Sit Ka Yin Priscilla v. Equal Opportunities Commission and Others

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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BETWEEN

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Coram: HH Judge Lok in Court

Dates of hearing:  9-13, 16-18 & 26 November 2009

Date of handing down of Judgment: 11 February 2010

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JUDGMENT

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1.This is an unusual case, in which the Plaintiff, who was a former Director of the Gender Division employed by the Equal Opportunities Commission (“the EOC”), is suing her former employer and supervising officers for damages caused by unlawful disability and sex discrimination. The EOC is the very organisation entrusted with the statutory duty to eliminate discrimination in Hong Kong.

The nature of the Plaintiff’s claim

2.The EOC, the 1^st Defendant herein, was established in May 1996 with the statutory duty of promoting equal opportunities in Hong Kong. Dr. Cheung Mui Ching Fanny (“Dr. Cheung”), the 2^nd Defendant herein, was appointed as the first chairman of the EOC.

3.After her appointment, Dr. Cheung was responsible for setting up the structure of the EOC and employing the senior officers of the institution. Madam Ho Choi Wai Yee Angela (“Madam HO”), the 3^rd Defendant herein, was employed as the first Chief Executive of the EOC. Prior to that, Madam Ho had been working in the Labour Department for about 28 years.

4.Madam Sit Ka Yin Priscilla (“Madam Sit”), the Plaintiff herein, was employed as the first Director of the Gender Division of the EOC in September 1996. She has an impressive curriculum vitae. She was formerly a chief inspector employed by the Police Force. She then studied law and became a qualified solicitor in Hong Kong. Madam Sit worked in the then Attorney General’s Chambers and the Law Society before joining the EOC in September 1996.

5.Her employment was terminated on 25 September 1997 with immediate effect. The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants. She also claims that there was disability harassment against her at the relevant time and she had been victimised by reason of her gender.

(i)  The claims under the Disability Discrimination Ordinance, Cap. 487 (“the DDO”)

6.Regarding the claims under the DDO, Madam Sit claims that she was suffering from the following disabilities in about June 1997:

(i)  neck injury;

(ii)  severe muscular and other pains in neck and right arm;

(iii)  substantially increased immobility; and

(iv)  regular high fevers.

7.At the commencement of the trial, Madam Sit applied for leave to adduce further medical report by one Dr. Lam Tat Chung Paul which tends to suggest that Madam Sit was also suffering from anxiety and depressive symptoms when she worked in the EOC. However for the various reasons set out in my Ruling dated 9 November 2009, I refused the application.

8.It is Madam Sit’s case that the Defendants were aware of her disabilities alleged in the pleadings. Despite such knowledge, Dr. Cheung and Madam Ho made a number of unjustifiable criticisms against her work performance whilst ignoring the poor work performance of the other employees. Eventually, the EOC, as advised by Dr. Cheung and Madam Ho, terminated the employment of Madam Sit without giving any warning or opportunity to her for explanation. Madam Sit claims that such conducts on the part of the Defendants amount to unlawful disability discrimination and harassment.

(ii)  The claims under the Sex Discrimination Ordinance, Cap. 480 (“the SDO”)

9.I then turn to the claims under the SDO. When the EOC was first set up in 1996, there were two directors in the institution: Madam Sit as the Director of the Gender Division and one Mr. Tong Kin Sang Frederick (“Mr. Tong”) as the Director of the Disability Division. These posts, together with the post of the Legal Adviser, were of Directorate Grade 2 whilst the post of the Chief Executive was of Directorate Grade 3.

10.It is Madam Sit’s case that she had been treated less favourably by reason of her gender in the following instances:

(i)  Madam Sit had never been allowed to act up the post of the Chief Executive, whereas Mr. Tong was appointed as Acting Chief Executive whilst Madam Ho was on leave or absent from office in the respective periods from 2 December 1996 to the end of January 1997 and from 29 May to 13 June 1997;

(ii)  Mr. Tong was selected to attend a training course at Tsing Hua University in March and April 1997 organised for the senior staff of the EOC;

(iii)  Mr. Tong was given paid leave to attend an overseas conference relating to disability issues in Seoul from 23 to 30 September 1997;

(iv)  Mr. Tong was given favourable treatment in the case review exercise in that he was allowed to discuss with Madam Ho on the conduct of the exercise and was given time to rectify his mistakes;

(v)  there had been a number of complaints made against Mr. Tong whereas there was no such complaint lodged against Madam Sit, and yet more favourable treatment was given to Mr. Tong in various matters in the daily operation of the EOC;

(vi)  Madam Sit’s employment was terminated without complying with the Procedures for Handling Complaints and Grievances from EOC staff and Disciplinary Policy and Procedures of the EOC, where such Procedures were invoked in the case of the treatment of two other male employees of the EOC.

Madam Sit therefore claims that the Defendants had unlawful discriminated against her by reason of her gender.

11.Regarding the claim for sex discrimination by way of victimisation, Madam Sit alleges that in a meeting with Dr. Cheung in May 1997, she asked Dr. Cheung to offer her the opportunity of acting up the post of Acting Chief Executive. During the meeting, Madam Sit asked Dr. Cheung about the selection criteria for choosing the acting appointee, to which she received no reply. Madam Sit then indicated that the EOC might be guilty of sex discrimination if she was not allowed to act up such post.

12.As the EOC had no selection criteria for choosing the acting appointee, the EOC was in breach of the Code of Practice on Employment under the SDO issued by the EOC itself. By denying her the opportunity of acting up, wrongfully accusing her of performing poorly at work and terminating her employment without giving any reason or opportunity for her to explain, Madam Sit claims that there had been sex discrimination by way of victimisation against her.

(iii)  Relief claimed by Madam Sit

13.By reason of the alleged discrimination, harassment and victimization, Madam Sit claims the following relief:

(a)  loss of salary, bonus and other contractual benefits up to and including 9 September 1999;

(b)  continuing loss of salary, bonus and benefits;

(c)  loss of gratuity payment;

(d)  compensation for injury to feelings under s. 72(3) of the DDO and s. 76(6) of the SDO; and

(e)  punitive and exemplary damages.

14.In the opening submission, Mr. Aiken SC, counsel for Madam Sit, indicates that his client would not pursue the claim for continuing loss of salary, bonus and benefits.

The Defendants’ case

15.The Defendants dispute that they were guilty of any of the unlawful acts alleged by Madam Sit. According to the Defendants’ pleaded case, the EOC terminated Madam Sit’s employment by reason of her “persistent sub-standard performance”. In the Answers to Request for Further and Better Particulars of the Amended Defence filed on 16 February 2002, the Defendants rely on the following 9 incidents (“the 9 Incidents”) to support their allegation that the work performance of Madam Sit was sub-standard:

(i)  failing to properly relate instructions to, and to supervise, her subordinates regarding the preparation for a visit of the All China Federation of Women from Mainland China in July 1997;

(ii)  failing to properly relate instructions to, and to supervise, her subordinates in the preparation of a brief to commission a research study on the “genuine occupational qualification” under s. 12 of the SDO;

(iii)  failing to ensure that the latest version of the Executive Summary of the “Baseline Survey on Equal Opportunities on the Basis of Gender” as approved by Dr. Cheung was sent to the Government Printer;

(iv)  failing to properly handle and respond to a complaint by the Hong Kong Federation of Trade Unions delegation and the Coalition on Concern for Women’s Employment Rights regarding the incompatibility between certain provisions of the SDO and the Women and Young Persons (Industry) Regulations (“the WYPIR”) between November 1996 and April 1997;

(v)  insufficient knowledge, poor presentation skills and poor performance in answering questions relating to the incompatibility of certain provisions of the SDO and the WYPIR at a public seminar held by the EOC on 5 May 1997;

(vi)  failing to properly plan and organise the formulation and drafting of the Code of Practice under the Family Status Discrimination Ordinance, Cap. 527 according to the instructions given by Madam Ho in July 1997;

(vii)  failing to review all the complaints files handled by the Gender Division in accordance with the instructions given by Madam Ho, relying on subordinates to conduct the case review exercise for her, and Madam Sit’s defensive and unpleasant attitude towards Dr. Cheung when inadequacies of the case review exercise were pointed out to her;

(viii)  failing to properly supervise, monitor, direct or report the development of the Computerized Complaint Handling System (“CCHS”) between March and September 1997 and delegating the work to her subordinates without proper communication or supervision resulting in complications in a contractual dispute with LECCO Consultants Limited (“LECCO”), the supplier and developer of the CCHS, and Madam Sit’s defensive and unpleasant attitude towards Dr. Cheung and Madam Ho when the above failures were pointed out to her; and

(ix)  failing to prepare for management meetings resulting sometimes in Madam Sit having to leave the meetings to consult with her subordinates in order to answer queries from the management regarding issues within her sphere of responsibilities including: (a) the visit of the All China Federation of Women as mentioned above; (b) the “genuine occupation qualification” as mentioned above; and (iii) the CCHS project.

16.By reason of Madam Sit’s poor work performance, Dr. Cheung made a recommendation to the Administration & Finance Committee of the EOC (“the A & F Committee”) to terminate the employment of Madam Sit. In the meeting of the A & F Committee on 24 September 1997, Dr. Cheung made a report about the following 5 areas of deficiency of Madam Sit whilst working as the Director of the Gender Division (“the 5 Areas of Deficiency”):

(a)  poor work performance, including sub-standard performance as a senior administrator;

(b)  poor leadership, including inappropriate delegation of work to her subordinates, inadequate supervision and failing to provide proper guidance to her subordinates;

(c)  poor management skill, including failing to get herself informed of the details of the projects or works that she was supervising and insufficient contribution of ideas in meetings and the operation of the EOC;

(d)  poor public performance at seminars; and

(e)  inadequate knowledge about her job.

The Defendants are relying on the 9 Incidents as examples to substantiate their assessment of Madam Sit’s work performance as summarised in the 5 Areas of Deficiency.  The Defendants also claim that Madam Sit’s poor performance in at least one of the seminars had adversely affected the public image of the EOC.

