Tsang Lai Man v. Wong Lung Shan and Another

DCEO000001A/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 1 OF 2000

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Coram: HH Judge D Pang

Date of Trial: 11 January 2001 (plus 11 days)

Date of Judgment: 12 April 2001

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JUDGMENT

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1. This is a claim under the Sex Discrimination Ordinance, Cap 480. The gist of the complaint is sexual harassment in the workplace. The 1^st Defendant (a man) is a co-worker of the Plaintiff (a woman). The 2^nd Defendant (a company) is their employer. The Plaintiff seeks various reliefs including damages.

The Plaintiff's Case

2. The Plaintiff is 26. She joined the 2^nd Defendant as a secretary in 1995. Her job was re-titled to sales coordinator in 1997. Despite that change her duties remained throughout to provide administrative and clerical support to the salesmen. The 1^st Defendant was one of the salesmen (or accounts managers) whom she assisted.

As against the 1^st Defendant

3. The alleged acts of sexual harassment began in 1997. They lasted through to 1999. They took the forms of both verbal remarks and physical advances. The statement of claim divides the former into four categories. In short, it is alleged that the 1^st Defendant had -

As regards physical advances, the 1^st Defendant is said to have -

4. It should be pointed out at this juncture that the statement of claim was settled by the Plaintiff's husband. He did so before the Plaintiff obtained legal aid. Naturally, it lacks the clarity and precision of a professional product. Nevertheless, no application was made to have it amended during the trial by counsel. Conversely, it is maintained that what is pleaded is accurate. In particular, what took place with the roll of paper is an assault and a physical advance if only in the sense of putting one in fear. The same applies to the attempt to force the Plaintiff into having sex.

5. So far as the evidence goes, the Plaintiff did testify to three occasions when the 1^st Defendant suddenly spoke of "knocking" her. These interjections ("How about knocking you?", "I haven't knocked you today!" and "You want me to knock you today?") took place in three closely dated mornings in November 1998. On the third occasion, the 1^st Defendant had a roll of paper in one hand With the other, he ran up and down it. The Plaintiff understood the roll of paper to symbolize the male organ. That, accordingly, is the assault.

6. Turning to the attempt to force sex, it was known throughout the trial as the "mailing room incident". It took place in February 1998. The allegation is that the 1^st Defendant cornered the Plaintiff in the mailing room. Having remarked how he had not realized there was such a place, the 1^st Defendant said, "No one would know if you were raped here!" At the same time, he stomped forward for a step and raised both hands to waist level. This gave the Plaintiff a big fright who, nevertheless, managed to tell the 1^st Defendant to go out first (they were there to find some files). I should add one thing. Although it says "on divers dates" in the statement of claim, this is the only incident in the Plaintiff's testimony that remotely resembles a forcible attempt.

7. The verbal remarks are more readily identifiable from the evidence. Going by their chronological order, the so-called "bakgu incident" took place in July 1997. In July 1998, the 1^st Defendant told the Plaintiff to emulate a particular Japanese porn star. The "pleated skirt incident", in which the Plaintiff's bosoms were made a subject of ridicule, took place in October 1998. On at least three occasions spanning summer 1997 to spring or summer 1998 the 1^st Defendant had commented on how the Plaintiff dressed. He had either asked why the Plaintiff had to cover herself so fully or whether she would sport something low-neck or sexy to make others happy.

8. Other allegations were made that are not specified in the statement of claim. The advertisement on "Where Best to Get Prostitutes" is one. The time when the 1^st Defendant invited the Plaintiff to go for a nap in the storeroom is another. There is also the occasion when the 1^st Defendant asked if the Plaintiff was checking the calendar for her menstrual cycle. As with the pleaded incidents, I will not repeat their details here. If necessary, they can be found in the record of proceedings.

9. According to the Plaintiff, all the above acts (whether verbal or physical) amount to sexual harassment under section 2(5)(a) and (b) of Cap 480. By committing these acts, the 1^st Defendant had contravened section 23 of the same.

