Yuen Sha Sha v. Tse Chi Pan

DCEO1/98

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 1 OF 1998

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Coram : District Judge H.C. Wong in Court

Date of Judgment: 3 March 1999

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JUDGMENT

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1. This is a claim taken out by the Plaintiff against the Defendant under S. 39 (3) of the Sex Discrimination Ordinance Cap. 480 (referred to as 'the Ordinance'.) for his unlawful sexual harassment of the Plaintiff by engaging in unwelcome conduct of a sexual nature in relation to the Plaintiff. Particulars of the Defendant's conduct complained of is set out in the Particulars of Claim under paragraph 4 :-

‘(a) On several occasions from October 1996 to March 1997 the Defendant covertly placed a camcorder in the room for the purposes of collecting and thereafter keeping recorded images of the Plaintiff.

(b) Without the knowledge or consent of the Plaintiff, the Defendant utilised the camcorder as a secret photographic unit to take and record images of the Plaintiff including images of the Plaintiff preparing for sleep, sleeping, undressing and changing her clothes. The Plaintiff was on occasions completely naked in the room.

(c) On 7 March 1997, the Plaintiff accidentally discovered in the room the camcorder with a working video tape in it. The camcorder was secretly positioned towards the direction of the Plaintiff's bed, nearby to which the Plaintiff would normally change her clothes.

(d) Upon discovery of the secret filming device the Plaintiff commenced trembling, felt scared, embarrassed and violated. The Plaintiff was exhausted with the fear that images of her naked body had been secretly recorded on the camcorder for the unlawful use and enjoyment of one or more people.

(e) On 7 March 1997 the Plaintiff confronted the Defendant about the secret recording of images of herself. The Defendant admitted to the Plaintiff that he had on various occasions since October 1996 secretly filmed the Plaintiff in her bedroom in states of undress and/or nakedness ("the sexual harassment"). The Defendant collected and kept the images of the Plaintiff in states of undress and/or nakedness. The Defendant admitted to the Plaintiff the sexual harassment and gave as the justification for his actions that he felt sexually attracted to the Plaintiff.

Thereafter, the Defendant admitted the sexual harassment to:-

(i) Officers of the (then) Royal Hong Kong Police; and

(ii) Officials of the Chinese University

(g) At various times the Defendant had shown to other people images of the Plaintiff in states of undress and/or nakedness, that he had secretly made and collected in the room, using the hidden camcorder.'

2. The Plaintiff claims she suffered loss and damages by reason of the sexual harassment and asks for compensation for injury to feelings pursuant to S.76(6) and S.76(3A)(e) of the Ordinance, aggravated damages and punitive or exemplary damages pursuant to S. 76 (3A) (f) of the Ordinance, and further, a written apology by the Defendant to the Plaintiff pursuant to S. 76 (3A) (b) of the Ordinance as amended by the Sex and Disability Discrimination (Miscellaneous Provisions) Ordinance 1997 (Ordinance No. 71 of 1997).

3. In the Defence, the Defendant admitted the placing of the camcorder in the room of the Plaintiff on three occasions in December 1996 and 7 March 1997 but denied recording any images of the Plaintiff sleeping, undressing, changing her clothes and any knowledge of the Plaintiff's activities and/or nakedness in the room. The Defendant further admitted under paragraph 4 (g) of the Defence that his friend Ma Kin Bong was permitted to view the said video tapes containing images of the Plaintiff who was fully and properly dressed. The Defendant denied there were any loss or damages suffered by the Plaintiff and he further alleged he had subsequent to 7 March 1997 offered his apology to the Plaintiff.

4. On the first day of the hearing of the trial, Mr. Harris, Counsel for the Defendant, offered to the Plaintiff a full and unreserved apology on the Defendant's behalf. On the second day before Counsel for the Plaintiff opened the case, Mr. Harris indicated that the Defence admitted liability to the Plaintiff's claim. Mr. McCoy, Counsel for the Plaintiff, however, considered it necessary to go into the full details of the facts of the case pursuant to seeking the remedies prayed for. The Plaintiff therefore gave evidence and was cross-examined in the some detail by Mr. Harris. The statement of PC 45342 Wong Kin Fai, the police officer who interviewed both the Plaintiff and the Defendant on 7 March 1997 was read in Court and admitted as evidence.