17.In specific reply to the claims on disability discrimination and harassment, the Defendants claim that Madam Sit, like many other employees of the EOC, occasionally took time off to attend medical consultations, and Madam Sit had not told them of her alleged disabilities. Whilst the senior management of the EOC was not aware of any significant disabilities allegedly suffered by the Madam Sit, the treatments received by her could not have been caused by any consideration other than her persistent sub-standard work performance.

18.In specific reply to the claim on sex discrimination, it is the Defendants’ case that acting appointment was made on merits only. As Mr. Tong was a competent and suitable officer, he was appointed twice as Acting Chief Executive during the period of Madam Sit’s employment with the EOC. Further, the Legal Adviser, Madam Alexandra Papadopoulos (“Madam Papadopoulos”), was appointed once as the Acting Chief Executive during the relevant period, and so the selection of the acting appointee could not have been affected or influenced by consideration such as the gender of the appointee.

19.Regarding the complaint for not able to attend the training course held at Tsing Hua University, the Defendants simply say that it was not possible for all the senior staff of the EOC to attend the course at the same time. In 1997, Dr. Cheung and Mr. Tong attended the course with about half of the senior staff, and it was the plan of the EOC that the other remaining senior staff of the EOC, including Madam Ho and Madam Sit, would attend the next training course to be organised in 1998.

20.Relating to the complaint for not able to attend the overseas conference, namely “Rehabilitation International”, held in Seoul in September 1997, the Defendants say that that conference was actually about disability issues. As such conference was directly relevant to the work of Mr. Tong, it was only natural for him to attend the conference on behalf of the EOC. In fact, Madam Sit represented the EOC by herself to attend the Global Summit of Women in Miami in the United States in the period from 7 to 15 January 1997. Hence, the selection of delegates to attend overseas conferences had nothing to do with the gender of the particular delegate.

21.In defence to the claim on sex discrimination by way of victimisation, the Defendants maintain that Madam Sit had never mentioned to Dr. Cheung, whether in a meeting in May 1997 or on any other occasions, that the EOC would be guilty of sex discrimination if Madam Sit was denied the opportunity of acting up the post of Chief Executive. The treatments received by Madam Sit were only caused by her sub-standard work performance and she was not therefore victimised in any way.

History of the present litigation

22.I have already set out the history of this litigation in my decision given on 3 November 2008. However for the purpose of this judgment, I would also like to give a brief summary as to why this trial is taking place about 12 years after the termination of Madam Sit’s employment.

23.Madam Sit’s alleged causes of action accrued around the time when her employment was terminated on 25 September 1997. The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period. The writ was not served until September 2000 which was close to the end of the validity of the writ. There was then delay on the part of Madam Sit in the exchange of witness statements, and there was total inaction on her part in pursuing the action between September 2003 to September 2006. In view of the inaction on the part of Madam Sit, the Defendants had to issue 2 Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

24.In the period from the year 1999 to 2005, Madam Sit had also engaged in various satellite litigations against the EOC under the Personal Data (Privacy) Ordinance, Cap. 486 by making no less than 3 complaints to the Privacy Commissioner Office (“PCO”). Those complaints were all related to Madam Sit’s requests for personal data relating to the termination of her employment. She also lodged no less than 3 appeals to the Administrative Appeals Board (“AAB”) against the decisions of the PCO. All the appeals were dismissed by the AAB.

25.Madam Sit’s claim had all along been handled by a firm of solicitors until 28 September 2006 when she filed a Notice to Act in Person. There were then various interlocutory applications before the court in 2007 and 2008.

26.The trial date was originally fixed on 3 November 2008 with 15 days reserved. However, Madam Sit failed to turn up on the first day of the trial and applied by fax to adjourn the hearing. For the reasons given on 3 November 2008, I refused Madam Sit’s application and dismissed her claims against the Defendants.

27.On 28 November 2008, Madam Sit took out an application to set aside the order made by me on 3 November 2008. According to Madam Sit, she was suffering from adjustment disorder, depression and severe psychological stress in or about November 2008 and as a result she could not attend the trial. She also adduced expert medical evidence to support her application. As I accepted that Madam Sit could not attend the trial by reason of genuine sickness which necessitated in-patient treatment, I set aside the order made against her. The trial date had to be refixed to November 2009, and that is why this trial is now taking place about 12 years after the termination of Madam Sit’s employment.

Evidence in support of Madam Sit’s case

(i)  Madam Sit

28.There is no serious dispute between the parties about the legal principles to be applied in this case and the main battlefield is about factual issues. Hence, I propose to deal with the evidence of the witnesses first.

29.Apart from the evidence from his doctor Dr. Arthur Chiang Si Chung, Madam Sit is the only witness in support of her case.

30.Before joining the EOC, Madam Sit had worked in the Police Force up to the rank of Chief Inspector. She then studied law. After qualifying as a solicitor, she worked in the then Attorney General’s Chambers as Assistant Crown Counsel and later as Senior Crown Counsel. She resigned in 1992. Madam Sit later joined the Law Society of Hong Kong as Assistant Director (Complaints), and her duties involved consideration, analysis and investigation of all complaints of professional misconduct concerning solicitors practising in Hong Kong. In September 1996, Madam Sit joined the EOC as Director of the Gender Division.

31.Apart from handlingsome sex harassment complaints when she was working in the Complaints Against Police Bureau in the Police Force, Madam Sit had no previous experience in dealing with sex discrimination or other gender issues. She was chosen for the job mainly because of her legal training and her previous experience of handling investigation of complaints.

32.Her employment with the EOC commenced on 9 September 1996 and she completed the 6 months of probation on 8 March 1997.

33.According to Madam Sit, during her employment, favouritism was given to Mr. Tong in respect of acting appointment of the post of the Chief Executive both in the periods from the end of November 1996 to February 1997 and from 29 May to 13 June 1997. Further, Mr. Tong was chosen to attend the training course in Tsing Hua University from 18 March to 6 April 1997 and the overseas conference in Seoul from 23 to 30 September 1997. Madam Sit complains that there was no selection criteria or proceduresin the EOC for selecting the appointee for the post of the Acting Chief Executive or for nominating the staff to attend training course or overseas conference.

34.In May 1997, Madam Sit had a meeting with Dr. Cheung. During the meeting, Madam Sit asked for a chance to act up the post of the Chief Executive, and she made a hint that the EOC might be guilty of sex discrimination if she was not given such opportunity. She also asked Dr. Cheung whether there was any criteria for selecting the candidate for the acting appointment, and Madam Cheung simply did not reply.

35.According to Madam Sit, there was a practice in the Government that staff of the same rank would by rotation act up the post of their immediate supervisor every time when the latter was absent from office. This was the practice when she worked in the Police Force and the Attorney General’s Chambers.

36.It is Madam Sit’s case that favouritism was always shown to Mr. Tongdespite his poor work performance. Madam Sit claims that the filing system of the EOC was in a mess when Mr. Tong was acting as the Chief Executive, and Mr. Tong had not handled some of the complaints concerning disability discrimination in a satisfactory manner. Further, she suspects that Madam Ho had always invited Mr. Tong to discuss various matters relating to the administration of the EOC and the handling of complaints, and Mr. Tong was given opportunity to rectify his mistakes made in the case review exercise. According to Madam Sit, the EOC had not shown the same favouritism to her and the senior management was always critical of her work performance.

37.Similar favouritism was shown to Madam Papadopoulos despite her poor work performance. In this regards, some of Madam Sit’s complaints against the work performance of Madam Papadopoulos can be listed out as follows:

(i)  there was delay on the part of Madam Papadopoulos in preparing the written policy of the EOC on the protection of data privacy;

(ii)  she unfairly did not renew the employment of her subordinate who had lodged a complaint against her;

(iii)  she always took sick leave; and

(iv)  there was delay on her part in taking action against an organisation which published information leaflets using the EOC’s logo.

For the purpose of this judgment, I do not consider it necessary to set out each and every allegation against the work performance of Mr. Tong and Madam Papadopoulos in great detail.

38.According to Madam Sit, she suffered from pain in the right shoulder which radiated down to her fingers some time in 1997. She had also taken sick leave for about 12.5 days in the period from May to September 1997. Madam Sit had told Dr. Cheung and Madam Ho about her pain.

39.During the employment with the EOC, Madam Sit was responsible for supervising the CCHS project. On 3 September 1997, LECCO, the contractor for the project, by its solicitors issued a demand letter to the EOC for the outstanding payment under the project. The senior management of the EOC was concerned about the dispute with LECCO. On 9 September 1996, Dr. Cheung asked Madam Sit to stay behind after a management meeting to discuss the CCHS project. By that time, Madam Ho was also present. Madam Ho claimed that it was the fault of Madam Sit in failing to supervise the project properly, and as a result it caused the dispute with LECCO. Madam Sit denied the criticism. After some heated exchanges between them, Madam Ho left the meeting. Madam Sit was by then very emotional, and she told Dr. Cheung that she was frustrated because of her chronic pain and the unfavourable treatment that she received. She was depressed and was not able to sleep. She also told Dr. Cheung that she was allergic to the medication prescribed to her by her doctor. In that meeting, Dr.Cheung also discussed with her some other issues relating to her work performance.

40.On 25 September 1997, Dr. Cheung informed Madam Sit that her employment would be terminated. According to Madam Sit, Dr. Cheung by that time offered her the option of mutual termination so as to avoid the embarrassment of an outright dismissal. Madam Sit indicatedthat she would need time to consider her position. In reply, Dr. Cheung said Madam Sit had to be quick in making the decision. Madam Sit took sick leave on the following day. On 28 September 1997, Madam Sit received a formal letter from the EOC terminating her employment.

41.It is Madam Sit’s case that she had not been given any reasons for the termination of her employment. After her dismissal, Madam Sit and her solicitors had written a number of times to the EOC requesting for the supply of her personal records and data relating to the termination of her employment. Madam Sit complains that the EOC was in breach of the duties under the Personal Data (Privacy) Ordinance in failing to supply the requested personal data, although all her complaints had been dismissed by the PCO. Her appeals against the decisions of the PCO were also rejected by the AAB.

