Ray Chen v. Taramus Rus and Another

DCEO000002/1999

DCEO 2/99

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO.2 OF 1999

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Coram: H.H.Judge Poon in Court

Date of Hearing: 2nd and 3rd, March; 6th to 10th, March; 13th to 17th, March, 2000

Date of Judgment: 5 April 2000

Date of Handing Down: 6 April 2000

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JUDGMENT

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1. The plaintiff was employed by D2 as a senior Information Technology specialist between the period 18th, August, 1998 and 18th, December, 1998. D1 was employed by IBM Global Services Australia and assigned to work in Hong Kong between 23rd, September, 1998 and 27th, February, 1999 as the project manager of the Cathay Pacific outsourcing project (hereinafter called the CPA project). The present claim is taken out by the plaintiff against D1 under s. 23 of the Sex Discrimination Ordinance, CAP.480 (hereinafter referred to the SDO), and against D2 under s. 9 and s. 46 of the said Ordinance. The plaintiff alleges that he was sexually harassed by D1 during his employment with D2, and that D2 had discriminated against him by way of victimization, that is, dismissing him for his employment after he had made a sexual harassment allegation against D1.

2. The plaintiff claims:

(1) A declaration that D1 an D2 have unlawfully discriminated against him contrary to s. 6,23 and 46 of the SDO,

(2) A declaration that D2 has unlawfully victimised against him contrary to s.9 of the SDO,

(3) An order that D2 shall re-employ him,

(4) An order the D2 shall promote him,

(5) Damages including damages for injury to feelings pursuant to s. 76(6) and s.76(3A)(e) of the SDO,

(6) Punitive and/or exemplary damages,

(7) Interest,

(8) Costs, and

(9) Further and/or other relief.

3. D1 denies the allegations, and claims that she and the plaintiff had enjoyed an intimate, consensual, though brief personal relationship. D2 denies the allegation of victimization, and alleges that the plaintiff was dismissed for cause other than his lodging of complaints against D1 for sexual harassment. It is also the case of D2 that such complaints were only made by the plaintiff at the exit interview upon his dismissal. Nonetheless, D2 claims that they had discharged their duties as an employer and has instructed an investigator to carry out the necessary investigation in accordance with the company's guidelines even after the plaintiff's departure from their company.

4. In the present proceedings, D1 also applies for costs and damages against the plaintiff caused by the wrongful ex parte application of a Prohibition Order against her. The said order was granted by the court on the 1st, February, 1999, and was subsequently discharged on the 12th, February, 1999. In the application to discharge the said order, D1 alleged that there had been material non-disclosure on the part of the plaintiff in his ex parte application a result of which, she had suffered embarrassment, emotional distress, as well as financial loss of a deposit which she had paid in respect of a packaged tour to Beijing which was caused to be cancelled as a result of the Prohibition Order.

THE PLAINTIFF'S CASE

Allegations of sexual harassment by D1

5. The plaintiff joined D2 on 18th,August, 1998 and upon joining as team leader of the LAN administration team, he was told by his then reporting manager Dominic Wong that the major project he had to work on would be the CPA project. He said that he was told that he was not labelled as a manager yet although he was classified as a Band 8 staff. During the second week of his employment he was introduced to D1 who was the project manager of the CPA project. He found her domineering at that meeting. The plaintiff alleged that within a week of this first introduction to D1 and the latter D1 probed into his private life and made enquiries as to whether he had a girlfriend. The plaintiff said that this was a clear demonstration assertion of authority on the part of D1 which was the basis of sexual harassment.

6. In the month of September, 1998 there was nothing more than a business relationship between the plaintiff and D1. However, the plaintiff admitted that on 17th, September, 1998, he sent D1 a email calling her a "sweetie", and sent her a "*kiss*". On 5th, October, 1998, the plaintiff sent D1 another email which was copied to Nick Cook wherein he addressed her as "Tamara Baby". According to the plaintiff, this email which earned him a lecture from Mr Shevloff, his own reporting manager. Nonetheless, in an email dated the 19th, October, 1998, the plaintiff again took the initiative to call D1 "Tam", to which D1 replied on the same day, expressing her displeasure about him addressing her as "Tam". The plaintiff said that he was happy in learning that he had annoyed her.

7. The emails which the plaintiff alleges had sexual overtones only started after the team building exercise on 20th, October, 1998. The plaintiff sat next to D1 during dinner. The plaintiff denied any intimate conversation between them over dinner but said that the atmosphere was good. On the following day, D1 sent the plaintiff an email resenting that he left so early after dinner the previous day. She said that she was originally going to invite him to her place for coke or coffee. The plaintiff told the Court that he found this email offensive since he was familiar with the implication of these lines and he had finally confirmed his suspicion that D1 was making sexual advances at him. Nonetheless, the plaintiff replied to her email on the same day and the correspondence between them continued. The plaintiff denied that these emails were any kind of mutual flirtation and certainly not any extension of the friendly conversation between them on 20th, October, 1998. He said that he did so because he dared not be on the wrong side of D1 and he knew that she was the sort of person who would do everything to get what she wanted.

8. On 4th, November, 1998, D1 sent the plaintiff an email in which she poured out her heart to him. The plaintiff said that this email was so explicit that he could not play dumb anymore. He knew he had to come up with a solution which would not offend D1 because he knew that she was strong-willed and smart. As a result he still went with her and indeed bought her lunch on the 5th or 6th, November, 1998. That evening that D1 made arrangements for him to go to her flat on the 8th, the Sunday.

9. During this visit to D1's flat, he stayed until 11 pm. He said that D1 remarked that he looked sexy on a previous occasion in shorts. He said that he was embarrassed and affronted by such remarks. He also said that when he was leaving, she kissed him on the lips. Although he felt disgusted, he also felt fortunate that he managed to "leave in one piece". He went home and thought hard over the situation, and said that he had set a bottom line for himself that on no account would he have sex with D1. He hoped to deploy delaying tactics until 15th, February, 1999 when D1's contract in Hong Kong ran out.

10. On the following day, D1 wrote an email to the plaintiff referring to the kiss the previous night: "......hope I don't scare you off with that little kiss I sneaked in, sorry, I couldn't help myself." The plaintiff replied to this email on 11th, November, 1998: "Just relax and be yourself. You can't get wrong by doing that :) *kiss* ." In reply to this, D1 wrote on the same day: "I want a real *kiss*."

11. The fact that they had kissed each other at 20:20 hrs on 11th, November, was evidenced by the plaintiff's email dated 12th, Novmeber, 1998 to D1. D1 in the next email on the same day asked the plaintiff for more, to which P replied that he had "no problem with that :) *kisssssssssss*." According to the plaintiff that kiss was not the server room kiss, which happened in an afternoon when the new file server arrived. On that occasion he said that she asked him to take her to the server room under the pretext of looking at the new server, and then grabbed him by his waist and kissed him on his lips. He smelt garlic and felt repulsive.

12. In his email to D1 dated the 13th, November, 1998 (hereiafter referred to as the C233 email), he had referred to another incident in room 1701. The plaintiff said that Room 1701 was not the server room. It is worth setting out the C233 email in some detail:

"There are fears boiling inside of me when I am with you. Fear of uncertainty, mostly. However, all the fears in this world can not (sic) stop me from be close to you.................Like today, I had to muster all the self-control within me in order to act like a gentleman when we were in room 1701.:)"

13. The plaintiff admitted to have gone with D1 to a coffee shop in Taikoo place some 4 or 5 times after work. He alleged that she had kissed him on a number of those occasions.

