LEE CHICK CHOI v. THE HONG KONG GOLF CLUB

DCEO 11/2019

[2023] HKDC 515

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 2019

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JUDGMENT

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1.  Introduction

1.1  On 16 September 2015, the claimant (“Lee”) attended a job interview with the respondent (“Club”) for the position of Assistant Chief Marshal / Bag Drop at the Deep Water Bay Clubhouse. Lee was offered the position following the interview and he commenced working for the Club on the next day. Lee was born on 5 December 1954 and was 60 years old at the time.

1.2  Lee and the Club entered in a written employment contract dated 17 September 2015 (“Employment Contract”). Under the Employment Contract, Lee expressly agreed to abide by all rules and regulations that would periodically be issued or amended by the Club from time to time and such rules and regulations were and might be contained in the Employees’ Handbook (“Handbook”). On 22 September 2015, Lee signed a form acknowledging receipt of the Handbook and his responsibility to become familiar with its contents. The duration of the Employment Contract was initially on an open-ended basis, but it was subsequently amended on 29 April 2016 to a fixed-term contract for one year (from 17 September 2015 to 16 September 2016). As set out below, the basis for the amendment is hotly disputed between the parties.

1.3  It is common ground between the parties that, since around April 2016, Lee started to experience pain in his left shoulder, which ailment was not caused in the course of his employment by the Club (“Disability”).

1.4  On 23 September 2016, Lee was informed that his employment would be terminated by the Club giving him one month’s payment in lieu of notice with effect from 24 September 2016.

1.5  In these proceedings, Lee claims relief pursuant to the Disability Discrimination Ordinance Cap 478 (“Ordinance”) including monetary claims and an order for his reinstatement. As set out in his Amended Notice of Claim (“ANOC”), it is Lee’s case that he was terminated by reason of the Disability and/or related sick leave taken: ANOC §§17-18. Lee’s allegations are denied by the Club. It is the Club’s case that Lee’s termination was solely by reason of his unsatisfactory work performance and attitude which was entirely unconnected with the Disability.

1.6  At the trial, the claimant, as he has done throughout these proceedings, acted in person and the Club was represented by Mr Martin Kok of counsel. Lee himself gave evidence and the Club called Mr Mark Francis Gailey (“Gailey”), Mr Vincent Man Kai Wong (“Wong”) and Ms Amy Ka Wai Lee (“Amy”). Gailey and Wong were but are no longer employees of the Club and gave evidence remotely[1] as they did not reside in Hong Kong.

1.7  On the first day of the trial (ie 14 September 2022), I heard and dismissed an application by Lee to vacate the trial as there was an extant application to the Court of Appeal for leave to appeal against a decision made by me at the pre-trial review on 12 July 2022 dismissing Lee’s application for leave to issue subpoenas and their substituted service. I shall set out my reasons at the latter part of this judgment.

2.  The applicable principles

2.1  As set out at ANOC §§18(c) and 20, Lee’s case against the Club is that the termination of his employment was in breach of sections 6(a) and 11(2)(c) of the Ordinance.

2.2  Section 6(a) provides:

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

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

2.3  Section 11(2)(c) provides:

“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 the person –

…

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

2.4  The relevant principles were set out comprehensively in Mr Kok’s opening and closing submissions. It is plain from Lee’s closing submissions that there is no material difference between the parties on the applicable principles.

2.5  In relation to section 6(a) of the Ordinance, the court would generally consider two issues. The first is the comparator issue, namely to identify a comparator to determine whether there has been less favourable treatment. The second is the causation issue, namely to determine whether the less favourable treatment is done on the ground of the prohibited attribute. The comparison shall be such that the relevant circumstances in the one case are the same, or not materially different, on the other. Where there is no actual comparator, the court is entitled to adopt a hypothetical comparator. See M v Secretary for Justice [2009] 2 HKLRD 298 §45, section 8 of the Ordinance and Discrimination Law & Practice in Hong Kong §4.013.

2.6  However, it may be more appropriate to focus on the cause of the conduct where the identity of the comparator is in dispute and the identification of the appropriate comparator causes unnecessary complications. This is the approach taken in C v The Chinese University of Hong Kong [2022] HKDC 77 §§93-111. See also Discrimination Law and Practice in Hong Kong §4.035.

2.7  The burden of proof is on the claimant to prove discrimination on a balance of probabilities and there is no shifting of the evidential burden of proof. There is no presumption that an act or omission done in respect of a person with a disability is done on the ground of that person’s disability. The burden is on the employee to prove that the dismissal is connected to the disability impugned: Yeung Chung Wai v St Paul’s Hospital, DCEO 7 of 2003, 20 July 2006 §§25-31. However, it is right to emphasize that, under section 3 of the Ordinance, if an act is done for two or more reasons and one of the reasons is because of the prohibited attribute (whether or not it is the dominant or a substantial reason for doing the act), then the act is deemed to have been done for the reason of the prohibited attribute for the purposes of the Ordinance: Discrimination Law and Practice in Hong Kong §4.036.

2.8  Pertinent to the present case are the observations made at Aquino Celestina Valdez v So Mei Nor Betty, DCEO 3 of 2004, 12 September 2005 §12. In gist, for the purpose of section 11 of the Ordinance, the word “dismissing” or “dismissal” must be given its broadest meaning, ie any form of termination of employment. It must include termination by way of notice or wages in lieu of notice, as it would otherwise frustrate the purpose of the Ordinance if an employee’s contract of employment could be terminated by notice or wages in lieu of notice for no reason other than his disability. Giving of notice or payment of wages in lieu of notice only discharges an employer’s obligation under the contract of employment. They do not exempt an employer from liability for discrimination if the termination is an act of discrimination for the purpose of the Ordinance.

3.  Synopsis of the Lee’s case

3.1  The following averments are pleaded at ANOC §§6 to 18.

(1)  Lee avers that the Employment Contract was initially of an “unconditional” nature, in that it was open-ended and there was no time stipulation as to when it would end.

(2)  In around March 2016, Lee started to experience the Disability. In early April 2016, he visited a doctor by using the medical card provided by the Club and was referred to attend physiotherapy treatments.

(3)  At a meeting on 29 April 2016 between Amy and Lee, Amy replaced the first page of the Employment Contract and replaced it with one which stipulated a one-year contract from 17 September 2015 to 16 September 2016. Amy told Lee that it was the Club’s policy for staff over 60 years old to have one-year employment contract only. In doing so, Amy verbally promised Lee that his employment contract would be renewed after an annual satisfactory medical check-up.

(4)  On 29 August 2016, Wong replaced his predecessor, Ms June Cheung (“June”), as the supervisor of the Marshal / Bag Drop Team. Lee told Wong about the Disability and that he could not lift anything heavy or carry out Bag Drop duties. Wong was not pleased.

