Keith Ratcliffe v. The Secretary for The Civil Service and Another

CACV000057/1999

CACV 57/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 57 OF 1999

(ON APPEAL FROM AL 43 OF 1998)

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Coram: Hon Nazareth V-P, Woo and Pang JJ in Court

Dates of Hearing: 10 and 11 June 1999

Date of handing down Judgment: 23 June 1999

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J U D G M E N T

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Nazareth V-P:

1. This is an appeal against the order of Keith J (as he then was) made on 27 January 1999 in judicial review proceedings. By that order, he quashed the finding of an Investigating Committee, the decision of the Secretary for the Civil Service that the applicant had been guilty of misconduct, and also his decision that the applicant be compulsorily retired from the Police Force. The respondents now appeal to this Court against that order and in reliance of numerous grounds specified, seek to have those orders set aside. The facts can conveniently be taken from Keith J's judgment.

"Introduction

The Applicant joined the Royal Hong Kong Police Force in 1966. By March 1996, he had reached the rank of superintendent. That month, he was informed that allegations of sexual harassment had been made against him. Disciplinary proceedings followed, and in April 1998 the Secretary for the Civil Service decided that the Applicant should be compulsorily retired from the Police Force. The Applicant now applies for judicial review of that and associated decisions. I shall refer to the Applicant throughout this judgment as Supt. Ratcliffe, even though the making of this application for judicial review has not had the effect of temporarily reinstating him.

The facts

The nature of the disciplinary proceedings. The rank which Supt. Ratcliffe had attained when the disciplinary proceedings were commenced against him meant that the disciplinary regime which related to him was that provided for by the Colonial Regulations, rather than the Police (Discipline) Regulations. Since the Secretary for the Civil Service thought that the misconduct alleged against Supt. Ratcliffe may have been serious enough to warrant his compulsory retirement, the disciplinary proceedings were conducted under reg. 57 of the Colonial Regulations. Pursuant to the Disciplinary Proceedings (Colonial Regulations) Regulations, an investigating committee was appointed. It was required to conduct an investigation into Supt. Ratcliffe's alleged misconduct, and then to make a report which contained

(a) such findings of fact as it considered relevant, and

(b) its opinion as to whether or not the facts amounted to misconduct.

If, after such investigation, the Secretary for the Civil Service was of the opinion that Supt. Ratcliffe had been guilty of misconduct, he could inflict such punishment upon Supt. Ratcliffe as might seem to him to be just.

The allegations. The allegations made against Supt. Ratcliffe were contained in a document headed "Statement of Alleged Misconduct". It read:

'You, Keith RATCLIFFE, Superintendent of Police of the Royal Hong Kong Police Force, misconducted yourself while you were employed as a Superintendent of Police in the Royal Hong Kong Police Force in that -

(a) on 24th August 1995, while travelling in a Police vehicle with [the complainant], an Executive Officer working under your command, and other officers, you sexually harassed [the complainant] by engaging in unwelcome conduct of a sexual nature namely lifting her skirt, touching her thigh and making indecent and offensive remarks, thereby offending, humiliating or intimidating her contrary to Headquarters Order No. 18 of 1995 Part One;

(b) on a date unknown between 24th August 1995 and 20th September 1995 in the District Registry of Central District Police Headquarters, you sexually harassed [the complainant], an Executive Officer working under your command, by engaging in unwelcome conduct of a sexual nature namely catching hold of her left hand and asking her to put it inside her shirt, thereby offending, humiliating or intimidating her, contrary to Headquarters Order No. 18 of 1995 Part One;

(c) on 20th September 1995 in the District Executive Officer's office, Central District Police Headquarters you sexually harassed [the complainant], an Executive Officer working under your command, by engaging in unwelcome conduct of a sexual nature namely touching her back and talking in detail as to whether or not a prostitute could be a virgin, thereby offending, humiliating or intimidating her, contrary to Headquarters Order No. 18 of 1995 Part One.'

The document referred to the complainant by name, but it is unnecessary for me to do so in this judgment. I shall simply refer to her as the complainant. She was an executive officer, who had been transferred to Central District Police Headquarters where Supt. Ratcliffe was based ten days or so before the first incident.