As against the 2^nd Defendant

10. The case against the 2^nd Defendant is twofold. First, it is said that it should be vicariously liable for the 1^st Defendant's acts (section 46(1)), The implication is that it had failed to take such preventive steps as were reasonably practicable (section 46(3)). The second is that it had, on its own, victimized (section 9) and/or discriminated against the Plaintiff (section 11). This second limb arises from how the company treated the Plaintiff after it became known that she was a subject of sexual harassment.

11. It is common ground that the 2^nd Defendant was unaware of the Plaintiff's complaint. That is until her husband wrote on 19 May 1999. [Tab 11] What followed was a meeting on 21 May 1999 between the Plaintiff, the Assistant Human Resources & Administration Manger (CHAU) and a couple of others. Instead of receiving help, the Plaintiff felt she was interrogated. She sensed criticism from CHAU for allowing things to happen. She became confused and wanted to consult her husband but was prevented from doing so. Because of her unwillingness to identify the harasser, she was, in the end, pressurized into signing a waiver. [Tab 13]

12. According to the Plaintiff, her colleagues changed after the meeting. Someone was assigned by the company to keep an eye on her. This she learned from PANG, her friend and supervisor. Gradually, even PANG became blunt and critical. Come July 1999, there was the annual appraisal. [Tab 14] These interviews used to involve only PANG and the Plaintiff. This time, a manager from Sales Department (NG) was present. Not only was there no follow-up on the question of sexual harassment, the Plaintiff was not even asked if it had affected her performance.

13. The Plaintiff's case is that her performance was affected. The company simply chose to overlook it. Moreover, her appraisal was deliberately marked down to penalize her for making trouble. From routinely "commendable" her overall rating was downgraded to "satisfactory". A number of previously "effective" aspects also became "moderate". The Plaintiff says it must be deliberate because her job was not technical. Neither had it changed in nature. In other words, she could only have become better over the years.

14. This provoked a protest letter from the Plaintiff dated 30 August 1999. [Tab 16] That precipitated the meeting on 6 September 1999 with the General Manager (MAK). MAK said it was not a "pressure meeting" but the Plaintiff could feel that they were there to pre-empt her from creating further trouble. Apart from pep talk and denials of any connection between her harassment complaint and the appraisal, the meeting came to no definite conclusions. In the same afternoon, Plaintiff went to the Equal Opportunities Commission ("EOC").

15. One of the matters raised in the Plaintiff's protest letter is that she was passed over for promotion. PANG had said in December 1998 that the company would promote her the following year. For some reason, that did not materialize. In July 2000, a colleague junior to her (KWOK) became senior sales coordinator. The Plaintiff, on the other hand, has remained in the same position.

16. There are other miscellaneous complaints. They are part and parcel to the alleged discrimination and/or victimization. One is the company's apathy and inaction. CHAU herself admitted that all that was done was remind the salesmen to be careful with their behavior. Another complaint is the company's lack of a policy on sexual harassment. This is, it is said, evidenced by the company's repeated failure to produce it straight up to the point of trial. The suggestion being what was finally produced is a subsequent invention. This lack of policy is in breach of the EOC Code of Practice.

The Defence

The 1^st Defendant

17. In a gist, this is what the 1^st Defendant and the defence witnesses say. The atmosphere in the office was very casual. Non-work related conversations were full of jokes. They were like the script in a Stephen Chow (周星馳) film. Many of these jokes carried sexual overtones. Sometimes there would also be swearing. But the 1^st Defendant was not the only one who said them. Other salesmen did the same. When said, they were not directed at anybody, particularly not the women. But many might hear because it was an open office. Everyone would then have a laugh and some might join in.

18. Although the Plaintiff would not initiate any "Category III" jokes, she would laugh and sometimes reciprocate. Once she had shouted across the office for the 1^st Defendant to say "hee hee ho hee" (a euphemized form of swearing) and was met with a hilarious response. She had, within the men's earshot made fun of the name of a male colleague by adding in words that imply on the size of his penis. She had pointed at the hair on NG's arms and said it to his face that he must have strong sexual urges. Once she told PANG that because PANG was the most voluptuous in the office it would be fun if she dressed like a strip-teaser with just two stars on her nipples.