5. The Defendant having admitted liability, there remains the matter as to the apology prayed for and the quantum of damages. In order to come to a fair assessment, it is necessary to refer to the facts of the case.

The following facts are not in dispute:-

The Facts

6. The Plaintiff Yuen Sha Sha was a third year student at Shaw College, the Chinese University of Hong Kong ("the Chinese University"). She resided at Room 427 of Hostel 2 of the College during the academic year of 1996 to 1997. The Defendant Tse Chi Pan was also a student of the same College and he stayed in Room 214 of the same hostel. They knew each other well since they attended the same secondary school. The Plaintiff considered the Defendant to be her good friend after he became the boyfriend of her best friend Ng Hoi Sze in the 7th Form.

7. At about 1:00 a.m. on 7 March 1997, while the Plaintiff was working in her room, room 427 ( the Plaintiff's room number as pleaded in the Particulars of Claim was 328, it was her room number in the previous year 1995-96), she accidentally discovered a camcorder with its lens directed towards her wardrobe placed on top of her roommate's wardrobe hidden inside a paper box. Under the camcorder were some books, one of which bore the name of the Defendant. She immediately called her roommate Ng Hoi Sze ("Ng") whom she knew to be with the Defendant in his room. Ng told her she knew nothing about the camcorder. The Plaintiff then told her friend Reiko Kwok Lai Wan, together they went to the Defendant's room. They found Ng alone in the room and Ng told the Plaintiff she had asked the Defendant about it and the Defendant had admitted to have placed the camcorder there. The Defendant later spoke to the Plaintiff alone and admitted to her he had installed the camcorder in her room since October 1996 because he was in love with her. She viewed the tape and found it contained images of her changing her clothes in front of her wardrobe inside her room.

8. Ng urged her not to report the matter to the hostel warden as she believed it would ruin the Defendant's future. Ng also told her that the Defendant had shown the video tape to his friend Ma Kin Bong.

9. The Plaintiff reported the matter to the hostel warden and the police was summoned. PC 45342 Wong Kin Fai went to the hostel and interviewed the Plaintiff and the Defendant. In the presence of the hostel warden, the Defendant admitted to have placed the camcorder inside the Plaintiff's room and that he had done it for fun. He further told PC 45342 that he was given the key to the room by his girlfriend and he also had the Plaintiff's lecture time-table so that he was able to install the camcorder in the room in the Plaintiff's absence. He also admitted it was a practical joke on the Plaintiff.

10. Exhibit 8 (a) is an agreed written description of the 4 scenes depicted in the video tape Exhibit 8:-

11. Scene 1 lasted 54 seconds and showed the Plaintiff sitting at her bedside taking off shoes and socks. It showed her thighs and waist.

12. Scene 2 lasted 1 minute 28 seconds. It showed the Plaintiff changing from a short sleeve blouse into a white long sleeve blouse with her back to the camcorder. Only her upper body could be seen. She could be seen wearing a bra before putting on the long sleeve blouse and moving away from the wardrobe.

13. Scene 3 lasted 4 minutes 35 seconds. It showed the Plaintiff sitting on the bed changing from a black vest to a white short sleeve blouse. She was seen wearing a bra, and her face and chest was visible.

14. Scene 4 showed the Defendant adjusting the angle of the camcorder in front of the Plaintiff's wardrobe and pointing at the lens of the camcorder. After the Defendant left the room, it showed the Plaintiff and Reiko Kwan coming in and going out of the room.

15. Other documentary exhibits included the Plaintiff's 2 statements to the Privacy Commissioner for Personal Data (Exhibit P. 2 & P. 3), a letter from the Chairman of the Chinese University Student Disciplinary Committee to the Plaintiff (P. 4), a letter from the Privacy Commissioner (P. 5), a letter from the Assistant Privacy Commissioner enclosing the Report on the complaint by the Plaintiff published by the office of the Privacy Commissioner (P. 6) and a letter from the Shatin Police Station (P. 7). These were produced by agreement of the parties and are not in dispute.

