30.  Before joining the EOC, Madam Sit had worked in the Police Force up to the rank of Chief Inspector. She then studied law. After qualifying as a solicitor, she worked in the then Attorney General’s Chambers as Assistant Crown Counsel and later as Senior Crown Counsel. She resigned in 1992. Madam Sit later joined the Law Society of Hong Kong as Assistant Director (Complaints), and her duties involved consideration, analysis and investigation of all complaints of professional misconduct concerning solicitors practising in Hong Kong. In September 1996, Madam Sit joined the EOC as Director of the Gender Division.

31.  Apart from handlingsome sex harassment complaints when she was working in the Complaints Against Police Bureau in the Police Force, Madam Sit had no previous experience in dealing with sex discrimination or other gender issues. She was chosen for the job mainly because of her legal training and her previous experience of handling investigation of complaints.

32.  Her employment with the EOC commenced on 9 September 1996 and she completed the 6 months of probation on 8 March 1997.

33.  According to Madam Sit, during her employment, favouritism was given to Mr. Tong in respect of acting appointment of the post of the Chief Executive both in the periods from the end of November 1996 to February 1997 and from 29 May to 13 June 1997. Further, Mr. Tong was chosen to attend the training course in Tsing Hua University from 18 March to 6 April 1997 and the overseas conference in Seoul from 23 to 30 September 1997. Madam Sit complains that there was no selection criteria or proceduresin the EOC for selecting the appointee for the post of the Acting Chief Executive or for nominating the staff to attend training course or overseas conference.

34.  In May 1997, Madam Sit had a meeting with Dr. Cheung. During the meeting, Madam Sit asked for a chance to act up the post of the Chief Executive, and she made a hint that the EOC might be guilty of sex discrimination if she was not given such opportunity. She also asked Dr. Cheung whether there was any criteria for selecting the candidate for the acting appointment, and Madam Cheung simply did not reply.

35.  According to Madam Sit, there was a practice in the Government that staff of the same rank would by rotation act up the post of their immediate supervisor every time when the latter was absent from office. This was the practice when she worked in the Police Force and the Attorney General’s Chambers.

36.  It is Madam Sit’s case that favouritism was always shown to Mr. Tongdespite his poor work performance. Madam Sit claims that the filing system of the EOC was in a mess when Mr. Tong was acting as the Chief Executive, and Mr. Tong had not handled some of the complaints concerning disability discrimination in a satisfactory manner. Further, she suspects that Madam Ho had always invited Mr. Tong to discuss various matters relating to the administration of the EOC and the handling of complaints, and Mr. Tong was given opportunity to rectify his mistakes made in the case review exercise. According to Madam Sit, the EOC had not shown the same favouritism to her and the senior management was always critical of her work performance.

37.  Similar favouritism was shown to Madam Papadopoulos despite her poor work performance. In this regards, some of Madam Sit’s complaints against the work performance of Madam Papadopoulos can be listed out as follows:

(i)  there was delay on the part of Madam Papadopoulos in preparing the written policy of the EOC on the protection of data privacy;

(ii)  she unfairly did not renew the employment of her subordinate who had lodged a complaint against her;

(iii)  she always took sick leave; and

(iv)  there was delay on her part in taking action against an organisation which published information leaflets using the EOC’s logo.

For the purpose of this judgment, I do not consider it necessary to set out each and every allegation against the work performance of Mr. Tong and Madam Papadopoulos in great detail.

38.  According to Madam Sit, she suffered from pain in the right shoulder which radiated down to her fingers some time in 1997. She had also taken sick leave for about 12.5 days in the period from May to September 1997. Madam Sit had told Dr. Cheung and Madam Ho about her pain.

39.  During the employment with the EOC, Madam Sit was responsible for supervising the CCHS project. On 3 September 1997, LECCO, the contractor for the project, by its solicitors issued a demand letter to the EOC for the outstanding payment under the project. The senior management of the EOC was concerned about the dispute with LECCO. On 9 September 1996, Dr. Cheung asked Madam Sit to stay behind after a management meeting to discuss the CCHS project. By that time, Madam Ho was also present. Madam Ho claimed that it was the fault of Madam Sit in failing to supervise the project properly, and as a result it caused the dispute with LECCO. Madam Sit denied the criticism. After some heated exchanges between them, Madam Ho left the meeting. Madam Sit was by then very emotional, and she told Dr. Cheung that she was frustrated because of her chronic pain and the unfavourable treatment that she received. She was depressed and was not able to sleep. She also told Dr. Cheung that she was allergic to the medication prescribed to her by her doctor. In that meeting, Dr.Cheung also discussed with her some other issues relating to her work performance.

40.  On 25 September 1997, Dr. Cheung informed Madam Sit that her employment would be terminated. According to Madam Sit, Dr. Cheung by that time offered her the option of mutual termination so as to avoid the embarrassment of an outright dismissal. Madam Sit indicatedthat she would need time to consider her position. In reply, Dr. Cheung said Madam Sit had to be quick in making the decision. Madam Sit took sick leave on the following day. On 28 September 1997, Madam Sit received a formal letter from the EOC terminating her employment.

41.  It is Madam Sit’s case that she had not been given any reasons for the termination of her employment. After her dismissal, Madam Sit and her solicitors had written a number of times to the EOC requesting for the supply of her personal records and data relating to the termination of her employment. Madam Sit complains that the EOC was in breach of the duties under the Personal Data (Privacy) Ordinance in failing to supply the requested personal data, although all her complaints had been dismissed by the PCO. Her appeals against the decisions of the PCO were also rejected by the AAB.

42.  It is Madam Sit’s case that her employment had been terminated without complying with the Disciplinary Policy and Procedures of the EOC. According to such Procedures, warnings should be given to Madam Sit before the EOC was to terminate her employment.

43.  Madam Sit also claims that as the EOC had no selection criteria for choosing the appointee for Acting Chief Executive, the Defendants were in breach of the Code of Practice on Employment under the SDO issued by the EOC itself and were therefore guilty of sex discrimination.

44.  Relating to the 9 Incidents in support of the Defendants’ allegation of persistent sub-standard work performance, Madam Sit denies each and every single one of them. For the purpose of this judgment, I do not see it necessary to set out Madam Sit’s reply to all these allegations. At the trial, the parties focus on the following two incidents: (i) failure on the part of Madam Sit to review all the files herself under the case review exercise and the poor quality of the review; and (ii) failure on the part of Madam Sit to supervise the CCHS project properly. Hence I will just set out briefly Madam Sit’s reply relating to these incidents.

45.  In respect of the case review exercise, Madam Sit agrees that it served as a quality control exercise and so she, as the Director of the Gender Division, should have reviewed all the files herself. However, it was her understanding by that time that she only need to review the files of the “active” cases, and so she restricted the exercise to those files. When the defence counsel cross-examines her on the evidence showing that it was her subordinate Madam Li Hing Yu Margaret (“Madam Margaret Li”) who had reviewed the files and not Madam Sit herself, Madam Sit cannot explain why she had passed the files to Madam Margaret Li for clarification. Madam Sit also agrees that there was room for improvement on the quality of her review, but she claims that such “mistake” was not serious enough to justify the termination of her employment.

46.  For the CCHS project, Madam Sit claims that the dispute between the EOC and LECCO was whether certain additional work which required to be done was removal of bugs or enhancement. In the case of the latter, LECCO was entitled to charge additional payment under the contract. Madam Sit also says that as she was not a technical person, her subordinate Mr. Li Siu Kwai Joseph (“Mr. Li”), being the co-ordinator of the project, should have handled all the liaison work with LECCO relating to the technical aspects of the project. The contractor was chosen by the senior management of the EOC, and Madam Sit was not responsible for negotiating the terms of the contract. As Madam Ho had given express instruction not to release any money to LECCO until all the bugs in the system were removed, that was why LECCO had not received the outstanding payment and later issuedthe demand letter to the EOC. Further, she was not aware that Mr. Joseph Li had signed the letter of qualified acceptance which gave an excuse to LECCO to demand for outstanding payment. Before the demand for such payment, Madam Sit was not aware of anything went wrong with the project, and she therefore denies that there was inadequate supervision of the projecton her part.

47.  After the termination of her employment with the EOC, Madam Sit was very depressed. She felt that there was loss of face and she could not face her previous colleagues or friends in the legal field. She therefore left Hong Kong and later obtained a job in the United Kingdom in 1999 involving the supervision of the practice of solicitors. Further on 23 December 1997, Madam Sit filed an application for leave for judicial review against the decision to terminate her on the ground of procedural unfairness. The application was refused by the High Court.

48.  During cross-examination, Madam Sit admits the following:

(i)  at the relevant time, there were more female staff than male staff working in the EOC;

(ii)  there was always room for improvement in respect of her work performance in the EOC;

(iii)  it was important for her job to have a good knowledge of various matters relating to gender issues, and after working for about one year in the EOC, she had acquired some knowledge of the gender issues; and

(iv)  there were 2 Chief Equal Opportunities Officers working under her in the Gender Division, namely Mr. Joseph Li and Madam Margaret Li, but she recommended Mr. Joseph Li and not Madam Margaret Li to act as the Director (Gender) every time when she was absent from  office.

49.  Madam Sit maintains that she welcomed criticisms in respect of her work performance, though she cannot remember one single instance where she accepted the criticisms from others relating to her work.

50.  Madam Sit accepts that it was important for her job to maintain good working relationship with her subordinates. After the termination of her employment, Madam Sit learnt that nearly all the staff in the Gender Division had written a memo to Madam Ho on 11 September 1997 complaining about her poor work performance and attitude (“the 911 Memo”). However during the term of her employment, Madam Sit did not sense that there was any dissatisfaction among her subordinates relating to her work performance. According to Madam Sit, she had all along had a good working relationship with her subordinates, and she did not expect her subordinates to lodge a complaint against her.

51.  By reason of the aforesaid conducts on the part of the Defendants, Madam Sit maintains that she had been subjected to unlawful sex and disability discrimination, disability harassment and sex discrimination by way of victimisation during the term of her employment.

(ii)  Dr. Arthur Chiang Si Chung

52.  The second witness for Madam Sit’scase is Dr. Arthur Chiang Si Chung, whose witness statement has been admitted as evidence without the necessity of calling Dr. Chiang to testify himself.

53.  Madam Sit was examined by Dr. Chiang in his clinic on 21 July 1997. According to the medical records, Madam Sit by then had 2 months’ history of acute right neck and shoulder pain. There was also distending feeling in the right arm in the mornings. Madam Sit also gave a history of drug sensitivity to penicillin. After the prescription of certain medication, Madam Sit called back and complained that there was swelling in her eyelids. Dr. Chiang therefore changed the medical prescription for Madam Sit.

54.  At the commencement of the trial, Madam Sit has also applied to adduce medical evidence by one Dr. Lam Tat Chung Paul, who is of the view that Madam Sit was suffering from anxiety and other depressive symptoms some time in 1997. However, as Madam Sit had not raised such allegation in any of the pleadings or witness statements and there was a time lapse of about 12 years between the termination of Madam Sit’s employment and the trial, I do not consider it appropriate to grant leave to adduce new medical evidence at such a late stage of the proceedings. The details of my reasoning can be found in my Ruling given on 9 November 2009.

Evidence in support of the Defendants’ case

(i)  Dr.Cheung

55.  The first witness for the Defendants’ case is Dr. Cheung. She has a very impressive curriculum vitae. She was trained as a psychologist with a Ph.D from the University of Minnesota. Dr. Cheung has been teaching in the Chinese University of Hong Kong since 1977 and she is now the Chairperson and Professor of the Department of Psychology. She has received various awards for her contributions to the community.

56.  Dr. Cheung was the first chairperson appointed for the EOC. In 1996, she had to set up the structure of the EOC and to recruit its senior management staff. As Madam Sit had no previous experience in dealing with gender issues, she was recruited only in the second round of the recruitment exercise. It was expected that she could acquire more knowledge on the gender issues whilst working on the job.

57.  The workload of the EOC was extremely heavy in the first year of operation. There was pressure for the implementation of the Codes of Practice on Employment and work of the EOC had attracted a lot of media attention by that time.

58.  The daily administration of the EOC was headed by Madam Ho who was the Chief Executive. There were 2 respective operational divisions in the EOC which were headed by the Director (Gender) and the Director (Disability). Other directorate staff included Madam Papadopoulos as the Legal Adviser and Mr. Chan Yick Man Michael (“Mr. Chan”) as the Director (Planning and Administration). Being a small organisation entrusted with heavy duties, Dr. Cheung expected all the senior staff to work on their own.

59.  Madam Ho was on leave for about 2 months during the probation period of Madam Sit, and so she did not have a lot of opportunities of evaluating the work performance of Madam Sit. By that time, Dr. Cheung noted that Madam Sit did not contribute much in meetings, but in Dr. Cheung’s view, that was not sufficient to deny the confirmation of Madam Sit’s employment. Further, all the staff of the EOC were overwhelmed with heavy workload in the first few months of operation, and so Dr. Cheung did not pay much attention to evaluate the work performance of individual staff.

60.  After working together for more time, Dr. Cheung began to find that Madam Sit was not competent for her job. Apart from the 9 Incidents showing the persistent sub-standard performance, Dr. Cheung found that:

(i)  the draft speeches prepared by Madam Sit’s division were sub-standard;

(ii)  Madam Sit had very little contributions in meetings; and

(iii)  Madam Sit was not good at generating ideas, in particular in matters concerning gender researches.

61.  As mentioned above, the senior management of the EOC was very concerned when the contractor for the CCHS project, LECCO, sent a demand letter to the EOC on 3 September 1997. On 9 September 1997, there was a heated exchange between Madam Ho and Madam Sit about the latter’s performance in supervising the CCHS project. In this regards, Dr. Cheung agreed with Madam Ho that that the work performance of Madam Sit, whether in respect of the supervision of the CCHS project or otherwise, was not up to standard.

62.  By reason of the poor work performance, Dr. Cheung and Madam Ho made the provisional decision to terminate the employment of Madam Sit in early September 1997. Apart from the work performance, they took the view that Madam Sit had no self-awareness of her own weaknesses and areas of deficiency. Furthermore, Madam Sit was not receptive to feedback and she could become hostile when someone pointed out the problems to her or criticised her work performance. According to them, Madam Sit was a senior staff and her poor work performance and attitude would seriously affect the daily operation of a small institution like the EOC.

63.  On 11 September 1997, Madam Ho received the 911 Memo from nearly all the staff in the Gender Division (9 out of 10) who lodged a complaint against poor work performance and attitude of Madam Sit. However according to Dr. Cheung, the decision to terminate Madam Sit’s employment had already been made by that time and so the 911 Memo did not contribute to Madam Sit’s dismissal.

64.  On 24 September 1997, the Administration & Finance Committee of the EOC (“the A & F Committee”) had a special meeting to discuss the termination of Madam Sit’s employment. During the meeting, Dr. Cheung made a verbal report of the poor work performance of Madam Sit including the 5 Areas of Deficiency. After hearing the report, the members of the Committee made the decision to recommend the termination of Madam Sit’s employment. In the 9^th meeting of the EOC held on the following day, the EOC accepted the said recommendation of the A & F Committee.

65.  Dr. Cheung therefore met Madam Sit on the same day in the presence of Mr. Chan. During that meeting, Dr. Cheung informed Madam Sit that her employment would be terminated with immediate effect. When Madam Sit asked her about the reasons of termination, Dr. Cheung told her generally that there were problems with her management of case files, staff management and insufficient knowledge of gender issues. Dr. Cheung offered her the option of mutual termination of employment to avoid the embarrassment of an outright dismissal. Madam Sit said she would need time to consider the matter. Dr. Cheung asked her to give the reply before noon on the following day i.e. 26 September 1997, but Madam Sit failed to give any reply before such time.

66.  By reason of the previous exchange of memos and oral discussions between Madam Sit and the other senior staff of the EOC, Madam Sit should have been aware of the criticisms against her regarding her work performance. As Madam Sit refused to acknowledge these criticisms, Dr. Cheung considered that further written warning would not serve any particular purpose. Madam Sit’s employment was therefore terminated without any further warnings.