19. In short, the 1^st Defendant claims that what he did was the company norm. The Plaintiff was brash, somewhat loquacious and part of the scene. She had never complained. Things only changed after May (some witnesses said July) 1999 when she became quiet and withdrawn. In any event, the 1^st Defendant denies ever calling the Plaintiff a bakgu. Although he might have teased the Plaintiff for what she wore, he had never asked her to put on more sexy clothes. He denies the "mailing room incident". He denies asking the Plaintiff to emulate a Japanese porn star. What he might have done was discuss that lady with the male colleagues and the women overheard it.

20. According to the 1^st Defendant, the "pleated skirt incident" never took place. He denies ever talking about "knocking" the Plaintiff. He might have used some paper to attract her attention but never to make any indecent gesture. The piece he pinned up was not an advertisement on prostitution but a touring guide on Macau with information on its nightlife. He did joke with the Plaintiff about taking a nap in the storeroom but the words and context were completely different. In a word, he denies every allegation of the Plaintiff whether or not specifically pleaded. The defence witnesses also said they had never seen or heard the 1^st Defendant doing any such things.

The 2^nd Defendant

21. The company's defence is two-pronged. First, it subscribes to the 1^st Defendant's denial. The suggestion being that the Plaintiff has recast events at the instigation of her husband. Second, it denies having any wrongdoing. It was the Plaintiff's wish that there should be no investigation. The so-called waiver of 21 May 1999 was but a document to record it. The letter to the Plaintiff's husband dated 25 May 1999 [Tab 12] clearly left the question open. The fact that the letter was copied to senior management marked the concern of the company.

22. In all the circumstances, the reminder to the salesmen to watch their behaviour was reasonable and adequate. The 1998/99 appraisal was a true reflection of the Plaintiff's performance. It was a misunderstanding that she was due for promotion. The company had a policy on sexual harassment. It formed part of the "Equal Employment Opportunity Policy". It prohibited unwelcome sexual conduct within the work environment. It was not produced to the Plaintiff earlier because of misunderstanding.

The Issues

23. By consent, the present proceedings would be divided into two parts - determination of liability and assessment of damages. Counsel also agree that, in law, the case against the 2^nd Defendant stands or falls with that against the first.

Evaluation of Evidence

24. Apart from a few instances, all the allegations referred to in evidence involve one to one situations.

25. One of the exceptions is the "bakgu incident". If true, the 1^st Defendant must have spoken relatively loudly. This is because the Plaintiff could hear people laugh. She was just too embarrassed to notice who. But PANG was definitely there. Yet PANG was never asked if it happened. Her cross-examination did not touch on this incident. Her evidence as a defence witness is that the Plaintiff would actively participate in off colour jokes.

26. Another time is when the 1^st Defendant said "knock you". The Plaintiff grumbled aloud because that had happened twice in three days. Both PANG and KWOK were around when she did. PANG said nothing but KWOK did say that the 1^st Defendant had gone too far. This, KWOK denied in cross-examination. She said she could not recall such an incident. As above, PANG was not asked any question about it.

27. Then there is the advertisement. It was pulled out from a magazine. The Plaintiff knows because she had read it with a female colleague. That colleague said she would give it to the 1^st Defendant so she thinks that was how he got it. There is, however, no evidence on the colleague's identity. No one had asked the Plaintiff. She herself had certainly not volunteered that answer.

28. Generally speaking, for the small number of allegations involving third parties, these people are either unidentified or had denied that the incidents ever took place. While the former is unfortunate, the latter brings to the fore the credibility of the defence witnesses. This does not limit to KWOK and PANG, but also YEE and CHAU. Together, their evidence gives the defence case its full texture.

29. Naturally, the Plaintiff questions their veracity. This is done on a number of bases. Having to stay on the good side of the defendants is one. The attacks on character and individual shortcomings is another. The fact that some of them are subject to separate EOC complaints (the Plaintiff has filed them) is also relevant.

