Tan, Shaun Zhi Ming v. Euromoney Institutional Investor (Jersey) Ltd

DCEO 4/2017

[2022] HKDC 622

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 4 OF 2017

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Before: His Honour Judge MK Liu in Court (Remote Hearing)

Dates of Hearing:  9, 10 and 17 June 2022

Date of Judgment: 24 June 2022

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JUDGMENT

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1.In this case, the Claimant sues the Respondent (who is the former employer of the Claimant) for breach of the Sex Discrimination Ordinance (“SDO”). The Respondent terminated the Claimant’s employment on 21 June 2017 by payment of wages in lieu of notice (“the termination”). The Claimant’s case is that the termination is based upon sex discrimination against him and is unlawful. This is denied by the Respondent. The parties are unable to resolve the difference between them by some other means, and the dispute has to be resolved by me in this trial.

2.At all times in these proceedings, the Claimant, Mr Tan Shaun Zhi Ming, is acting in person.  The Respondent is represented by Mr Andrew Hart, a partner of the law firm representing the Respondent in this case.

3.Mr Tan is in Malaysia.  He has attended the trial through the video-conferencing facilities.

A.   BACKGROUND FACTS

4.At an early stage of these proceedings, the Respondent has made an application to strike out the Claimant’s claim.  On 14 February 2018, HHJ Ko allowed the application.[1] The Claimant then took the matter to the Court of Appeal.  On 7 May 2019, the Court of Appeal[2] allowed the Claimant’s appeal.  On 15 May 2019, the Court of Appeal handed down written reasons for the judgment (“CA Reasons”)[3].

5.The Respondent agrees that the facts as set out in [4] to [11] of the CA Reasons are true and correct.  Subject to the caveat mentioned in [8(2)] below, the Claimant also accepts that those factual matters as set out in the CA Reasons are true and correct.  Based upon this agreement and the undisputed documentary evidence, the background facts are as follows.

6.The Respondent is a company limited having its registered office in Jersey, Channel Islands.  It has a place of business in the Hopewell Centre in Hong Kong (“the Hong Kong Office”).

7.The Claimant was employed by the Respondent under an Employment Agreement dated 16 November 2016 (“the EA”).  The Claimant was employed in the position of Asia Reporter for Managing Intellectual Property, reporting to the Managing Editor, Mr James Nurton (“JN”).  The Claimant was working in the Hong Kong Office.  The Claimant’s employment commenced on 12 January 2017, and he completed his 3-month probation period on 12 April 2017.

8.On 2 June 2017, some events occurred.

(1)  On that day, the Claimant joined a group of his colleagues (including their supervisor Mr Ralph Cunningham (“RC”)) for a farewell lunch for a colleague at Crystal Jade Restaurant in Causeway Bay.  The Claimant was late and the others were already seated.  There was a place available at the table but he had to get a chair for himself.  The place was between a male colleague called Andrew and a female colleague Ms Joey Law (“JL”).  Andrew moved to make space, but there was still not enough space for the Claimant’s chair.  The Claimant then made contact with JL’s waist (but see the remark in [8(2)] below) with his hand, (the Claimant says) to indicate to her that she should also move to make space for his chair.  Nothing was said about this gesture at the time, and after lunch, the group returned to work.

(2)  In [5.1] of the CA Reasons, it is mentioned that the Claimant made contact with JL’s waist during the lunch on 2 June 2017.  However, in the same paragraph, there is a footnote 3 recording that according to the Claimant, he tapped JL to get her attention, but he could not remember whether he made contact with her waist or her elbow.  This is also the Claimant’s position in this trial.

(3)  On 2 June 2017, at about 3:30 pm, JL emailed the Claimant (“JL’s Email to Tan”) alleging that he had “deliberately pressed on [her] waist with [his] hand when [he] squeezed into the table”.  She alleged that she found it disturbing and unacceptable, and believed she had been sexually harassed by him.  She threatened to report the matter to the Human Resources Department (“HR”) and the police if he touched her again for whatever reason, and demanded an apology.

(4)  The Claimant replied to JL later the same day by email (“Tan’s Email to JL”), saying he had no interest in her, that she could report it if she wished but there was no reason for anyone to take her seriously, and that she might need therapy.

(5)  At about 6:16 pm, JL wrote an email to Ms Catherine Wong (“CW”) of HR, formally lodged a complaint that she had been sexually harassed by the Claimant in the lunch gathering on that day (“the Sexual Harassment Complaint”) to the Respondent.

9.Subsequently, CW contacted the Claimant.  On 7 June 2017, CW and the Claimant had a meeting (“the Investigation Interview”).  CW informed the Claimant that JL had lodged the Sexual Harassment Complaint and that JL wanted an apology.  CW told the Claimant that “… Joey will put a complaint against you in that farewell lunch last Friday.”[4] CW sought information from the Claimant about the incident and about previous interactions between him and JL.  When CW asked the Claimant for his response to JL’s complaint, he told her that he would not apologize as he had not done anything wrong and JL’s feeling was not “backed by something reasonable”[5].  The Investigation Interview was recorded by the Claimant with CW’s agreement.  The Claimant has produced a transcript of the Investigation Interview as evidence in this trial.  The accuracy of the transcript is not disputed by the Respondent.

10.About a week later, on 15 June 2017, the supervisor RC had a meeting with the Claimant.

(1)  RC conveyed JL’s demands to the Claimant, which were that:

(a)  the Claimant should avoid her as far as possible in the future; and

(b)  the Claimant should give her a written apology.

(2)  The Claimant was agreeable to the first demand but not the second.  RC told the Claimant that the apology did not need to include an admission of fault, but that JL was “upset”, and that if the Claimant did not apologize, JL had said that she would call the police and the matter would then be “out of their hands”.

(3)  The Claimant insisted not to offer an apology.  The Claimant told RC that there was no reason why JL should have been upset, and that giving her an apology in any form would only encourage her.

RC did not agree to the Claimant recording this meeting. However, the Claimant has produced some written notes of this meeting, and the accuracy of those notes is not disputed by the Respondent.

11.On 19 June 2017, the Claimant sent a memo to RC and CW, reiterating his reasons for his stand.

12.On 21 June 2017, RC and CW had a meeting with the Claimant (“the Termination Interview”).

(1)  RC informed the Claimant that they had been investigating JL’s complaint, had interviewed others there (including JL and two other witnesses who were identified), had taken legal advice, and had decided to terminate his employment with immediate effect by paying him wages in lieu of notice (“the termination decision”).

(2)  The Claimant asked how those witnesses could possibly have seen anything when they had not even been sitting nearby, but RC did not reply.  When the Claimant asked what the witnesses had said, again RC did not respond.