14. On 14th, November, 1998 the plaintiff went to D1's flat again after they had gone to a colleague's home for barbeque. This time the plaintiff stayed until the following morning and went to church directly after leaving D1's flat. He said that during this visit D1 requested to see his chest, and he declined saying that he had stomach cramp. D1 had also suggested a body massage, but he turned it down. The plaintiff told the Court that on that occasion they were lying side by side with each other, talking about a wide range of topics. The plaintiff said that on that occasions D1 told him that she had bought condoms, but he told her that due to his own lifestyle and religious belief he had a low libido.

15. There was in fact a third occasion on 21st, November, 1998 which the plaintiff had spent the night at D1's place. On that occasion he took off his shirt for her to massage him, and he in turn massage her. He stayed the whole night there in her bed but they did not have sex. The next morning he left and went to church.

16. Relationship with D1, according to the plaintiff, was smooth until 23rd, November, 1998 despite the odd bickering over business matters. He said that his pet chinchilla "Biscuit" died on 22nd, November, 1998 and he was devastated. When she phoned him in the office on the 23rd, he was too upset and shouted at her asking her to leave him alone. The plaintiff said that he then saw D1 talking to Mr Shevloff and Paul Ko, the finance manager. Later on he was approached by Mr Shevloff and it was alleged that he had made some improper procurements, and Mr Shevloff told him that he would no longer authorize any purchase ordered by him unless they were authorized by D1. The plaintiff insisted that the purchase order which was the subject matter of his reprimand was made in accordance with established procedure and was countersigned by all necessary parties.

17. On 24th,November, 1998, the plaintiff said that D1 tried to call him many times after work. He yelled at her and hung up the phone. He even went to the extent of unplugging the phone. He said that in the meantime, D1 made life more difficult for him and his team members.

Plaintiff's complaint to D2 and his dismissal

18. On 26th, November, 1998, the plaintiff received an email of complaint sent to Mr Shevloff copied to him by D1, and he knew that the whole thing had to come out in the open. He immediately told Mr Shevloff about D1's sexual advances, and even showed him two of her emails. He said that Mr Shevloff suggested they should talk over this after work, which they did, in a bar. He said that whilst Mr Shevloff complimented D1 for was doing a good job, he was taken off the project instead. Mr Shevloff also told him that he would inform Mr Gamlin, the General Manager of Strategic Outsourcing Department. He said that he returned to the office that evening and immediately sent an announcement by email to his team members including D1 informing them of the end of his direct involvement with the project transition. The plaintiff said that communication between him and D1 ceased from then until he received D1's email on 30th, November, 1998. D1 in this email warned him that IBM had to ask for feedback from the CPA project in relation to performance of the staff. She made it plain that he was targeted and she was responsible for conducting the feedback and asked him to improve his performance at work. The plaintiff saw this as both a threat and again an assertion of authority on the part of D1. He immediately passed a copy to Mr Shevloff, to which he said Mr Shevloff simply smiled without saying a word. On the same day, he received two more emails from D1, one purported to be job related, the other one simply a joke copied to him.

19. On 1st, December, 1998, the plaintiff wrote to Mr Shevloff asking him for advice as D1 was still sending him emails. Mr Shevloff replied telling him that D1 would be away for a short period of time, and said that "I cannot comment on the personal issues between Tamara and yourself". The plaintiff was shocked to find that his complaint of sexual advances was downplayed to becoming merely "a personal issue" between him and D1.

20. On 13th, December, 1998, the plaintiff received another email from D1 which was friendly in tone. He felt annoyed and wrote to Mr Shevloff on 14th, December, 1998 asking him what he should do as he thought that D1 would take it onto his team if he did not succumb to her demands. He said when he handed a hard copy of his email to Mr Shevloff, the latter grinded his teeth and told him firmly not to send anymore of these emails to him.

21. On 18th, December, 1998, the plaintiff's was dismissed. During the exit interview with Mr Shevloff told him that he would have to let him go, and he was given a choice of either resigning himself, or Mr Shevloff would sign the letter of termination. He admitted that he was told that as the LAN team would be expanding there was concern that he might not be able to take up the responsibility. The plaintiff said that he was not paying much attention to what Mr Shevloff was saying, and he said very little. After Mr Shevloff signed the letter of termination, he asked what had been done to D1 in relation to the sexual harassment allegation, but Mr Shevloff only said that she would be reprimanded for using the company's email for personal purpose. He learnt that Mr Shevloff had told Mr Gamlin, but when the plaintiff asked Mr Shevloff what action Mr Gamlin he was told that it was time for him to go. On the following day he lodged a complaint with the Equal Opportunities Commission.

The Prohibition Order

It is not disputed that during the ex parte application for the prohibition order, only a selected number of emails were exhibited. The plaintiff denied any material non-disclosure and said that the reason for not disclosing C233 was because he did not send that email from his IBM email account. Instead it was from his own personal email account the server of which was hosted by a friend of his in Petersburg, Florida at that time. He said that his friend's email server, unlike the IBM one, did not store "sent" messages. He also said that it was his solicitor's negligence and incompetence not to exhibit such documents. In support of his allegations against his solicitor Miss Anita Lam, he cited the example that she had even mistakenly issued the original writ of the present case under DCCJ instead of EOC number.

The Plaintiff's Witnesses

22. The plaintiff called 3 witnesses.

23. PW1, Tsang Suet Lai, is the wife of the plaintiff. They were still dating each other at the time of the alleged sexual harassment. Miss Tsang remembered an occasion in October, 1998 that she smelt perfume on the plaintiff's shirt. She asked the plaintiff what happened, and was told that he was sitting close to D1 during a meeting and got the perfume smell on his shirt. She said that she observed that the plaintiff was withdrawn and unhappy around the months of October and November, 1998. Although she said that the plaintiff had once asked her how to go about filing a complaint against sexual harassment, he had never related to her that he was sexually harassed by D1, until after he was dismissed on 18th, December, 1998. She accompanied him to the EOC to make a complaint the subsequent day.

24. PW2, Karen AU Yeung and PW3, Sylvia Po, went to the same Christian fellowship as the plaintiff and they belong to the same cell group. Both of them related to Court that on 6th, November, 1998 when the fellowship group went to an outlying island for camping activities, they observed the plaintiff to be moody and easily irritable. PW3 told the Court that the plaintiff did tell her that he was sexually harassed by a lady colleague from Australia.

THE FIRST DEFENDANT'S CASE

D1's employment

25. D1 was employed by IBM Global Services Australia since October, 1994. She was never employed by D2. Under a letter of assignment she was assigned to work short term in Hong Kong as the project manager of the CPA. She was responsible for the outcome of the project, and for managing the budget, and to put together a project team. In carrying out her duties, she had to contact the relevant managers who would nominate resources, who would be the technical experts, for use in the project. During her stay in Hong Kong she worked on the business premises of D2 and was paid by IBM Global Services Australia in Australian dollars. Her accommodation in Hong Kong, however, was paid by D2. Her internal grading within the IBM hierarchy was a Band 7, and her reporting manager was Mr Pearce back in Australia, but Mr Gamlin was her location manager in Hong Kong. She said that around October and November, 1998 she had no idea of the precise completion date of her project.

