Lam Chak Chun v. The Incorporated Management Committee of Tung Wah Group of Hospitals Wong Fut Nam College

DCEO 13/2023
DCEO 14/2023

[2025] HKDC 1616

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 13 OF 2023

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 14 OF 2023

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BETWEEN

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DECISION

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1.There are three applications before the court:

(a)  In DCEO 13/2023, the respondent applies for leave to adduce the expert report to be prepared by Professor Alan Cheung of The Chinese University of Hong Kong in relation to the issues set out in the schedule to the summons (reproduced at Annex A hereto).

(b)  In DCEO 14/2023, the respondent applies for leave to adduce the expert report to be prepared by Professor Alan Cheung of The Chinese University of Hong Kong in relation to the issues set out in the schedule to the summons (reproduced at Annex B hereto).

(c)  In DCEO 14/2023, the claimant applies for leave to adduce the expert report to be prepared by Professor Dicky Chung of The Chinese University of Hong Kong in relation to the issues set out in the schedule to the summons.

2.All applications are opposed. They are directed to be heard together as they involve similar background and arguments.

3.At the hearing, Mr Earl Deng of counsel represents both claimants.  Both respondents are represented by Mr Martin Kok of counsel.

A.  Essential background

4.In DCEO 13/2023,

(a)  The claimant was a student of the respondent school. 

(b)  It is his case, inter alia, that the Male Hair Rules of the school (more particularly described in [5] of the Amended Notice of Claim)  directly discriminated against male students including him ([17] and [18] of the Amended Notice of Claim). 

(c)  He commenced the action, based on the Sex Discrimination Ordinance (Cap 480)  (“SDO”), to claim declaratory relief, a public apology and damages including punitive or exemplary damages against the respondent.

5.In DCEO 14/2023,

(a)  The claimant was a student of the respondent school. 

(b)  It is his case, inter alia, that: (i)  the Male Hair Rules of the school (more particularly described in [5] of the Re-Amended Notice of Claim)  directly discriminated against male students including him ([20] and [21] of the Re-Amended Notice of Claim); and (ii)  the Medical Room Arrangement (more particularly described in [13] of the Re-Amended Notice of Claim)  that was imposed on him from 19 April 2021 to the end of the 2020/2021 school year for breaching the Male Hair Rules ([14(2)] of the Re-Amended Notice of Claim)  constituted indirect discrimination against him ([27] and [28] of the Re-Amended Notice of Claim).

(c)  He commenced the action, based on the SDO and the Disability Discrimination Ordinance (Cap 487)  (“DDO”), to claim declaratory relief, a public apology and damages including punitive or exemplary damages against the respondent.

6.Both respondents deny there was any discrimination.  They aver in their respective actions, inter alia, that:

(a)  The school imposes standards and requirements on a student’s outward appearance (“Standards”). ([4(a)] of the Notice of Response in DCEO 13/2023; [5(a)] of the Amended Notice of Response in DCEO 14/2023)

(b)  The Standards as applied to male and female students are not identical. ([4(b)] of the Notice of Response in DCEO 13/2023; [5(b)] of the Amended Notice of Response in DCEO 14/2023)

(c)  The Standards are, inter alia, in accordance with and reflect “conventional school dress and appearance in Hong Kong”. ([5(a)] of the Notice of Response in DCEO 13/2023; [6(a)] of the Amended Notice of Response in DCEO 14/2023)

(d)  The Male Hair Rules is only one item of the whole package of the Standards.  Considering the Standards as a whole and as a package, the Standards in relation to the outward appearance of students did not treat male students less favourably than female students and the Standards were not enforced more stringently or onerously against male students. ([4(c)], [17(a)] & [17(b)] of the Notice of Response in DCEO 13/2023; [5(c)], [19(a)] & [19(b)] of the Amended Notice of Response in DCEO 14/2023)

7.In reply, the claimants:

(a)  put the respondents to strict proof as to any “conventional school dress and appearance in Hong Kong” ([5(1)] of the Reply in DCEO 13/2023; [4(1)] of the Amended Reply in DCEO 14/2023); and

(b)  aver that if such conventions exist, “it is based on gender stereotypes or generalized assumptions that male students in Hong Kong with longer hair are not presented neatly, lack self-discipline, and are badly behaved”. ([4(1)] in DCEO 14/2023)[1]

B.  Applicable legal principles

8.As to the applicable principles, the starting point is the special provisions in the District Court Ordinance (Cap 336)  on evidence in equal opportunities proceedings. 

9.It is provided in sections 73B(5)  (applicable to proceedings instituted under the SDO)  and 73C(5)  (applicable to proceedings instituted under the DDO)  that:[2]

“The Court in the exercise of its jurisdiction … 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.”