42.It is Madam Sit’s case that her employment had been terminated without complying with the Disciplinary Policy and Procedures of the EOC. According to such Procedures, warnings should be given to Madam Sit before the EOC was to terminate her employment.

43.Madam Sit also claims that as the EOC had no selection criteria for choosing the appointee for Acting Chief Executive, the Defendants were in breach of the Code of Practice on Employment under the SDO issued by the EOC itself and were therefore guilty of sex discrimination.

44.Relating to the 9 Incidents in support of the Defendants’ allegation of persistent sub-standard work performance, Madam Sit denies each and every single one of them. For the purpose of this judgment, I do not see it necessary to set out Madam Sit’s reply to all these allegations. At the trial, the parties focus on the following two incidents: (i) failure on the part of Madam Sit to review all the files herself under the case review exercise and the poor quality of the review; and (ii) failure on the part of Madam Sit to supervise the CCHS project properly. Hence I will just set out briefly Madam Sit’s reply relating to these incidents.

45.In respect of the case review exercise, Madam Sit agrees that it served as a quality control exercise and so she, as the Director of the Gender Division, should have reviewed all the files herself. However, it was her understanding by that time that she only need to review the files of the “active” cases, and so she restricted the exercise to those files. When the defence counsel cross-examines her on the evidence showing that it was her subordinate Madam Li Hing Yu Margaret (“Madam Margaret Li”) who had reviewed the files and not Madam Sit herself, Madam Sit cannot explain why she had passed the files to Madam Margaret Li for clarification. Madam Sit also agrees that there was room for improvement on the quality of her review, but she claims that such “mistake” was not serious enough to justify the termination of her employment.

46.For the CCHS project, Madam Sit claims that the dispute between the EOC and LECCO was whether certain additional work which required to be done was removal of bugs or enhancement. In the case of the latter, LECCO was entitled to charge additional payment under the contract. Madam Sit also says that as she was not a technical person, her subordinate Mr. Li Siu Kwai Joseph (“Mr. Li”), being the co-ordinator of the project, should have handled all the liaison work with LECCO relating to the technical aspects of the project. The contractor was chosen by the senior management of the EOC, and Madam Sit was not responsible for negotiating the terms of the contract. As Madam Ho had given express instruction not to release any money to LECCO until all the bugs in the system were removed, that was why LECCO had not received the outstanding payment and later issuedthe demand letter to the EOC. Further, she was not aware that Mr. Joseph Li had signed the letter of qualified acceptance which gave an excuse to LECCO to demand for outstanding payment. Before the demand for such payment, Madam Sit was not aware of anything went wrong with the project, and she therefore denies that there was inadequate supervision of the projecton her part.

47.After the termination of her employment with the EOC, Madam Sit was very depressed. She felt that there was loss of face and she could not face her previous colleagues or friends in the legal field. She therefore left Hong Kong and later obtained a job in the United Kingdom in 1999 involving the supervision of the practice of solicitors. Further on 23 December 1997, Madam Sit filed an application for leave for judicial review against the decision to terminate her on the ground of procedural unfairness. The application was refused by the High Court.

48.During cross-examination, Madam Sit admits the following:

(i)  at the relevant time, there were more female staff than male staff working in the EOC;

(ii)  there was always room for improvement in respect of her work performance in the EOC;

(iii)  it was important for her job to have a good knowledge of various matters relating to gender issues, and after working for about one year in the EOC, she had acquired some knowledge of the gender issues; and

(iv)  there were 2 Chief Equal Opportunities Officers working under her in the Gender Division, namely Mr. Joseph Li and Madam Margaret Li, but she recommended Mr. Joseph Li and not Madam Margaret Li to act as the Director (Gender) every time when she was absent from  office.

49.Madam Sit maintains that she welcomed criticisms in respect of her work performance, though she cannot remember one single instance where she accepted the criticisms from others relating to her work.

50.Madam Sit accepts that it was important for her job to maintain good working relationship with her subordinates. After the termination of her employment, Madam Sit learnt that nearly all the staff in the Gender Division had written a memo to Madam Ho on 11 September 1997 complaining about her poor work performance and attitude (“the 911 Memo”). However during the term of her employment, Madam Sit did not sense that there was any dissatisfaction among her subordinates relating to her work performance. According to Madam Sit, she had all along had a good working relationship with her subordinates, and she did not expect her subordinates to lodge a complaint against her.

51.By reason of the aforesaid conducts on the part of the Defendants, Madam Sit maintains that she had been subjected to unlawful sex and disability discrimination, disability harassment and sex discrimination by way of victimisation during the term of her employment.

(ii)  Dr. Arthur Chiang Si Chung

52.The second witness for Madam Sit’scase is Dr. Arthur Chiang Si Chung, whose witness statement has been admitted as evidence without the necessity of calling Dr. Chiang to testify himself.

53.Madam Sit was examined by Dr. Chiang in his clinic on 21 July 1997. According to the medical records, Madam Sit by then had 2 months’ history of acute right neck and shoulder pain. There was also distending feeling in the right arm in the mornings. Madam Sit also gave a history of drug sensitivity to penicillin. After the prescription of certain medication, Madam Sit called back and complained that there was swelling in her eyelids. Dr. Chiang therefore changed the medical prescription for Madam Sit.

54.At the commencement of the trial, Madam Sit has also applied to adduce medical evidence by one Dr. Lam Tat Chung Paul, who is of the view that Madam Sit was suffering from anxiety and other depressive symptoms some time in 1997. However, as Madam Sit had not raised such allegation in any of the pleadings or witness statements and there was a time lapse of about 12 years between the termination of Madam Sit’s employment and the trial, I do not consider it appropriate to grant leave to adduce new medical evidence at such a late stage of the proceedings. The details of my reasoning can be found in my Ruling given on 9 November 2009.

Evidence in support of the Defendants’ case

(i)  Dr.Cheung

55.The first witness for the Defendants’ case is Dr. Cheung. She has a very impressive curriculum vitae. She was trained as a psychologist with a Ph.D from the University of Minnesota. Dr. Cheung has been teaching in the Chinese University of Hong Kong since 1977 and she is now the Chairperson and Professor of the Department of Psychology. She has received various awards for her contributions to the community.

56.Dr. Cheung was the first chairperson appointed for the EOC. In 1996, she had to set up the structure of the EOC and to recruit its senior management staff. As Madam Sit had no previous experience in dealing with gender issues, she was recruited only in the second round of the recruitment exercise. It was expected that she could acquire more knowledge on the gender issues whilst working on the job.

57.The workload of the EOC was extremely heavy in the first year of operation. There was pressure for the implementation of the Codes of Practice on Employment and work of the EOC had attracted a lot of media attention by that time.

58.The daily administration of the EOC was headed by Madam Ho who was the Chief Executive. There were 2 respective operational divisions in the EOC which were headed by the Director (Gender) and the Director (Disability). Other directorate staff included Madam Papadopoulos as the Legal Adviser and Mr. Chan Yick Man Michael (“Mr. Chan”) as the Director (Planning and Administration). Being a small organisation entrusted with heavy duties, Dr. Cheung expected all the senior staff to work on their own.

59.Madam Ho was on leave for about 2 months during the probation period of Madam Sit, and so she did not have a lot of opportunities of evaluating the work performance of Madam Sit. By that time, Dr. Cheung noted that Madam Sit did not contribute much in meetings, but in Dr. Cheung’s view, that was not sufficient to deny the confirmation of Madam Sit’s employment. Further, all the staff of the EOC were overwhelmed with heavy workload in the first few months of operation, and so Dr. Cheung did not pay much attention to evaluate the work performance of individual staff.

60.After working together for more time, Dr. Cheung began to find that Madam Sit was not competent for her job. Apart from the 9 Incidents showing the persistent sub-standard performance, Dr. Cheung found that:

(i)  the draft speeches prepared by Madam Sit’s division were sub-standard;

(ii)  Madam Sit had very little contributions in meetings; and

(iii)  Madam Sit was not good at generating ideas, in particular in matters concerning gender researches.

61.As mentioned above, the senior management of the EOC was very concerned when the contractor for the CCHS project, LECCO, sent a demand letter to the EOC on 3 September 1997. On 9 September 1997, there was a heated exchange between Madam Ho and Madam Sit about the latter’s performance in supervising the CCHS project. In this regards, Dr. Cheung agreed with Madam Ho that that the work performance of Madam Sit, whether in respect of the supervision of the CCHS project or otherwise, was not up to standard.

62.By reason of the poor work performance, Dr. Cheung and Madam Ho made the provisional decision to terminate the employment of Madam Sit in early September 1997. Apart from the work performance, they took the view that Madam Sit had no self-awareness of her own weaknesses and areas of deficiency. Furthermore, Madam Sit was not receptive to feedback and she could become hostile when someone pointed out the problems to her or criticised her work performance. According to them, Madam Sit was a senior staff and her poor work performance and attitude would seriously affect the daily operation of a small institution like the EOC.

63.On 11 September 1997, Madam Ho received the 911 Memo from nearly all the staff in the Gender Division (9 out of 10) who lodged a complaint against poor work performance and attitude of Madam Sit. However according to Dr. Cheung, the decision to terminate Madam Sit’s employment had already been made by that time and so the 911 Memo did not contribute to Madam Sit’s dismissal.

64.On 24 September 1997, the Administration & Finance Committee of the EOC (“the A & F Committee”) had a special meeting to discuss the termination of Madam Sit’s employment. During the meeting, Dr. Cheung made a verbal report of the poor work performance of Madam Sit including the 5 Areas of Deficiency. After hearing the report, the members of the Committee made the decision to recommend the termination of Madam Sit’s employment. In the 9^th meeting of the EOC held on the following day, the EOC accepted the said recommendation of the A & F Committee.

65.Dr. Cheung therefore met Madam Sit on the same day in the presence of Mr. Chan. During that meeting, Dr. Cheung informed Madam Sit that her employment would be terminated with immediate effect. When Madam Sit asked her about the reasons of termination, Dr. Cheung told her generally that there were problems with her management of case files, staff management and insufficient knowledge of gender issues. Dr. Cheung offered her the option of mutual termination of employment to avoid the embarrassment of an outright dismissal. Madam Sit said she would need time to consider the matter. Dr. Cheung asked her to give the reply before noon on the following day i.e. 26 September 1997, but Madam Sit failed to give any reply before such time.

