NG HOI SZE v. YUEN SHA SHA AND ANOTHER

CACV 93/1999
CACV 94/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 93 and 94 OF 1999

(ON APPEAL FROM DCCJ 10953 OF 1997)

----------------------

----------------------

J U D G M E N T

----------------------

Godfrey. J.A. :

1. I will ask Rogers, J.A. to give the first judgment.

Rogers, J.A. :

Introduction

2. These are two appeals by the Plaintiff in this action. They arise from a decision of H.H. Judge To given on 9 February 1999 following a hearing on 26 January 1999 whereby he refused the Plaintiff leave to amend the claim in the action and struck out the action.

Background

3. The Plaintiff Ng Hoi Sze and the 1st Defendant, Yuen Sha Sha shared a room No. 427 in a hostel at Shaw College, Chinese University. On 17 March 1997, the 1st Defendant discovered a video recorder which, unbeknown to her had been placed in the room and had made recordings of the 1st Defendant whilst she was undressing. It was quickly discovered that the video recorder belonged to one Mr. Tse Chi Pan who was the boy friend of the Plaintiff. The 1st Defendant made a complaint as a result of which Tse was expelled from the University and the Plaintiff was expelled from the hostel. The matter was then referred to the Equal Opportunity Commissioner and there followed an action by Yuen Sha Sha, the 1st Defendant in this action, against Tse in the District Court which was heard by H.H. Judge H.C. Wong. The decision is reported at [1999] 1 H.K.C. at p. 731. Judgment was given for $50,000 damages, $20,000 exemplary damages and $10,000 aggravated damages and Tse was ordered to make an apology.

4. The proceedings in this action were commenced on 2 June 1997 by Ng Hoi Sze, who, as referred to above, had been expelled from the hostel, against the 1st Defendant and her boy friend, Fung Ka Fai, the 2nd Defendant. The 2nd Defendant was also a student, but at another University. The claim was one in nuisance. The claim was limited to HK$10,000 or alternatively, damages to be assessed by the Court.

5. In the skeleton argument provided by Mr. McCoy, S.C. appearing on behalf of the Defendants, the case is argued that a consideration of the history of this action might lead to the conclusion that this action was a nuisance action brought perhaps in revenge for the complaints which had been made by the 1st Defendant against the Plaintiff and her boy friend and perhaps on other occasions, the action was prosecuted with a view to persuading the 1st Defendant not to pursue her claim in the case heard by H.H. Judge Wong. Indeed, the judgment in that case records one of the incidents which forms a basis for that submission. There is no need in these proceedings to make any finding in that regard but it can be observed that when the 1st Defendant's solicitors wrote to the Plaintiff on 24 March 1998 drawing attention to their view that the Plaintiff's claim in this action was bad, the reply letter from the Plaintiff to the solicitors gives an indication that the Plaintiff was fully intent on embarrassing the 1st and 2nd Defendants.

6. On 26 January 1999, H.H. Judge To heard an application on the part of the Plaintiff that she be at liberty to amend the particulars of claim in the action and the subsequent application on the part of the Defendants that the Particulars of Claim be struck out as, amongst other things, it disclosed no cause of action and that the action should be dismissed. The Judge below refused the application to amend and struck out the Particulars of Claim and accordingly dismissed the action. These appeals lie from his decision.

Amendment

7. The amendment sought by the Plaintiff is to introduce a claim for sexual harassment under the Sex Discrimination Ordinance, Cap. 480. The bulk of the Particulars of Claim are not sought to be amended and remain the same as in the original claim; that was directed solely to a claim in nuisance. The allegations, in short, are that the Plaintiff and the 1st Defendant shared room 427 in the female residence hostel at Shaw College. In previous years, they had shared other rooms. It was part of the regulations that no male persons were allowed to enter the hostel without authority and that no male person should sleep or stay in a female hostel overnight. There are 7 paragraphs relating to various months between February 1996 and February 1997 in which it is alleged that the 1st Defendant wrongfully allowed and/or caused the 2nd Defendant to remain and sleep inside room 427, and in the case of the February 1996 incident inside the room which previously had been shared by the Plaintiff and the 1st Defendant. It is alleged the Plaintiff was present and using the room on some occasions, on other occasions it is said that the Plaintiff felt compelled to leave the room. The new amendment alleges that there was unlawful sexual harassment contrary to section 39(3) of the Sex Discrimination Ordinance, Cap. 480. Under the particulars, it is said that the Defendants unlawfully sexually harassed the Plaintiff by engaging in unwelcome conduct of a sexual nature in relation to the Plaintiff and in consequence, the Plaintiff suffered embarrassment, humiliation and shock and that the Plaintiff claimed damages under section 76 of the Ordinance.