(5)  On 1 September 2016, Wong changed Lee’s sick leave from two hours to one day with reason unknown.

(6)  On 7 September 2016 Wong told Lee that his employment would be renewed for six months only. Lee averred that the renewal of his employment for a shorter period was inconsistent with Amy’s promise made to him on 29 April 2016. As Lee subsequently discovered, the decision to renew his employment for a shorter duration was made on 2 September 2016. The relevant contemporaneous documentation showed that there was a comment “Hope can fine tune” which Lee contended was a reference to the Disability.

(7)  On 11 September 2016, Lee complained to Gailey about the change of his employment to six months only. Gailey was apparently unaware of the change and told Lee that he would first consult Amy. There was however no feedback from Gailey.

(8)  On 18 September 2016, Wong had carelessly forwarded to Lee an email which was supposed to be sent to Amy. In that email, Wong teased Lee of the Disability with the phrase “hahaha”.

(9)  On 23 September 2016, Lee was asked to attend a meeting with Gailey and Amy, during which Lee was informed of the Club’s decision to terminate his employment. It is Lee’s case that the reason proffered by Gailey for his termination was his inability to tolerate heat. Lee further avers that, following the meeting, Amy enquired about the status of the Disability.

(10)  Lee says that his performance had always been good and was satisfactory to his immediate supervisor, Mr Dinesh Rai (“Dinesh”), and that he had never received any warning from the Club. The Disability deteriorated from early April 2016 and he had to take more sick leave compared with the previous six months.

(11)  It is on the foregoing bases that Lee believed that he was terminated because of the Disability or related sick leave taken.

(12)  On 3 October 2016, Lee lodged a complaint with the Equal Opportunities Commission (“EOC”) against the Club. Following the investigation by the EOC and because conciliation between the Club and Lee was not successful, the EOC informed the parties that the complaint was closed by a letter dated 6 September 2017.

3.2  As stated at §1.3 above, it is common ground that Lee started to experience the Disability in April 2016. Although Lee pleaded that he first consulted a doctor in early April 2016 (§3.1(2) above), the documentation shows that the first medical consultation was on 21 April 2016. The picture Lee sought to paint in closing was as follows.

(1)  Soon after the Club learnt of the Disability, on 29 April 2016, Amy changed amended the Employment Contract from an open-ended basis to a fixed-term contract.

(2)  There were no documented complaints of any performance issues prior to the onset of the Disability. However, from June 2016 onwards, complaints made by members or visitors were orchestrated and documented by June, of which he was not made aware apart from one incident.

(3)  Instead of renewing the Employment Contract for one year as Amy promised on 29 April 2016, the offer by the Club was only for a renewal of six months and the decision was made by Wong and Amy on 2^nd September 2016 in the light of the Disability.

(4)  Linking the events together, he believed (and the court should so infer) that the decision by the Club to terminate him was based on the Disability.

3.3  Mr Kok disagreed. He submitted that the majority of the allegations pleaded in the ANOC are red herrings and Lee’s approach essentially involved linking up a number of irrelevant events, in the hope of creating a cloud of suspicion which could sustain his complaint of discrimination. Properly analyzed, the evidence plainly showed that Lee was terminated by reason of his poor performance. The EOC, following rounds of submissions by the parties, found Lee’s complaint to be lacking in substance on 6 September 2017 and the commencement and pursuit of these proceedings two years later on 22 August 2019 can only be viewed as malicious and frivolous. The bringing of unmeritorious claims is not something new on the part of Lee, as he is a vexatious litigants against whom restrictive proceedings order has been made by the court.

3.4  In relation to Mr Kok’s point that Lee has been found in other cases to be a vexatious litigant, I have in my deliberation focused on the evidence as adduced in the present case. For the reasons set out below, I do not need to resort to that aspect in coming to my conclusions.

4.  Relevant chronology

4.1  As noted at Yeung Chung Wai §31, one has to bear in mind that it is sometimes not easy to have direct evidence of discrimination. Once a claimant establishes the relevant primary facts on the balance of probabilities, the court in drawing the appropriate inferences will have to consider and weigh the explanation (if any) given by the respondent.

4.2  In this section, I will deal with the evidence principally on a chronological basis and make a number of factual findings germane to the resolution of the issues in these proceedings. In evaluating the factual evidence, importance is attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events. It is further important to assess the consistency of the evidence of a witness with undisputed or indisputable evidence, and its internal consistency, namely by comparing the oral testimony and his witness statements.

4.3  For the reasons adumbrated below, I generally prefer the evidence of Gailey, Wong and Amy over that of Lee. Both Gailey and Wong are no longer employees of the Club and have no personal interest in the outcome of this litigation. Each of the Club’s witnesses gave evidence in a balanced and fair manner and was ready to concede matters which might be said to be disadvantageous to the Club’s case. Conversely, Lee had on various occasions changed his evidence or even admitted that various parts of his evidence amounted to exaggerations or mischaracterizations.

4.4  Before I deal with the evidence chronologically, I should first set out a number of background matters.

(i)  Background matters

4.5  In September 2015, Amy was the Human Resource Manager based in the Fanling Clubhouse, June was the Assistant Manager and Gailey the Manager stationed at the Deep Water Bay Clubhouse. As set out in a Staff Requisition Form dated 4 September 2015, the Club needed to hire a replacement for the position Assistant Chief Marshal / Bag Drop and it appeared that there was some urgency in filling the position. The job description for the position included (1) execute / implement golf rules, (2) register all members and visitors, (3) monitor speed of play and (4) carry golf bags for members / visitors from the Bag Drop to the first tee of the golf course. The requirements, as advertised, were Form 5 education or certificate holder in hospitality / hotel services, minimum of two years’ of customer service background, ability to communicate in English and Chinese, pleasant personality and customer-oriented. It is plain that the position was not one which entailed a great degree of sophistication.

4.6  According to Lee’s CV submitted to the Club, he graduated from Leeds University and was fluent in English and Chinese. Prior to applying for a job with the Club, he had prior experience working at other golf courses, namely Nine Eagles Golf Courses and Kau Sai Chau Golf Course. Over the years, especially between 1982 to 2006, he held senior positions at international and sizeable companies such as Reckitt and Colman, Colgate-Palmolive, and Beecham Products.

4.7  Two issues of significance arise from the matters set out in the preceding paragraph. First, I accept Gailey’s evidence that the Club decided to employ Lee primarily for his experience in golf and his English ability. It follows therefore that the Disability did not undermine and could not have undermined the qualities in Lee which appealed to the Club in the hiring process. Secondly, it is plain that Lee’s qualifications far exceeded the requirements of the Club and the job. To that extent, it lends credence to the Club’s evidence that Lee had conducted himself with an air of superiority.

