Sit Ka Yin Priscilla v. Equal Opportunities Commission and Others
Read the full judgment text of HCMP 1117/2011 on BabelCite. This High Court CFI judgment was delivered on 4 November 2011.
1. The 1 st Defendant (Equal Opportunities Commission) ("EOC") was established as an independent statutory body in 1996 to implement, inter alia, the Sex Discrimination Ordinance ("SDO") and the Disability Discrimination Ordinance ("DDO") which came into full operation in December 1996.
Cited by 6 cases · Cites 3 cases
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HCMP 1117/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 1117 OF 2011 (ON AN INTENDED APPEAL FROM DCEO NO. 11 OF 1999) ----------------------- BETWEEN
----------------------- Before: Hon Tang VP and Fok JA in Court Date of Hearing: 25 October 2011 Date of Decision: 4 November 2011 _______________ DECISION _______________ Hon Tang VP: Introduction 1.The 1st Defendant (Equal Opportunities Commission) ("EOC") was established as an independent statutory body in 1996 to implement, inter alia, the Sex Discrimination Ordinance ("SDO") and the Disability Discrimination Ordinance ("DDO") which came into full operation in December 1996. 2.The 2nd Defendant was its chairperson from 20 May 1996 to 31 July 1999. 3.The 3rd Defendant was its Chief Executive from 1 October 1996 to 29 September 1999. 4.The Plaintiff was employed as a director of the Gender Division ("Director (Gender)") under a contract evidenced by an offer letter dated 1 August 1996 and a letter of acceptance dated 5 August 1996. Before the Plaintiff joined the EOC, she had worked in the Police Force to the rank of Chief Inspector. She then qualified as a solicitor and worked in the Attorney General's Chambers as Assistant Crown Counsel and later Senior Crown Counsel. She resigned in 1992 and then joined the Law Society of Hong Kong as Assistant Director (Complaints). 5.As was explained by the 3rd Defendant in her witness statement of 4 April 2003:
6.The Plaintiff's employment with the EOC commenced on 9 September 1996 and she completed 6 months' probation on 8 March 1997. Her employment was terminated on or about 25 September 1997. 7.The present action was commenced on 24 September 1999, although not served until September 2000. In this action, the Plaintiff claimed against the Defendants for, inter alia, damages for disability discrimination, sex discrimination and victimization under the SDO. The action was inactive between September 2003 and September 2006. However, the Plaintiff made three complaints against EOC under the Personal Data (Privacy) Ordinance (Cap. 486) to the Privacy Commissioner Office as well as three appeals to the Administrative Appeals Board against the decisions of Privacy Commissioner Office. The appeals were dismissed by the Board. In the meantime the Defendants had issued two Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively. 8.On 28 September 2006, the Plaintiff filed a Notice to Act in Person. There followed a number of interlocutory applications before the court in 2007 and 2008, which resulted in adverse costs orders against her. See para. 14 below. 9.On 16 April 2008, the trial was fixed to commence on 3 November 2008 with 15 days reserved. She failed to attend the trial on 3 November 2008, as a result District Judge Lok dismissed her claim. 10.By summons dated 28 November 2008, she applied to set aside the judgment of 3 November 2008. There was a hearing on 16 March 2009 where the Plaintiff was represented by Mr Philip Dykes SC and Mr Kenneth Lee. On 16 March 2009, Judge Lok set aside the judgment and handed down his reasons for decision on 2 April 2009. 11.As a condition to setting aside the judgment, Judge Lok ordered that the Plaintiff pay into court the sum of $450,000 as security for "a number of costs orders made against the Plaintiff before the trial date in November 2008". Para. 39 of the decision of 2 April 2009. He also ordered the Plaintiff to pay the costs of "the trial in November 2008" as well as the costs of the application to set aside the judgment of 3 November 2008. The above costs orders are the subject of an application by the Plaintiff for leave to appeal out of time. I will deal with this application later in the judgment. The Trial 12.The trial eventually took place on 9 November 2009 ("the Trial"), and took 9 days. The judgment was handed down on 11 February 2010 ("the Judgment"), where her claims against the Defendants were dismissed. 