8. Section 76 provides that :-

"(1) A claim by any person ('the claimant') that another person ('the respondent')-

(c) has committed an act of sexual harassment against the claimant which is unlawful by virtue of Part III or IV, may be made the subject of civil proceedings in like manner as any other claim in tort."

9. Mr. McCoy, S.C. on behalf of the Defendants took the point that section 39, which would appear to be the relevant section in Part IV, relates in subsection (3) to harassment by a student of an educational establishment against another student of the establishment and would therefore exclude the 2nd Defendant from liability because he came from another University. Before that matter is addressed, it is necessary to consider the terms in section 2(5) which is as follows :-

"2(5) For the purposes of this Ordinance, a person (howsoever described) sexually harasses a woman if-

(a) the person-

(i) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or

(ii) engages in other unwelcome conduct of a sexual nature in relation to her,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or

(b) the person, alone or together with other persons, engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for her."

10. Clearly, subsections (a)(1) and (b) would be irrelevant for the purposes of this case. The question therefore arises as to whether there is an allegation in the draft amended Particulars of Claim that the Defendants, or either of them, have engaged in unwelcome conduct of a sexual nature in relation to the Plaintiff. In this respect, the repetition of the words of the section in the Particulars (iv) to paragraph 11 of the draft amended Particulars of Claim take the matter no further. Regard has to be had to the remaining allegations in the pleading.

11. If a pleading contained an allegation that a particular type of conduct which was of a sexual nature had taken place and that an inference to the effect should be drawn from the fact that two students of opposite sex had slept in the same bed on a number of occasions, absent compelling evidence to the contrary, that inference is one which it could be expected would be drawn. But if, as is the case here, there is no identification of the conduct of a sexual nature which is said to have taken place which the Plaintiff would have found offensive, humiliating or intimidating the pleading, on its face, must be deficient. It is not pleaded that the Court should draw an inference from the fact that the students slept in the same bed that any particular type of conduct took place. When this matter was drawn to the attention of Mr. Sarony, S.C., counsel appearing on behalf of the Plaintiff, he requested an adjournment to take instructions. That adjournment was granted. After the adjournment, counsel indicated that he could make no further pleading in this regard.

12. In those circumstances, unless the Plaintiff is prepared to plead that there has been some identified conduct of a sexual nature and at the very minimum that that fact should be inferred from the fact of the Defendants sharing the same bed, the pleading is bad. In those circumstances, I consider that the Judge below was correct in refusing this amendment.

13. Mr. McCoy's other point, in relation to the 2nd Defendant, therefore, does not need to be decided, but on the face of it, appears to have merit.

The claim in nuisance

14. The claim in nuisance is one which the Plaintiff avers is private nuisance. Mr. McCoy relied for his basic argument on the proposition encapsulated in Atkins Court Forms, Vol. 27 p. 176 :-

"A private nuisance, being essentially an injury to property or to rights over property, the plaintiff must show some title to the property affected by the nuisance. The proper person to bring an action is, therefore, the occupier of the land or interest in land affected, whether owner or tenant: a mere licensee, such as the tenant's wife, has no claim in nuisance."

15. For the Plaintiff, Mr. Sarony attempted to rely on the House of Lord's decision in Hunter v. Canary Wharf Ltd [1997] A.C. 655. For my part, I am unable to see that he can derive any assistance from this case, other than perhaps a gleam of comfort from the dissenting speech of Lord Cooke. I do not wish to set out the various passages in the judgments but it is clear, on my reading of the judgments, that whether the tort of nuisance relates to direct injury to land or the action relates to a nuisance which is "productive of sensible personal discomfort", the action is not one for causing discomfort to the person but is one which arises because the utility of the land has been diminished by reason of the existence of the nuisance. It is for that reason that mere presence on the land of the Plaintiff is not sufficient. For a Plaintiff to have a cause of action in nuisance, he must have a right to the land either as owner, tenant, reversioner or even licensee, if he has exclusive possession or occupation of it under such licence.

