Kwong Lai Yan v. Scott Bingham and Another

DCEO 12/2019

[2020] HKDC 1193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 12 OF 2019

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Before:  His Honour Judge KC Chan in Chambers (Open to public)

Date of Hearing:  23 November 2020

Date of Decision:  23 November 2020

Date of Reasons for Decision:  16 December 2020

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REASONS FOR DECISION

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1.This is a claim made under the Sex Discrimination Ordinance Cap 480 (“SDO”). The sections referred to below are those of that Ordinance.

2.In this case, the claimant (“C”) claims that she had been sexual harassed by the 1^st respondent (“R1”), who was her co-employee, contrary to Section 23A.  As against the 2^nd respondent (“R2”), her employer, C claims that (a) under Section 46, it is vicariously liable for the harassment by R1, and (b) it had also discriminated her by victimization, contrary to Section 9(1).

3.C all along has been acting in person.  R2 in this hearing was represented by Mr Vincent Chiu of counsel.  R1 is a foreign national who has left Hong Kong apparently since March 2017 and he has not been duly served with these proceedings. 

4.This is the substantive hearing of these 2 applications:-

(a)   C’s application by letter dated 15 June 2020 to amend her Notice of Claim per the draft attached, to amend the address for service of R1 and for leave to serve the Notice of Claim, or its amended version, to R1 out of jurisdiction; and

(b)   R2’s application by Summons dated 23 June 2020 (“the Striking Out Summons”) to strike out the Notice of Claim pursuant to all the grounds under O 18 r 19(1) of the Rules of District Court Cap 336H and the court’s inherent jurisdiction as the acts complained of had been time-barred under Section 86; alternatively, a determination under O 14A of the Rules of District Court that the claims herein are time-barred.

5.Apart from objecting to certain specific paragraphs and averments to be introduced by this amendment as being irrelevant, R2’s main ground of opposition to the proposed amendment was that the claimant’s claims were time-barred.  I should also mention the following two matters. Originally, in its written submissions R2 also asked alternatively that the plaintiff’s claim for HSBC Commissions (defined below) be struck out as being an abuse of process for a number of reasons other than that it was time-barred.  In the hearing and upon C’s objection, it was, I think rightly, accepted that the striking out of this particular claim was not specifically sought in the Striking Out Summons and it was then withdrawn.  In the hearing, the plaintiff also did not seek to pursue, and I think also rightly, its alternative application under O 14A.

6.That being the case, the main issue for determination in both applications was whether, and to what extent, C’s claims herein were time-barred.  In the hearing, C also relied on Section 86(3) and submitted that it was just and equitable for this court to consider her claims or such parts of her claims even though the same were brought out of time.

7.After having first heard parties regarding the time-barred issue, I thereupon ruled that C’s claim against R1 was time-barred, and accordingly, so was C’s claim against R2 for vicarious liability for the alleged harassment by R1, but that C’s claim against R2 for discrimination by victimization would not be struck out as being time-barred.

8.I then proceeded to deal with the proposed amendments.

9.Notwithstanding the claim against R1 was time-barred, and as was fairly accepted by Mr Chiu, C’s allegations in respect of R1’s harassment should remain as part of C’s case by way of background to her claim of victimization as against R2.  After discussions with the parties in the hearing, I was glad to record that C and R2 had come to an agreement on the precise form of the amendments to be made to the Notice of Claim.

10.At the conclusion of the hearing, I therefore ordered that the claim against R1 be struck out in its entirety, that there be leave to amend the Notice of Claim per the draft with revisions as agreed and that the costs of the 2 applications be reserved, with reasons to be provided later.

11.These are my reasons.

The claimant’s allegations and other backgrounds

12.The details of claim set out in the Notice of Claim are quite prolix.  The proposed amendments add more to them.  For the present purpose, C’s allegations and the background matters need only to be summarized and briefly stated, as follows.

13.C joined the employment of R2 on 22 April 2014. According to C in the hearing, she had just graduated from university then and that was her first job.

14.In February 2016, R1 was transferred from R2’s London office to its Hong Kong office.