Relationship with the Plaintiff

26. D1 first met the plaintiff in mid to late August, 1998 through the introduction of a colleague. She said that the plaintiff as a line manager was only responsible for providing the resources but not himself a resource. The plaintiff only became a resource for the project because he insisted. However, she found him difficult to work with, as evidenced by the work related email exchanges between them. He was stubborn, always at loggerheads with her, uncooperative, and sometimes even answered her queries in a most blunt and abrupt manner.

27. On 5th, October, 1998, she received the "Tamara Baby" email and she found it embarrassing, since this note was also copied to Nick Cook. In two emails to her on 16th, October and 19th, October, 1998 she was addressed as Tam. She was not happy with this, so she wrote back and made known to him that only her friends called her Tam. She raised this matter with Mr Shevloff. She said that at that stage she had in no way regarded the plaintiff as her friend. According to her, it was only after the team building exercise on 20th, October, 1998 that things took a turn.

28. She told the Court that the team building exercise dinner was a casual and sociable occasion. She sat down at the dinner table with a friend and was later joined by the plaintiff who sat next to her. She said that there were other seats around, which the plaintiff could have chosen if he so desired. The conversation, as far as she could remember, was friendly. He mentioned about his time with the US marine. She found that interesting and asked the plaintiff if he had a gun. The plaintiff, she said, pointed jokingly at his crotch, and said: "The gun that you referred to was a weapon, and here is my gun."

29. She said that they were flirting with each other on this occasion, and in the emails between them after that day, things took on a more personal touch. To use D1's words, she thought that they were "mucking around", and in no way did she feel these exchanges unwelcome. She denied to have used her position as the project manager to pressurize him into any unwanted personal relationship. She told the Court that there were a few times that she was kissed by the Plaintiff in the office. On of such occasion was mentioned in the plaintiff's email that they had kissed on 11th, November, 1998 at 20:20 hrs. D1 remembered on that occasion they were having coffee after work and the plaintiff remarked that she had beautiful eyes and was pretty. She said that on that occasion the plaintiff even deliberately ignored a phone call from his girlfriend. She said that the second kiss was evidenced by the plaintiff's email dated 13th, November, 1998. D1 said that she was walking past Room 1701 when plaintiff dragged her into the room and kissed her. The third kiss, according to D1, was the server room kiss which took place on the day of the arrival of the DPU server. She did ask to see it and when they were inside they talked and kissed.

30. D1 said that the plaintiff first visited her at her flat on 8th, November, 1998. The arrangement for that visit was made between them at around 7 pm on 6th, November, 1998. The plaintiff arrived at her flat at 8pm. D1 admitted that on this occasion she did remark that the plaintiff looked good in shorts, and she did not see that he was in any way offended. D1 also asked what he thought about the two of them, and the plaintiff just asked her to watch his body language. The plaintiff left at about 11 pm and D1 "sneaked in a kiss" when she saw him out.

31. The plaintiff visited her a second time on the 14th, November, 1998. This was the day when they were invited to a barbaque by a colleague. D1 said that the plaintiff was not planning to go to the barbaque originally, but when he learnt that she was going he followed suit. A few days before that they were already planning for an escape route, as can be seen from the email exchanges. They even discussed about how long he would stay in her flat that night. That evening they left the barbaque early and the plaintiff got to her place at about 11:05pm. They talked and at around 2 am they went to bed together. The plaintiff did not leave until 11:30am the next morning.

32. The next visit by the plaintiff was on 21st, November, 1998 at about 9pm. On this occasion, D1 put on some music and gave the plaintiff a massage for 30 to 45 minutes She could see that he was enjoying it and was even humming along with the music. D1 in turn massaged the plaintiff, and afterwards they kissed and went to bed together. They did not have sex on any of those three occasions.

Improper Procurement

33. D1 said that the plaintiff told her in passing on 20th, November, 1998 that the colour scanners and printers that he had ordered had arrived. D1 immediately knew that these were not part of the list of hardware to be purchased for the project because right from the beginning she had asked all those team leaders to give her a list for purchases required for the project and these hardware were not on the list. She told the plaintiff that if these items were not on the list of purchase for the project she would have to inform his line manager even if they had been delivered. D1 said that since she was responsible for the CPA project budget, she was concerned asked for the list purchase from the finance manager. She received the list on 23rd, November, 1998 and discovered that no budget had ever been allocated to this purchase at all. D1 pointed to the relevant purchase order at Bundle D 297 and said that this was one of the documents she saw, which the plaintiff had put down as ordered for CPA support and charged to the project account.

34. On the 23rd, D1 saw that the plaintiff was upset over the death of his pet chinchilla. Although the plaintiff initiated coffee after work, she turned it down. On that day that D1 told Mr Shevloff and the finance manager Paul Ko about the plaintiff's purchase. She did not know what Shevloff had done to the plaintiff in relation to this purchase, but she said that workwise the plaintiff had reverted back to being the uncooperative, obnoxious person as he was before the onset of their personal relationship. This caused her to have to write an email to Mr Shevloff expressing her displeasure over the plaintiff as a resource for the project. In the meantime, there were no more personal email exchanges between them, although on 30th, November, 1998 she did sent a email to him expressing her regrets for how things had turned out between them. On the other hand she had also warned him to improve his otherwise uncompromising work attitude. D1 went away for holiday and upon her return, she wrote a friendly to the plaintiff on 13th, December, 1998.

35. D1 said that as she was only a project manager and as she belong to a lower Band to the plaintiff's, she was in no position to influence the management over the question of whether the plaintiff should be dismissed or not. She personally took no part in the decision to dismiss the plaintiff, and she did not come to know about it until after the plaintiff's dismissal. She said when she learnt about it she felt sorry for him.

Damages for discharge of the Prohibition order

36. D1 said that the prohibition order was never served on her personally. She only received a fax copy of such at the office of D2. Her secretary gave her an embarrassed look when she handed the fax and the cover sheet to her. The cover sheet contained a description of her. In one of the particulars, she was described as "bulky" in built. D1 said that she felt embarrassed and humiliated and she immediately instructed her solicitors to proceed with the application to discharge the prohibition order. As she had already booked a holiday to Beijing with her then fiancée now husband, they thought it best to cancel the holiday. The booking was cancelled on 12th, February,1999, which was coincidentally the same day when the prohibition order was discharged. She produced a receipt from the travel agent to show that she had suffered a financial loss of $934.6 in Australian dollars because the full fare was not refunded. The loss was borne by D1 and her husband in equal shares. She also emphasized that had the manager of the travel agent not been a long time friend and the sister of her then fiancée, she would not have been able to book the ticket to Beijing at such a discount. She denied that she had ever mentioned to the Equal Opportunity Commission that she intended to go back to Australia and would not come back to Hong Kong to defend her claim.

37. D1 is also claiming damages for the emotional stress caused by the said prohibition order, as her picture was seen in the newspapers and her case widely reported.

THE SECOND DEFENDANT'S CASE

The Company Policy and Guideline in relation to sexual harassment

38. IBM issued a copy of Business Conduct Guidelines to each individual joining the company. Each employee is required to sign a Certificate certifying that he or she has read and understood those guidelines. The plaintiff signed such a certificate on 18th, August, 1998. According to the said guidelines, D2 has always maintained zero tolerance policies with regard to sexual harassment, and operates a "two-way communications" employees policy whereby employees are encouraged to communicate effectively with management in a frank and open manner. Employees are free to bring their complaints to their own line manager, they can also bring such to higher levels of management. This policy is manifested by "an open door" office setting with low partitions, so as to enable employees free access to higher levels of management.