13.There was a hearing on costs on 27 August 2010. The Plaintiff was represented by Mr Philip Dykes SC and Mr Andrew Mok. The decision on costs ("the Decision") was handed down on 27 October 2010 and she was ordered to pay the costs of the proceedings to the Defendants under sections 73B(3) (which covers proceedings under the SDO) and 73C(3) (for proceedings under the DDO) of the District Court Ordinance (Cap. 336) ("DCO"). This Court 14.By summons dated 14 June 2011, the Plaintiff asked for leave to appeal out of time against the Judgment, the Decision, as well as certain costs decisions made in various interlocutory decisions dated 21 September 2007, 23 November 2007, 16 April 2008 and 30 May 2008 and 16 March 2009 respectively. I shall refer to them collectively as "the interlocutory costs orders". 15.The Plaintiff, was represented by Mr Peter Duncan SC and Mr Tony Ko, and the Defendants, Mr Peter Ng SC and Mr Raymond Leung. The Judgment 16.Disregarding for the moment that the Plaintiff is applying for leave to appeal out of time, leave to appeal should not be granted in any event unless:
17.The Plaintiff's claim can be briefly stated. On disability discrimination, it was her case that she suffered from these disabilities in about June 1997:
18.She alleged that with knowledge of such disabilities, the 2nd and 3rd Defendants made "unjustifiable criticisms against her work performance whilst ignoring the poor work performance of the other employees". Judgment Para. 8. 19.On SDO, her complaints have been summarized by the learned Judge as follows:
20.The Defendants' case was that the Plaintiff's employment was terminated because of "5 areas of deficiency of (the Plaintiff) …", Para. 16, and they relied on the 9 Incidents set out in Para. 15 "to support their allegation that the work performance of (the Plaintiff) was sub-standard". In relation to the claim on sex discrimination by way of victimisation, the Defendants' case was that:
21.The 9 Incidents were:
22.The learned Judge after hearing the oral evidence of the Plaintiff and a number of witnesses for the defence including the 2nd and 3rd Defendants, concluded:
23.The learned judge was satisfied that the termination of the Plaintiff's employment and the Defendants' conduct towards her were not in any way caused by her gender or her alleged disabilities and that none of the alleged unlawful acts relied on by the Plaintiff was made out. Nor had she been victimized as alleged or at all. He said:
24.In coming to his conclusion the learned judge followed the approach recommended by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 and concentrated on the factual enquiry why the Plaintiff was treated in the way she was (Para. 134). 25.Lord Nicholls said:
26.Mr Duncan submitted that the learned judge was wrong in following the approach of Lord Nicholls in Shamoon. He submitted that there is an important difference between the legislation under consideration in Shamoon [Sex Discrimination (Northern Ireland) Order 1976] and the Hong Kong legislation. He pointed to the fact that under section 3 of DDO and section 4 of SDO, it would suffice if the discrimination was a reason (whether or not it is the dominant or a substantial reason for doing the act) whereas in England or Ireland, it may be as Lord Nicholls said in Nagarajan v London Regional Transport [2000] 1 AC 501 at 512 – 513, discrimination is made out only if the proscribed acts "had a significant influence on the outcome". 27.But, the approach recommended by Lord Nicholls does not depend on whether the discrimination was a reason or the dominant or a substantial reason. 28.Mr Duncan then submitted that the learned judge's adoption of the Shamoon approach might have been led him to think that the Plaintiff's claim on discrimination would fail even if one of the proscribed grounds was a reason for her treatment. With respect, there is no indication that the learned judge was under any such misapprehension. Indeed, as Mr Peter Ng has pointed out, it is obvious from the judgment that the learned judge had categorically rejected the Plaintiff's suggestion that the Plaintiff's treatment had anything at all to do with any of the proscribed reasons. The learned judge said:
29.On the victimization claim under section 9(1) SDO, Mr Duncan submitted that although the learned judge had on the fact rejected the Plaintiff's case that the Defendants knew the Plaintiff intended to make an accusation of sex discrimination, the learned judge erred in that he failed also to consider whether the Defendants or any of them "(suspected) (the Plaintiff) … has done, or intends to do, any of them" See section 9(1)(d) SDO. 30.But as Mr Ng has pointed out, the Plaintiff had not pleaded, proved or argued at trial an alternative case on the basis that the Defendants suspected that the Plaintiff had intended to make an accusation of sex discrimination. Her case was that she had raised the subject with the 2nd Defendant but that evidence was rejected by the learned judge. See para. 23 above and para. 176 of the Judgment. 31.Then Mr Duncan relied on what he described as errors in fact findings. 32.First, he criticized the learned judge when he said in para. 177 of the judgment that:
33.It is said to be factually inaccurate because she had raised such a claim in her 1st witness statement which was filed on 10 September 2003. In my view, the learned judge was perfectly correct in saying that a claim was only made in the action by way of amendment in 2007. Secondly, her witness statement is unclear. She said in para. 25:
34.The 2nd suggested error is that the learned judge accepted the Defendants' evidence that "further (written) warnings would not help" where in fact no written warning was ever given. This is a matter of semantics. I do not believe this has any consequence. 35.The 3rd suggested error is that the learned judge said in para. 48(iv) of the Judgment that even the Plaintiff herself had recommended a male to act up every time she was absent from office, thereby undermining her claim of sex discrimination. Mr Duncan submitted that the learned judge was wrong when he said that Mr Joseph Li acted up every time when she was absent from the office. The evidence was that he only formally did so on one occasion for 7 days. The Plaintiff's oral evidence was that apart from that occasion when Mr Li formally acted up for her "but when one or two days, sometimes he sit … he sat in for me." Transcript 179E. There is nothing in this criticism. 36.Fourthly, Mr Duncan submitted that the learned judge was wrong to rely on the 911 Memo (see para. 166 of the judgment) when the 2nd Defendant had admitted that "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." Para. 63 of the Judgment. 37.But as Mr Ng has explained the reference to the 911 Memo by the learned judge was necessary to deal with the Plaintiff's allegation that there was a sinister motive behind the shredding of the 911 Memo. 38.The last suggested error was that the learned trial Judge found that the termination of the Plaintiff's employment was "not a disciplinary matter". 39.But whether that is so or not, it has no direct bearing on whether the Plaintiff's claims under the DDO and SDO were made out. 40.For the above reasons, I am of the view that leave to appeal out of time should not be granted because the appeal has no reasonable prospect of success. Nor is there some other reason in the interests of justice why the appeal should be heard. Quite the contrary, this claim should be stopped now. As will have been noted, the events complained of by the Plaintiff took place in 1997, but the trial only took place in 2009. As the learned judge said in the Decision:
Costs 41.Sections 73B(3) and 73C(3) provide that each party to such proceedings:
42.The learned judge ordered costs against the Plaintiff on the basis that the proceedings were brought frivolously and that there were special circumstances which warranted an award of costs. 43.In holding that the claim was frivolous, Judge Lok repeated what he said in Cano-Shearer Anne and others v Cathay Pacific Airways Ltd. (unreported, DCEO 1/2001, dated 1 November 2002) as follows:
44.With respect, I agree with this approach. 45.The learned judge went on to explain why he regarded the Plaintiff's claim to be frivolous. He said:
46.Mr Duncan for the Plaintiff submitted that it is reasonably arguable that the learned judge was mistaken. Essentially, Mr Duncan's point is that the Plaintiff's employment had been terminated without any prior warning and when her solicitors first sought an explanation from the 1st Defendant, the 1st Defendant's reply dated 30 September 1997 was:
47.And it was not until 3 November 1997 that certain minutes of the special meeting of the Administration and Finance Committee of the EOC held on 24 September 1997 were supplied to the Plaintiff's then-solicitors AB Nasir & Co. who were told that the minutes set out the reasons for the termination. It appeared in the minutes that the Plaintiff's alleged deficiencies in respect of her work was discussed and the meeting concluded unanimously that she "was clearly inadequate for the post of a Divisional Director. … and that (her) employment should be terminated immediately according to the terms of her contract in order not to affect staff morale and EOC's operation." 48.Mr Duncan submitted also the fact that she was able to complete her probation in March 1997 and was confirmed in her position undermined the 1st Defendant's case that the termination was solely for the reason of her work performance. Further there was the fact that she had often been sick and also that she had queried why she had not been allowed to act up to show that her claim was not such that, when viewed objectively, it was bound to fail. 49.But the claim was commenced on 24 September 1999 long after she had been provide with the minutes setting out for deficiencies in November 1997. Moreover, it is clear from the Decision, which was reached with the benefit of oral evidence, that the learned judge regarded the Plaintiff's claim to be totally without merits. 50.After giving the matter careful consideration, I have come to the conclusion that the Plaintiff's proposed appeal is not reasonably arguable. The learned judge had had the conduct of the proceedings for a long time, and the benefit of oral evidence from the Plaintiff and the Defendants. The learned judge was aware that unless he was of the view that the claim was frivolous within the meaning which he ascribed to the expression he should not make an order for costs against the Plaintiff. It will be recalled that the Decision followed a hearing where the Plaintiff was represented by leading and junior counsel. So, no doubt, all that could be said had been said on her behalf. 51.In such circumstances, I see no basis upon which this Court might interfere with the learned judge's exercise of discretion. 52.The learned judge also went on to say that, in addition, there were special circumstances on which he could and would make a costs order against the Plaintiff (para. 12). Mr Duncan submitted that the learned judge relied on precisely the same reasons in support of his conclusion that the claim was frivolous as the foundation for ordering costs because there were special circumstances which justified such an order. He submitted that this is contrary to the decision of L v Equal Opportunities Commission and others, DCEO 1/1999, 23 June 2003, where Deputy High Court Judge Muttrie said that:
53.I accept that the ordinary rule that costs should follow the event does not apply to proceedings under the SDO and DDO so that genuine claims should not be discouraged. We have not been referred to any authority on what may constitute special circumstances. 54.What may amount to special circumstances will have to await adjudication on a different occasion. It is unnecessary for us to express any view on the matter since I am satisfied that the learned judge's decision on the frivolity of the Plaintiff's claim is correct. 55.At one stage Mr Duncan suggested that the learned Judge ordered the Plaintiff to pay costs because the Defendants happened to be the organization responsible for enforcing the relevant ordinances. But when the passages relied on by Mr Duncan were read in context, it was obvious that it was a false point and was not pressed. Interlocutory costs 56.Mr Duncan quite sensibly made no oral submissions. It will be recalled that on 16 March 2009, the learned judge set aside the judgment given on 3 November 2008. It is clear from the reasons for decision handed down on 2 April 2009 that the learned judge was only prepared to do so on the basis that the Plaintiff should pay not only the costs thrown away or occasioned by the setting aside of the judgment, but that the Plaintiff should pay $450,000 as security for the costs of earlier interlocutory costs orders. Since then, those costs have been taxed and paid. It appears from the decision of 2 April 2009, that the Plaintiff, through her counsel (Mr Dykes and Mr Lee) did not object to paying those costs, as a condition for the setting aside of the 3 November 2008 judgment. See paras. 39 and 41. 57.In such circumstances, I would refuse leave to appeal out of time. Conclusion 58.To conclude, I would dismiss the Plaintiff's application with a costs order nisi that she pays the Defendant's costs to be taxed unless agreed. Hon Fok JA: 59.I agree.
Mr Peter Duncan, SC and Mr Tony Ko instructed by Messrs Raymond Kwong & Co. for the Plaintiff Mr Peter Ng, SC and Mr Raymond Leung instructed by Messrs Baker & McKenzie for the Defendants | |||||||||||||||||
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