Evidence on the effect of the incident

16. The Plaintiff said in her evidence in Court that she was shocked, upset, distressed and was literally trembling upon discovery of the camcorder. After viewing the tape in the camcorder, she was shaking and had to be supported by her friend Reiko Kwan. Furthermore, the incident had left her feeling violated, exploited, betrayed, humiliated and hurt. This was particularly so when she had regarded the Defendant as one of her good friends. For sometime after the discovery, she was afraid to stay in her hostel room, and for the month following she was unable to go to sleep alone, and she did not attend class for 2-3 weeks. She felt she was watched whenever she changed her clothes. When the Defendant used the excuse that he did it because of his secret love for her, she felt insulted because she knew it was a lie and his girlfriend Ng was her roommate and best friend.

17. The Plaintiff said that on the day before the trial one of the Defendant's witness, a Miss Lau Wing-kwan, telephoned the Plaintiff twice on the Defendant's behalf. Miss Lau told her not to pursue the matter or the Defendant and Ng would carry on with their nuisance claim in the Court against her, that they would call witnesses to show she had given false evidence in her statements. She told Miss Lau they should not communicate as she would be called as a Defence witness, but Miss Lau said to her she had been advised by the Defendant's lawyer that she could do so. After the call, the Plaintiff felt threatened, upset and scared. She became sleepless, sick, and vomited on the next day.

18. It is the Plaintiff's claim that such conduct on the Defendant's part aggravated the situation.

Defence

19. The Defendant did not give evidence and did not call any witness. In his written Defence and in cross-examination of the Plaintiff, it was put to the Plaintiff that the Defendant had apologised to her on the 7 March 1997 after discovery of the camcorder and that he denied to have told her he felt sexually attracted to her. Since no evidence had been called in support of the allegations as pleaded, I find as a fact that they are not proved. The Defence further denied the Plaintiff had suffered any loss or damage. Counsel for the Defence informed me that he has no personal knowledge of the two telephone calls made by Miss Lau to the Plaintiff the day before the hearing, a member of the staff of his instructing solicitors had communicated with his lay client over it in the hope of settling this matter. I accept his explanation.

20. As the Defence admitted liability at the start of hearing, I shall proceed to consider the quantum of damages.

Quantum of Damages

21. This action is brought under S.76 of the Ordinance and this is the first case involving the tort of sexual harassment in Hong Kong introduced upon the enactment of the Sex Discrimination Ordinance, Cap. 480 in 1996.

22. The long title of the Ordinance states:-

"An ordinance to render unlawful certain kinds of sex discrimination, discrimination on the ground of marital status or pregnancy, and sexual harassment; to provide for the establishment of a Commission with the functions of working towards the elimination of such discrimination and harassment and promoting equality of opportunity between men and women generally; and to provide for matters incidental thereto or connected therewith."

23. Justice Matthews of DCJ of the Australian Equal Opportunity Tribunal in the Australian case of O'Callaghan v. Loder and the Commissioner for Main Roads [1983]3 NSWLR 89 referred to the essence of sexual harassment on p.94 :

"The essence of sexual harassment is that the sexual conduct was neither solicited nor incited, and was regarded by the complainant as undesirable or offensive......"

24. The Hong Kong legislation specifically provides for a definition of sexual harassment in the definition section.

25. S.2 (5) of the Ordinance states:-

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

(a) the person-

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

(ii) engages in other unwelcome conduct of a sexual nature in relation to her, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or ......"

26. S.2(7) defines "conduct of a sexual nature"

"(7) In subsection (5)-

"conduct of a sexual nature" （涉及性的行徑）includes making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing."

27. Section 39(3) of the Ordinance provides that:-

"(3)It is unlawful for a person who is a student of an educational establishment to sexually harass a woman who is seeking to be, or who is, a student of the establishment."

28. Schedule 1 of the Ordinance listed the Chinese University of Hong Kong as one of the educational establishment defined in S.2 of the Ordinance.

29. Section 4 of the Ordinance also provides that:-

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

(b) one of the reasons is the sex, marital status or pregnancy of a person (whether or not it is the dominant or a substantial reason for doing the act),

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

30. Clearly, the Defendant's video taping of the Plaintiff without her consent of her dressing and undressing is sexual in nature and is undeniably unwelcome.