Reason for the Plaintiff's dismissal and actions taken by D2 in relation to the Plaintiff's complaint

39. Mr. Shevloff became the direct line manager of the plaintiff from 16th, September, 1998. He learnt from Mr Gamlin that the plaintiff was having work attitude problems, and had personally encountered incidents where the plaintiff engaged in heated arguments with other colleagues. He had taken part in mediating arguments between the plaintiff and other colleagues. On 9th, October, 1998 he carried out the first Personal Business Commitment assessment with the plaintiff, wherein he gave the plaintiff a rating of 4, which was below the acceptance level. He said that he also told the plaintiff that he had 30 days to improve himself. He said that the plaintiff refused to sign on that occasion. On 11th, November, 1998 he carried out a second assessment with the plaintiff, found the he had shown slight improvement, and gave him a rating of 3, which was a rating barely within the acceptance level. A third assessment was scheduled to take place in January, 1999. He said that this time, the plaintiff accepted the assessment and the 2 Personal Business Commitment forms were signed by the plaintiff on 26th, November, 1998.

40. In November, 1998, it was brought to his notice that the plaintiff had obtained his signature and Paul Ko's to purchase items which were not allocated a budget in the CPA project but charged to such. He learnt that D1, the project manager, was never consulted nor informed of such before. Mr Shevloff said that he felt the plaintiff was not cost conscious at all. As a result, on 23rd, November, 1998, he told the plaintiff that he would not sign any such purchase forms in future unless they bore D1's signatures. On 25th, November, 1998, he received a email from D1 complaining about the plaintiff's P's uncooperative work attitude. He spoke to the plaintiff, who in turn showed him some emails between him and D1 which he thought were of a personal nature and that they were having an affair of some sort. The plaintiff also remarked he thought that D1 was out to get him. Mr Shevloff met up with the plaintiff after work at the Wild Orchid Bar, and he said that the plaintiff confided in him that he had an affair with D1 but he wanted to break it off because his girlfriend had found out about it. Mr Shevloff suggested it would be best for the plaintiff to sign off from the CPA project to avoid interaction with D1 and the plaintiff chose to write a note to inform other team members of his change in responsibility. Mr Shevloff promised to keep this matter in confidence, but told the plaintiff that he would inform Mr Gamlin about it. Mr Shevloff said that the plaintiff never made any allegation of sexual harassment on that occasion.

41. On 26th, November, 1998 Mr Shevloff informed Mr Gamlin about the relationship between the plaintiff and D1. Mr Gamlin gave evidence to the effect that he was surprised and disappointed with the judgment of the plaintiff and D1 and he was also concerned that company tools were used for personal communication. Mr Shevloff admitted that after that conversation with the plaintiff he had seen some further emails between them, but he thought it was just their own personal matters which they would have to sort out themselves.

42. By 14th, December, 1998, Mr Shevloff had decided to terminate the plaintiff's employment. He said that it was purely a business decision, as there would be an expansion of the plaintiff's department he thought they needed somebody more experienced than the plaintiff to manage the team. Also Mr Shevloff said that he had received an internal instruction that if anyone was to be separated, that was the correct time. In view of that, he did not reply to the plaintiff's email to him regarding D1 dated 14th, December, 1998.

43. Mr Shevloff said throughout the exit interview on 18th, December, 1998, the plaintiff stayed very quiet without saying a word. After Mr Shevloff had signed the letter of termination, the plaintiff told him that his poor performance was because he was sexually harassed by D1. Mr Shevloff said that this was the very first time he heard this allegation from the plaintiff and he was shocked. He told the plaintiff that he would take the necessary action after he had gained the plaintiff's permission to disclose this matter to D1.

ASSESSMENT OF THE EVIDENCE AND FINDINGS

44. Throughout the trial I have listened carefully to the evidence of all the witnesses and observed their respective demeanors.

45. It is worth setting out here s. 73B of the District Court Ordinance, Cap. 336, which provides that:

"The Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (Cap. 480) shall not be bound by the rules pf 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."

46. The plaintiff's allegation is that he was forced into a non-consensual relationship and he was dismissed because he made a complaint to the management of D1's sexual harassment. D1 denied such and insisted that their relationship was consensual. D2's case is that the dismissal of the plainitff was for cause other than his complaint of sexual harassment. In assessing the evidence I examine each witness' credibility closely.

Credibility of the Plaintiff and his witnesses

47. In the plaintiff's evidence, it is revealed that on a number or instances he was found to be less than frank and truthful:

(1) The plaintiff admitted to have lied to his girlfriend when he was confronted by her as to why his shirt smelt of perfume. Instead of telling her the truth, he chose to provide a nonsensical excuse.

(2) The plaintiff admitted that in his Application for employment form he had deliberately not disclosed his criminal conviction because they were back in 1995. At first he said that he was familiar with the Rehabilitation of Offenders Ordinance, Cap. 297, but he later said that even if the application to D2 was made before the 3 year period specified in the Ordinance had elapsed, he would still chose not to disclose it to D2 because he knew that with his conviction disclosed there was absolutely no chance that D2 could have employed him. He also admitted he had never disclosed his record to any previous employers when he made his job applications

(3) The plaintiff admitted to have filled in inaccurate particulars in his job application form in relation to the dates of his previous employment and tried to excuse himself by saying that he decided this mattered little.

(4) The plaintiff signed on the Certification required by D2 declaring that he had read the Business Conduct Certificate on the day when he joined D2 but told the Court that in fact he had not read it, and simply signed because the other staff also signed without reading at that time. The plaintiff alleged that he had not read it even at the time of the trial.

(5) It was revealed in cross examination that the plaintiff had put down the wrong date of arrival of the DPU server in his Further and Better Particulars, and no where in his pleadings or witness statement did he mention about the third visit to D1's flat. Moreover, he had inaccurately put down in his Further and Better Particulars that the two visits initiated by D1 under the pretext of discussing of business matters. The plaintiff denied that these were deliberate lies, but attributed such to a "self protection mechanism" at work, and that the Further and Better Particulars were merely a replica of his statement to the Equal Opportunity Commission which was written at a time when he was highly confused.

(6) The plaintiff in his evidence denied that there was material non disclosure on his part of the emails, in particular, C233, which could advance D1's Defence in his application for a prohibition order. He gave evidence to the effect that the said email was not written from his IBM email account but from an email server the configuration of which could not store the "sent" messages. However, when he was cross examined by Counsel for D1, he admitted that he did give this email amongst all the other emails to his former solicitor but tried to exonerate himself by saying that it was his solicitor's fault not to exhibit it. It was noted in the Plaintiff's final submission he changed to say that he could admit that there was material non-disclosure on the part of him and his solicitors, but insisted that the ex parte application was made bona fide, based on the words of D1 to the Equal Opportunity Commission that she would not return to Hong Kong to defend her case. In the end, he tried to shift his responsibility to D1 by saying that she was author of her own misfortune.

(7) The plaintiff gave evidence to the effect that he "found himself seated" next to D1 at the dinner of the team building exercise. He admitted that there might well be other seats available either at the same table or elsewhere. I find that if the plaintiff already found her domineering and was upset that she should ask about his private life at their second meeting, why he

(8) The emails sent by the plaintiff to D1 are very telling documents because they give the Court a complete view of the relationship, which the plaintiff said was non-consensual, between him and D1 during the material period of time.