The Headquarters Order. There has been a greater awareness in recent years about the scourge of sexual harassment. Accordingly, in March 1995, a new Headquarters Order (No. 18 Part One) was issued relating to it. Sexual harassment was defined in paras. 3 and 4 of the Order as follows:

'3. A person sexually harasses a woman if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or

(b) engages in other unwelcome conduct of a sexual nature in relation to her,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated.

4. The 'conduct of a sexual nature' mentioned in para. 3(b) above includes making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing.'

This definition follows, almost word for word, the definition of sexual harassment in the Sex Discrimination Ordinance (Cap. 480).

The result of the investigation. The Investigating Committee held hearings over two days in March 1997. In September 1997, the Investigating Committee submitted its report to the Secretary for the Civil Service. The report concluded that the facts necessary to support the charges of sexual harassment in the first two incidents had not been established. However, the report found that the facts necessary to support the charge of sexual harassment in the third incident had been established. The Investigating Committee was of the opinion that the facts which had been established in the third incident amounted to misconduct. In due course, the Civil Service Bureau sought the views of the Commissioner of Police as to how Supt. Ratcliffe should be dealt with. Different views were expressed internally on that issue. One view was that Supt. Ratcliffe should be reprimanded. Another view was that he should be reduced in rank, unless the financial impact of such a course would be more adverse to him than his compulsory retirement. Eventually, the Commissioner of Police expressed the opinion that Supt. Ratcliffe should be compulsorily retired with full pension benefits. In due course, the Secretary for the Civil Service decided that the facts which had been established amounted to misconduct, and that Supt. Ratcliffe should be compulsorily retired with a deferred pension."

Application to adduce additional evidence

2. At the outset of the hearing of the appeal, Mr Nicholas Cooney for the respondents, applied for leave to adduce additional evidence by way of an affirmation of the Chairman of the Investigating Committee. We refused leave, and I now give our reasons. This was designed to provide evidence that the Committee did address the matter of whether, and that they were satisfied that, a reasonable person would, in the circumstances of the third incident, have anticipated that the complainant would have been offended, humiliated or intimidated. The relevance of this can be seen from paragraph 3 of the Police Headquarters Order reproduced in the outline of facts already given, which follows exactly s.2(5) of the Sex Discrimination Ordinance (Cap 480). With reference to the Ladd v Marshall conditions, which Mr Cooney submitted the application met, the following matter is relevant. During the proceedings below, the applicant sought and obtained leave to amend his Notice of Application. There is a dispute between the parties whether the amendment concerned raised a new ground or simply clarified an earlier one. It seems to me that it was in the nature of clarification and that even without it, the respondents should not have been taken by surprise. However that may be, in response to the submissions on behalf of the respondents that they might need to adduce additional evidence, as the judge rightly did not wish to have the applicant detained in Hong Kong to which he had returned for the hearing, he decided to proceed with the hearing on the basis that he would give the respondents an opportunity to adduce such evidence if needed. In the event, the judge apparently did not need the evidence. The evidence, we are told, would have been substantially that now sought to be adduced. In the circumstances we consider it appropriate to regard the first Ladd v Marshall condition, that the evidence was not available at the trial, as having been met. It is also necessary to say that in his judgment the judge mentioned that he thought long and hard whether he should have given the Investigating Committee an opportunity to file evidence to state what findings they would have made on the issues before him if they had addressed them. He had decided in the event not to give the Investigating Committee that opportunity for two reasons. First, that the hearing had occurred almost two years before and it would be very difficult for the Committee to recall what findings they would have made. Second, that the Committee would unconsciously be tempted to make such findings as justified their ultimate conclusion.

3. Reverting to the application before us, in regard to the second and third Ladd v Marshall conditions, we were unanimously of the view that evidence was not such as is presumably to be believed and that, if believed, would be conclusive; or that if given, it would probably have an important influence on the result of the appeal. We accordingly refused leave.

The appeal - General

4. Mr Cooney made the general point that "over legalising informal disciplinary proceedings is undesirable" per Liu JA in Tong Pon Wah v Hong Kong Society of Accountants [1998]2 HKLRD 427. Of this there can be no question. I have to say, however, that having considered the matter and Mr Cooney's submissions, I am not able to accept the submission that the judge over legalised his approach. He seems to me to have been rightly concerned with the substance of the charges and whether there had been procedural error. It should also be mentioned that the judge specifically mentioned the passage from Tong Pon Wah cited above and addressed the danger of over legalising his approach. I reject the submission having re-addressed my original conclusion to the same effect after reaching all the other conclusions I have recorded in this judgment.