67.  In specific reply to the claim on disability discrimination and harassment, Dr. Cheung says that the amount of sick leave taken by Madam Sit was by no means exceptional and she was not aware that Madam Sit was suffering from any significant disability by that time. Further, Madam Sit did not mention anything about her disabilities, whether in the meeting on 9 September 1997 or on any other occasions. Hence, the treatments received by Madam Sit had nothing to do with her alleged disabilities.

68.  Regarding the claim on sex discrimination, Dr. Cheung says that the selection of appointee for acting post was based on merits only. As Mr. Tong had significant previous government experience as an Administrative Officer, acting appointment was offered to Mr. Tong. When Madam Ho was on leave in March 1997 and Mr. Tong was not available for acting appointment because of his attendance at the Tsing Hua course, Dr. Cheung selected Madam Papadopoulos to be the acting Chief Executive as, by that time, she had doubt about Madam Sit’s ability to manage the whole office and to make important decisions regarding the administration of the EOC. In a meeting the date of which Dr. Cheung cannot now recall, Madam Sit did ask for an opportunity of acting appointment. By that time, Dr. Cheung indicated that acting appointment was made based on merits only and not by rotation. She denies that Madam Sit had ever accused the EOC of sex discrimination if she was denied the opportunity of acting up.

69.  In respect of the complaint of not able to attend the Tsing Hua course, Dr. Cheung says that it would have been bad for the management to let both directors of the operational divisions to attend the course at the same time. In any event, it was planned that the remaining senior staff, including Madam Ho and Madam Sit, would attend the course to be organised in the following year. About the overseas conference, Mr. Tong was asked to attend the conference in Seoul because that conference was about disability issues which were directly relevant to the job of Mr. Tong. In fact, Madam Sit attended an earlier overseas conference in Miami which related to gender issues.

70.  Madam Sit had made a number of complaints against Mr. Tong and Madam Papadopoulosfor their alleged poor work performance. Upon investigation by some members of the EOC, all these complaints were found to be unsubstantiated. Dr. Cheung herself also disagrees with such complaints. In particular, Madam Papadopoulos was working on other more pressing issues by that time, and so Dr. Cheung did not consider that there was any delay on her part in preparing the EOC’s written policy on data protection. When Dr. Cheung is asked in cross-examination that she was more demanding on Madam Sit than the other senior staff, she replies that Madam Sit was the least competent amongst the 5 directorate staff of the EOC.

(ii)  Madam Ho

71.  Madam Ho was the Chief Executive of the EOC at the relevant time. She joined the EOC in October 1996 and retired in September 1999. Before joining the EOC, Madam Ho had been working in the Labour Department for 28 years, and she therefore had extensive experience in labour administration and was conversant with the various labour legislations. She was the Assistant Commissioner for Labour before leaving the Labour Department in September 1996.

72.  During the probation period of Madam Sit, the senior staff of the EOC were overwhelmed with a lot of pressing issues. Coupled with the fact that Madam Ho was absent from office for about 2 months, Madam Ho did not have a lot of opportunity in assessing the individual work performance of Madam Sit. However, Madam Sit’s shortcomings became more apparent after the first 6 months of her work.

73.  As the task of the EOC is to educate the general public to eliminate discrimination, the Director of the Gender Division should have had a good understanding of the law and various matters relating to sex discrimination. Unfortunately, she found Madam Sit to be incompetent for her job.

74.  As her direct supervisor, Madam Ho confirms the particulars of Madam Sit’s poor performance as pleaded in the Defendants’ case. In summary, Madam Ho found that Madam Sit had inadequate knowledge about various matters relating to her job, her preparation for meetings was poor, she seldom made any contributions in meetings, her preparation for the visit by the All China Federation of Women was sub-standard, her communication with the staff was poor, the quality of her written work was unsatisfactory and she required a lot of guidance in respect of her work. Madam Ho was particularly embarrassed when Madam Sit was performing badly in answering questions in one of the public seminars held in May 1997. According to Madam Ho, such poor performance would seriously affect the public image of the EOC.

75.  Madam Ho was also disappointed with the performance of Madam Sit in the case review exercise. According to Madam Ho, such exercise served as a quality control exercise and so it was important for the most senior staff, ie. the Directors of the two operational divisions, to review all the files whether they were active or not. She had given express instruction to Madam Sit, and to Mr. Joseph Li when Madam Sit was absent from office, that the Director (Gender) should review all the files of her Division. Unfortunately, Madam Sit did not review the “non-active” files. Apart from that, she delegated the task of reviewing the files to her subordinates, there was delay in the completion of the exercise and the quality of the evaluation was sub-standard. Madam Ho voiced out her dissatisfaction in the memos exchanged between the parties. On the other hand, Mr. Tong completed his task for the files in the Disability Division in a satisfactory manner.

76.  Madam Sit’s supervision of the CCHS project was also inadequate and sub-standard. She delegated the duty of supervision to her subordinates, and she had very limited knowledge about the development of the project. Although she agrees that Madam Sit might not be a technical person, it was still her overall responsibility to supervise the project. Madam Ho also denies that she had given express instruction not to release the payment to LECCO until all the bugs in the system were removed.

77.  By reason of her poor work performance, Madam Ho had the idea of terminating Madam Sit’s employment in early September 1997. In a meeting on 9 September 1997 with Madam Sit and Dr. Cheung, Madam Ho voiced out her criticisms against Madam Sit’s performance relating to the supervision of the CCHS project. By that time, Madam Sit was very defensive and rejected the criticisms. There was then a heated exchange between them.

78.  As Madam Sit always failed to take ownership of her responsibility and to acknowledge her shortcomings, Madam Sit posed a serious management problem to the EOC. Madam Ho therefore recommended the termination of Madam Sit’s employment, and she was eventually dismissed in the manner as set out in the evidence of Dr. Cheung.

79.  Madam Ho agrees that one single incident might not have justified the termination of Madam Sit’s employment. However, the 9 Incidents taken as a whole show that Madam Sit’s work performance was persistently sub-standard.

80.  Madam Ho also disagrees that the work performance of Mr. Tong or Madam Papadopoulos was unsatisfactory or in any way sub-standard. Though with the benefit of hindsight, she could have pressed Madam Papadopoulos to prepare the EOC’s written policy on data protection earlier but they were all overloaded with works by that time. Madam Ho acknowledges that it was her fault that the written policy was not available at an earlier time.

81.  On 11 September 1997, Madam Ho received the 911 Memo signed by nearly all the subordinate staff in the Gender Division. In the Memo, the staff made the following complaints about the poor work performance of Madam Sit:

(a)  inadequate knowledge of the various matters relating to her work;

(b)  poor communication with staff;

(c)  constant delegation of her own responsibilities to her subordinates;

(d)  insufficient guidance given to her subordinates relating to the work assigned to them;

(e)  providing incorrect information to her superior; and

(f)  her attitude towards the subordinates had sometimes been outrageous.

82.  After receiving the Memo, Madam Ho interviewed each of the complainants and made a record of such interviews. She gathered from these interviews that the staff had to summon up a lot of courage to put their complaints in writing.

83.  As Dr. Cheung decided to terminate Madam Sit’s employment, Madam Ho did not proceed with the investigation of the complaints in the 911 Memo. In a meeting with the staff of the Gender Division on 29 September 1997, Madam Ho informed the staff that the investigation of the complaints was by then superseded by the termination of Madam Sit’s employment. Hence, Madam Ho would not proceed with the investigation of the complaints.

84.  With the consent of Dr. Cheung, Madam Ho destroyed the 911 Memo together with the record of interviews with the use of the shredding machine. By that time, Madam Ho did not think about the possibility of litigation, and to her, there was simply no purpose in keeping the 911 Memo. She was also concerned about the possible leakage of information which might affect the reputation of Madam Sit. After the Memo was destroyed, a copy of that document later re-emerged when the Defendants were preparing for the exchange of witness statements. Madam Ho herself does not know how the EOC was later able to locate a copy of the document.

85.  Apart from taking some usual sick leave, Madam Ho was not aware that Madam Sit was suffering from any of the disabilities alleged in the pleadings.

86.  Madam Ho confirms various other aspects of the evidence of Dr. Cheung, in particular that relating to the selection of the appointees for acting appointments and the staff for attending overseas conferences and training courses. Further, given the negative attitude of Madam Sit as shown in the previous incidents, Madam Ho considered that it did not serve any purpose in issuing further warnings to Madam Sit before terminating her employment. She also considered that as Madam Sit’s work performance had all along been sub-standard, prior warning was not necessary under the Disciplinary Policy and Procedures of the EOC.

(iii)  Mr. Tong

87.  Mr. Tong was the Director of the Disability Division of the EOC at the relevant time. Before joining the EOC, he had been working as an Executive Officer in the Government for 3 years, an Assignment Officer in the ICAC for 2 years and an Administrative Officer in the Government for 10 years. In 1991, he left the Government and joined the Hong Kong Aid Foundation as the Executive Secretary, the post of which was later renamed as the Chief Executive. He joined the EOC as the Director of the Disability Division in September 1996.

88.  Mr. Tong’s testimony adds very little to what has already been covered in the evidence of the other witnesses. He nevertheless confirms that Madam Sit seldom contributed in meetings, and at least at one meeting, Dr. Cheung expressed her dissatisfaction about the work performance of Madam Sit. In respect of the case review exercise, he confirms that he had personally reviewed all the complaints files of the Disability Division by that time, whether they were “active” files or not. He denies that his work performance was sub-standard.

(iv)  Madam Papadopoulos

89.  Madam Papadopoulos was the Legal Adviser of the EOC at the relevant time. She was qualified as a practising lawyer in Victoria of Australia in 1983. After that, she had been working in various criminal prosecution authorities in Australia specialising in fraud and drug trade cases. She was recruited to work in the Commercial Crime Unit of the then Attorney General’s Chambers in 1992. She joined the EOC as the Legal Adviser in September 1996.

90.  As a lawyer, she found that Madam Sit’s understanding of the law was not solid, in particular that relating to the investigation power of the EOC. Madam Sit’s knowledge about women’s issues was also inadequate. Madam Sit seldom had any discussion with her relating to the work in the Gender Division.

91.  At the trial, Mr. Aiken indicates to me that Madam Sit does not seek to challenge the work performance of Madam Papadopoulos. Despite that, Madam Sit made a lot of references to the alleged poor work performance of Madam Papadopoulos in her witness statements (though not in the pleadings), hence quite understandably, Madam Papadopoulos considers it necessary for her to make a reply to these allegations.

92.  Madam Papadopoulos denies that her work performance was sub-standard. However, she frankly admits that she made some typing mistakes in preparing documents. She was also partly responsible for the delay in preparing the written policy on data protection, although she had to deal with other more pressing issues by that time. Further, she could not work on the policy alone as she need to consult others on the formulation of the policy.

93.  Regarding the CCHS project, Madam Papadopoulos was surprised with the demand letter from LECCO’s solicitors. According to Madam Papadopoulos, Madam Sit should have approached her earlier for legal advice in order to resolve the differences between the parties. When she attempted to deal with the issue, she found that there were very little documents in the project file, which showed that there was inadequate supervision on the project on the part of Madam Sit. When she approached Madam Sit to clarify certain matters, Madam Sit alwayssought assistance from her subordinates. Given the limited information supplied to her, Madam Papadopoulos denies that her handling of the legal aspects of the project was poor.

94.  In any event, Madam Sit had lodged a complaint with the A & F Committee on 9 February 1998 against the alleged poor work performance of Madam Papadopoulos. Upon investigation by 2 members of the EOC, the complaint was found to be unsubstantiated.

95.  During the relevant period, Madam Papadopoulos was suffering from some kind of unknown illness. She usually had fevers in the mornings, there was arching in the joints and she felt either cold or hot most of the time. She usually felt exhausted after experiencing all such symptoms. She had been examined by doctors quite a number of times with no satisfactory explanation of her sickness. By reason of all these, Madam Papadopoulos had to take sick leave from time to time. Most of the staff working in the EOC knew about her sickness.

96.  Regarding the 911 Memo, it was not disclosed in the Defendants’ first list of documents as the relevant file had been destroyed in 1997 and it was the view of the EOC that the 911 Memo did not contribute to the termination of Madam Sit’s employment. Such document did not come to light again until the staff of the EOC were being interviewed for the purpose of preparing witness statements for the present proceedings. In the process of doing so, a copy of the 911 Memo was anonymously sent to the Legal Division of the EOC. Apparently, one of the staff of the Gender Division might have kept a copy of the Memo, and sensing that such document might be relevant to the proceedings, a copy of the Memo was sent to the Legal Division. The Defendants then disclosed such document in a supplemental list of documents.

(v)  Mr. Chan

97.  Mr. Chan was the Director of the Planning and Administration Division of the EOC at the relevant time, and his work mainly involved office administration and human and financial resources management within the EOC.

98.  According to the personnel records of Madam Sit, she only took 3.5 days of sick leave during the term of her employment.

99.  When Madam Sit’s employment was terminated, she was paid 3 months of salary in lieu of notice and other statutory entitlements.

100.  Mr. Chan confirms Dr. Cheung’s evidence about what had happened in the A&F Committee meeting on 24 September 1997, the 9^th meeting of the EOC on 25 September 1997 and the meeting between Dr. Cheung and Madam Sit on the same day.

101.  By the issuance of a formal memo by Mr. Chan on 19 September 1997, the Procedures for Handling Complaints and Grievances from EOC Staff and the Disciplinary Policy and Procedures of the EOC were implemented on the same day. Prior to the meeting of the A & F Committee on 24 September 1997, Mr. Chan made a suggestion about the giving of warning when he learnt about the possible termination of Madam Sit’s employment. By that time, Madam Ho told him that, given Madam Sit’s adverse reactions to the negative comments about her work, it was unlikely that she would respond positively to a written warning or that she would improve her work performance based on such warning. Hence she considered that there was no point in issuing further warning to Madam Sit. In any event, the Disciplinary Policy and Procedures provided that it was not necessary to give warning to an employee before termination of employment in the case of persistent sub-standard work performance.

(vi)  Mr. Joseph Li

102.  Mr. Joseph Li was the Chief Equal Opportunities Officer working in the Gender Division at the relevant time and Madam Sit was his immediate superior. Prior to joining the EOC in September 1996, he had been working in the Labour Department for about 20 years up to the post of Senior Labour Officer.

103.  Apart from taking some usual sick leave, he was not aware that Madam Sit was suffering from any disability.

104.  Mr. Joseph Li’s evidence is mainly about 2 areas: (i) his role in the handling of the CCHS project; and (ii) the work performance of Madam Sit.

105.  Regarding his work in the CCHS project, he was mainly involved in the liaison work between the EOC and the contractor LECCO. By that time, there were also other staff in the EOC assisting him. Although Madam Sit was his immediate supervisor in the project, she took very little interest in the project herself. No guidance was given by Madam Sit and all the major decisions were made by the working group on the project and not Madam Sit. Before Mr. Joseph Li signed the User Acceptance Test form which formed the basis for the demand of the outstanding payment by LECCO, he had consulted Madam Sit who raised no objection to the same.

106.  Regarding his observation of the work performance of Madam Sit, Mr. Joseph Li mainly confirms the contents of the complaint mentioned in the 911 Memo and the other areas of deficiency mentioned in the evidence of the other Defendants’ witnesses.

107.  By reason of the lack of leadership and incompetence on the part of Madam Sit, the morale of the staff in the Gender Division was extremely low in September 1997. The staff therefore lodged a complaint against Madam Sit as contained in the 911 Memo, and he was one of signatories of that Memo. After the termination of Madam Sit’s employment in late September 1997, the staff, at least implicitly, agreed to withdraw the complaint as the same was superseded by the termination of Madam Sit’s employment.

(vi)  Madam Margaret Li

108.  As Madam Margaret Li is now residing in Vancouver in Canada, she is testifying at the trial through video-link facility.

109.  Madam Margaret Li was the other Chief Equal Opportunities Officer working in the Gender Division at the relevant time. After serving in the Police Force for about 17 years, she joined the EOC in October 1996.

110.  Apart from taking some usual sick leave, she was not aware that Madam Sit was suffering from any disability.

111.  Madam Margaret Li’s evidence is mainly about 2 areas: (i) the work performance of Madam Sit; and (ii) her role in the case review exercise.