66.By reason of the previous exchange of memos and oral discussions between Madam Sit and the other senior staff of the EOC, Madam Sit should have been aware of the criticisms against her regarding her work performance. As Madam Sit refused to acknowledge these criticisms, Dr. Cheung considered that further written warning would not serve any particular purpose. Madam Sit’s employment was therefore terminated without any further warnings.

67.In specific reply to the claim on disability discrimination and harassment, Dr. Cheung says that the amount of sick leave taken by Madam Sit was by no means exceptional and she was not aware that Madam Sit was suffering from any significant disability by that time. Further, Madam Sit did not mention anything about her disabilities, whether in the meeting on 9 September 1997 or on any other occasions. Hence, the treatments received by Madam Sit had nothing to do with her alleged disabilities.

68.Regarding the claim on sex discrimination, Dr. Cheung says that the selection of appointee for acting post was based on merits only. As Mr. Tong had significant previous government experience as an Administrative Officer, acting appointment was offered to Mr. Tong. When Madam Ho was on leave in March 1997 and Mr. Tong was not available for acting appointment because of his attendance at the Tsing Hua course, Dr. Cheung selected Madam Papadopoulos to be the acting Chief Executive as, by that time, she had doubt about Madam Sit’s ability to manage the whole office and to make important decisions regarding the administration of the EOC. In a meeting the date of which Dr. Cheung cannot now recall, Madam Sit did ask for an opportunity of acting appointment. By that time, Dr. Cheung indicated that acting appointment was made based on merits only and not by rotation. She denies that Madam Sit had ever accused the EOC of sex discrimination if she was denied the opportunity of acting up.

69.In respect of the complaint of not able to attend the Tsing Hua course, Dr. Cheung says that it would have been bad for the management to let both directors of the operational divisions to attend the course at the same time. In any event, it was planned that the remaining senior staff, including Madam Ho and Madam Sit, would attend the course to be organised in the following year. About the overseas conference, Mr. Tong was asked to attend the conference in Seoul because that conference was about disability issues which were directly relevant to the job of Mr. Tong. In fact, Madam Sit attended an earlier overseas conference in Miami which related to gender issues.

70.Madam Sit had made a number of complaints against Mr. Tong and Madam Papadopoulosfor their alleged poor work performance. Upon investigation by some members of the EOC, all these complaints were found to be unsubstantiated. Dr. Cheung herself also disagrees with such complaints. In particular, Madam Papadopoulos was working on other more pressing issues by that time, and so Dr. Cheung did not consider that there was any delay on her part in preparing the EOC’s written policy on data protection. When Dr. Cheung is asked in cross-examination that she was more demanding on Madam Sit than the other senior staff, she replies that Madam Sit was the least competent amongst the 5 directorate staff of the EOC.

(ii)  Madam Ho

71.Madam Ho was the Chief Executive of the EOC at the relevant time. She joined the EOC in October 1996 and retired in September 1999. Before joining the EOC, Madam Ho had been working in the Labour Department for 28 years, and she therefore had extensive experience in labour administration and was conversant with the various labour legislations. She was the Assistant Commissioner for Labour before leaving the Labour Department in September 1996.

72.During the probation period of Madam Sit, the senior staff of the EOC were overwhelmed with a lot of pressing issues. Coupled with the fact that Madam Ho was absent from office for about 2 months, Madam Ho did not have a lot of opportunity in assessing the individual work performance of Madam Sit. However, Madam Sit’s shortcomings became more apparent after the first 6 months of her work.

73.As the task of the EOC is to educate the general public to eliminate discrimination, the Director of the Gender Division should have had a good understanding of the law and various matters relating to sex discrimination. Unfortunately, she found Madam Sit to be incompetent for her job.

74.As her direct supervisor, Madam Ho confirms the particulars of Madam Sit’s poor performance as pleaded in the Defendants’ case. In summary, Madam Ho found that Madam Sit had inadequate knowledge about various matters relating to her job, her preparation for meetings was poor, she seldom made any contributions in meetings, her preparation for the visit by the All China Federation of Women was sub-standard, her communication with the staff was poor, the quality of her written work was unsatisfactory and she required a lot of guidance in respect of her work. Madam Ho was particularly embarrassed when Madam Sit was performing badly in answering questions in one of the public seminars held in May 1997. According to Madam Ho, such poor performance would seriously affect the public image of the EOC.

75.Madam Ho was also disappointed with the performance of Madam Sit in the case review exercise. According to Madam Ho, such exercise served as a quality control exercise and so it was important for the most senior staff, ie. the Directors of the two operational divisions, to review all the files whether they were active or not. She had given express instruction to Madam Sit, and to Mr. Joseph Li when Madam Sit was absent from office, that the Director (Gender) should review all the files of her Division. Unfortunately, Madam Sit did not review the “non-active” files. Apart from that, she delegated the task of reviewing the files to her subordinates, there was delay in the completion of the exercise and the quality of the evaluation was sub-standard. Madam Ho voiced out her dissatisfaction in the memos exchanged between the parties. On the other hand, Mr. Tong completed his task for the files in the Disability Division in a satisfactory manner.

76.Madam Sit’s supervision of the CCHS project was also inadequate and sub-standard. She delegated the duty of supervision to her subordinates, and she had very limited knowledge about the development of the project. Although she agrees that Madam Sit might not be a technical person, it was still her overall responsibility to supervise the project. Madam Ho also denies that she had given express instruction not to release the payment to LECCO until all the bugs in the system were removed.

77.By reason of her poor work performance, Madam Ho had the idea of terminating Madam Sit’s employment in early September 1997. In a meeting on 9 September 1997 with Madam Sit and Dr. Cheung, Madam Ho voiced out her criticisms against Madam Sit’s performance relating to the supervision of the CCHS project. By that time, Madam Sit was very defensive and rejected the criticisms. There was then a heated exchange between them.

78.As Madam Sit always failed to take ownership of her responsibility and to acknowledge her shortcomings, Madam Sit posed a serious management problem to the EOC. Madam Ho therefore recommended the termination of Madam Sit’s employment, and she was eventually dismissed in the manner as set out in the evidence of Dr. Cheung.

79.Madam Ho agrees that one single incident might not have justified the termination of Madam Sit’s employment. However, the 9 Incidents taken as a whole show that Madam Sit’s work performance was persistently sub-standard.

80.Madam Ho also disagrees that the work performance of Mr. Tong or Madam Papadopoulos was unsatisfactory or in any way sub-standard. Though with the benefit of hindsight, she could have pressed Madam Papadopoulos to prepare the EOC’s written policy on data protection earlier but they were all overloaded with works by that time. Madam Ho acknowledges that it was her fault that the written policy was not available at an earlier time.

81.On 11 September 1997, Madam Ho received the 911 Memo signed by nearly all the subordinate staff in the Gender Division. In the Memo, the staff made the following complaints about the poor work performance of Madam Sit:

(a)  inadequate knowledge of the various matters relating to her work;

(b)  poor communication with staff;

(c)  constant delegation of her own responsibilities to her subordinates;

(d)  insufficient guidance given to her subordinates relating to the work assigned to them;

(e)  providing incorrect information to her superior; and

(f)  her attitude towards the subordinates had sometimes been outrageous.

82.After receiving the Memo, Madam Ho interviewed each of the complainants and made a record of such interviews. She gathered from these interviews that the staff had to summon up a lot of courage to put their complaints in writing.

83.As Dr. Cheung decided to terminate Madam Sit’s employment, Madam Ho did not proceed with the investigation of the complaints in the 911 Memo. In a meeting with the staff of the Gender Division on 29 September 1997, Madam Ho informed the staff that the investigation of the complaints was by then superseded by the termination of Madam Sit’s employment. Hence, Madam Ho would not proceed with the investigation of the complaints.

84.With the consent of Dr. Cheung, Madam Ho destroyed the 911 Memo together with the record of interviews with the use of the shredding machine. By that time, Madam Ho did not think about the possibility of litigation, and to her, there was simply no purpose in keeping the 911 Memo. She was also concerned about the possible leakage of information which might affect the reputation of Madam Sit. After the Memo was destroyed, a copy of that document later re-emerged when the Defendants were preparing for the exchange of witness statements. Madam Ho herself does not know how the EOC was later able to locate a copy of the document.

85.Apart from taking some usual sick leave, Madam Ho was not aware that Madam Sit was suffering from any of the disabilities alleged in the pleadings.

86.Madam Ho confirms various other aspects of the evidence of Dr. Cheung, in particular that relating to the selection of the appointees for acting appointments and the staff for attending overseas conferences and training courses. Further, given the negative attitude of Madam Sit as shown in the previous incidents, Madam Ho considered that it did not serve any purpose in issuing further warnings to Madam Sit before terminating her employment. She also considered that as Madam Sit’s work performance had all along been sub-standard, prior warning was not necessary under the Disciplinary Policy and Procedures of the EOC.

(iii)  Mr. Tong

87.Mr. Tong was the Director of the Disability Division of the EOC at the relevant time. Before joining the EOC, he had been working as an Executive Officer in the Government for 3 years, an Assignment Officer in the ICAC for 2 years and an Administrative Officer in the Government for 10 years. In 1991, he left the Government and joined the Hong Kong Aid Foundation as the Executive Secretary, the post of which was later renamed as the Chief Executive. He joined the EOC as the Director of the Disability Division in September 1996.

88.Mr. Tong’s testimony adds very little to what has already been covered in the evidence of the other witnesses. He nevertheless confirms that Madam Sit seldom contributed in meetings, and at least at one meeting, Dr. Cheung expressed her dissatisfaction about the work performance of Madam Sit. In respect of the case review exercise, he confirms that he had personally reviewed all the complaints files of the Disability Division by that time, whether they were “active” files or not. He denies that his work performance was sub-standard.