First ground of appeal - Absence of standard of reasonable person finding

5. The judge held at p.15 of his judgment that:

"...there were three important areas in which the Investigating Committee did not make any findings at all. First, it made no finding as to whether 'a reasonable person, having regard to all the circumstances, would have anticipated that [the complainant] would be offended, humiliated or intimidated'."

The judge then went on to rightly stress the importance of this objective element.

6. Mr Cooney submits that the Committee did make such a finding. They were referred to the objective test by the parties' representatives. They referred to it themselves. The assisting officer referred to it in his opening and again in closing. The applicant's friend referred to it in closing, and the Committee referred to the Police Headquarters Order in its report. Mr Cooney also submits that on the facts the finding could only have been made upon the objective standard test. In their submissions, Mr Cooney and Mr Kwok Sui Hay, for the applicant, took us also to the complainant's and the applicant's accounts of what happened. Mr Cooney also submitted that the complainant made known to the applicant that she was upset and considered the applicant's behaviour to be sexual harassment and he continued. It should be mentioned that there can be no question about this matter since the complainant informed the applicant she would tape the further conversation which she did to his full knowledge. The transcript was subsequently adduced in evidence. It should also be mentioned that the incident occurred in the context of the applicant going to the complainant, as ordered, to get her amend the minutes of a meeting which even when all was said and done she ultimately refused to do. All of that detail is not necessary for the limited purposes of this appeal. Mr Cooney particularly stresses his submission that given that the complainant made known her feelings, the conclusion had to follow that a reasonable person would anticipate that if the applicant continued with his behaviour after the complainant's protest, the complainant would be offended, humiliated or intimated. I have to say that given the admirably resolute and determined nature of the complainant that is manifest, that conclusion does not seem to me to necessarily follow.

7. The judge gave careful consideration to the matter setting out his reasons. He was entirely right, in my view, to have reservations about whether the Committee did apply the objective test. Apart from the other reasons also given by him, I have to say that their view of the complainant's reaction to the touching as "close to hysterical" sits ill with any application of the objective standard. Having carefully considered all Mr Cooney's submissions and the evidence he took the court through and in addition that which the court was encouraged to visit, I have not been able to identify any ground or good reason for upsetting the judge's finding. On the contrary, having reviewed all the material and submissions, far from being driven to a conclusion that the Committee must have addressed the objective standard and satisfied themselves upon it, I have to say that I am left in considerable doubt. I, therefore, have no hesitation in rejecting the first ground.

Second ground -Absence of finding that the physical contact was deliberate

8. At p.16 of his judgment the judge said this:

"Secondly, the Investigating Committee made no findings about the brief physical contact between the complainant and Supt. Ratcliffe. It referred to Supt. Ratcliffe having touched the complainant's back rather than stroking it, but it did not state whether it found that the touching was accidental or deliberate, and if it was deliberate, whether it found that it was sexual in nature."

Again, the judge went on to give his reasons.

9. Mr Cooney submits that in paragraph 46 of their report the Committee found the touching to be deliberate. The relevant passage reads as follows:

"It is thus our firm opinion that Mr Ratcliffe did not have any reasonable excuse for subjecting [the complainant] to the verbal abuse that she had undergone on 20 September 1995. In our view, the verbal abuse and the touching of [the complainant's] back are clearly unwelcome conduct of a sexual nature as defined in Headquarters Order No. 18 of 1995 Part One."

Mr Cooney's point here is simply that the Committee would not have found the touching to be unwelcome conduct of a sexual nature unless they were satisfied that it was deliberate. I am not able to agree. The position by then was clearly that even an accidental touch by the applicant would have been most unwelcome. Mr Cooney also submits that the Committee would not have been satisfied on the objective test that a person would be offended, humiliated or intimidated by accidental touching. That begs the question whether the Committee did actually apply the objective test.