112.  Regarding her observation of the work performance of Madam Sit, Madam Margaret Li confirms the contents of the complaint mentioned in the 911 Memo and the other areas of deficiency mentioned in the evidence of the other witnesses.

113.  For the case review exercise, Madam Sit assigned Madam Margaret Li and Mr. Joseph Li to review the files in the Gender Division. At that time, they found it strange because they were being asked to review their own work. They completed the task as requested.

114.  Some time in August or September 1997, Madam Sit did mention to Mr. Joseph Li and herself that the time had come for the senior management of the EOC to do something against Madam Sit. By that time, Madam Sit gave a lot of instructions to them on the voice mail even on some trivial and non-urgent matters. Madam Li believes that the reason for Madam Sit in doing so was to try to protect herself against any allegation of unsatisfactory work performance.

(viii)  Madam Tse Miu Ling Dora

115.  Madam Tse was the personal secretary of Madam Sit at the relevant time, and the parties agree for her witness statement to be admitted as evidence without the necessity of calling her to testify at the trial. Her evidence is only relevant to the extent of determining the amount of actual sick leave taken by Madam Sit. According to the personal diary of Madam Sit as kept by Madam Tse, the former might have taken some more days of sick leave than the number shown in her personnel records. However as illustrated in the latter part of this judgment, it is not necessary for me to resolve the factual dispute as to the exact number of days of sick leave taken by Madam Sit at the relevant time.

The relevant statutory provisions

116.  Having dealt with the evidence of the witnesses, I then turn to the legal principles involved in this case which are mainly undisputed.

117.  I first set out the statutory provisions relevant to the claims. Madam Sit is making two claims under the DDO, namely disability discrimination and harassment. The statutory provisions relating to these two claims apply in the context of employment relationship. For our present purposes, ss. 11(2), 22(2) and 22(3) of the DDO are relevant:

“11(2) It is unlawful for the employer, in the case of a person with a disability employed by him at an establishment in Hong Kong, to discriminate against that person –

  ………

  (c)  by dismissing that person, or subjecting him to any other detriment.

  ………

  22(2)  It is unlawful for a person, in the case of a person with a disability employed by him at an establishment in Hong Kong, to harass that second-mentioned person.

(3)  It is unlawful for a person who is employed by another person at an establishment in Hong Kong to harass a third person with a disability who isseeking to be, or who is, employed by that second-mentioned person.”

118.  Further, according to the statutory framework in the DDO, there are two kinds of discrimination: direct and indirect discriminations which are defined in ss. 6(a) and 6(b) respectively. In our present context, Madam Sit is relying on “direct discrimination” which is defined in s. 6(a) as follows:

“6.  A person discriminates against person in any circumstances relevant for the purposes of any provision of this Ordinance if –

(a)  on the ground of that other person’s disabilityhe treats him less favourably than he treats or would treat a person without a disability;

  ………” (emphasis added)

119.  In determining the issue of direct discrimination, s. 6(a) requires the court to compare the treatment of the complainant and that would be received by another person without disability. In this regard, s. 8 provides:

“A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

120.  On the other hand, “harassment” is defined in s. 2(6) of the DDO:

“For the purposes of this Ordinance, a person (howsoever described) harasses another person if that first-mentioned person engages in unwelcome conduct (which may include an oral or written statement)on account of that second-mentioned person’s disability, ……in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the second-mentioned person would be offended, humiliated or intimidated by that conduct.” (emphasis added)

121.  Madam Sit’s claims under the SDO are sex discrimination and discrimination by way of victimisation. Again the statutory provisions relating to sex discrimination apply in the context of employment relationship:

“s. 11(2)  It is unlawful for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her –

(a)  in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them;

(b)  in the terms of employment he affords her; or

(c)  by dismissing her, or subjecting her to any other detriment.”

122.  So far as the claim for sex discrimination is concerned, Madam Sit is also relying on “direct discrimination” as defined in s. 5(1) of the SDO:

“s. 5(1)  A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if-

(a)  on the ground of her sexhe treats her less favourably than he treats or would treat a man; or

………” (emphasis added)

123.  Like the provisions in the DDO, the SDO allows for a comparator to be used for the purpose of determining whether the treatment received by the complainant is less favourable:

“s. 10  A comparison of the cases of persons –

(a)  of different sex under section 5(1);

    ………

shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

124.  On the other hand, sex discrimination by way of victimisation is defined in s. 9 of the SDO:

“s. 9(1) A person (“the discriminator”) discriminates against other person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (“the third person”) has –

(a)  brought proceedings against the discriminator or any other person under this Ordinance;

(b)  given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;

(c)  otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or

(d)  alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance,

or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the person victimised or the third person, as the case may be, has done, or intends to do, any of them.

(2)  Subsection (1) shall not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

………”

Person under disability

125.  There are a few legal issues which are relevant in determining liability in the present case.

126.  Before Madam Sit can succeed in her claim on disability discrimination and harassment, she must be able to prove that she was a person under disability at the time when she worked in the EOC. “Disability” is defined in s. 2(1) of the DDO to mean:

“2(1) (a)  total or partial loss of the person’s bodily or mental functions;

  (b)  total or partial loss of a part of the person’s body;

(c)  the presence in the body of organisms causing disease or illness;

(d)  the presence in the body of organisms capable of causing disease or illness;

(e)  the malfunction, malformation or disfigurement of a part of the person’s body;

(f)  a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)  a disorder, illness or disease that affects a person’s thought process, perception of reality, emotions or judgment or that results in disturbed behaviour,

and includes a disability that –

(i)  presently existed;

(ii)previously existed but no longer exists;

(iii)  may exist in the future; or

(iv)  is imputed to a person.”

127.  It is a very wide definition as observed by HH Judge Muttrie in paragraphs 38 and 44 of his judgment in L v. Equal Opportunities Commission, unreported, DCEO 1 & 6 of 1999 (decision on 13 November 2002):

  “38.  …… The definition in section 2 seems to allow for any partial loss of bodily or mental function, however insubstantial and however temporary, to be regarded as a disability.  Further, the origin of the loss of function seems to be irrelevant.  So, if a doctor found a loss of bodily or mental function it would follow that for the purposes of the DDO there was a disability.  Alternatively, if the doctor found a disorder, illness or disease that affected the plaintiff’s thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour it would follow that there was a disability.

    ………

  44.  …… As I have indicated the definition of disability is very wide.  Just about anything will do.  The loss of function or the effect of the disorder on thought process or emotions need not be substantial or long-term.  The way is open for claims based on minor and temporary disability which a really disabled person, such as a paraplegic, would no doubt find ludicrous; but that is the way the legislation is drawn.”

128.  According to Madam Sit, she was suffering from serious neck and shoulder pain in the relevant period from May to September 1997. Her testimony is also supported by the evidence of Dr. Arthur Chiang who was her then treating doctor. By reason of the wide statutory definition of the term “disability”, I accept that Madam Sit was, at the material time, a person under disability under the provisions of the DDO.

The use of comparators

129.  As mentioned above, in the case of direct discrimination under the SDO and the DDO, the law requires a comparator against whom the conduct applied to the complainant is measured. In his opening submission, Mr. Aiken submits that the proper comparators for the claims under the DDO and the SDO should be Madam Papadopoulos and Mr. Tong respectively.

130.  In my judgment, they are not the appropriate comparators. The treatments received by Madam Sit might have been different from those applied to the two suggested comparators. However, their jobs and responsibilities were different from those of Madam Sit and their working abilities might not be the same. In such circumstances, there might be a lot of different reasons as to why they were treated differently, and so in my judgment, Madam Papadopoulos and Mr. Tong are not the appropriate comparators.

131.  The identification of an appropriate comparator may sometimes cause unnecessary complication, and one of the examples is the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. In that case, the applicant was a chief inspector of the respondent chief constable’s police force. Under the force’s staff appraisal scheme, annual reports on constables were to be completed by superintendents, but in practice chief inspectors, including the applicant, did them. Following complaints by two constables about the applicant’s appraisals, and a meeting with the representatives of the Police Federation, the applicant’s superintendent decided to do the appraisals himself. The applicant objected that the two male chief inspectors in the other two divisions were still doing the appraisals, and so she complained to an industrial tribunal that she was being unlawfully discriminated against on the ground of her sex. The tribunal concluded that she had been unfavourably treated and, by a majority, that she had been discriminated against on the ground of her sex. The Court of Appeal in Northern Ireland allowed the appeal by the chief constable on the ground that no detriment had been established. The decision was affirmed by the House of Lords but on different grounds.

132.  In respect of the identification of an appropriate comparator, the House of Lords held that the circumstances of the applicant’s case were different from those of the two male chief inspectors in that no complaint or representation had been made about their performance of the appraisals, and so the two male chief inspectors were not valid comparators for the purpose of the Sex Discrimination (Northern Ireland) Order 1976. The House of Lords nevertheless accepted that a comparator might be a hypothetical one and the lack of an actual comparator was not fatal to the applicant’s claim. However, the findings of fact did not support the conclusion of the majority of the industrial tribunal that the applicant had been treated less favourably because she was a woman and so it affirmed the decision of the Court of Appeal.

133.  The relevant statutory provisions in the Shamoon case are similar to those in our SDO and DDO. Regarding the proper approach to be adopted by the court in such kind of circumstances, Lord Nicholls of Birkenhead said the following:

“ 7.  ……… When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the ‘reason why’ issue).  Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant.  Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

8.  No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  The two issues are intertwined.

9.  ……… She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not.  This might be the reason why she was treated as she was.  This might explain why she was relieved of her responsibilities and they were not. ………

  ………

11.  This analysis seems to me to point to the conclusion that employments tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”

134.  I cannot agree more with the aforesaid observations made by His Lordship. As I see it, Madam Sit was taking up a senior post in the EOC with great responsibilities. As most of the senior staff of the EOC had doubt whether Madam Sit was competent for her job, the identification of an appropriate comparator would be difficult in the circumstances and the exercise may cause more unnecessary confusion. As suggested by Lord Nicholls in the Shamoon case, instead on finding an appropriate comparator, I should concentrate on the factual inquiry as to why Madam Sit was treated in the way as she was. In fact, all the parties here agree that this should be proper approach for this court.

The “reason why” or causation issue

135.  Obviously, the central question I have to decide is whether the termination of Madam Sit’s employment and the other treatments received by her were due to the unlawful discrimination, victimisation or harassment as claimed by Madam Sit, or that the same were caused by Madam Sit’s persistent sub-standard work performance or some other reasons as maintained by the Defendants.

136.  The task facing this court is very similar to that before HH Judge Saunders, as he then was, in Chang Ying Kwan v Wyeth (HK) Limited [2001] 2 HKC 129. In the Wyeth case, shortly after the plaintiff gave notice of pregnancy to the defendant who was her employer, the plaintiff was forced to resign. The plaintiff refused and complained to the EOC. Thereafter the plaintiff was refused salary increase and reporting requirements were imposed on her. She also felt pressurized at work. As a result, she made internal complaints which she alleged that the defendant had mishandled. After the plaintiff returned to work from maternity leave, her situation did not improve and she felt compelled to resign. After her resignation, the plaintiff claimed both pregnancy discrimination and discrimination by way of victimisation. She further argued that she was constructively dismissed.

137.  The defence was that all the steps complained of by the plaintiff were taken in order to properly monitor her work and because she did not have the appropriate competence for her position. The fact of the plaintiff’s pregnancy was a mere coincidence. The defendant gave evidence that the other pregnant employees were not treated less favourably.

138.  Like the situation here, the Wyeth case was fought mainly on the facts and there was no major dispute as to the law or principles to be applied. That was the first case in Hong Kong based on pregnancy discrimination. After carefully considered all the facts in the case, Judge Saunders found that the defendant was liable for unlawful pregnancy discrimination and discrimination by way of victimisation.

139.  Although the case was fought mainly on the facts, the following legal propositions can be found in the judgment. Firstly, in cases of direct discrimination, the approach to determining whether there is less favourable treatment on the prohibited ground is the “but for” test enunciated by the House of Lords in R v Birmingham City Council, ex parte the EOC [1989] AC 1155, and James v Eastleigh Borough Council [1990] 2 AC 751. The same test is applied in cases of victimisation: see Nagarajan v London Regional Transport [2000] 1 AC 501. The test is an objective one, and a subjective or conscious intention or motive to discriminate is not a necessary condition of liability.

140.  Secondly, in respect of the burden of proof in discrimination and victimisation cases, it is unusual to find direct evidence of discrimination, and discrimination usually depends upon what inferences it is proper to draw from the primary facts. In his judgment, Judge Saunders also approved the following dicta of Neill LJ in King v GB-China Centre [1992] ICR 516 at 528 (which was a case concerning racial discrimination in the United Kingdom):

“Though there will be some cases where, for example, the normal selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  In such circumstances the Tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds.  This is not a matter of law, but, as May LJ put it in North West Thames Regional Health Authority v Noone [1988] ICR 813 at 822 ‘almost common sense’.”

141.  Thirdly, to assist a plaintiff in overcoming the difficulty of discharging the burden of proof, s. 4 of the SDO provides:

“s. 4  If-

(a)  an act is done for 2 or more reasons; and

(b)  one of the reasons is the sex, martial status or pregnancy of a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Ordinance, the act shall be taken to be done for the reason specified in paragraph (b).”

Similar provision can be found in s. 3 of the DDO.

142.  However, Judge Saunders held that s. 4 of the SDO cannot assist a plaintiff where the discrimination complained of is by way of victimisation. In a claim of such nature, the plaintiff must establish that at least one of the four facts set out in s. 9(1)(a) to (d) of the SDO was within the knowledge of the defendant at the time he carried out the acts complained of. Once that is established, in the absence of an adequate or satisfactory explanation, the plaintiff is able to establish victimisation on the balance of probabilities. The burden of establishing that there has been no adequate or satisfactory explanation of the conduct lies upon the plaintiff.

143.  Fourthly, in a case of that nature which involved a lot of complaints and incidents over a long period of employment, the approach to evidence is to look at it in the round, in the context of employment and human relations, and the dignity and rights accorded to a person by equal opportunities legislation: see dicta of Donaldson LJ in Union of Construction and Allied Trades and Technicians v Brain [1981] IRLR 224.

Factual inquiry and the assessment of evidence

144.  I agree with all these propositions of law. But despite the assistance offered by the case law and the statutes, I find that the treatments received by Madam Sit were not in any way caused by any of the prohibited grounds stated in the DDO or the SDO. To substantiate such finding, I need to analysis the evidence in some detail.

145.  The bulk of the evidence relates to the work performance of Madam Sit in the EOC. I do not propose to look finely at every one of the 5 Areas of Deficiency or the 9 Incidents relied upon by the Defendants. Some of the incidents merely reflect that two different legitimate views may be taken of a situation. Some are clear as to right and wrong. Adopting the same approach of Judge Saunders in the Wyeth case, I propose to look at the evidence in the round, considering some of the detail of some of the incidents in this judgment. The fact that I have not dealt in fine detail with an incident does not mean that I have ignored it. I have had regard to the whole of the evidence.

146.  In my judgment, the Defendants’ assessments of Madam Sit’s 5 Areas of Deficiency and the observations of her work performance in the 9 Incidents, whether they were too harsh or not, were all genuine and legitimate assessments of the work performance of Madam Sit. One must bear in mind that the EOC is a relatively small organisation, and being the head of the only two operational divisions in the EOC, the post of the Director of the Gender Division hada heavy responsibility of enforcing the law relating to sex discrimination and investigating all sex discrimination complaints in Hong Kong. Madam Sit also had the duty to supervise the staff and to ensure the smooth operation of the Gender Division. Bearing such responsibilities, good leadership skill and sound understanding of the various gender issues were therefore most important for the job. If Madam Sit was not discharging her duties properly, it would seriously affect the operation of the EOC. In such circumstances, it was quite reasonable for the management of the EOC to have some demands for Madam Sit in respect of her working ability and attitude. Unfortunately, Madam Sit had failed to meet such expectation.

147.  All of the Defendants’ witnesses had long experience of working as administrators or investigators in the public sector. Dr. Cheung, with her previous experience, has clearly demonstrated that she has a deep understanding of various gender and discrimination issues. She also has high aspiration of eliminating all kinds of unlawful discrimination in Hong Kong.