30. Having seen them give evidence, they do not impress me to be propelled by improper, motives. The fact that the 1^st Defendant is now the Sales Unit Manager may have caused some changes in personal dynamics but neither YEE (his secretary) nor KWOK (senior sales coordinator) showed any signs of untruthfulness. I do not read anything into the lunch on 7 February 2000. The fact that they took the car is neither here nor there. In any event, there were other salesmen present.

31. KWOK was repeatedly cross-examined on office trivia not directly related to the issues. Counsel said it was to test her credibility. If successful, it would also show KWOK to be a nosy, gossipy and jealous individual. In the end, KWOK stood her ground. At any rate, I should think it is irrelevant if the cross-examination was successful, or showed that the witness was evasive, if all that the questions turned on were topics of personal embarrassment unconnected to the case.

32. Both KWOK and YEE have been made subjects of EOC complaints. Instead of avoiding the question, both were explicitly exasperated by it. KWOK said she thought the Plaintiff was mad whilst YEE admitted to have cursed the Plaintiff with the curse of meeting her just deserts. In any event, there is nothing to suggest that their evidence was motivated by grudges, or the wish to save themselves from those complaints. I accept what they say.

33. Strictly speaking, PANG and CHAU were witnesses for the 2^nd Defendant. Their evidence concentrated on the company's dealings with the Plaintiff. There were no specific allegations against them except perhaps they would naturally identify with company interest. They told their side of the story and were unshaken in cross-examination.

34. Finally, a few words on the 1^st Defendant. He frankly admitted to matters which, in themselves, could amount to sexual harassment. He insisted, however, that that was the company norm and that he had not done what the Plaintiff alleges. His evidence remained intact under cross-examination.

35. I turn now to the Plaintiff. She did not impress me as a witness. It is not so much about how she gave evidence but what she said in it.

36. Starting again with the "bakgu incident", I accept that in the present context this term can only mean "northern lass". It is part of the local vernacular. In some quarters, a closer translation may be "northern hussy" given its implied meaning. Either way, it is now so commonly used that I should be surprised if it would cause any red faces. Of course, if said to a woman, she may take it as an affront to her dignity. She may, as the Plaintiff claims, associate it with being a prostitute. The question is what and how far the reaction. According to the Plaintiff, she was not indignant, just hot and numb with shame and embarrassment. That lasted for a day after which a kind of phobia developed. Even now, she would feel very uncomfortable reading that term in the papers. She would palpitate when hearing others order rice with Chinese mushroom and chicken - Chinese mushroom having the same sound as bakgu.

37. Another example is the "mailing room incident", the only physical attempt pleaded. The Plaintiff said she was so frightened that even her armpits were sweating. Ever since, she had been unwilling to go to the mailing room because that would bring back the memory and make her very unhappy. Yet, this incident was not given as an example in the meeting on 21 May 1999. It is nowhere to be found in the initial reports to the EOC. Other petty allegations not referred to at trial were included but not this. The Plaintiff's explanation is that she was in a hurry, and the EOC had said that it was all right if she missed out anything. The question is - how could she have missed out something so serious? How could she have omitted something which, to this day, haunts her? Looking at it another way, the alleged incident took place during office hours. The mailing room was part of the office. Even if the 1^st Defendant did what is alleged, it is unthinkable that anyone should have anything but a jump. No one would feel seriously threatened. As a matter of fact, the Plaintiff was asked about this and admitted to be in fear for just, a few seconds. Even that appears too long to be true but, that given, the question arises as to why she insists that it was a genuine attempt. More importantly, it sounds out and out unreal that such a prank-like act would make the Plaintiff permanently afraid of going into the mailing room.