10.Focusing on expert evidence, the Court of Appeal elaborated in Singh Arjun v The Secretary of Justice [2014] 2 HKLRD 678 at [15] that:

“… The crucial question is whether the evidence in the report is relevant and admissible for the purpose of the trial. Expert evidence, being opinions in its nature, should only be admitted in respect of subjects which the court needs expert assistance: para 2 of Code of Conduct for Expert Witness; Hong Kong Civil Procedure 2014 Vol 2 para J1/58/2. We do not think this fundamental rule is relaxed by Section 73E(5)  of the District Court Ordinance. Otherwise, a trial on Equal Opportunities claims can easily be degenerated into a trial by opinions (whether expert or otherwise)  which cannot possibly be the intention of Section 73E(5).”

11.Both Mr Deng and Mr Kok refer to Shenzhen Futaihong Precision Industry Co Ltd & ors v BYD Co Ltd & ors [2019] 2 HKC 175 and Kennedy v Cordia (Services)  LLP 1 WLR 597 on the test to be applied. The relevant principles were recently summarized by Cheng J in Realord Group Holdings Limited v Win Dynamic Limited [2025] HKCFI 1939 as follows:

“5. There is no dispute that, as the Court of Appeal set out in Shenzhen Futaihong Precision Industry Co Ltd & ors v BYD Co Ltd & ors [2019] 2 HKC 175 at [4] to [6], an applicant for leave to adduce expert evidence needs to satisfy three conditions, namely:

5.1 the subject matter of the opinion must fall within an area in which expert evidence may properly be given (“the Subject Matter Condition”). There are two parts to this: (a)  whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b)  whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court;

5.2 the witness must be qualified as an expert to give the evidence of the type in question (“the Expertise Condition”); and

5.3 the witness’ evidence must be relevant to the issues being litigated (“the Relevance Condition”). In this regard, evidence meeting the Subject Matter Condition can still be excluded if the court takes the view that calling it will not be helpful in resolving any issue in the case justly, for example, where the issue to be decided is one on which the court is able to come to a fully informed decision without hearing such evidence. Relevance is tested by reference to the issues in dispute as disclosed on the pleadings: Sunrich Traders Limited v Kumar Vaswani [2024] HKCFI 3033 at [50] (DHCJ Le Pichon).

6. Apart from these substantive conditions, the use of expert evidence is subject to procedural requirements to guard against misuse or mismanagement of expert evidence: Shenzhen Futaihong at [8].

7. The giving of expert directions is very much a matter of case management. In relation to such case management:

7.1 the court can take account of the probative value of an expert report in exercising case management powers;

7.2 in a piece of complex litigation, particularly where the area in which the expert evidence is sought to be adduced is unconventional or more controversial, the applicant should consider the timing of the application and the supporting materials more carefully. For example, there are cases where it may be more helpful to have the evidential issues more clearly identified with the exchange of documents and witness statements before expert directions are sought. In some cases it may be useful to have the intended expert report at hand to explain the nature and necessity of the evidence;

7.3  the court will not give directions for expert evidence to be adduced (carrying with it the incidence of substantial preparation costs and court time)  simply on the basis that it cannot rule out a possibility of the evidence being relevant and helpful.  If the applicant fails to persuade the court of the relevance and necessity of the evidence, the application should be dismissed.

See Shenzhen Futaihong at [7], [9] to [13].”

C.  The respondents’ applications

12.The respondents’ applications, albeit in different actions, are materially the same.  The only difference is in relation to the timing of the complaints.  They are considered together.

13.It is apparent that the respondents are putting forward what may be described as a “packaging” defence.  In Leung Kwok Hung also known as “Long Hair” v Commissioner of Correctional Services (2020)  23 HKCFAR 456, the Court of Final Appeal (“CFA”)  said:

“25. It is the respondent’s contention that when determining discrimination, it is wrong merely to compare one item or aspect with another without taking into account the whole context in which the relevant item appears. In the present case, the respondent contends that it is wrong merely to compare the length of hair provisions regarding male and female prisoners. It is important, the respondent says, to have regard to the whole context, this being custodial discipline in prisons. Put another way – and I would have no quarrel with this on a general level – it is important to examine what is complained about as discrimination in context. After all, the comparison exercise between the complainant and the compared person must, as stated before, be a comparison between like and like. Section 10 of the SDO states that relevant circumstances must be taken into account. This taking into account of the whole is what is involved in the so‑called package approach.

…

31. One final point on packaging. In some of the cases, the approach has been to examine the aspect of less favourable treatment by reference to convention or conventional standards. I have touched upon this earlier. In Smith v Safeway PLC, Phillips LJ stated that a dress code was not rendered discriminatory if it ‘applies a standard of what is conventional’.

32.  What may constitute convention or conventional standards will vary depending on the context and facts of any given case.  For example, in a dress code which has its objective dressing in a businesslike way, there may be conventional standards in this context which differ from how people may dress in everyday, social contexts.  On the assumption this factor is relevant in the first place, what is required, however, is some factual basis to support what is asserted to be convention or conventional standards.  A mere assertion or subjective belief without more will be unlikely to overcome the evidential hurdle.”