148.  Madam Ho, on the other hand, has impressed me as an experienced, effective and “no non-sense” type of administrator. She gives her evidence in a straightforward manner without any hint of evasiveness. Obviously, she had the heavy responsibility to ensure the smooth operation of the EOC, and she also had to ensure that all the senior management staff of the EOC were discharging their duties properly. She is also willing to admit her own mistakes, for example in failing to ensure that the EOC’s written policy on data protection was ready at an earlier time. With such willingness to admit her own shortcomings, it certainly makes her evidence and assessment more objective and reliable.

149.  Madam Papadopoulos was an experienced lawyer who had previously worked in a number of institutions relating to criminal prosecution work. She also readily accepts responsibility for her fault in respect of the delay in preparing the written policy on data protection. Mr. Tong, Mr. Chan, Mr. Joseph Li and Madam Margaret Li also held senior positions in other institutions before joining the EOC.

150.  These witnesses all made individual negative comments about the work performance and attitude of Madam Sit. Some of these comments were well documented in memos and seminar feedback evaluation forms, and the evidence of the Defendants’ witnesses corroborates against each other. To suggest that these comments were not genuine observations and there was a hidden agenda behind the termination of Madam Sit’s employment, it would virtually mean that all these witnesses were working together, if not conspiring with each other, to get rid of Madam Sit at the material time. In my judgment, this could not have been the case. On the whole, I find all the Defendants’ witnesses to be honest and truthful witnesses.

151.  On the other hand, I find Madam Sit to be an extremely sensitive person. To illustrate the point, one of her complaints is that she was not chosen to attend the overseasconference of “Rehabilitation International” held in Seoul in September 1997. However, it is clear from the evidence that that particular conference was about disability and rehabilitation issues which were directly relevant to the work of Mr. Tong. In such circumstances, it would only have been sensible to send Mr. Tong to attend the conference, and one cannot quite understand why Madam Sit was so aggrieved by such decision. For myself, I am very surprised that such allegation comes from the very person who was formerly in charge of the Gender Division in the EOC.

152.  When Madam Sit is asked about her grievance at the trial, she says that, being the Director of the Gender Division, she should also be given the opportunity to learn more about disability discrimination issues. But in my judgment, this complaint is totally unjustified. It was clearly a sound management decision not to send Madam Sit to attend the conference which was not directly related to her work, and to do otherwise would certainly be considered as a waste of public money. In fact, Madam Sit represented the EOC by herself to attend the Global Summit of Women in Miami in the United States in the period from 7 to 15 January 1997.

153.  I am also surprised by the connotation of such complaint. According to Madam Sit, Mr. Tong had been given “paid leave” to attend the overseas conference. However, overseas duty is not a fringe benefit as alleged by Madam Sit. Overseas visits are funded by public money and an officer attending an overseas conference is actually working during the visit. I do not expect such allegation to come from a former senior administrator working in a public institution.

154.  In his submission, Mr. Aiken has very sensibly agreed that Madam Sit will not rely on such complaint in support of her claim for sex discrimination, but the fact that Madam Sit took a strong view about this particular complaint shows that she lacks objectivity in assessing the treatments received by her. Hence I have grave reservation about the reliability of her evidence.

155.  The same observation can be made about her complaint of not able to attend the Tsing Hua course. The original plan of the EOC was to send all the senior staff to attend the courses, one to be organised in 1997 and the other one in the following year. It was certainly a sound management decision not to send both heads of the operational divisions to attend the course at the same time. Further, out of the 18 delegates to attend the training course in March 1997, 12 of them were females. In such circumstances, I cannot quite understand why Madam Sit can say that the decision to send Madam Ho and her to attend the second course was a decision partly influenced by their gender.

156.  Further, some of Madam Sit’s evidence is based on feeling and suspicion only. One of the clear examples is Madam Sit’s suspicion that Madam Ho had always invited Mr. Tong for discussion relating to the administration of the EOC. In her testimony, Madam Sit admits that her observation is only a mere suspicion without any substantive proof. As I see it, if Madam Sit herself took the initiative and adopted a more co-operative attitude, I am quite sure that Madam Ho, being a responsible administrator, was more than happy to discuss the work with her.

157.  Madam Sit has a very strong feeling that she had been unfairly treated. She complains that there was favouritism shown to Mr. Tong and Madam Papadopoulos, and consequentially she was denied equal opportunities in respect of various matters relating to her employment. In terminating her employment without any prior warnings or opportunity to explain, there was also procedural unfairness in the process. However assuming that these allegations are factually correct, which I have grave reservation, does it mean that the Defendants had discriminated, harassed or victimised her by reason of the proscribed grounds? It might not have been the case. The law does not require an employer to provide equal opportunities to every employee, say, to be given the chance of acting up a more senior post, so long as the decision for choosing the appropriate candidate is not in any way influenced or caused by the prohibited grounds stated in the various anti-discrimination ordinances.

158.  Further, if there was any unlawful discrimination on the part of the Defendants, it is very difficult to understand why Madam Sit, whose work was related to the enforcement of anti-discrimination legislation, had not included such complaint in her application for leave for judicial review lodged on 23 December 1997 and in her complaint letter to the Chairman of the A & F Committee dated 9 February 1998. If she genuinely felt that she had been victimised because of unlawful discrimination, one would expect her to raise such complaint at the first available opportunity, and yet Madam Sit had not done so in the present case. When she is cross-examined at the trial on this particular issue, apart from perhaps feeling depressed by that time, Madam Sit cannot offer any explanation for the omission of such complaint. This certainly casts doubt on the genuineness of her allegation.

159.  I appreciate that it may be very difficult for a complainant to prove that he or she has been unfavourably treated by reason of discrimination. But in my judgment, there is not even one single hint in the evidence which may suggest that the management decisions of the EOC were affected by the proscribed grounds.

160.  So far as the complaints relating to sex discrimination are concerned, the EOC had actually employed more female staff than male staff at the material time, and that was the case even in the senior management level. Madam Papadopoulos was a female staff and she had been selected to act as the Chief Executive for a certain period. Further, Madam Sit had two Chief Equal Opportunities Officers working under her, namely Mr. Joseph Li and Madam Margaret Li, and yet Madam Sit recommended Mr. Joseph Li to be the Acting Director (Gender) every time when she was absent from office. Obviously, such kind of decisions in the EOC were made based on merits and operational needs and not because of the gender of a particular employee. Further, it clearly shows that acting appointment was not based on rotation as alleged by Madam Sit.

161.  In her oral testimony, Madam Sit seems to suggest that the EOC was in breach of paragraph 10 of the Code of Practice on Employment under the SDO. As the EOC had no consistent selection criteria for choosing the candidates for training and acting appointment, the EOC is, says Madam Sit, guilty of unlawful discrimination. However, I accept the evidence of Dr. Cheung that decision on acting appointment was based on merits and so there were indeed selection criteria in force at the material time. Further, Madam Sit seems to suggest that the absence of selection criteria would automatically lead to a finding of discrimination. This is clearly a misconception as, according to s. 69(14) of the SDO, failure to implement the recommendations outlined in the Code can be used as evidence in court, but that is far from being an automatic finding of discrimination against the employer.

162.  Regarding the complaints of disability discrimination and harassment, even for the purpose of argument that Madam Sit was taking more than 3.5 days of sick leave in the period from May to September 1997, there is no evidence to show that anyone in the EOC did pay particular attention to the amount of sick leave taken by Madam Sit. In this regard, I also accept the evidence of the Defendants’ witnesses that according to their perception, Madam Sit was not taking more than the normal amount of sick leave at the material time. In fact, if the management of the EOC was concerned about the disability and the sick leave, there should have been some mention in the documents or correspondence referring to the frequent absence of Madam Sit in the office, and yet there was none in the present case. Further, the disabilities alleged by Madam Sit were not particularly serious, and such trivial matter should not have caused any concern to the management of the EOC. The evidence also shows that Madam Papadopoulos was suffering from a more serious kind of sickness at the relevant time, and yet Madam Papadopoulos was offered the opportunity of acting appointment and her employment was not terminated by the EOC. It clearly shows that the management of the EOC had no bias against disability and the treatments received by Madam Sit were not in any way influenced by such proscribed ground.

(i)  Destruction of the 911 Memo

163.  In his submission, Mr. Aiken relies heavily on the destruction of the 911 Memo with a view to establish that there must have been a hidden agenda behind the termination of Madam Sit’s employment and the various treatments received by her.

164.  However according to Dr. Cheung and Madam Ho, by reason of Madam Sit’s poor work performance as observed by them, they had already made the decision to terminate Madam Sit’s employment in early September 1997, and the 911 Memo therefore did not contribute to the termination of Madam Sit’s employment. By working together with Madam Sit, Dr. Cheung and Madam Ho were quite capable of forming their own opinion on the poor work performance although some of Madam Sit’s shortcomings were also reflected in the 911 Memo.

165.  According to Madam Ho, there was no need to investigate the complaint against Madam Sit in the Memo as it was superseded by subsequent event of the termination of Madam Sit’s employment. Madam Ho also took the view that the destruction of the Memo could protect the privacy and the reputation of Madam Sit. Madam Ho therefore, rightly or wrongly, destroyed the Memo with the use of the shredding machine.

166.  In my judgment, the contents of the 911 Memo actually support the EOC’s case that the real reason of terminating Madam Sit’s employment was because of her poor work performance. In such circumstances, there was no reason for the EOC to destroy the 911 Memo other than the genuine reasons given by Dr. Cheung and Madam Ho. Although with the benefit of hindsight, it might not have been appropriate to destroy the document so soon after the termination of Madam Sit’s employment (as observed by the AAB in paragraphs 32 and 33 of its decision handed down on 27 July 2004), I am satisfied that the destruction was only a genuine mistake and there was no hidden agenda behind the whole episode.

167.  During the preparation of the witness statements, a copy of the 911 Memo resurfaced. Apparently, one of the staff kept a copy of the Memo, and sensing that the document might be relevant to the case, that particular staff sent a copy of the Memo to the Legal Division of the EOC. The document was then immediately disclosed in the present proceedings. In fact, the disposal of the 911 Memo and the resurfacing of the document were the subject matters of the investigation conducted by the PCO leading to successive appeals before the AAB. Madam Sit complained that the EOC had withheld such document from her and was therefore in breach of its duty to supply personal data under the Personal Data (Privacy) Ordinance. The complaint had been considered by the AAB which held that the EOC had sufficiently answered Madam Sit’s requests for personal data, and there was no evidence to show that the EOC had withheld the 911 Memo from Madam Sit at any stage.

168.  By way of amendments to the pleading, Madam Sit also seeks to rely on paragraph 14.1.5 of the Code of Practice on Employment under the SDO relating to the keeping of record of termination of employment for 12 months. However, such provision does not purport to govern what records ought to be kept. As the EOC genuinely took the view that the 911 Memo did not contribute to Madam Sit’s employment, sufficient record of the termination was kept by the retention of the documents such as the minutes of the A & F Committee meeting on 24 September 1997, the minutes of the 9^th EOC meeting on 25 September 1997 and the letter of termination.

169.  There may be some confusion in the evidence as to who initiated the withdrawal of the complaint contained in the 911 Memo in the meeting on 29 September 1997. However, I am satisfied that there was a consensus in that meeting for the withdrawal of the complaint, and the confusion as to the exact person initiating the withdrawal is, in my judgment, quite immaterial. Hence, I do not find that the destruction of the 911 Memo in any way affects the creditability of the defence case.

(ii)  Failure to give warnings prior to the termination of employment

170.  In his submission, Mr. Aiken also argues that the EOC had at the relevant time adopted a generally tolerant attitude towards its staff. Its management did not properly prioritize work, communication was inefficient and sub-standard performances of the EOC’s employees were absolved, and one of the examples was the delay on the part of the Legal Adviser to produce the EOC’s written policy on data protection. Taking into account such attitude, it was most unusual, says Mr. Aiken, for the EOC not to follow the Disciplinary Policy and Procedures in giving warnings to Madam Sit prior to the termination of her employment. Hence, there must have been a hidden agenda and the Defendants’ purported reasons for dismissing Madam Sit was only an afterthought on their part.

171.  I do not accept such argument. Firstly, it has all along been the view of the EOC that the provisions relating to giving of warnings under the Disciplinary Policy and Procedureswere not applicable in the circumstances. The reasons are three-fold:

(i)  the decision to terminate Madam Sit’s employment had already been made before the implementation of the Disciplinary Policy and Procedures on 19 September 1997;

(ii)  the termination of Madam Sit’s employment was not a disciplinary matter; and

(iii)  even under such Procedures, warning was not required in the case of persistent sub-standard performance of the relevant employee.

In my judgment, there is simply no reason for me to doubt the genuineness of the view taken by the EOC at that particular time.

172.  Secondly, the conduct of the EOC needs to be considered in the light of the circumstances at the relevant time. The evidence clearly shows that the working relationship between Madam Sit and the senior management of the EOC had broken down in early September 1997. Madam Sit disagreed with the criticisms against her work performance, and as a result there were heated debates in the exchange of memos and the meeting on 9 September 1997. Obviously, such kind of breakdown in trust and communication would seriously affect the operation of a small institution like the EOC, and I can fully understand why the EOC wanted to terminate the employment of Madam Sit as soon as possible.

173.  Thirdly, from the feedbacks given by Madam Ho in respect of Madam Sit’s performance in the seminar in May 1997, the conduct of the case review exercise and the supervision of the CCHS project, it is clear that she was not satisfied with the work performance of Madam Sit before the termination of the latter’s employment, and Madam Sit was by then fully aware of such criticisms. Given such circumstances, it was quite reasonable for Dr. Cheung and Madam Ho to have taken the view that further warnings would not help to improve the situation, and hence no adverse inference should be drawn against the Defendants for failing to give any further warnings.

174.  Fourthly, I do not accept that the senior management of the EOC was particularly harsh on Madam Sit whilst adopting a more tolerant attitude towards the other employees. Whilst I agree that one single incident of the 9 Incidents might not have been serious enough to justify the termination of Madam Sit’s employment, the cumulative effect of these incidents did. Further, the negative attitude of Madam Sit would have a serious impact on the effective communication within the senior management of the EOC, and the 5 Areas of Deficiency would also affect the daily operation of the institution. Save for perhaps one particular instance such as the delay in the preparation of the written policy on data protection, I accept that the work performance of the other senior staff such as Mr. Tong and Madam Papadopoulos was generally satisfactory. At least, they were more receptive to criticisms which I consider to be an important attribute of a senior administrator. Hence, I see no merits in Mr. Aiken’s argument about the failure to give prior warnings.

175.  There is also an allegation that one of the EOC’s male staff, namely Mr. Joel Leung, was allowed to invoke the provisions in the Procedures for Handling Complaints and Grievances from EOC Staff in respect of the extension of his probation period, whereas no such allowance was given to Madam Sit. However, Mr. Leung’s probation was extended in April 1997 which was much earlier than the date of the implementation of the said Procedures (ie. 19 September 1997), and so I cannot quite understand the basis of such argument. That may be the reason why Mr. Aiken does not pursue such allegation at the trial.

Specific findings on the victimisation claim

176.  The claim on discrimination by way of victimisation is based on the alleged “hint” of sex discrimination made by Madam Sit in a meeting with Dr. Cheung in May 1997. Since I prefer to accept the evidence of the Defendants’ witnesses, I do not find that Madam Sit had made such accusation whether in that meeting or on any other occasions. As Madam Sit has failed to prove that the Defendants were aware of any of the acts mentioned in s. 9(1)(a) to (d) of the SDO and the subsequent treatments received by her had nothing with her gender, Madam Sit’s claim for discrimination by way of victimisation must also fail.

177.  Further, I must add that the victimisation claim was only made by Madam Sit by way of amendments to the pleading in 2007. Madam Sit should be a person with some knowledge of sex discrimination legislation, and so it is very difficult to understand why such claim was only first made 10 years about the termination of her employment. This also undermines the creditability of her claim on victimisation.