31. I am satisfied the Defendant has committed an act of sexual harassment which is rendered unlawful under S.39(3) of part IV of the ordinance.

Injury to Feelings

32. This is specifically provided for under S.76(6) of the Ordinance.

33. Mr. Harris, Counsel for the Respondent, conceded that the Plaintiff is entitled to damages for hurt feelings, but submitted it is substantially mitigated on account of full and unreserved apology tendered in open court and the admission of liability.

34. Counsel for the Plaintiff, Mr. McCoy on the other hand, criticised it to be tendered late in the day. On this head of award he referred to the case of Prison Service and Ors. v. Johnson [1997] 1CR 275 EAT, where Smith J. summarised the principles drawn from authorities referred to the Employment Appeal Tribunal and citing the dictum of May L.J. in the English Court of Appeal decision in Alexander v. Home Office [1988] 1CR 685 where the prisoner officers was found to have racially discriminated a serving prisoner.

"We summarise the principles which we draw from these authorities:-

(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award.

(ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to "untaxed riches."

(iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.

(iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.

(v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made." (per Smith J. on p.283).

35. Bearing these principles in mind, I take into consideration the Plaintiff's shock and dismay, the humiliation and betrayal she felt upon discovery of the camcorder and in the months following the incident. The object of this award is restitution.

36. Mr. Harris, Counsel for the Defendant, submitted that the compensatory award should be based on the awards made by the courts in personal injury cases. He referred to two Hong Kong cases, namely, the case of Lee Wong Sin v. Wong Shek Mei & Ors. (PI no. 769 of 1995) (formerly HCA No A779 of 1087) where Master Woolley awarded $60,000 to the 60 year old plaintiff on the general damages for the fracture to her wrist; and the case of Ng Wan Kong v. Kwan Siu Keung & Anr. (HCA no. 3036 of 1986), where Deputy Judge Kaplan (as he then was) awarded general damages for pain, suffering and loss of amenities of $60,000 for injury sustained by the plaintiff's thumb resulting in the partial loss of the thumb.

37. On this head of damages, I consider it necessary and appropriate in the circumstances to look also at damages awarded in other jurisdictions and in defamation cases rather than relying solely on awards made in cases involving the loss of or injuries done to the thumb or the wrist.

38. In the English case of Prison Services & Ors. v. Johnson [1997] I.C.R. 275, an auxiliary prison officer successfully claimed against his employer and two fellow prison officers for unlawfully discriminated against him on the ground of his race. The tribunal found that it was a serious case of harassment and discrimination and awarded the applicant ￡20,000 for injury to feelings and ￡7,500 aggravated damages against the Prison Services and ￡500 for injury to feelings against each of the two fellow officers. The appeal to the Employment Appeal Tribunal by the Respondents was dismissed and it was held that the awards for injury to feelings were compensatory and adopted the dicta of May L.J. in the case of Alexander v. Home Office (ante) referred to above on page 16. It held that the award for injury to feelings though on the high side was not grossly out of line with the general range of personal injury awards or with awards for injury to reputation.

39. I refer to three general damages awards in defamation cases in the High Court of Hong Kong.

40. In the case of Tony Kan v. Li Kwok Ming (A3199 of 1985, the solicitor plaintiff was accused of 'broken promises' and 'conflict of interest' in a letter written and distributed by the defendant to the constituents of a district board election two days before the election in which the plaintiff was a candidate. The general damages awarded was $65,000.

41. In the case of Melvin Wong v. Jockey Daily News (A2469 of 1984), Deputy Judge Barnett (as he then was) awarded $75,000 to the plaintiff for a libel published in a racing journal.

42. In the case of Kazim Wilson Tuet v. Ma Kwong Ming (A1537 of 1985), Macdougall J. awarded general damages of $50,000 against the defendant for publishing a libel in a Muslim publication referring to the plaintiff who was known and respected in the local Muslim community as 'a dangerous and bad Muslim leader'.

43. The evidence of the Plaintiff indicated she was shocked, hurt, upset and distressed by the action of the Defendant. She was clearly affected psychologically, in that she lost 6 lbs. since the incident, she was sleepless for 3 weeks, she was afraid to change in her hostel room, she could not sleep in her hostel room alone, and she missed classes for 2-3 weeks after the incident. It was to her credit she still managed to graduate with an upper 2nd class honours degree a few months after the incident.