14.The respondent in Leung Kwok Hung failed to establish its packaging defence because inter alia:

“52. … no details are provided and no basis is given for saying that in our society, the conventional hairstyle for men is a short one whereas for women, hair can be long or short. There must be sufficient evidence going to these matters; they cannot simply be asserted. In his submissions to us, Mr Wong [for the respondent] seemed to suggest it was sufficient for Supt Leung merely to state this fact as though it was some sort of factual finding on his part and that it was for the appellant to disprove it. The old adage of ‘he who asserts, must prove’ applies. It is for the respondent to prove the conventional standards he relies on. Moreover, these are not matters of which judicial notice can be taken …”

15.That, as I understand, is the background to the respondents’ applications.  They do not just assert that there was “conventional school dress and appearance in Hong Kong” but wish to adduce expert evidence to substantiate it.  This is all the more so as the same is disputed by the claimants.

16.As regards the Subject Matter Condition, Mr Kok has characterized Professor Cheung’s evidence as falling within the subject matter of “educational and social policy”.  It is not seriously disputed by Mr Deng that that is “a matter of art, science, learning or knowledge which can become the subject of expertise by study” and is “susceptible to peer review” (see Hong Kong Civil Procedure 2025 at [J1/58/4]).

17.Mr Deng, however, says that this case is quite unlike a case involving land boundary dispute, water leakage or physical and mental injuries in which the methodology of measurements or assessments are scientific and well established.  He complains that Professor Cheung has not conducted any research on the proposed expert issues before and argues that:

(a)  The issues framed by the respondents are embarrassing and abusive as no information on the methodology to be adopted by Professor Cheung is given.  For example: How is he going to conduct his survey in order to find out if there is a conventional standard? Is he going to interview all the schools in Hong Kong or just a sample of them?  How is he going to select his sample?  Is he going to look at school rules, research on academic journals or interview the students?

(b)  As to the first expert issue, the respondents are, in essence, seeking to rely on survey evidence at trial.  In Interflora Inc v Marks and Spencer Plc [2013] FSR 21, Lewison LJ warned of the dangers of survey evidence and advocated a new practice for the applicant to conduct a pilot survey at his own cost to work out the best method of conducting the survey to demonstrate that such evidence would be of real value before leave would be granted.

(c)  The second expert issue is concerned with whether the respondents’ school rules correspond to the survey results. It is a simple question of fact that can be determined by the trial judge without the assistance of experts.

18.Whilst not disputing the fact that Professor Cheung may not have conducted research on the proposed issues before, Mr Kok observes from Professor Cheung’s CV (exhibit “LW-2” in the Affidavit of Lo Wai filed in DCEO 13/2023; exhibit “LW-1” in the Affidavit of Lo Wai filed in DCEO 14/2023)  that:

(a)  His prior research encompasses related areas of expertise, such as educational policies and their impacts on students, schools, and broader communities — featuring a focus on equity and inclusion in schools, policies on discipline and student behaviour, and matters related to gender and cultural identity.

(b)  He would have at his disposal a wide range of rigorous research methodologies that are well-recognised in the social sciences.  For instance, Professor Cheung has previously employed research methodologies, including qualitative interviews, case studies, policy analysis, and quantitative data collection. These methodologies are directly applicable to the proposed issues.  Moreover, Professor Cheung could draw on the general body of knowledge and understanding of his relevant expertise.

19.Mr Kok submits that the test for admissibility does not require the expert to have previously conducted research on the precise issue before.  Rather, the real question is whether the expert is qualified “to give the evidence of the type in question” (Shenzhen Futaihong at [4]).  I agree.

20.The UK Supreme Court said in Kennedy v Cordia:

“55. In many cases where the subject matter of the proposed expert evidence is within a recognised scientific discipline, it will be easy for the court to be satisfied about the reliability of the relevant body of knowledge. There is more difficulty where the science or body of knowledge is not widely recognised. Walker and Walker at para 16.3.5 refer to an obiter dictum in Lord Eassie’s opinion in Mearns v Smedvig Ltd 1999 SC 243 in support of their proposition that:

‘A party seeking to lead a witness with purported knowledge or experience outwith generally recognised fields would need to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the methodology and validity of that field of knowledge or science.’

56.   We agree with that proposition, which is supported in Scotland and in other jurisdictions by the court’s refusal to accept the evidence of an expert whose methodology is not based on any established body of knowledge. Thus in Young v Her Majesty’s Advocate 2014 SLT 21, the High Court refused to admit evidence of ‘case linkage analysis’ because it was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable. See also, for example, R v Gilfoyle [2001] 2 Cr App R 5, in which the English Court of Appeal (Criminal Division)  refused to admit expert evidence on ‘psychological autopsy’ for several reasons, including that the expert had not embarked on the exercise in question before and also that there were no criteria by reference to which the court could test the quality of his opinions and no substantial body of academic writing approving his methodology. The court also observed that the psychologist’s views were based on one-sided information and doubted that the assessment of levels of happiness or unhappiness was a task for an expert rather than jurors.”