Conclusion and other related issues

178.  Based on the aforesaid, I come to the firm conclusion that the present case only involved a personnel dispute between Madam Sit and the senior management of the EOC. The termination of Madam Sit’s employment and the conducts applied to her by the Defendants were not in any way caused by her gender or her alleged disabilities, and so the Defendants are not guilty of any of the alleged unlawful acts. I therefore dismiss all of Madam Sit’s claims.

179.  Very serious allegations are made in the present case, in particular they come from a senior staff of the EOC in charge of the Gender Division against the other senior staff of the EOC who were responsible of eliminating discrimination in the community. Regrettably, there is no evidence to substantiate the complaints which are, in my judgment, no more than suspicion on the part of Madam Sit. As I see it, this litigation was causing a lot of unnecessary stress and damage to all the parties involved, and I hope that this judgment can finally bring an end to this most unfortunate dispute.

180.  It would generally be desirable for the trial judge to assess the quantum of the plaintiff’s claim in case that the case goes elsewhere and a contrary view is taken about the liability of the defendant. However since I myself find that the evidence of Madam Sit is unreliable and the issues relating to quantum are fact-sensitive, it may not serve any meaningful purpose if I proceed to assess the quantum of the claim. I therefore decline to do so in this case.

181.  Both counsel anticipate that there will be serious argument on costs. In particular, there are special costs provisions relating to SDO and DDO claims as contained in ss. 73B(3) and 73C(3) of the District Court Ordinance, Cap. 336. They would also like to reserve their costs submissions pending the factual findings to be made by the court. In such circumstances, I will not make any order nisi on costs, and I would direct the parties to fix a separate hearing before myself to deal with the costs issue.

182.  Finally, I would like to express my gratitude to all the counsel for the assistance that they have rendered to this court.

Please refer to HCMP1117/2011 for the relevant appeal(s) to the Court of Appeal.

DCEO11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 11 OF 1999

________________________

R U L I N G

1.  This is an application by the Plaintiff for leave to file a medical report by Dr Lam Tat Chung Paul dated 22 October 2009 and another report by Dr Arthur Chiang Si Chung dated 22 October 2009.

2.  The Plaintiff was employed as Director (Gender) of the 1st Defendant since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.

3.  At the material time, the 2nd and the 3rd Defendants were respectively the chairman and the chief executive of the 1st Defendant.

4.  According to the Plaintiff’s case as pleaded in the Amended Particulars of Claim, she was suffering from the following disabilities in or about early June 1997:

(1)      neck injury;

(2)      severe muscular and other pains in neck and right arm;

(3)      substantially increased immobility; and

(4)      regular high fever.

Apart from the claim for sex discrimination, the Plaintiff alleges that the Defendants had unlawfully discriminated against her by reason of these disabilities.

5.  According to Dr Lam’s report, the Plaintiff was suffering from anxiety and depressive symptoms in the relevant period from May to September 1997, whereas according to the report of Dr Chiang, the Plaintiff was suffering from swelling of eyelid and acute right neck and shoulder pain in the relevant period.

6.  Firstly, I have no difficulty in refusing the Plaintiff’s application for leave to adduce the medical report by Dr Lam.  It is clear that the Plaintiff has not raised the allegation, whether in the pleadings or in her witness statements, that she was suffering from any kind of anxiety or depressive symptoms when she worked for the 1st Defendant.  As this trial takes place about 12 years after the alleged acts of discrimination, it is simply too late for the Plaintiff to raise such new allegation at this stage.

7.  In fact, it has all along been the Plaintiff’s case that her work performance as an employee of the 1st Defendant was satisfactory and as a result, it was only because of her sex and physical disabilities that the Defendants had treated her unfavourably.  However, by seeking to rely on the medical report by Dr Lam, the Plaintiff seems to suggest that her work performance or behaviour at the relevant time might have been affected by her psychological impairment.  This would be a new allegation and the Plaintiff’s case would then be totally different.  By reason of the lapse of time, the Defendants would have considerable difficulty in dealing with this new allegation at such a late stage.  Hence, it is not appropriate for the court to grant leave to the Plaintiff to adduce the medical report by Dr Lam.

8.  I then turn to the medical report by Dr Chiang.  As I see it, Dr Chiang’s report can be divided into three parts.  The first part of Dr Chiang’s report deals with the Plaintiff’s complaint about her swollen eyelid.  As such disability has not been previously raised, either in the pleadings or in her witness statements, the Plaintiff should not be allowed to rely on that part of the report.

9.  The second part of Dr Chiang’s report deals with the Plaintiff’s medical examination in November 2000.  During this examination, the Plaintiff complained of back pain.  According to Dr Chiang, he lost all his clinical records of the Plaintiff, but from the documents possessed by the Plaintiff, Dr Lam can only say that the provisional diagnosis in November 2000 was likely to be prolapsed lower lumbar disk.  This disability is not covered by the Plaintiff’s pleadings or witness statements.  Further, the Plaintiff only experienced such disability about 3 years after she was dismissed by the 1st Defendant.  In such circumstances, this alleged disability has no relevance to the issue of the present case.

10.  What then left in the report is about the medical examination of the Plaintiff by Dr Chiang in July 1997.  During such examination, the Plaintiff complained that she had acute right neck and shoulder pain.  The Plaintiff was referred for x-ray of the right shoulder and arm and drugs were prescribed for the Plaintiff.

11.  As I see it, this part of the report adds nothing new to the medical chits and the sick leave certificates already produced by the Plaintiff.  According to these latter documents, the Plaintiff was suffering from neck and shoulder pain in July 1997 and sick leave was recommended for the Plaintiff for certain days.  In such circumstances, it is not necessary for the Plaintiff to rely on the third part of the medical report.

12.  I understand from Mr Ng, senior counsel for the Defendants, that the Defendants are prepared to allow the Plaintiff to adduce evidence to cover the materials only included in the sick leave certificates and the medical chits.  In such case, it is not necessary for the Plaintiff to rely on the materials included in the medical report of Dr Chiang.  I therefore also refuse leave to the Plaintiff to produce the medical report by Dr Chiang.

13.  At this stage, I would also add that, taking into account the history of this case, the court should be very cautious in dealing with any late application to adduce new evidence.  The Plaintiff’s alleged cause of action occurred before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements and there was total inaction on the part of the Plaintiff in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue two notices of intention to proceed on 17 February 2003 and 30 August 2006 respectively.

14.  In the various pre-trial hearings in 2007 and 2008, the Plaintiff had indicated that she did not seek to produce any expert evidence at the trial.

15.  The case was originally fixed for  trial in November 2008.  As the Plaintiff was suffering from some kind of psychological illness at that time, the trial was refixed to November this year.  Hence, in order not to cause any unfairness to the Defendants and not to delay the proceedings, the court should be very cautious in dealing with any late application by the Plaintiff to adduce new evidence at the trial.

16.  Mr Aiken, senior counsel for the Plaintiff, argues that as this is a case concerning disability discrimination, it would be grossly unfair to the Plaintiff if she is not allowed to adduce any medical evidence about her disabilities at the relevant time.  At this stage, I must emphasise that my ruling should not be construed as a denial of the Plaintiff’s application to adduce evidence to substantiate the materials included in the sick leave certificates and the medical chits.  If the Defendants dispute the medical diagnosis contained in the sick leave certificates and the medical chits, the Plaintiff may make an appropriate application to the court to call the makers of the documents to testify in the trial.  At this stage, it is simply too premature for me to deal with such kind of application at this stage.

17.  I therefore refuse the application for leave to adduce the medical reports.

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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REASONS FOR DECISION

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1.  This is an application by the Plaintiff to set aside the judgment given on 3 November 2008 in her absence at the trial, dismissing her action concerning acts of alleged discrimination under the Sex Discrimination Ordinance, Cap. 480 and the Disability Discrimination Ordinance, Cap. 487.  In the hearing, I allowed the Plaintiff’s application and I now give my reasons.

2.  This application is made pursuant to O. 35 r. 2 of the Rules of the District Court, Cap. 336 (“the RDC”).  The basis for the application is that the Plaintiff, having suffered from depression, was not fit to conduct the trial due to begin on 3 November 2008, but she has a viable case and will be fit to conduct the trial at a future date, this time with the benefit of legal representation. 

History of the present case

3.  The Plaintiff was employed as Director (gender) of the 1^st Defendant since September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.  At the material time, the 2^nd and the 3^rd Defendants were respectively the chairman and the chief executive of the 1^st Defendant.

4.  I have already set out the history of this case in my decision given on 3 November 2008.  However, for the purpose of this application, I should perhaps set out the relevant details once again here.

5.  The Plaintiff’s alleged cause of action accrued before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements, and there was total inaction on the part of the Plaintiff in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue 2 Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

6.  In the period from 1999 to 2005, the Plaintiff had engaged in various satellite litigations against the 1^st Defendant under the Personal Data (Privacy) Ordinance, Cap. 486 by making no less than 3 complaints to the Privacy Commissioner Office (“PCO”).  She also lodged no less than 3 appeals to the Administrative Appeals Board (“AAB”) against the decisions of the PCO.  All the appeals were dismissed by the AAB.

7.  The Plaintiff was previously a qualified solicitor.  Her claim had all along been handled by a firm of solicitors until 28 September 2006 when she filed a Notice to Act in Person.  There were then various interlocutory applications before the court in 2007 and 2008.

8.  The trial date on 3 November 2008, with 15 days reserved, was fixed by myself on 16 April 2008.  On 30 May 2008, I refused the Plaintiff’s application for leave to administer interrogatories and fixed a pre-trial hearing (“PTR hearing”) on 25 September 2008.

9.  On 23 September 2008, the Plaintiff sent a fax to the court.  In the said fax, the Plaintiff mentioned that she would need to seek legal advice after receiving the written reasons for my decision refusing her application for leave to administer interrogatories.  She therefore applied to adjourn the PTR hearing on 25 September 2008 and the trial date in November 2008.

10.  With the consent of both parties, the PTR hearing was adjourned to 30 September 2008 to be heard together with the Defendants’ application to expunge certain parts of the Plaintiff’s supplemental witness statement.

11.  Shortly before the PTR hearing on 30 September 2008, the Defendants received a medical certificate from the Plaintiff, stating that the Plaintiff was recommended for sick leave from 29 September to 1 October 2008 by reason of “orthopaedic condition”.  On 30 September 2008, the Plaintiff did not appear in the hearing and I therefore adjourned the PTR hearing and the Defendants’ application to expunge the witness statement to 15 October 2008.

12.  On 6 October 2008, the court received a fax from the Plaintiff enclosing a letter from a psychiatrist of the Hospital Authority, stating that the Plaintiff had been admitted to Pamela Youde Nethersole Eastern Hospital (“the Eastern Hospital”) on 3 October 2008 for management of “mood disorder”.  On 8 October 2008, the Plaintiff sent another fax to the court, mentioning that she wanted to adjourn the trial in November 2008.  On 9 October 2008, the court replied to the Plaintiff indicating that the hearing date on 15 October 2008 and the trial date do stand.  Further, if the Plaintiff had any specific application to make, the application had to be made by way of inter partes summons.

13.  On 13 October 2008, the court received another fax from the Plaintiff, stating that she was still hospitalised in the Eastern Hospital and requested to adjourn the PTR hearing and the Defendants’ application to expunge the witness statement to another date to be fixed.  On 15 October 2008, the Plaintiff did not appear in the hearing.  By that time, I did not have any detailed information about the medical condition of the Plaintiff.  I also had no idea how long that the Plaintiff would be hospitalised or whether she still wanted to have an adjournment of the trial.  Further, as the trial date was fixed well in advance and the Defendant had incurred substantial legal costs in the preparation of the trial, the court and the Defendants were entitled to know more about the medical condition of the Plaintiff.  In that hearing, I therefore made an order that the trial date do stand.  I also directed that if the Plaintiff wanted to adjourn the trial because of health reason, she should make such application on the first day of the trial with the support of detailed medical report.  Pursuant to my direction, the order made on 15 October 2008 was personally served on the Plaintiff.

14.  On 26 October 2008, the Plaintiff sent a letter to the Defendants’ solicitors, asking them to arrange for the inspection of documents after her sick leave which was extended to 10 November 2008.

15.  On 2 November 2008 at 11:34 pm, the court received another fax from the Plaintiff, enclosing a medical certificate from one Dr. Paul Lam extending her recommended sick leave to 30 November 2008.  She also applied for extension of time to file her medical report.  In the morning of 3 November 2008 at 10:40 am, the court received another fax from the Plaintiff stating that she had been admitted once again to the Eastern Hospital.

16.  At the trial date on 3 November 2008, the first question I had to consider was, therefore, whether to adjourn the trial.  It was not an easy decision.  On the one hand, I had some sketchy information which showed that the Plaintiff was suffering from some kind of illness.  On the other hand, there had been delay in the prosecution of the claim, the trial date was fixed well in advance and the Defendants had incurred substantial legal costs in the preparation of the trial.  Eventually, for the reasons given in that hearing, I determined to proceed with the trial as scheduled.  As the Plaintiff was absent and there was no evidence adduced to support her claim, the Plaintiff’s claim was then dismissed.  The Plaintiff now seeks to set aside such order.

17.  The Plaintiff’s summons for the present application was taken out on 28 November 2008 which was out of time.  A later hearing date of 16 March 2009 was requested by the Plaintiff, and the summons was only served on the Defendants on 30 January 2009.

Reasons for the Plaintiff’s absence at the trial

18.  In support of the application, the Plaintiff has filed 3 supporting affidavits: the 1^st and the 2^nd Affidavits of the Plaintiff herself and the Affirmation of Dr. Lam Tat Chung Paul.  According to the Affirmation of Dr. Lam, the Plaintiff had no history of past mental illness.  As far as the present illness of depression is concerned, the Plaintiff first sought treatment from the Accident and Emergency Department of the Eastern Hospital on 3 October 2008, complaining of having anxiety, low mood, suicidal idea, feeling of hopelessness, insomnia and inability to cope with housework.  She was then admitted to the Psychiatric Ward of the Eastern Hospital with a diagnosis of adjustment disorder.  According to the treating doctors, the precipitating cause of the sickness was the stress related to the present proceedings.  Her condition improved and she was discharged on 20 October 2008.

19.  The Plaintiff then sought treatment from Dr. Lam on 25 October 2008 with similar complaints about her symptoms.  According to Dr. Lam, the diagnosis was the same adjustment disorder.  The Plaintiff did not suffer from delusions or hallucinations, or any other symptoms which suggest a psychotic illness.  Dr. Lam issued a sick leave certificate to the Plaintiff covering the period from 27 October to 10 November 2008.  On 1 November 2008, the Plaintiff attended Dr. Lam’s clinic for follow-up treatment.  By then, the Plaintiff did not respond well with the medication prescribed by Dr. Lam, and so her medication was reduced.  Dr. Lam then issued another sick leave certificate to the Plaintiff covering the period from 11 to 30 November 2008.

20.  On 3 November 2008, which was the first day of the trial, the Plaintiff again attended the Accident and Emergency Department of the Eastern Hospital for medical treatment, and she was admitted to the Psychiatric Ward on the same day.  She complained of having anxiety, low mood and psychological distress, and her treatments included medication and psychological counselling.  The Plaintiff was discharged on 17 November 2008 with follow-up session arranged at the Psychiatric Outpatient Department.

21.  On 22 November 2008, the Plaintiff attended Dr. Lam’s clinic with similar complaints of having anxiety, depression and stress.  Medication was prescribed and sick leave certificate covering the whole of December 2008 was issued.  On 2 December 2008, the Plaintiff attended the Outpatient Department of the Eastern Hospital for follow-up treatment.

22.  In the opinion of Dr. Lam, the Plaintiff was suffering from severe psychological stress and symptoms in October to December 2008.  The stress was caused by the present proceedings and so the Plaintiff was not fit to conduct the trial by that time.  The Plaintiff attended Dr. Lam’s clinic again on 12 March 2009.  According to Dr. Lam, the Plaintiff’s condition has improved, and she feels more at ease in dealing with the present proceedings especially due to the fact that the case has now been taken over by the present legal team whom she trusts.