(iv)  Madam Papadopoulos

89.Madam Papadopoulos was the Legal Adviser of the EOC at the relevant time. She was qualified as a practising lawyer in Victoria of Australia in 1983. After that, she had been working in various criminal prosecution authorities in Australia specialising in fraud and drug trade cases. She was recruited to work in the Commercial Crime Unit of the then Attorney General’s Chambers in 1992. She joined the EOC as the Legal Adviser in September 1996.

90.As a lawyer, she found that Madam Sit’s understanding of the law was not solid, in particular that relating to the investigation power of the EOC. Madam Sit’s knowledge about women’s issues was also inadequate. Madam Sit seldom had any discussion with her relating to the work in the Gender Division.

91.At the trial, Mr. Aiken indicates to me that Madam Sit does not seek to challenge the work performance of Madam Papadopoulos. Despite that, Madam Sit made a lot of references to the alleged poor work performance of Madam Papadopoulos in her witness statements (though not in the pleadings), hence quite understandably, Madam Papadopoulos considers it necessary for her to make a reply to these allegations.

92.Madam Papadopoulos denies that her work performance was sub-standard. However, she frankly admits that she made some typing mistakes in preparing documents. She was also partly responsible for the delay in preparing the written policy on data protection, although she had to deal with other more pressing issues by that time. Further, she could not work on the policy alone as she need to consult others on the formulation of the policy.

93.Regarding the CCHS project, Madam Papadopoulos was surprised with the demand letter from LECCO’s solicitors. According to Madam Papadopoulos, Madam Sit should have approached her earlier for legal advice in order to resolve the differences between the parties. When she attempted to deal with the issue, she found that there were very little documents in the project file, which showed that there was inadequate supervision on the project on the part of Madam Sit. When she approached Madam Sit to clarify certain matters, Madam Sit alwayssought assistance from her subordinates. Given the limited information supplied to her, Madam Papadopoulos denies that her handling of the legal aspects of the project was poor.

94.In any event, Madam Sit had lodged a complaint with the A & F Committee on 9 February 1998 against the alleged poor work performance of Madam Papadopoulos. Upon investigation by 2 members of the EOC, the complaint was found to be unsubstantiated.

95.During the relevant period, Madam Papadopoulos was suffering from some kind of unknown illness. She usually had fevers in the mornings, there was arching in the joints and she felt either cold or hot most of the time. She usually felt exhausted after experiencing all such symptoms. She had been examined by doctors quite a number of times with no satisfactory explanation of her sickness. By reason of all these, Madam Papadopoulos had to take sick leave from time to time. Most of the staff working in the EOC knew about her sickness.

96.Regarding the 911 Memo, it was not disclosed in the Defendants’ first list of documents as the relevant file had been destroyed in 1997 and it was the view of the EOC that the 911 Memo did not contribute to the termination of Madam Sit’s employment. Such document did not come to light again until the staff of the EOC were being interviewed for the purpose of preparing witness statements for the present proceedings. In the process of doing so, a copy of the 911 Memo was anonymously sent to the Legal Division of the EOC. Apparently, one of the staff of the Gender Division might have kept a copy of the Memo, and sensing that such document might be relevant to the proceedings, a copy of the Memo was sent to the Legal Division. The Defendants then disclosed such document in a supplemental list of documents.

(v)  Mr. Chan

97.Mr. Chan was the Director of the Planning and Administration Division of the EOC at the relevant time, and his work mainly involved office administration and human and financial resources management within the EOC.

98.According to the personnel records of Madam Sit, she only took 3.5 days of sick leave during the term of her employment.

99.When Madam Sit’s employment was terminated, she was paid 3 months of salary in lieu of notice and other statutory entitlements.

100.Mr. Chan confirms Dr. Cheung’s evidence about what had happened in the A&F Committee meeting on 24 September 1997, the 9^th meeting of the EOC on 25 September 1997 and the meeting between Dr. Cheung and Madam Sit on the same day.

101.By the issuance of a formal memo by Mr. Chan on 19 September 1997, the Procedures for Handling Complaints and Grievances from EOC Staff and the Disciplinary Policy and Procedures of the EOC were implemented on the same day. Prior to the meeting of the A & F Committee on 24 September 1997, Mr. Chan made a suggestion about the giving of warning when he learnt about the possible termination of Madam Sit’s employment. By that time, Madam Ho told him that, given Madam Sit’s adverse reactions to the negative comments about her work, it was unlikely that she would respond positively to a written warning or that she would improve her work performance based on such warning. Hence she considered that there was no point in issuing further warning to Madam Sit. In any event, the Disciplinary Policy and Procedures provided that it was not necessary to give warning to an employee before termination of employment in the case of persistent sub-standard work performance.

(vi)  Mr. Joseph Li

102.Mr. Joseph Li was the Chief Equal Opportunities Officer working in the Gender Division at the relevant time and Madam Sit was his immediate superior. Prior to joining the EOC in September 1996, he had been working in the Labour Department for about 20 years up to the post of Senior Labour Officer.

103.Apart from taking some usual sick leave, he was not aware that Madam Sit was suffering from any disability.

104.Mr. Joseph Li’s evidence is mainly about 2 areas: (i) his role in the handling of the CCHS project; and (ii) the work performance of Madam Sit.

105.Regarding his work in the CCHS project, he was mainly involved in the liaison work between the EOC and the contractor LECCO. By that time, there were also other staff in the EOC assisting him. Although Madam Sit was his immediate supervisor in the project, she took very little interest in the project herself. No guidance was given by Madam Sit and all the major decisions were made by the working group on the project and not Madam Sit. Before Mr. Joseph Li signed the User Acceptance Test form which formed the basis for the demand of the outstanding payment by LECCO, he had consulted Madam Sit who raised no objection to the same.

106.Regarding his observation of the work performance of Madam Sit, Mr. Joseph Li mainly confirms the contents of the complaint mentioned in the 911 Memo and the other areas of deficiency mentioned in the evidence of the other Defendants’ witnesses.

107.By reason of the lack of leadership and incompetence on the part of Madam Sit, the morale of the staff in the Gender Division was extremely low in September 1997. The staff therefore lodged a complaint against Madam Sit as contained in the 911 Memo, and he was one of signatories of that Memo. After the termination of Madam Sit’s employment in late September 1997, the staff, at least implicitly, agreed to withdraw the complaint as the same was superseded by the termination of Madam Sit’s employment.

(vi)  Madam Margaret Li

108.As Madam Margaret Li is now residing in Vancouver in Canada, she is testifying at the trial through video-link facility.

109.Madam Margaret Li was the other Chief Equal Opportunities Officer working in the Gender Division at the relevant time. After serving in the Police Force for about 17 years, she joined the EOC in October 1996.

110.Apart from taking some usual sick leave, she was not aware that Madam Sit was suffering from any disability.

111.Madam Margaret Li’s evidence is mainly about 2 areas: (i) the work performance of Madam Sit; and (ii) her role in the case review exercise.

112.Regarding her observation of the work performance of Madam Sit, Madam Margaret Li confirms the contents of the complaint mentioned in the 911 Memo and the other areas of deficiency mentioned in the evidence of the other witnesses.

113.For the case review exercise, Madam Sit assigned Madam Margaret Li and Mr. Joseph Li to review the files in the Gender Division. At that time, they found it strange because they were being asked to review their own work. They completed the task as requested.

114.Some time in August or September 1997, Madam Sit did mention to Mr. Joseph Li and herself that the time had come for the senior management of the EOC to do something against Madam Sit. By that time, Madam Sit gave a lot of instructions to them on the voice mail even on some trivial and non-urgent matters. Madam Li believes that the reason for Madam Sit in doing so was to try to protect herself against any allegation of unsatisfactory work performance.

(viii)  Madam Tse Miu Ling Dora

115.Madam Tse was the personal secretary of Madam Sit at the relevant time, and the parties agree for her witness statement to be admitted as evidence without the necessity of calling her to testify at the trial. Her evidence is only relevant to the extent of determining the amount of actual sick leave taken by Madam Sit. According to the personal diary of Madam Sit as kept by Madam Tse, the former might have taken some more days of sick leave than the number shown in her personnel records. However as illustrated in the latter part of this judgment, it is not necessary for me to resolve the factual dispute as to the exact number of days of sick leave taken by Madam Sit at the relevant time.

The relevant statutory provisions

116.Having dealt with the evidence of the witnesses, I then turn to the legal principles involved in this case which are mainly undisputed.

117.I first set out the statutory provisions relevant to the claims. Madam Sit is making two claims under the DDO, namely disability discrimination and harassment. The statutory provisions relating to these two claims apply in the context of employment relationship. For our present purposes, ss. 11(2), 22(2) and 22(3) of the DDO are relevant:

“11(2) It is unlawful for the employer, in the case of a person with a disability employed by him at an establishment in Hong Kong, to discriminate against that person –

  ………

  (c)  by dismissing that person, or subjecting him to any other detriment.

  ………

  22(2)  It is unlawful for a person, in the case of a person with a disability employed by him at an establishment in Hong Kong, to harass that second-mentioned person.

(3)  It is unlawful for a person who is employed by another person at an establishment in Hong Kong to harass a third person with a disability who isseeking to be, or who is, employed by that second-mentioned person.”

118.Further, according to the statutory framework in the DDO, there are two kinds of discrimination: direct and indirect discriminations which are defined in ss. 6(a) and 6(b) respectively. In our present context, Madam Sit is relying on “direct discrimination” which is defined in s. 6(a) as follows:

“6.  A person discriminates against person in any circumstances relevant for the purposes of any provision of this Ordinance if –

(a)   on the ground of that other person’s disability he treats him less favourably than he treats or would treat a person without a disability;

   ………” (emphasis added)

119.In determining the issue of direct discrimination, s. 6(a) requires the court to compare the treatment of the complainant and that would be received by another person without disability. In this regard, s. 8 provides:

“A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

120.On the other hand, “harassment” is defined in s. 2(6) of the DDO:

“For the purposes of this Ordinance, a person (howsoever described) harasses another person if that first-mentioned person engages in unwelcome conduct (which may include an oral or written statement) on account of that second-mentioned person’s disability, ……in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the second-mentioned person would be offended, humiliated or intimidated by that conduct.” (emphasis added)

121.Madam Sit’s claims under the SDO are sex discrimination and discrimination by way of victimisation. Again the statutory provisions relating to sex discrimination apply in the context of employment relationship:

“s. 11(2)  It is unlawful for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her –

(a)   in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them;

(b)   in the terms of employment he affords her; or

(c)   by dismissing her, or subjecting her to any other detriment.”