(a) In a lot of the personal emails between them, the plaintiff had used "emoticons" which are symbols composed of a few text characters used as a kind of emotional shorthand to add meaning to a message. For example, ":)" is interpreted to mean a smiley or a smiling face; ":D" is interpreted to mean a laughing face. It is noted that these emoticons are completely absent in all of the work related emails between them. When asked in cross examination why did he put down those emoticons, the plaintiff could not give an explanation but rather said that one would have to ask a psychologist. He also went on to say that when people were nervous and they wanted to cover up they smiled. The plaintiff completely overlooked the fact that these were merely symbols which were consciously put there by him. The plaintiff also failed to explain why he would tapped in those funny symbols when he felt that he was forced into a relationship by D1, and thus forced to reply to her emails.

(b) It was the plaintiff who took the initiative to call D1 "Tamara Baby" "sweetie" and "Tam" by emails. When asked, the plaintiff said that he did not know why he did that. Although he did stop calling her Tam after receiving a lecture from Mr Shevloff, it is clear that in the C 233 email dated 13th, November, 1998 he had reverted back to calling her the same. In fact, in an email to her dated 19th, November, 1998, he even called her by the name of "Tammie".

(c) According to the plaintiff it was D1 who asked for a picture of him in marine uniform during his first visit to her flat. If, according to what he said, he was so disgusted at her comments of him in his shorts, it was surprising that he would chose to provide her with the website address to view his photograph.

(d) Although the plaintiff said that originally he did not plan to go to Harry Liu's barbeque on 14th, November,1998, it is clear from his emails that he was excited about the idea. His email to D1 on 12th, November, 1998 suggested both of them leave Liu's place at 7:30pm and the plaintiff even wrote asking D1 to "call me up so we can work out the rest." The plaintiff explained in his evidence that when he wrote this email his plan was to leave early to go to D1's place hoping to leave early for home also. Contrary to his explanation, in his email dated 13th, November, 1998, he suggested to stay the night at D1's place as he said: "as long as I get back to the Church by 12:15pm Sunday, then everything will be fine." This message was again followed by a funny symbol :D.

(e) The plaintiff denied any sex or fondling between him and D1 during all his visits to her flat. However, according to the email sent by D1 to him on the 16th, November, 1998, she had referred to being with him "in his arms the whole evening through to the morning". When asked whether he did take D1 in his arms, the plaintiff was highly evasive and said that he could not remember. It is noted that this forgetfulness and selective memory of the plaintiff is an uncommon feature in his evidence. For instance, he was again vague and evasive as to how many times he and D1 kissed in the office, he again said that he could not remember who initiated those kisses.

(f) In three of the emails from D1, (26th, 28th, October,1998, 4th, November, 1998), she had asked him whether he wanted to continue this approach between them. The plaintiff agreed that at no time did he express to her that he felt offended. He referred this as "the tongue and cheek approach", which he elaborated as to mean that he did not want to irritate her but in the meantime he had set himself a bottom line, that is, not to have sex with her. He also said that he did not expect her to totally understand his approach. I find that the stance taken by the plaintiff towards D1 as seen in his emails were much more a mere effort not to irritate her.

(9) The plaintiff's portrait of himself as an unwilling participant in the personal relationship with D1 is totally inconsistent with the fact that he went to her flat at night on three occasions, and indeed on two of such he had indeed stayed the night. If he was indeed so affronted by her email on 21st, October, 1998 which she said she was going to invite him to her place for a drink of coke or coffee, he could easily, subtly and politely turned down her invitation without annoying her. Instead of doing so, the plaintiff went to her flat on three consecutive weekends, and even chose to give up the fellowship activities held every Saturday which he said he treasured so much.

In fact, the plaintiff was very evasive when cross examined as to when he made the arrangement with D1 to go to her flat on 8th, November, 1998. According to his evidence in chief, he said that the arrangement was made two days prior to his first visit on the 8th . However, in cross examination he was reluctant to admit that the arrangement was made in the evening on the 6th, when he realized that such evidence would be a head on clash with the evidence of his witnesses who gave evidence to the effect that he was depressed and withdraw during that evening. As a result, he refused to directly answer the question but rather chose to say that on the evening of the 6th he was on the boat.

(10) The plaintiff said his techique towards D1 during his second visit was that he kept asking D1 questions in order to keep her questions of him to a minimum. However, the plaintiff admitted that D1 told him that Rick (D1's husband at present) would be coming to Hong Kong he was not at all interested. This was in total contradiction to the plaintiff's tactics of keeping D1's question about him to the minimum.

(11) The plaintiff was also seen to be highly evasive about what happened during his third visit to D1's flat. When asked if any body massage took place between him and D1, he showed great reluctance to answer. It was only when the Court ordered him to answer that he admitted she first gave him a massage then followed by him on her. Although he denied that he enjoyed the body massage, nonetheless he stayed until early morning and even had breakfast with D1 before he left for church.

(12) The plaintiff admitted that he had never read IBM Business Guidelines in relation to sexual harassment. However, he admitted to be the one who started the "Tamara Baby" email which earned him a long lecture from Mr Shevloff. In cross examination he said that when he was lectured he listened. When it was suggested to him that Mr Shevloff reminded him of the conduct guideline he simply said that Mr Shevloff was "chewing him up". He denied that Mr Shevloff had specifically warned him that such could possible constitute a ground for D1 to make a complaint against him for sexual harassment. When asked again whether Mr Shevloff was referring him to the guidelines, he tried to defend himself by saying that he could not confirm that although such would be possible. If what he said about he was listening to Mr Shevloff's lecture is correct, it is strange why he could not even remember whether he was referred to the conduct guidelines.

(13) It is interesting to note that the plaintiff has altered his case as he went along. In his writ he claims that he had made a total of 4 written complaints to Mr Shevloff. In his evidence, he changed to say that it was 2 oral and 2 written complaints. It was also alleged in his Particulars of Claim that D1 had made offensive and unwelcome telephone calls to his residence in three evening which was totally unsupported by his evidence.

(14) The plaintiff admitted that he was not a timid person, but qualified by saying that he had problem expressing himself to people who were in control of his life. However, from his business related emails to D1, it is clear that he was adopting a confrontational, assertive, and even uncompromising attitude. I find it difficult to understand from his point of view that if he dared workwise to upset D1, whom he thought had a say in his career, why he should think that he could not keep his personal life away from her.

(15) It is also surprising that no complaint was ever made to his girlfriend, Miss Tsang, until he was dismissed. Although according to her, he had made some enquiries as to where to make a complaint of sexual harassment, it seems strange that he would choose to confide in Miss Po rather than to tell his girlfriend that he had been harassed.

(16) The plaintiff said that he did not know what Band D1 belonged to until late November or early December when he checked through the company's database. It is strange that he would not have her grading checked out right at the very beginning when he felt the impact of her advances when there were facilities for him to do so, rather than to hastily embark on the "tongue and cheek" approach.

48. In relation to the evidence of the plaintiff's witnesses, I make the following observations:

49. I find that Miss Tsang's apathy in not asking the plaintiff for what or whom he needed the information relating to where to make a complaint of sexual harassment out of the ordinary. Moreover, Miss Tsang's contention with the plaintiff's nonsensical explanation as to how he got the perfume smell on his shirt when she denied feeling suspicious but merely felt somewhat surprised is also difficult to understand.

