L v. Equal Opportunities Commission and Others
Read the full judgment text of DCEO 6/1999 on BabelCite. This DCEO judgment was delivered on 13 November 2002.
1. The plaintiff is a former employee of the Equal Opportunities Commission ("EOC"). In the first of these consolidated actions, he claims damages and other remedies against the EOC, its Director (Administration)， Mr. Michael Chan Yick Man ("Mr. Chan") and its Chief Executive Officer, Mrs. Angela Ho Choi Wai Yee ("Mrs. Ho") for discrimination and harassment on account of disability. In the second action he claims damages and other remedies against the EOC, its Chairperson, Dr. Fanny Cheung Mui C
Cited by 3 cases · Cites 3 cases
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DCEO000006/1999 DCEO 1/99 & DCEO 6/99 (consolidated) IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO. 1 OF 1999 ------------------
_______________________________________________________________ DCEO 6/99 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO. 6 OF 1999 ------------------
_______________________________________________________________ (Both actions consolidated by Order dated 27th August 1999) Coram : H.H. Judge Muttrie in Court Date of Trial : 26-29 August, 2-5 & 23-24 September 2002 Date of Judgment : 13 November 2002 ________________________ Judgment ________________________ 1.The plaintiff is a former employee of the Equal Opportunities Commission ("EOC"). In the first of these consolidated actions, he claims damages and other remedies against the EOC, its Director (Administration)， Mr. Michael Chan Yick Man ("Mr. Chan") and its Chief Executive Officer, Mrs. Angela Ho Choi Wai Yee ("Mrs. Ho") for discrimination and harassment on account of disability. In the second action he claims damages and other remedies against the EOC, its Chairperson, Dr. Fanny Cheung Mui Ching ("Dr. Cheung") and its Director (Disability), Mr. Frederick Tong Kin Sang ("Mr. Tong"), for victimisation on account of his having raised the first action and alternatively for discrimination and harassment on account of disability. The First Action 2.The plaintiff's case on discrimination and harassment in the first action is as follows. He suffered an accident at work on 22 May 1998, as a result of which he suffered from post-concussion syndrome, depression, muscular pains, multiple strains, severe headaches and severe neuralgia. These conditions caused him to suffer a disability within the meaning of the definition in the Disability Discrimination Ordinance, Cap. 487 ("DDO"). From about 15 June 1998 the defendants and each of them discriminated against him and/or harassed him, contrary to sections 11(2) and 22(2) of the Ordinance. Put briefly, the particulars of the various acts complained of are as follows:
3.The plaintiff says that each and every act particularised amounted to discrimination against him as an employee, on account of his disability, contrary to section 11(2) or alternatively to harassment contrary to section 22(2) of the DDO. He says that the EOC is vicariously liable for the actions of the other defendants and that they are themselves directly liable. 4.The defendants for their part do not admit that the plaintiff suffered an accident and put him to strict proof of it. They do not admit that he suffered from any disability. They deny that their actions or any of them amounted to discrimination or harassment. Background to the First Action 5.I begin with the background of facts which are not in dispute or are incontrovertible and appear for the most part in the documents which are before the court. 6.The plaintiff, who was born in 1956, became a police officer in 1998 and later he became a solicitor. After some time in practice, he was employed by the EOC as a Chief Equal Opportunities Officer with effect from 2 September 1996 on agreement terms for three years. His starting salary was $67,480.00 per month and in addition he received a cash allowance of $30,085.00 per month. As at 22 May 1998 his salary had been increased to $74,725.00 per month. After appointment he worked in the Disability Division under Mr. Tong. He passed his initial six-month probation period and indeed was granted two discretionary increments of salary but apparently Mr. Tong was later not satisfied with his performance and graded him as "marginal" in a Performance and Development Review for the period 1 October 1997 to 31 March 1998. 7.The plaintiff's agreement terms provided inter alia that
8.In fact it was the policy of the EOC that an employee who was entitled to be paid compensation under the Employees' Compensation Ordinance ("ECO") would be paid, not according to the formula in section 10 of that Ordinance, but his full remuneration. 9.The plaintiff says that he met with his accident on the morning of 25 May 1998. That he had the accident is in dispute. In any event he went to hospital that day, and went off work. He produced sick leave certificates and was paid his full salary and allowance. 10.On 15 June 1998 Mr. Tsang of the defendant wrote to the plaintiff asking him to have a medical examination by Dr. Fong in accordance with section 16 of the ECO. Mr. Chan wrote a letter of instruction to Dr. Fong. The plaintiff was examined on 18 June. 11.In the meantime, Mr. Chan had taken the plaintiff's name off the autopay list for payment of salary and allowance. After Dr. Fong's report reached the defendants on 19 June it was decided that periodic payment under the ECO would continue to be paid. This was paid by cheque on 30 June 1998 rather than by autopay on 27 June as it would otherwise have been, and the cheque was cleared on 2 July. 12.On 14 July 1998 Mr. S. C. Tsang of the EOC wrote to the plaintiff to ask for consent to approach the plaintiff's own attending doctor to inquire about "the latest conditions relating to your injury, the treatment that he is giving you, his prognosis of your conditions as well as when you are expected to be able to resume duty again." This was done after Mr. Tong had contacted a Commission member, Dr. K. H. Lee for advice as to what information could be sought from the plaintiff's doctor, and had been advised that the plaintiff's consent should be sought. The plaintiff replied on 16 July, giving some information about his condition but not dealing with the request to approach his doctor. On 23 July, Mr. Tsang, for the Chairperson, wrote again to the plaintiff to the effect that the OEC would like to have Dr. Goh's professional advice, and enclosing a consent form for the plaintiff's signature. He added that if he did not hear from the plaintiff by 25 July, consent would be presumed. It appears that Mr. Tsang had some difficulty in contacting the plaintiff at about this time. A copy of the letter was sent by hand to the plaintiff's address. There is uncontradicted evidence from the defendant's messenger that a woman told her that the plaintiff was unknown there. Another copy was sent by registered post. No reply was received from the plaintiff but in any event the defendants did not presume his consent and did not approach Dr. Goh. 13.On 4 August 1998 the plaintiff was sent a letter requesting him to have an examination on 20 August by Dr. Yu Yuk Ling "to enable the EOC office to consider if periodical payment under the ECO is to be made to you." A copy of the letter of 23 July was enclosed. Mr. Chan wrote to Dr. Yu instructing him to carry out the medical examination and inquiring inter alia if a neuro-psychological assessment would be appropriate or beneficial in the circumstances. This was included after consultation with Dr. Cheung, who is herself a psychologist. 14.On 13 August 1998 the plaintiff wrote to Mr. Chan regarding his letter of 4 August setting out what had happened in connection with the medical examination by Dr. Fong, asking for inter alia the contents of all communications between the EOC and Dr. Fong and Dr. Yu, and various other items of information. In this letter he claimed that the EOC's actions over the past two months amounted to harassment and were hampering his recovery. Mr. Chan replied that the EOC was concerned with the state of the plaintiff's health, and that was why they had asked him to take the two medical examinations. He said that there had been no communications with Dr. Fong except for a telephone call and the letter of instruction and that Dr. Fong's report had already been provided to the plaintiff. As to Dr. Yu's report he said that a copy would be provided. 15.Following a rescheduling of the appointment at the instance of the plaintiff Dr. Yu examined him on 26 August 1998 and sent his report to the EOC on 28 August. Inter alia he recommended that the plaintiff be seen by a psychiatrist. 16.On 1 September 1998 the plaintiff wrote a long letter to Mr. Chan expressing disappointment that the latter had not provided all the information requested by the plaintiff in his letter of 13 August and again complaining of harassment. Among other things the plaintiff claimed that he did not understand why the EOC had used the provisions of section 16 of the ECO because he was in any event statutorily entitled to periodical payments by virtue of section 10 without further determination by the EOC. He requested a response to all matters raised in that letter and the earlier letter, a confirmation whether the EOC held personal data of which he was the subject, and a copy of such data. Mr. Chan replied on 8 September sending copies of the EOC's letters of instruction to Drs. Fong and Yu, and a copy of Dr. Yu's report. 17.Then on 10 September 1998 Mr. Chan wrote to the plaintiff requesting him to undergo a medical examination by Professor Felice Lieh Mak on 23 September. The examination was expressed as being "to enable the EOC office to consider if periodical payment under the ECO is to be made to you". The plaintiff was also requested to notify the Professor if he could not attend the appointment, and fix a new appointment directly. The plaintiff did not attend this appointment; he says that his wife fixed an appointment on his behalf in October, which is a matter of dispute. In any event, on 24 September Mr. Chan again wrote to the plaintiff to the effect that he had been told that the plaintiff's wife had cancelled the appointment on 23 September and refused one offered on 25 September, and asking the plaintiff to attend for examination on 30 September. This time, the plaintiff was warned that failure to attend may result in his right to compensation being suspended. 18.The plaintiff did not attend the appointment on 30 September. It was decided to suspend his periodical payments. He was informed by Mr. Chan's letter of 30 October 1998 that because of his failure to attend for examination, his compensation under the ECO was suspended from 1 October 1998 until such examination should have taken place. Payments were accordingly suspended. Following a letter before action dated 30 December 1998 the first action was commenced on 8 January 1999. Disability 19.The plaintiff in his first action alleges breaches of the following provisions of the Ordinance:
20.He must therefore first prove on the balance of probabilities that he was a "person with a disability". If he cannot prove it, there is no basis at least for the first action. He says that he was, and that his disability was caused by his accident. The defendants, of course, have put him to strict proof of the accident. So the first issue for decision is whether or not he had the accident, as he says. 21.The plaintiff's evidence is that he was walking out of his office, along a corridor between low partitions when he tripped over a cardboard box on the floor. He fell and his head hit the floor. He felt severe pain and blacked out. He could not articulate at first but then called out and a cleaner named "Hing Jie" came to help him; she escorted him out of the office, to a taxi, in which he went to hospital. He was feeling pain in his head and neck, waist and left leg from the knee to the heel. He went to the Hong Kong Sanatorium and Hospital, where he was treated by Dr. Victor Goh; he was admitted there until 26 May 1998. 22.The plaintiff was cross-examined minutely. From his answers, it appears that he had gone into his office, and had seen the cardboard box on the way in. He had come out, in a hurry to find Hing Jie; and because of his hurry he had fallen over the box. He could not remember if he had put his hands out to save himself, but thought not because he had been carrying a mug. Various discrepancies between what his statement and what he had said when he had given his medical history were addressed, and answered, it must be said, not very well. 23.There was no evidence from the cleaner, "Hing Jie" (Siu Yunhing), who was ill at the time of the trial, but her statement is before the court by agreement. She says that she heard a cry, and then found the plaintiff sitting on the floor. He had a bruise on his forehead. Ms. Shirley Chan Wai Ching, who was then a Senior Equal Opportunities Officer, said that when she came to the office, and Hing Jie let her in, she found that the plaintiff was there before her. This was unusual. In any event, about 15 minutes later she heard Hing Jie calling that someone had fallen; she and Hing Jie went to the scene where they found the plaintiff sitting on the floor with his head resting on his arm and his arm resting on a cardboard box. There were two such boxes on the floor and he said something about them causing trouble. She went to get some medicine from the first-aid cabinet, and when she came back the plaintiff told her that he was dizzy and would go and see a doctor. He and Hing Jie went off together. Ms. Chan did not know if the plaintiff had had any bruise on his head; he had had his hand over his forehead at all times. 