(3)  RC said that the Respondent was allowed to terminate the Claimant’s employment without any reason.  However, he also referred to the offers made by CW and himself to the Claimant to apologize to JL, which the Claimant had refused to accept.

(4)  CW said that they could not force the Claimant to admit wrongdoing, and that was why they had to “find a way to resolve this issue because as an employer we have the responsibility to ensure our workforce is not being threatened by the threat of sexual harassment or any kind of harassment ……”[6].

(5)  RC said to “close down this situation now”[7], the Claimant was given the option to resign or his employment would be terminated.

(6)  The Claimant was not allowed time to consider whether to resign or to be terminated.  The Claimant decided not to resign, and his employment was terminated. 

13.The Termination Interview was covertly recorded by the Claimant.  A transcript of that interview is produced by the Claimant as evidence in the trial.  The accuracy of the transcript is not disputed by the Respondent, and that transcript has been included in the agreed trial bundles.

14.On 7 July 2017, the Claimant informed the Respondent that he had secured the preservation of a CCTV recording at the restaurant on the day in question, and that he had decided to sue the Respondent under the SDO unless certain demands were met.

15.On 13 July 2017, the Respondent’s solicitors wrote to the Claimant stating:-

“Having taken instructions, we reply to your email as follows:-

(a) the decision to terminate your employment with our client was, contrary to your allegation, not as a result of any claim made against you by any staff member as a result of any alleged inappropriate conduct by you at the Crystal Jade Restaurant at the lunch on 2^nd June 2017;

(b) rather, that decision was made as a result of your conduct during and following the investigation of that claim, where it became clear that your continued employment with the company justified a termination within Section 32K(a) of the Employment Ordinance (Chapter 57);

(c) a meeting was therefore held with you on 21^st June 2017, where you were given the opportunity to resign but as you were not willing to do so, your employment was terminated that day by payment of wages in lieu of notice within Clause 14.3 of [the EA].

Based on the above, the terms that you request in your email are not acceptable and are declined by our client. ……”

16.On 20 July 2017, the Claimant commenced these proceedings against the Respondent under s.5(1)(a) and s.11(2)(c) of the SDO.

17.While the Claimant was employed by the Respondent, the Claimant’s monthly salary was HK$21,666.66.  After the termination on 21 June 2017, the Claimant found a new job in early 2018, and his new employment began on 1 March 2018.  He is earning a higher monthly salary in his new job.

B.   THE CLAIMANT’S CASE

18.The Claimant’s position is that the termination decision was made due to the pro-female bias of the Respondent.  In his Notice of Claim dated 20 July 2017, the Claimant said that “[the termination decision] was the result of sex discrimination against him because of his gender, and the gender of his accuser.”  In his amended witness statement dated 10 October 2019, the Claimant said at [37]:-

“… it was obvious [the Respondent] would not have treated a female employee in this disgraceful manner and fired her based on such a flimsy and unsubstantiated accusation. Because I am a male and my accuser was female, [the Respondent] was so scared of being accused of not doing enough that it was willing to discard truth and due process to get rid of the issue as fast as possible.”

19.According to the Claimant, the pro-female bias demonstrated by the Respondent’s conduct in handling the Sexual Harassment Complaint, which is prohibited by the SDO.

20.The Claimant is seeking the following reliefs:-

(1)  a declaration that the Respondent has engaged in a conduct, or committed an act, that is unlawful under the SDO;

(2)  an order requiring the Respondent to offer an apology letter to the Claimant for the mishandling of the Sexual Harassment Complaint (“the apology order”); and

(3)  damages by way of compensation – loss of income from 22 July 2017 until 1 March 2018, with a cap at HK$150,000.

C.   THE RESPONDENT’S CASE

21.The Respondent, with respect, has changed its stance at the beginning of the trial.

22.At first, the Respondent’s stance is the one set out in the letter dated 13 July 2017.  As per that letter:-

(1)  The termination decision was not made as a result of any claim against the Claimant by any staff member (that would certainly include JL) regarding any alleged inappropriate conduct by the Claimant at the Crystal Jade Restaurant at the lunch on 2 June 2017 (that is certainly referring to the Sexual Harassment Complaint made by JL).

(2)  The termination decision was made as “a result of your conduct during and following the investigation of that claim, where it became clear that your continued employment with the company justified a termination within Section 32K(a) of the Employment Ordinance (Chapter 57).”

23.In the Respondent’s written opening submissions dated 26 May 2022, it is submitted that:-

“13. The Respondent stands by its position, as confirmed in the letter from Hart Giles dated 13 July 2017 … to terminate the employment of the contract. Under [the EA], one month’s notice was required after completion of probation, pursuant to Clause 14.3. The Claimant’s employment was terminated by payment of one month’s salary in lieu of notice and therefore his claim for damages has no basis under the Employment Ordinance in view of Section 8A ……”

24.Reading the letter dated 13 July 2017 and the Respondent’s written opening submissions, the Respondent’s position is that the termination is lawful, and the Respondent is not obliged to provide any reason to justify the termination.  The Respondent has the right to do so pursuant to s.32K(a) of the Employment Ordinance and/or Clause 14.3 of the EA.

25.At the beginning of the trial, I asked Mr Hart to clarify whether the Respondent would rely upon point (b) in the letter dated 13 July 2017, i.e. the termination decision was made as a result of the Claimant’s conduct during and following the investigation of the Sexual Harassment Complaint.  To my surprise, Mr Hart not only gave me an answer in the affirmative, Mr Hart also said that the Respondent would also rely upon the Claimant’s conducts before 2 June 2017 (“the Previous Conducts”) as a reason in support of the termination.

26.In my view, reading the letter dated 13 July 2017 and the Respondent’s written opening submissions dated 26 May 2022, before the commencement of the trial, the Respondent had never tried to rely upon the Previous Conducts as a reason in support of the termination.  The Respondent has adopted a new stance in the beginning of the trial.  However, the Claimant elected not to raise any objection to the new stance adopted by the Respondent.  Since the Claimant has no objection, I have allowed the Respondent to run this new case in the trial.

27.It would be convenient for me to dispose of two points first.

28.Firstly, as pointed out by the Court of Appeal, s.32K(a) of the Employment Ordinance would not be relevant in this case in any event.  Part VIA of the Employment Ordinance (which includes s.32K(a)) only applies to certain categories of employees, which do not include the Claimant.  See CA Reasons, footnote 7.