4.8  Gailey highlighted that the culture of the Club was somewhat different to many other workplaces. I accept his evidence that, in general, the Club had a very accepting working atmosphere, and it was always the culture of the Club for any issues to be resolved in a friendly and amicable manner where possible.

4.9  By way of illustration, the unchallenged evidence is that during the EOC’s investigation, the EOC, on the information provided by the Club (compiled by Amy), found that the Club had retained staff that had taken sick leave ranging from a total of 1.5 days to almost two years of continuous sick leave. The Club also employed or offered one-year contract renewal to staff who were assessed to be fit for employment but required further medical attention for their respective conditions. The foregoing matters were expressly referred to in Amy’s evidence, and was not challenged by Lee in cross-examination and is not addressed in Lee’s closing submissions.

4.10  It is against the above backdrop I have to assess Lee’s claim that his termination was connected to the Disability.

(ii)  Commencement of Lee’s employment to end of probation period

4.11  As stated above, Lee attended an interview with the Club for the position of Assistant Chief Marshal / Bag Drop on 16 September 2015 and was offered the position on the spot. There is a dispute between the parties on whether Gailey attended the interview. The Club at its Notice of Response §7(2) averred that the interview was attended by Amy, June and Gailey but clarified in Amy’s witness statement that Gailey did not in fact attend the interview. Although Lee insisted Gailey did attend, Lee did not explore the issue when he cross-examined Gailey. In any event, the only significance which Lee placed on the issue was that it was Gailey who decided that Lee should commence his employment on the next day (which is undisputed). In my view, no issue of significance arises out of this minor factual dispute.

4.12  The Employment Contract contains, inter alia, the following express terms.

Commencement	-  17 September 2015
Reporting to	-  Assistant Manager
Probation and Termination of Employment	-  You will undergo a probationary period of three (3) months during which time HKGC will assess your performance. HKGC reserve the right to extend your probationary period for another three (3) months by giving you notice in writing -  After the probationary period, either party may terminate your contract of employment by giving to the other party one (1) month’s notice in writing or payment of wages in lieu of notice -  The Club reserves the right to terminate your contract of employment immediately by making a payment of wages in lieu of all or part of the notice period (whether notice is given by you or the Club)
Sick Leave	-  Sick leave and sickness allowance shall be given in accordance with the Employment Ordinance
Medical	-  You will be enrolled in the HKGC’s medical scheme as stipulated by the HKGC, subject to the rules and terms of the scheme…
Employee Policies	-  You agree to abide by all rules and regulations that will periodically be issued or amended by HKGC from time to time. Such rules and regulations are and may be contained in the [Handbook]

4.13  The Handbook contains, inter alia, the following paragraphs.

8. Retirement	-  The normal retirement age or employees is 60 years old -  The Club may at its sole discretion extend the employment of the employee beyond the age of 60. The Club may offer the employee’s employment on a yearly basis, either full time or part time as deemed suitable by the Head of Department and the Management
21. Conduct and Working Attitude	-  Employees should maintain a cheerful, positive and willing attitude towards members and guests. A smile and an offer of assistance are positive signs of welcome. -  Courtesy and honesty are important basic requirements of all employees towards members and colleagues.
23. Disciplinary Procedures	-  Disciplinary action may be taken when an employee fails to meet satisfactory standards with regard to conduct, job performance, attendance, time keeping and observance of rules and regulations -  Depending on the particular conduct and circumstances, the Club may apply any one or more of the following procedures… [Verbal Warning, Recorded Verbal Warning, First Written Warning, Final Written Warning, Dismissal] -  Notwithstanding the above, the Club may invoke the disciplinary procedures set out above at any stage and/or omit certain stages as required depending on the particular situation. Each situation will be determined on a case-by-case basis. The procedure is without prejudice to the Club’s right to terminate employee’s contract of employment at anytime, weather with or without notice, or payment of wages in lieu of notice and whether or not the disciplinary procedure has been initiated, completed or partly completed…

4.14  It is important to note that although Lee was employed as an Assistant Chief Marshal / Bag Drop, he only worked at the Bag Drop on the first day of his employment. Indeed, at ANOC §2, Lee expressly averred that he was responsible for starter duties. It is Gailey’s evidence, which I accept, that Lee was primarily stationed at the starter location since the second day of his employment. As such, he was not required to carry golf bags for the Club’s members and guests and his primary responsibility was to assist the golfers about on-course policies golf course rules and etiquette[2].

4.15  It is convenient to digress from the chronology to deal with a general observation. Lee accepted in cross-examination that the Disability would not have affected his ability to discharge his official duties at the starter location and further accepted that he had only taken five days of sick leave for the Disability[3]. In order to address the inherent improbability that, in such circumstances, the Club would consider the Disability as material, Lee suggested for the first time at the trial that he had to carry water bottles for refilling the water machine next to the starter hut and even suggested to Wong in cross-examination that the termination of his employment was in part due to his inability to change the water bottles. I do not accept Lee’s case that his ability or inability to lift heave objects was a material consideration as far as the Clube was concerned.

4.16  Returning to the chronology, on 16 December 2015, the Club informed Lee that he had successfully completed his three-month probation. There is a dispute between the parties as to whether Lee was subject to some adverse comments in December 2015 (ie at a meeting held between June, Dinesh and Lee at the end of the probationary period). In evidence is a Staff Performance Record (Internal) prepared by June (“SPR”). In the SPR, there is an entry which states that in December 2015, Dinesh and June told Lee that he should improve on:

(1)  his politeness, friendly, and skillfulness towards members and visitors;

(2)  getting familiar with the golf rules;

(3)  communicating and respecting Dinesh as he was his superior and Dinesh felt he was ignored and was treated disrespectfully by Lee.

4.17  Lee denied that any adverse comments were given to him at the end of the probationary period. Given my observations set out at §4.7 above, it seems to me more likely than not that Lee would have conducted himself in such a way which would attract comments on his attitude towards members, visitors and colleagues. However, I also find that any shortcomings on Lee’s part were, at that stage, not considered by the Club to be serious. Lee’s shortcomings did not, for example, compel the Club to extend the probationary period, as it was contractually entitled to do.

(iii)  The meeting between Amy and Lee on 29 April 2016

4.18  It is common ground that at a meeting between Amy and Lee on 29 April 2016, the first page of the Employment Contract was replaced. Whereas in the Employment Contract, Commencement was stated to be 17 September 2015[4], the amendment read “Commencement: 17 September 2015 – 16 September 2016”. In other words, the amendment only consisted of stating expressly that Lee was offered an employment for one year (“29/4/16 Amendment”).

4.19  The onset of the Disability was in March or April 2016. It is Lee’s pleaded case that in early April 2016 he visited a doctor by using the medical card provided by the Club and was referred to attend physiotherapy treatments. Lee subsequently obtained a letter from Town Health Medical & Dentist Services Ltd (“Town Health”) in February 2020 which confirmed that he first visited their clinic on 21 April 2016 because of left shoulder pain. As stated at §4.15 above, Lee did not apply for a sick leave for his consultation on 21 April 2016.