15.C complains that from April to 31 August 2016, R1 had repeatedly sexually harassed her and other female co-employees.  The sexual harassment conducts alleged against R1 included touching C’s face and body on various occasions and making verbal advances and body gestures with sexual undertones to her.  When such advances were turned down by C, R1 began “morally harassing” and “humiliating” C by “derogatory comments” and “doing various annoying and disturbing behaviours”.

16.In June 2016, C reported R1’s such harassment and behaviours to senior management personnel of R2 who initially promised to “take care of the issues”. 

17.It is common ground that on 23 June 2016, C was promoted by R2 to the position of Account Executive Director and made at the same time Team Leader of the Shenzhen Delivery Team.

18.However, R1 persisted with his such harassment and behaviours.  Upon further complaints made by C in July 2016, the senior personnel dismissed her complaints by suggesting that she was a “drama queen” and that she was being puerile; and “they started to victimize me as the whole issue was my fault”.  C’s requests to change her seat in the office to keep herself away from R1 were also denied by R2.

19.On 22 July 2016, C attended the Equal Opportunities Commission (“EOC”) for advice.  It is common ground that C did not make any formal complaint to EOC.

20.On 31 August 2016, R1 was dismissed by R2.

21.In the afternoon of the same day that R1 was dismissed, C was asked to have a meeting with Mr Christopher Lamb (“CL”), the Regional Director of R2.  C said that she was humiliated and victimized during the meeting as CL “kept blaming me for everything and I was such a “drama queen””.

22.In September 2016, C was rewarded by R2 with an incentive trip to Las Vegas.

23.In the proposed amendments, C added details to and clarified, among others, that:-

(a)   she was victimized by R2 on a number of occasions, including during two meetings held respectively on 7 September 2016 and 11 August 2017 in which she was respectively “humiliated” by Raziel and “accused” by CL of being disrespectful to some administrative colleagues;

(b)   “being the only female employee to acquire such a big client [HSBC], I got sex discrimination by my superiors and/or I was continually victimized by the 2^nd respondent”;

(c)   CL and Raziel pressurized her to share the HSBC Commissions with Raziel;

(d)  “after [CL] was banned to have meeting with me, Alistair Rynish [the CEO of R2] started to contact me directly and in his conversations were shouting, swearing and being very rude (sic)”; and

(e)   she was dismissed by R2 on 2 November 2017 as part of the victimization, or alternatively, discrimination by R2.

24.In the hearing, C informed the court that she had in fact contacted the EOC by phone in early 2018 and was informed by EOC that it “would not help her” since a period of more than 12 months has elapsed beginning when the act of harassment or discrimination was done[1], and that she had to commence the proceedings in the District Court herself.

25.On 12 June 2018, C commenced a claim in the Labour Tribunal for the total sum of HK$4,216,909.10, consisting, among others, of a claim for loss of future commissions she would have earned from R2, had she not been dismissed, relating to its business with HSBC in the total sum of HK$3,908,515.29 (“HSBC Commissions”).

26.In the Labour Tribunal claim, C also claimed for damages from sexual harassment in the sum of HK$200,000.

27.C was informed by the Labour Tribunal Officer not long after that the Tribunal had no jurisdiction to hear sexual harassment claims, and she withdrew such claim from the Labour Tribunal proceedings.

28.On 16 September 2019, C commenced this action.  In it, C also claims as part of her loss the loss of the HSBC Commissions although in a much smaller sum.

29.The allegation that C’s claims herein are time-barred under Section 86 was raised in R2’s Notice of Response filed on 21 November 2019.

30.In the oral judgment delivered by the Labour Tribunal on 13 December 2019, C’s claim for the HSBC Commissions was dismissed as the Tribunal found on balance of probabilities in favour of R2’s case that C was terminated due to redundancy and against C’s case “of termination due to robbing HSBC client from her”[2].