21.It was also recognised in [71] of Kennedy v Cordia that so long as the test for the admission of expert evidence is satisfied, there can be no objection to an expert providing an opinion on a specific question which he or she may not have encountered in the past and for which the expert will have to conduct fresh research:

“As in this case, it may on occasion be expedient to instruct a witness with general health and safety experience to give skilled evidence on a specific question of health and safety practice which he or she may not have encountered in the past. Such a witness may have to conduct research into how the particular risk might have been reduced or avoided. Whether or not the witness has sufficient experience and knowledge to give skilled evidence is a matter which can be explored either through case management or in cross-examination.”

22.I accept Mr Kok’s submission that whilst Professor Cheung may not have conducted research on the precise issues before, the professor certainly has the relevant expertise to give the evidence of the type in question and done research on matters of educational policies and their impacts on students, schools and broader communities and matters related to gender and cultural identity.  The expert evidence proposed to be adduced is not as novel as “case linkage analysis” in Young v Her Majesty’s Advocate or “psychological autopsy” in R v Gilfoyle.  Professor Cheung appears to have a wide range of well-recognized methodologies at his disposal in doing his research.  This is very different from the situation in Young v Her Majesty’s Advocate where the proposed methodology was said to be “not yet sufficiently developed that it could be treated as reliable” or the situation in R v Gilfoyle where there were “no criteria by reference to which the court could test the quality of his opinions and no substantial body of academic writing approving his methodology”.  As discussed at the hearing, the claimants will have the benefit of Professor Cheung’s expert report in due course.  They may then decide if they would want to challenge his methodology at trial through cross-examination.  At present, I do not see any merit in Mr Deng’s objection relating to methodology.

23.Moving on, I do not think Interflora v M&S avails the claimants.  That was a trade mark infringement case. The trade mark proprietor (Interflora)  obtained leave at first instance to adduce evidence at trial from certain witnesses identified by means of two pilot surveys when there was no corresponding application for permission to adduce either of those surveys in evidence or to carry out a full survey based upon them.  One of the points taken by M&S on appeal (called “macro objection” in the judgment)  was that the court should not permit evidence to be adduced from witnesses selected as a result of a survey unless the survey itself is statistically reliable.

24.The English Court of Appeal reviewed previous authorities and said that:

“135. The upshot of this review is that courts have allowed the calling of evidence of the kind that Interflora wishes to call and have considered it, either in conjunction with or in the absence of a statistically valid and reliable survey. But it is generally of little or no value. Sometimes it does no more than confirm the conclusion that the judge would have reached without the evidence. In passing off cases it sometimes has greater effect, but as I have said more than once, passing off raises a different legal question. Unless the court can be confident that the evidence of the selected witnesses can stand proxy for the persons or construct through whose perception the legal question is to be answered it simply represents the evidence of those individuals. In a case in which the witnesses are called in order to amplify the results of a statistically reliable survey their evidence may be probative. But unless the court can extrapolate from their evidence, it is not probative.”

25.And the court concluded in [146] that:

“In the present case I do not consider that Interflora has demonstrated that the evidence it wishes to call would be of real value. To put it bluntly, Interflora starts with an unreliable dataset from which it proposes to select the witnesses most favourable to itself. I would hold, therefore that Mr Hobbs’ macro objection is well founded. I would therefore allow the appeal on that basis.”

Pausing here, I do not read [146] as a general statement from the bench against survey evidence as Mr Deng would have it.[3]

26.The Court of Appeal went on to give guidance on the procedure to be followed in future cases:

“147. … First, it is clear that the court cannot make any order without some material on which to base its decision. Thus there can be no objection to the carrying out of a true pilot survey, at the risk as to costs of the party carrying it out, before applying for permission to adduce the results of a survey. But that pilot survey will be no more than a basis for a further survey. Second, an application to admit survey evidence or evidence from respondents to a survey (or pilot survey)  should be made as early as possible in the course of case management. It would not be right to leave it to the time when witness statements are exchanged. The objective of such an application is to have a definitive ruling one way or the other…

…

149.  For the future, the standard form of order should be redrafted so as to make it clear that: (i)  A party may conduct a true pilot survey without permission, but at his own risk as to costs; (ii)  No further survey may be conducted or adduced in evidence without the court's permission; and (iii)  No party may adduce evidence from respondents to any survey without the court's permission.”

27.One of the considerations in a trade mark infringement case is the likelihood of confusion of the average consumer of the goods or services in question (Interflora at [37]). Whilst a valid survey may be helpful in identifying the portion of the relevant public that recognizes the mark as a badge of trade origin in passing off cases, such evidence may not be helpful in a trade mark infringement case which calls for a qualitative assessment as opposed to counting of heads (Interflora at [34] to [36]).  That, as I understand, was the reason why the Court of Appeal cautioned the use of survey evidence in trade mark infringement cases and laid down new procedure to ascertain its usefulness before the court would consider granting leave for such evidence to be adduced.