10. Finally, Mr Cooney submits that the Investigating Committee's use of the first two incidents in arriving at their conclusion on the third incident shows that they had clearly determined that there was a pattern of touching and that they must therefore have concluded that the touching on the third occasion was deliberate. It seems to me that there is conceivably a possibility that such may have been the case; even so I am not persuaded that the conclusion he suggests, follows clearly enough to warrant acceptance of his submission. The weakness of that conclusion posited simply upon the basis of his submissions is compounded by the broader circumstances, the evidence and the Committee's report, which seem to me to at least suggest the contrary.

Ground 3 - absence of finding whether the physical contact was sexual in nature

11. The judge also concluded that the Investigating Committee made no findings as to whether the touching was sexual in nature. Mr Cooney submits that this was plainly wrong as there is a specific finding that the touching was sexual in nature in paragraph 46 of the Committee's report in the passage already cited with reference to the second incident. It has to be said that at first sight Mr Cooney does seem to be right, but analysed in the way the judge did, it seems to me the judge was entitled to conclude that the Investigating Committee could not have reached a valid finding unless they first decided that the touching was deliberate, and, of course, the judge had already concluded that the Committee had not decided that point. I am not persuaded that the judge's way of approaching the matter even if expressed as a failure to reach the requisite conclusion rather than having reached it upon an untenable basis affords this Court a legitimate basis for intervention. Mr Cooney's submission that the absence of a finding that the touching was deliberate does not go to the indecency or sexual element, and that the latter is provided by the Committee's view of the earlier two incidents, does not in my view prevail, and in any case could not be safely utilised to overcome the omission.

Grounds 4, 5 and 6 - absence of finding as to why Supt Ratcliffe went to unnecessary detail and length

12. At p.16L of his judgment the judge said this:

"Thirdly, the Investigating Committee made no finding as to why Supt. Ratcliffe dealt with the need for the amendments in such unnecessary detail and at such unnecessary length. Was it because he knew that the subject-matter of the discussion was distasteful to the complainant and he was enjoying the distress which she plainly felt? Or was it simply because he was the kind of man who liked to make things clear, even if it meant being explicit, repetitive and unduly thorough?"

Mr Cooney's submission seems to be that there was no need for a motive to be established for Supt Ratcliffe to have gone to such detail at such length. However, reading the passage, it does not seem to me that the judge was concerned with the motive at all. What he was addressing was the necessity to determine whether the unnecessary detail and unnecessary length was sexual in nature, i.e. what was the purpose behind it.

13. I also have to say that having had regard also to Mr Cooney's other submissions on these grounds, I can find no merit in them. It follows that in my view the appeal should be dismissed.

Remaining grounds

14. Mr Cooney helpfully explained that his remaining grounds were largely a repetition of the points I have already addressed. I find no merit in them.

Applicant's points

15. However, I wish to say a few words about some of Mr Kwok's submissions.

16. First, that of duplicity. The manner in which the three charges of misconduct were framed was that set out in the judge's outline of facts, which I have reproduced. It has to be said that it is not ideal and that in particular circumstances, such a format might leave it open to confusion as to whether one single charge of misconduct was being specified, consisting of three episodes or three offences each consisting of a particular episode. Mr Kwok submits that the charge was duplicitous, which Mr Cooney resists. The point was raised before the judge below and indeed, in substance although not in legal terms before the Investigating Committee, who, however, seemed not to have grasped the difference. At one point, the Friend said "Excuse me, there is only charge. That is the record of misconduct." The Chairman responded "OK, I will read it at three separate incidents." A little later the Friend said "Sorry, this is just one charge of misconduct. The importance here is to prove that the charge of misconduct you have to prove all parts, not part of it." To this the Chairman merely responded "Yes, your statement will be duly recorded." Yet, on occasions he went on to refer to "the charge" in the singular. However, the judge rightly, in my view, rejected the submission that the charge was duplicitous or that the applicant was prejudiced in any way. He concluded:

"Indeed, in his closing address, Supt. Ratcliffe's representative addressed each of the three incidents, not on the basis that a pattern of sexual harassment had not been established, but on the basis that none of the incidents amounted to sexual harassment."

Before us, Mr Kwok sought to rely on Gee v General Medical Council [1987]1 WLR 564 in support of his contention that the charge was fatally duplicitous. I can find nothing in Gee to support that submission. The charge here was plainly one of three offences, notwithstanding its questionable format. Despite the Friend's points, the defence was clearly directed at all three incidents, each of which was fully resisted. This was not a case of conduct cumulatively amounting to the misconduct charged as discussed in Gee nor was it presented or defended in that way.