Sections 76 and 86

31.Under Section 76(1):-

“76. Claims under Part 3 or 4

(1) A claim by any person (the claimant) that another person (the respondent)—

(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part 3 or 4;

(b) (Repealed 29 of 2008 s. 95)

(c) has committed an act of sexual harassment against the claimant which is unlawful by virtue of Part 3 or 4; or

(Amended 29 of 2008 s. 95)

(d) is to be treated, by virtue of section 46, 46A or 47, as having committed an act of discrimination or sexual harassment referred to in paragraph (a) or (c) against the claimant,

(Added 29 of 2008 s. 95. Amended 8 of 2020 s. 23)

may be made the subject of civil proceedings in like manner as any other claim in tort.”

32.All of C’s claims were made under Section 76(1).

33.The relevant part of Section 86 provides:-

“86. Period within which proceedings to be brought

(1) The District Court shall not consider a claim under section 76 unless proceedings in respect of the claim are instituted before the end of the period of 24 months beginning—

(a) when the act complained of was done; or

(b) if there is a relevant report in relation to that act, with the day on which the report is published or made available for inspection under section 73, whichever is the later.

….

(3) Notwithstanding subsections (1) and (2), the District Court may consider any claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(4) For the purposes of subsection (3), the circumstances of the case include, in relation to any claim, whether the act to which the claim relates was the subject of a complaint lodged under section 84(1) and, if so, the period that elapsed between when the act was done and when that complaint was so lodged.

(5) For the purposes of this section—

(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract;

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person concerned decided upon it, and, in the absence of evidence to the contrary, a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.”

Discussion

34.The principles regarding striking out are trite and need not be repeated here.  I need only to mention by way of reminder the very basic tenet, which is apposite here, that the court’s power to strike out pleadings or a claim is reserved for plain and obvious cases, and the fact that a claim is shown to be weak, unless it is so much so that it is obviously unsustainable or bound to fail, is not a basis for the exercise of this power.

35.In an attempt to show that C’s present claims are an abuse of process, there were many matters referred to and arguments made against the merits of C’s claims in the evidence filed in support of the Striking Out Summons.  C in turn devoted a major part of her written submissions arguing in support of the merits of her claims.  Evidently, the best that can be argued at this stage against the merits of C’s claims is that they are weak, and not that they are obviously unsustainable or bound to fail. Mr Chiu, sensibly and rightly in my view, recognized this and did not try to persuade the court otherwise.  In the circumstance, I will abstain from saying anything on the merits of C’s claim.

36.Regarding the time-bar issue, it would be convenient first to deal with C’s claim against R2 for discrimination by victimization.  It will be recalled that she claims that the victimization began in July 2016 and ended with her dismissal on 2 November 2017.  That position, I must say, is not pleaded as clearly in her Notice of Claim, but would now be made clear by the proposed amendment.

37.It is not disputed that her dismissal on 2 November 2017 fell within the period of 24 months preceding the issuance of these proceedings.  These proceedings were issued on 16 September 2019.

38.C submitted that R2’s discrimination by victimization should be considered as “any act extending over a period” within the meaning of Section 86(5)(b) and “shall be treated as done at the end of that period”, namely 2 November 2017, and therefore her claim against R2 for discrimination by victimization has been brought in time.

39.C cited in support the English Court of Appeal case of Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530.  Hendricks was a female coloured police constable since 1987.  She claimed in that case that she was subjected to continuing racial and sexual discrimination in the form of harassment carried out against her by her fellow officers over a period of 11 years.  The Commissioner contended that the employment tribunal had no jurisdiction to hear the claim because the allegations had taken place outside the statutory period.  Section 76 of the Sex Discrimination Act 1975 set out the period of 3 months within which proceedings were to be brought.  Sub-section 6(b) thereof, which was in exactly the same wording as our Section 86(5)(b), provided:-

“any act extending over a period shall be treated as done at the end of that period”

40.The main issue under appeal there was whether the alleged continuing harassment for 11 years was an “act extending over a period”.  The employment tribunal held in the affirmative.  The Employment Appeal Tribunal allowed the appeal and held in the negative.  In the CA, Mummery LJ, whose judgment was agreed to by the other Lord Justices, allowed the appeal and held in favour of Hendricks, thus:-

“The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.” (at 544F)

“[Hendricks] is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”. … At the end of the day Miss Hendricks may not succeed in proving that the alleged incidents … add up to more than isolated and unconnected acts of less favourable treatments by different people in different places over a long period … . It is, however, too soon to say that the complaints have been brought too late.” (at 543F to G, 543H to 544A)

41.Mr Chiu did not dispute that the case was on point or dispute the above analysis of Mummery LJ.