29.Secondly, the Respondent cannot derive any assistance from Clause 14.3 of the EA for the purpose of resisting the Claimant’s case.  The point has been made clear by the Court of Appeal in the CA Reasons, in which Yuen JA said (footnotes omitted):-

“17.1. In the present application, it is clear from the Transcript that by the time of the hearing, [the Respondent] had restricted its strike-out application to one ground only – that the claim was frivolous. Further [the Respondent] submitted that it was entitled under [the EA] to terminate the Claimant’s employment by payment of wages in lieu and it did not pursue the issue of the Claimant’s conduct during and following the investigation. This led to the judge’s observation that it was “puzzling” that the solicitors had invoked s.32K(a) of the EO in the pleaded Response, and that it was “unfortunate that the reference to s.32K(a) has led the Claimant into thinking that there were some other reasons for his dismissal”.

17.2. So pausing there, it is clear from the Outline of Arguments and Supplemental Skeleton referred to in §14.3 above that [the Respondent]’s application for strike-out was made solely on the basis that the Claim was frivolous because termination of [the EA] by payment of wages in lieu of notice was lawful, and this rendered previous events ([the Respondent]’s manner of dealing with JL’s complaint, including its treatment of the Claimant) irrelevant; or to put it colloquially, that that mode of termination “trumped” the Employer’s treatment of the Claimant which gave rise to his claim made under the SDO.

17.3. In my view, given that position of [the Respondent], its application to strike-out should have been dismissed. It is at least reasonably arguable that the mode of termination of employment does not determine the issue whether the Claimant’s dismissal was lawful or not under s.11(2)(c) of the SDO. As the long title of the SDO indicates, the Ordinance is to “render unlawful” acts of discrimination. To take an absurd example, if an employer were to terminate a female employee’s employment by handing her wages in lieu of notice whilst saying to her “I’ve chosen you for termination of employment just because you are a woman”, it cannot possibly be argued that that termination is nevertheless lawful because of the payment of wages in lieu. It has been rendered unlawful by the discrimination. At the hearing before this court, Mr Hart did not dispute that proposition.” (Emphasis added)

30.Accordingly, if the termination decision is due to the sex discrimination as claimed by the Claimant, that decision is rendered unlawful by the SDO.  The Respondent cannot say that the termination decision is lawful because the Respondent has a right to terminate the employment by payment in lieu of notice under the EA.  The contractual right cannot trump the SDO.

31.The Respondent denies that it has committed any sex discrimination against the Claimant.  The Respondent’s case in the trial is that the termination decision is based upon the Claimant’s conducts, both before and after 2 June 2017.  Taking all these conducts into account, the termination decision is well reasoned and justified.  The decision has nothing to do with sex discrimination.

D.   THE PRINCIPLES

32.In the Notice of Claim, the Claimant has made it clear that his claim is based upon s. 5(1)(a) and s.11(2)(c) of the SDO.  According to s.6 of the SDO, although the two sections relied upon by the Claimant refer to sex discrimination against women, these sections also apply equally to the treatment of men with such modifications as are necessary.  For ease of reference, for the purpose of this case, s. 5(1)(a) and s.11(2)(c) of the SDO should read as follows:-

(1)  s.5(1)(a): -

“[A company] discriminates against [a man] in any circumstances relevant for the purposes of any provision of this Ordinance if —

(a)  on the ground of [his] sex [the company] treats [him] less favourably than he treats or would treat a [woman] …”

(2)  s.11(2)(c) (which is in Part 3 of the SDO): -

“It is unlawful for [a company], in the case of [a man] employed by [the company] at an establishment in Hong Kong, to discriminate against [him] —

(c)     by dismissing [him], or subjecting [him] to any other detriment.”

33.SDO s.4 provides:-

“If —

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

(b) one of the reasons is—

(i) a person’s sex;

……

whether or not it is the dominant or a substantial reason,

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

34.In determining the issue of direct discrimination, SDO s.10 requires the court to conduct the following comparison:-

“A comparison of the cases of persons —

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

……

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

35.In Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services[8], the Court of Final Appeal has laid down a four-step approach in determining whether there is sex discrimination under SDO s.5(1)(a).  The four steps are as follows:-

(1)  There must be a difference in treatment between one person, the complainant and another person, real or hypothetical, from a different sex group (i.e. the compared person).

(2)  The relevant circumstances between the complainant and the compared person are the same or at least not materially different.

(3)  It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.

(4)  The difference in treatment is on the basis of sex.

36.The burden is on the claimant to prove discrimination on the balance of probabilities.  However, there is seldom direct evidence on discrimination and the claimant may have to rely upon inferences based upon the primary facts.  As to drawing of inferences, recently HHJ H. Au-Yeung has summarized the principles in Haden v Leighton Contractors (Asia) Ltd[9]. In the case, the learned judge said:-

“43. It has also been recognised that it may be difficult for the plaintiff in race discrimination cases, who bears the burden of proof, to prove the claim, because such discrimination is usually not overt and thus the plaintiff would have to rely predominantly on the drawing of inferences. In North West Thames Regional Health Authority v Noone [1988] ICR 813, the English Court of Appeal held that:

“In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an inadequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds.” (at 822F – G)

44. In King v Great Britain-China Centre [1992] ICR 516, the English Court of Appeal considered several authorities and extracted the following principles and guidance:

“(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’

(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.

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

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case. (at 528F – 529C)”

45. The King’s case had been cited with approval in various Hong Kong cases including Yeung Chung Wai v St Paul’s Hospital [2006] 3 HKC 521, in which Her Honour Judge M Ng (as her Ladyship then was) had the following to say:

“31. I am of the view that the evidential burden does not shift to the defendant employer at any stage. However, the court should approach the question of proof with common sense bearing in mind the standard of proof is on the balance of probabilities and it is sometimes not easy to have direct evidence of discrimination. Once the plaintiff establishes the relevant primary facts on the balance of probabilities, the court in drawing the appropriate inferences will have to consider and weigh the explanation (if any) given by the defendant.”” (Emphasis added)

37.In this case, whether there is a satisfactory reason in support of the termination would have a bearing in assessing whether there was sex discrimination against the Claimant as claimed by him.  As said by Yuen JA in the CA Reasons:-

“24.  As noted earlier, there was no evidence from any staff of the Employer at the hearing before the judge (i) to substantiate the “conduct during and following the investigation” reason for termination, or (ii) to explain why it placed such importance on the refusal of an apology from the Claimant to JL, even without admission of fault.  If no explanation is forthcoming, or if it is inadequate or unsatisfactory, then it would be legitimate for the court to infer that there was discrimination against the Claimant by reason of a pro-female bias (King v Great Britain-China Centre [1992] ICR 516, 528-9, cited in Glasgow City Council v Zafar [1997] 1 WLR 1659, at 1664).  As was held in [The Law Society v Bahl [2003] IRLR 640, §96],

“although bias may be inferred if there is no explanation for unreasonable behaviour, it is not the mere fact of unreasonable behaviour which entitles the court to infer discrimination, but rather the fact that there is no reason advanced for it.””