17. Mr Kwok also complains that the applicant was neither shown nor given an opportunity to respond to the recommendation of the Commissioner of Police that the applicant be compulsory retired. This involves a short point. After receipt of the Committee's report, while it was being examined by the Police Force Staff Officers on behalf of the Commissioner of Police for the purpose of recommending to him what punishment should be ordered, two alternatives came to be addressed, reduction in rank and compulsory retirement. Ultimately, the latter was selected upon the basis that it would cause the applicant less financial loss than the former. The applicant's solicitors subsequently in one of their letters demonstrated that the latter would occasion the applicant a greater loss to the extent of an additional loss of between $1m and $1.5m. It was not sought to dispute that statement before us. The point may be regarded as now academic, but it does occasion disquiet about the way the applicant's case was dealt with. It was urged upon us that the Secretary for the Civil Service would inevitably have considered all the alternative punishments open to him. Where the considered recommendation of the Commissioner of Police was compulsory retirement, I have to say that I do not find the submission a particularly reassuring one.

18. Mr Kwok also made submissions upon the adverse gloss put upon the applicant's case by unnamed police staff officers processing the applicant's letter of mitigation he was invited to make by the Secretary for the Civil Service in the usual way prior to punishment being imposed. The applicant, Mr Kwok complained, had neither knowledge or nor opportunity provided to refute the officer's comments. Thus reference was made to two occasions when it was said the applicant was warned about his conduct to subordinate staff. However one of these had already been found to be unsubstantiated. That this particular observation did not reach the Secretary for the Civil Service, as Mr Cooney pointed out, does not really meet the point since the observation did reach the Commissioner of Police and it is difficult to imagine that the Secretary for the Civil Service would not attach considerable weight to the Commissioner's recommendation. At the end of the day it is another disquieting feature. In Chan Tak Shing v Chief Executive of the HKSAR CACV270 of 1998 this Court, differently constituted, had to deal with a similar situation of a point-by-point rebuttal of all the officer there as advanced in his defence. He was given no opportunity to see the rebuttal document and to make further representations upon it. As Mortimer V-P said at p.8E of the judgment, as yet unreported:

"The officer was given no opportunity to see it and make further representations if he saw fit. It was put before the decision-maker behind his back. It cannot be ignored as irrelevant or devoid of effect. Its whole purpose was to urge a decision against the officer. In these circumstances, although there was no intention to be unfair, the failure to provide the officer with a copy and to give him a chance to reply was unfair and a breach of the rules of natural justice."

Godfrey JA at p.5F-L said this:

"The CE had before him, in the form of the submission in reply, [to the officer's submission] a document calculated to work to the prejudice of the officer's case, a document (whatever its provenance) which the officer had not been shown and with the content of which he was given no opportunity to deal. The fact that the document contained no new ground of complaint against the officer and no new facts makes no difference. Nor does the fact that the officer knew perfectly well what was the case made against him. No person with any power of adjudication may hear evidence or (as here) 'receive representations from one side behind the back of the other' : see Kanda v. Government of Malaya [1962] AC 322, per Lord Denning at p.337. As Lord Denning went on :

'The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough.'"

19. To turn to another of Mr Kwok's complaints, the Committee also seems to have misconceived the applicant's purpose in adducing the Police Psychologist's evidence of the stress he suffered.

20. In the result, Mr Kwok clearly had good reason to submit that the Committee's consideration of the case and its report fell short of the requisite standard required to sustain a disciplinary offence of such gravity that it threatened his job and livelihood.

21. As will have been seen I have not found it necessary to rely upon these matters, raised in the respondent's notice which give rise to Mr Kwok's submission above, in coming to my conclusion that the appeal must be dismissed. I have to say, however, that the foregoing disquieting features constitute powerful support for that conclusion. I would accordingly expressly endorse the judge's view that if the question should arise as to whether the disciplinary proceedings against Supt Ratcliffe should be commenced anew, the Secretary for the Civil Service may consider that the worry, trouble and expense to which he has been put so far, and I would add that the suffering he must have endured given the personal circumstances disclosed, weighs heavily against reviving the disciplinary proceedings against him.

