X v. Melvyn Kai Fan Lai and Another
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DCEO 4/2016 [2018] HKDC 1485 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO 4 OF 2016 --------------------------
-------------------------- Before: His Honour Judge Ko in Court Dates of Hearing: 8-12 January, 6-9 and 12 February 2018 Date of Judgment: 30 November 2018 --------------------- JUDGMENT ---------------------- A. Background 1.This is a sexual harassment case. 2.The claimant (“X” [1]) is a young female professional pursuing a career in the field of architecture. In 2007, she took up employment with the 2nd respondent (“L&O”), which is a reputable architecture firm with a long history in Hong Kong. 3.In April 2011, X was promoted to the position of Project Designer and began working under the supervision of the 1st respondent (“ML”), who was then an Associate Director of L&O. ML has since become a Director of the firm. 4.There had not been any complaint by X against ML, whether to ML or to L&O, whilst she was working at L&O. On 3 July 2013, X suddenly gave 2 months’ written notice of resignation and her employment ceased on 2 September 2013. 5.On 21 January 2014, she lodged a sexual harassment complaint with the Equal Opportunities Commission (“EOC”) against ML. 6.On 10 March 2016, she commenced this action against both ML and L&O. B. The claim 7.Essentially, X complains that she was sexually harassed by ML whilst she was under his supervision and L&O, as her employer, had failed to do what was necessary to prevent sexual harassment in the workplace. 8.According to her Amended Notice of Claim (“ANOC”), ML frequently touched her, often scanned and stared at her body, and sent her text messages that made her uncomfortable. In February 2012, ML invited her to attend an exhibition in Shenzhen. During the trip, he took excessive and unusually candid photographs of her that caused her to feel that her privacy had been invaded. 9.As against L&O, X alleges that the firm had no policy on sexual harassment and provided no anti-sexual harassment training to its staff. Furthermore, it is alleged that the firm had no complaint or grievance procedure. 10.By this action, X is seeking the following relief:-
C. The defence 11.Both respondents deny any sexual harassment. 12.They aver that X’s claim is, in any event, time-barred. 13.X’s boyfriend (“Y”[2]) used to work in L&O. His employment was terminated in late June 2013. It is ML’s case that X was motivated to claim against him by her mistaken belief that he was somehow responsible for Y’s termination. 14.On the part of L&O, they claim that they had taken such steps as were reasonably practicable to prevent sexual harassment in the workplace and invoke the statutory defence under section 46(3) of the SDO. D. The trial 15.The claim pursued by X at trial is narrower than her pleaded case. 16.First, it was pleaded in paragraph 10 of the ANOC that the impugned conduct was “contrary to the Sex Discrimination Ordinance and/or contrary to common law”. However, the parties have only invited me to consider if ML had engaged in conduct contrary to the SDO and the trial proceeded on that basis.[3] No one has addressed me on any common law cause of action. 17.It is still unsettled whether there is a tort of harassment at common law in Hong Kong.[4] And it is not clear whether the reference to “sexual” harassment is meant to add anything to such common law cause of action if it exists. As the parties have elected not to argue the issue, I shall say no more on it. The ensuing discussion on “sexual harassment” is therefore premised on the SDO. 18.Secondly, the primary case of X against ML was based on section 23(3) of the SDO (sexual harassment against a colleague at work). Although X also invoked section 24(3) (sexual harassment against someone seeking or undergoing training) in the ANOC, no such claim was pursued at trial. 19.Thirdly, “sexual harassment” as defined in the SDO covers two types of harassment: (i) quid pro quo harassment under section 2(5)(a) and (ii) hostile environment harassment under section 2(5)(b).[5] Typically, the first type involves a person in a position of power making unwelcome sexual advances, requests or conduct to a subordinate in return for a benefit or under a threat of a detriment. The second type concerns one or more persons engaging in conduct that creates a hostile or intimidating environment for the victim. Whilst the claimant’s counsel (Ms McClellan) made references to both limbs in her closing submissions (at §12(iii)), no argument was in fact advanced on the latter. 20.Fourthly, X’s claim against L&O is primarily one of vicarious liability based on section 46(1) of the SDO. Despite the pleading in paragraph 29 of the ANOC that L&O also owed X a duty of care, no argument was advanced in that regard. 21.Given the above refinements, the broad issues that require determination are:-
22.In terms of evidence:-
I shall set out their testimony in the discussion below insofar as they are relevant to any issue. 23.There is no dispute over the documentary evidence contained in the trial bundles (“Bundle”), including the documents pertaining to X’s complaint to the EOC. E. Discussion E1. Whether X’s claim is time-barred under the SDO? 24.As stated above:-
25.Under section 76 of the SDO:-
26.The jurisdiction of the District Court to hear such claims is not unqualified. Under section 86:-
27.According to X’s case, the impugned acts happened between December 2011 and September 2013. As this action was only commenced on 10 March 2016, her claim is prima facie time-barred. 28.Ms McClellan deployed two arguments to tackle the limitation defence. 29.First, she argued that: “the impugned acts continued and extended over [X’s] employment whilst under the supervision of Mr Lai from late 2011 until she left her employment in 2013”. Under section 86(5)(b), any act extending over a period shall be treated as done at the end of that period. By such argument, she is hoping to defer the commencement of the limitation period in respect of all the impugned acts to 2 September 2013. 30.More importantly, Ms McClellan invoked section 86(2A) which is in these terms:
31.She relied on the oral testimony of X (in terms of paragraphs 30 to 36 of the ANOC) and argued that the period that elapsed between 21 January 2014 (being the date when X lodged her complaint with the EOC, as pleaded in paragraph 30) and 31 December 2014 (being the date when the complaint was disposed of by the EOC, as pleaded in paragraph 33) should be disregarded in reckoning the limitation period. If she was right, then a period of about 12 months might be knocked off and X’s claim would be within time. However, I do not agree with her contention. 32.Section 86(2A) specifically calls for written certification by the EOC of the period that elapsed between the date when the complaint was lodged and the date when the complaint was disposed of. Despite her submission that “the letter from the EOC on 31 December 2014 satisfies the requirement under section 86(2A) of certification in writing from EOC”, that letter was only mentioned in paragraph 33 of the ANOC (which was adopted by X in her oral testimony) but was never produced. So, there is no written certification based upon which X could invoke section 86(2A). 33.In the end, Ms McClellan was driven to invoke the residual discretion of the court to entertain X’s claim under section 86(3) of the SDO – a course which was neither pleaded nor argued in her written submissions. 34.That section provides that:-
35.All parties agree that I should adopt the following approach, taken from Siu Tung Choi v Foo Lum Holdings Ltd [2016] 1 HKLRD 1411 at §29:-