(Emphasis added)

38.In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Lee Fu Wing v Yau Po Ting Paul[10] , in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witnesses.”

E.   THE EVIDENCE

39.The Claimant has filed a witness statement dated 23 November 2017 in support of his case.  He made some amendments to [14] of that witness statement and filed an amended witness statement dated 10 October 2019.  The Claimant has given live evidence in the trial.

40.The Respondent has filed the following witness statements:-

(1)  Witness statement of JN dated 4 August 2017

(2)  Witness statement of JL dated 17 August 2017

(3)  Witness statement of Siu Man Fai Matthew (“SMF”) dated 12 September 2019

(4)  Witness statement of RC dated 15 September 2019

(5)  Witness statement of Umy Yuen Yi Ng dated 23 September 2019

(6)  Witness statement of Joanna Yang Zi Yun (“JY”) dated 23 September 2019

(7)  Witness statement of Wong Wing Wai (who is CW) dated 23 September 2019

41.However, the Respondent only called SMF and CW to give evidence in the trial.  As to the other witnesses who have not given evidence in the trial, the Respondent also intends to rely upon their witness statements (“the Other Witness Statements”) as evidence in this case.

42.District Court Ordinance (“DCO”), s.73B(5) provides:-

“The Court in the exercise of its jurisdiction under [the SDO] shall not be bound by the rules of evidence and may inform itself on any matter in such manner as it sees fit, with due regard to the rights of the parties to proceedings therein to a fair hearing, the need to determine the substantial merits of the case and the need to achieve a prompt hearing of the matters at issue between the parties.”

43.Accordingly, I would not say that the Other Witness Statements are inadmissible evidence.  However, since the makers of the Other Witness Statements have not confirmed the contents of these witness statements under oath and have not been cross-examined by the Claimant, as a matter of fairness, save and except the matters which are agreed by the Claimant or evidenced by the documentary evidence, I would not attach any weight to the matters mentioned in the Other Witness Statements.

E1.    The Claimant

44.The Claimant’s evidence is in line with the agreed facts as set out in the above and the documentary evidence.  His evidence is clear and cogent, and remains unshaken after cross-examination.  I accept the Claimant’s evidence.

45.The following matters in the Claimant’s evidence are unchallenged:-

(1)  The Claimant started his employment with the Respondent on 12 January 2017, and completed the 3-month probation on 12 April 2017.

(2)  His duties included writing and editing articles and covering events. He worked mostly independently in the Hong Kong office, and reported to JN, who was based in London.  The Claimant got along with JN.

(3)  From the Claimant’s perspective, JN and everyone else seemed pleased with his work.  The Claimant was offered opportunities to participate in conferences in Shanghai in August 2017 and in Sydney in October 2017.

46.Mr Hart has put some matters in the Other Witness Statements to the Claimant.  The Claimant agreed to some of these matters.  The matters agreed by the Claimant are as follows:-

(1)  At one time, the Claimant wrote a book review for publication.  JN deleted some comments in this book review.  JN was of the view that those comments were unfair.  The Claimant agreed that this incident did occur.  However, the Claimant disagreed with the deletion and the reason given by JN.

(2)  Shortly after he started his employment with the Respondent, RC had spoken to him about some of his behaviours in the office.  According to RC, what he mentioned to the Claimant were the Claimant’s eccentric working behaviour such as drumming his fingers on the table, using the phone booths in the office to watch Youtube, standing behind people’s desks and staring at what they were doing, and making circuits in the office.  The Claimant could only remember that RC had mentioned to him the behaviour of drumming fingers on the table.  As to the other behaviours, the Claimant could not remember whether RC had mentioned these to him.

(3)  JY had talked to the Claimant several times, asking him not to move around in the office, for that would affect JY and make her being unable to focus on her work.  The Claimant had agreed to try to change, but the Claimant also said that this was his habit.

(4)  The Claimant agreed that inside the office, he would tap the floor with his feet and tap his fingers on the table.  He would also walk around the office as the Hopewell Centre was in the circular shape.  He walked when he wished to think.  The Claimant would also kneel and spin on his chair.

(5)  On 7 February 2017, the Claimant moved from his seat to a small meeting table next to JL.  The Claimant said that he did so because it was too noisy where his desk was.

47.In respect of the matters agreed by the Claimant, I would take those matters into account.

48.In JL’s Witness Statement, JL mentioned that something happened on 7 February 2017.  In that witness statement, JL said:-

“4. [I and the Claimant] sat opposite each other with a 30-cm screen blocking in between. [The Claimant] had been habitually tapping on the floor with his feet, tapping on the table and snapping his fingers, tossing his Rubik’s cube, walking aimlessly on the corridor and to the window, walking around my table while talking on the phone, yawning loudly, kneeing and spinning his chair when he was bored and shaking his leg so fiercely that my computer monitor also shakes along. All these could happen at least three times an hour. The most frequent thing he did was wandering. I once timed his movement and he changed his location every two minutes within an hour. …… I have been approached three times by colleagues, asking why he was always walking and seeking attention. In fact, I found his behavior extremely annoying and distractive. My job demands a lot of researching and writing and I could not focus due to his constant movements and noise. I started to have insomnia, worrying about the next day going back to office and having my patience being tested.

……

6. On 7 February 2017 in the morning, I moved to a new seat after getting the approval from [RC], my direct manager. But on the same day in the afternoon, [the Claimant] came over to the small meeting table next to my new seat with his lap top. He sat down on one of the chairs and started to shake his leg again. I sent an email to [the Claimant] and asked why he was there and he said it was quieter and why did it matter? I replied it mattered when he stood and walked around and shook his leg. He replied “Don’t look.” And I asked him politely if he could go somewhere else. He stopped replying and I was so frustrated and endured another half hour until he went away.

7.  [The Claimant] had never went to that area before I moved my seat, I could not stop thinking he did it on purpose to annoy me even further and I felt being picked on.  By moving my seat, I tried to avoid him and made concession.  I already felt terrible for notifying my manager that I wanted to change seat due to his disturbance which was seemingly childish but extremely tormenting.  And this time he followed me and I was so hopeless because I have tried all means to settle it.  I tried to let him understand he made me uncomfortable, ask him to stop, and even change me seat.  I enjoyed working at this company very much and have good relationship with all the colleagues until he stressed me out by doing all those annoying and tormenting moves and ignoring my messages that asked him to stop.  He was so hostile that there seems to be no other ways to end my torment except resigning. I have consulted my friends and they persuade me to get the management involved if he did it again.”