24.The hospital notes appear to show that the plaintiff was seen at about 10 a.m. However, he returned to the office. He was due to attend an interview that afternoon at 2.30 p.m. at the office of Mrs. Ho, by an investigation panel investigating a complaint of sexual harassment made against him by another officer. He attended that interview, with a solicitor and a barrister and it was postponed; partly, as appears from the evidence of Mrs. Ho, because of the presence of lawyers, and partly because he had had the accident that morning. Mr. Tong, who saw him at that time, said in cross-examination that the plaintiff appeared to have a red mark on his forehead. 25.The plaintiff, when he was seen at the hospital, complained of a blow to the head with redness to the forehead, though there is no note of any physical sign of injury. There is no mention in Dr. Goh's notes of impairment of consciousness. He was sent for a brain scan. The report shows a normal non-contrast brain scan and a small soft tissue haematoma over the right frontal bone. He was also complaining of difficulty in movement of the back and left knee though there appears to be some uncertainty as to whether his complaints related to the knee or the ankle. There were various other discrepancies in what the plaintiff reported, at different times and to different doctors. He was sent for skull and knee X-rays which were found normal. 26.It is argued very strongly for the defendants that the plaintiff's evidence of the accident should not be believed; that he was prone to mendacity at worst and exaggeration at best, and that his evidence on any issue should not be accepted without independent confirmation. Generally, he was an unimpressive witness. He was certainly prone to exaggeration. Overall he was much shaken, indeed at some points demolished in cross-examination; I will return to this as necessary later on. Certainly, the circumstances of the accident are improbable; if he knew the box or boxes were on the floor it is surprising that he should have tripped over them. Certainly he gave slightly different details to doctors and physiotherapists at different times. Certainly there is a large question mark over why such an apparently trivial accident should have given rise to the plaintiff's claims of disability, though that is not necessarily something which goes to whether there was an accident in the first place, but rather to whether the plaintiff later exaggerated the effects of it. It is also true that the accident happened at a fortuitous time for the plaintiff; it contributed at least to the postponement of the investigation which he had to undergo that day, though to be fair it seems likely that the presence of lawyers was rather more important. However it is impossible to disregard the evidence of Ms. Chan and the statement of the cleaner, who found the plaintiff on the floor. It is impossible to disregard the medical report which shows the soft tissue haematoma on the forehead. On the narrow issue of whether or not the plaintiff had the accident, there is sufficient independent confirmation for me to be satisfied on the balance of probabilities that he did, and I so find. 27.The next question is whether the plaintiff as a result of the accident became a person with a disability for the purposes of the DDO. The relevant parts of section 2, the definition section, read as follows:
28.The plaintiff was seen by Dr. Victor Goh when he first attended the hospital. Dr. Goh issued the following sick leave certificates:
29.He later consulted Dr. Ip Yan Ming, a psychiatrist, who issued the following sick leave certificates:
30.It appears from evidence that he does not claim any pre-existing disability before 22 May, nor does he claim that his disability extended beyond 24 December 1998 though he was on sick leave after that until his return to work, and on various occasions thereafter. 31.Dr. Goh's notes and the hospital notes show, in addition to what I have noted above, that the plaintiff was apparently in a wheelchair when first seen but he was able to walk unaided on 24 May. He had home leave on 24 and 25 May before being discharged on 26 May. The notes do not show any other physical or psychological complaints, though physiotherapist's notes on 25 May show that he the plaintiff was complaining of thigh pain, backache, neck pain, headache and high irritability. 32.The plaintiff was seen by Dr. Jason K. Y. Fong at the instance of the defendants on 18 June 1998. Dr. Fong took the plaintiff's history but it appears that he did not have the benefit of seeing any earlier medical notes. He recorded that he was told that the plaintiff had fallen and had lost consciousness for a brief period, that he had been wheelchair-bound during the initial few days of hospitalisation, but could walk slowly after receiving physiotherapy training. He was also told that the plaintiff's daily activities were grossly restricted by his headache, spinal and limb pains. He went on to record:
33.The plaintiff was seen, again at the instance of the defendants, by Dr. Yu Yuk Ling, a neurologist, on 26 August 1998. He was given the plaintiff's job description so that he could assess the plaintiff's fitness for duty. Dr. Yu took the plaintiff's history but apparently did not see earlier medical notes. The history was fuller than Dr. Fong's. He was told that the plaintiff did not lose consciousness and had full recollection of events, which is not what Dr. Fong was told. He carried out a Mini Mental State Examination, in which the plaintiff scored the full 30 points, and found on examination that the plaintiff's cranial nerves were normal; the motor functions of the upper and lower limbs were normal; the gait was normal; the tendon reflexes were normal with flexor plantar response, and all sensations were intact. He gave the following as his opinion:
34.The plaintiff was examined by Professor Felice Lieh Mak, a psychiatrist, on 26 April 2002. She had the benefit of the hospital notes and the consultation notes of the other doctors as well as Dr. Yu's report. I reproduce her conclusions below:
35.There is no evidence from Dr. Goh, but from his notes and the nursing records, as well as the evidence of witnesses who saw him contemporaneously, it does not seem that there was much wrong with the plaintiff. Indeed one wonders why, if he was able to have home leave, he was in hospital for as much as five days. It appears that the plaintiff exaggerated his condition at that time, both to Dr. Fong and to Dr. Yu in giving them his medical history. Dr. Fong was given to understand that he was wheelchair-bound, which he was not; and that he lost consciousness; which he did not. He probably also exaggerated his current symptoms. Indeed Dr. Fong recognized that there was exaggeration due to concomitant anxiety and depression. 36.The defendants argue that the court is not obliged to accept the medical certificates or reports if the evidence on the basis of which the doctors have formed their opinion is rejected. See the obiter dictum of Pill LJ in Kapadia v London Borough of Lambeth, (2000) 57 BMLR 170 at 176:
37.This was prayed in aid of the argument that if I did not believe that there had been an accident, I should find that there was no disability. It still applies even though I have found that there was an accident. It seems obvious that if the plaintiff exaggerated his symptoms in giving his medical history, and I am satisfied that he did, any opinion based on them must be looked at in the light of that exaggeration. However, a doctor has to make his diagnosis on the basis of both physical signs as well as reported symptoms. Certainly Dr. Fong found physical signs such as hyperreflexia and diminished sensation though Dr. Yu seems to have found little except mild limitation of movement of the neck and back. 38.I have some difficulty with the diagnosis of post-concussional syndrome which is the only mental disease or disorder pleaded. For a start, there is no evidence in the contemporaneous notes of any diagnosis of concussion. Dr. Fong and Dr. Yu seem to have based their diagnosis largely on the plaintiff's exaggerated history. But I am not here concerned to decide whether a particular diagnosis was correct or not. The definition in section 2 seems to allow for any partial loss of bodily or mental function, however insubstantial and however temporary, to be regarded as a disability. Further, the origin of the loss of function seems to be irrelevant. So, if the doctors found a loss of bodily or mental function it would follow that for the purposes of the DDO there was a disability. Alternatively, if the doctors found a disorder, illness or disease that affected the plaintiff's thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour it would follow that there was a disability. 39.Dr. Fong appears to have found some loss of physical function. He said that due to chronic pain, the plaintiff's working capacity was severely limited. Professor Lieh Mak accepted that the plaintiff might have suffered from chronic pain syndrome, though mildly. It seems to me that that what Dr. Fong found would be sufficient to come within the wide definition of disability which includes a loss of physical function. 40.Dr. Yu however does not seem to have found anything physically wrong with the plaintiff other than mild limitation of neck and low back movement. Nor indeed did he find anything wrong with the plaintiff's mental functions. However he found depression, which he referred to as a psychiatric disturbance. He said that it was the depression, rather than the post-concussional syndrome, which kept the plaintiff from going back to work. Dr. Fong also mentioned depression; and Professor Lieh Mak seems to have accepted, on the basis of Dr. Ip's notes, that the plaintiff had a depressive disorder though the cause and date of onset were unclear. 41.It is argued that a loose description of depression, anxiety or stress even used by medical men in their notes without explanation is not sufficient. See Morgan v Staffordshire University [2002] ICR 475. That case is not of much assistance here, because the United Kingdom regime is different; what a plaintiff must do there, under the relevant statute, is prove a "physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". 42.Of more assistance, perhaps is the Australian case cited by the defendant, Oreb v Discovery Clothing Co. Pty Ltd. [2001] NSWADT 48 because the Hong Kong definition of disability is very close to that contained in the New South Wales Anti-Discrimination Act. In that case it was held that a tribunal would need expert evidence of the affect on a person of panic disorder and psychiatric distress, in order to decide whether the symptoms complained of amounted to a disability which "affects a person's thought processes, perception of reality, emotions or judgment". 43.Dr. Fong says that the "concomitant anxiety and depression" affected the plaintiff by making him exaggerate his symptoms; that would, I think, mean that his perception of reality or his emotions or both were affected. Dr. Yu says that the depression affected the recovery process of the post-concussional syndrome. Again I think it must be taken that this means that it affected his thought processes or emotions to some degree, however minor. In any event I do not think expert evidence is needed to prove that clinical depression affects the sufferer's emotions. 44.As I have indicated the definition of disability is very wide. Just about anything will do. The loss of function or the effect of the disorder on thought processes or emotions need not be substantial or long-term. The way is open for claims based on minor and temporary disability which a really disabled person, such as a paraplegic, would no doubt find ludicrous; but that is the way the legislation is drawn. It seems to me that I can be satisfied that the plaintiff suffered from a disability in the beginning in the form of some mild physical loss of function which probably did not last until he saw Dr. Yu. He suffered from disability in the form of depression which does not seem to have manifested itself before he saw Dr. Fong but which continued until December 1998. Discrimination 45.For the purposes of section 11(2) the plaintiff, having proved that he was a person with a disability, will have to prove that the acts complained of amounted to discrimination. It will be necessary to examine the various acts, but it appears that none of them comes within the specific matters set out in the subsection. The plaintiff's case is that they come within the wide alternatives of not affording him access to "any other benefit, service or facility", or subjecting him to "any other detriment." 46.In this connection I note at this point that, as with everything else in this field, the definition of "detriment" is a wide one. The defendant argues that an emotional sense of grievance is not enough; see; there must be some material and substantial physical or economic consequence as a result of discrimination to constitute a detriment; see Shamoon v. Chief Constable of the Royal Ulster Constabulary [2001] IRLR 520; Lord Chancellor and Lord Chancellor's Dept v. Coker and Osamor [2001] IRLR 116 and Barclays Bank v Kapur (No. 2) [1995] IRLR 87. However in Chief Constable of West Yorkshire Police v Khan [2001] WLR 1947 (HL)E) Lord Hoffman at 1959-60 followed a dictum of Brightman LJ in Ministry of Defence v Jeremiah [1980] QB 47 that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment." Given that section 72(5) of the DDO specifically declares that the court can award damages for injury to feelings I think that the latter decision is to be followed here. 47.Then the plaintiff has to show that the act complained of amounted to discrimination. Section 6 of the DDO provides
