EQUAL OPPORTUNITIES COMMISSION v. APPLE DAILY LTD.

Civil Appeal No. 168 of 1998

HEADNOTE

Sex Discrimination Ordinance (Cap 480) - Construction and application of s.43(1) - Advertisement for female reporters

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 168
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

The facts

1. The respondent, Apple Daily Limited, published an advertisement in Chinese in the Apple Daily issue of 9 May 1997. According to an English version later certified by a court interpreter the material part was in the following terms:

There was a complaint made to the Equal Opportunities Commission ("the Commission"). It appeared to the Commission that there was a prima facie case of an unlawful act under the Sex Discrimination Ordinance (Cap 480) ("the Ordinance"). The Commission wrote to Apple Daily seeking an explanation. It received in reply a faxed letter from Apply Daily in Chinese saying they were sorry that they had not scrutinised the advertisement before it was published. They added that "we assume that adequate precaution should be taken in order to prevent any similar occurrence in the future". In the Commission's view that was no explanation of why the positions were advertised only to female applicants. In the circumstances, the Commission having given Apple Daily time, by summons under s.82 of the Ordinance applied to the District Court for, first, a decision that Apple Daily had in contravention of s.43(1) of the Ordinance published an advertisement which indicated, or might reasonably be understood as indicating an intention to do any act which is or might be unlawful by virtue of s.11(1)(a) or (c); and second for the imposition of a financial penalty. We are told that this is the first case in which the Commission's view has been disputed and that has required resort to the District Court for enforcement. Considerable importance is accordingly attached to these proceedings by the Commission.

2. The summons came before Her Honour Judge HC Wong in the District Court. She dismissed it, and from that dismissal the Commission now appeals to this Court.

The statutory provisions

3. Before I come to the appeal it is necessary to set out the provisions of the Ordinance which Apple Daily is said to have infringed. These are first s.43:

It is subsection (1) that is of particular importance. The act that it refers to "which is or might be unlawful by virtue of Part III or IV" in the Commission's case is that provided in s.11(1)(a) and/or (c) which appear in Part III under the following headings:

(2) to (9) are not relevant.

4. By s.6 the provisions of inter alia Part III relating to sex discrimination against women apply equally to the treatment of men.

The judgment

5. The judge noted at p.3 of her judgment, with respect to the foregoing version in the certified translation which the Commission produced and contended for, that -

The judge ultimately concluded at pp.6 and 7 of her judgment:

6. Mr McCoy SC, with Mr Lawrence Lam, Assistant Legal Adviser to the Commission, appears for the Commission before us, but did not appear below. He submits that the judge erred in law in relying upon the ambiguity in the sense that the existence of a second meaning was a defence. He adds that if such a view is accepted, the Ordinance and the associated Disability Discrimination Ordinance (Cap 487) and Family States Discrimination Ordinance (Cap 527) will be still-born and that the Commission might as well pack up its bags and go home.

7. Before examining his submissions in detail, it is helpful to note how the judge reached her decision.

8. Having set out the Commission's English version of the advertisement in terms of the certified translation, and also the submissions made on behalf of the Commission by Mr Lawrence Law, she correctly observed at p.3K of her judgment that:

Having examined the original Chinese text of the advertisement, she found that it carried the second meaning, that contended for on behalf of Apple Daily i.e. "several reporters are required for interviewing of pretty ladies (females) at balls". For the purposes of this appeal, after the judgment, Apple Daily procured another certified translation that coincided with that of the judge. However, the procedure prescribed by the Rules of the High Court not having been followed, Mr Hin Lee Wong for Apple Daily, if I understood him clearly, did not apply to adduce it in evidence in the appeal. In any case, it could not have taken the matter further that the judge's own express finding that the words in question carried the second meaning contended for by Apple Daily.

9. Returning to the judgment, the judge next turned to address an authority to which Mr Law referred i.e. Commission for Racial Equality v Associated Newspapers Group Ltd [1978]1 WLR 905 which was concerned with an advertisement for nurses to work in South Africa published in the Daily Mail. Mention was made in the advertisement of "all white patients". The Commission for Racial Equality brought an action in the county court for a declaration that the newspaper proprietor had acted unlawfully in publishing an advertisement which in its ordinary and natural meaning indicated or could reasonably be understood as indicating an intention by the persons making the appointments to do an act of discrimination by not appointing coloured nurses. The judge included in her judgment the following citation from the judgment of Lord Denning in that case:

The judge went on to say this at p.6C:

Having thereafter dealt with two minor matters, the judge concluded in the terms I have already mentioned.