23.  The Plaintiff also made 2 supporting affidavits.  According to her, she started to experience depression shortly after the termination of her employment with the 1^st Defendant in 1997.  Her condition improved and she felt much better in 1999.  In or about September 2008, her symptoms reappeared, including having negative thoughts and insomnia, and her father also passed away at more or less the same time.  The Plaintiff therefore sought medical treatments as mentioned above.  During the period when she received in-patient treatment, the Plaintiff was subject to a strict regime of voluntary confinement.  With the benefit of hindsight, the Plaintiff agrees that she should have asked Dr. Lam to prepare a medical report and made a proper application to adjourn the trial date.  However, since the Plaintiff’s mind “was something of a blank during that period”, she had not done so at the relevant time.

24.  According to the Plaintiff, her condition has improved and she has not taken any medication after 10 February 2009.  In the case that the judgment is set aside, it is her intention to retain the present legal team to conduct the trial on her behalf.

25.  In the absence of contrary evidence, I have to accept the evidence of the Plaintiff and Dr. Lam in their affidavits as the truth for the purpose of the present application.

Factors to be considered in the present application

26.  The factors that should be considered by the court in setting aside a judgment after trial are succinctly set out in the case of Shocked v Goldschmidt [1998] 1 ALL ER 372:

(i)    whether a party with notice of proceedings has disregarded the opportunity of appearing and participating in the trial, he will normally be bound by the decision;

(ii)  where judgment has been given after a trial, it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing;

(iii)    where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court, the application will not be granted unless there are very strong reasons for doing so;

(iv)    the court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success;

(v)  delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;

(vi)    in considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour;

(vii)  a material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences; and

(viii)    there is a public interest in there being an end to litigation and in not having the time of the court occupied by 2 trials, particularly if neither is short.

27.  In my judgment, the application of these principles certainly favours the setting aside of the judgment.  As now shown in the affidavit evidence, the Plaintiff had a debilitating mental condition at the critical time and she was unable to attend the trial by reason of such condition.  Further, her illness fogged her judgment in October and November 2008 when she should have made a formal application to adjourn the trial with the support of a more detailed medical report.  The setting aside of the judgment would also not entail a re-trial, as the Plaintiff’s claim was dismissed at a short trial because of the lack of supporting evidence.  There has been some delay in the making of present application to set aside the judgment, but this was probably caused by the Plaintiff’s debilitating mental condition rather than a deliberate attempt to delay the proceedings.  As to the merits of the claim, the outcome of the present case depends very much on the factual evidence, and it is very difficult for the court to form a provisional view as to whether the Plaintiff’s claim is likely to fail in the case of a trial.  There may be some prejudice to the Defendants by reason of the delay, but weighing all the factors together, the Plaintiff should be allowed one last opportunity to prosecute her claim and the judgment should therefore be set aside.

28.  In Lau Kam Chuen v Lee Ching [2003] 2 HKLRD 1018, the Court of Appeal applied the principles in the Goldschmidt case in considering whether to set aside a judgment obtained by the plaintiff after trial but in the absence of the defendant.  In upholding the decision in the lower court not to set aside the judgment, the Court of Appeal held that the most important factor for this sort of application is the reason for the applicant’s absence at the trial.  In obiter, the Court of Appeal observed that the guidelines for considering whether or not to set aside a judgment entered against a party not attending trial are to be distinguished from those governing the setting aside of a judgment entered pursuant to O. 13 and O. 19 of the Rules of the High Court, Cap. 4.  In the latter context, the most important consideration is the merits of the plaintiff’s claim or the defendant’s defence.

29.  Applying such obiter, it is now clear that the Plaintiff could not attend the trial by reason of a genuine sickness.  Although the court did not have any detailed information about the Plaintiff’s condition at the time of the trial, the evidence produced by the Plaintiff now shows that she had to receive in-patient treatment in November 2008 by reason of her illness.  Further, I agree with Mr. Dykes SC, counsel for the Plaintiff, that the present application necessarily involves a consideration of the relevant principles that apply to cases where adjournments are sought on account of a party’s illness.  In Rose v Humble [1972] 1 WLR 102, R v Sevenoaks General Commissioners and IRC, ex parte Throne [1989] STC 560 and Wong Sun v Insider Dealing Tribunal [2000] 4 HKC 557, the courts have repeatedly emphasised that failing to allow an adjournment of a trial or hearing by reason of a party’s ill-health may result in injustice and denying that party of the opportunity to be heard, in particular that party may have material evidence to give at the trial or the hearing.  Hence, if the Plaintiff had produced all the existing materials and applied for an adjournment of the trial in November 2008, the court would probably, in the interest of justice and fairness to the Plaintiff, have granted the adjournment.  If the trial had to be adjourned by then, the judgment obtained by the Defendants at that trial should a fortiori be set aside.

30.  As I see it, there is another crucial factor why the judgment should be set aside.  Sex Discrimination Ordinance and Disability Discrimination Ordinance are 2 pieces of social legislations which enable certain aggrieved individuals to enforce their civil rights.  Obviously, depression or adjustment disorder falls within the meaning of “disability” under the Disability Discrimination Ordinance.  Although disallowing the Plaintiff’s request to set aside the judgment is not an act of discrimination under such Ordinance, but to deny the Plaintiff of the opportunity to pursue her claim because of her sickness at the time of the trial is, in my judgment, against the spirit of the Disability Discrimination Ordinance.  As the 1^st Defendant is the organisation entrusted with the duty of enforcing and educating the public about discrimination laws, I do not think that it would disagree with such observation.  What is most important is, therefore, that the Plaintiff was suffering from a genuine sickness at the time of the trial, and this is the main factor why the judgment should be set aside in the present case.

31.  In opposing the application, Mr. Leung, counsel for the Defendants, argues that the court, in deciding whether to set aside the judgment, has to take into account the Plaintiff’s conduct of the case in the past years and the long delay in the prosecution of the claim.  Further, if the claim is restored, such claim is liable to be struck out for want of prosecution or as an abuse of process by reason of the delay, and hence the application to set aside the judgment should not be granted.

32.  As mentioned above, the writ of summons herein was served near the end of the validity period.  There was inaction on the part of the Plaintiff in prosecuting the claim in the period from 2004 to 2006, and the Plaintiff had also caused delay in the proceedings by bringing certain unmeritorious satellite litigations against the 1^st Defendant.  Further, the memories of the witnesses may be adversely affected by the delay, and the Defendants would therefore, says Mr. Leung, suffer substantial prejudice if the court were to set aside the judgment.

33.  I accept that there was delay in the prosecution of the claim, and I also agree with Mr. Leung that, if the claim is liable to be struck out for want of prosecution or as an abuse of the process of the court, there is no point in setting aside the judgment obtained by the Defendants at the trial.  The court is also entitled to look at the overall delay from the accrual of the cause of action to the making of the present application in assessing the overall prejudice caused to the Defendants by such delay (see: Pacific Century Insurance Co. Ltd. v Li Wai Chung, unreported, DCCJ No. 5708 of  2004, decision of HH Judge H. C. Wong on 6 January 2006).

34.  Despite such observations, I do not find that the delay on the part of the Plaintiff was contumelious.  In fact, in the past 2 years when I handled this case as the judge in charge of the Equal Opportunities List, the Plaintiff had been bringing different types of interlocutory applications before the court.  With regret, most of these applications were misconceived ones, and as a result there was some delay in the overall progress of the case.  Although there is no evidence that the Plaintiff had suffered any serious depression before September 2008, I cannot quite understand why the Plaintiff, with proper legal training, could have brought all these misconceived applications before the court.  By that time, I have already suspected that the Plaintiff’s judgment in the handling of the case had somewhat been affected by her inability to cope with the pressure of the present litigation.  Hence, the past delay in the prosecution of the claim was, in my judgment, more likely than not caused by the poor judgment on the part of the Plaintiff in handling the case rather than a deliberate attempt to delay the proceedings.  The Plaintiff is well now and has shown every intention to pursue her claim, and so I do not accept that the Plaintiff’s past delay in the prosecution of the claim amounts to an abuse of the process of the court which justifies a summary dismissal of the claim.

35.    Further, I am of the view that equal opportunities cases should be treated differently from other commercial litigations.  Whereas the Plaintiff is attempting to enforce her civil right and there is evidence to show that she could not handle the pressure of litigation in the past, the Plaintiff should be given one last chance to pursue what may otherwise be a legitimate claim against the Defendants.  I agree that the Defendants would suffer some prejudice by the setting aside of the judgment, but such prejudice can be compensated by an appropriate award of costs against the Plaintiff.  The memories of the witnesses may be adversely affected by the long lapse of time.  However, in the case of the setting aside of the judgment, the trial will probably be restored in the end of this year.  As I see it, the additional delay of 1 year should not have had a great impact on the memories of the witnesses.

36.  In conclusion, as the Plaintiff was suffering from a genuine sickness which necessitated in-patient treatment, this provides a good explanation as to why she could not attend the trial in November 2008.  Taking into account the overall interest of the case and the particular nature of the Plaintiff’s claim, the court should allow the Plaintiff’s application to set aside the judgment.  I therefore extend the time for the Plaintiff to make such application out of time under O. 3 r. 5 of the RDC, and I also allow the substantive application in setting aside the judgment.

Conditions imposed in setting aside the judgment and costs

37.  Taking into account the history of this case, stringent conditions have to be imposed to ensure that there will be no more delay in the prosecution of the claim.

38.  Firstly, it is clear that, in the interest of the Plaintiff herself and the overall justice of the case, the Plaintiff should engage solicitors to handle the case on her behalf.  The pressure of litigation has already caused the Plaintiff to collapse in the past, and it is certainly undesirable to let the same thing to happen again in the future.  At this stage, the Plaintiff indicates to me that she will engage the existing legal team to represent her at the trial, and she personally undertakes that she will put in sufficient costs on account for the legal fees within 7 days.  This is the best assurance I can get from the Plaintiff.  Bearing in mind the Plaintiff’s right in the conduct of her own litigation, it is not appropriate for me to impose any other condition in this regard.

39.  Secondly, there were a number of costs orders made against the Plaintiff before the trial date in November 2008.  According to the bills of costs prepared by the Defendants’ solicitors, the total amount of those costs is about $900,000.  Giving a discount of 50%, I require the Plaintiff to pay a sum of $450,000 into court as security for those costs.  I am given to understand that the Plaintiff should be in the position to comply with such condition, and so there is no issue of stifling what may otherwise be a genuine claim by reason of the imposition of such condition.  This requirement would also ensure that the Plaintiff will be serious in pursing her claim without any further delay.

40.  Finally, I have to deal with the costs of the application to set aside the judgment and the costs of the trial in November 2008.  In this regard, I am fully aware of the provisions in ss. 73B(3) and 73C(3) of the District Court Ordinance, Cap. 336, which specify that each party to a claim for sex or disability discrimination should 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.  In Cano-Shearer, Anne v Cathay Pacific Airways Limited, unreported, DCEO No. 1 of 2001 (decision of HH Judge Lok on 1 November 2002), I said the following in relation to such costs provisions:

“18.

The rationale for such rule is clear.  If the court always makes an order of costs against an unsuccessful plaintiff, it may discourage individuals who may have legitimate grievance in enforcing their civil rights.  On the other hand, I agree with Mr. Wong that such indulgence should not go unchecked, otherwise parties who are sued as defendants may have to face with all sorts of unmeritorious claims, and the said statutory provision would be doing more harm than good.  In particular, if the court cannot make any costs order in respect of procedural matters, the court will lose the power to control and regulate the progress of the proceedings.  Hence, apart from the case that the proceedings were brought maliciously or frivolously, the court is given wide discretion to make an order of costs if there are ‘special circumstances’ which warrant so.  Obviously, it would be very difficult for the court to list out all the special circumstances in which an order of costs should be made.  However, the court should always bear in mind the aforesaid considerations in deciding on the issue of costs in sex discrimination cases.”

41.  The Plaintiff may well have a legitimate claim in the present case.  However, taking into account the history of this case, there has been considerable delay in the prosecution of the claim on the part of the Plaintiff, and it is only because of the indulgence of the court that the Plaintiff is now given one last opportunity to pursue her claim.  In such circumstances, it would be grossly unfair to the Defendants if they are not allowed to obtain the costs of this application and the trial in November 2008.  In fact, Mr. Dykes, very fairly, does not seek to argue otherwise.  Hence, the Defendants will get such costs.

42.  Finally, I would like to express my gratitude to all the counsel for the assistance that they have rendered to this court.

DCEO11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 11 OF 1999

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R U L I N G

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1.  Today is the first day of the trial of a discrimination claim which was fixed for 15 days.

2.  The Plaintiff was employed as Director (Gender) of the 1st Defendant since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.

3.  At the material time, the 2nd and the 3rd Defendants were respectively the chairman and the chief executive of the 1st Defendant.

4.  This case has a long history.  The Plaintiff’s alleged cause of action accrued before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements, and there was total inaction on the part of the Plaintiff in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue 2 Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

5.  The Plaintiff was previously a qualified solicitor.  Her claim had all along been handled by a firm of solicitors until 28 September 2006 when she filed a Notice to Act in Person.

6.  The present trial date was fixed by myself on 16 April 2008 with 15 days reserved.  On 30 May 2008, I refused the Plaintiff’s application for leave to administer interrogatories and fixed a PTR hearing on 25 September 2008.

7.  On 23 September 2008, the Plaintiff sent a fax to the court.  In the said fax, the Plaintiff mentioned that she would need to seek legal advice after receiving the written reasons for my decision refusing her application for leave to administer interrogatories.  She therefore applied to adjourn the PTR hearing on 25 September 2008 and the trial date in November 2008. 

8.  With the consent of both parties, the PTR was adjourned to 30 September 2008 to be heard together with the Defendants’ application to expunge certain parts of the Plaintiff’s supplemental witness statement.

9.  Shortly before the PTR hearing on 30 September 2008, the Defendants received a medical certificate from the Plaintiff, stating that the Plaintiff was recommended for sick leave from 29 September to 1 October 2008 by reason of “orthopaedic condition”.  On 30 September 2008, I therefore adjourned the PTR and the Defendants’ application to expunge the witness statement to 15 October 2008.

10.  On 6 October 2008, the court received a fax from the Plaintiff enclosing a letter from a psychiatrist of the Hospital Authority, stating that the Plaintiff had been admitted to Pamela Youde Nethersole Eastern Hospital on 3 October 2008 for management of “mood disorder”.  On 8 October 2008, the Plaintiff sent another fax to the court, mentioning that she wanted to adjourn the trial in November 2008.  On 9 October 2008, the court replied to the Plaintiff indicating that the hearing date on 15 October 2008 and the trial date do stand.  Further, if the Plaintiff had any specific application to make, the application had to be made by way of inter partes summons.

11.  On 13 October 2008, the court received another fax from the Plaintiff, stating that she was still hospitalised in Eastern Hospital and requested to adjourn the PTR and the Defendants’ application to expunge the witness statement to another date to be fixed.  On 15 October 2008, the Plaintiff did not appear in the hearing.  By that time, I did not have any detailed information about the medical condition of the Plaintiff.  I also had no idea how long that the Plaintiff would be hospitalised or whether she still wanted to have an adjournment of the trial. 

12.  Obviously, the Defendants had made considerable effort in the preparation of the trial today, including making arrangement for an overseas witness to come to Hong Kong to testify.  In the hearing on 15 October 2008, I therefore made an order that the trial date do stand.  I also directed that if the Plaintiff wanted to adjourn the trial because of health reason, she should make such application on the first day of the trial with the support of detailed medical report.  Pursuant to my direction, my order made on 15 October 2008 was personally served on the Plaintiff.

13.  On 26 October 2008, the Plaintiff sent a letter to the Defendants’ solicitors, asking them to arrange for the inspection of documents after her sick leave which was extended to 10 November 2008.

14.  Last night at 11.34 pm, the court received another fax from the Plaintiff, enclosing a medical certificate from one Dr Paul Lam extending her recommended sick leave to 30 November 2008.  She also applied for extension of time to file her medical report.  This morning at 10.40 am, the court received another fax from the Plaintiff, stating that she had been admitted to Pamela Youde Nethersole Eastern Hospital.