48.The plaintiff must show for discrimination that the less favourable treatment was "on the ground of" the disability (section 6). For the purposes of harassment he must show that the unwelcome conduct was "on account of" the disability (section 2(6)). These words I think mean the same thing in both cases; but they give rise to some difficulty. The defendant argues that the plaintiff must prove a causal link between the disability and the less favourable treatment; see Driver, Federal Magistrate, in Chung v University of Sydney [2001] FMCA 94, affirmed on appeal by Spender J at [2002] FCA 186 where it is stated:
49.The parties are agreed that the "but for" test applies in discrimination cases; see Secretary for Justice v. Chan Wah, [2000] 4 HKC 428, following James v Eastleigh Borough Council [1990] 2AC 751. The motive of the discriminator (or harasser) is irrelevant; the test is an objective one. The plaintiff refers to the following passage by Toohey J in IW v City of Perth [1996-97] 191 CLR 1 (at 32)
50.So the disability, in this case, must be causative of the less favourable treatment or unwelcome treatment, if any. It must be at least one of the causes, if there are more than one. Section 3 of the DDO provides:
51.The defendant submits that where there are concurrent causes, if the disability of the aggrieved person is just a background and not one of the activating or effective causes he still fails to prove his case; see Seide v Gillette Industries [1980] IRLR 427. This was a case under the Race Relations Act 1976; the issue was whether the employer had treated the employee, on racial grounds, less favourably than it had treated or would treat other persons. At page 431 Slynn J said:
52.This judgment is of assistance because the discrimination provisions of the DDO follow closely the racial provisions of the Race Relations Act. The prohibition is against the employer treating, in the one case on disability grounds, and in the other on racial grounds, an employee less favourably than it treated or would treat another person. It draws the distinction well known in the law of tort between the causa causans or operative cause and thecausa sine qua non, or background cause. 53.Section 3 causes difficulty, however. It mentions disability as a reason for an act, rather than an act being done "on the ground of" or "on account of" disability. It seems to open the way to consideration of an employer's intentions which are, on the authorities, irrelevant. It is probably intended to deal with the situation where, for example, a disabled person is made redundant and chosen for redundancy because he is disabled. But it would not follow that because disability is present, it must be one of the reasons for the employer's action. The plaintiff in such a case would have to show that his disability was at least one of the reasons for making him redundant, i.e. one of the activating causes of the employer's decision. I do not think that section 3 can be intended to provide that in any case where disability is a causa sine qua non it should be taken as the causa causans. In effect it would produce an irrebuttable presumption that any action taken in respect of a disabled employee was caused by his disability. That would produce absurdity. The Comparator 54.Section 8 provides:
55.One cannot discriminate in a vacuum. The purpose of the legislation is not, as the plaintiff seems to have been arguing, to make employers sympathetic or supportive to employees who suffer or claim to suffer from disability, but to make them treat them no less favourably than they do their employees who suffer from none. There must be a comparator. See Ma Bik Yung v. Ko Chuen [2001] 1 HKC 745. 56.There is no direct comparator in this case. Section 6 allows for a hypothetical comparator. The defendant submits that the proper hypothetical comparator for the first action is someone who:
57.The plaintiff contends that this is not correct and has too many irrelevant features, particularly the third one. He also says that the EOC itself has interpreted the words in section 6 as if the comparison were with a person "without that other person's disability". 58.I find this difficult. The section is totally unlike that in the relevant U.K. legislation which provides at section 5:
59.Nor is it like the more similar New South Wales legislation, which provides (by section 49B(1)(a)) that a person discriminates directly against another person
60.So the cases from both those jurisdictions are of little assistance. 61.Section 6 seems to require that the comparator be a person without a disability, i.e. with no disability. There seems to be no room for a comparator with a different disability. If this is right, it is simply impossible to find a comparator for the plaintiff. In the case of a person with no disability, there would never be any reason to call for him to be medically examined whether under section 16 of the ECO or the contractual provisions relating to sick leave. Any person in the same circumstances as the plaintiff, or circumstances which were not materially different would have to be on sick leave. The definition of disability is so wide, or so it seems to me, that if one is sick at all one must have some kind of partial loss of function, and therefore be disabled. 62.If I am wrong in this, however, the requirement remains that the circumstances must be the same, or not materially different in both cases. I think it must be right that any comparator would at least be one who had had a work accident which was on the face of it minor, or suffered from an illness which was on the face of it minor, and be on prolonged sick leave with no clear indication of when he would be returning to work. There is simply no evidence of any such comparator. It is true that the plaintiff points to certain persons who, he says, were on prolonged sick leave and were never queried about it; but there is no evidence as to their reasons for being on sick leave. Further, there is no evidence as to what attitude the EOC or the other defendants might have taken in such a case. 63.For these reasons it seems to me that there is no room in this case for any finding of discrimination, because there is no room for any finding of a proper hypothetical comparator and no evidence of how the employer would have treated that comparator. However, in case this is an erroneous view I will consider each complaint in turn as to discrimination as well as harassment or, in the second action, victimisation. Harassment 64.Section 2(6) of the DDO provides:
65.There are two tests for harassment, the subjective and the objective. The plaintiff has to prove that the conduct complained of was unwelcome to him, and also that a reasonable person having regard to all the circumstances would have anticipated that he would be offended, humiliated or intimidated by it. Again, the unwelcome conduct must be "on account of" the disability. I have dealt with this above. The Specific Complaints 66.The first of these relates to the examination by Dr. Fong. It is twofold; the first part is that Mr. Chan requested the plaintiff to undergo it; the second is that his request for an alternative date for examination was refused. On the latter point there is a dispute of fact. 67.The plaintiff says that on 16 June 1998 Mr. Tong telephoned him and instructed him to undergo the medical examination; and that a letter was to be delivered. Mr. Tong said that Mrs. Ho was unhappy about the extension of sick leave. He received the letter the same day, and telephoned Ms. Loretta Tang of the EOC to ask her for an alternative appointment to be arranged, because he needed someone to go with him to the examination. Ms. Tang refused, and told him that the date had been decided by Mrs. Ho and could not be changed. He spoke to Mr. S. C. Tsang on 17 June again asking for a change of appointment, for the same reason; and Mr. Tsang also told him that the appointment could not be changed. 68.Ms. Tang's evidence is quite simply that she was never asked to change the appointment. On 16 June, she telephoned the plaintiff to check his address so that the letter could be delivered to him; he said he would be out, and the letter should be left in his mail box. Later the plaintiff asked for a copy of the letter to be sent by fax to his mobile number, calls to which were diverted to a friend's fax machine; and this was done. That was the sum total of her involvement with the plaintiff over this particular matter. 69.Mrs. Ho likewise denies having instructed anyone to that the appointment could not be changed if necessary. Mr. Tong says that he did indeed speak to the plaintiff on the telephone about the medical examination and the defendant simply told him that he would attend it. I leave aside the affirmation of Mr. Tsang which is not strictly admissible and which is in any event of little value. 70.I have heard the plaintiff's evidence and have already commented on it. I do not see any good reason why the Mrs. Ho or her subordinates should have taken the attitude, at that stage, that the plaintiff should not change his medical appointment. No doubt they were sceptical of his claims; they became so, or more so, at varying stages, and in my view, having seen the medical evidence, they had every right to be so. But the point is, at that stage, there was no reason for the plaintiff not to be allowed to change his appointment if he wished. Having heard the witnesses I prefer Ms. Tang to the plaintiff. I do not believe that the plaintiff was refused a change of appointment. 71.The plaintiff claimed that the fact of being required to undergo Dr. Fong's examination was detrimental. It was discriminatory and harassing. His view was that he should never have been asked to undergo it, so long as he was putting in sick leave certificates from Dr. Goh. However this stance rather softened under cross-examination. His complaint seemed rather to be that he was given short notice and had difficulty. The defendants say that it was perfectly legitimate, in terms of section 10 and section 16 of the ECO. 72.The relevant sections of the ECO provide:
73.Although the plaintiff had accepted under cross-examination that the defendants were entitled in terms of the ECO to have him examined by Dr. Fong it was argued on his behalf that the defendants did not have the statutory power to request medical examinations, because of the provisions of section 10 itself. If he was receiving periodical payments under the ECO, under section 10(2) a period of absence covered by a doctor's certificate is deemed a period of absence from temporary incapacity. It is not open to the employer to ask the employee to undergo a medical examination under section 16 for the purpose of determining whether or not periodical payments are to be made for that period. The only legitimate purpose for such examination would be for the purposes of assessing what the employee was capable of earning, in some suitable employment or business during the period of the temporary incapacity. 74.With respect, I do not accept this interpretation. If it is right, it means that the employer can look no further than the sick leave certificate. Section 16 is otiose. That cannot be right. Quite apart from that, in practice a sick leave certificate may be based on no great incapacity, depending on the attitude of the doctor, who may find it easier to issue the certificate and get an argumentative patient out of his surgery, than to go on listening to his complaints. It seems to me that the effect of subsections (2) and (6) is quite simply that where the employee has a sick leave certificate from a doctor, he is deemed to be totally incapacitated and so entitled to a flat four fifths of his monthly earnings; but this is a deeming provision rebuttable by medical evidence to the contrary. Certainly that is how it is treated in employee's compensation claims. 75.It is also argued that the plaintiff was contractually entitled to his full salary, as sick pay, so long as he produced a sick leave certificate. I have reproduced above the contractual provisions. He "may be granted" sick leave. He "is entitled to" compensation under the ECO. There is no reason why the defendant in this case should not look behind the sick leave certificate of the plaintiff's own doctor, for sick leave purposes; and equally there is no reason why the defendant should not avail itself of section 16. There is also the perfectly understandable requirement of finding out, for operational reasons, when an employee is likely to be able to return to work. Sick leave certificates simply do not show that; they only show the diagnosis and not the prognosis. 76.In my view therefore there was nothing detrimental to the plaintiff in being required to undergo Dr. Fong's examination. In fact he underwent it. He had, apparently, no trouble in getting to it. He says he was accompanied to it; but it does not appear that whoever accompanied him went into the consulting room with him. His complaints of short notice and the like are met with Mr. Grossman's oft-repeated rhetorical question of "So what?" and with that I entirely agree. 77.If there was no detriment there could be no discrimination. In any event, as I have indicated, there is no comparator, or even notional comparator, in sufficient close circumstances. One could not take a person who was not off work because of illness or accident; such a person would not be required to undergo medical examination anyway. There is no evidence of what might have happened in the similar circumstances of a person, off work for a relatively long period for an injury which appeared to the employer on good grounds to be minor but it is not unreasonable to suppose that if the defendants had been faced with such a person, they would have taken the same approach. 78.Apart from that it is difficult to see how the disability was the activating or effective cause of the plaintiff's being required to undergo the medical examination. No doubt the defendants were asking themselves, how did a "head contusion" blossom into "multiple contusions" and diversify into "multiple sprains"? The disability was no doubt in the background; but it seems to me that the activating or effective cause was not the disability but the difference between the apparent insignificance of the injury, the long period of sick leave, and the content of the certificates themselves. 79.As to harassment, no doubt the plaintiff found it unwelcome that he should be medically examined. He said in cross-examination that while he did not object to the examination itself, the way that he was told to attend it was harassment. I do not believe that he was refused a change of appointment. So far as he was told to attend it at two days notice, I do not see that a reasonable person knowing all the circumstances would have anticipated that he would be offended, humiliated or intimidated by that. 80.The second incident complained of is the late payment of salary and allowance. There was a late payment. Section 10 specifically provides for payment of periodical payments on the normal pay day. There is no doubt a detriment, if a small one; damages, if payable would probably be based on 5 days' interest on the periodic payment element of what was received. Mr. Chan seems to have accepted in cross-examination that there was no particularly good reason for taking the plaintiff off the auto-pay list and no particularly good reason why he could not have been put back on it in time. The whole thing smacks at least of a rather cavalier bureaucratic approach. It is not to the defendants' credit. But again, so far as discrimination is concerned it is subject to the same difficulty as before. There is no comparator and no way of knowing what the defendants would have done in a comparable case. Given the cavalier bureaucratic approach, if they had been faced with another officer off work for a relatively long time for what appeared to be a relatively minor injury, they would probably have done the same thing. 81.Was this harassment? It was no doubt unwelcome behaviour. No one wants to receive his salary even a few days late; there are all sorts of bills to meet at the end of the month. I can see that a reasonable person, knowing the circumstances, would have anticipated that it would inconvenience and annoy the plaintiff but hardly that it would offend, humiliate or intimidate him. 82.As to whether the disability was the effective cause of the defendants' actions, the same difficulty applies as before. To say that they paid him late because he was disabled is palpable nonsense. If we ask the simple question, why did they pay him late, there are various possible answers; they were suspicious and sceptical as they had, in my view, every right to be; they expected Dr. Fong to confirm their suspicions, even though they are not prepared now to admit that; but to say that they paid him late because he was disabled, or that but for his disability he would not have been paid late does not follow. 83.The third complaint is that by a letter dated 23 July 1998 Mr. Chan requested the plaintiff's consent for the second time for access to the plaintiff's doctor, Dr. Goh. The plaintiff was given only two days to respond, and was told that if he did not respond his consent would be presumed. 84.As I have indicated, what happened here is that a letter was sent to the plaintiff asking for access to Dr. Goh for "the latest conditions relating to your injury, the treatment that he is giving you, his prognosis of your conditions as well as when you are expected to be able to resume duty again." One would have thought this was an entirely reasonable request apart perhaps from the treatment given, which the defendants did not need to know. Perhaps there was an element of nosiness on that; but it was reasonable enough for them to want to know the prognosis and when the plaintiff would go back to work. The plaintiff however did not provide that. He wrote back himself. Not surprisingly the defendants wanted Dr. Goh's professional opinion and that is the reason given in the text of the second letter. 85.The plaintiff complains that he was given only two days to respond. Again, we are looking at bureaucratic high-handedness here though anyone who is in the public service knows that asking for a reply within a given period is nowadays the norm. He also complains that he was told that if he did not consent, consent would be presumed. Again, this sort of thing is no doubt annoying. But the plaintiff is a grown man, formerly a fairly senior officer in the police force, and a solicitor. He might have been depressed but there is no evidence that he was incapable of functioning normally and writing letters. He was quite capable of writing back that he did not give his consent and the defendants had no right to presume it. He has held himself out in evidence as being afraid to, or inhibited from going against his employer but given his own past record this is not believable. 86.This complaint is the sort of thing which unfortunately rather obscures this case and has led Mr. Grossman SC to ask "So what?" and myself to characterise some of the complaints as "whingeing". It is impossible in my view to see where the detriment lies. Granted that the law on discrimination and harassment is cast so wide that almost any minor ailment can be regarded as disability and almost any pin-prick as a detriment one has to draw the line somewhere. It does not help the plaintiff's case that he has included such minor matters as this; it obscures the court's task of looking to see if there is some claim with real merit in it. 87.In any event, to go through the criteria, there is no real detriment here. There is no evidence of a comparator, or whether or not the defendants would have treated a notional comparator more favourably in similar circumstances. The effective cause of this letter was obviously not the disability; it was the plaintiff's own avoidance of the issue raised in the first letter. While it might have been unwelcome behaviour no reasonable person would anticipate that it would offend, intimidate or humiliate. 88.The fourth complaint is that the defendants gave personal confidential information of the plaintiff to the Labour Department, so that an officer of that department telephoned him to pressurise him to undergo another medical examination. As I indicated in court, the "personal confidential information" consisted of the plaintiff's telephone numbers and I have great difficulty in understanding where the fault lies in giving out a number which can be obtained by looking up the telephone directory. In any event the plaintiff in cross-examination said that he would "withdraw this aspect of the complaint". The more important aspect of it is that of causing an officer of the Labour Department to contact the plaintiff for the defendant's purposes. 89.There are before me some file notes of the Labour Department. They have had the names edited out but there seems to be no dispute that the officer of the EOC who contacted the Labour Department in this connection was Mr. S. C. Tsang. The first note shows that the Labour Department officer telephoned the plaintiff's number of 27 July 1998 and was told that he was on leave and would return to Hong Kong in early August. Then on 28 August Mr. Tsang "requested us to contact the [plaintiff] for assessment. [He] mentioned that the loss adjuster from the insurer would like to arrange a medical assessment for [the plaintiff]. [He] provided us with the contact method of [the plaintiff]. [telephone numbers]." The Labour Department officer attempted to contact the plaintiff on the same day and was told that he was out. The officer gave the number of [presumably Mr. Tsang] and asked the person who answered the call to ask the plaintiff to contact him direct. The next note of any significance comes on 29 September when the plaintiff "informed me that the employer requested him to attend medical assessment frequently. He enquired whether the employer had the right to do so. I related section 16 to him. He showed understanding." 90.The plaintiff's evidence on this is that Ms. Lam of the Labour Department called his number. His wife took the call. She later told the plaintiff that Ms. Lam was looking for him because Mr. Tsang had asked Ms. Lam to help the EOC in calling him up for another urgent medical examination. Ms. Lam had explained to the plaintiff's wife that it was private assistance rendered to the EOC and not connected with the employee's compensation case which Ms. Lam was handling. Ms. Lam wanted to make it clear that the medical examination was not connected with that case or with the Labour Department. Since Mr. Chan and Mrs. Ho had worked for the Labour Department before, it was purely a courtesy help to the EOC. 91.Unfortunately, neither the plaintiff's wife nor Ms. Lam has given evidence. Nor has Mr. Tsang and I accept that there are in the documents under his name matters which suggest that what he has written should not be taken as reliable. There is only the plaintiff's hearsay as to what was actually said, and given his shortcomings as a witness it is difficult to rely on that. The medical examination by Dr. Yu had not yet been instructed; that happened on 4 August, so it is difficult to see what "urgent medical examination" might have been in contemplation. However on 28 July the loss adjusters, Lawrence and Wong Ltd. wrote to the EOC to the effect that they intended to make a site investigation and interview the plaintiff to establish the circumstance of his injury and progress of medical treatment. I am not in a position to make any finding other than what appears from the documents here. I am left quite simply with Ms. Lam's note that Mr. Tsang told her that the loss adjuster wanted to arrange a medical assessment and asked her to contact the plaintiff; she tried to do so, and got someone, presumably the plaintiff's wife, whom she asked to tell the plaintiff to contact Mr. Tsang. 92.There is evidence that, at this stage, the plaintiff was difficult to contact. Ms. Loretta Tang says that she sent an office assistant, one Sara Lam, to deliver to the plaintiff's home the letter of 23 July 1998 asking for the plaintiff's consent for access to his doctor. The door was answered by a woman who said that she did not know the plaintiff, that she had been living there since September 1997 and the plaintiff was not her landlord. The letter was left in the mail box, and it appears from the plaintiff's evidence that he must have received it, though another copy sent by registered mail was returned unclaimed. Attempts to contact him by telephone also failed; his home number was locked and required the input of an identification number (PIN) to get through. The plaintiff's explanations under cross-examination were somewhat less than helpful. These difficulties led the EOC to write to the Post Office to attempt to get the PIN removed, and also to obtain a land search of the property to find out who the owner was. Those actions have come in for some criticism as harassing though they are not specifically pleaded. However I think it is necessary to look at the defendants' actions, particularly those pleaded as a matter of complaint, i.e. the dealings with the Labour Department, in the light of the difficulties they were having in getting through to the plaintiff. 