4.20  As the 29/4/16 Amendment was the first “overt” act on the Club’s part which was temporally proximate to the onset of the Disability, Lee tenuously sought to draw a connection between the two. Lee said that Amy would have learnt of the Disability directly from Town Health, and it is Lee’s evidence that the 29/4/16 Amendment was motivated by Amy’s discovery of the Disability. Lee further said that he acquiesced in the 29/4/16 Amendment as Amy promised him at the meeting that his employment would be renewed on a yearly basis subject only to an annual medical checkup.

4.21  Conversely, Amy gave the following evidence.

(1)  Since Lee was over 60 years of age, according to the Club’s policy as reflected in the Handbook[5], Lee’s employment should be on a yearly basis. The Employment Contract did not expressly specify that the employment was for a one-year term and that was an administrative error on the part of the Human Resources Officer, Ms Lau Yik Lam Zita (“Zita”). Indeed, the same error was made in relation to another employee over the age of 60, namely Mr Ho Kai Chi. Amy discovered the errors on 28 April 2016. Amy and Zita then arranged meetings with Lee and Mr Ho Kai Chi to inform them of the administrative error.

(2)  On 29 April 2016, Amy met with Lee and Zita with Mr Ho Kai Chi. The meeting between Amy and Lee did not last long. At the meeting, Amy apologized to Lee on the administrative error. Amy explained to Lee that the 29/4/16 Amendment was in accordance with the Club’s policy. Lee did not raise any objections and accepted the 29/4/16 Amendment.

(3)  Amy denied that she had promised Lee that his employment would be renewed on a yearly basis subject only to an annual medical checkup. Any renewal was subject to an assessment of suitability by the Club, which included considerations as to the performance and health condition of a particular staff. In line with the Club’s policy, Amy did inform Lee that if his performance was considered satisfactory by the Club, he would likely be offered a 12-month contract subject to a satisfactory medical checkup.

4.22  I have no hesitation in preferring Amy’s evidence. There are a number of problematic features in Lee’s case.

(1)  First, Lee himself admitted in the witness box that he had exaggerated his evidence when he said that Amy would have learned of the Disability directly from Town Health before 29 April 2016 when his consultation took place only a few days earlier on 21 April 2016. In closing, Lee submitted that Town Health[6] might have sent the voucher which he signed (which stated that Lee had frozen shoulder) to Amy immediately or shortly after his visit on 21 April 2016. Lee’s submission can only be characterized as a speculation.

(2)  Secondly, and related to the above, Lee never put to Amy in cross-examination that she had learnt of the Disability before the meeting on 29 April 2016. Specifically, Lee did not put to Amy in cross-examination that the 29/4/16 Amendment was motivated by Amy’s discovery of the Disability.

(3)  Thirdly, it seems to me entirely illogical that Amy would have promised Lee that his employment would be renewed on a yearly basis subject only to an annual medical checkup. It is inherently improbable that Amy would have circumscribed the Club’s discretion in that way, namely leaving issues of Lee’s performance out of the consideration in deciding whether Lee’s employment would be renewed.

(4)  Fourthly, the suggestion that the 29/4/16 Amendment was motivated by Amy discovery of the Disability is also illogical. It must be remembered that Lee’s complaint in these proceedings is premised squarely and only on the termination of his employment. With or without the 29/4/16 Amendment, the Club could contractually terminate Lee’s employment, as it in fact did, by giving Lee one month’s payment in lieu of notice.

(5)  Sixthly, even on the hypothetical premise that Amy did learn of the Disability before 29 April 2016, I cannot see how it can be a motivation for the 29/4/16 Amendment, especially in the light of what I have found at §4.9 above. Lee did not apply for a sick leave for his consultation with the doctor on 21 April 2016 and his first sick leave related to the Disability was on 17 May 2016, well after the meeting on 29 April 2016. As at 29 April 2016, there could not be any suggestion that the Disability would hamper the performance of his Lee’s duties at the starter location (and it in fact did not as I have found at §4.15 above). The suggestion that the 29/4/16 Amendment was motivated by Amy’s knowledge of the Disability can only be characterized as far-fetched.

(6)  As such, it is difficult to see how the 29/4/16 Amendment can be connected to the Disability. Indeed, in his oral evidence, Lee accepted that the 29/4/16 Amendment was not related to his termination almost five months later in September 2016.

4.23  For the above reasons, I accept Amy’s evidence as summarized at §4.19 above. It follows that Lee has not made out the first plank of his case as pursued in closing as set out at §3.2(1) above.

(iv)  Complaints documented in the SPR: June to August 2016

4.24  The SPR prepared by June records a number of complaints against Lee’s performance. Although June did not come forward to give evidence, Gailey and/or Wong had personal knowledge on the complaints set out in the SPR. In particular, Gailey gave evidence, which was not challenged by Lee, that he would make himself visible and accessible to the members and visitors at the Clubhouse and would spend a substantial part of his working hours on the facilities of the Clubhouse. As she was not stationed at the Deep Water Bay Clubhouse, Amy accepted that she did not have personal knowledge on Lee’s performance issues. The SPR sets out the following complaints.

4.25  On 1 June 2016, a complaint was made to Gailey from Ms Jane Lo (“Ms Lo”)[7], whom he described as a very respected and senior member of the Club. Gailey recalled that Lee confronted Ms Lo for slow-play whilst she was golfing with her son. Ms Lo commented that Lee was arrogant and rude. It was Gailey’s understanding that June had a conversation with Lee in relation to Ms Lo’s complaint and it was reported to him that Lee was convinced that he was correct and that he would not accept June’s negative feedback.

4.26  Lee accepted that there was a complaint from Ms Lo. Contemporaneously, he wrote an explanatory note stating that he confronted Ms Lo because another member had complained about Ms Lo’s slow play. In the note, he described Ms Lo’s slow play as a “misbehaviour” and her coaching of her son as “lengthy indoctrination.” He also stated that following Ms Lo’s explanation to him, he urged her to move forward “without further deliberation”. Lee further accepted that June had spoken to him on 2 June 2016, but he was of the view that June did not investigate the complaint fully and always blamed the front line staff for any form of complaints.

4.27  On 17 June 2016[8], a complaint was made to Gailey from Mr Clement Liu (“Mr Liu”), a visitor at the Club. Gailey had known Mr Liu for a few years. Mr Liu complained to Gailey that Lee was very impolite to him when he was playing golf with his daughter and accused Mr Liu for playing too slow. It was Gailey’s understanding that June had spoken to Lee about the incident.

4.28  Lee denied that he was made aware of the complaint. He however accepted that he did “advise” Mr Liu that he could not coach his daughter but Mr Liu had ignored his advice and continued to coach his daughter.