49.As to the incident on 7 February 2017, in the Investigation Interview, the Claimant voluntarily provided some information.  In the transcript of the Investigation Interview, the following exchanges can be seen:[11]-

“C: In addition to this incident, did she sometimes send you weird emails?

S: She used to sit opposite me, but she complained before about how I was a bit noisy or something like that, apparently I tap my fingers a bit sometimes when I work, and I’m not really aware of it. In fact I spoke to Ralph about that because she complained to Ralph about that, and Ralph brought it up with me, and I said “Oh, ok, I’m sorry about that, I’ll try to be more aware-” Because I’m not sure how loudly I was tapping, sometimes I’m not aware of it when I’m working, but my policy is that if I’m not sure, I’ll give the benefit of the doubt. So I said “I’ll try to be more aware.”

In the first few days sometimes she’d send me an email [asking me to not make so much noise], which is a bit strange given that I’m opposite her and she could just tell me in person, I thought it was a bit weird.

In any case after I had that conversation with Ralph, for some reason the day after or a few days after she moved and went to sit somewhere else.

And once it was a bit noisy because some people around my desk were on the phone and some people were having conversations around. So there’s a small table that they use sometimes for meetings, so it was a bit noisy so I went to sit there because I was writing something and found it hard to concentrate.

(We talk logistics.)

So I went to sit there and was working, and she sent me an email again saying “Why are you sitting here?” (Laughs)

C: (Laughs)

S: I said something like “People are talking over there.” Again it’s a bit weird that she sends me emails instead of just talking to me. So I said “Those people are a bit noisy, so I’m over here working.” And she said “Can you go back to your own place because you sitting here is disturbing me.” And I’m like “Why do you care so much?” (Laughs). Honestly, it’s like “I’m just doing my own stuff, if you don’t want to look at me, don’t look at me, no one is forcing you to.” So that was another time she sent me a weird email. It doesn’t bother me that much-

C: She requested you not to use the shared table?

S: Yes. I just said “If you don’t wanna look at me, don’t look at me, I’m gonna do my work, so don’t disturb me.”

But I never complained about these things because I think they’re just so stupid.

My concern is that if we entertain this too much, what is she gonna bring up next time? Let’s say next time there’s a meeting and I happen to be sitting next to her for some reason because they’re no chairs — I’m gonna try to avoid sitting next to her as far as possible to avoid stupid stuff like this from happening — but what happens if I sneeze in her direction, is she gonna make a complaint about that? What if she claims I breathed in her directions or something, is she gonna make an incident about that.

I feel this is so ridiculous and we’ve really entertain it there’s gonna be no end to her ridiculous claims.”

50.Regarding the incident on 7 February 2017, what has been said by the Claimant in the Investigation Interview has not been contradicted by any reliable evidence.

E2.    SMF

51.SMF did not take part in the investigation of the Sexual Harassment Complaint, and he also did not take part in making the termination decision.  He has no knowledge as to why the Claimant’s employment was terminated on 21 June 2017. SMF’s evidence is of very limited assistance in this case.

52.SMF’s witness statement is very short and touches upon a few matters only.  The gist of his witness statement is as follows:-

“2. On 3^rd March 2017, I went to a meeting with Shaun Tan (“Shaun”) to meet with [a company]. After the meeting, I sent an email to James Nurton about how he kept shaking his leg during the meeting, which I think is quite unprofessional and annoying. I told James I will have a word about this with Shaun if we ever go to another meeting together.

3.  Feedback from client regarding him is that he is too green and his IP knowledge is too little to take on an IP reporter role.

4.  Within the office, the only thing that bothered me is how he was always walking around.”

53.As to the matters mentioned in [2] and [3] of his witness statement, SMF was asked why the underlying documents, i.e. SMF’s email to JN mentioned in [2], and the client’s feedback mentioned in [3], had not been produced in these proceedings.  As to these questions, I am of the view that SMF has not provided any satisfactory answer.  Without these underlying documents, there would be no way to find out whether the matters set out in [2] and [3] are entirely correct and true.  I decline to attach weight to these two paragraphs.

54.As to [4] of SMF’s witness statement, the Claimant agreed that he had a habit of walking around in the office.

E3.    CW

55.CW is the Group Human Resources Manager.  The Respondent is a company in the Group.

56.CW’s witness statement focuses on the Sexual Harassment Complaint, including the details of the investigation conducted by CW after receiving the claim from JL.  CW’s evidence is that after the investigation, there is no sufficient evidence proving the Sexual Harassment Complaint.

57.A little part of CW’s evidence touches upon the Previous Conducts.  In her witness statement, CW said that on 6 June 2017, she reported the Sexual Harassment Complaint to RC and Tony Shale (“TS”, who was the CEO), and both RC and TS replied the same day saying that they supported the investigation.  TS asked if this was the first time the Claimant involved in an HR-related issues, CW gave the following email reply to TS (“CW’s Email Reply to TS”):-

“Subject: RE: Harassment Letter of Complaint

Officially yes. But un-officially no… When Shaun joined for a month or so, there were no. of colleagues (both male and female) has noticed his weird behavior, such as always occupying the telephone booth and sometimes for movie watching, some girls disliked him being walking around their desk area and standing behind their back for doing nothing. I informed Ralph about his strange/unpopular behavior and Ralph talked with him and it has been improved since then.

But overall, I knew he is unpopular to many Asian female staff as the way he looked at women is impolite/weird.

Let’s discuss more after I talk with the relevant staff and to determine what is the next action to be taken.” (Emphasis added)

58.However, under cross-examination, CW admitted that there was no documentary evidence showing that there had ever been any complaint against the Claimant by anyone in the company before 2 June 2017.

59.CW said that the termination decision was made not because of the Sexual Harassment Complaint, but because of the Claimant’s conduct during the investigation and the Previous Conducts.  With respect, I am of the view that this part of CW’s evidence is disingenuous.

60.As shown in the transcript of the Termination Interview, the following exchanges can be seen:[12]-

“R: Shaun, as you know, we’ve been investigating the claim that Joey made in the last couple of weeks. Since she made it, we’ve looked at all the evidence, we’ve interviewed all the people who were there including her witness, we've taken legal advice, and we've come to a –

S: What witness?

R: - come to a decision.

C: There are a number of them. Umy and also Joanna Yang-

S: Mmhmm.

C: -and Joey herself.

S: Uhuh. But how could they possibly have seen anything? They weren't even sitting nearby.

R: We’ve come to a decision, and I regret to say we have decided to terminate your employment with immediate effect. We will pay you in lieu of notice and we are happy to offer you the chance to resign — we will also pay you in lieu of notice — but whatever your decision is we need your access card back immediately, we want you to leave the building immediately. If you need to collect anything from your desk we can arrange that now. If you want to come back and collect your personal effects, you can arrange that with Catherine to do that at a later date.