93.So far as this head of complaint goes, when one looks for discrimination the same problems arise. The effective cause of the defendants' actions was not the disability; if anything it was the plaintiff's own lack of co-operation; something which he also showed, if later on, towards the loss adjuster. There is no evidence that they would have acted any differently towards a notional comparator. As to harassment, I do not see that any reasonable person would anticipate that the action of seeking the assistance of the Labour Department, or the actions carried out by that department's officer in contacting the plaintiff and asking him to contact his own employer, would offend, intimidate or humiliate anyone. 94.The next head of complaint relates to the letter of 4 August 1998 asking the plaintiff to attend for medical examination by Dr. Yu. It is not particularly clear why the defendants did not go back to Dr. Fong for a more detailed prognosis, and some indication of when the plaintiff would be able to return to work, but in any event they did not. Apparently Mr. Chan found Dr. Yu, after consulting other doctors; he said he was looking for an experienced neurologist. It was of course put to him, and he denied it, that he was looking for a doctor who was good at identifying malingerers. It was, indeed, also put to Mrs. Ho, who denied it, that the EOC, not having got the answer they wanted from Dr. Fong, chose another doctor in the hope that he would produce it. All this is, I think, irrelevant given the fact that, on the authorities, motive is irrelevant. Nor indeed would it be surprising if the plaintiffs had suspected malingering or been sceptical of the plaintiff's claims. In any event, I cannot understand why scepticism should be put forward as a fault; I would have thought it the duty of any public servant to apply a degree of scepticism to another officer's claims. 95.In any event, it is very difficult to see what detriment to the plaintiff lay in his being sent to a different doctor, for a second opinion, in circumstances where the first doctor had simply not given any indication of the likely period of inability to work. In fact the plaintiff was constrained under cross-examination largely to accept this; at any rate he accepted that looking back, and having isolated the circumstances, the request for a second opinion was reasonable. 96.It is argued that the very fact of requiring further or repeated medical examinations was itself detrimental. I think the answer to this is quite simple. A further examination was needed because Dr. Fong did not indicate how long the plaintiff was likely to be off work. A further examination by a psychiatrist, after the examination by Dr. Yu, was necessary precisely because Dr. Yu recommended it. 97.Applying the criteria, it appears that there was no real detriment and the effective cause was not the disability. Leaving aside the matter of the lack of any comparator, discrimination is not proved in respect of this complaint. So far as harassment was concerned, again I do not see that any reasonable person would anticipate that the action of seeking the opinion of a second specialist would in the circumstances offend, intimidate or humiliate anyone. 98.The next complaint relates to the communication between the EOC and Dr. Yu; the content of the letter of 4 August 1998. It is another multiple complaint but it seems to boil down to three points. The first is that Mr. Chan asked Dr. Yu whether a neuro-psychological assessment would be appropriate. The second is that the plaintiff was not given a copy of the letter until 8 September 1998, despite having requested it in a letter dated 13 August. The third relates to the refusal by the solicitors to comment on a request for information in particular about the source of the suggestion of a neuro-psychological assessment. It is complained that the defendants were in breach of data protection principles under the Personal Data (Privacy) Ordinance. 99.In fact, it was Dr. Cheung who suggested to Mr. Chan that Dr. Yu be asked if a neuro-psychological assessment would be appropriate. Dr. Cheung is herself a psychologist. She believed it would be relevant because, as she put it (my note):
100.Dr. Cheung also said that the assessment is commonly used in head injury cases, and has been over the past ten years in Hong Kong. She said that she had an open mind and wanted to know if the plaintiff had cognitive deficits so that she would know how best he could be treated. She also said that malingering was a possibility and the assessment could be expected to show it. 101.In fact the plaintiff never underwent such an assessment. Dr. Yu replied to Mr. Chan that he would see plaintiff first before deciding whether it was necessary. He did not carry it out, or make arrangements to carry it out. The plaintiff says that he was upset when he found out about the suggestion. It scared him; he felt like "a guinea-pig being tested." But it also appears that he "had no idea what it meant." 102.I cannot see how Mr. Chan's asking Dr. Yu if a neuro-psychological assessment, or any other test, was appropriate could be a detriment for the purposes of section 11 of the DDO. It never happened. If it had happened, it would hardly have been detrimental. So leaving aside the rest of the criteria there is simply no basis for a finding of discrimination here. So far as harassment goes, again I cannot see it. The suggestion was in any event not aimed directly at the plaintiff; the letter was addressed to Dr. Yu. That only came to the plaintiff because he requested it. The plaintiff did not, it appears, know what the assessment was so it is hard to see why he should have found it so frightening. He is an educated man and it should have been easy enough for him to find out. I cannot in any event see how a reasonable person knowing all the circumstances could anticipate that the suggestion could ever be expected to offend, intimidate or humiliate the plaintiff. 103.So far as the alleged failure to provide information in breach of data protection principles is concerned, I do not think it is necessary or desirable for me to consider the PDPO or whether there was any breach of it in this particular connection. It is not in dispute that the EOC was held to be in breach of Principle 5, in not having a written policy but that is not relevant to this issue. I am concerned with discrimination and harassment on the facts and not with whether some other Ordinance has been breached. But in any event, the plaintiff's letter of 13 August was not a data request as defined but a request for information, which in fact the plaintiff conceded in cross-examination. 104.The delay is, frankly, nothing special. The plaintiff wrote on 13 August. He got an answer dated 8 September. I cannot see where the detriment lies. I cannot see that the disability could have been the effective cause of the delay. As to whether the delay might have been anticipated to offend, intimidate or humiliate, again it could not. At most it could be anticipated to annoy. That is not the same thing. This is another of the plaintiff's insubstantial complaints. As to the complaint about the correspondence between solicitors this does not seem to have been relied on in argument and in any event it is well outside the field of possible employer-employee discrimination or harassment. 105.The PDPO is also referred to in the ninth head of complaint, namely that the defendants having requested examination by three doctors for the purpose of collection of his personal medical data, failed to give him information in that connection to which he was entitled under the PDPO. I think the short answer to this is, they did not. He asked for, and got the medical reports. If there was a delay there was no detriment and he was subjected to no more than annoyance. 106.The next complaint relates to the requested appointment with Professor Felice Lieh Mak. The complaint is twofold, the first part being that though the plaintiff's wife had refixed the original appointment to 27 October 1998, Mr. Chan on 24 September arbitrarily directed the plaintiff to undergo the examination on 30 September and threatened that if he did not, his entitlement to compensation would be suspended. The second part of the complaint is that the examination was in any event unnecessary. 107.The plaintiff says that his wife contacted Professor Lieh Mak's secretary on his behalf and told that the appointment already made on 23 September was not suitable. She was offered an appointment on 25 September but again the wife said that it was unsuitable and asked for an appointment in the following week. She was then told that the Professor would be going away on a trip, and the appointment was arranged for 27 October. Unfortunately, there is no evidence from the plaintiff's wife or indeed from the Professor's secretary. It is argued that the defendants did not call direct admissible evidence to contradict the plaintiff's allegation but it must be remembered that the onus is on the plaintiff to prove what he alleges. 108.Mr. Chan's evidence in his statement is that he did not know anything about an appointment on 26 October. If he had, he would have made a record of it and mentioned it in his letter of 24 September. However, in an earlier affirmation he had written, concerning the proposed appointment on 25 September, "However, apparently this did not suit the plaintiff's wife and the medical examination was put back to 27 October 1998, more than one month later." Mr. Chan's explanation of this in cross-examination was that what was written was an assumption based on what the plaintiff's lawyers had claimed and that he himself did not know anything about a refixed appointment on 27 October. Also, he said, if he had known, he would have included it in his letter; the time delay would be too long and it would be a matter for discussion with the plaintiff. 109.It also appears that in correspondence between solicitors the defendant's solicitors tacitly accepted the allegation that there was an appointment on 27 October; they argued that the delay would have been unacceptable. There is also a reference in Professor Lieh Mak's report which suggests (in 2002) that she expected to see the plaintiff in October 1998. 110.Returning to the plaintiff's own evidence it appears from cross-examination that he knew about the appointment on 30 September and the possible consequences if he did not attend it. He knew and understood the provisions of section 16 of the ECO because these had been explained to him by the Labour Department. He did not attend the appointment for various reasons. He said that he did not attend, because his wife could not go with him, and he was very upset; he would probably have gone, if someone had been available to accompany him. Yet he managed, on 30 September, to attend both Dr. Goh and Dr. Ip, who recorded him as having attended alone. He could not remember whether his wife or sister had attended with him, and stayed in the waiting room. He said that he was afraid, because he had read a newspaper report that a patient of Professor Lieh Mak had committed suicide; but that report did not appear until December 1998. Dr. Ip, in December, noted that the plaintiff had told him of his fear of seeing Professor Lieh Mak; yet there is no such note at the consultation on 30 September. He also said that he did not attend, because had an appointment fixed for 27 October; but he did not attend that appointment, either. 111.The plaintiff's evidence is less than credible. There are also flaws in the defence evidence. One has to look at the inherent probabilities. It seems to me entirely probable that if there had been an appointment on 27 October, and Mr. Chan and others had known of it but nevertheless wanted, as Counsel put it, to ride roughshod over the plaintiff's arrangements, Mr. Chan would have mentioned in his letter of 24 September that the delay was too long, that another appointment had been obtained on 30 September, and the plaintiff should attend it. Further, if there had been an appointment on 27 October it is impossible to see why the plaintiff did not simply contact the EOC and tell them of it. Insofar as he generally claims to have been inhibited by the employer/employee relationship, that does not hold water because he was quite capable as at 13 August and 1 September 1998 of accusing Mr. Chan of harassment. 112.I do not believe that there was an appointment on 27 October 1998. If there was, I do not believe that Mr. Chan knew of it, when he wrote the letter of 24 September. 