The appellant's submissions

10. This being the first case in which the Commission has resorted to the courts for enforcement as he informed us, Mr McCoy helpfully took us through the new procedure, the appeal provisions, making reference to the associated Disability Discrimination and Family Status Discrimination Ordinances. He invited us to endorse the procedure adopted by the Commission. That procedure was not disputed or canvassed. All that can be said is that no errors in it came to light.

11. As to Mr McCoy's actual submissions, these can be shortly summarised. Section 43 of the Ordinance, in particular subsection (1) and its operative criteria contained in the words "which indicates, or might reasonably be understood as indicating, an intention by a person to do any act which is or might be unlawful" are perfectly clear and moreover present no difficulty in application. Therefore, his submissions goes, they require no authority such as the Associated Newspaper case apparently relied upon by the judge. If the advertisement indicates, or might reasonably be understood as indicating, an intention by a person to do such an act, the fact that the advertisement or particular words in it also indicate some other intention is nothing to the point. The judge, he submits, erred in law in construing s.43(1) of the Ordinance as requiring words admitting of only one reasonable meaning, and therefore dismissing the Commission's application because she was not "satisfied that the advertisement as read by the ordinary reasonable man or woman bore only the meaning" relied upon by the applicant. Further, Mr McCoy submits that it was clear from her judgment that the judge had found that the advertisement might reasonably be understood as indicating an intention to do an unlawful act, which finding was not undermined by her associated finding that the advertisement might also be reasonably understood as having a different intention. Accordingly, he submits that the appeal should be allowed, the decision to which the Commission would be entitled should be made, and a penalty imposed of $1,000, being the usual sum exacted by the Commission for a first contravention. Alternatively he asks that the matter be remitted to the District Court, or left open to that court to deal with whatever this Court has left to be dealt with.

The respondent's submissions

12. The following submissions made by Mr Hin Lee Wong, for Apple Daily, fall to be considered. First, that s.43(3) of the Ordinance reveals clearly that even where the intention to do an unlawful act is as clear as a job description which is sex specific, that it is there taken to indicate an intention to discriminate, it would not operate to indicate and could not reasonably be understood as indicating an intention to do that unlawful act if the advertisement contains an indication to the contrary. The additional meaning in which the advertisement might reasonably be understood, he submits, must be an indication to the contrary.

13. Second, he relies upon the judgments in the Associated Newspaper case particularly those of Shaw and Waller LJJ.

Analysis of submissions

Effect of alternative meaning

14. I have to say that on their face I find Mr McCoy's submissions on the plain meaning of s.43(1) difficult to resist. The words in s.43(1) "an advertisement which indicates, or might reasonably be understood as indicating an intention by a person to do any act which is or might be unlawful ..." seem to me plain in their meaning and simple to apply, particularly to circumstances of the present sort. Once it is established that an advertisement indicates, or might reasonably be understood as indicating that intention, it seems to me that it matters not that the advertisement indicates, or might reasonably be understood as indicating also some other intention to do an act which is not unlawful. If the mere existence of an alternative meaning is to be taken to be an indication of a contrary meaning so as to preclude compliance with the criteria in s.43(1), that might not wholly nullify the effect of s.43(1) as somewhat extravagantly suggested by Mr McCoy; but it would certainly severely limit it. In that regard, the purposes of the Ordinance are clearly set out in its long title and include these i.e. "to render unlawful certain kinds of sex discrimination, discrimination on the ground of marital status or pregnancy, and sexual harassment; to provide for the establishment of a Commission with the function of working to elimination of such discrimination ...". Plainly the judge's construction would militate against the purpose of the Ordinance and tend to frustrate s.43(1). Finally I would add if it were the intention of the legislation that an advertisement would attract the sanctions provided only if it were reasonably open exclusively to the one offending meaning, it is difficult to conceive of how s.43(1) could have been framed in its present terms. Moreover, Apple Daily's construction would enable employers who intended to recruit employees of only one gender where that was not permitted by the Ordinance, to advertise freely for employees of that gender by simply including an ambiguity in that respect.