36.The six specific factors mentioned above (couched in terms of a general civil action) are:- (i) the length of, and the reasons for, the delay on the part of the plaintiff; (ii) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed; (iii) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (iv) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (v) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and (vi) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. 37.In the present case, I am not satisfied that it is just and equitable for the court to entertain X’s claim made out of time. 38.First, X is still 6 months out of time even if I accept the continuous act argument advanced by Ms McClellan. The period is not insubstantial bearing in mind that the SDO requires proceedings to be commenced within 24 months. 39.Secondly, according to X she had been on guard prior to ML becoming her supervisor by reasons of the rumors that ML had acted inappropriately against other female staff. When she began receiving uncomfortable text messages from ML and was allegedly touched on her thigh in December 2011, she should have realised that she had fallen victim to sexual harassment. According to her, she had since then been subjected to daily and escalating harassment. Yet, she did not raise any complaint until January 2014 and only commenced this action in March 2016. 40.It is not X’s case that she had been prevented by illness or disability from commencing this action. There is also no suggestion that the respondents had anything to do with the delay. 41.Ms McClellan has suggested from the Bar table that X had wanted to avoid multiple proceedings and to pursue her complaint through the EOC process. The suggestion is not borne out by the evidence. 42.According to X, EOC investigated her complaint and suggested conciliation. On 31 December 2014, she was informed that conciliation had failed whereupon she applied for legal assistance to pursue her complaint further. The EOC granted her legal assistance in April 2015, but the same was later withdrawn in December 2015. So, the EOC process had ended long before September 2015 (being 24 months from September 2013 when the limitation period began to run according to Ms McClellan’s continuous act argument). X had legal assistance when the limitation period ran out in September 2015 but did not file any claim. 43.X explained that she had been afraid that her career would be jeopardized if she raised a complaint. In particular, she was mindful of the importance of obtaining a good reference. That was why, according to her, she had reacted passively to the harassment. 44.In my view, that does not explain the delay. X left L&O in September 2013. In late October 2013, she received a favourable reference from L&O which was in terms of a draft submitted by her. She took her professional examination and then went on an overseas trip. Upon returning to Hong Kong, she looked for a job and was offered employment at another established architecture firm in mid-January 2014 on terms that were more favourable than her employment with L&O. So all her inhibitions were gone by January 2014 and she complained to the EOC on 21 January 2014. Yet, she did not file a claim before the limitation period ran out in September 2015 notwithstanding the fact that she had legal assistance at that time. 45.By the foregoing analysis, it was X’s own making that she had missed the deadline and the delay remains unexplained. 46.Thirdly, I do not agree with Ms McClellan that X had “timelessly pursued her claims both vis-à-vis the EOC and vis-à-vis these court proceedings”. As mentioned above, there is no explanation as to why X did not commence proceedings when she had legal assistance from the EOC. It took her another 3 months after the termination of her legal assistance to commence this action. 47.Fourthly, there is evidence that what was adduced at trial in terms of evidence has become less cogent because of the delay. 48.According to Ms McClellan, the claimant called Cindy Lam to give similar fact evidence. It is Ms Lam’s evidence that she had been sexually harassed by ML whilst she was working in L&O. She made a complaint to her supervising Director (David Stanford) and to the Principal Director (Dominic Lam) but to no avail. 49.ML admitted in court that he had been informed by the management of a complaint made against him by a female colleague but claimed that he had not been told of the details (such as the identity of the complainant). He only learnt about Ms Lam’s complaint through reading her witness statement filed herein and he denied her allegations. 50.David Stanford (a witness for L&O) could not recall either Ms Lam or her complaint. Dominic Lam retired from L&O in 2013 and was not available to give evidence. The staff record pertaining to Ms Lam was destroyed. The bits and pieces of documentary evidence produced by Ms Lam (such as unsigned timesheets, her resignation letter and reference letter) do not shed light on her complaint. It is understandable for L&O’s counsel (Mr Chung) to complain in his closing submissions that his client would suffer grave injustice if X were allowed to proceed with her claim under such circumstances. 51.Lastly, I am directed by section 86(3) to consider all the circumstances. ML’s counsel (Ms Herbert) made the point that the claimant had been alerted to the missing certificate on the first day of the trial and could have plugged the loophole (so to speak) as the trial had been adjourned part-heard for a month in the middle of the claimant’s case. Yet, nothing was done to remedy the situation. 52.In summary, X’s claim is clearly out of time and the delay is substantial. No explanation has been proffered for the delay. There is no good reason for me to overlook the clear requirement of section 86(2A) (of written certification) in the circumstances of this case for X to proceed with her claim notwithstanding that it is out of time. 53.So, X does not get pass the first hurdle and her claim should be dismissed on the limitation ground alone. In deference to the submissions made, I shall continue to discuss the merits of her claim. E2. Did ML commit any unlawful sexual harassment against X in terms of the SDO? 54.Before turning to the specific complaints, I shall first discuss what “sexual harassment” is and how it may be proved. E2.1 What is “sexual harassment” under the SDO? 55.“Sexual harassment” is defined in section 2(5) of the SDO:-
56.Sections 23 and 24 apply the definition in employment field. Of particular relevance to this case is section 23(3), which provides that:-
There is no dispute that this is applicable, as ML and X were both employed by L&O at the time. 57.The Court of Appeal has given guidance in Chen Ray v Tamara Rus [2001] 3 HKLRD 541 (at §9) on how sexual harassment under section 2(5)(a)[6] may be proved:-
58.Three aspects of the test were mentioned:-
59.For the purpose of the ensuing discussion, the first aspect requires some elaboration. 60.First, the general rule in civil cases is that the party who substantially asserts the affirmative of an issue bears the burden of proof.[7] Since the SDO provides (in section 76) that a sexual harassment claim may be made the subject of civil proceedings in like manner as other tort claims, it is for X to establish that the impugned conduct has taken place. On the other hand, it is for ML to substantiate his accusation that he is being framed by X. 61.Secondly, whilst the standard of proof in civil cases is generally on the balance of probabilities, the civil standard is flexible in its application. In A Solicitor (24/07) v The Law Society of Hong Kong (2008) 11 HKCFAR 117 at §116, the Court of Final Appeal said that:-