50. Miss Sylvia Po insisted that the plaintiff did use the term "sexual harassment" when he told her on 6th, November, 1998 that he was harassed by an Australian boss. It is surprising that in her statement, instead of using the word "sexual harassment", the words "diligently pursued" were used instead. Miss Po told the Court that her witness statement was drafted by the plaintiff and she had read such, felt that they were on the whole accurate and appended her signature. It is indeed surprising that Miss Po, being a highly educated Executive Officer, would choose to sign a statement not realizing the importance of the difference between the two terms.

51. I find that the plaintiff did not survive the test of cross examination. His credibility was completely destroyed. Whenever he was caught in a lie, he tried to provide an excuse to explain away his own responsibility. His numerous endeavours to shift the blame to other people clearly show that he does not come to terms with his own shortcomings. The fact that he insisted even up to and at the trial that a project manager had no say in the budget and his procurement only required the authorized signatures without even having to inform D1 when such procurement was charged to the project account showed a totally misconceived view of the respective role and duties of himself and other colleagues in the company. The plaintiff's challenge to the authenticity of the two Personal Business Commitments is totally groundless, and I come to the conclusion that the objections were raised with a view to show that his dismissal was not for cause but for his allegation of sexual harassment. I find that he was prepared to tailor his evidence and to give untruthful evidence as he went along to suit his own purpose. I reject his evidence in its entirety. I find that the allegation of a forced relationship no more than a pretence of falsehood on the part of the Plaintiff without any ring of truth, and so implausible that no reasonable person would venture to believe.

D1's credibility

52. It is noted that D1 gave her evidence in a straightforward and frank manner. Her stance when giving evidence is consistent with her attitude towards the plaintiff as witnessed by her emails to him. She made no attempt to hide the fact that she found him a difficult person to work with in the beginning. She was open in telling the Court that she began to like the plaintiff after the team building exercise dinner. This is evidenced by the emails showing that although she detested the idea of the plaintiff calling her as Tam, after the team building exercise when the plaintiff reverted back to calling her such, she accepted it quite readily without protest.

53. She frankly admitted facts which could throw her case in a bad light, for instance, the initiative taken by her to invite the plaintiff to her flat, that she had sneaked in a kiss on the plaintiff when he was about to leave during his first visit, and the details of their activities during his three visits. It is clear from her evidence that although she was having a personal relationship with the plaintiff when it came to work she was firm and tried her best to strike a balance between the two. This can be seen from the business related emails between her and the plaintiff and the fact that she did inform Mr Shevloff about the purchases by the plaintiff which were not allocated a budget in the project. I accept D1's evidence that her email on 30th, November, 1998 to the plaintiff was merely to let him know some feedbacks from the client so as to assist him in his dealing with the client, and should not be construed as any threat to him to continue or improve the personal relationship with her.

54. She was also frank with the fact that her planned trip for Beijing which failed to materialize because of the Prohibition Order was booked from her sister-in-law. I accept that there is nothing sinister in the coincidence of the date when the booking was cancelled and the date of the discharge of the Prohibition Order.

55. She readily accepted her responsibility, namely, to have used the company email for personal purpose, and her failure to complain to the plaintiff's line manager when there were complaints made against him by clients. Although she was reprimanded by her own manager back in Australia, and her rating had been reduced to reflect such in IBM and this remained in her personal file, she readily accepted such and had no intention to appeal against this whatsoever. She made no attempt to downplay her role in the matter and accepted that it was her wrong judgment to mix up business and personal matters. I find her an honest and credible witness.

Credibility of Mr Gamlin and Mr Shevloff

56. According to Mr Shevloff, the plaintiff showed him two personal emails between him and D1 on 25th, November, 1998. He learnt of their personal relationship. His evidence that he informed Mr Gamlin the following morning was consistent with Mr Gamlin's evidence that he was told of D1 and the plaintiff's personal relationship in late November, 1998. I find that Mr Shevloff's decision to remove the plaintiff from his involvement with the CPA project so as to keep personal interaction between D1 and the plaintiff an appropriate business decision. The evidence of both of them was that they were not made aware of any sexual harassment complaint by the plaintiff on that occasion supports each other.

57. Mr Shevloff's explained that as he had decided to terminate the plaintiff's employment by 14th, December, 1998 and it was normal practice not to inform the individual before the actual date of separation. It is clear that in a company specializing in information technology, the management would prefer an employee who is dismissed to leave the employment immediately for a variety of reasons security being one of them. That accounts for the reason why he made no reply to the plaintiff's email to him dated 14th, December, 1998, because once the decision to dismiss the plaintiff was made, Mr Shevloff would want to keep no more than a minimum contact with him. It is also noted that the reasons given by Mr Shevloff why the plaintiff was dismissed is consistent with Mr Gamlin's evidence, namely, that the management found that plaintiff would not fit in as a leader given his previous confrontational attitude, especially in view of the fact that the team he was managing would be expanding. Moreover, Mr Shevloff and Mr Gamlin's evidence that although a project manager's signature was not required for specific procurements, they would expect the employee who made the orderwhich would be charged to the project account to have discussed the purchase with the project manager support each other. Mr Shevloff frankly admitted that there had been a loophole in the practice of not requiring the project manager's signature, and nowadays the company's procurement policies have been changed to deal with that problem.

58. I find that Mr Shevloff and Mr Gamlin have given their evidence in a clear and logical manner. I find them to be honest and credible witnesses.

Findings

59. I find that the plaintiff was a willing participant in the personal relationship with D1, and he had never made the allegation of sexual harassment against D1 until he was dismissed for reasons unrelated to the present case. I also find that since the plaintiff only made the allegation for the first time during his exit interview, he was not and could not have been dismissed because of his allegation of sexual harassment against D1, and his dismissal was for cause the details of which had been provided by Mr Shevloff and Mr Gamlin in their evidence. .

THELAW OF SEXUAL HARASSMENT IN HONG KONG

60. Under s. 2(5) of the Sex Discrimination Ordinance, CAP.480, a person sexually harasses a woman if -

(a)the person -

makes an unwelcome sexual advance, or an unwelcome requests for sexual favours, to her; or

* engages in other unwelcome conduct of a sexual nature in relation to her,

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

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

s.2(8) of the said Ordinance stipulates that the law protects men as well as women from sexual harassment.

61. It shall be noted that the SDO only prohibits sexual harassment in certain protected spheres, one of such areas is the employment field.

s. 23(3) stipulates that:

"It is unlawful for a person who is employed by another person at an establishment in Hong Kong to sexually harass a woman.......employed by that second-mentioned person."

"Employment" is defined in s.2 as "employment under

(a) a contract of service or of apprenticeship; or

(b) a contract personally to execute any work or labour.

In the present case, it is not disputed that a contract of employment existed between D1 and IBM Global Services in Australia. There was no such contract between D1 and D2. During the material time she was seconded to Hong Kong and carried out to work in the business premises of D2 as a project manager. She was paid in Australian dollars into her Australian bank account by her employers back in Australia. Her accommodation in Hong Kong, however, was provided by D2. Mr Gamlin of D2 was her location manager in Hong Kong. I am of the view that although there exists no express contract of employment between her and D2, there was necessarily an implied contract of employment between them for her to personally execute work or labour for D2 as a project manager. I find that there was a contract of employment between them in accordance with the definition in s. 23(2)(b).