122.So far as the claim for sex discrimination is concerned, Madam Sit is also relying on “direct discrimination” as defined in s. 5(1) of the SDO:

“s. 5(1)  A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if-

(a)   on the ground of her sex he treats her less favourably than he treats or would treat a man; or

………” (emphasis added)

123.Like the provisions in the DDO, the SDO allows for a comparator to be used for the purpose of determining whether the treatment received by the complainant is less favourable:

“s. 10  A comparison of the cases of persons –

(a)   of different sex under section 5(1);

      ………

shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

124.On the other hand, sex discrimination by way of victimisation is defined in s. 9 of the SDO:

“s. 9(1) A person (“the discriminator”) discriminates against other person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (“the third person”) has –

(a)   brought proceedings against the discriminator or any other person under this Ordinance;

(b)  given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;

(c)  otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or

(d)  alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance,

or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the person victimised or the third person, as the case may be, has done, or intends to do, any of them.

(2)  Subsection (1) shall not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

………”

Person under disability

125.There are a few legal issues which are relevant in determining liability in the present case.

126.Before Madam Sit can succeed in her claim on disability discrimination and harassment, she must be able to prove that she was a person under disability at the time when she worked in the EOC. “Disability” is defined in s. 2(1) of the DDO to mean:

“2(1) (a)  total or partial loss of the person’s bodily or mental functions;

  (b)  total or partial loss of a part of the person’s body;

(c)   the presence in the body of organisms causing disease or illness;

(d)   the presence in the body of organisms capable of causing disease or illness;

(e)   the malfunction, malformation or disfigurement of a part of the person’s body;

(f)   a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)   a disorder, illness or disease that affects a person’s thought process, perception of reality, emotions or judgment or that results in disturbed behaviour,

and includes a disability that –

(i)   presently existed;

(ii)previously existed but no longer exists;

(iii)   may exist in the future; or

(iv)   is imputed to a person.”

127.It is a very wide definition as observed by HH Judge Muttrie in paragraphs 38 and 44 of his judgment in L v. Equal Opportunities Commission, unreported, DCEO 1 & 6 of 1999 (decision on 13 November 2002):

  “38.  …… 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 a doctor 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 doctor 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.

    ………

  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 process 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.”

128.According to Madam Sit, she was suffering from serious neck and shoulder pain in the relevant period from May to September 1997. Her testimony is also supported by the evidence of Dr. Arthur Chiang who was her then treating doctor. By reason of the wide statutory definition of the term “disability”, I accept that Madam Sit was, at the material time, a person under disability under the provisions of the DDO.

The use of comparators

129.As mentioned above, in the case of direct discrimination under the SDO and the DDO, the law requires a comparator against whom the conduct applied to the complainant is measured. In his opening submission, Mr. Aiken submits that the proper comparators for the claims under the DDO and the SDO should be Madam Papadopoulos and Mr. Tong respectively.

130.In my judgment, they are not the appropriate comparators. The treatments received by Madam Sit might have been different from those applied to the two suggested comparators. However, their jobs and responsibilities were different from those of Madam Sit and their working abilities might not be the same. In such circumstances, there might be a lot of different reasons as to why they were treated differently, and so in my judgment, Madam Papadopoulos and Mr. Tong are not the appropriate comparators.

131.The identification of an appropriate comparator may sometimes cause unnecessary complication, and one of the examples is the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. In that case, the applicant was a chief inspector of the respondent chief constable’s police force. Under the force’s staff appraisal scheme, annual reports on constables were to be completed by superintendents, but in practice chief inspectors, including the applicant, did them. Following complaints by two constables about the applicant’s appraisals, and a meeting with the representatives of the Police Federation, the applicant’s superintendent decided to do the appraisals himself. The applicant objected that the two male chief inspectors in the other two divisions were still doing the appraisals, and so she complained to an industrial tribunal that she was being unlawfully discriminated against on the ground of her sex. The tribunal concluded that she had been unfavourably treated and, by a majority, that she had been discriminated against on the ground of her sex. The Court of Appeal in Northern Ireland allowed the appeal by the chief constable on the ground that no detriment had been established. The decision was affirmed by the House of Lords but on different grounds.

132.In respect of the identification of an appropriate comparator, the House of Lords held that the circumstances of the applicant’s case were different from those of the two male chief inspectors in that no complaint or representation had been made about their performance of the appraisals, and so the two male chief inspectors were not valid comparators for the purpose of the Sex Discrimination (Northern Ireland) Order 1976. The House of Lords nevertheless accepted that a comparator might be a hypothetical one and the lack of an actual comparator was not fatal to the applicant’s claim. However, the findings of fact did not support the conclusion of the majority of the industrial tribunal that the applicant had been treated less favourably because she was a woman and so it affirmed the decision of the Court of Appeal.

133.The relevant statutory provisions in the Shamoon case are similar to those in our SDO and DDO. Regarding the proper approach to be adopted by the court in such kind of circumstances, Lord Nicholls of Birkenhead said the following:

“ 7.  ……… When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the ‘reason why’ issue).  Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant.  Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

8.  No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  The two issues are intertwined.

9.  ……… She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not.  This might be the reason why she was treated as she was.  This might explain why she was relieved of her responsibilities and they were not. ………

  ………

11.  This analysis seems to me to point to the conclusion that employments tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”

134.I cannot agree more with the aforesaid observations made by His Lordship. As I see it, Madam Sit was taking up a senior post in the EOC with great responsibilities. As most of the senior staff of the EOC had doubt whether Madam Sit was competent for her job, the identification of an appropriate comparator would be difficult in the circumstances and the exercise may cause more unnecessary confusion. As suggested by Lord Nicholls in the Shamoon case, instead on finding an appropriate comparator, I should concentrate on the factual inquiry as to why Madam Sit was treated in the way as she was. In fact, all the parties here agree that this should be proper approach for this court.

The “reason why” or causation issue

135.Obviously, the central question I have to decide is whether the termination of Madam Sit’s employment and the other treatments received by her were due to the unlawful discrimination, victimisation or harassment as claimed by Madam Sit, or that the same were caused by Madam Sit’s persistent sub-standard work performance or some other reasons as maintained by the Defendants.

136.The task facing this court is very similar to that before HH Judge Saunders, as he then was, in Chang Ying Kwan v Wyeth (HK) Limited [2001] 2 HKC 129. In the Wyeth case, shortly after the plaintiff gave notice of pregnancy to the defendant who was her employer, the plaintiff was forced to resign. The plaintiff refused and complained to the EOC. Thereafter the plaintiff was refused salary increase and reporting requirements were imposed on her. She also felt pressurized at work. As a result, she made internal complaints which she alleged that the defendant had mishandled. After the plaintiff returned to work from maternity leave, her situation did not improve and she felt compelled to resign. After her resignation, the plaintiff claimed both pregnancy discrimination and discrimination by way of victimisation. She further argued that she was constructively dismissed.

137.The defence was that all the steps complained of by the plaintiff were taken in order to properly monitor her work and because she did not have the appropriate competence for her position. The fact of the plaintiff’s pregnancy was a mere coincidence. The defendant gave evidence that the other pregnant employees were not treated less favourably.

138.Like the situation here, the Wyeth case was fought mainly on the facts and there was no major dispute as to the law or principles to be applied. That was the first case in Hong Kong based on pregnancy discrimination. After carefully considered all the facts in the case, Judge Saunders found that the defendant was liable for unlawful pregnancy discrimination and discrimination by way of victimisation.

139.Although the case was fought mainly on the facts, the following legal propositions can be found in the judgment. Firstly, in cases of direct discrimination, the approach to determining whether there is less favourable treatment on the prohibited ground is the “but for” test enunciated by the House of Lords in R v Birmingham City Council, ex parte the EOC [1989] AC 1155, and James v Eastleigh Borough Council [1990] 2 AC 751. The same test is applied in cases of victimisation: see Nagarajan v London Regional Transport [2000] 1 AC 501. The test is an objective one, and a subjective or conscious intention or motive to discriminate is not a necessary condition of liability.

140.Secondly, in respect of the burden of proof in discrimination and victimisation cases, it is unusual to find direct evidence of discrimination, and discrimination usually depends upon what inferences it is proper to draw from the primary facts. In his judgment, Judge Saunders also approved the following dicta of Neill LJ in King v GB-China Centre [1992] ICR 516 at 528 (which was a case concerning racial discrimination in the United Kingdom):

“Though there will be some cases where, for example, the normal selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  In such circumstances the Tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds.  This is not a matter of law, but, as May LJ put it in North West Thames Regional Health Authority v Noone [1988] ICR 813 at 822 ‘almost common sense’.”

141.Thirdly, to assist a plaintiff in overcoming the difficulty of discharging the burden of proof, s. 4 of the SDO provides:

“s. 4  If-

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

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

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

Similar provision can be found in s. 3 of the DDO.

142.However, Judge Saunders held that s. 4 of the SDO cannot assist a plaintiff where the discrimination complained of is by way of victimisation. In a claim of such nature, the plaintiff must establish that at least one of the four facts set out in s. 9(1)(a) to (d) of the SDO was within the knowledge of the defendant at the time he carried out the acts complained of. Once that is established, in the absence of an adequate or satisfactory explanation, the plaintiff is able to establish victimisation on the balance of probabilities. The burden of establishing that there has been no adequate or satisfactory explanation of the conduct lies upon the plaintiff.

143.Fourthly, in a case of that nature which involved a lot of complaints and incidents over a long period of employment, the approach to evidence is to look at it in the round, in the context of employment and human relations, and the dignity and rights accorded to a person by equal opportunities legislation: see dicta of Donaldson LJ in Union of Construction and Allied Trades and Technicians v Brain [1981] IRLR 224.