16. The case of Foster v. Warblington Urban Council [1906] 1 K.B. 648 which was referred to in the speeches in the House of Lords was one where the Plaintiff, in fact, excluded everybody else from the oyster beds in respect of which he claimed a nuisance had been committed and his practical assertion of rights of ownership was sufficient as against other persons to give him the right upon which he relied. That, however, was treated as an exceptional case based on its facts. Whilst Lord Cooke, in his dissenting speech, was prepared to extend the category of persons beyond those who had a right of exclusive occupation, in my view, the majority view of the House of Lords should be adhered to.

17. Turning to the present pleaded case, the Plaintiff did not, in my view, have a sufficient interest in the rooms identified in paragraph 1 of the Particulars of Claim to found an action in nuisance. All that is alleged is that the Plaintiff was a resident of the rooms. It is not alleged that she had exclusive possession. In my view, the Judge below was correct in striking out the pleading and dismissing the pleadings for this reason.

18. I should also mention, although the point was barely touched upon, that it would seem unusual that an action in nuisance could be brought by a Plaintiff against a person who has equal rights of occupation of the same premises as the Plaintiff. Again, it is unnecessary to decide this.

Godfrey, J.A. :

Introduction

19. The plaintiff in this action, a university student, claims against the defendants damages for the tort of nuisance and wants to add a claim for similar relief for sexual harassment.

The claim for damages for nuisance

20. It may be assumed for present purposes that the plaintiff would suffer serious personal discomfort from conduct of a sexual nature, indulged in by her room-mate and the latter's boy friend, in a bed in the hostel room shared by the plaintiff and her room-mate. But an action for the tort of nuisance lies only where the wrongdoer has caused some injury to the victim's interest in the land said to be affected by the nuisance. Although diminution of amenity value will suffice, without the need to establish any diminution of capital value (see Hunter v. Canary Wharf Ltd [1997] A.C. 655, per Lord Hoffmann at p.706), it is only if the victim's discomfort is caused by some act which adversely affects the value of some interest in the land to which he, or she, is entitled that the action can succeed. It seems to me that it would be quite impossible for a student in a university hostel successfully to claim any such interest (properly so-called) in the room which he or she is, for the time being, permitted by the university authorities to share with another student. The plaintiff's claim under this head is incontestably bad and the judge was right to strike it out.

The claim for damages for sexual harassment

21. I am of the opinion that if a female student's room-mate engages, in their shared room, without the female student's consent, in conduct of a sexual nature with another person, that conduct is capable of being considered sexual harassment of the female student. A reasonable person would, I think, have anticipated that the female student would be offended by such conduct. Further, I am of the opinion that it would be open in such a case for that female student to plead the fact that such conduct took place is to be inferred, without more, from the fact that the room-mate and the person mentioned shared the same bed (though this inference could, in my opinion, be displaced by evidence, if available, that no conduct of a sexual nature did take place). But where, as here, a plaintiff asserts that she has been subjected to unwelcome conduct of a sexual nature but positively refuses, when given the opportunity, to plead what that unwelcome conduct was, she puts herself, in my judgment, altogether out of court.

Conclusion

22. For these reasons, I agree that the judge was right to conclude that the plaintiff's action against these two defendants ought to proceed no further and I would dismiss her appeal. I would add only that, so far as the room-mate's boy friend is concerned, he would escape liability for sexual harassment anyway, for the legislation, which may require reform in this respect, only affords a remedy in a case like this as between students of the same university, and the room-mate's boy friend came from a different university. As to the good faith of the plaintiff in instituting these proceedings, I prefer to say nothing.

Costs

23. We will order (pursuant to Order 45 rule 5B(6) of the Rules of the High Court) that the costs of the defendants of the action and of this appeal be taxed and paid by the plaintiff to the defendants.