62. As s. 2(5)(a) of the SDO was copied directly from the s. 28A of the Australian federal legislation, it is thus interpreted to prohibit both quid pro quo harassment and "hostile environment" harassment. Quid pro quo harassment occurs when an employer or other persons specified in the Ordinance is in a position of power, makes unwelcome sexual advances to the victim, in return for a benefit or under threat of a detriment. Hostile environment harassment occurs when the harasser engages in unwelcome sexual conduct in relation to the victim which creates a hostile environment for the victim.

s.2(5)(b) provides an alternative broader definition of hostile environment harassment which does not require that the sexual conduct be "in relation to" the victim.

Unwelcome Conduct

To be unlawful, the sexual conduct complained of must be "unwelcome". The question is: whether the actual complainant welcomed the conduct at the relevant time, not whether a "reasonable person" would have welcomed it. s.2(5)(a) imports both a subjective and an objective test. This is best illustrated in the Australian case of O'Callaghan v Loder & Anor [1984] EOC 92-023:-

"Anti-discrimination laws cannot be taken to proscribe or discourage consensual sexual activity, whether in the workplace or elsewhere. Hence the initial requirement that the sexual activity should be unsolicited and unwelcome. A person who makes advances, knowing that they are reciprocated, cannot be guilty of unlawful discrimination. Nor can a person who makes advances genuinely believing them to be welcome, so long as the circumstances are not such that he should, objectively, have realized that they were unwelcome. In other words, if an employer continues to make advances to the employee, against the employee's objections, then even though the employer might personally believe that the objections were not meant seriously, and that his advances were quite welcome, nevertheless he can still be guilty of discrimination. The test then will be whether the circumstances were such that he should have realized that his approaches were unwelcome."

63. As said in the Australian case of Ashton v Wall & Anor [1992] EOC 92-447,

"The test was not how the complainant viewed the advances and sexual conduct in retrospect, after she had had time to dwell upon the one-sided nature of the relationship, and the futility of what had occurred but, viewed objectively, whether the advances and the acts of sexual conduct were unwelcome at the time they happened, and whether the respondent reasonable understood that his conduct was unacceptable."

The Court, in considering whether the complainant welcomed the conduct, may consider all the circumstances, including the plaintiff's testimony in Court, as well as his behaviour at the relevant time. If the advances were solicited, procured, or invited by the plaintiff at the material time, it can hardly be said that such advances were unwelcome. Although the plaintiff is not required to prove that he expressly objected to the harasser or to any other representative of the employer about such unwelcome conduct, it is certainly one factor for the Court to consider in deciding whether the conduct alleged was unwelcome or not.

Applying this test in s. 2(5)(a) to the facts of the present case, it is clear that if the acts in question constitutes sexual advances by D1, they were made by D1 knowing that they would be and in fact reciprocated. D1's advances were made in the genuine belief that they were welcomed, and the objective circumstances were not one which she would have realized that such were unwelcome, since the plaintiff never made it known to D1 one way or another, and the plaintiff in fact conceded that D1 might not understand his "tongue and cheek" approach. Since there was no objection voiced by the plaintiff, D1 would not have realized that the plaintiff did not welcome her advances.

64. In the Australian case of Hardy v Kelly & Anor [1991] EOC 92-369, it was held that in the context of friendship between the Complainant and the Respondent, the respondent would not have realized that his behaviour was unwelcome to the complainant. By not making clear to the Respondent that she did not welcome the relationship between them, this caused the Respondent to be under the impression that he could rely on their friendship to say things to her which otherwise he would not have said to other employees. It was held that on the basis of such findings the Complainant had not established on the balance of probabilities that the Respondent had sexually harassed her.

65. Although there is no statutory definition of sexual harassment in the UK legislation, the courts and Tribunals have relied on the European Union Recommendation and Code ("the EC Code") in interpreting what conduct amounts to sexual harassment. The Code makes it clear that the conduct is unacceptable if the harassment is unwanted, unreasonable and unacceptable to the recipient. In the English case of Reed and Bull Information Systems Ltd v Stedman, [1999]I.R.L.R.299, the Employment Appeal Tribunal realizes that there may well be difficult factual issues to resolve in deciding whether the conduct is unwelcome, at 302, it said :-

"...But because it is for each person to define their own levels of acceptance, the question would then be whether by words of conduct she had made it clear that she could such conduct unwelcome. It is not necessary for a woman to make a public fuss to indicate her disapproval; walking out of the room might be sufficient. Tribunal will be sensitive to the problems that victims may face in dealing with a man, perhaps in a senior position to herself, who will be likely to deny that he was doing anything untoward and whose defences may often be that the victim was being over-sensitive. Provided that any reasonable person would understand her to be rejecting the conduct of which she was complaining, continuation of the conduct would, generally, be regarded as harassment."

It is true that the plaintiff in his Particulars of Claim also rely on the second limb of s. 2(5)(a), namely that D1 created a hostile and abusive work atmosphere for him by reason of her conduct. I find that 'hostile environment harassment" has absolutely no place in the present case. This category of harassment is addressed only to circumstances where the perpetrator of the sexual harassment engages in conduct such as unwelcome physical contact, telling lewd jokes, or putting up obscene picture in the office. As I find that the physical contacts by D1 at the office were not unwelcome by the plaintiff, and I accept D1's evidence that the plaintiff not only did not protest to those jokes she sent by email to him, actually told her that he quite enjoyed them.

According to s. 46 of the SDO,

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Ordinance as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) In proceedings brought under this Ordinance against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

s.9(1) of the SDO provides that:

"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purpose of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other perons, and does so by reason that the person victimised has-

(c) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance, or by reason that the discriminator knows the person victimised ... intended to do any of those things, or suspects the person victimised ....has done, or intends to do any of them."

s.9 can be disposed of shortly as my finding is that the plaintiff was dismissed for cause rather than for his complaint of sexual harassment against D1. It is also my findings that the plaintiff only made his allegation at the exit interview after he was informed by Mr Shevloff that he was dismissed.

66. The question of whether an employer has taken such steps as are reasonably practicable to prevent an act under SDO is one of fact, see Francis v Tower Hamlets BC, (1987) L.S.Gaz.2530. In Balgobin & Francis v Tower Hamlets LBC, [1987]I.R.L.R.401, it was held that an employer could not be made liable if they had taken all reasonably practicable steps to prevent harassment once they had been made aware of the problem. In Miss L Carter v Westcliff Hall Sidmouth Ltd, unreported, Exeter IT, Case No.31165/90, it was held that it was not enough to discharge an employer's responsibility when the employer took action as soon as they had discovered the complaints of sexual harassment, the employer should have taken steps before the act occurred, by instructing staff that sexual harassment was unlawful and unacceptable.

67. I find that D2, by providing the necessary guidelines on sexual harassment and indeed requiring employees to sign a certificate to declare that they have read and understood the contents therein, have discharge the burden placed upon them as employers by the legislation, and have availed themselves of the defence provided under s. 46. Furthermore, the fact that Mr Shevloff was at pains to lecture the plaintiff after he learnt of the "Tamara Baby" email is a clear indication that the management was ready and prepared to implement the guidelines, that they were cautious in dealing with any conduct which might have a sexual harassment related overtone, in order to demonstrate their zero tolerance to sexual harassment.

68. In conclusion, I find that the plaintiff fails to prove on a balance of probabilities his claim against D1 and D2. I now turn to deal with the damages and costs on the discharge of the prohibition order.

The Prohibition Order

69. The Prohibition Order was discharged on 12th, February,1999 on the grounds that D1's affidavit showed a prima facie defence. The issue of whether there had been material non-disclosure was reserved to be determined by the trial judge. Furthermore, the court discharging the said Order specifically ordered that costs in relation to discharge of the Prohibition Order be reserved to the trial judge, and D1 be at liberty to apply for compensation in relation to the issue of the Prohibition Order.