28.These actions do not involve trade mark infringement.  The respondents’ proposal is to adduce the expert report of Professor Cheung.  It is not a proposal to call a few witnesses from the schools surveyed by the professor.  I do not see the relevance of Interflora v M&S and Mr Deng’s challenge to the first expert issue is rejected.

29.I also reject Mr Deng’s challenge to the second expert issue.  As I see it, it is not a simple comparison of the respondents’ requirements with the conventional standards and ticking off common items.  As the CFA explained in [19] of Leung Kwok Hung with reference to the following excerpt from Re Millillen [2008] NIQB 21 at [21]:

“Secondly, the approach to less favourable treatment. There are interrelated questions as to whether the restriction on appearance could properly be justified by the objective of the code and whether the restriction, in the context of the code as a whole, resulted in less favourable treatment for the boys. The initial assessment is made with reference to the objectives of the code in question. In other words, it is not a question of making comparisons with other people who would adopt the dress or appearance that is prohibited, but rather it is a question of assessing the restrictions that have been introduced against the objectives of the code. That, of course, requires one to identify the objectives. This approach is not to judge the quality of the reasons or the motives for introducing the code, because there can be no justification if there is direct discrimination, but it is to consider whether there is less favourable treatment by establishing a legitimate objective for the code and then assessing the treatment of those affected against the standard that has been adopted by the code to determine whether males or females are disadvantaged compared to each other. Thus in the employment context the objective of the restrictions may be to promote a concept of smartness on commercial grounds and that has been accepted as a legitimate objective. The code might define the particulars of smartness for commercial reasons, for example by no ponytails for men or collar and tie for men. The issue is not concerned with the extent of the general use of the prohibited items but whether a package that includes requirements which differ between men and women, is directed at the objective of the code and whether it imposes a particular disadvantage on one or other sex. In schools the context is different and the objective will be different.”

30.In my view, it would be helpful to have Professor Cheung’s input in identifying the objectives of any conventional standards and in assessing the respondents’ requirements against such objectives.

31.As regards the Expertise Condition, the claimants acknowledge that Professor Cheung is a “very well regarded academic and researcher in educational administration and policy matters” (see the claimants’ solicitors’ letter dated 26 February 2025 in both actions).  Based on his CV, I am satisfied that Professor Cheung is qualified to give the evidence required.  Mr Deng’s objection in this regard[4] is essentially the same as his challenge to the first expert issue which I have dealt with above.

32.As regards the Relevance Condition, Mr Deng argues that the expert issues framed by the respondents are wholly irrelevant as they do not seek to uncover if such conventional standards are based on gender stereotype which is impermissible as a matter of law.  With respect, I think Mr Deng is jumping the gun.

33.The CFA said in Leung Kwok Hung at [36] that:

“Where reliance is placed on convention or conventional standards, but they reflect stereotyping, a question may arise as to the appropriateness of relying on such convention or conventional standards for the purpose of defeating an argument of less favourable treatment. This is the point made by the author in Sex Discrimination Law in criticising the Schmidt case: ‘Is an employer’s policy of refusing women to wear trousers to work sex discrimination under the 1975 Act? The EAT decision in Schmidt, validating such policy if analogous, albeit different, restrictions are imposed on men, is not convincing. That an employer is requiring men to do what they normally do – wear trousers – and asking women to do what they normally do – wear skirts – cannot, of itself, amount to a non‑discriminatory policy. Otherwise employers would always have a defence if their practices mirrored social behaviour. This would clearly conflict with a major objective of the 1975 Act, which was introduced precisely because aspects of social behaviour were unfair to women’.”

34.In the context of Leung Kwok Hung, the CFA commented at [53]:

“It is unnecessary to deal with the further point raised by the appellant as to whether in any event, conventional standards regarding the length of men and women’s hair in society involved stereotyping. Apart from anything else, until one knows the exact extent of the evidence regarding this, one is not in a position to embark on a meaningful analysis. As just discussed, the respondent’s evidence is unsatisfactory and such conventional standards are not made out. Accordingly, without such evidence, in the present case one is simply left with his view, based on SO 41-05, of what hair lengths for men and women ought to be in society, and this amounts to stereotyping on the respondent’s part.”

35.For the time being, it is not known if Professor Cheung will come up with any conventional standards, let alone if such standards reflect stereotyping.  We may only meaningfully discuss whether the conventional standards reflect gender stereotype when the shape and size of Professor Cheung’s evidence is known.

36.Given the above analysis, I am satisfied that it is appropriate to allow the applications. 

37.I make an order in terms of the summonses with an additional direction for the claimants to file and serve their expert report in reply, if any, within 28 days of receipt of Professor Cheung’s report.