62.In the often-quoted judgment of Lord Nicholls in H (Minors) [1996] AC 563, it was explained (at 586D-H) that:-
63.In the present case, X’s allegation of sexual harassment and ML’s allegation of frame up are both serious. Both allegations arose in the context of their professional practice and impact on their integrity. If X is right, then ML may even have committed the offence of indecent assault. However, accidental touching is generally more likely than deliberate touching especially in an office environment. On the other hand, even if ML is exonerated by these proceedings, it does not mean that X had lied. It is generally more likely that she was over-sensitive to ML’s conduct than for her to deliberately lie or invent evidence to frame him. In the premises, I shall consider the evidence carefully to see if their respective allegation is cogent enough to overcome the unlikelihood of what is alleged. 64.Thirdly, the event complained of is one of sexual harassment. What distinguishes sexual harassment from other forms of statutory harassments[8] is the “sexual” nature of the complaint – viz the statutory definition is couched in terms of “unwelcome sexual advances”, “unwelcome request for sexual favours” and “unwelcome conduct of a sexual nature”. 65.Section 2(7) of the SDO provides an example of “conduct of a sexual nature”, namely, making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing. Again, the “sexual” nature of the statement is emphasized. Apart from that, there is no elaboration in the ordinance of what “sexual” means. 66.The online Oxford dictionaries carries this meaning of the word: Relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.[9] 67.It has been said that our laws on sexual harassment were modelled on Australian jurisprudence.[10] Our definition of “sexual harassment” is almost identical to that in section 85 of the Equal Opportunity Act 1995 of the State of Victoria in Australia. 68.In AB v Adult Multicultural Education Services [2006] VCAT 1862 at §§18 & 19, Judge Davis of the Victorian Civil and Administrative Tribunal Human Rights Division said this of the Australian provision:
69.It is apparent from the above that the meaning of “sexual” extends beyond indecency. Depending on the circumstances, physical activities, words or conduct relating to matters which have to do with sexual activity, physical attraction or relationships can amount to sexual harassment. 70.In the Hong Kong context, the EOC has issued a “Code of Practice on Employment under the Sex Discrimination Ordinance”(“the EOC Code”) aimed at, inter alia, the elimination of sexual harassment.[11] It contains the following examples of sexual harassment in the workplace:[12]
71.The EOC has also published a few booklets to educate the general public on sexual harassment and to provide practical assistance.[13] The booklet entitled “Preventing and Dealing with Sexual Harassment” (“the EOC Booklet”) carries the following examples of sexual harassment:[14]
72.In my view, the examples given by the EOC for the Hong Kong context are consistent with the ordinary meaning of the word and the elaboration of Judge Davis. In particular, conduct of a sexual nature is not confined to indecent conduct, see the example of “Repeated attempts to make a date, despite being told “NO” each time”. These examples, whilst not exhaustive, demonstrate the broad ambit of the law in terms of protection against sexual harassment. 73.The second and third aspects are derived from the statutory definition. 74.On the subjective aspect, the Court of Appeal said (in Chen v Tamara Rus at §9)that:-
75.It does not matter how the complainant viewed the advance, request or conduct in retrospect.[15] What matters is that “at the time when the matters of which complaint is made took place they were unwelcome to the plaintiff”.[16] 76.It was also said in the first instance decision of Chen v Tamara Rus, supra that:-
77.One cannot have workable laws which proscribe activities solely based on the attitude of the recipient of those activities. Apart from proving that the impugned conduct was not welcome by the complainant, it must also be shown that a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, humiliated or intimidated. This is the objective aspect of the test. 78.The relationship between the subjective and objective aspects of the test was discussed in Reed v Stedman [1999] IRLR 299at §30 (a case cited by all the parties):-
79.In my view, the example of “Repeated attempts to make a date, despite being told ‘NO’ each time” mentioned in the EOC Booklet provides a good illustration of the interplay between the three aspects of the test. An attempt to make a date with another person may be due to physical attraction or out of a genuine desire to build relationships instead of anything indecent. Nonetheless, persistent attempts to make a date in the face of repeated rejections can constitute sexual harassment if the circumstances are such that a reasonable person would have anticipated that the complainant would feel offended, humiliated or intimidated. As it is for each person to define his/her own level of acceptance, it is often necessary (save for conduct that is clearly “sexual”) for a complainant of sexual harassment to make known his/her rejection before repetition of a similar conduct could amount to sexual harassment. 80.In one of the first cases on sexual harassment in Hong Kong,[17] the court accepted that:-
81.In the present case, whilst some of X’s complaints are clearly sexual (such as the touching of her buttocks and thigh, and the staring and scanning of her body), her other complaints (such as the text messages) are more subtle. For the latter type of complaints, it would be necessary for her to show that the circumstances of her complaint were such that a reasonable person would have anticipated that she would be offended by such conduct. 82.I shall now turn to the specific complaints. To recap, they comprise:-
E2.2 Physical contact 83.Of the allegations, those involving physical contact are most indicative of sexual harassment. As said in Reed v Stedman, a woman does not have to make it clear in advance that she does not want to be touched in a sexual manner. E2.2(a) Touching of buttocks 84.The touching of buttocks allegedly happened on 8 July 2013 during a site inspection. On that day, ML led a delegation (including Government officials) to inspect a 13-storey building. Although X had not been involved in the project, ML invited her to come along and she agreed to join as it would be a good opportunity for her to learn and gain experience. 85.It is X’s evidence that: “During the site visit, I fell behind the group to look at the walls and the finishings and was walking along a corridor that was about 2.5 meters wide. I thought I was alone in the corridor until someone came up behind me and brushed my buttocks. I was shocked and abruptly turned around upon which I saw Mr Lai over my shoulder. He said ‘oh, sorry’ to me and walked past quickly.” 86.She suspected that: “… Mr Lai had invited me to the site visit in order to do something like this and waited for his opportunity and when he saw me alone, he brushed past me, touching me. I believe that Mr Lai set up this opportunity and abused my eagerness to gain more experience. I was furious and I felt insulted by his inappropriate behaviour.” 87.All these are denied by ML. 88.I do not think X has quite established the event. 89.X’s accusation, if substantiated, amounts to the commission of the offence of indecent assault. However, the circumstances of the inspection were such that it was rather unlikely for ML to have done that.