38. That said, I should immediately point out that the Plaintiff is in receipt of professional help. She has been seeing a psychiatrist then a psychologist since July 199. The Plaintiff says it was because of what the 1^st Defendant did. However, such sessions began after her complaint came to light. There is also good indication vide the psychologist's report that much of her problem originates from her husband's lawsuit (I shall return to this topic in a minute.) In the event, there is no evidence of her suffering any condition in 1997 and 1998. The headaches and other ailments she claims to have are at best unexplained. It follows that in assessing her reaction in the "bakgu" and "mailing room" incidents, I can but base my assessment on how normal people react. Incidentally, according to the Plaintiff, it was the "bakgu incident" that marked the change in relationship with the 1^st Defendant. It was when he began to cross the line. Nothing before really offended her. So it was not a case of pent-up emotions in the working.

39. Turning to other examples, it is alleged that PANG had disclosed the company's plan to promote the Plaintiff. PANG does not deny saying something along that line but only when the Plaintiff told her that she would rather resign than give reasons for taking leave. Even on the Plaintiff's own evidence it seems clear that PANG was trying to stop her from making a rash decision. The talk about missing each other if the Plaintiff did go also shows it to be a conversation between close friends. In any event, it was six months before the normal promotion time and PANG denies being able to know so much in advance. Given the context and the fact that PANG was of non-managerial grade, I am persuaded that this must be true. Conversely, the Plaintiff's claim of being passed over for promotion seems off-hand and without basis. KWOK, whom counsel insisted was the Plaintiff's competitor, was not promoted until July 2000.

40. Concerning the piece "Where Best to Get Prostitutes" (assuming that is what it was) the Plaintiff herself had read it with a female colleague. When that colleague said she would pass it to the 1^st Defendant, it was clearly for a laugh and the Plaintiff did not stop it. Besides, the Plaintiff "read everything" and was sufficiently exposed to know one or two things about "AV girls". It does seem odd, therefore, that she should have any negative reaction when the 1^st Defendant pinned the piece up at his workstation. After all, it was pulled out from a popular magazine, not a pornographic one so there is a limit as to how far it could go. It was, moreover, posted at eye-level only to those who were sitting. If one just happened to walk pass then one would not be able to read its content. Admittedly, she drew a line between reading this kind of material in private and displaying it public. The problem is, I find it impossible to accept that she took a completely neutral stance in passing on the article. If she accepted the circulation of such material as a joke then the whole incident, even if true, seems contrived and/or blown out of proportion.

41. In fact, all the evidence indicates that the Plaintiff was not a prude. She and the secretaries would talk about "everything". There is also some suggestion that they would not desist even when the salesmen came over to their area. At least, they would laugh at the latter's off colour jokes. What really distinguishes the Plaintiff's case from the defendants' is that she was picked on for personal harassment. She put up with it because she was scared and inexperienced. The 1^st Defendant was her senior and she did not want to sour relationship. She thought a lot of women had the same experience so she tried not to think too much about it. The difficulty with that lies in the Plaintiff's failure to tell anyone. She was friendly with PANG and CHAU so there is no reason why she should not turn to them. The suggestion that the colleagues were all happy and the Plaintiff did not want to topple the cart is laughable. Though senior to her, the 1^st Defendant was only one of the salesmen she had to assist; ultimately, it was PANG who wrote her appraisal. I also note the Plaintiff's nickname seilengmui and the comments that the defence witnesses passed on her character. They were not challenged. In fact, if she was prepared to resign for keeping the purpose of wanting leave a secret, I do not see why she would be deterred from exposing the 1^st Defendant for any reason.

42. I turn to the meeting on 21 May 1999. The Plaintiff made it a point to mention that the room "had no windows". She added that there was a "relatively large" tape-recorder not previously in it. She said she was made to leave urgent work to attend the meeting. These and other observations, however, did nothing but impress me to be attempts to blacken the occasion. With or without windows, the room was a conference room. It was for holding meetings. The tape-recorder had been specially brought in but it was never turned on because the Plaintiff was unwilling to. discuss her complaint. While on it, I doubt if CHAU would declare PANG and CHEUNG witnesses. Since she intended the meeting to be taped, there was no need for such an arrangement. My impression is that the Plaintiff made this up to create a sense of divide for my benefit. At the time, CHAU, PANG and the Plaintiff were still friendly. This is undisputed. I cannot think why CHAU and PANG should be unsympathetic. I can see why, as a manager, CHAU would be anxious but not in the way that the Plaintiff portrayed it. I also find it greatly misleading to say that the document signed was a waiver. I agree with the 2^nd Defendant that it was clearly open for the Plaintiff to reactivate the matter.