70. The power of the District Court to grant a Prohibition Order is provided under s.52E of the District Court Ordinance, Cap.336. Its identical counterpart is s.21B of the High Court Ordinance, Cap. 4. I find that RHC Order 44A r.5 is applicable to the District Court by virtue of Rule 9 of the District Court Civil Procedure (General) Rules. Under RHC Order 44Ar.5, a court has power to award reasonable compensation for any injury or loss sustained by reason of the plaintiff's application of a Prohibition Order when it appears to the Court that the application was made on insufficient grounds.

71. It is a clear principle that in ex parte applications, the affidivat in support must be candid and states the facts fairly and accurately, and should not in any way mislead the Court, R v Kensington Tax Commissioners, [1917]1KB 486. A plaintiff, in making an ex parte application, should make full and frank disclosure of all material facts, including any defence which the defendant has indicated in correspondence or elsewhere, Bank Mellat v Nkpour, Fleet Street Reports [1985] 87. It matters not whether whether the non-disclosure is deliberate or innocent, Lloyds Bowmaker Ltd. V Britannia Arrow Holdings, [1988]1WLR 1337.

72. By selecting merely to exhibit the emails which advances the plaintiff's case in the ex parte application for the Prohibition Order, it is clear that the plaintiff wished to throw a bad light upon D1's case. The explanation he gave in Court to the effect that he could not retrieve this email(C233) because it was stored in the server of a friend named Brian in the States is mere allegation on his part unsupported by any evidence. It is unthinkable that the plaintiff had completely forgotten about this email which he said he had taken hours to compose. His allegation that it was negligence on the part of his solicitors in failing to file this email as an exhibit is nothing more than an attempt to exonerate him from his own responsibility. Solicitors being officers of the Court are well conversant with the cardinal principle of full and frank disclosure in an ex parte application such as this. It is simply implausible that a solicitor would choose to conspire with the plaintiff to put his own professional interest at stake.

73. Furthermore, according to Helen Belshaw's affirmation dated 12th, February, 2000 filed in support of D1's claim of damages in relation to the discharge of the prohibition order, she stated that the excluded email was supplied to the Equal Opportunity Commission at the same time the Plaintiff lodged his complaint. She stated that she received a copy of this email from the EOC. The plaintiff did inform the Court during trial that this email as inserted in the Bundle containing correspondence with the EOC should not have been placed there. Again it is noted that albeit that the bundles of documents had been provided to the plaintiff for his perusal he had never raised any objection to that email being placed in the Bundle of correspondence with the EOC until he was in the middle of his evidence. He again tried to explain that away by saying that he had not gone through the bundles and he had not fully prepared his case. I find this allegation of the plaintiff to be in direct contradiction with his evidence that he was dissatisfied with the stance taken by his former in relation to the service of the prohibition order and that he wanted to win this case "fair and square". I find this is nothing but another attempt by the plaintiff to exonerate himself when caught in a lie. I find that the plaintiff's allegation that it was planted there by the solicitors for D1 a futile attempt on his part to explain away why such was provided by him to the EOC but yet was not exhibited. There is absolutely no reason whatsoever for me to doubt the truthfulness of Miss Belshaw's affirmation.

74. I find that once all the emails are disclosed, it might make it less likely for a court to grant the Prohibition Order. He would inevitably be fighting an uphill battle because the personal email correspondence with all those funny symbols show that he was at all times a most willing participant in the personal relationship. The plaintiff's effort in explaining that he was forced such due to the superior subordinate relationship found itself difficult to fit in place with the undeniable fact that D1 actually belonged to an inferior Banding to himself, who had no influence or say in relation to his promotion or dismissal. The malice on the part of the plaintiff can be seen in the way he served the prohibition order. His act of faxing it to D1 at the premises of D2 was obviously calculated to humiliate, and to show D2 especially Mr Shevloff that he did put his words of seeing him in Court into action. There is no reason why when he was engaging the help of a solicitor to seek her advice first before he faxed over the order and the cover sheet with such venom.

75. I find that there had been material non-disclosure on the part of the plaintiff in his application for the Prohibition Order. In fact, my findings go further than that: I find that the material non disclosure was deliberate and malicious, and calculated to put forward to the Court a totally distorted and one sided picture.

Order

76. According to s. 73B(3) of the District Court Ordinance, Cap.336,

"Each party to any proceedings in the Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance(Cap.480) shall bear its own costs unless the Court otherwise orders on the grounds that -

(a) the proceedings were brought maliciously or frivolously;

(b) there are special circumstances which warrants an award of costs."

77. For reasons above mentioned, I am satisfied that the present proceedings are brought by the plaintiff against D1 and D2 maliciously and frivolously. I therefore make an order nisi that D1 and D2 are entitled to costs of this action with certificate for Counsel.

78. The order nisi is to be made absolute after the expiration of 14 days from the date of the handing down of this judgment.

79. I order the plaintiff to pay the cost of D1 for the discharge of the Prohibition Order. A Prohibition Order is a draconian order and if it is made unjustly, it would cause irreparable damage to a Defendant. Having found that there was material non-disclosure which was deliberate, I also find that the Prohibition Order was obtained maliciously with ulterior motive to insult or humiliate D1. That application was precipitous and erroneous. I am of the view that that this is an appropriate case to order the cost for the discharge of the Prohibition Order to be taxed on an indemnity basis.

80. I also order the plaintiff to damages to D1 Aus $467.3, or the Hong Kong dollar equivalent at the time of payment, being the financial loss suffered by D1 as a result of the cancellation of her trip to Beijing. Although D1 alleged that she suffered from emotional stress and had consulted a psychologist a few times upon her return, no such supporting reports nor payment receipts have been submitted to the Court. I am of the view that any emotional stress suffered by D1 would be minimal and therefore make no order for damages in relation to that.

81. I would also take this opportunity to say a few words on damages which I would have awarded had I found in favour of the plaintiff. The plaintiff claims for damages including damages for injury to feelings which is specifically provided for under s.76(6) of the SDO; and exemplary damages. I have taken into consideration the fact that the plaintiff could have availed himself of the facilities provided by the guidelines to sexual harassment laid down by the company but he had deliberately chosen not to. What he had done certainly led D1 on. Furthermore, I am entitled to consider the character of the plaintiff in considering the amount of damages to be awards, see Mrs V Snowball v Gardner Merchant Limited, [1987] I.R.L.R.397. The plaintiff claims himself to be a person of a "solid background', see the plaintiff's Particulars of Claim, has been in Seattle on and off for a total of 10 years, and he had served the U.S. Marine for 7 years. At the time which he said the sexual harassment occurred he was 29 years of age. He also admitted that he had Caucasian girlfriends before. He admitted that he was never a timid person. I also take account of D1's monthly salary at the time when she was working as a project manager in Hong Kong was A$4633.25. I referred myself to the award in Yuen Sha Sha and Tse Chi Pan, DCEO1/99, and I assess the damages for injury to feelings at $15,000. By virtue of the conduct of the plaintiff himself in this matter, I am not prepared to grant any exemplary damages.

Dated this the 5th day of April

Representation:

Plaintiff in person.

Mr Ashley Burns, instructed by Messrs. Barlow, Lyde & Gilbert for D1.

Mr Russell Coleman, instructed by Messrs. Wilkinson & Grist for D2.