90.As the touching allegedly happened when no one else was around, there were no witnesses to corroborate X’s account. On the other hand, I do not find X’s evidence reliable:-
91.I therefore find against X on her allegation of touching of buttocks. E2.2(b) Touching of thigh 92.The touching of thigh allegedly happened in the office. According to X, ML sometimes pulled his chair from his desk to sit next to her to review matters on her computer. She said that: “In two to three occasions, he would position himself close to me so that his thigh would touch my thigh. He also leaned toward me so that his elbow was on my chair’s arm rest. This unsolicited physical contact was both unwelcome and unnecessary. I tried to avoid contact by moving away from Mr Lai to the furthest side of the chair, however, he would simply move closer to me. I also tried to turn the monitor toward him, hoping that it would cause him to sit up straight and stop leaning in my direction. As stated above, even though I took pains to avoid physical contact, Mr Lai would continue to move closer to me in order to maintain or resume the physical contact until I had no room to move further away. In these circumstances, Mr Lai would maintain the physical contact for the duration of the meeting between Mr Lai and myself. The meeting lasted approximately 10 minutes as we needed to go through each issue and take immediate action to change things in the document. I felt intimidated and demeaned by Mr Lai’s [sic] but unable to complain as he was my boss. I hoped that Mr Lai would respond to the very clear signals I was sending him via my body language and repetitive failure to respond to his attempts at physical intimacy and realise just how unwelcome his behaviour was and how extremely uncomfortable it made me feel.” 93.ML could recall one occasion in 2012 when he had to sit next to X at her workstation to review a presentation that she was working on but he denied positioning himself in such a way that their thighs would touch. 94.Having considered the evidence very carefully, I am not satisfied that X has proved the event. There are some disquieting features in her account that remain unresolved to the end. 95.X and ML worked in an open plan office. It is common ground that the floor plan on page 424 of the Bundle accurately depicts the layout at the time. I have annexed to this judgment an enlargement of the relevant part of the floor plan with the name of the staff occupying each desk masked (Appendix B). The row where X and ML were seated is marked Row B, and the rows to its left and right are marked Row A and Row C respectively. I shall refer to the seating arrangement of each row from top to bottom. At the material time, X and ML were occupying B4 and B5 respectively. 96.The office is fitted with carrel-style desks with high sides of about 5 meters tall. Thus, someone sitting in B4 would be visually isolated from those sitting in B3 and B5. However, it is not clear if there was anything blocking the view of B4 from A4. No one cared to explain in evidence what the rectangle between A4 and B4 was. Was it a low side-table, or a tall bookcase or file cabinet? More importantly, could someone sitting at A4 observe what was going on at B4 bearing in mind that it is X’s evidence that she was sending “very clear signals … via body language” of rejection? If so, whoever was sitting at A4 should be able to observe ML inching towards X and X’s response. There is no such evidence. 97.Although there is a thick black line drawn between Row B and Row C on the floorplan, it is common ground that there was in fact nothing separating the rows. In other words, B4 was in full view of those sitting in Row C (especially the staff seated at C4) as well as those using the aisle. There was also a printer station at the end of Row C (marked “PRN046” on the floor plan) where, according to the evidence, people frequented. 98.It is X’s evidence that the harassment had gone on for 10 odd minutes and she had sent out very clear signals of rejection. According to Ms Au (one of X’s witnesses), her workstation “was situated close to the photocopier and the corridor to the pantry”. However, she only said she saw ML looking at X on two to three occasions but did not mention any thigh-touching incident. As I have mentioned above, the name of the staff occupying each workstation is documented. It would not be difficult to ascertain from those sitting around B4 and B5 if they had seen anything. I find it perplexing that the harassment could have gone on for so long without anyone noticing it. 99.According to X, she had been harassed by thigh-touching for two to three times. Even if X was unable to avoid the touching when it first happened, the layout of the office (as described above) was such that it would not be difficult for her to foil any subsequent attempt(s), eg by standing up the moment when ML moved his chair around. 100.The mechanism of the alleged touching is also unclear. It is X’s evidence that her chair was fitted with arm rests. It is not known if ML’s chair was similarly fitted with arm rests. In the end, I am left to ponder myself how their thighs could have come into contact given the arm rest(s) in-between. 101.All in all, X has failed to convince me on her allegation of thigh-touching. E2.2(c) Touching of hand 102.According to X:-
103.ML said that the passing of papers and objects between them happened very infrequently. He could vaguely recall that on one occasion X had held a piece of paper in front of him by the corner but he denied any sexual harassment. 104.In my view, it is difficult for colleagues at work to avoid physical contact altogether. This is particularly true for a busy architectural office where documents, drawings and stationery are passed around. 105.X said she was certain that the hand-touching was intentional and not accidental because of “the frequency, nature, duration, and the way of touching”.