113.So far as the necessity of the examination goes, Dr. Yu had recommended that the plaintiff be seen by a psychiatrist. The plaintiff, under cross-examination, was constrained to agree that at least after the event, and looking at it on its own he accepted that it was appropriate for the defendants to require this. In evidence he kept coming back to the point that the examination was not necessary, or appropriate, or even legitimate because he was in a position to produce and did produce sick leave certificates from Dr. Ip. This goes back to the major foundation of his claim which seems to be that so long as he could produce sick leave certificates, his employer had no right to question them. 114.I do not think there can be any doubt that the examination by Professor Lieh Mak in September was necessary, in the light of the advice of Dr. Yu, for the defendants to find out how long the plaintiff was likely to be off work. He seems to have admitted ultimately that that was a legitimate aim on their part. So there can be no question of detriment. 115.It is argued that the whole sequence of medical examinations between June and September was discriminatory or harassing. They were too close in time. There were too many of them. In particular a reasonable person would be see this as likely to humiliate and intimidate. I do not think this can be right. The reasonable person, for the purposes of harassment, must have regard to all the circumstances. Those circumstances included the lack of any estimate of time off work and the background of claims of which the defendants could rightly be sceptical. It would be legitimate to seek that information and it is impossible to see where intimidation or humiliation, rather than inconvenience or annoyance, would come into the picture. 116.The last head of complaint, and the one which gave rise to a pecuniary loss, is that on 30 October 1998 Mr. Chan unreasonably suspended payment of monthly income to which the plaintiff was entitled under his employment agreement. I do not see that it could be seen as unreasonable. The defendants were entitled to rely on section 16 of the ECO. They did so; the plaintiff, knowing what their reaction would be, did not attend for examination. They were entitled to suspend his periodical payments. It is difficult to see what else they could have done. As to the argument that he was in any event entitled to sickness benefit, purely and simply because he could produce sick leave certificates, I have set out above the contractual provisions. The employee "may" be paid sick leave on the recommendation of, inter alia, a registered medical practitioner. I do not see how this can bind the defendants absolutely to pay sickness benefit against the production of a sick leave certificate, irrespective of the rest of the circumstances. 117.The disability was obviously not the effective cause of the suspension. That was the plaintiff's failure to attend the medical examination. The necessary causal element for discrimination and harassment is lacking. As to the comparator my findings in respect of the other heads of complaint apply equally here. So far as harassment goes a reasonable person, knowing all the circumstances, would surely have taken the view that he brought the suspension on himself. 118.I have been through the plaintiff's heads of complaint and have dealt with them individually. I have not found discrimination or harassment in any of them. I do not see how the defendants' actions could amount cumulatively to discrimination or harassment either. 119.The plaintiff's claims in the first action are therefore dismissed. The Second Action 120.The plaintiff's case in the second action, EO No. 6 of 1999 is as follows. He raised Action No. EO 1 of 1999 on 8 January 1999. He was off work until 23 February 1999. When he returned to work, the EOC and the other two defendants named in the second action victimised him for bringing the first action. Put briefly the particulars are as follows:
121.The plaintiff says that all these acts which were done intentionally to demean, humiliate and intimidate him amounted to victimisation contrary to sections 7 and 11 of the DDO. Further and in the alternative they amounted to discrimination and/or to harassment contrary to sections 6, 11 and/or 22. The EOC is vicariously liable for the actions of the other defendants in the course of their employment; and they are themselves liable under section 49(1) of the Ordinance. 122.Subject to certain admissions of fact the defendants likewise deny victimisation, discrimination or harassment in the second action. 123.In fact the plaintiff does not now rely on the first and third heads of complaint as individual instances of discrimination, harassment or victimisation. He does however rely on them as part of his case that all the actions complained of amounted cumulatively to discrimination, harassment or victimisation. 124.I have considered above the elements of discrimination and harassment. I turn to victimisation. Section 7 provides:
125.Section 7 must be read along with section 11(2) for the latter is what makes discrimination unlawful. As with disability discrimination some refusal of benefit, or subjection to detriment must be proved. It is argued for the plaintiff that in victimisation as in other discrimination, motive is irrelevant. Logically that seems right, since victimisation is a form of discrimination. Practically it is difficult to see how discrimination "by reason of" the victim having brought proceedings cannot involve intention. In fact it is the plaintiff's case that the defendants in the second action intentionally victimised him by reason of his having brought the first action. 126.So far as section 7 is concerned the plaintiff must prove is that he was treated worse than others, and that at least one reason for that treatment was his having brought proceedings. There is still a requirement for comparison; but the criteria for the comparator will not be the same because the requirement in section 8 for comparison in circumstances which are the same, or not materially different in both cases does not apply. Section 8 specifically applies only to section 6. The only comparator therefore is someone who has not brought proceedings. 127.However the plaintiff, as he is entitled to, in reliance on the breadth of the legislation maintains his claims of disability discrimination and harassment in respect of the grounds of complaint pleaded in the second action. He pleads that the acts which he says amounted to victimisation also amounted to discrimination and/or harassment contrary to sections 6, 11 and/or 22 of the DDO. By the time the plaintiff returned to work, he was no longer suffering from any physical or mental disability as a result of his accident. He took a lot of sick leave after 24 December 1998 but as I understand his evidence he is not relying on any disability after that date. 128.Where a disability is mental there may be discrimination or harassment on the ground of a disability which previously existed but no longer exists; no doubt the intention is to protect the recovered mental patient. If in the second action the plaintiff is to prove disability discrimination in respect of any of his complaints he will have to prove that the actions complained were taken on the ground of his no-longer-existent mental disability. The same problems relating to causation, and the same problems in finding a comparator will apply. If in the second action the plaintiff is to prove harassment he must prove that it was done on account of his no-longer-existent mental disability and the same problems relating to causation will apply. The Background to the Second Action 129.The plaintiff remained off work after the incidents referred to in the first action. He was still in receipt of sick leave certificates which he provided to the EOC, for the period up to 22 February 1999. He applied for annual leave for the period from 22 to 23 February 1999 and he returned to work on 24 February 1999. In the meantime, he issued the Writ in the first action on 8 January 1999 and served it on the defendants. 130.After the plaintiff returned to work, the sexual harassment claim against him, which was to have been investigated on 22 May 1998, was re-opened. The plaintiff objected to Mrs. Ho and Mr. Chan investigating the matter because they were named in the first action; a new panel was suggested but the plaintiff also objected to it; and finally the matter was referred to two independent Senior Counsel. Ultimately after some delay on the part of the plaintiff who wanted an oral hearing rather than to put in written submissions, the investigation was curtailed in January 2001 because the plaintiff was no longer with the EOC. 131.In May 1998 another female officer had lodged a sex discrimination complaint against the plaintiff who was by then off work. This matter was also resurrected after the plaintiff returned to work. Ultimately this complaint too was referred to the same Senior Counsel, and petered out after the plaintiff's departure. However on 9 April 1999 the plaintiff lodged a complaint against Mr. Tong and the female officer on the ground of Mr. Tong's favouritism to her. All these matters gave rise to a good deal of correspondence between the plaintiff and his superiors. 132.Mr. Tong, on legal advice, kept a diary relating to the plaintiff. There was increasing friction between the plaintiff, Mr. Tong and other members of staff. Mr. Tong had had difficulties in fixing a performance appraisal interview with the plaintiff in April; it appears from his memoranda that this was largely because of the plaintiff's frequent absences from work on sick leave. There was an incident on 22 April, when Mr. Tong went to the plaintiff's office to discuss the matter, and the plaintiff apparently demanded that Mr. Tong leave his office. There was an incident on 6 May 1999 when Mr. Tong went to the plaintiff's office to discuss comments made on an Architectural Services File; Mr. Tong wanted the discussion in his own office but the plaintiff complained that he suffered a psychological setback whenever he went to Mr. Tong's office. The plaintiff says that the psychological setback arose from matters ventilated in his complaint against Mr. Tong and the female officer. There followed a written complaint by the plaintiff to Dr. Cheung that Mr. Tong's conduct had been intimidating, humiliating and very insensitive to the plaintiff's feelings. After considering a written reply by Mr. Tong, Dr. Cheung found that the conduct had not been intimidating, humiliating or offensive. She repeated previous advice to the plaintiff to behave professionally in his dealings with Mr. Tong. However she suggested that in future the plaintiff and Mr. Tong discuss work matters in her office, and in her presence, though she would not take part in the discussions. Then on 21 May the plaintiff had written an appeal to Dr. Cheung, complaining of Mr. Tong's attitude to him, that it made him feel oppressed, and asking for an immediate transfer away from him. This Dr. Cheung had replied to on 25 May, suggesting that the problems stemmed from his own attitude, asking for an explanation of the matter of the confidential file, and, not surprisingly in view of the outstanding sexual harassment and sex discrimination claims, refusing to transfer him to the Gender Division. 133.The plaintiff's contract of employment was due to end on 30 September 1999. In May 1999 Mr. Tong was asked to complete a form with his recommendations as to whether or not the contract should be renewed. On 15 May he recommended against it. His grounds related to poor performance both before and after the plaintiff's absence on prolonged sick leave. He relied on a general lack of diligence by the plaintiff following his return to work, including the fact that he had worked a total of 11 out of 30.5 working days. He relied on a refusal to take on minor additional responsibilities; these related to files which did not need much work and which the plaintiff seems to have regarded for that reason as beneath him. He further relied on what he called "rude and unacceptable behaviour" towards himself at his meetings with the plaintiff on 22 April and 6 May 1999, which I have mentioned above; and refusal to carry out instructions relating to an Architectural Consultation Service file, the matter which was brought before Dr. Cheung for discussion on 26 May. Mr. Tong's form went forward to Mrs. Ho on about 17 May and then to Dr. Cheung. Both endorsed the recommendation and on 26 May 1999 it was put to a meeting of the EOC's Administration and Finance Committee, which approved it. 134.On 25 June 1999 a special meeting of the Administration and Finance Committee was held which decided that the plaintiff should be forthwith informed that his contract would not be renewed and he would be placed on "garden leave", i.e. required to leave the EOC and work no more, but remain on full remuneration, pending the expiry of the contract. He was informed of this on the same day. He asked to return the following day to remove his belongings from the office. On the afternoon of 26 June, in the presence of a solicitor from the firm which represents the EOC and two private security guards, the plaintiff and Mr. Chan carried out the process of checking and removing the plaintiffs property. Some property, about which there was no agreement, was sealed in a box for later action. 