22. I would accordingly dismiss the appeal with an order nisi that the applicant is to have his costs of the appeal.

Woo J:

23. For the reasons given by my Lord, the Vice-President, I would also dismiss the appeal.

24. I would deal with one point raised by Mr Kwok on behalf of the Applicant. He challenged the interpretation of sexual harassment made by the Judge in the court below.

25. Sexual harassment is defined in section 2(5) of the Sex Discrimination Ordinance, Cap 480, as follows:

"(5) For the purposes of this Ordinance, a person (howsoever described) sexually harasses a woman if -

(a) the person -

(i) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or

(ii) engages in other unwelcome conduct of a sexual nature in relation to her,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or

(b) the person, alone or together with other persons, engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for her.

26. Subsections (7) and (8) of section 2 of the Ordinance extend the scope of subsection (5). They provide as follows:

"(7) In subsection (5)-

'conduct of a sexual nature' includes making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing.

(8) A provision of Part III or IV framed with reference to sexual harassment of women shall be treated as applying equally to the treatment of men and for that purpose that provision, and subsections (5) and (7), shall have effect with such modifications as are necessary."

27. The same definitions in section 2(5)(a)(i) and (ii), (7) and (8) were adopted in Police Headquarters Order No. 18 of 1995 Part One under which the Applicant was charged with misconduct, although section 2(5)(b) was omitted.

28. The factual context that required the interpretation was that the Applicant had a conversation with the complainant in her office, which contained references to what sexual services, short of sexual intercourse, might be offered by a prostitute. Mr Kwok argued before the Judge and also before us that the conversation complained of could not in law have amounted to conduct in relation to the complainant because the contents of the conversation were not "in relation to" the complainant under section 2(5)(a)(ii). According to Mr Kwok, "in relation to" must mean "relating to" or "about" the complainant, and as the conversation was not about her, the only applicable situation would be one under section 2(5)(b) of the Ordinance that was not included in the Police Headquarters Order.

29. The Judge held as follows:

"This argument is fallacious. The conversation complained of amounted to conduct in relation to the complainant because the conversation was with the complainant. The conversation did not have to be about the complainant for the conversation to be a conversation in relation to her. If Mr Kwok's argument was correct, leaving pornographic photographs on a woman's desk would not be conduct in relation to her if she did not feature in them."

30. I entirely agree with the Judge. I think there are three different situations covered by section 2(5)(a)(i), section 2(5)(a)(ii) and section 2(5)(b) of the Ordinance.

31. Section 2(5)(a)(i) is explicit that sexual harassment is committed if a person makes an unwelcome sexual advance or an unwelcome request for sexual favours to the complainant. The advance or request must be "made to" or "directed at" the complainant. That, of course, was not the situation alleged against the Applicant.

32. Section 2(5)(a)(ii) covers unwelcome conduct of a sexual nature engaged in by a person in relation to the complainant although the conduct, as in this case a conversation, was not "in respect of" her but "with" her. For example, if a man tells dirty stories to a woman in a partitioned room of a restaurant and such stories are unwelcome to her, applying the objective standard of the reasonable man, then sexual harassment is constituted. I think the interpretation proposed by Mr Kwok is too restrictive and does not take fully into account the provisions of section 2(7) of the Ordinance.

33. On the other hand, if a man tells such stories to willing listeners inside the same room, but the stories are, unknown to the man, overheard by ladies in the adjoining room, no sexual harassment can be committed since the stories are not unwelcome conduct of a sexual nature "in relation to" those ladies who are in the other room because they are not present in the room of the story-teller, nor are they the addressees of the stories.

34. Section 2(5)(b) is of a different nature, which covers, for example, situations where a person posts up a lewd picture on the notice-board of an office or circulates a lewd picture in the office, which creates a sexually hostile or intimidating work environment for others working in the office.

Pang J:

35. I have the benefit of reading my Lord, the Vice-President's reasons for dismissing the appeal. For the same reasons given, I agree that this appeal should be dismissed, with the costs order nisi proposed.

Nazareth V-P:

36. The appeal is accordingly dismissed, and there will be an order nisi that the applicant is to have his costs of the appeal.

Representation:

Mr Nicholas Cooney (Department of Justice) for Respondents

Mr Kwok Sui Hay (M/s Clarke & Liu) for Applicant