44. The Plaintiff, however, was a student and not, at the time, a person enjoying a reputation in the community, the injuries done to her was mainly to her feelings and the tape had not been shown to a large section of the public. Taking into account that the awards made in the Hong Kong cases referred to above are all over 10 years, inflationary adjustments should be made.

45. I assess the award for injuries to feelings to be in the sum of $50,000.

Exemplary and Aggravated Damages

Exemplary Damages

46. The second head of damages asked for is exemplary damages, also known as punitive damages for its object is to punish the defendant for his conduct in inflicting the harm. The House of Lords in Rookes v. Barnard [1964] A.C. 1129 and Broome v. Cassell & Co. [1972] A.C. 1027 laid down the limits on exemplary awards to 3 categories including the first 2 categories in Common Law, namely:-

(1) aggressive arbitrary or unconstitutional conduct by government servants and

(2) conduct calculated to result in profit; and

(3) express authorisation by statute.

47. S.76(3A) of the Ordinance as amended by the Sex and Discrimination (Miscellaneous Provisions) Ordinance 1997 provides that:-

"(3A) without limiting the generality of the power conferred by subsection (3), the District Court may:-

(e) order that the respondent pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent's conduct or act;

(f) order that the respondent shall pay to the claimant punitive or exemplary damages;"

48. The Plaintiff's claim for exemplary damages therefore falls within Lord Devlin's third category in Rookes v. Barnard. Lord Devlin also stated 3 considerations which should always be borne in mind when awards of exemplary damages are in issue. They are:-

(a) the Plaintiff to be the victim of the punishable behaviour;

(b) moderation in awards and

(c) the means of the parties.

49. The author of McGregor on Damages (17th ed. Chapter 11, paragraphs 461-469) suggested after reviewing the authorities criteria that have been applied by the courts in addition to the three considerations of Lord Devlin to include:-

(d) the conduct of the parties;

(e) the relevance of the amount awarded as compensation;

(f) the relevance of any criminal penalty;

(g) the irrelevance of the judges' criticism in his judgment; and

(h) the position with joint wrongdoers;

50. Mr. McCoy urged upon me in assessing the award of damages to take into my consideration the particulars pleaded under para. 5 of the Particulars of Claim. They can be summarised as:-

(i) the betrayal and breach of trust suffered by the Plaintiff was enhanced by the previous friendship between the Plaintiff and the Defendant before the incident;

(ii) the humiliation and violation of the Plaintiff's dignity as a person;

(iii) the Defendant showed the video with images of the Plaintiff in a state of undress/nakedness to other people;

(iv) the Defendant's action was motivated by perverted lewdness; and

(v) the Defendant's action occurred over an extended period of time.

51. Mr. Harris argued while accepting there to be an element of aggravation in showing the tape to Ma Kin Bong, that the fact the parties had previously been friends is not an aggravating factor for the embarrassment would be more serious if the victim had been a stranger; and that the humiliation and dignity violated to be something necessarily followed from the harassment. Mr. Harris disputed that though the Defendant's action occurred over an extended period of time they were not continuous and had stopped upon discovery by the Plaintiff.

52. It is undisputed that there was a previous friendship the Plaintiff had shared with the Defendant, without it the Plaintiff would not have felt the feeling of betrayal and breach of trust upon discovery. Clearly, she was affected not only by the humiliation and violation of her dignity as a human being but also by the fact that the Defendant had shown the tape to a former schoolmate of both the Plaintiff and the Defendant, Ma Kin Bong (see the 13 October 1997 Report published by the office of the Privacy Commissioner and his letter to the Plaintiff dated 15 July 1997 in Exhibit 5 & 6). She believed and feared there were other tapes under the Defendant's control or in his possession which understandably

constituted a continuous threat to her. This was only resolved at the hearing after Counsel for the Defendant upon my request gave an undertaking that there are no other tapes in the Defendant's possession or control. There was no evidence adduced to rebut the fact that the Defendant's action took place over an extended period of time. The Defendant personally informed the Plaintiff on 7 March 1997 that he had placed the camcorder in her room since October 1996. The scenes in the tape showed the Plaintiff in short sleeve blouses and she identified in one of the scenes that showed her changing into a white long sleeve shirt that she had last wore in October 1996. The only inference that can be drawn is that the video taping had taken place over an extended period of time for there was evidence that the video had been edited.