42.C’s present allegations on pleadings of victimization are, in gist and among others, that she on occasions was “blamed”, “humiliated”, “accused”, and pressurized to share her commission, by some of the senior personnel of R2 with apparently CL as the main player, and that she was ultimately dismissed by way of victimization.  If one is to compare, it seems that the different acts of victimization alleged by C here arguably had relatively stronger connection among them than the acts of discrimination alleged in Hendricks’ case above, making them relatively more likely to qualify as “an act extending over a period” than those alleged by Ms Hendricks.

43.In my view, Hendricks is applicable and applying it I would likewise hold that it is too soon to say, or not plain and obvious for the purpose of striking out, that the acts of victimization alleged by C here were not “an act extending over a period”.  I would therefore hold that C’s claim against R2 for victimization should not be struck out at this stage as being time-barred.

44.Concerning this time-bar issue, C’s claim against R1 for sexual harassment stands very differently.  On her pleaded case, there is no question that R1’s alleged harassment ended by 31 August 2016 when he was dismissed.  That was over 3 years preceding the commencement of these proceedings.  C’s claim against R1 was clearly brought out of time.

45.As said, in the hearing C asked the court to consider this claim out of time pursuant to Section 86(3).  Under that Sub-section, the court may consider such claim out of time if in all the circumstances of the case it considers that it is just and equitable to do so.

46.The approach to the equivalent of this sub-section in the Disability Discrimination Ordinance was considered by HHJ Alex Lee (as he then was) in Siu Tung Choi v Foo Lum Holdings Ltd [2016] 1 HKLRD 1411 at §29, which was adopted by HHJ Justin Ko (as the Chief District Judge then was) regarding Section 86(3) in SDO in X v Melvyn Kai Fan Lai [2019] 1 HKLRD 163.  I would also respectfully adopt the same approach and I quote from the latter case:-

“Although s 82(3), DDO [which is equivalent to s 86(3) of the SDO] gives the court a discretion to consider a claim which is out of time if it is just and equitable to do so, it has not spelled out the specific factors to which it should have regard. I accept the submission of Mr Chiu [counsel for the respondent], with which Ms Seto [counsel for the claimant] does not seem to disagree, that in exercising the discretion, the court would be assisted by a consideration of the matters listed in s 30(3) of the Limitation Ordinance (Cap 347), insofar as they are applicable. I bear in mind, however, that the six specific factors listed there are non-exhaustive and that s 82(3), DDO requires the court to look at ‘all the circumstances’. I note also that it is well-established that under s 30 of the Limitation Ordinance it is for the plaintiff to show that it is equitable to allow the claim to proceed, and it is for the defendant to show prejudice if the claim is to proceed: see Cheung Yin Heung v Hang Lung Real Estate Agency Ltd [2010] 3 HKLRD 67. In my view, similar onuses should be placed on the claimant and the respondent respectively in relation to s 82(3), DDO…” (p.171 at §35)

47.The 6 specific factors listed in Section 30(3) of the Limitation Ordinance are:-

(a)  the length of, and the reasons for, the delay on the part of the plaintiff;

(b)  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;

(c)  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;

(d)  the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)  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

(f)  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.

48.The onus therefore is on C to show that it is just and equitable to allow the claim to proceed.

49.In the 2 affirmations filed by C in opposition to the Striking Out Summons, she maintained that her claims were not time-barred and she has not deposed to facts and matters supporting why it would be just and equitable to allow her claims to proceed if they were brought out of time.  With R2’s agreement, in the hearing this court allowed C to allude to such matters she relied on even though they had not been formally adduced.