4.29  Also in June 2016, June told Lee that Gailey had instructed that the door to the starter hut should be kept closed regularly, as it was both potentially unsafe and untidy for the door to be kept opened. It is not in dispute three electric fans were installed in the starter’s hut but Lee refused to follow the instruction, to the extent that he threatened to resign if the Club insisted that he closed the door as the heat was, according to him, intolerable in the summer months.

4.30  Lee further stated that the starter hut door would be kept open by other staff members and he was unfairly singled out. This is denied by Gailey.

4.31  In July 2016, three westerners (whose names Gailey could no longer recall) complained to Gailey about Lee’s rude attitude. Lee denied that he was made aware of the complaint.

4.32  There were also complaints made by Mrs Margaret Hung (“Mrs Hung”) and Mrs Lillian Wong in August 2016. In particular, Wong confirmed that Mrs Hung had complained to him about Lee’s attitude. Lee denied the incident.

4.33  Also on 28 August 2016 (which was incorrectly dated in the SPR to on 22 August 2016), Lee used foul language to a colleague Ms Rachel Szeto (“Ms Szeto”). The incident was contemporaneously recorded in Ms Szeto’s WhatsApp message. Lee denied the incident.

4.34  For the purpose of this part of the chronology, I need to decide whether the complaints set out in the SPR were, in Lee’s words in closing, orchestrated by June. He pointed out that the complaints in the SPR (except for the entry for the probationary period) all occurred after the onset of the Disability. Lee also highlighted the fact that the Disciplinary Procedure as set out in the Handbook was not engaged for the complaints set out in the SPR.

4.35  It is fair to say that the Club did not document the complaints set out in the SPR in any great detail. In particular, there is a dearth of documentation on what actions were taken by the Club in relation to the complaints. This lack of documentation has allowed Lee to argue that he was not made aware of the complaints by members or visitors (except in Ms Lo’s case). I therefore have to resolve the disputed issues primarily on credibility and inherent probabilities.

4.36  I prefer the evidence of the Club, for the following reasons.

(1)  Whilst it is true that the complaints in the SPR predominantly took place after the onset of the Disability, it seems to me extremely unlikely that the Club would orchestrate the complaints from members and visitors. It bears emphasis that the complaints from members and visitors were mostly on Lee’s attitude. As set out in the correspondence covered in the following two sections, Lee was prone to expressing himself intemperately. Together with the observation made at §4.15, I find it more likely than not that Lee did act in a manner which would attract complaints from members and visitors. In any event, in relation to Ms Lo’s complaint, as set out at §4.26 above, Lee’s own description of the event showed that he regarded Ms Lo to have misbehaved and acted dismissively. As Lee accepted in cross-examination, even if a golfer did not comply with the relevant rules he still had to be polite in handling the matter.

(2)  After Wong took over from June in late August 2016, the format of the SPR changed. In the reformatted SPR, the actions taken by the Club in relation to a complaint were set out. Gailey gave evidence to the effect that improvements might be a response to the present case, namely the weakness in the Club’s documentation.

(3)  Although there was a lack of documentation, both Gailey and Lee gave clear evidence that they knew of the complaints by members and visitors.

(4)  Gailey further explained that the Club did not follow the Disciplinary Procedure set out in the Handbook as Lee was confrontational and did not respond well to criticisms. He further said that both June and Dinesh found Lee difficult to deal with.

(5)  In my view, the evidence of Gailey and Wong was not shaken in cross-examination and I accept their evidence. In this regard, as submitted by Mr Kok, Lee’s case in essence is one that the Club’s witnesses all conspired against him by reason of the Disability. I do not find Lee’s case theory to be plausible, especially when it is plain that the Disability did not hamper Lee from the proper discharge of his duties.

4.37  I therefore find that there existed genuine performance issues on the part of Lee and this deals with the second plank of Lee’s case as set out at §3.2(2) above. For completeness, where, as I have found, the shortcomings set out in the SPR were genuine, it is more likely than not that Lee would be informed of and told to improve on the same. Lee’s complaint that he was not told what improvements ought to be made is tenuous, as it did not require sophisticated training as to how his attitude should be improved. The fact that there existed performance issues on the part of Lee is fortified by the events transpired during the subsequent period to which I now turn.

(v)  Late August (when Wong took over from June) to termination

4.38  Gailey and Wong both gave evidence that Gaily requested Wong to take over from June to take charge of the Marshal team in late August as June was unable to help Lee improve. Wong accepted in cross-examination that that was one of the reasons but not the only reason for the change.

4.39  It is Lee’s evidence that Wong’s bias against him can be demonstrated by the following events which took place immediately or shortly after Wong took over from June.

(1)  First, on 29 August 2016, namely on the first day of Wong taking over from June, Lee told Wong of the Disability and Wong was not pleased.

(2)  Secondly, on 30 August 2016, Lee applied for a sick leave of two hours. According to Lee, he was only rostered to be on duty from 7 am to 12 pm on 30 August 2016. As he was unwell, he left work at 10 am. He therefore applied for sick leave of two hours. However, Wong changed it to one day.

(3)  Thirdly, on 2 September 2016, Wong and Amy decided to offer a renewal of his employment for only 6 months, contrary to what Amy promised him on 29 April 2016.

4.40  Wong denied all of Lee’s allegations.

(1)  First, he accepted that Lee did inform him of the Disability and that he could not lift heavy objects. However, that did not concern him as he was content for Lee to continue to station at the starter location which did not require Lee to carry golf bags.

(2)  Secondly, in relation to the sick leave incident on 30 August 2016, Wong accepted that Lee was rostered to be on duty from 7 am to 12 pm, but as the supporting medical certificate recommended one day sick leave, he therefore approved Lee’s application on the basis of one day instead of two hours.

(3)  Thirdly, Wong accepted that it was he and Amy who were in favour of granting a six-month extension. Their rationale was contemporaneously recorded in a Status Change Form (“2^nd Status Change Form”[9]) signed by him and Amy on 2 September and Gailey on 6 September 2016. The justifications were stated to be: (a) propose to renew existing contract on 6-mth basis. The current contract will expire on 16 Sep 16 (Hope can fine tune); (b) the staff is in his age 62 (with attitude problem) and (c) all terms and conditions remain unchanged.

4.41  I reject Lee’s submission that any of the matters relied on by him set out at §4.39 above has the effect of showing Wong (or any of his colleagues for that matter) was biased against him by reason of the Disability, for the following reasons.

(1)  As set out at §4.15 above, I have already found that the Lee’s inability to lift heavy objects was not a material consideration and pointed out Lee’s desperate attempt to demonstrate the contrary by relying on the need to carry water bottles. As pointed out by Mr Kok, it was Lee’s own evidence that carrying water bottles was not part of his duties as a starter. I am therefore unable to see why Wong would be displeased when Lee informed him of the Disability.