S: I see. Well this is really ridiculous. This is so, so stupid. I cannot believe- What did they even say? Usually there is a chance to meet your accuser and hear what they have to say. How could anyone have seen anything?

R: I remind you that under your contract we can terminate your employment within the first two years without reason and give you a week's notice.

S: Without reason?

R: Yes, under Hong Kong law we are allowed to do that. You were given two very wide open goals. In your conversation with Catherine you were offered a chance to apologize. In your conversation with me, you were offered to apologize, which would have not had admitted liability, it would have apologized to Joey for any upset that you might have caused her, and you refused to do that twice.

S: And I told you exactly why.

R: You did. And I repeat, it would not have admitted liability, it would have simply said: ‘Joey I’m sorry if I caused you any upset.’ And you refused to do that, so we took legal advice, and the legal advice was very clear: that we have very solid grounds to terminate your employment.

S: If you open my employee handbook is there anywhere that says- point to me the part that says I have to admit wrongdoing where I have done no wrong. Show me that part.

R: That I believe is irrelevant.

C: We cannot force you to admit and this is why when it comes to this situation because we have consulted our legal advice that we have to find a way to resolve this issue because as an employer we have the responsibility to ensure our workforce is not being threatened by the threat of sexual harassment or any kind of harassment and so according to the terms of your employment contract, it’s not just by the company, but as well as yourself, either party could terminate the contract by either giving payment in lieu of one month’s notice or one month’s notice. One day, for instance, if you resign, within the first two years of your service, we cannot force you to give us a reason, as long as you give us one month’s notice or payment in lieu of one month’s notice.

S: You are required to give me a reason, are you not? Like a valid reason.

C: No, I’m afraid we don’t have to.

S: No? Well, I’ll have to take a look at that again. But really, I’m thoroughly disappointed in both of you. This is just so ridiculous, and you’ve allowed this thing to go out of hand and escalate to really ridiculous proportions. If there’s evidence, if there are statements by other people, I expect to be able to hear them, I expect to be able to see them, I expect to be able to hear what my accusers say and to know who said it and what they’ve said. You’ve done none of that. I don’t think you’ve gone through this with due process at all.

R: I’m afraid we have. We have taken advice, we have taken legal advice, and our legal advice tells us that this is what we should do to close down this situation now, this is what we should do, and this is what we’re doing.

As I said, you have the opportunity to resign if you want. Nobody will know outside this room, there won’t be any grand announcement. People will just be told that you decided to resign.

S: I would have to consider that. But really, as a team leader, Ralph, you should know when to put your foot down. You should know when certain things should be entertained and when certain things are just really nonsense.

C: I’m afraid this is not just up to Ralph level to decide to determine whether sexual harassment case should be dealt with or should not be dealt with.

S: Uhuh, and who else is involved in this decision then. Do I not have the chance to meet them and speak with them too?

R: Shaun, after this meeting we either terminate you or you choose to resign. It goes no further than this, that’s what’s happening now. This isn’t going any further. You have no opportunity to go further. As I said, we are perfectly within our rights, we have consulted, we are perfectly within our rights to terminate you within the first two years of your employment under Hong Kong law. You can do the same — you don’t have to give us reason, we don’t have to give you reason. I said we’re giving you the opportunity of resigning. But it’s resigning or termination.

S: I would like a while to consider that.

R: It’s either resigning or termination. You have to make a choice.

S: I would like some time to consider that.

R: You don’t have time. Sorry. You don’t have time. We can terminate you right now. We don’t even have to offer you resignation. We don’t have to offer you resignation. We could terminate you right now, and we’re on very firm legal ground to do that.

S: And I would like some time to consider that.

R: There is no choice. You either choose to resign, or we terminate you. If you don’t choose to resign we terminate you. End of story.

S: Alright, in that case you can terminate me.

R: Right, ok, very good, thank you, thank you for your decision.” (Emphasis added)

61.In her oral evidence, CW seized upon the words “or any kind of harassment” mentioned by her in the Termination Interview.  CW said that “any kind of harassment” means the following:-

(1)  the mental harassment done by the Claimant against JL, including the incident on 7 February 2017 and the rude and impolite email reply to JL on 2 June 2017 (i.e. Tan’s Email to JL), in which the Claimant said that JL might need therapy; and

(2)  the mental harassment done by the Claimant against the other colleagues.

62.CW said that the Previous Conducts of the Claimant constitute mental harassment against the other colleagues.

63.Looking at the transcript of the Termination Interview, the exchanges in the interview show that the basis of the termination decision can only be the Sexual Harassment Complaint and cannot be anything else.

(1)  At the very beginning of the interview, RC mentioned to the Claimant that the investigation concerning the Sexual Harassment Complaint had been done, and the company had come to a decision.

(2)  RC specifically mentioned to the Claimant that the Claimant had been offered opportunities to make an apology to JL twice, but the Claimant refused to do so.  The Claimant was requested to offer an apology to JL because of the Sexual Harassment Complaint made by JL, not because of any other complaint made by JL.  No doubt, RC meant that had the Claimant offered an apology to JL as requested, the termination could be avoided.

(3)  At the time of the Termination Interview, the complaint made by JL against the Claimant “in the last couple of weeks” could only be the Sexual Harassment Complaint.  In these circumstances, it defies common sense to say that the termination decision is not based upon the Sexual Harassment Complaint but based upon something else.

(4)  In the Termination Interview, when the Claimant said to RC that RC should know when certain things should be entertained and when certain things are just really nonsense, CW told the Claimant that this was not up to RC’s level “to decide to determine whether sexual harassment case should be dealt with or should not be dealt with.”  Clearly, the termination decision is based upon the Sexual Harassment Complaint.

(5)  During the whole interview, nothing concerning the general behaviour of the Claimant in the office has been mentioned.

64.Further, the following have to be borne in mind:-

(1)  the Claimant had satisfactorily completed the probation and his employment was confirmed after the probation period, notwithstanding the incident on 7 February 2017;

(2)  before 2 June 2017,

(a)  although some colleagues were of the view that some of the Claimant’s behaviours in the office were annoying, situation had been improved after RC reminding the Claimant (see CW’s Email Reply to TS in [57] above); and

(b)  the Respondent in fact had prepared to send the Claimant to participate in overseas conferences in August and in October 2017;

(c)  the Respondent had not conducted any investigation concerning any conduct of the Claimant; and

(d)  the Respondent had never issued any warning, verbal or written, to the Claimant.

In view of all these, it is plain that before the incident on 2 June 2017, the Respondent did not consider that the Previous Conducts were so unreasonable and disciplinary action should be taken against the Claimant as a result.