D.  The claimant’s application in DCEO 14/2023

38.Initially, the claimant applied for leave to adduce expert evidence on the issues set out in the schedule to the summons.

39.After sight of the respondent’s affirmation in opposition, Mr Deng volunteered to revise the expert issues to the form stated in Annex C(i)  hereto “to avoid unnecessary argument on whether the hypothetical patient with disability is necessary or relevant to matters pleaded for trial”[5] and the argument proceeded on that basis.

40.Mr Kok maintained his objection at the hearing.  He did not take issue with the Subject Matter Condition and the Expertise Condition.  He generally complained that the expert issues proposed by the claimant was embarrassingly wide and too general:

(a)  Revised issues 1 to 3 and 4.1 ask for general definitions of ADHD, ASD and ODD and how they “typically” manifest, which is divorced from the actual condition and circumstances of the claimant.

(b)  Revised issue 4.2 refers to “Disability” (which is defined to mean “ADHD, ASD and ODD”)  and asks whether such Disability “may render the Claimant medically unable or unwilling or less likely to comply with the instructions from a figure of authority”.  It does not relate to the specific condition and disorder of the claimant but invites speculation.

(c)  Revised issues 4.3 and 4.4 ask for enumeration of “typical psychiatric risk factors” that a school administrator should consider and a set of recommended guidelines for managing students suffering from such Disability. Such evidence is plainly irrelevant as the trial court is not called to set any guidelines or best practice.

41.After hearing Mr Kok, Mr Deng proposed to further revise the expert issues to the form stated in Annex C(ii)  hereto.  Mr Kok maintains his objection nonetheless.  Given the concession, I shall just focus on the re-revised issues.

42.As said in Realord Group Holdings, relevance is tested by reference to the issues in dispute as disclosed on the pleadings.  

43.According to Mr Deng,[6]

“The evidence sought is therefore directed to assist the Court to resolve the following matters which arise from the pleadings:-

(1)  What is the nature of the disability which the Claimant experiences and whether the Court is able to determine that his conduct was a manifestation of his disability;

(2)  Whether a person with the Claimant’s disabilities is able to comply with the requirements or conditions in which the School has imposed; and

(3)  Whether the requirements or conditions were reasonable or justifiable.”

44.Whilst Mr Deng has said that it is unclear on the pleadings whether the respondent is taking issue with the claimant’s disability,[7] the proposed expert evidence is not meant to substantiate the claimant’s disability.  The claimant’s solicitors have confirmed in their letter dated 29 April 2025 that the claimant is “not proposing a medical or clinical assessment of his (then or present)  mental condition through the intended expert evidence”.  Mr Deng has also made reference to the claimant’s clinical records in argument which, presumably, would be adduced at trial to prove the claimant’s disability.[8] 

45.As to the claimant’s indirect discrimination claim, “indirect discrimination” is defined in section 6(b)  of the DDO as follows:

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if—

(a)  …

(b)  he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but—

(i)  which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;

(ii)  which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and

(iii)  which is to that person’s detriment because he cannot comply with it;”

46.Mr Deng argues that “ADHD, ASD and ODD are spectrum disorders which can be relatively difficult to detect in some instances and very severe and obvious in others. Therefore there mere clinical diagnoses of spectrum disorder would still necessarily require, for the purpose of a finding of discrimination under s 6(b)(iii)  DDO, medical evidence that the disabled person(s)  having such disability is unable or less likely able to comply with a requirement or condition due to that disability and compared to a group of persons without such disability.”

47.It is the claimant’s case, as pleaded in [27] of the Re-Amended Notice of Claim, that:

“Further to the Claimant’s SDO Claim, the Claimant avers that the Medical Room Arrangement discriminates against the Claimant who has been diagnosed with and has the medical conditions of ADHD, ASD and ODD. By imposing the Medical Room Arrangement as a form of general punishment against the Claimant for an alleged breach of the School Code of Conduct and specifically the Male Hair Rules, the Claimant was:

(1)  Indirectly discriminated against and contrary to Sections 6(b)(i)  or (iii)  of the Disability Discrimination Ordinance, Cap 487 (“DDO”); and

(2)  ...”

So the Medical Room Arrangement is the “requirement or condition” that, according to the claimant, he and persons with his disability cannot comply. 

48.“Medical Room Arrangement” is defined in [13] of the Re-Amended Notice of Claim to mean:

“… he would attend school from the Medical Room by online method: -

(1)  He would be only allowed in the School Medical Room to attend classes online;

(2)  He was not allowed to mix with the regular school population unless with permission (ie escort to a class without online service)  and permission to go to the washroom;

(3)  He would not be allowed to take part in physical education lessons, life-wide learning activities and morning assemblies, to read out the bible or sharing of newspaper reports; and

(4)  Where there were electives that did not have online broadcasts, he would be escorted to the classroom by teachers.”