(2)  In relation to the sick leave incident on 30 August 2016, whilst Gailey accepted that sick leave could be granted on a less than a full day basis, there can be no suggestion that Wong’s approval (for one day instead of two hours) could have any material bearing. As set out at §4.15 above, Lee had only taken five days of sick leave for the Disability. As such, first, there can be no suggestion that Lee had exceeded or come close to exceeding his statutory or contractual entitlements, and secondly, it can be suggested by Lee that the Club would be unduly concerned with the sick leave (whether it was two hours or one day) for the reasons set out at §4.9 above.

(3)  On the issue of six-month extension, as Lee’s employment by reason of the 29/4/16 Amendment was due to expire on 16 September 2016, as far as the Club was concerned, if the Disability were a concern, it could have simply not renewed the Lee’s employment upon its expiry. The Club did the opposite and offered to renew the employment. I have already found at §4.23 above that Amy did not promise Lee on 29 April 2016 that Lee’s employment would be renewed for one year subject only to a medical checkup. There can therefore be no issue that the six-month renewal was in breach of any promise. In any event, Lee’s suggestion that the phrase “Hope can fine tune” in the 2^nd Status Change Form was a reference to the Disability, quite apart from being a speculation on Lee’s part, ignores what immediately followed, namely an express statement that Lee had an attitude problem. Lee’s further suggestion that under the Handbook, any contract had to be renewed for one year and no less, ignores the express stipulation, as Amy pointed out, that any extension was at the sole discretion of the Club as deemed suitable: see paragraph 8 set out in the table at §4.13 above.

4.42  As the 2^nd Status Change Form was approved by Gailey on 6 September 2016, Wong informed Lee of the six-month renewal offer on 7 September 2016 and that, as the extension was not for one year, he was not required to go through medical checkup. Lee accepted that on that occasion, he was told by Wong that he had performance issues.

4.43  It is Lee’s evidence that he confronted Gailey on 11 September 2016 on the Club’s decision to renew his employment for only six months. Gailey accepted that to be the case and further accepted that he told Lee that he would need to consult Wong and Amy on the issue. Lee’s observation was that Gailey did not know about the offer of six-month renewal but that cannot be the case as the 2^nd Status Change Form was approved by Gailey on 6 September 2016. I accept Gailey’s explanation that as it was Wong and Amy who recommended the arrangement, it was reasonable for him to first consult them before discussing anything concrete with Lee. In particular, I also accept Gailey’s evidence that Lee had confronted him at an inconvenient moment, as it was on a Sunday when the Club was customarily busy.

4.44  Gailey plainly consulted at least Wong after incident on 11 September 2016. On Lee’s own evidence, Wong approached him on the very next day to reiterate that Gailey was unhappy with his performance.

4.45  For the above reasons, I agree with Mr Kok’s characterization that the third plank of Mr Lee’s argument set out at §3.2(3) above is a red-herring. It is plain that the offer of six-month extension could not be connected to the Disability. If the Club wanted to “get rid” of Lee because of the Disability, there was simply no need to go through the charade of offering Lee a six-month extension following the expiry of his employment on 16 September 2016, and then proceeded to terminate him by giving him one-month’s payment in lieu of notice on 23 September 2016 (as set out below). When pressed in cross-examination, Lee’s response was telling – Lee said that “they don’t want to get rid of me” – which completely undermined his case theory that the Club had taken a series of sinister steps to terminate him for the Disability commencing with the 29/4/16 Amendment.

4.46  Both Wong and Gailey gave firm evidence that the relationship between Lee and Wong was deteriorating rapidly, the impetus being Lee was unhappy with the new roster implemented by Wong since taking over from June. Wong and Gailey also said that Lee went further by exhorting other members on the Marshal team to not follow Vincent’s instructions. Lee accepted that he was unhappy with the new roster as it deprived him from enjoying two consecutive rest days. Lee disagreed that he had encouraged other team members to “rebel” against Wong but accepted that his fellow team members did speak to him about the new roster.

4.47  The contemporaneous documents which may shed light on the above factual dispute are as follows.

(1)  On 17 September 2016, ie the day after his employment expired pursuant to the 29/4/16 Amendment, Lee sent an email to Amy at 10:27 pm requesting Amy to replace the first page of the Employment Contract with one which specified that his employment was extended to 16 September 2017. In the email, Lee recounted Amy’s promise, namely that his employment would be extended for one year subject only to a medical checkup. It is relevant to note that Lee had created emphasis of various points in the email with underlining. It is also pertinent to note that Lee had been made aware of a meeting with Amy to be held on 23 September 2016. Lee’s email to Amy was copied to Gailey and Wong.

(2)  Amy replied on at 11:54 am on the following day, copying Gailey, Wong and Zita. In her email, Amy reiterated that the 29/4/16 Amendment was effected to bring Lee’s employment in line with the Club’s policy, namely staff over 60 years old should be a contract basis. As the offer to Lee was for a renewal for less than one year, he was not required to undergo a medical checkup. Amy further stated that the meeting on 23 September 2016 was scheduled to address Lee’s inquiry.

(3)  What followed was an unfortunate incident. At 12:16 pm, ie shortly after Amy’s reply to Lee, Wong sent an email intending for Amy by mistake to Lee (not copied to anyone else) in the following terms:

“This is what he talked to me. I really don’t like the underlined letter….hahaha”

(4)  This prompted a reply from Lee to Wong, copied to Gailey and Amy on 19 September 2016 in the following intemperate terms:

“You have carelessly sent the below email to me when you intended to send it to Amy. Furthermore, your English is so poor as to make a mockery of yourself when you should have said underlining letter but not underlined letter.”

(5)  Wong replied shortly after (not copied to anyone) in these terms:

“Well no matter how poor my English is, I really don’t like the format you made in the letter.”

(6)  On 21 September 2016, Lee escalated matters by a lengthy reply to Amy’s email of 18 September 2016 (copied to Gailey and Wong) at 11:27 pm.

(7)  Before replying to Amy, at 11:16 pm, Lee sent an email in the following terms to Wong:

“Please respect yourself in order to enable me to respect you and digest my reply to Amy copied Mark and you for better transparency.”