53. Exhibit 8 (a) and the tape showed the Defendant had carefully measured the angle and distance of the lens directing it to the front of the Plaintiff's wardrobe. This indicated his perverted lewdness which is compounded by his showing the tape to Ma Kin Bong, his failure to apologise to the Plaintiff and his false declaration of love in an attempt to get himself "off the hook" in contrast to his explanation to the police that he did it for fun and to the Privacy Commissioner that he did it so that he and Ma could watch it.

54. I accept the suggestion from Mr. McCoy that the conduct of the Defendant in this action and the apology was tendered late and was offered not out of remorse but to avoid the award of huge damages. The Defendant had indeed been hedging his bets by dragging the action on. He refused to resolve the matter at the conciliation proceedings in 1997, albeit upon pro bono legal advice. The matter is further aggravated by his attempt to put pressure on the Plaintiff to abandon her claim by requesting a mutual former schoolmate to contact the Plaintiff by telephone twice on the day before the hearing referring to a civil action on nuisance he and his girlfriend Ng had taken out against the Plaintiff and threatening to adduce evidence from witnesses to show that the Plaintiff had lied in her statements.

55. It is important to look at the background and the conduct of the Defendant against his apology tendered through his Counsel in Court. Mr. McCoy referred to McGregor on Damages 17th ed. Chapter 11 paragraph 1854 on 'Aggravation and Mitigation', where it refers to 2 cases on aggravated damages for false imprisonment: Walter v. Alltools (1944) 61 T.L.R. 39 C.A. and Warwick v. Foulkes (1844) 12 M. & W. 507.

56. ‘In Walter v. Alltools the damages were increased because the defendants had not expressed their regret, had not notified the plaintiff's fellow-workmen that he had been exonerated from suspicion, and had written a letter which suggested that the plaintiff's conduct had been suspicious and which in effect justified the imprisonment. In Warwick v. Foulkes the plaintiff had been falsely imprisoned upon a charge of felony by the defendant, who unsuccessfully pleaded in the action brought against him by the plaintiff that the latter had indeed been guilty of felony. Lord Abinger C.B. said:-

"The putting this plea on record is, under the circumstances, evidence of malice, and a great aggravation of the defendant's conduct as shewing an animus of persevering in the charge to the very last. A justification of a false imprisonment, on the ground that the defendant had reasonable and probable cause to suspect that the plaintiff had been guilty of felony, is very different; such a justification is in the nature of an apology for the defendant's conduct. And although it was very proper ... to tell the jury that the defendant's counsel apologised for the conduct of his client, still that apology came too later. It was one which seemed to be made for the purpose of screening the defendant from having to pay damages."'

57. Under paragraph 1910 McGregor on Damages, the author has this to say on unreasonable lack of apology:-

"(iii) Persistence in the accusation: unreasonable lack of apology. Similarly an unreasonable failure to apologise adequately can be evidence of malice. Thus in Simpson v. Robinson the evidence in aggravating of damages was not only the defendant's plea of justification but his refusal of the plaintiff's offer to accept an apology and nominal damages. And in Blake v. Stevens, where the defendant publishers, having inadvertently libelled the plaintiff, did not admit their mistake but brought up at the trial certain misconduct of the plaintiff, Cockburn C.J. said that "it would not have been a case for serious damages if it were not for the way in which the action has been defended." Further, the manner of an apology may tend to increase rather than diminish the damages."

58. In the Hong Kong High Court, the defamation case of Hung Yuen Chan Robert v. Sing Tao Ltd. & Another [1996] 4 HKC 539 , Le Pichon J. considered the tendering of an open court apology and adopted the sentiment expressed by Huggins J.(as he then was)in an earlier case Chan Kwong Wai v. Lau Sau King [1963] HKLR 692. The plaintiff in that case complained about the libel seven months after its publication but the defendant did not make an offer of apology for three months, and when they did, there was no admission of the untruth of the article.