It is also pleaded in [14(2)(c)] of the Re-Amended Notice of Claim that:

“Since 19 April 2021 to the end of the 2020/2021 school year: …

(a)  the Claimant was not allowed to attend any physical education classes;

(b)  the Claimant was prohibited from participation in school activities including life-wide learning activities, morning assemblies, news reading and sharing sessions in the classroom;

(c)  the Claimant was segregated from other students and placed in the medical clinic during school hours;

...

(f)  the Claimant was deprived of some of the elective courses which had no remote broadcasting, and when some teachers assigned to escort the Claimant from the medical room to such classes, failed to do so…” 

So, the claimant had been able to comply with the Medical Room Arrangement. 

49.Eventually, the claimant was “allowed to physically attend school and attend face-to-face classes” when he (and his parents)  agreed to the respondent’s proposal that he would attend school by “wear[ing] hair clips in the same manner as female students (ie fringe clipped so as to not reach eyebrows)” ([16] of the Re-Amended Notice of Claim).  It is the claimant’s case, as pleaded in [28] of the Re-Amended Notice of Claim, that:

“…

(d)  As a consequence of receiving such punishment [ie the Medical Room Arrangement], the Claimant developed fleeting suicidal ideation, which in around mid-August 2021 he voiced out his suicidal ideation to his mother and expressly stating that he would jump from height at school; and

(e)  After receiving in late August 2021 that he would be allowed to have longer hair in School, the Claimant’s suicidal ideation was resolved.”

So, the Medical Room Arrangement ceased to apply to the claimant by agreement.  It is not the case that it was cancelled because the claimant had been unable to comply with it.

50.Given the way the claimant’s case is pleaded, I do not see the purpose of the claimant adducing expert evidence on “[w]hether a person with the Claimant’s disabilities is able to comply with the requirements or conditions in which the School has imposed” at the trial.

51.Lastly, I agree with Mr Kok that the trial court is not called to set any guidelines or best practice for schools to handle students with ADHD, ASD and ODD.

52.The claimant’s summons is therefore dismissed.

E.  Disposition

53.By reason of the above:

(a)  I make an order in terms of the respondent’s summons dated 11 March 2025 in DCEO 13/2023 with the additional direction that the claimant do file and serve his expert report in reply, if any, within 28 days of receipt of Professor Cheung’s report.  I also make a costs order nisi that the respondent’s costs of the application be in the cause.

(b)  I make an order in terms of the respondent’s summons dated 12 May 2025 in DCEO 14/2023 with the additional direction that the claimant do file and serve his expert report in reply, if any, within 28 days of receipt of Professor Cheung’s report.  I also make a costs order nisi that the respondent’s costs of the application be in the cause.

(c)  The claimant’s summons dated 12 May 2025 in DCEO 14/2023 be dismissed.  I make a costs order nisi that the claimant do pay the respondent’s costs in opposing the application in any event.

DCEO 13/2023

Mr Earl Deng, instructed by Messrs Patricia Ho & Associates, for the claimant

Mr Martin Kok, instructed by Messrs Clyde & Co., for the respondent

DCEO 14/2023

Mr Earl Deng, instructed by Messrs Patricia Ho & Associates, for the claimant

Mr Martin Kok, instructed by Messrs Clyde & Co., for the respondent

Annex A

The expert issues of the respondent in DCEO 13/2023:

1.  What are (and/or were, at the material times of the Claimant’s complaints in 2021 to 2022)  the prevailing conventional standards, if any, regarding school dress and appearance in secondary schools in Hong Kong, including those relating to students’ hair length and hairstyles?

2.  Please explain whether, and to what extent, the Respondent’s uniform and appearance policies at the material times reflect, align with, and/or correspond to the conventional standards of school dress and appearance in Hong Kong.

Annex B

The expert issues of the respondent in DCEO 14/2023:

1.  What are (and/or were, at the material times of the Claimant’s complaints in 2021 to 2023)  the prevailing conventional standards, if any, regarding school dress and appearance in secondary schools in Hong Kong, including those relating to students’ hair length and hairstyles?

2.  Please explain whether, and to what extent, the Respondent’s uniform and appearance policies at the material times reflect, align with, and/or correspond to the conventional standards of school dress and appearance in Hong Kong.

Annex C(i)

The revised expert issues of the claimant in DCEO 14/2023:

1.  What is attention deficit hyperactivity disorder (“ADHD”), and whether this disability, by itself, typically manifests in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly pleaded in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim what behavioural features characterize this diagnosis for a male adolescent aged 14-18 years?

2.  What is autism spectrum disorder (“ASD”), and whether this disability, by itself, typically manifests in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim what behavioural features characterize this diagnosis for a male adolescent aged 14-18 years?

3.  What is oppositional defiant disorder (“ODD”), and whether this disability, by itself, typically manifests in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim what behavioural features characterize this diagnosis for a male adolescent aged 14-18 years, including defiance against instruction, authority and rules (i.e., being told off, being isolated, being told not to do something)  and how such defiance may typically manifest (i.e., arguing back, refusing to comply or suicidal ideation, doing something to annoy);?