Factual inquiry and the assessment of evidence

144.I agree with all these propositions of law. But despite the assistance offered by the case law and the statutes, I find that the treatments received by Madam Sit were not in any way caused by any of the prohibited grounds stated in the DDO or the SDO. To substantiate such finding, I need to analysis the evidence in some detail.

145.The bulk of the evidence relates to the work performance of Madam Sit in the EOC. I do not propose to look finely at every one of the 5 Areas of Deficiency or the 9 Incidents relied upon by the Defendants. Some of the incidents merely reflect that two different legitimate views may be taken of a situation. Some are clear as to right and wrong. Adopting the same approach of Judge Saunders in the Wyeth case, I propose to look at the evidence in the round, considering some of the detail of some of the incidents in this judgment. The fact that I have not dealt in fine detail with an incident does not mean that I have ignored it. I have had regard to the whole of the evidence.

146.In my judgment, the Defendants’ assessments of Madam Sit’s 5 Areas of Deficiency and the observations of her work performance in the 9 Incidents, whether they were too harsh or not, were all genuine and legitimate assessments of the work performance of Madam Sit. One must bear in mind that the EOC is a relatively small organisation, and being the head of the only two operational divisions in the EOC, the post of the Director of the Gender Division hada heavy responsibility of enforcing the law relating to sex discrimination and investigating all sex discrimination complaints in Hong Kong. Madam Sit also had the duty to supervise the staff and to ensure the smooth operation of the Gender Division. Bearing such responsibilities, good leadership skill and sound understanding of the various gender issues were therefore most important for the job. If Madam Sit was not discharging her duties properly, it would seriously affect the operation of the EOC. In such circumstances, it was quite reasonable for the management of the EOC to have some demands for Madam Sit in respect of her working ability and attitude. Unfortunately, Madam Sit had failed to meet such expectation.

147.All of the Defendants’ witnesses had long experience of working as administrators or investigators in the public sector. Dr. Cheung, with her previous experience, has clearly demonstrated that she has a deep understanding of various gender and discrimination issues. She also has high aspiration of eliminating all kinds of unlawful discrimination in Hong Kong.

148.Madam Ho, on the other hand, has impressed me as an experienced, effective and “no non-sense” type of administrator. She gives her evidence in a straightforward manner without any hint of evasiveness. Obviously, she had the heavy responsibility to ensure the smooth operation of the EOC, and she also had to ensure that all the senior management staff of the EOC were discharging their duties properly. She is also willing to admit her own mistakes, for example in failing to ensure that the EOC’s written policy on data protection was ready at an earlier time. With such willingness to admit her own shortcomings, it certainly makes her evidence and assessment more objective and reliable.

149.Madam Papadopoulos was an experienced lawyer who had previously worked in a number of institutions relating to criminal prosecution work. She also readily accepts responsibility for her fault in respect of the delay in preparing the written policy on data protection. Mr. Tong, Mr. Chan, Mr. Joseph Li and Madam Margaret Li also held senior positions in other institutions before joining the EOC.

150.These witnesses all made individual negative comments about the work performance and attitude of Madam Sit. Some of these comments were well documented in memos and seminar feedback evaluation forms, and the evidence of the Defendants’ witnesses corroborates against each other. To suggest that these comments were not genuine observations and there was a hidden agenda behind the termination of Madam Sit’s employment, it would virtually mean that all these witnesses were working together, if not conspiring with each other, to get rid of Madam Sit at the material time. In my judgment, this could not have been the case. On the whole, I find all the Defendants’ witnesses to be honest and truthful witnesses.

151.On the other hand, I find Madam Sit to be an extremely sensitive person. To illustrate the point, one of her complaints is that she was not chosen to attend the overseasconference of “Rehabilitation International” held in Seoul in September 1997. However, it is clear from the evidence that that particular conference was about disability and rehabilitation issues which were directly relevant to the work of Mr. Tong. In such circumstances, it would only have been sensible to send Mr. Tong to attend the conference, and one cannot quite understand why Madam Sit was so aggrieved by such decision. For myself, I am very surprised that such allegation comes from the very person who was formerly in charge of the Gender Division in the EOC.

152.When Madam Sit is asked about her grievance at the trial, she says that, being the Director of the Gender Division, she should also be given the opportunity to learn more about disability discrimination issues. But in my judgment, this complaint is totally unjustified. It was clearly a sound management decision not to send Madam Sit to attend the conference which was not directly related to her work, and to do otherwise would certainly be considered as a waste of public money. In fact, Madam Sit represented the EOC by herself to attend the Global Summit of Women in Miami in the United States in the period from 7 to 15 January 1997.

153.I am also surprised by the connotation of such complaint. According to Madam Sit, Mr. Tong had been given “paid leave” to attend the overseas conference. However, overseas duty is not a fringe benefit as alleged by Madam Sit. Overseas visits are funded by public money and an officer attending an overseas conference is actually working during the visit. I do not expect such allegation to come from a former senior administrator working in a public institution.

154.In his submission, Mr. Aiken has very sensibly agreed that Madam Sit will not rely on such complaint in support of her claim for sex discrimination, but the fact that Madam Sit took a strong view about this particular complaint shows that she lacks objectivity in assessing the treatments received by her. Hence I have grave reservation about the reliability of her evidence.

155.The same observation can be made about her complaint of not able to attend the Tsing Hua course. The original plan of the EOC was to send all the senior staff to attend the courses, one to be organised in 1997 and the other one in the following year. It was certainly a sound management decision not to send both heads of the operational divisions to attend the course at the same time. Further, out of the 18 delegates to attend the training course in March 1997, 12 of them were females. In such circumstances, I cannot quite understand why Madam Sit can say that the decision to send Madam Ho and her to attend the second course was a decision partly influenced by their gender.

156.Further, some of Madam Sit’s evidence is based on feeling and suspicion only. One of the clear examples is Madam Sit’s suspicion that Madam Ho had always invited Mr. Tong for discussion relating to the administration of the EOC. In her testimony, Madam Sit admits that her observation is only a mere suspicion without any substantive proof. As I see it, if Madam Sit herself took the initiative and adopted a more co-operative attitude, I am quite sure that Madam Ho, being a responsible administrator, was more than happy to discuss the work with her.

157.Madam Sit has a very strong feeling that she had been unfairly treated. She complains that there was favouritism shown to Mr. Tong and Madam Papadopoulos, and consequentially she was denied equal opportunities in respect of various matters relating to her employment. In terminating her employment without any prior warnings or opportunity to explain, there was also procedural unfairness in the process. However assuming that these allegations are factually correct, which I have grave reservation, does it mean that the Defendants had discriminated, harassed or victimised her by reason of the proscribed grounds? It might not have been the case. The law does not require an employer to provide equal opportunities to every employee, say, to be given the chance of acting up a more senior post, so long as the decision for choosing the appropriate candidate is not in any way influenced or caused by the prohibited grounds stated in the various anti-discrimination ordinances.

158.Further, if there was any unlawful discrimination on the part of the Defendants, it is very difficult to understand why Madam Sit, whose work was related to the enforcement of anti-discrimination legislation, had not included such complaint in her application for leave for judicial review lodged on 23 December 1997 and in her complaint letter to the Chairman of the A & F Committee dated 9 February 1998. If she genuinely felt that she had been victimised because of unlawful discrimination, one would expect her to raise such complaint at the first available opportunity, and yet Madam Sit had not done so in the present case. When she is cross-examined at the trial on this particular issue, apart from perhaps feeling depressed by that time, Madam Sit cannot offer any explanation for the omission of such complaint. This certainly casts doubt on the genuineness of her allegation.

159.I appreciate that it may be very difficult for a complainant to prove that he or she has been unfavourably treated by reason of discrimination. But in my judgment, there is not even one single hint in the evidence which may suggest that the management decisions of the EOC were affected by the proscribed grounds.

160.So far as the complaints relating to sex discrimination are concerned, the EOC had actually employed more female staff than male staff at the material time, and that was the case even in the senior management level. Madam Papadopoulos was a female staff and she had been selected to act as the Chief Executive for a certain period. Further, Madam Sit had two Chief Equal Opportunities Officers working under her, namely Mr. Joseph Li and Madam Margaret Li, and yet Madam Sit recommended Mr. Joseph Li to be the Acting Director (Gender) every time when she was absent from office. Obviously, such kind of decisions in the EOC were made based on merits and operational needs and not because of the gender of a particular employee. Further, it clearly shows that acting appointment was not based on rotation as alleged by Madam Sit.

161.In her oral testimony, Madam Sit seems to suggest that the EOC was in breach of paragraph 10 of the Code of Practice on Employment under the SDO. As the EOC had no consistent selection criteria for choosing the candidates for training and acting appointment, the EOC is, says Madam Sit, guilty of unlawful discrimination. However, I accept the evidence of Dr. Cheung that decision on acting appointment was based on merits and so there were indeed selection criteria in force at the material time. Further, Madam Sit seems to suggest that the absence of selection criteria would automatically lead to a finding of discrimination. This is clearly a misconception as, according to s. 69(14) of the SDO, failure to implement the recommendations outlined in the Code can be used as evidence in court, but that is far from being an automatic finding of discrimination against the employer.

162.Regarding the complaints of disability discrimination and harassment, even for the purpose of argument that Madam Sit was taking more than 3.5 days of sick leave in the period from May to September 1997, there is no evidence to show that anyone in the EOC did pay particular attention to the amount of sick leave taken by Madam Sit. In this regard, I also accept the evidence of the Defendants’ witnesses that according to their perception, Madam Sit was not taking more than the normal amount of sick leave at the material time. In fact, if the management of the EOC was concerned about the disability and the sick leave, there should have been some mention in the documents or correspondence referring to the frequent absence of Madam Sit in the office, and yet there was none in the present case. Further, the disabilities alleged by Madam Sit were not particularly serious, and such trivial matter should not have caused any concern to the management of the EOC. The evidence also shows that Madam Papadopoulos was suffering from a more serious kind of sickness at the relevant time, and yet Madam Papadopoulos was offered the opportunity of acting appointment and her employment was not terminated by the EOC. It clearly shows that the management of the EOC had no bias against disability and the treatments received by Madam Sit were not in any way influenced by such proscribed ground.