"An apology can be a sincere expression of regret or mere admission of guilt. I am not satisfied that what the defendants have done in this case amounted to much (if anything) more than an admission of guilt; I am certainly not persuaded that the damages should be reduced on account of what the defendants have not seen fit to say." (per Huggins J. at p.694)

59. I have been reminded by the Defendant's Counsel Mr. Harris, that the Defendant, as a result of what he did, was expelled from the Chinese University, and he is now studying at the Open Learning Institute and that he only works part time. On the other hand, the Plaintiff is now a teacher. It is important to note, however, that the means of the Plaintiff is 'not of real' relevant to an award of exemplary damages.

60. The English Court of Appeal in the case of John v. MGN [1996] 2 All E.R. 35 C.A. awarded ￡75,000 by way of exemplary damages in a libel case substituting the far higher one made by the jury of ￡275,000. This shows the moderation the English Court of Appeal. In Rookes v. Barnard Lord Devlin indicated that in a case where exemplary damages were appropriate:

"a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."

61. Mr. Harris, submitted that all the authorities cited on the amount of damages awarded were against institutions while in the few cases with awards against individuals remained to be relatively small by comparison. He referred to the case of Prison Services & Ors. v. Johnson [1997] I.C.R. 275 EAT, where an auxiliary prison officer made a complaint against his employers and two fellow prison officers for unlawful racial discrimination. The industrial tribunal found there had been a campaign of racial harassment against the applicant for 18 months; the prison governor had failed to conduct a proper investigation into his complaint; and that one prison officer had committed an act of racial harassment against the applicant out of pure malice, while another had victimised him. The tribunal took the view that it was a serious case of harassment and discrimination and awarded the applicant ￡20,000 for injury to feelings and ￡75,000 aggravated damages against the Prison Service and ￡500 for injury to feelings against each of the two fellow officers.

62. It may well be true of a case like the Prison Service v. Johnson where the employer was found vicariously liable for the employees' actions in the award for exemplary damages. So far as in the assessment of compensatory awards it should not be one of the considerations. On the other hand, as mentioned above, the Defendant's means is relevant in the assessment of exemplary damages.

63. Under this head, I take into account present day value of money in every day life in Hong Kong and the need for public respect for the level of awards made, that it should not be too low as to diminish respect for the policy of the anti-discrimination legislation together with the injury, distress and effect on the Plaintiff of the act of sexual harassment of the Defendant.

64. Applying the aforesaid principles of law to the circumstances in this case, especially with the Defendant's means in mind, I award exemplary damages in the sum of $20,000.

Aggravated Damages

65. I take into consideration the Defendant's conduct of prolonging the settlement of the matter; failing to tender apology until the last minute; and particularly, causing the two telephone calls to the Plaintiff resulting in further distress to the Plaintiff on the day before the hearing with the aim of putting pressure on her to abandon her claim against him. He had deliberately added insult to injury. He was defiant, unrepentant and vindictive. His behaviour is tantamount to flouting the legislation. Such conduct is reprehensible and should not be condoned. I therefore award aggravated damages of $10,000 to the Plaintiff.

Apology

66. Counsel for Defendant made a full and unreserved apology in open court on the first day of hearing on the Defendant's behalf, he further gave an undertaking at a later stage that there are no other tapes of the Plaintiff in the Defendant's custody or under his control.

67. The Plaintiff is asking for a written apology under S.76(3A)(b) of the Ordinance, under the circumstances, I consider it to be appropriate. I therefore, order the Defendant to tender his apology in writing and deliver it to the Plaintiff through their respective solicitors and/or legal representatives.

68. Costs

Costs to the Plaintiff to be borne by the Defendant with certificate for counsel under Rule 73 District Court Rules which provides for special circumstances which warrant such an award. This is a case where the Defendant had acted in a irresponsible manner and his conduct since the issue of the writ justifies the award of costs against him.

69. Finally, I thank Counsel for both parties for their assistance in this matter.

70. Dated this 3rd day of March 1999.

Representation:

Mr. G. McCoy instructed by the Equal Opportunities Commission for the Plaintiff

Mr. P. Harris instructed by Messrs. Ho, Tse, Wai & Partners for the Defendant.