(8)  In Lee’s reply to Amy’s email of 18 September 2016:

(a)  he asserted that he was treated unfairly as his fellow member “Ah Wai” (Mr Wai Man Fuk) who was over 60 years old was offered a one-year extension upon satisfactory medical checkup;

(b)  he queried whether Amy, in dispensing the requirement for a medical checkup as the renewal was only for six months, suspected that he “carried any disease not capable to pass my body check as for my Disability Discrimination”;

(c)  he asserted that the Handbook required any extension to be on a yearly basis and;

(d)  he stated that as Gailey seemed to not know anything when he confronted Gailey about the offer of six-month extension and he questioned whether Amy and Wong had overridden Gailey;

(e)  he complained that he had asked Wong on 12 September 2016 to be specific about Gailey’s dissatisfaction of his performance but was not told and reasoned that if he were not told of what he was required to improve upon, there was no use to extend the employment by six months;

(f)  he further complained that Wong, in implementing the new roster, “enjoy[ed] his dictatorship in his management seriously” as the members in the team had discussed the issue with Wong many times but in vain;

(g)  he accused Wong was wrong in changing his sick leave application from two hours to one day;

(h)  he stated that he had “excellently discharged [his] duties and responsibilities, the best among the section in the past year” and reasoned that it was unclear to him how Gailey could be dissatisfied with his performance;

(i)  he questioned whether Wong’s email on 18 September 2016 amounted to “Age Discrimination” or “Disability Discrimination”;

(j)  he requested Amy to tell him how many staff over 60 years old have their contract renewed for six months only.

4.48  From the above contemporaneous documents, the view held by Gailey that the relationship between Lee and Wong was deteriorating rapidly was entirely justified. The pleaded averment that Wong’s email on 18 September 2016 teased Lee for the Disability (set out at §3.1(8) above) is unsustainable on the documents as the “hahaha” comment was clearly a reference to the formatting in Lee’s email of 17 September 2016 in which there was no mention of the Disability. In his oral evidence, Lee retracted from his pleaded position. I also accept the evidence of Wong and Gaily that Lee had encouraged other team members to make things difficult for Wong.

4.49  As I have found at §4.7 above, probably due to his previous experience and “over-qualification”, Lee had acted with an unjustified air of superiority, and what did not present to be a serious problem at the end of the probation (as set out at §4.17) turned out to be a persistent and an insurmountable one.

4.50  It is pertinent to note that in his lengthy reply on 21 September 2016, Lee did not mention the Disability at all, despite references to discrimination.

4.51  What then transpired on 22 September 2016 was that things were put in motion to terminate Lee at the meeting scheduled on 23 September 2016. I find that the 23 September 2016 meeting was not originally scheduled for the termination of Lee’s employment but, as stated in Amy’s email of 18 September 2016, for addressing Lee’s query on the offer of six month’s extension.

(1)  In an email from June to Gailey, June set out the complaints contained in the SPR. June prefaced that by stating “Isn’t [Lee] on a yearly basis contract? Can we just not renew his contract?”

(2)  Amy prepared and approved another Status Change Form (“3^rd Status Change Form”) in which she inserted the following justifications (as requested by Gailey) for the decision not to renew Lee’s employment: (a) reluctant to follow reasonable instruction and (b) set bad influence on team members. The 3^rd Status Change Form was approved by others including Gailey although he did not date his approval.

4.52  The meeting on 23 September 2016 (“Exit Meeting”) was attended by Lee, Amy and Gailey. It is Lee’s pleaded case that the reason given for his termination was his inability to tolerate heat (set out at §3.1(9) above). In his evidence, Lee said that as Dinesh (his immediate supervisor) did not attend the meeting, there was hardly any discussion of performance issues at the meeting. Conversely, Gailey said that he tried to go through the complaints in the SPR (and repeated in June’s email to him the day before) but was unable to finish the exercise as Lee denied everything and was combative in the process. Gailey’s firm evidence was that Lee was told that he was terminated because of the performance issues. Gailey accepted that the heat tolerance issue was mentioned (ie his instruction to close of door of the starter hut) but it was raised by Lee as part of his complaints against the management.

4.53  I do not accept Lee’s evidence. The fact that performance issues were discussed at the Exit Meeting is evidenced in Lee’s own letter of 25 September 2016 (ie two days after the meeting) in which he recounted what transpired at the meeting. In cross-examination, Lee accepted that he left the Exit Meeting with a very clear impression that he was terminated due to his performance. Further, contemporaneously, Gailey sent an email to June on 24 September 2016 stating Lee was terminated the day before and that Lee disputed the complaints and asserted that he was not spoken to in relation to the complaints. Gaily asked June to provide more details as he anticipated that the termination would not be the end of the matter. As set out in the section below, Gailey was right.

(vi)  Events after Lee’s termination

4.54  As stated in the preceding paragraph, Lee sent an email to Gailey on 25 September 2016 copied to Amy and Mr Ian Gardner (“Gardner”), ie Gailey’s superior. In that letter, Lee made a host of complaints against the management and asked for his reinstatement. The complaints repeated many if not all of his accusations already covered above. Specifically, he complained that the performance issues discussed at the Exit Meeting was a knee-jerk reaction to his email of 21 September 2016. He also stated that he was discriminated for his inability to tolerate heat (not the Disability). He stated that the way his termination was badly handled and questioned whether June, Wong and Gailey should be terminated for that reason. Despite the plethora of complaints, there was no mention of the Disability.

4.55  Shortly thereafter on 3 October 2016, Lee lodged a complaint to the EOC. In his complaint form, despite a host of complaints, no mention was made of the Disability. The Disability was only mentioned after a request was made by the EOC for more information on 26 October 2016 by which Lee was asked whether he suffered from any disability.

4.56  The EOC proposed to Lee and the Club to hold a conciliation meeting on 3 February 2017. Lee requested the EOC to convey to the Club that he sought, inter alia, a reinstatement or payment up to 75 years old totaling HK$3,466,392.93. Unsurprisingly, the Club refused to attend the conciliation meeting. Thereafter, the EOC proceeded to investigate into Lee’s complaint.

4.57  It is unnecessary for me to chronicle in detail the submissions made by the parties to the EOC. I only wish to refer to the submission made by Lee to the EOC on 26 April 2017. In his submission to the EOC, he accused Lee, June and Wong for deploying “dirty tricks” against him and all of the them deserved to be terminated instead. He deprecated June by stating that she was the most incompetent assistant club manager, accused Amy for being fraudulent, elevated himself as being more experienced than Wong and asserted that he should replace Gailey as the manager. In my view, none of the aspersions made by Lee was justified and it is not surprising that the EOC found Lee’s complaint lacking in substance.

4.58  Following the EOC’s finding that his complaint was lacking in substance on 6 September 2017, on 23 October 2017, Lee made a complaint to the Office of the Ombudsman against the EOC. The Office of the Ombudsman found that the EOC had gone through a due process before deciding to discontinue its investigation.

4.59  After a lapse of almost two years, on 24 June 2019, Lee provided a draft claim to Gardner to entice a settlement. There was no reply from Gardner. On 24 July 2019, Lee wrote to Gardner again to state that there were news reports in relation to another DCEO claim and stated that he hoped to achieve an out of court settlement, effectively stating to the Club in clear terms that the Club would otherwise face negative press coverage were a settlement not reached.