106.Much was said in closing submissions about ML’s response to the EOC in April 2014 that: “I do recall in passing documents that I might have accidentally touched her hands and such was my careless behavior. Although I have seen other colleagues in physical hand contact with her on some occasions, I agree that this is entirely personal and cannot be generalized. Once she flags up her resentment in holding documents with finger tips, this alarms me and I become more vigilant to refrain from such careless behavior. If the complainant feels offended in any way, she deserves my apologies.” This has led Ms McClellan to submit that ML could in fact recall the hand-touching. 107.ML has provided a plausible explanation. He said that he had been advised by the EOC to be conciliatory and not to use words that would excite the other side in his response. He further said that: “[W]hen the Claimant made the complaint against me in the EOC, I thought very hard to think why she would make such an allegation. I thought of the occasion when she held the corner of the paper and I considered that maybe it was possible that it was a reaction to an accidental touching. I prepared my response to the EOC without legal advice and appreciate now when I look back on it that it is badly worded. In relation to this complaint what I meant to say was that if the Claimant had ever raised any concern, I would act on that concern and apologise if I had done anything to cause upset.” 108.In any event, ML’s response to the EOC is consistent with his evidence in court that he might have accidentally touched X’s hand out of carelessness. In the end, there is nothing to show that the touching of hand in the office environment was intentional. 109.I now turn to consider the allegation relating to external meetings. It is X’s evidence that ML “caressed” her fingers when she passed a pen to ML during such meetings. However, she omitted to mention such conduct in her complaint to the EOC back in 2014 when the incident(s) should be fresh on her mind. I do not find her evidence reliable. 110.All in all, I find against X on her allegation of hand-touching. E2.3 Staring and scanning 111.It is X’s evidence that: “Between January 2012 and September 2013, I noticed that Mr Lai would look at me in a way where he would scan my body from top to bottom or would stare for an inordinate amount of time at my chest or lower body. This type of staring or leering at me happened on a number of different occasions and would include when I would be walking through the office, when he was listening to me reporting on the progress of projects or during discussions at his workplace. I also noticed that he would eye me from top to bottom when he would see me from a distance. On these occasions, Mr Lai would stare at me at length and for not less than approximately five seconds, such that I would become extremely uncomfortable as I felt that he was studying my figure in detail. Mr Lai would not stop staring at me or look away, even if I made eye contact indicating that I had ‘caught him’ staring at me. I did not notice Mr Lai looking at other female or male colleagues like this. As with the inappropriate touching, when Mr Lai would look at me in this way, I felt uncomfortable. The way that Mr Lai looked at me was different from a glance or look from other colleagues, both male and female. Mr Lai’s behaviour left me feeling disgusted and upset. I also felt trapped as I had to see him every day at the office.” 112.This is denied by ML. 113.I accept that scanning a woman from head to toe and staring at a woman’s chest or lower body for an inordinate amount of time could be described as “leering and lewd gesture” (per the EOC Code) or “obscene gesture” (per the EOC Booklet) and constitute sexual harassment. However, much depends on the circumstances. In my view, it is unavoidable in an office environment for colleagues to look at each other whether from a distance or during discussions. Sometimes, people engaging in deep thought may appear to be staring at others. There may also be innocent explanations as to why one would stare at or scan another’s body. For example, it is ML’s evidence that X had asked him to spin like a model when he wore designer shirts to work. Under cross-examination, X claimed not to recall the occasion but said she would not dispute ML’s account. 114.In the present case, X insists that ML’s gaze was different and constituted sexual harassment because: (i) he scanned her body from top to bottom to study her figure and stared at her chest or lower body for an inordinate amount of time; and (ii) he did not look at other colleagues like that. 115.X called Ms Au to corroborate her complaint. According to Ms Au: “During my time at L&O, I witnessed that Mr Lai often looked at the Claimant in the office. During my Work Experience, my seat was situated close to the photocopier and the corridor to the pantry. I saw Mr Lai look at the Claimant walking to the pantry when he was doing photocopying on at least two to three occasions. I am sure that Mr Lai was looking at the Claimant on these occasions as she was the only one on the corridor. I also observed that Mr Lai seemed to pay close attention to the Claimant as he did not appear to be focused on the operation of the photocopier and would fail to close the photocopier lid when the Claimant passed by. When Mr Lai was sitting at his workspace and the Claimant had to pass by, he would raised his head so the partition could not block his view of the Claimant. I told the Claimant afterwards, she told me she was not aware of it and felt shocked after hearing that.” 116.In my view, Ms Au’s evidence tends to undermine (as oppose to support) X’s case.
117.In the circumstances, I am not satisfied that X has established any sexually harassment by staring and scanning. E2.4 The Shenzhen Biennale exhibition 118.The Shenzhen Biennale (“SB”) was an exhibition in urbanism and architecture in Shenzhen that ran from 18 December 2011 to 19 February 2012. The exhibition was well publicized amongst architects in Hong Kong. 119.According to X, ML produced a brochure of the exhibition to her and suggested that they should go together. She understood that his invitation did not extend to other colleagues. She felt uncomfortable and “[i]n order to avoid having to go to the SB alone with Mr Lai, I invited other colleagues from the office to go as well.” 120.Following ML’s invitation, X sent out the following email to over a dozen colleagues:-
X sounded enthusiastic in the email. There was no indication that she found ML’s invitation unwelcome. 121.On 18 February 2012, around 7 to 8 persons (including ML, X, Stephen Yu and Anita Au) went on the trip. 122.It is X’s evidence that after the trip, “I was shocked to find out that he took 11 photos of me. I did not give him any permission to take my photos. I noticed Mr Lai was always carrying his camera on that day and I saw him taking photos of the exhibits, but I was not aware that he took pictures of me. Nearly half of the photos were my close-up shots, and most of them were photos of me alone and where I was not looking at the camera; they were taken when I was not noticing or looking.” 123.As to the complaint that ML took excessive and unusually candid photographs of X, it is noted that:-