50.Having heard C in the hearing, I do not accept any of the explanations she put forth as good reasons for the delay.

51.Firstly, C said she felt threatened by R1.  One of the acts of harassment complained by C against R1 was that on one occasion while she was working, R1, who was then talking on the phone with a headset, walked towards her with a cutter “and did a stabbing action towards my chest”.  That was in April 2016, and was an isolated incident in that C did not make any further complaint against R1 of similar conducts.  However, R1 was dismissed and left R2 on 31 August 2016. There is no suggestion that R1 had contacted C after his dismissal.  From the material proffered by C, it is shown that R1 was employed somewhere outside Hong Kong since March 2017; while the deadline for bringing a sexual harassment claim against R1 was 31 August 2018.  With such a time frame in view and under such circumstances, I find it hard to believe and do not accept that C abstained from bringing the present claims within the 24 months’ period because she felt a continuous threat from R1.

52.Secondly, she said she was afraid she might lose the job, and the good remuneration that came with it, if she commenced this claim against R1 and R2.  This is clearly a disingenuous excuse.  C was dismissed on 2 November 2017, and according to her case before the Labour Tribunal, wrongfully to rob her of the account of HSBC, and according to her present case, wrongfully by way of discrimination and victimization.  Either case, C had aggrievedly lost the job anyway by November 2017.  The fear for losing her job could not have been the reason why she did not bring the claims from November 2017 to 31 August 2018.

53.Thirdly, she claimed that she was not aware of the limitation period of 24 months.  I do not find that credible, nor do I accept that as a good reason for the delay. According to her, she attended EOC in person in July 2016 for advice.  In early 2018, she also called EOC and was informed to the effect that EOC would not help her with her claim as 12 months’ time had lapsed since the commission of the act complained of, and was further told that she had to commence the proceedings in the District Court herself.  It seems to me that it is very probable that EOC has mentioned to her about the limitation period on either of those occasions, if not both.  Moreover, there is no explanation from C why she did not bring the claims in the District Court upon receiving such advice from EOC in early 2018; nor was there any explanation why she made the claim for sexual harassment in the Labour Tribunal instead of the District Court as she had been advised by EOC.

54.It is not C’s case that she was otherwise prevented from bringing these claims.  That is also no suggestion whatsoever that R1 or R2 had anything to do with the delay.

55.It is therefore not shown that she missed the deadline for bringing the claim against R1 for reasons other than her own making.

56.As R1 was a foreign national who came to work in Hong Kong under a transfer, there had always been a high likelihood for him to leave Hong Kong after his dismissal by R2, and later on he in fact did.  C’s delay no doubt would prejudice R1.  Importantly, the delay would make it more likely that R2 could not now secure R1’s assistance to contend against the various detail allegations now made by C against R1, for which C is now making R2 fully liable vicariously.

57.Having considered all these circumstances, I am not satisfied that it is just and equitable to allow C to bring the claim against R1 out of time.

58.Though R1 has not been duly served and therefore has not appeared in this hearing, I think it appropriate in the circumstances to strike out the claim against R1 in its entirety, so that not the least there is certainty that R2’s alleged vicarious liability for R1’s harassment would fall away.  It follows that I would also dismiss such part of C’s present application for the purpose of serving these proceedings to R1 out of jurisdiction.

Disposal

59.As mentioned, the parties were able to come to an agreement on the precise form of amendments in light of my above ruling, and leave for amendment of the Notice of Claim was according given with further directions, including leave to make consequentially amendments to the Notice of Response.

60.Under Section 73B(3) of the District Court Ordinance Cap 336, the parties to any proceedings under SDO are to bear their own costs unless, among others, there are special circumstances which warrants an award of costs.  In the present instance, I think it more appropriate to reserve the costs of these 2 applications for consideration after trial when the full circumstances of this case would have been before the court.  I would only indicate that I would grant a certificate for counsel to R2 if later on another coram decides on ordering any of such costs to R2. 

The claimant appeared in person

The 1^st respondent was not represented and did not appear

Mr Vincent Chiu, instructed by Oldham, Li & Nie, for the 2^nd respondent