65.As to Tan’s Email to JL, in my judgment, the termination is not based upon that email at all.  That email has not been mentioned in the Termination Interview.  There is also no documentary evidence showing that the Respondent’s management has given any weight to Tan’s Email to JL in their deliberation leading to the termination.   In my view, trying to use Tan’s Email to JL to justify the termination is only an afterthought occurred to the Respondent shortly before the commencement of this trial.

66.CW’s evidence that the termination decision is due to or partially due to the Previous Conducts is also contradicted by the letter dated 13 July 2017, in which the Respondent’s solicitors said on behalf of the Respondent that the termination decision “was made as a result of [the Claimant’s] conduct during and following the investigation of [the Sexual Harassment Claim] …”  As per the letter, it is plain and obvious that anything occurred prior to 2 June 2017 (the day on which the alleged sexual harassment occurred) cannot be the reason for the termination.

67.CW has tried to give an impression that the termination decision is based upon or partially based upon the Previous Conducts.  With respect, for the reasons set out in the above, this is blatantly untrue.  I do not regard CW as a reliable witness.  Save and except the matters agreed by the Claimant and the matters evidenced by documentary evidence, I refuse to accept CW’s evidence.

F.   ANALYSIS

F1.    Liability

68.Based upon the evidence accepted by the court, in my judgment, the Claimant has proved his case.

69.The Respondent has said that the Sexual Harassment Complaint is not proved.  Hence, the Sexual Harassment Complaint cannot be a reason for the termination.

70.In the letter dated 13 July 2017, the Respondent has said that the termination decision was made as a result of the Claimant’s conduct during and following the investigation of the Sexual Harassment Complaint.  Based upon the evidence before the court, the Claimant’s conduct during and following the investigation is as follows:-

(1)  The Claimant denied the Sexual Harassment Complaint and refused to apologize to JL.

(2)  The Claimant agreed to avoid JL as far as possible in the future, but refused to offer an apology to JL.

(3)  In the Termination Interview, the Claimant asked for reason, but no reason was given to him.  The Claimant was required to choose between tendering a resignation and termination.  The Claimant requested for time to consider the matter, but no time was given to him.  Eventually, the Claimant chose termination.

71.The Respondent is unable to tell what conduct of the Claimant during and following the investigation of the Sexual Harassment Complaint is the reason or a reason in support of the termination.

72.Regarding the Previous Conducts, for the reasons set out in the above, I am of the view that the termination decision is not based upon or partially based upon the Previous Conducts.

73.I also note that the Respondent has not disclosed any document concerning the reason for the termination.  It is inherently improbable that there would be no email and no written document recording the discussion concerning the termination among the Respondent’s management.

(1)  In CW’s witness statement, CW said at [27]:

“I said [to JL] I will report all the investigations to the management and will come back to Joey for any progress/decision made.”

In her oral evidence, CW said that she reported her investigations to RC and TS.

(2)  In the trial bundles, there are some email exchanges among CW, RC and TS.  CW, RC and TS would use emails to discuss the matters in the company.  Naturally, in respect of the investigations conducted by CW as a result of the Sexual Harassment Complaint, and the deliberation among the management leading to the termination decision, there should be some email exchanges recording all these matters.

(3)  The investigations and the deliberation mentioned in the above are important and serious matters.  It is inherently improbable that the Respondent would not have any document recording these matters.

(4)  However, no email and no document recording the investigations concerning the Sexual Harassment Complaint and the deliberation leading to the termination has been disclosed by the Respondent.

74.In my view, there is no reliable evidence before this court showing a reason for the termination.  I am also of the view that the Respondent has chosen not to disclose the documents mentioned in the above.  Obviously, the Respondent would not terminate the Claimant’s employment without a reason. However, the Respondent is not willing to tell the truth and is trying to conceal the real reason for the termination.

75.Based upon the factual findings as set out in the above, I infer that the real reason for the termination is the pro-female bias as advanced by the Claimant in his case.  The Respondent has treated the Claimant in the following way:-

(1)  requesting the Claimant to tender an apology to JL, notwithstanding that the Sexual Harassment Complaint is not proved; and

(2)  dismissing the Claimant after the Claimant having refused to offer the apology as requested.

76.In my judgment, in the same scenario, had the Claimant been a woman, the Respondent would not have had treated the Claimant in the same way. Had the Claimant been a woman, the Respondent would not have demanded the Claimant to offer an apology to JL while the Sexual Harassment Complaint is not true. The Respondent also would not have terminated the Claimant’s employment after the Claimant refusing to offer the apology.

77.I find that the Respondent has breached SDO s.5(1)(a) and s.11(2)(c) as claimed by the Claimant.

78.As a matter of completeness, I would also set out my view on two points taken by the Respondent in the trial.

(1)  The Respondent has tried to say that Tan’s Email to JL is a reason for the termination, for that email is rude and impolite, constitutes mental harassment to JL.  As set out in the above, in my judgment, the Respondent has not taken that email into account in the deliberation leading to the termination.  For the sake of discussion, assuming that Tan’s Email to JL is a reason for the termination, viewed in context, that fact itself in fact would be evidence in support of the pro-female bias claimed by the Claimant.

(a)  In JL’s Email to Tan, JL raised a serious allegation (i.e. the Sexual Harassment Complaint) against the Claimant and demanded an apology from the Claimant.  In Tan’s Email to JL, the Claimant denied the allegation.  Both JL and the Claimant have used strong language in their respective emails.  In other words, not only the Claimant, but also JL, have used strong language in those email exchanges.

(b)  The Respondent has found that the Sexual Harassment Complaint is not proved. In other words, JL’s allegation cannot be regarded as the truth.

(c)  With all these in mind, if the Respondent has attached weight to Tan’s Email to JL and made the termination decision as a result of that email, it would be difficult to say that the termination decision is not influenced by the pro-female bias as claimed by the Claimant.

(2)  The Respondent has tried to argue that they did not request the Claimant to offer an apology to JL for the Sexual Harassment Complaint.  The Respondent only conveyed to the Claimant that JL had this request.  With respect, I am unable to accept this point.  As shown in the transcript of the Termination Interview, RC did say that both he himself and CW had offered opportunities to the Claimant to make an apology to JL.  The Claimant refused, and hence the Respondent made the termination decision.  In my view, there is clear evidence showing that the Respondent (acting through RC and CW) did request the Claimant to make an apology to JL for the Sexual Harassment Complaint.