15.  Taking into account this background, the question I have to consider is whether to adjourn the trial.  From the latest correspondence, I take that the Plaintiff wants to apply for an adjournment of the trial because of health reason.  However, without complying with my direction on 15 October 2008, the Plaintiff has not made a formal application to adjourn the trial and she has not produced a detailed medical report about her present medical condition.  In a way, the Plaintiff could communicate well with the court and the Defendants’ solicitor by fax, but at this stage, I have no idea about the seriousness of the Plaintiff’s medical condition.

16.  In considering whether to adjourn this trial, I have taken into account that the present action is about a claim for enforcement of civil right and that the Plaintiff is suffering from some kind of illness at this moment.  On the other hand, there has been considerable delay in the prosecution of the claim and the present trial date was fixed more than 9 years after the commencement of the action.  Further, the Defendants have spent considerable effort in the preparation of the case and there is no reason why the trial should not start as scheduled.  The Plaintiff has been given repeated notices that a formal application for adjournment of the trial  has to be made with the support of a detailed medical report.  The Plaintiff has been given ample time to prepare the application.  At this stage, the court has very little information about the Plaintiff’s medical condition apart from the limited information revealed in the few sick leave certificates.  Balancing all these factors, I am of the view that the trial should proceed as scheduled. 

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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Dates of Hearing:  30 May 2008

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REASONS FOR DECISION

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1.  This is an application by the Plaintiff for leave to administer interrogatories on the 2^nd and the 3^rd Defendants.  In the hearing on 30 May 2008, I dismissed the Plaintiff’s application and I now give my reasons in writing.

2.  The Plaintiff was employed as Director (Gender) of the 1^st Defendant since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.

3.  At the material time, the 2^nd and the 3^rd Defendants were respectively the Chairman and the Chief Executive of the 1^st Defendant.

4.  In a nutshell, the real issues in the present case are: (i) whether there was unlawful discrimination, either on the ground of sex or disability, against the Plaintiff leading to the termination of her employment with the 1^st Defendant; and (ii) whether the termination of the Plaintiff’s employment was due to her poor work performance and attitude as alleged by the Defendants.

5.  This action has a long history.  After the commencement of the claim, the Plaintiff had asked the 1^st Defendant to disclose various documents by way of Data Access Requests (“DARs”).  These requests led to numerous complaints to the Privacy Commissioner (“the Commissioner”) and appeals to the Administrative Appeals Board (“the AAB”), all of which had been dismissed.   There has been much delay in proceeding with the present action by engaging in these satellite litigations.

6.  At the first pre-trial review hearing on 5 June 2007, Master R. Lai had directed that the Plaintiff should take out all interlocutory applications on or before 5 July 2007.  However without complying with such direction, the present application was only taken out by the Plaintiff on 28 March 2008.

7.  In another application taken out by the Plaintiff to amend the Particulars of Claim, the Plaintiff sought to raise various issues relating to the previous DARs, complaints to the Commissioner and appeals to the AAB, and allegations of theft, handling stolen goods and perverting the course of justice.  HH Judge M. Chan disallowed these proposed amendments on 23 October 2007 and also expunged the Plaintiff’s supplemental witness statement dealing with these issues.

The law

8.  In exercising the discretion whether to allow the administration of interrogatories, the court will be guided by the principles laid down in case law.  A helpful exposition of the law can be found in Lee Nui Foon v Ocean Park (No. 2) [1995] 2 HKC 395, thus:

(a)  the interrogatories must relate to “a matter in question” between the parties and must be “necessary” either for disposing fairly of the cause or matter or for saving costs (at 396G);

(b)  the interrogatories must not be fishing, oppressive, prolix or imprecise, and interrogatory will be oppressive if the answer cannot be given without an examination of the respondent’s record, with the expenditure of much time and trouble (at 396H-398E);

(c)  the interrogatories must not be questions which go to the evidence the opposing party intends to adduce (at 398E-I);

(d)  the interrogatories must not be questions which require an answer which is a matter of opinion or for an expert (at 399A);

(e)  the interrogatories must not be questions which go to the facts which would assist in establishing the opposing party’s case as opposed to the case of the party seeking to interrogate (at 399A-B);

(f)   the interrogatories must not be effectively asking for documents or discovery (at 399B-D); and

(g)  even if the interrogatories comply with all the requirements of the rules under O. 26, the court nevertheless retains an overriding discretion as to whether or not to allow them to be administered (at 399E).

9.  Further, Cheung J, as he then was, said the following about prolix interrogatories:

“The interrogatories must not be prolix … … Kay LJ in Oppenheim & Co v Sheffield [1893] 1 QB 5 at 15-16 held that:

…interrogatories may be in such a form, in respect of their length and character, that looking at them as a whole it is impossible to help seeing that they are an abuse of the practice as being prolix or unnecessary.  If a general view of them brings the court to that conclusion it is no answer to say that there are in the set of interrogatories here and there some which might be admissible if they stood alone.” (at 398C)

10.  There are also additional factors to be taken into account in considering such kind of applications:

(a)   interrogatories which relate solely to credit are not allowed (Hong Kong Civil Procedure (HKCP) para. 26/4/6);

(b)  interrogatories which tantamount to cross-examination to elicit evidence from witnesses of the opposing party are not allowed (HKCP para. 26/4/12);

(c)   interrogatories will not be allowed where the object is to obtain an admission of fact from witness of the other party (HKCP para. 26/4/12);

(d)  interrogatories will not be allowed where it is plain that no admission of fact can be obtained (HKCP para. 26/4/12); and

(e)   interrogatories designed to establish the identity of potential witnesses, for example, by asking who was present at a particular instance, will not be allowed (HKCP para. 26/4/13).

General considerations for refusing the administration of interrogatories

11.  The proposed interrogatories against both the 2^nd Defendant (in Appendix A to the Plaintiff’s summons) and the 3^rd Defendant (in Appendix B to the Plaintiff’s summons) run up to no less than 10 pages with over 150 questions and sub-questions.  I have no intention of reciting all these interrogatories in this Reasons for Decision.  In my judgment, the sheer “length and character” of the proposed interrogatories will give rise to the conclusion that the proposed interrogatories are oppressive by reason of their prolixity, and the dicta of Kay LJ cited in Lee Nui Foon v Ocean Park (No. 2), ibid., is equally applicable in the present case (see: paragraph 9 above).

12.  Further, this application is another veiled attempt to introduce through the back door materials or matters which had been held by HH Judge M. Chan as irrelevant, including matters relating to the previous DARs, complaints to the Commissioner and appeals to the AAB, and allegations of theft, handling stolen goods and perverting the course of justice.

13.  Even if the interrogatories are relevant, I do not find that they are necessary either for disposing fairly of the cause or matter or for saving costs in the present case.  This action has already been fixed for trial in November this year for 15 days.  If I were to allow the administration of these interrogatories, the Defendants will have to spend considerable time and legal costs in the preparation of the answers.  Another possible complication is that with the answers provided, it may lead to applications for further interrogatories which would lead to no end.  In my judgment, it would save much more time and costs for the Plaintiff simply to ask the 2^nd and the 3^rd Defendants about these interrogatories during cross-examination at trial (provided that they are relevant to the issues in the case), and I cannot see how the provision of these answers before the trial can be of any assistance to the preparation of this case.   Hence, I will exercise my discretion against the ordering of interrogatories.

14.  These reasons alone justify the dismissal of the Plaintiff’s application.  However for the sake of completeness, I will set out some of the additional reasons why the interrogatories should not be allowed.

Specific considerations for refusing the administration of interrogatories

Appendix A

Item (I) – circumstances under which the 2^nd Defendant prepared her witness statement

15.  The proposed interrogatories as to the circumstances as to how and where the 2^nd Defendant complied her witness statement are irrelevant and unnecessary.  The proposed interrogatories do not relate to any material issue in this action.  If anything, they concern only with matters of credibility, which should be dealt with by way of cross-examination at trial.

Item (II) – 1^st  special meeting of the Administration & Finance Committee

16.  Sufficient details have already been given in the statements of the 2^nd and the 3^rd Defendants and Mr. Michael Chan, and there is no point in allowing the Plaintiff to administer further interrogatories in this regard.

17.  The request for the proposed interrogatories also amounts to a fishing expedition to elicit evidence to be adduced by the Defendants, an attempt to identify potential witnesses and to obtain admissions of fact from the 2^nd Defendant.

18.  Further, part of the interrogatories relate to issues which had already been ruled as irrelevant by HH Judge M. Chan on 23 October 2007 (see paragraphs 7 and 12 above).

19.  Lastly, the proposed interrogatories do not relate to any material issue in this action.  If anything, they concern matters of creditability only, which should be dealt with by way of cross-examination at trial.

Item (III) – 9^th EOC meeting on 25 September 1997

20.  Sufficient details have already been given in the statements of the 2^nd and the 3^rd Defendants and Mr. Michael Chan.   Insofar as the proposed interrogatories are directed at the two versions of the minutes of this special meeting, a detailed explanation had been given to the Plaintiff by the letter of the Defendants’ solicitors dated 13 August 2007.

21.  The request for the proposed interrogatories also amounts to a fishing expedition to elicit evidence to be adduced by the Defendants, an attempt to identify potential witnesses and to obtain admissions of fact from the 2^nd Defendant.

22.  Further, part of the interrogatories relate to issues which had already been ruled as irrelevant by HH Judge M. Chan on 23 October 2007 (see paragraphs 7 and 12 above).

23.  Lastly, the proposed interrogatories do not relate to any material issue in this action.  If anything, they concern matters of creditability only, which should be dealt with by way of cross-examination at trial.

Item (IV) – 10^th EOC Meeting

24.  The interrogatories are refused for the same reasons mentioned in respect of item (III) above.

Item (V) – interview between the Plaintiff and the 2^nd Defendant on 25 September 1997

25.  This is an attempt to cross-examine the 2^nd Defendant before the trial and to seek admissions from the 2^nd Defendant, which are not good reasons for the administration of interrogatories.  Further, the Plaintiff was a party to the interview and she can give evidence herself.

Item (VI) – 2^nd special meeting held in March 1998

26.  The request for interrogatories is an attempt to seek discovery and tantamount to cross-examination before trial and a fishing expedition.  Further, the proposed interrogatories only relate to evidence to be adduced by the Defendants and would only advance the Defendants’ case.

27.  In fact, the Plaintiff’s supplemental statement dated 31 May 2007 has been expunged in its entirety including the parts dealing with the 2^nd special meeting of the Administration & Finance Committee.  It was held that issues relating to the DARs, complaints to the Commissioner and appeals to AAB are irrelevant to the action herein, and hence the proposed interrogatories do not relate to any material issue in the action.

28.  Apart from the matter of relevancy, the 2^nd special meeting was held in the presence of the 1^st Defendant’s legal advisors and the business transacted therein is therefore protected by legal professional privilege.  Nevertheless, an extract of this meeting had been voluntarily provided to the Plaintiff.  The minutes had also been held by the AAB as not constituting the Plaintiff’s personal data.  In such circumstances, I do not see the necessity for the Plaintiff to administer further interrogatories in this regard.  Relating to the written responses for the purpose of the investigation referred to in the minutes, the 2^nd Defendant will give evidence along with the other authors of the written responses.  Hence, these should be matters for cross-examination at trial.

(VII) – destruction of the 911 memo

29.  The request for interrogatories is an attempt to seek discovery and tantamount to cross-examination before trial and a fishing expedition.  Further, the proposed interrogatories only relate to evidence to be adduced by the Defendants and would only advance the Defendants’ case.

30.  Further, the proposed interrogatories relate to DARs, complaints to the Commissioner and appeals to the AAB and allegations  of criminal damage, theft, handling stolen good, etc. under paragraph 43(a) of the proposed amendments to the Particulars of Claim, which have been disallowed by HH Judge M. Chan earlier on 23 October 2007, the proposed interrogatories therefore do not relate to any material issue in this action.  At best, they relate to credibility of witnesses which are matters for cross-examination at the trial.

Item (VIII) – discussion before the holding of 1^st special meeting

31.  The request for interrogatories is an attempt to seek discovery and tantamount to cross-examination before trial and a fishing expedition.  Further, the proposed interrogatories only relate to evidence to be adduced by the Defendants and would only advance the Defendants’ case.

32.  Further, the proposed interrogatories relate to matters raised in paragraph 42(A) of the proposed amendments to the Particulars of Claim which have been disallowed by HH Judge M. Chan earlier, the proposed interrogatories therefore do not relate to any material issue in this action.  At best, they relate to credibility of witnesses which are matters for cross-examination at the trial.

Appendix B

Items (I) to (VII) and the other interrogatories in page 1 of the Appendix

33.  The Plaintiff repeats the same interrogatories but this time directed against the 3^rd Defendant.  I refuse these interrogatories for the same reasons mentioned above in respect of the interrogatories against the 2^nd Defendant.

Item (VIII) – performance at seminars

34.  It is the Defendants’ case that the May 1997 seminar was only one example of the Plaintiff’s poor performance and incompetence.  Sufficient details have already been provided by the 3rd Defendant in her witness statement filed on 10 September 2003, and so it is a matter for cross-examination at trial.  Obviously, this is a fishing expedition for evidence on credibility and to obtain admissions of fact, and the proposed interrogatories are therefore wholly unnecessary.

Item (IX) – handling of complaint from Hong Kong Federation of Trade Unions

35.  It is the Defendants’ case that this was another example of the Plaintiff’s poor performance and incompetence.  I refuse the interrogatories for the same reasons given in the last paragraph.

36.  Based on the aforesaid, I dismissed the Plaintiff’s application for leave to administer interrogatories against the 2^nd and the 3^rd Defendants.

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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DECISION

1.  On 23 October 2007, I handed down my Decision on the Plaintiff's application by summons to join 9 proposed defendants as parties and to amend the Particulars of Claim ("Decision").  On 23 November 2007, the Defendants' summons to expunge the witness statements of the Plaintiff, and the Plaintiff's summons for discovery, were heard.  This is my decision on these latter summonses.

Background

2.  The Plaintiff, Miss Sit, was employed as Director (Gender) of the 1st Defendant, the Equal Opportunities Commission since 9 September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  This action was commenced by Miss Sit against the Commission on 24 September 1999 under the Sex Discrimination Ordinance ("SDO") and the Disability Discrimination Ordinance ("DDO").  Miss Fanny Cheung, the former Chairman of the Commission, was named as 2nd Defendant.  Miss Angela Ho, the Chief Executive of the Commission, was named as 3rd Defendant. Miss Sit makes claims of disability discrimination and sex discrimination against her during the period of her employment, which she claims resulted in the termination, and claims by way of relief damages, interest and a declaration that she had been discriminated against on grounds of disability and/or sex.

I. Summons to expunge Miss Sit's statements

3.  As a result of the Decision which allowed some of the amendments proposed by Miss Sit, the Defendants have withdrawn some of their  original objections to the contents of Miss Sit's witness statement dated 9 September 2003. Miss Sit, on her part, also conceded to the deletion of some paragraphs originally contained in her statement of 9 September 2003, as a result of the remaining objections maintained by the Defendants and in the light of the Decision.  I therefore only deal with such of the paragraphs of Miss Sit's statement dated 9 September 2003 as are maintained by her and remain to be objected to by the Defendants.  These are : paragraph 18, the heading preceding paragraph 24, and paragraphs 28, 106, 111 to 114, 116 to 126.  The Defendants also seek to expunge the entirety of Miss Sit's statement dated 1 June 2007.  The grounds of the Defendants' application are that those parts of the statements should be expunged as they are irrelevant, unnecessary for the fair, just and expeditious disposal of the matter in the action and/or are inadmissible.

Miss Sit's Statement of 9 September 2003

Paragraph 18

4.  In paragraph 18 of her statement, Miss Sit referred to newspaper reports on the bad performance of the Commission under the chair of Miss Cheung.  She claimed that the Sing Tao Daily reported on the alleged seven sins of the Commission, including partiality shown to big corporations and public utility companies, its staff failing to fully understand principles of equality, rigid complaint mechanism, etc.  It would appear that Miss Sit seeks to rely on these reports to show either the Commission's bad performance, Miss Cheung's alleged inadequacies or the lack of abilities of Mr. Tong who was allegedly responsible for the "sins" referred to in the newspaper reports. 