135.In total there were 65.5 working days between the plaintiff's return to work and his being required to leave the office. In that time he worked 31.5 days and was absent, on sick leave or annual leave, for 34 days. The Specific Complaints 136.The first of these is that on 5 March 1999 Mr. Tong directly consulted a junior officer under the plaintiff, Ms Fanny Lai. As I have indicated the plaintiff does not now pursue this as an individual instance of discrimination, harassment or victimisation though he relies on it as part of his case that the defendants' actions cumulatively amounted to such. I do not think that there is any need to spend much time on this point. It appears that Mr. Tong received a file minute from the plaintiff which related to an earlier briefing session. Mr. Tong wanted some clarification about what had been agreed at the briefing session. The plaintiff was out of the office; Ms Lai was present; so the plaintiff asked her. It all seems very trivial; the sort of thing which could happen in any organisation; and no doubt that is why it is not pursued as an individual instance. 137.The second complaint relates to the work which the plaintiff was given to do when he returned to work. By a memorandum dated 9 March - which in fact formalised earlier verbal instructions given to the plaintiff - the plaintiff was assigned to work on so-called policy files as opposed to files relating to live complaints under the DDO. The plaintiff says that he was the only person whose work was limited in this way. The limitation was intended to humiliate him and demean the value of his work. 138.The plaintiff's evidence on this is that before his accident he had been in charge of a team of officers investigating public complaints. This was his main function, under his job description though it allowed in addition for him to handle policy files. On return to work his colleague Ferrick Chu showed him a list of such files which he was to handle; later Mr. Tong went through the list with him and Mr. Chu. He was not told that this was temporary; he was not told the reason for it. In effect he was stripped of his normal duties including normal supervision duties, for no one was to answer to him on these files. He was made to handle what in cross-examination he called "rubbish files". There is a lot more in his statement, about his subsequent complaints and Mr. Tong's memorandum in reply; I need not reproduce it all here, but one particular point is that, although Mr. Tong in a memorandum of 12 May said that the object was to phase him in slowly, because of changes in procedure and approach during his absence, the plaintiff says that this was never told to him when he was given the files. 139.The evidence of Dr. Cheung, Mrs. Ho and Mr. Tong is that they had a meeting before the plaintiff returned and agreed that he should be phased in slowly, by being given "policy" files to work on, so that he could re-familiarise himself with the law and procedures. They all agree that the files were important ones, requiring the supervision of a CEOO. As Dr. Cheung put it, it was as if he had been on a 9-month sabbatical; any officer returning to duty after such an absence could expect such treatment. Dr. Cheung says that she explained to the plaintiff that he would be given these files to ease him into work, as a lighter load; and he agreed. She says that this had nothing to do with the plaintiff's disability or with his proceedings. Mr. Tong also says that the plaintiff did not object. He did not, he says, fix any time limit for the plaintiff to handle these files because he wished to see how well the plaintiff re-adapted himself to his return to work. In fact according to him, he agreed with the plaintiff on 26 May 1999 that the plaintiff should undertake investigation work again. 140.The memorandum complained of refers to an earlier announcement at the Disability Divisional Meeting and lists some 14 files which are to be taken over by the plaintiff following his resumption of duty. It shows that the files were taken over from other officers of the same rank, and that junior or support officers were assigned to assist with them. 141.I have no doubt that the policy files were files which had been supervised by other officers of the same rank as the plaintiff rather than "rubbish" files. There is no evidence to support the plaintiff's complaints that he was being asked to do something outside his job description. There is nothing to contradict the evidence of the plaintiff's senior officers that a decision was taken to put him, in effect, on light work so as to phase him in after his lengthy absence. Valiant efforts were made to get them to admit that since he was a lawyer, they could simply have briefed him on any changes in law and procedure and told him to get on with his job. No doubt that was a possible choice. But it is very difficult to see why the choice to put a returning officer temporarily on easier work should be seen as demeaning to him. A reasonable person would see it as a benefit, rather than a detriment. 142.Obviously, there is no direct evidence that one of the reasons for giving the plaintiff the policy files was that he had instituted proceedings. It is unlikely that there would be. If that were a reason, no one would admit it. But to find that it was a reason, in the face of believable evidence to the contrary, there would have to be some evidence, which went further than the plaintiff's mere assertions that it must be so, from which I could infer that in fact it was so. "Post hoc ergo propter hoc" is not sufficient. There is no such evidence. 143.It is argued that the arrangement was occasioned by the absence from work caused by the disability and on an apparent assumption that the plaintiff would be unable to perform his normal duties, and that this is discriminatory. This seems a strange argument. It would equally be open to the plaintiff to argue that if he had not been given lighter duty on return to work after absence caused by disability, there was an assumption that he could perform normal duties when he could not; and that would be discriminatory or harassing. The treatment was no doubt occasioned by the absence from work, but on Dr. Cheung's evidence it had nothing to do with disability; it would have been the same if he had taken a nine-month sabbatical for rest and recreation and any other employee in the same circumstances would have been treated the same way. There is nothing to gainsay this and I believe Dr. Cheung. 144.So far as harassment goes, this must be on account of disability and as I have indicated I believe Dr. Cheung that it had nothing to do with disability. While it may have been unwelcome behaviour so far as the plaintiff is concerned, he does not seem to have disagreed with it openly though he says he discussed it with Mr. Ferrick Chu. But for harassment, the conduct must be such that a reasonable person knowing the circumstances would anticipate that it would offend, intimidate or humiliate. As I have indicated, a reasonable person would see the treatment as beneficial rather than detrimental. Such a person would not anticipate therefore that it would offend, intimidate or humiliate. 145.I am not therefore satisfied that this treatment of the plaintiff amounted to victimisation, disability discrimination or disability harassment. 146.The third ground of complaint is that the plaintiff was put at the bottom of a list for cross-divisional transfers. Again this is a point which is not pursued individually. I am not surprised. Someone had to be at the bottom of the list. There is nothing really to support the complaint that the plaintiff was put back in spite of his seniority. As appears from cross-examination and as the plaintiff ultimately admitted his real complaint was that he had not been consulted before the list was made up. 147.The fourth ground is the accusation of taking unauthorised leave. This point was not the subject of argument and in any event was abandoned by the plaintiff himself under cross-examination. 148.The fifth ground relates to the plaintiff's having been in breach of practice concerning access to an office file. It is said that on 26 May 1999 the matter was investigated personally by Dr. Cheung, who did not follow proper procedure in so doing, and prejudged the plaintiff. 149.Ms Lam Siu Wai was working on the file. It is not in dispute that the plaintiff asked her secretary for the file, and she gave it to him. The plaintiff did this openly and there was no difficulty in finding where the file was or getting it back from him. However Ms Lam says she was concerned because case files were confidential; the plaintiff was not her supervisor therefore had no reason to look at the file; and in any event, since she was the author of the original sexual harassment complaint which was to have been investigated on 22 May 1998 and which was still pending, she did not trust him. So she reported the matter to her superior, Mr. Joseph Li, and, because neither Mrs Ho nor Mr. Tong were there, directly to Dr. Cheung. It appears that she did not want Dr. Cheung to treat the complaint as a formal one. 150.The plaintiff says that there was no issue of confidentiality and as CEOO he could have access to any complaint cases handled within the Disability Division. He first knew that there was a complaint when, on 26 May 1999 he was asked to go to Dr. Cheung's office. There, in the presence of Mr. Tong, Dr. Cheung asked him why he had taken the file, and without giving him the chance to reply, "lambasted me that the file did not concern me and it was not proper for me to access the file.". He replied that he had taken the file openly, and maintained a proper record of its movements, also that it was permissible for him to have access to all files within his division; but Dr. Cheung did not listen, told him he had exercised bad judgment, and told him to leave. 151.The plaintiff complains that Dr. Cheung's action was done with intent to intimidate and humiliate him. It did not warrant her attention; the laid-down disciplinary procedures should have been followed and the matter should have been investigated by his superior or an officer of equivalent rank thereto. 152.The defence witnesses say that the plaintiff should not have had the file. Active confidential files were treated on a "need to know" basis. This was the office practice; and it was formalised in writing following this incident. I believe them, and prefer their evidence on this to that of the plaintiff. 153.By 26 May, there were various difficulties between the plaintiff and Mr. Tong. The plaintiff had complained of the policy files matter in his self-appraisal form and there had been correspondence about that in early May. There had also been written complaints from him over the matter of the divisional cross-transfers. There are also the various matters set out above as background to the action. 154.The account of the meeting given by Dr. Cheung and Mr. Tong is rather different from that of the plaintiff. Dr. Cheung agrees that she told the plaintiff that he had exercised bad judgment but denies giving him a dressing-down. The meeting apparently lasted for more than an hour and primarily concerned the dispute about the Architectural Services File. 155.Where there is a difference in evidence I prefer the evidence of Dr. Cheung and Mr. Tong. I do not need to repeat my comments on the plaintiff as a witness. I do not believe that the plaintiff was lambasted, or told to leave. 156.As to whether proper procedure was followed it appears that Ms Lam Siu Wai did not want to make a formal complaint and Dr. Cheung did not treat the matter as a formal complaint. I think this is a matter for her decision as the Chairperson. If in an organisation every complaint has to be treated as formal, and lengthy disciplinary procedures gone through, there will obviously be a negative impact on the substantive work of the organisation. 157.But the point is, not whether I think Dr. Cheung was right, or whether she sided, as the plaintiff complains, with Mr. Tong. The point is whether victimisation, disability discrimination or disability harassment are made out. 158.I do not see any evidence to suggest that the reason, or a reason, for Dr. Cheung's action in dealing with the matter as she did was the fact that the plaintiff had instituted proceedings. There is simply nothing from which this can be inferred. The plaintiff obviously thinks that everything that happened to him was detrimental, and done because he had sued; but as I have indicated above suspicion is not enough. 159.So far as discrimination is concerned, there is equally nothing to tie this incident to the disability which was by then a past disability. So far as harassment on account of disability is concerned the dame applies. 160.I turn to the next head of complaint, namely that on about 4 March 1999 the EOC intended to terminate the plaintiff's services and inquired about the possibility of termination with the Labour Department, and then on 25 June 1999 told him that his contract would not be renewed and that he was released from duty with immediate effect. 161.On 4 March 1999 Mr. Chan had a discussion with an officer of the Labour Department. It appears from his statement that he was inquiring about medical or sick leave clearance procedures in order to finalise the compensation assessment and enable the EOC to file a claim with its insurer for reimbursement of the periodical payments. The Labour Officer explained that if no medical clearance was obtained the employee's compensation claim could not be finalised and the contract of employment could not be terminated by reason of section 48 of the ECO. Mr. Chan thought that this did not apply and the Labour Officer explained that the expiry of a fixed term contract of employment was not termination under section 48. In other words it appears that the question of termination was raised by the Labour Officer. 162.Put simply the effect of section 48 is to make it an offence for an employer to terminate the services of an employee who has an outstanding claim. The plaintiff's claim was outstanding. The Labour Department file minutes show that that department had been trying since June 1998 to get the plaintiff to undergo medical clearance. They had difficulty in contacting him. In November he had agreed to provide sick leave certificates, but had not wanted to provide a medical report. He did not provide anything until May 1999. 163.The file minute of the Labour Officer, who has not given evidence, deals with the explanation of medical clearance then goes on