4.  According to the appointed expert’s expertise, clinical experience and research and studies on ADHD, ASD and ODD (“Disability”):

4.1  Whether the comorbidity of the Claimant’s clinical diagnosis of ADHD, ASD and ODD, typically manifests in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly as pleaded in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim What are the typical mental and behavioural features of a male adolescent aged 14-18 years (“Patient”)  who has a comorbid diagnosis of ADHD, ASD and ODD (“Disability”);

4.2  Whether such Disability may render the Claimant a Patient medically unable or unwilling or less likely to comply with the instructions from a figure of authority, and specifically in respect of matters pleaded in Paragraphs 13 and 30 of the Re-Amended Notice of Claim, Paragraphs 9, 13(b), 13(d), 13(e), 13(g), 23A of the Amended Notice of Response and Paragraph 17 of the Amended Reply to meet the remedial conditions for release from the Medical Room Arrangement as required by the Respondent.

4.3  What are the typical psychiatric risk factors that arise to be considered when a school administers isolation and segregation from the general school population as a form of disciplinary action against the Claimant, by reference to the matters pleaded in Paragraphs 13 and 30(3)  – (4)  of the Re-Amended Notice of Claim, Paragraphs 9, 13(b), 13(d), 13(e), 13(g), 23A of the Amended Notice of Response and Paragraphs 9(6)(f)  and 17 of the Amended Reply.   Patient suffering from the Disability may face in a school/education setting which requires the Patient to adhere to school rules, be subject to discipline and punishment, and abide by instructions from authority figures;

4.4  What guidelines, if any, are recommended by psychiatric or psychological experts when disciplining Patients who suffer from the Disability to manage such defiant and deviant behaviour and reduce the psychiatric risk factors.

Annex C(ii)

The re-revised expert issues of the claimant in DCEO 14/2023:

1.  What is attention deficit hyperactivity disorder (“ADHD”), and whether this disability, by itself, typically manifests manifested in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly pleaded in Paragraphs 11, 12, 15, 28(2) of the Re-Amended Notice of Claim what behavioural features characterize this diagnosis for a male adolescent aged 14-18 years?

2.  What is autism spectrum disorder (“ASD”), and whether this disability, by itself, typically manifests manifested in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim what behavioural features characterize this diagnosis for a male adolescent aged 14-18 years?

3.  What is oppositional defiant disorder (“ODD”), and whether this disability, by itself, typically manifests manifested in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim what behavioural features characterize this diagnosis for a male adolescent aged 14-18 years, including defiance against instruction, authority and rules (i.e., being told off, being isolated, being told not to do something)  and how such defiance may typically manifest (i.e., arguing back, refusing to comply or suicidal ideation, doing something to annoy);?

4.  According to the appointed expert’s expertise, clinical experience and research and studies on ADHD, ASD and ODD (“Disability”):

4.1  Whether the comorbidity of the Claimant’s clinical diagnosis of ADHD, ASD and ODD, typically manifests manifested in the type of behaviour and conduct of the Claimant (who is a male adolescent aged around 16 years at the time)  in this case, more particularly as pleaded in Paragraphs 11, 12, 15, 28(2)  of the Re-Amended Notice of Claim What are the typical mental and behavioural features of a male adolescent aged 14-18 years (“Patient”)  who has a comorbid diagnosis of ADHD, ASD and ODD (“Disability”);

4.2  If yes to either 1, 2, 3 or 4.1, Wwhether such Ddisability may rendered the Claimant a Patient medically unable or unwilling or less likely (compared to a student without a disability) to comply with the instructions from a figure of authority, and specifically in respect of matters pleaded in Paragraphs 13 and 30 of the Re-Amended Notice of Claim, Paragraphs 9, 13(b), 13(d), 13(e), 13(g), 23A of the Amended Notice of Response and Paragraph 17 of the Amended Reply to meet the remedial conditions for release from the Medical Room Arrangement as required by the Respondent.

4.3  If yes to either 1, 2, 3 or 4.1 above, What are the typical psychiatric risk factors to the Claimant’s disability at the time (if any), that arise to be considered when a the Respondent school administereds isolation and segregation from the general school population as a form of disciplinary action against the Claimant, by reference to the matters pleaded in Paragraphs 13 and 30(3)  – (4)  of the Re-Amended Notice of Claim, Paragraphs 9, 13(b), 13(d), 13(e), 13(g), 23A of the Amended Notice of Response and Paragraphs 9(6)(f)  and 17 of the Amended Reply.   Patient suffering from the Disability may face in a school/education setting which requires the Patient to adhere to school rules, be subject to discipline and punishment, and abide by instructions from authority figures;  

4.4  What guidelines, if any, are recommended by psychiatric or psychological experts when disciplining Patients students in schools who suffer from the same co-morbidities as the Claimant, Disability to manage such defiant and deviant behaviour and reduce the psychiatric risk factors.