124.When it was pointed out to X during cross-examination that Stephen Yu had in fact taken more such photographs of her (totaling 14) than ML (just 11), she replied that Stephen Yu was a friend and it was normal for friends to take photographs of each other but she did not consider ML a friend. 125.In my view, it is normal for participants in a group trip to take photographs of each other, even close-up portraits when the subject is not looking into the camera. There had been no indication from X that she would mind such photographs being taken of her. It could not have been anticipated that she would be offended by ML (but not others) taking such photographs of her. 126.There was no sexual harassment in relation to the trip. E2.5 Text messages 127.The staff of L&O generally used instant messaging platforms (such as WhatsApp) for communication on top of other more official channels (such as company email). Whilst X was working in L&O, X and ML used WhatsApp to communicate with each other. They have both adduced their communication records in evidence, which are generally consistent save that there is a slight difference in the timing of the messages. 128.The messages that had transpired between X and ML were mostly work-related. It is X’s complaint that ML also sent messages unrelated to work to her that made her uncomfortable. Her complaint covers 23 communications.[22] They are set out in Appendix A. 129.The impugned messages may be grouped under the following headings:
130.In her closing submissions, Ms McClellan went beyond X’s complaint and made references to two more communications:
131.She argued that:-
132.It is apparent that Ms McClellan’s argument was crafted on the basis of the UK case of Miss S Majid v AA Solicitors Ltd t/a AA Solicitors, Asghar Ali, unreported, Employment Tribunals Case No 2409586/2013, 4 June 2014, cited by her. 133.In that case, the respondent was the claimant’s employer. The respondent’s rather innocuous enquiry as to what the claimant had been doing was held to be sexual conduct because (at §§55 & 56):-
134.Thus the decision was premised on a pattern of prior suggestive or personal remarks on the part of the respondent. That included: asking the claimant if she had been spoken for and whether they would get married (Allegations 2 & 4 in the judgment); leaning over to feel the claimant’s arm whilst commenting that the claimant must go to the gym often as she was very stocky (Allegation 3); informing the claimant that there was a double shower at the office (Allegation 5); informing the claimant that he was going to put a double bed in the cellar of the office for an out-of-hours chill-out area (Allegation 6); and trying to hug the claimant (Allegation 7). 135.As explained in Reed v Stedman (at §29):-
136.In the present case, I have found against X on her complaint based on physical contact, staring and scanning and in relation to the SB exhibition. Unlike the UK case cited, there was no blatant act of a sexual nature or prior pattern of personal or suggestive remarks for me to cast a different light on the impugned messages. 137.The general impression I derived from perusing those messages is that they were general chit-chats commonly transpired between acquaintances and friends. The timing, nature and context of ML’s messages were quite unremarkable. As I shall endeavor to show in the discussion below, there is nothing “sexual” in those messages. 138.Much was said about the “power imbalance” between ML and X. Ms McClellan went as far as suggesting that: “While some behaviour may be acceptable between colleagues, the same or similar behaviour targeting or focused on Ms X by Mr Lai may not be acceptable or welcome to Ms X.” 139.As said in O’Callaghan v Loder, supra (at p 28)that:-
140.There had been no indication from X that she took exception to ML’s messages. It was wrong for Ms McClellan to suggest that their supervisor-supervisee relationship per se would turn an otherwise innocuous conduct into sexual harassment. 141.It is apparent from Appendix A that the impugned messages were reciprocated by friendly replies from X most of the time. It cannot be said that a reasonable person would, in the circumstances, have anticipated that X would be offended, humiliated or intimidated by such messages. E2.5(a) Photo invitations 142.It is common ground that ML was a keen photographer. He had taken photographs for a number of work-related functions and events before. It is not surprising that he was keen to take photographs at his leisure too. 143.In my view, there is nothing wrong for co-workers to get together socially outside office hours. ML had thrice invited X out to take photographs (including the one identified by Ms McClellan). These invitations were made in December 2011 (Chat “aa”), March 2012 (the chat identified by Ms McClellan) and April 2012 (Chat “a”) respectively. 144.X accepted none of the invitations:-
145.So, X did not expressly decline any invitation. It was not apparent from her rather lighthearted and friendly replies that she had been offended. This is very different from the “Repeated attempt to make a date, despite being told ‘No’ each time” scenario mentioned in the EC Booklet. E2.5(b) Inquiries as to X’s health 146.Prior to each of the impugned messages, ML had been informed that X had taken ill and gone home early. In my view, there is nothing wrong for colleagues to be concerned about each other’s health or well-being. This is all the more so for supervisors who would have to make alternative work arrangement if his/her subordinate cannot return to work on the following day. 147.In her closing submissions, Ms McClellan complained that the wordings of Chat “k” (suggesting X to “Take a hot water shower and this will put u to sleep”) and Chat “n” (asking X “Is someone looking after you?”) were overly personal and intrusive. ML also agreed, under cross-examination, that such remarks were “personal” and that he would not normally send such message to his subordinates. 148.In my view, there is nothing “sexual” in those remarks. The test is not whether the messages contained “personal” or “intrusive” remarks but whether they relate to matters which have to do with sexual activity, physical attraction or relationships. In fact, X had similarly probed into ML’s personal life before:-
E2.5(c) Invitations to meal 149.As can be seen from the following table, it was quite often for colleagues at L&O to share a meal. I have included X’s complaints in the chronology so that the context of those messages may be appreciated.