164.Under cross-examination Mr. Chan said that he did not ask about termination matters. Then he appeared to admit that he did raise the question of section 48 because the EOC's employees were on periodic contracts. However he had not been involved in the decision to not to renew the plaintiff's contract. He was at the meetings of the Adminstration and Finance Committee which approved the decision not to renew and the decision to put the plaintiff on "garden leave" but only as secretary; he did not take part in discussions or vote. 165.The Labour Officer's note says that Mr. Chan did raise the question of termination with her. It is difficult to see why she would have raised it herself if they were only talking about medical clearance. It is also difficult to see why Mr. Chan should have raised the question of termination. The contract required 3 months' notice of termination by the employer; it was already March; it was due to end in September anyway; there would not be much point in terminating. 166.Does this then mean that the EOC had decided by 4 March that the plaintiff was to be got rid of? The note certainly suggests that Mr. Chan had this in mind though he denies it. However, if he did have it in mind, there is no evidence to that he discussed it with anyone else, and there are no file minutes or anything of that sort. There is suspicion but it does not go further than that. 167.It is certainly true that on 25 June 1999 the plaintiff was told that his contract would not be renewed and that he was to leave the office forthwith; he could go home but draw his pay until the end of the contract. He of course regards this as humiliating and detrimental. It is argued that this was a disciplinary matter, equivalent to suspension from duty and that the disciplinary code should have been followed. I am not inclined to agree with that. As Dr. Cheung put it when asked about the EOC's policy on suspension, "we are not referring to suspension on a disciplinary matter; he just wasn't coming back". Once the decision for non-renewal had been made, to invoke disciplinary proceedings would have been a waste of everyone's time. The situation was similar to that where an employee, with whom there have been disputes, is paid salary in lieu of notice. Once the die is cast and he is to go, there is no point in having him around the workplace; it does neither side any good and it is easier for both of them to pay him off and get him out of it. It is a common enough experience for an employee employed on a term contract not to have it renewed. I would have thought that any humiliation arising from being told to leave the workplace early would be compensated by the very fact of being able to draw full pay until the end of the contract; gainful unemployment with plenty of time to look for another job. 168.Was the reason for the decision not to renew the contract, or one of the reasons, the fact that the plaintiff had sued? In any event there must, in this situation, be that suspicion. However, Dr. Cheung said that it was first envisaged that the contract would not be renewed after the series of events which culminated in the meeting of 26 May. The basis for the non-renewal is set out in Mr. Tong's recommendation of 15 May 1999. This refers to various incidents of conduct both before and after the plaintiff's long absence on sick leave, about which Mr. Tong has given evidence. There had been a decision, even earlier, not to pay the plaintiff a discretionary increment of salary. Where there is a conflict about what actually happened, I prefer the evidence of Mr. Tong. There was quite obviously good reason not to recommend renewal of his contract. He was nothing but trouble. 169.It is argued that I must look, not just at the individual pleaded complaints, but that the overall picture. The plaintiff had sued. When he came back to work, he was required to deal with files which in his view were "rubbish". The Director of Administration made inquiries about how to get rid of him; and although it was not possible to get rid of him immediately his contract was not renewed. That is not a detriment; there is no duty on an employer to renew a term contract, and it is not pleaded as such. But in the meantime, he was sent home, to draw his pay in gainful but humiliating unemployment. It is argued that all this infers that the plaintiff was victimised, on account of his having instituted proceedings. They wanted to be rid of him; they had to wait for that; but in the meantime they marginalized him. 170.Looking at the overall picture, suspicion arises, as it must. Mr. Coleman argued the plaintiff's case with great ability and even passion. He argued inter alia that "in the way in which the protection is afforded under the ordinance, it may not immediately accord with a traditional view of what does or does not make "common sense". It may also not chime with the instinctive view of the 'black letter' lawyer." Nevertheless common sense and the proper application of legal principles cannot be abandoned in favour of wishful thinking. This is a claim in tort, at the end of the day, and the plaintiff has to establish fault on the balance of probabilities. Section 3 does not provide a presumption of discrimination and it does not shift the onus of proof to the defendants. They had plenty of good reasons not to renew the plaintiff's contract. They had plenty of good reasons to want him out of the office meantime. There is no evidence on which I can be satisfied on the balance of probabilities that one of the reasons for their doing so was the existence of the first action. So far as disability discrimination and harassment are concerned there is simply no evidence of the necessary "but for" connection between the matters complained of and the disability. 171.The final head of complaint is what happened when the plaintiff came back to the EOC on the afternoon of Saturday 26 June 1999 to collect his own belongings. It is claimed that Dr. Cheung unnecessarily employed a solicitor and two security guards to stand guard over him and that Mr. Tong wrongfully examined personal property of the plaintiff while he was packing up his belongings. 172.It appears from the evidence of Mrs. Ho that it was she who instructed the security firm to send someone. She did this, having obtained the advice of the EOC's in-house legal advisor. Messrs. Curlewis and Clode were the two security men who came. A solicitor from the firm representing the defendants in the first action was present. The picture painted by the pleadings and the statement was of two very large Caucasian men, standing guard outside the office, looking in from time to time, and menacing the plaintiff as he packed up his belongings in much the same way as a blackmail victim may be menaced by having the blackmailer's associated "muscle" men standing over him. Their evidence is that they went to the EOC to be there in case of need; their company had carried out this kind of duty thirty or forty times before. According to Mr. Curlewis, they were there to prevent the ingress of members of the Press or other unauthorised persons, as is normal in such situations, but it appears that he was not specifically instructed in those terms. He was however told that it was feared that the plaintiff would "cause a stink". They were not outside the room where the plaintiff was but in the reception area and in another room down a corridor; they did not show themselves for about two hours. Then Mr. Clode went to see what was happening; at one stage the plaintiff was followed to the toilet; and they let someone in to take away some of the plaintiff's belongings. 173.So far as Messrs. Chan and Tong are concerned neither of them has any particular memory of seeing the security guards, after Mr. Chan had let them in. 174.It seems to me that the plaintiff's complaint about the security guards is another piece of exaggeration. There was no reason for them not to be there; it was a matter of precaution. There were out of the way most of the time; I do not believe they were standing outside the office door and looking in from time to time. Insofar as discrimination is concerned I cannot see that there was any detriment to the plaintiff. Insofar as harassment is concerned, I do not believe that they did anything which a reasonable person would regard as offensive, intimidating or humiliating. 175.The plaintiff also complains of the presence of the solicitor. I suppose that, given that the solicitor was from the firm acting for the defendants in the first proceedings, the fact of the first proceedings is to be regarded as one of the reasons for his presence. But where there is a dispute, for one party to have his solicitor present when dealing with the other is not a detriment. Nor can it be regarded as something which a reasonable person would regard as offensive, intimidating or humiliating. 176.The plaintiff also complains that Mr. Tong wrongfully examined his personal photograph albums and diary and that this was done intentionally to intimidate and humiliate him and was less favourable treatment. It is true that Mr. Tong did examine everything in the room, including the plaintiff's property. From time to time, as appears from his evidence and that of Mr. Chan he referred items to Mr. Chan to see if they belonged to the EOC. Mr. Tong said in cross-examination that if an employee was leaving under such circumstances, he believed it reasonable for the employer to check what he takes. That is no doubt true. However the whole process took a long time and from the list of property drawn up it seems that there was a lot of bureaucratic nitpicking. So be it. Some bureaucrats nitpick. I do not see any evidence to suggest that Mr. Tong was setting out intentionally to humiliate or intimidate the plaintiff or that there was any real detriment. Once again, this is something which would annoy and no doubt did; but that is as far as it goes. 177.For the reasons given above, I am not satisfied that the plaintiff has proved his claims of victimisation, disability discrimination and disability harassment in the second action and those claims are dismissed. 178.I turn to the question of costs. Section of 73C (3) of the District Court Ordinance Cap 336 provides:
179.The arguments of Mr. Grossman for the defendants in both cases started out with a condemnation of the plaintiff's actions as "completely unmeritorious and an appalling abuse of the litigation process....a waste of the court's time and resources and an affront to the system". 180.I would not go quite as far as that. I am satisfied that the plaintiff's claims are completely unmeritorious. However the legislation is wide enough to allow just about any minor illness of an employee to be regarded as disability, and just about any action by the employer to be regarded as detrimental. The plaintiff was entitled to try to bring his case within the ambit of the legislation. I am not prepared to say that the proceedings were brought maliciously or frivolously though some of the claims were arrant nonsense from the outset. I will therefore make no order as to costs, but that order itself will be nisi.
Representation: Mr. Coleman instructed by M/S Chui & Lau for Plaintiff Mr. Grossman S C leading Mr. R. Leung instructed by M/S Baker & Mckenzie for Defendants |
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