(i)  Destruction of the 911 Memo

163.In his submission, Mr. Aiken relies heavily on the destruction of the 911 Memo with a view to establish that there must have been a hidden agenda behind the termination of Madam Sit’s employment and the various treatments received by her.

164.However according to Dr. Cheung and Madam Ho, by reason of Madam Sit’s poor work performance as observed by them, they had already made the decision to terminate Madam Sit’s employment in early September 1997, and the 911 Memo therefore did not contribute to the termination of Madam Sit’s employment. By working together with Madam Sit, Dr. Cheung and Madam Ho were quite capable of forming their own opinion on the poor work performance although some of Madam Sit’s shortcomings were also reflected in the 911 Memo.

165.According to Madam Ho, there was no need to investigate the complaint against Madam Sit in the Memo as it was superseded by subsequent event of the termination of Madam Sit’s employment. Madam Ho also took the view that the destruction of the Memo could protect the privacy and the reputation of Madam Sit. Madam Ho therefore, rightly or wrongly, destroyed the Memo with the use of the shredding machine.

166.In my judgment, the contents of the 911 Memo actually support the EOC’s case that the real reason of terminating Madam Sit’s employment was because of her poor work performance. In such circumstances, there was no reason for the EOC to destroy the 911 Memo other than the genuine reasons given by Dr. Cheung and Madam Ho. Although with the benefit of hindsight, it might not have been appropriate to destroy the document so soon after the termination of Madam Sit’s employment (as observed by the AAB in paragraphs 32 and 33 of its decision handed down on 27 July 2004), I am satisfied that the destruction was only a genuine mistake and there was no hidden agenda behind the whole episode.

167.During the preparation of the witness statements, a copy of the 911 Memo resurfaced. Apparently, one of the staff kept a copy of the Memo, and sensing that the document might be relevant to the case, that particular staff sent a copy of the Memo to the Legal Division of the EOC. The document was then immediately disclosed in the present proceedings. In fact, the disposal of the 911 Memo and the resurfacing of the document were the subject matters of the investigation conducted by the PCO leading to successive appeals before the AAB. Madam Sit complained that the EOC had withheld such document from her and was therefore in breach of its duty to supply personal data under the Personal Data (Privacy) Ordinance. The complaint had been considered by the AAB which held that the EOC had sufficiently answered Madam Sit’s requests for personal data, and there was no evidence to show that the EOC had withheld the 911 Memo from Madam Sit at any stage.

168.By way of amendments to the pleading, Madam Sit also seeks to rely on paragraph 14.1.5 of the Code of Practice on Employment under the SDO relating to the keeping of record of termination of employment for 12 months. However, such provision does not purport to govern what records ought to be kept. As the EOC genuinely took the view that the 911 Memo did not contribute to Madam Sit’s employment, sufficient record of the termination was kept by the retention of the documents such as the minutes of the A & F Committee meeting on 24 September 1997, the minutes of the 9^th EOC meeting on 25 September 1997 and the letter of termination.

169.There may be some confusion in the evidence as to who initiated the withdrawal of the complaint contained in the 911 Memo in the meeting on 29 September 1997. However, I am satisfied that there was a consensus in that meeting for the withdrawal of the complaint, and the confusion as to the exact person initiating the withdrawal is, in my judgment, quite immaterial. Hence, I do not find that the destruction of the 911 Memo in any way affects the creditability of the defence case.

(ii)  Failure to give warnings prior to the termination of employment

170.In his submission, Mr. Aiken also argues that the EOC had at the relevant time adopted a generally tolerant attitude towards its staff. Its management did not properly prioritize work, communication was inefficient and sub-standard performances of the EOC’s employees were absolved, and one of the examples was the delay on the part of the Legal Adviser to produce the EOC’s written policy on data protection. Taking into account such attitude, it was most unusual, says Mr. Aiken, for the EOC not to follow the Disciplinary Policy and Procedures in giving warnings to Madam Sit prior to the termination of her employment. Hence, there must have been a hidden agenda and the Defendants’ purported reasons for dismissing Madam Sit was only an afterthought on their part.

171.I do not accept such argument. Firstly, it has all along been the view of the EOC that the provisions relating to giving of warnings under the Disciplinary Policy and Procedureswere not applicable in the circumstances. The reasons are three-fold:

(i)  the decision to terminate Madam Sit’s employment had already been made before the implementation of the Disciplinary Policy and Procedures on 19 September 1997;

(ii)  the termination of Madam Sit’s employment was not a disciplinary matter; and

(iii)  even under such Procedures, warning was not required in the case of persistent sub-standard performance of the relevant employee.

In my judgment, there is simply no reason for me to doubt the genuineness of the view taken by the EOC at that particular time.

172.Secondly, the conduct of the EOC needs to be considered in the light of the circumstances at the relevant time. The evidence clearly shows that the working relationship between Madam Sit and the senior management of the EOC had broken down in early September 1997. Madam Sit disagreed with the criticisms against her work performance, and as a result there were heated debates in the exchange of memos and the meeting on 9 September 1997. Obviously, such kind of breakdown in trust and communication would seriously affect the operation of a small institution like the EOC, and I can fully understand why the EOC wanted to terminate the employment of Madam Sit as soon as possible.

173.Thirdly, from the feedbacks given by Madam Ho in respect of Madam Sit’s performance in the seminar in May 1997, the conduct of the case review exercise and the supervision of the CCHS project, it is clear that she was not satisfied with the work performance of Madam Sit before the termination of the latter’s employment, and Madam Sit was by then fully aware of such criticisms. Given such circumstances, it was quite reasonable for Dr. Cheung and Madam Ho to have taken the view that further warnings would not help to improve the situation, and hence no adverse inference should be drawn against the Defendants for failing to give any further warnings.

174.Fourthly, I do not accept that the senior management of the EOC was particularly harsh on Madam Sit whilst adopting a more tolerant attitude towards the other employees. Whilst I agree that one single incident of the 9 Incidents might not have been serious enough to justify the termination of Madam Sit’s employment, the cumulative effect of these incidents did. Further, the negative attitude of Madam Sit would have a serious impact on the effective communication within the senior management of the EOC, and the 5 Areas of Deficiency would also affect the daily operation of the institution. Save for perhaps one particular instance such as the delay in the preparation of the written policy on data protection, I accept that the work performance of the other senior staff such as Mr. Tong and Madam Papadopoulos was generally satisfactory. At least, they were more receptive to criticisms which I consider to be an important attribute of a senior administrator. Hence, I see no merits in Mr. Aiken’s argument about the failure to give prior warnings.

175.There is also an allegation that one of the EOC’s male staff, namely Mr. Joel Leung, was allowed to invoke the provisions in the Procedures for Handling Complaints and Grievances from EOC Staff in respect of the extension of his probation period, whereas no such allowance was given to Madam Sit. However, Mr. Leung’s probation was extended in April 1997 which was much earlier than the date of the implementation of the said Procedures (ie. 19 September 1997), and so I cannot quite understand the basis of such argument. That may be the reason why Mr. Aiken does not pursue such allegation at the trial.

Specific findings on the victimisation claim

176.The claim on discrimination by way of victimisation is based on the alleged “hint” of sex discrimination made by Madam Sit in a meeting with Dr. Cheung in May 1997. Since I prefer to accept the evidence of the Defendants’ witnesses, I do not find that Madam Sit had made such accusation whether in that meeting or on any other occasions. As Madam Sit has failed to prove that the Defendants were aware of any of the acts mentioned in s. 9(1)(a) to (d) of the SDO and the subsequent treatments received by her had nothing with her gender, Madam Sit’s claim for discrimination by way of victimisation must also fail.

177.Further, I must add that the victimisation claim was only made by Madam Sit by way of amendments to the pleading in 2007. Madam Sit should be a person with some knowledge of sex discrimination legislation, and so it is very difficult to understand why such claim was only first made 10 years about the termination of her employment. This also undermines the creditability of her claim on victimisation.

Conclusion and other related issues

178.Based on the aforesaid, I come to the firm conclusion that the present case only involved a personnel dispute between Madam Sit and the senior management of the EOC. The termination of Madam Sit’s employment and the conducts applied to her by the Defendants were not in any way caused by her gender or her alleged disabilities, and so the Defendants are not guilty of any of the alleged unlawful acts. I therefore dismiss all of Madam Sit’s claims.

179.Very serious allegations are made in the present case, in particular they come from a senior staff of the EOC in charge of the Gender Division against the other senior staff of the EOC who were responsible of eliminating discrimination in the community. Regrettably, there is no evidence to substantiate the complaints which are, in my judgment, no more than suspicion on the part of Madam Sit. As I see it, this litigation was causing a lot of unnecessary stress and damage to all the parties involved, and I hope that this judgment can finally bring an end to this most unfortunate dispute.

180.It would generally be desirable for the trial judge to assess the quantum of the plaintiff’s claim in case that the case goes elsewhere and a contrary view is taken about the liability of the defendant. However since I myself find that the evidence of Madam Sit is unreliable and the issues relating to quantum are fact-sensitive, it may not serve any meaningful purpose if I proceed to assess the quantum of the claim. I therefore decline to do so in this case.

181.Both counsel anticipate that there will be serious argument on costs. In particular, there are special costs provisions relating to SDO and DDO claims as contained in ss. 73B(3) and 73C(3) of the District Court Ordinance, Cap. 336. They would also like to reserve their costs submissions pending the factual findings to be made by the court. In such circumstances, I will not make any order nisi on costs, and I would direct the parties to fix a separate hearing before myself to deal with the costs issue.

182.Finally, I would like to express my gratitude to all the counsel for the assistance that they have rendered to this court.

Mr. Nigel Aiken SC, Mr. Kenneth Lee and Mr. Andrew Mok, instructed by Messrs. T. K. Cheng & Co., for the Plaintiff

Mr. Peter Ng SC and Mr. Raymond Leung, instructed by Messrs. Baker & McKenzie, for the Defendants

Please refer to HCMP1117/2011 for the relevant appeal(s) to the Court of Appeal.