150.In addition,
151.At the trial, X said she found ML’s invitations objectionable because of their supervisor-supervisee relationship and that ML did not appear to invite other colleagues to meals. However, ML has provided examples of him sharing a meal with other colleagues (including subordinates) at paragraph 10.21 of his witness statement. 152.As shown in the chronology, prior to her first complaint (ie Chat “c”) X had initiated a group lunch to thank ML for showing them around at the SB exhibition (2/3/2012) and invited him to join another group lunch (23/5/2012). There were occasions when X and ML apparently shared a meal without the presence of others (eg 17/8/2012, 14/9/2012, 5/11/2012, as well as the undated quick supper in Wanchai). It is not apparent that she had objected to sharing a meal with ML before. To the contrary, she had apparently invited him to join her for breakfast as late as in March 2013 (5/3/2013). E2.5(d) Invitations to travel to and from work together 153.In relation to the invitations to travel to and from work together (ie Chats “d” and “m”), X thought that ML had gone out of his way to try to be with her. She said that: “According to my knowledge, Mr Lai lived in Ap Lei Chau, and I lived in Sheung Wan, and our office was in Quarry Bay. On occasion and when I was working late, I believe that Mr Lai would remain in the area around the office and wait for me to finish work so that he could take a taxi with me.” 154.It appears that X was mistaken. According to ML:-
155.In my view, it is not unusual for colleagues to share a ride after work. It is ML’s evidence that they had shared a taxi before uneventfully.[28] That was how he came to know about X’s address. There is no evidence that ML had stayed behind to wait for X to finish work. E2.5(e) Birthday and festival greetings 156.X resented ML sending birthday and festival greetings to her. She described ML as generally “not friendly or approachable” and an “introverted person” and was surprised that ML knew about her date of birth. 157.According to ML, he had been invited by Y to attend a cake-cutting celebration on the occasion of X’s birthday in 2012.[29] That was how he came to know X’s date of birth. He thought it would be a pleasant gesture to wish her happy birthday and so he sent her greetings in 2012 and 2013. 158.In my view, it is quite normal for colleagues to greet each other on birthdays and other festivals. Indeed, ML recalled X sending him well-wishes for the Chinese New Year in 2012.[30] ML also received greetings from Y on his birthday, and for Christmas and Chinese New Year.[31] E2.5(f) The messages on 15 December 2012 (Chat “h”) 159.On 15 December 2012, ML sent a message to X enquiring about the location of a restaurant in X’s neighborhood. According to ML, he had an appointment with his high school classmates at Magnolia private kitchen in Sheung Wan. He had not been to the restaurant before and got off at the wrong bus stop and was running late. Upon realizing that the restaurant and X’s residence were in the same building, he contacted X for direction. The communication developed into general chit-chat. 160.It is, however, X’s evidence that: “Once he asked whether I was at home, I became very scared and worried that he planned to come to my home. Based on his previous behaviour, I was concerned that he might come to my home and that because we would be alone, his inappropriate conduct might escalate. Out of concern of my safety as well as to avoid any further overtures by Mr Lai, I showed the messages to [Y], who was with me in the house, and sought his advice on how to reply to Mr Lai. After discussing this with [Y], I replied to Mr Lai and said that I was not at home and was staying at my friend’s place. After sending the message saying I was not at home, Mr Lai discontinued text messaging me for that night.” 161.She complained that: “… Mr Lai’s personal text messages to me were not what one would expect between colleagues who did not have a friendly or personal relationship. They were both unwanted and extremely inappropriate. I was afraid that my safety would be at risk no matter what kind of response I made.” 162.In my view, there was nothing “sexual” in ML’s initial enquiry and subsequent messages. ML stopped messaging X after she had replied that she was out. There has been no suggestion after 15 December 2012 for ML to pay a visit to X’s residence. E2.5(g) Souvenir from overseas trip 163.In her witness statement, X described Chat “o” as the “final straw”. She said she “felt disgusted as I knew that I was the only one he asked and that he wouldn’t have asked anyone else. I felt I was singled out for special but very much unwanted attention by Mr Lai. Again, I was under pressure to think of yet another excuse to drive him away politely. It was at this point that I came to the realization that I could not and should not have to deal with Mr Lai’s behaviour and the stress it caused me. I no longer wanted to have to go to sleep anxious about another day of Mr Lai’s unwelcome conduct. I was spending too much time trying to deal with Mr Lai’s inappropriate and unwanted conduct and that I would have to leave L&O.” She tendered her resignation on 2 July 2013. 164.Chat “o” was not the first time X and ML talked about bringing back souvenir from overseas. On 23 November 2011, there were these exchanges:-
165.So, X had asked ML to bring back souvenir before. Given that context, I am not surprised that ML asked X if she wanted anything from his trip on 14 June 2013. It appears from X’s enthusiastic reply (“Food is always welcome! Thanks!”) that she in fact welcomed the suggestion. E2.5(h) Inquiries about X’s vacation and examination 166.X also complains about ML enquiring about her vacation and examination after she had left L&O. 167.There is nothing “sexual” in ML’s enquiry. In fact, X had responded to similar enquiry before:-
168.All in all, I find against X on her complaint of sexual harassment based on text messages. E2.6 Similar fact evidence? 169.According to Ms McClellan, Cindy Lam was called to give similar fact evidence. 170.Ms Lam worked in L&O between 4 April 2005 and 30 September 2006. She said that ML had touched her fingers when she passed documents to him, stared down her chest whilst she was seated, stared or scanned her body, and brushed against her hip. She complained to David Stanford (who was her then supervisor) and Dominic Lam (L&O’s Principal Director at the time) but to no avail. 171.In her closing submissions, Ms Herbert submitted that the only pleading of the claimant pertaining to Ms Lam’s evidence is against L&O. It was pleaded in paragraph 28 of the ANOC that:-
172.In reply, Ms McClellan specifically conceded that: “We are not pursuing or arguing that Ms Lam’s evidence can be used to propensity for the 1st respondent.” Given the concession, I shall not take Ms Lam’s evidence into account when considering X’s claim against ML. E2.7 Conclusion on X’s claim against ML 173.For the above reasons, X has not succeeded in establishing any sexual harassment against ML. E3. Is X motivated to claim against ML to avenge Y’s termination of employment? 174.According to ML: “Both [Y] and the Claimant worked under my supervision... [Y’s] employment was terminated during late June 2013 due to performance concerns. L&O management had expressed concerns about [Y’s] performance about one year before his dismissal; however, I spoke with David Stanford, one of the principal directors, and suggested that [Y] should be offered a second chance to improve his performance. Unfortunately, in 2013 when revaluating his performance, David Stanford remained of the view that [Y’s] performance was not good enough and he was given notice of termination in June 2013. The Claimant gave notice to terminate her employment on 2 July 2013, which was within one week of [Y’s] dismissal. I cannot help but think that these two incidents may be linked and that the motivation behind the present action is due to a mistaken belief by the Claimant that I was responsible for terminating [Y’s] employment.” 