F2.    Reliefs

79.One of the reliefs claimed by the Claimant is the apology order.  This court has the jurisdiction to grant that order under SDO s.76(3A)(b).  This has been confirmed by the Court of Final Appeal in Ma Bik Yung v Ko Chuen^[13].  In that case, the Court of Final Appeal has also laid down the appropriate procedure for granting an apology order.  Li CJ said:-

“Order for apology on the assumption that the defendant is willing to apologise

34. To apologise is simply to say sorry. An apology is a regretful acknowledgement of a wrong done. It can be made privately or publicly. The making of an apology will usually redress, at least to some extent, the loss or damage, particularly injury to feelings, suffered by the plaintiff as a result of the defendant’s unlawful conduct under the Ordinance. Where a defendant voluntarily makes an apology at early stage, for example, soon after the incident, during the conciliation process or before legal proceedings, it will usually mitigate the plaintiff’s loss or damage. And the earlier it is made, the stronger will be its mitigating effect.

35. Where the defendant contests liability but the court after trial makes a finding of liability against the defendant, the court may then consider the question whether it would be appropriate to order an apology. In many cases, the court may well decide that an apology would be appropriate. An apology, even at this late stage after a finding of liability, could have the effect of redressing at least to some extent the plaintiff’s loss and damage. So long as the making of the apology is a reasonable act for the defendant to perform, the court may order an apology. Such an order would be within the court’s power under this provision. In making such an order, it is desirable that the court should set out the terms of the apology (the terms should usually be simple) and appropriate directions, such as whether it should be private or public and, directions concerning communication and publication.

36. Under the global approach to remedies discussed above, the order for an apology would in many cases be one element in a package of remedies which may well include damages. In making an order for an apology, the court is entitled to proceed on the assumption, in the absence of any contrary indication, that after a finding of liability, the defendant will be willing to apologise pursuant to the order. That is, the defendant will be willing to make an apology which is sincere.

The appropriate procedure

37. As a practical matter, where the court wishes to grant remedies which include an order for an apology, the appropriate procedure would be to proceed by making in the first instance provisional orders (that is, orders nisi). The court should give the parties the opportunity to make representations, if they wish, before the provisional orders are made final (that is, before the orders nisi are made absolute). If contrary to the court’s assumption, the defendant indicates that that he is an unwilling defendant in the sense referred to above (that is, he does not feel sorry and any apology would therefore be an insincere one), the court should hear the parties and consider the submissions made, including any argument by the defendant that such an order, if made final, would infringe his guaranteed rights and freedoms. The court would then decide on the orders that should be made final. I shall turn in a moment to deal with the question whether the court should make a final order for an apology where the defendant has indicated that he is an unwilling defendant.

38. Where the court decides not to include an order for an apology in the final orders, the court would, on the global approach, usually adjust the other orders. Where the package of remedies provisionally ordered included not only an award of damages, but also an order for an apology and the final order omits the latter, the deficiency must be filled, unless there is good reason for not doing so. The adjustment would usually take the form of a substantial increase in the quantum of damages. It will generally be appropriate for the court, when making the provisional orders, including the order for an apology, to state that if the final orders do not include the order for an apology, then it is likely that the quantum of damages would be substantially increased. Whether the court should indicate at that stage the actual amount by which the damages would be increased is a matter to be considered. See the helpful discussion in Carole J Peterson: The failure of the Hong Kong Court of Appeal to recognise and remedy disability discrimination (2000) HKLJ Vol. 30 Part 1 p.6 esp. 20-1. Generally speaking, however, it will be preferable not to indicate the amount of likely increase at this stage. First, the court should leave the amount of increase to be determined after hearing argument. Secondly, indicating the amount of increase at that stage may give rise to a perception which would be undesirable that the defendant can buy his way out of making an apology.” (Emphasis added)

80.On a provisional basis, I am of the view that the Claimant is entitled to have the reliefs set out in [20] above.

(1)  I am prepared to grant a declaration that the Respondent’s decision to terminate the Claimant’s employment with the Respondent on 21 June 2017 is based upon sex discrimination against the Claimant and is unlawful.

(2)  I am also prepared to order the Respondent to pay damages by way of compensation to the Claimant in the sum of HK$150,000.  Based upon the evidence accepted by the court, as a result of the unlawful termination, before the Claimant having a new employment on 1 March 2018, the Claimant has suffered a loss of income of more than HK$150,000.  Since the Claimant has agreed to a cap of HK$150,000, the amount of damages by way of compensation would be HK$150,000.

(3)  The sum of HK$150,000 would represent the Claimant’s loss of income during the period from 22 July 2017 to 28 February 2018.  To take a broad brush approach, I would order pre-judgment interest on that sum to run from a mid-point in this period, say 6 November 2017, until the date of this judgment at the rate of 1% above the HSBC prime rate in Hong Kong.  Thereafter, there would be interest at the judgment rate until full payment of that sum.

(4)  I would further order that the Respondent do provide an apology letter to the Claimant within 14 days after this order becoming absolute.  That letter has to be signed by a person holding a senior position in the Respondent (for example, a director or a senior officer), and that person has to be duly authorised by the Respondent to sign that letter.  The terms of the letter should be as follows:

“We offer our apology to you for the termination of your employment on 21 June 2017, which has been found by the District Court of the Hong Kong Special Administrative Region as unlawful by reason of sex discrimination in [2022] HKDC 622 (“the Judgment”). We apologize to you for the sex discrimination against you as found in the Judgment.”

(5)  There be liberty to apply.

81.As to costs, DCO s.73B(3) provides:-

“Each party to any proceedings in the Court in the exercise of its jurisdiction under [the SDO] shall bear its own costs unless the Court otherwise orders on the ground that —

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.”

On a provisional basis, I make no order as to costs.  That means each order would bear his and its own costs in these proceedings.

82.Unless there is an application for variation of the provisional order as set out in [80] and [81] above within 14 days from the date of this judgment, the said provisional order shall become absolute.

83.In making the provisional order as set out in the above, I assume that the Respondent is willing to tender the apology letter as stipulated in [80(4)] above to the Claimant after being found liable to the Claimant by this court. If, contrary to my assumption, the Respondent is unwilling to offer the stipulated apology or any apology to the Claimant, I expect that there would be an application from the Respondent for varying the provisional order within the time prescribed by me.  If there is such an application from the Respondent, I may consider to replace the apology order with an order requiring the Respondent to pay punitive or exemplary damages to the Claimant. The amount of the punitive or exemplary damages may be substantial. The quantum of the punitive or exemplary damages would be fixed after considering the submissions from the parties.

DEPOSITION

84.I rule in favour of the Claimant on liability and make the provisional order as set out in the above.

85.Lastly, it remains for me to thank Mr Tan and Mr Hart for the assistance rendered to the court.

The Claimant appeared in person.

Mr Andrew Hart of Hart Giles, for the Respondent