5.  The performance and abilities of the Commission and Miss Cheung are not matters in issue in these proceedings.  Even if Mr. Tong's performance as an alleged comparator is relevant to the matters in issue in these proceedings, the reports contained in the newspapers are not evidence of Mr. Tong's abilities, or lack thereof.  For this reason, paragraph 18 should not be allowed to stand as it contains irrelevant matters which will only delay the trial of the action.

The heading preceding paragraph 25

6.  The Defendants seek to expunge the words "SDO and" from the heading.  For the reasons set out in the Decision, the Amended Particulars of Claim does not disclose any cause of action based on harassment under the SDO.  The reference to harassment under the SDO should be expunged as it is irrelevant.

Paragraph 28

7.  In this paragraph of her statement, Miss Sit referred to an example of the alleged incompetence of Miss Papadopoulos, the Commission's in-house legal adviser. 

8.  In this action, Miss Sit makes claims of the Defendants' alleged discrimination against her on the ground of her sex or disability. Miss Papadopoulos is arguably a comparator for the purposes of Miss Sit's claim of discrimination on the ground of her alleged disability.  I will allow paragraph 28 to remain as Miss Sit claims this is relevant to the work performance of Miss Papadopoulos, and the issue of whether Miss Sit had been given unfavorable treatment with reference to a comparator such as Miss Papadopoulos without Miss Sit's alleged disabilities.

Paragraph 106

9.  Miss Sit claims that as a result of various events as set out in paragraphs 102 to 105 of her statement, she had been subjected to "harassment, offensive action, humiliation, intimidation and victimization" by Miss Cheung and Miss Ho.  The Defendants seek to expunge the words "harassment, offensive action, humiliation, intimidation" on the ground that they are irrelevant, unnecessary and inadmissible.

10.  The Amended Particulars of Claim does not disclose any cause of action of harassment under the SDO.  As explained in the Decision, I only allowed an amendment concerning the claim of victimization under SDO.

11.  However, Miss Sit's claims in these proceedings include claims under the DDO.  She referred in paragraphs 5 and 9 of the Amended Particulars of Claim to discrimination against her by reason of her alleged disabilities.  She also referred in paragraph 10 to "harassment" under DDO, although with references to sections  22(2) and 22(3) of DDO.  Paragraphs 5, 9 and 10 were not the subject matter of the opposition to Miss Sit's application heard on 21 September 2007. In view of the definition of "harassment" in section 2(6) of DDO, I will permit Miss Sit to retain the references to "harassment" and "humiliation" in paragraph 106 of her statement. 

12.  Since any acts on the part of Miss Cheung and Miss Ho of alleged offensive action or intimidation do not support any other pleaded cause of action, I will allow the Defendants’ application to expunge these words in paragraph 106 as they are not relevant to the matters in question in this action.

Paragraph 111

13.  Miss Sit referred to newspaper reports in Tin Tin Yat Po dated 10 May 1997, to support her claim of the bad work of the Commission.  The newspaper reports are not evidence of the work performance of the Commission, how it was run and/or its alleged lack of transparency, even if these matters are relevant to the matters in issue in these proceedings.  I will allow the Defendants' application to expunge this paragraph as being irrelevant, unnecessary and containing inadmissible evidence.

Paragraph 112

14.  The Defendants seek to expunge the reference to Miss Cheung’s and Miss Ho’s lack of supervision of Miss Papadopoulos.  The work performance of Miss Cheung and Miss Ho, neither of whom are alleged to be comparators in Miss Sit's claims of discrimination, are not relevant to the claims made in these proceedings as disclosed and allowed in the Amended Particulars of Claim.  The Defendants' application is allowed.

Paragraphs 113 and 114(2)

15.  Miss Sit referred to criticisms made by third parties of the sexual harassment policy of the Commission, and claimed that such criticisms are attributable to the alleged incompetence and poor professional knowledge on the part of Miss Cheung, Miss Ho and Miss Papadopoulos.  These criticisms by third parties are not evidence in these proceedings, and are not relevant to the matters to be determined by the court in these proceedings.  I will not allow the Defendants' application on the ground that paragraph 113 is irrelevant, unnecessary and will delay the trial of the action.

16.  For the same reason, I will allow the Defendants' application to expunge paragraph 114 (2) of the statement which refers to the same criticism of the Commission's sexual harassment policy.

Paragraphs 116 to 122

17.  In these paragraphs, Miss Sit referred to criticisms made and dissatisfaction voiced by "various concern groups" against the Commission "under the leadership of" Miss Cheung and Miss Ho.  She referred to newspaper reports contained in the Sing Tao Daily dated 31 July 1999, in the Hong Kong Economic Journal dated 31 July 1999 and in the Oriental Daily News dated 9 April 1999, and which referred to the "sins" committed by the Commission and Miss Cheung, and their alleged mistakes, wrongdoings and performance. 

18.  The alleged mistakes made by the Commission, Miss Cheung and/or Miss Ho are not relevant to the claims of discrimination made by Miss Sit in these proceedings.  Even if they had made the mistakes claimed, the newspaper reports are not evidence of these mistakes, and the alleged mistakes they had made cannot prove that they had discriminated against Miss Sit, as claimed by her in these proceedings.  The newspaper reports are therefore irrelevant to the issues for determination at the trial of this action.  I will therefore allow the Defendants' application to expunge these paragraphs.

Paragraph 123

19.  In this paragraph, Miss Sit claimed that Miss Ho was involved in the Commission's tenders, and referred to Miss Ho's alleged lack of integrity in relation to, inter alia, her work on the Public Education and Research Committee of the Commission.  I cannot see how Miss Ho's alleged misconduct has relevance to Miss Sit’s claims of discrimination made in these proceedings.  I will allow the Defendants' application to expunge this paragraph. 

Miss Sit's statement of 1 June 2007

20.  Miss Sit's statement of 1 June 2007 relates solely to matters concerning her complaints to the Privacy Commissioner’s Office and her appeals to be Administrative Appeals Board in relation to her Data Access Requests to the Commission for the provision of her personal data.  Miss Sit's requests made under the Personal Data (Privacy) Ordinance for the provision of her personal data, how the Commission dealt with her requests, Miss Sit's complaints made to the Privacy Commissioner, and her appeals to the Administrative Appeals Board are all irrelevant to the matters in question in this action, and the issues to be determined at trial.  The matters contained in Miss Sit's statement of 1 June 2007 are therefore all irrelevant to the trial.  At most, they contain matters of argument which may be raised at trial.

21.  I allow the Defendants' application to expunge the entire statement of 1 June 2007.

II. Summons for discovery

22.  Miss Sit by her summons seeks discovery of 6 categories of documents.  The first  are the minutes of the Ninth Commission Meeting of the Commission held on 25 September 1997.  The second set of documents are the minutes of the10th Commission Meeting of the Commission held on 11 September 1997.  According to the Defendants, these documents have already been supplied to Miss Sit on 13 August 2007 and 12 July 2007 respectively.  Miss Sit did not dispute this at the hearing.  An order for discovery of these documents is therefore not necessary.

23.  The third document sought by Miss Sit is described as "L/M (6) to EOC/CR/ENQ/SDO".  I shall refer to this document as "LM6". This is apparently a document or file referred to in a Memo dated 11 September 1997 ("911 Memo") signed by nine members of the Commission's staff and addressed to Miss Ho, in which complaints were made against Miss Sit in relation to her work performance and her management of the Gender Division of the Commission.  The 911 Memo was disclosed by the Defendants, and Miss Sit has a copy of the document since 9 August 2003, as admitted in her statement dated 31 May 2007.  LM6 is not referred to in  any of the lists of documents filed by the Defendants, nor in any of the Defendants' pleadings, affidavits or witness statements.

24.  I accept the submissions made by the Defendants' counsel that since Order 24, rule 10 is not applicable, Miss Sit must show that the order for production of LM6 is necessary either for disposing fairly of the cause or matter or for saving costs.

25.  The Defendants' case is that the complaints made in the 911 Memo were not reasons for the Commission's termination of Miss Sit's employment.  This is stated in the Statements of Miss Cheung and Miss Ho.  Miss Cheung claimed in her statement that the 911 Memo did not contribute to Miss Sit's dismissal as the 911 Memo was not sent until 11 September 1997 and Miss Ho and Miss Cheung had already decided by then that Miss Sit's performance was not satisfactory, that she could not be managed,etc.  Miss Cheung claimed in her statement that she had interviewed the officers who had made the complaint, but by the time the interviews were completed, Miss Ho and Miss Cheung had already decided to call the meeting of the Commission on 24 September 1997 to table the question of whether Miss Sit's employment should be terminated, and the decision was made independently of the complaints made in the 911 Memo.  Miss Ho also claimed that the complainants subsequently agreed to her proposal to withdraw their complaint.

26.  Miss Sit's claims in these proceedings are made on the basis that the termination of her employment was a result of the Defendants' discrimination against her on the ground of her sex and/or disability.  If it is her claim that the 911 Memo or the complaints made therein is/are evidence of discrimination against her, the 911 Memo has already been disclosed.  It is not necessary for her to seek copies of LM6, which is only one document referred to in the 911 Memo.  On review of the matters in dispute as disclosed in the pleadings, I am not satisfied that an order for discovery of LM6 is necessary either for disposing fairly of the cause or matter or for saving costs.

27.  The fourth category of documents sought by Miss Sit are "minutes of some of the files that the Plaintiff had handled which exemplified the Plaintiff's shortcomings stated by the 3rd Defendant during the 1st Special Meeting".  She claims that these documents are referred to in the statement of Michael Chan Yick Man dated 3 April 2003, and filed on behalf of the Defendants.

28.  In paragraph 29 of the statement of Michael Chan dated 3 April 2003, he states as follows:

"

At the A&FC meeting, Dr. Cheung and Angela Ho said that the Plaintiff's performance was sub-standard and that it was clear to them from the quality of her work that the Plaintiff was not competent to carry out the post of Director (Gender).  Angela Ho also stated that the Plaintiff's shortcomings were exemplified in the minutes of some of the files that the Plaintiff had handled, and that she had spoken to the Plaintiff about the deficiencies in her work."

29.  Michael Chan also states in paragraph 30 of his statement, as follows :

"

Dr. Cheung gave a verbal report to Members on the overall performance of the Plaintiff.  She highlighted the Plaintiff's deficiencies in respect of her work performance, leadership, contribution to the 1st Defendant's management team, performance in public and job knowledge.  She also gave examples of the Plaintiff's performance deficiencies at work.  Some Members asked Angela Ho to elaborate on some of her points about the Plaintiff's performance and she supplemented them by giving some cases and examples."

30.  The Defendants' case is that, as explained in the letter dated 21 March 2007 from the Defendants' solicitors to Miss Sit, Miss Cheung and Miss Ho "did not refer to any physical files at the meeting on 20 September 1997" which was mentioned in paragraphs 29 and 30 of Michael Chan's statement.  The Defendants also claim that the documents in the files which allegedly exemplified Miss Sit's shortcomings have already been supplied to Miss Sit.

31.  Counsel for the Defendants argues that the request for discovery of these minutes is too vague.  He also claims that discovery of the minutes should not be ordered, because the documents sought would only advance the Defendants' case.  He relies on the authority of Air Canada v. Secretary of State for Trade [1983] AC 394, where Lord Edmund Davies states :

"

It follows that, at every stage of interlocutory proceedings for discovery, the test to be applied is : Will the material sought be such as is likely to advance the seeker's case, either affirmatively or indirectly by weakening the case of his opponent? …

It is accordingly insufficient for a litigant to urge that the documents he seeks to inspect are relevant to the proceedings.  For, although relevant, they may be of merely vestigial importance, or they may be of importance (great or small) only to his opponent's case.  And to urge that, on principle, justice is most likely to be done if free access is had to all relevant documents is pointless, for its carries no weight in our adversarial system of law."

32.   I am not satisfied that if there are minutes of files which exist, they would not necessarily advance Miss Sit's case.  If there are minutes, but they do not show Miss Sit's shortcomings, then they are relevant to the issues in dispute in these proceedings.

33.   After reviewing paragraphs 29 and 30 of the statement of Michael Chan and the letter dated 21 March 2007 from the Defendants' solicitors which referred to documents in the files having been supplied to Miss Sit but without reference to the minutes of the files referred to by Michael Chan in his statement and referred to by Miss Ho at the A&FC meeting, I consider that the Commission and Miss Ho should make and file affidavits to state whether minutes of the files that Miss Sit had handled and which exemplified her shortcomings, as referred to in paragraph 29 of the statement of Michael Chan, have at any time been in their possession, custody or power, and if not then in their possession, custody or power, when the respective defendants parted with the minutes and what have become of the minutes.  That is all that Miss Sit seeks at the moment.  I will further order that these affidavits be filed and served on Miss Sit within 21 days. 

34.  Counsel for the Defendants submitted that orders for discovery should not be made against Miss Cheung and Miss Ho as they have both left the Commission and clearly do not have custody, power or control of the documents.  Miss Ho made statements in these proceedings.  In her statement of 4 April 2003, she referred to many documents which have been disclosed by the Defendants.  As a party to these proceedings, it can be reasonably envisaged that Miss Ho would remain involved in these proceedings and in the preparations for trial, to the extent that she may have retained and been permitted to retain copies of documents relevant to these proceedings or her role in these proceedings.  If she is not in possession, custody, or control of the minutes referred to in paragraph 33, she can simply make an affidavit and so state.  I do not make an order for discovery of the minutes against Miss Cheung, as (according to the statement of Michael Chan) the minutes were referred to by Miss Ho at the AF&C meeting, and not by Miss Cheung, so it is not likely that Miss Cheung would have retained copies of the minutes in question after she left the Commission.

35.  The fifth category of documents sought by Miss Sit are "speeches prepared and/or drafted by the Plaintiff to the 2nd Defendant".  These are documents referred to in paragraph 11 (b) of the statement of Miss Cheung dated 4 April 2003, where she states :

"

As Chairperson I had to give talks to the public on gender and disability issues.  Usually a speech would be drafted by a Senior Equal Opportunities Officer and checked by the Division's director.  Speeches drafted for me by the Plaintiff's staff were of a poor standard, and included grammatical errors and typos, which indicated to me either that they had not been checked by the Plaintiff, or that she could not spot basic mistakes or improve on them.  In effect, I had to do the proof-reading myself.  The conceptual bases of the drafts submitted by the Plaintiff was sometimes also wrong, and the Plaintiff did not pick up these mistakes, either."

36.  Counsel for the Defendants argued that the documents sought are not properly identified, and the requests for discovery are too wide so as to be oppressive.  He claims that Miss Ho did not in her statement referred to any particular speech prepared by Miss Sit, and that Miss Ho was simply giving an impressionistic view of Miss Sit's work on the speeches.  Counsel also relies on the authority of Air Canada referred to above, and claims that the speeches would only advance the Defendants' case.

37.  Considering the context in which Miss Ho referred to the speeches prepared by Miss Sit, I agree with counsel for the Defendants that the request made by Miss Sit for speeches which she had prepared for Miss Ho is too wide, and that to require the Defendants to make discovery of all the speeches which Miss Sit and her staff had prepared for Miss Ho would be oppressive, considering the probative value, if any, of the documents in question. 

38.  I do not consider that an order for discovery of the speeches sought is necessary either for disposing fairly of the cause or matter or for saving costs. 

39.  Finally, the seventh category of documents sought by Miss Sit are "questionnaires from seminars in May 1997 and English translations".  The Defendants claim that the documents have been supplied to Miss Sit on 12 July 2007, and Miss Sit did not dispute this at the hearing. An order for discovery will not be necessary. 

Conclusion

40.  The Defendants' summons to expunge Miss Sit's statements has been substantially allowed.  Miss Sit's summons for discovery has been substantially disallowed, with the exception of the order I made in paragraph 33 above.  The costs of and occasioned by these 2 Summonses, including the costs of the hearing on 23 November 2007, should be paid by Miss Sit to the 1st to 3rd Defendants, with certificate for counsel, to be taxed if not agreed.

Language

41.  Although Miss Sit made submissions at the hearing in Chinese, all her statements were prepared in English.  Hence, this Decision is in the English language.  If necessary, Miss Sit may apply for a Chinese translation of this Decision.

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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Coram  :  Her Honour Judge Mimmie Chan