175.Ms Herbert also submitted in her closing submissions that: “Whilst both X and Y denied that Y’s termination was the motive for the complaint it remains that the timing adds credence to the possibility of an underlying motive for the complaint. The case on motive is strengthened also by the fact that X no longer appears, given how the case was put (or in fact not put) to Mr Lai, to rely on a final straw event.” So, the main thrust of ML’s argument is on the timing of Y’s termination of employment and X’s resignation. 176.To start with, the fact that X has failed to establish her claim against ML does not mean that she had lied. The burden is on ML to prove that X had an ulterior motive in pursuing her claim. 177.For me, ML’s case, which is primarily based on timing, is unconvincing. It is X’s evidence that she dared not voice any complaint whilst she was still working in L&O. She said that: “I spent a lot of time talking to my boyfriend about my problems with Mr Lai and discussed how to avoid Mr Lai’s unwelcome behaviours.” When she learnt that Y was leaving L&O, “I felt even more insecure as [he] would no longer be in the office.” It is clear that X depended on Y for emotional support at that time. In my view, it was reasonable for X to contemplate leaving L&O with Y. That explains why she tendered her resignation shortly after Y’s departure. 178.X’s testimony took almost 4 days to complete. She was subjected to skillful cross-examination of counsel for the respondents. Her questioning was at times testing, generating a lot of emotion on her part (for which she subsequently apologized). It is clear from her evidence that she despised ML as a person. That is understandable given her sexual harassment complaint against him. What her cross-examination has failed to reveal is any sense of animosity on her part. There is no suggestion that X has lied or fabricated evidence against ML. 179.There is no substance in Ms Herbert’s submission regarding the so-called “final straw event”. That concerns Chat “o” which I have dealt with above. X was specifically cross-examined on that and she stood-by her evidence. It cannot be fairly said that she has abandoned the point. The fact that her advocate might not have put the allegation fully to ML is neither here nor there. 180.Another way of testing ML’s accusation is to see if there was any basis for X’s intense feeling against ML. At the heart of X’s complaint was her suspicion that ML had given her differential (more favourable) treatment. It is her evidence that: “… I felt that his attention to me was disproportionate and it made me feel very uncomfortable as I would have to routinely decline and I worried that I would run out of excuses.” 181.In my view, there is evidence in this case that ML had tried to befriend X. For example:
182.I should not be taken as criticizing ML here. I simply do not know enough to gauge his intention. After all, he was assigned to supervise X and he might be trying to be a good mentor. 183.In fact, X has expressed gratitude to another supervisor of her at L&O (Ivy Lee) for doing just that. This is what X wrote when she left L&O:-
184.All in all, I find against ML on his case that X is motivated to claim against him herein to avenge Y’s termination of employment. E4. If ML is found to have committed any unlawful sexual harassment, should L&O be vicariously liable and whether it may escape liability by reason of section 46(3) of the SDO? 185.Under section 46(1) of the SDO:-
186.In her closing submissions, Ms McClellan has acknowledged that “the liability of the 2nd respondent will depend on what is found against the 1st respondent, so they would effectively stand or fall together.” 187.As I have found against X on her claim against ML, there is no basis for any vicarious liability. There is no need to consider if the steps taken by L&O to avoid sexual harassment in the workplace (summarized in paragraph 117 of Mr Chung’s closing submissions) were sufficient to satisfy the statutory defence. F. Disposition 188.For the above reasons, X’s claim against both ML and L&O is dismissed. 189.As to costs, I awarded costs to the respondents on the first day of trial on the claimant’s application for X to amplify her witness statement. Subject to that, I make an order nisi that each party shall bear its own costs having regard to section 73B(3) of the DCO.
Ms Karen McClellan of Daly & Associates, for the claimant Ms Elizabeth Herbert instructed by Oldham, Li & Nie, for the 1st respondent Mr Hylas Chung and Mr Alvin Hor instructed by Fongs, for the 2nd respondent Appendix A X’s WhatsApp complaints[32]
Appendix B Enlarged Floorplan of L&O office
[1] The identity of the claimant is protected by an anonymity order. [2] Y’s identity is also protected by an anonymity order. [3]See the List of Agreed Issues. [4] See the observations of Lok J in Lin Man Yuan v Kin Ming Holdings International Ltd, unreported, HCA 216/2008, 3 June 2015 at §§215-220. [5] See the first instance decision of Ray Chen v Taramus Rus, unreported, DCEO 2/1999, 6 April 2000, at p 45. [6] As I have said before, we are presently concerned with quid pro quo harassment under s 2(5)(a) of the SDO. [7]See Phipson on Evidence, 19th Edition (2018) at §6-06. [8] Such as “disability harassment” under section 2(6) of the Disability Discrimination Ordinance, Cap 487, and “racial harassment” under section 7 of the Race Discrimination Ordinance, Cap 602. [9] https://en.oxforddictionaries.com/definition/sexual. [10] See the first instance decision of Ray Chen v Taramus Rus, supra, at p 45. [11] I am entitled, under section 69 of the SDO, to take the EOC Code into account in any proceedings under the SDO insofar as it is relevant. [12] See §6.1 of the EOC Code. [13] I am entitled to take them into consideration under section 73B(5) of the District Court Ordinance, Cap 336 (“DCO”). [14] Similar examples are provided in the other booklet entitled “Know Your Rights (Sexual harassment in Workplace)”. [15] See for example, Dr Alice Li Miu-Ling v The Hong Kong Polytechnic University, unreported, DCEO 1/2004, 1 November 2012 at §§87-90. [16] Chen Ray v Tamara Rus, supra at §11. [17] See the first instance decision of Ray Chen v Taramus Rus, supra, at p 45. [18] The quotation was taken from the Australian case of O’Callaghan v Loder [1983] 6 IR 1 at pp 27-28. [19] See the photographs on pp 282, 285 & 286 of the Bundle. [20] See the photographs on pp 333-336, 353, 359 & 361 of the Bundle. [21] See pp 363 & 366 of the Bundle. [22] Twenty-two communications were identified in X’s answer to a request for further and better particulars. At the trial, she further identified Chat “aa” as one of the communications mentioned in §36 of her witness statement albeit she had stated the date of the message wrongly on her statement. [23] At p 249 of the Bundle. [24] At p 249 of the Bundle. [25]See p 941 of the Bundle. [26] See p 196 of the Bundle. [27] See p 198 of the Bundle. [28]At §10.23 of his witness statement. [29] This was confirmed by X in her complaint to the EOC, see p 942 of the Bundle. [30] See pp 248-249 of the Bundle. [31] See pp 575-577 of the Bundle. [32] This is compiled mainly from X’s record. The timing of some of the messages appear to be odd (for example, see Chat e) but the sequence is confirmed by ML’s record. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Samantha Jane Bradley v. Sir Elly Kadoorie & Sons Limited (for and on behalf of Itself, Its Current and Former Officers, Employees and Agents, Including Its Legal Representatives, Messrs Simmons & Simmons)
鄭潔芳 對 陳進財
Ng Hon Sum 對 Lam Man Lung及另一人
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