43. If the Plaintiff's account of the last meeting is tinted, her behaviour in the next is beyond comprehension. This second meeting could not have been a surprise because her letter dated 30 August 1999 had demanded that "remedial steps" be taken. Whilst these were unspecified, she nevertheless refused to speak her mind because "everything was written down in the letter". At the same time, she said she again "felt an unpleasant and uncomfortable atmosphere forcing me to say things to make them happy". Presumably, that is why there was some exchange towards the end of the meeting. But it does not explain the pledge of industry and improvement that concluded it. The Plaintiff's letter had made it plain that she would approach the EOC if not given satisfaction so it is unclear why she should humour MAK and CHAU given how the meeting was going. In another twist, the Plaintiff complained to the EOC just hours after. She did so after having lunch with her husband.

44. The theory that the 2^nd Defendant advances is that the Plaintiff was subservient to her husband (CHAN). It was upon his instigation that she began to recast the events giving rise to the claim. That is why she was able to give examples of harassment to CHAU even when she did not know CHAN would write in. It also explains her conduct in the two meetings which is because she was unsure what to do. As a matter of fact, CHAN was at the time launching his own harassment case. He had complained to the EOC in December 1998. A writ was issued in February 1999. All that time, the Plaintiff was around but did nothing about her own situation. She did not tell CHAN until being asked between March and May the same year. The question is - if she did consider what was going on in the office as harassment, how could she have been so reticent about it, even to her own husband? Going back to before CHAN went to the EOC, the Plaintiff had on his behalf asked a colleague about the commission. That was in November 1998 before everything came into the open. Had she been in the same boat, surely she would have told CHAN if only to commiserate with each other.

45. Having heard the Plaintiff, I do find her to rely greatly on her husband. Almost all the documents generated from her side were authored by him. The Plaintiff said he wrote them after listening to what she said but the evidence does show instances of the opposite. For example, the statement of claim is based closely on the husband's including parts that are not applicable, such as the reference to "quid pro quo activities". I also note that the reason why the Plaintiff insisted that the "mailing room incident" was a physical attempt is because her husband had told her so. The husband's letter dated 19 May 1999 is different from the Plaintiff's evidence in a number of important aspects. This shows either the husband was making up the complaints as he pleased or the Plaintiff was unsure what happened. These and the fact that I find many of the allegations to be embellished and/or unreasonable cause me great concern as to the Plaintiff's veracity. I am not sure if she was not prompted by anyone. Her failure to tell friends and colleagues, and the absence of any unusual behavior until May or July 1999, multiplies the suspicion. Against that, all the defence witnesses including the 1^st Defendant have stood their ground and remained unscathed in cross-examination. In all the circumstances, I feel I can only have one conclusion, ie the Plaintiff has failed to prove that the 1^st Defendant had done the alleged acts and/or engaged in the alleged conduct. Further, it is not proved that the admitted acts and conduct were unwelcome, or that the 1^st Defendant should, objectively speaking, know them to be unwelcome. I reach these conclusions applying the civil standard. With these conclusions falls the case against the 2^nd Defendant. So does the question of damages.

Judgment

46. I dismiss the Plaintiff's claim. I make an order nisi that both parties shall bear its own costs (section 73B(3) of the District Court Ordinance, Cap 336) to be made absolute in 14 days subject to any application to show cause.

Representation:

For Plaintiff : Mr Lawrence Law i/s by Ford Kwan & Co (DLA)

For 1^st Defendant : Mr Jonathan Wong i/s by Darwin Leung & Partners

For 2^nd Defendant : Mr Rusell Coleman i/s by Livasiri & Co