5.  Whether Lee’s termination connected to the Disability

5.1  Based on the factual findings made in the preceding section, I agree with Mr Kok that Lee has failed to prove, on the balance of probabilities, that his termination was connected to the Disability, and this is the result whether one adopts the two-stage comparator approach or the alternative approach (which primarily asks the “why” question)[10].

5.2  There was a disagreement between Mr Kok and Lee on the appropriateness of the comparators identified by Lee. Whilst I am inclined to agree with Mr Kok that the comparators identified by Lee are inappropriate as none of them was subject to the extent of Lee’s performance issues, it seems to me that it is apt to adopt the alternative approach. As set out at Chinese University §98, citing Stockton-on-Trees Borough Council v Aylott [2010] ICR 1278:

“…the question of less favourable treatment than an appropriate comparator and the question whether that treatment was on the relevant prohibited ground may be so intertwined that one cannot be resolved without at the same time deciding the other. There is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? Once it is found that the reason for the treatment was a proscribed one, there should be no difficulty in deciding whether the treatment on that ground was less favourable than the treatment that was or would have been afforded to others. If the evidence establishes that the reason for the treatment is the claimant's disability, then it will usually follow that the hypothetical comparator would not have been treated in the same way and there will be discrimination”

5.3  Given the factual findings set out in the preceding section, Lee’s termination by the Club was plainly not by reason of the Disability. It is also plain that the allegation that it was so was an afterthought on the part of Lee.

5.4  I dismiss Lee’s claim against the Club.

5.5  I agree with Mr Kok that it is not desirable for me to address questions of quantum, by reference to Sit Ka Yin Priscilla v Equal Opportunities Commission DCEO 11 of 1999 §180 where it was said:

“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”

5.6  Having said that, I should set out my brief observations on some of Lee’s claims. In closing, Lee says that he is entitled to loss of income from 24 October 2016 (Lee received one month’s payment in lieu of notice) until 14 September 2022 (commencement of the trial). However, the evidence shows that Lee did not make any meaningful attempt to look for alternative employment. Lee’s quantification is therefore excessive. As stated at 郭永新 v 羅容佳經營環球金屬塑膠製品廠 , DCEO 2/2007, 4 December 2008 §22:

“在歧視條例之下的申索，本席一向本著申索人應得的收 入損失賠償是可以在數月 內接受再培訓及在適當的時間內找到工作作出賠償。我認為郭先生若未能成功受聘為職 業司機，賺取與受僱於被告人時相若的收入去養家，那他 應該接受再培訓，尋找一份適合他以及收入相若的工作。 我相信他應當在被解僱後六個月內應可找到適合的工作。 被告人對他的責任亦不過如是，不可能因為他不能再找到 理想的工作而要求被告人賠償他一生或直至退休的收入 損失。每人也應自強不息，以自己的能力去發揮所長，不 能因為一次受解僱而永遠歸咎把他開除的僱主。”

5.7  For his claim for injury to feelings and punitive or exemplary damages, Lee simply referred to the case of Yuen Wai Han v South Elderly Affairs Ltd, DCEO 6 of 2001, 23 May 2003 and asked the court to award him the quantum assessed in that case, adjusted for inflation. The approach advocated by Lee is entirely inappropriate, as it ignores the fact that assessment is a fact-sensitive exercise. In any event, there is no answer to Mr Kok’s submission that no evidence has been adduced by Lee to support his allegation that he had suffered any injury to feelings as a result of the Club’s alleged discrimination.

5.8  On Lee’s claim for reinstatement, Mr Kok accepts that under section 72(4)(c) of the Ordinance, the court has jurisdiction to make an order for employment or re-employment. Lee submitted that as Club is “an established Golf Club on public land, [it] should take “SOCIAL RESPONSIBILITY” seriously for its act” and reinstatement would fit the needs of the Club. Mr Kok drew an analogy with cases involving the order making an order of apology against an unwilling defendant and submitted that the court has to proceed with great circumspection. I am inclined to agree with Mr Kok that that any proposed re-instatement of Lee would only engender unnecessary conflict, given Lee’s hostility against the Club’s personnel, especially following his termination as set out in the preceding section.

6.  Dismissal of Lee’s application to vacate the trial

6.1  As at the first day of the trial, in respect of his application for leave to appeal to the Court of Appeal, Lee had not lodged to the application bundle, the draft grounds of appeal and the written statement. I had dismissed Lee’s application for leave to appeal on 11 August 2022 and Lee applied to the Court of Appeal on 24 August 2022. Whilst I agreed with Mr Kok that Lee did not proceed with his application for leave to appeal to the Court of Appeal expeditiously (by reference to Chan Wing Cheung Allan v Ho Shu Yee Susana, HCA 1941 of 2000, 7 January 2005 which was affirmed by the Court of Appeal in CACV 393 of 2004, 10 January 2005), that Lee’s proposed appeal was unmeritorious, and that the Club would be prejudiced were the trial vacated, there was another more obvious reason for refusing Lee’s application to vacate the trial.

6.2  On Lee’s own case, the trial could continue despite the extant application for leave to appeal. In his letter to the court dated 29 August 2022, Lee expressly stated that the trial could continue if a number of questions were answered pre-trial by Gailey, Amy and Gardner. Gailey and Amy were of course witnesses available at the trial for Lee’s cross-examination and there was no reason why the trial could not continue even if answers were not forthcoming pre-trial. Gardner was specifically asked by Lee to answer, inter alia, why did he approve Lee’s six-month extension as opposed to one year. As was plain from the witness statements, Gardner was hardly intimately involved in that decision and it did not seem to me Gardner’s evidence was material.

6.3  It was for the above reasons that I dismissed Lee’s application to vacate the trial.

7.  Conclusion

7.1  Lee’s claim is dismissed.

7.2  On the issue of costs, both parties in their closing have invited me to depart from the starting position set out in section 73(c) of the District Court Ordinance Cap 336, namely that each party should bear its own costs. However, the court can otherwise order on the ground that (1) the proceedings were brought maliciously or frivolously or (2) there are special circumstances which warrant an award of costs. Both parties have gone further and sought costs on a more generous basis.

7.3  Giving the conclusions which I have reached on Lee’s claim, I am inclined to agree with Mr Kok that I should depart from the starting position and that costs should be awarded on a more generous basis. However, he expressly invited the court to make a nisi order, as there might be additional matters arising from my findings which the Club would like to address further. Lee’s submissions on costs also only focused on the scenario where he prevailed on the merits.

7.4  I will therefore make a costs order nisi that Lee should pay to the Club the costs of the action (and any costs reserved), including the costs of an incidental to his application to vacate the trial, on an indemnity basis to be taxed if not agreed, with a certificate for counsel. Absent any application to vary within 14 days, the nisi order will become absolute.