15. Turning to Mr Wong's second submission, I cannot see that anything in Lord Denning's judgment in particular the passage cited by the judge that supports Mr Wong's contention. In addition, the analogy of an innuendo pleaded in libel cases also does not support Mr Wong's contention. On the contrary, that it is sufficient that the secondary and defamatory sense is understood only by persons having knowledge of certain special facts which established the innuendo while others would have understood it in the different innocuous sense, clearly goes to support the contrary construction ie that contended for by Mr McCoy.

16. However, there appears to be an aspect of the submission that lies deeper. It is conveniently approached from the judge's finding. What she said, as already stated, was this:

It is plain from this that she found first, as I have already said, that the advertisement could reasonably be understood in the sense that the Commission contended for. But second, she seems to have also found that it could be reasonably understood in the sense that Apple Daily relies upon. What is the effect of the latter? It seems to me as I have already said, that it matters not, since the former finding fully meets the plain requirement of s.43(1). There is nothing in s.43(1) to suggest that the reasonably understood meaning that satisfies s.43(1), should be the sole reasonably understood meaning. But what if the other meaning is the more plausible or the more widely accepted? Again, I do not think that matters since the requirements of s.43(1) would still be met. However, I suppose it is possible to conceive the other meaning, i.e. the innocuous meaning, emerging so powerfully or understood so comprehensively as to displace or preclude that conveying the unlawful intention. In such event it seems to me that a finding that the advertisement could be reasonably understood in the former way must be open to doubt. It may be that it was considerations of this sort that led Shaw and Waller LJJ to emphasise the requirement of reasonableness of the understanding of the advertisement. That aspect is not of concern in this case given the judge's findings which implicitly covers the point. Lord Denning's judgment does not contain the same emphasis.

17. For my part, I would prefer Lord Denning's approach, given the clarity of the words concerned in s.43(1) of the Ordinance (or s.6(1) of the English Race Relations Act 1968 addressed in the Associated Newspaper case). That said, I cannot see the need to resort to that authority given the clarity of the material words of s.43(1), unless for instance the particular nature of the audience, like the particular characteristics of the limited group exposed to the advertisement, might come into contention. That is all the more so as counsel have not been able to trace any instance of the Associated Newspaper case being referred to in any subsequent discrimination case. For what it is worth, there is also the point made by Mr McCoy that the provision in s.73B(1) and (5) for the District Court to have special rules in hearing discrimination cases and displacing the rules of evidence suggest a simple practical approach with which the relatively complex approach in the Associated Newspaper case conflicts.

Conclusions

18. In the result I have no hesitation in concluding that the judge erred in law in assuming that a reasonable understanding as required by s.43(1) had to be the sole such meaning.

19. I am also satisfied that the passage at p6C of her judgment, which I have already reproduced, demonstrates clearly that the judge had found that the advertisement might reasonably be understood as indicating an intention by Apple Daily to do an act which is or might be unlawful by virtue of Part III or IV of the Ordinance, specifically by virtue of s.11(1)(a) or (c) of the Ordinance, i.e. to recruit only female reporters.

20. I would accordingly allow the appeal, set aside the judge's order dismissing the Commission's application, and grant that application by making the declaration sought.

Financial penalty

21. As to the financial penalty also sought, Mr McCoy mentioned that the District Court has usually imposed a penalty of $1,000 for a first breach of s.43(1), albeit in all previous cases upon the breach not being contested, and $2,000 for a second breach. The maximum prescribed is $10,000. He added that if this Court did not impose a financial penalty, the Commission might not be disposed to pursue the matter before the District Court, being concerned primarily to clarify the meaning of s.43(1). In addition, this Court has not heard submissions as to the quantum of a financial penalty if any is to be imposed. In the circumstances, I would not impose any financial penalty but leave the matter free for the Commission to pursue.

Liu, J.A.:

22. By Originating Summons, the Equal Opportunity Commission applied to the District Court for a decision that a contravention of s. 43(1) Sex Discrimination Ordinance occurred. The application was made under s. 82(2) to Her Honour Judge H C Wong on account of an advertisement published in the issue of Apple Daily of 9 May 1997. It was complained that the advertisement indicated or might reasonably be understood as indicating an intention by a person to do any act which was or might be unlawful by virtue of s. 11(1)(a) and/or (c) of the Ordinance.

23. S. 43 reads:

24. S. 11(1) reads:

25. S. 43 lies in Part V of the Ordinance and s. 11 Part III. Part III deals with "Discrimination by employers" in the "Discrimination and Sexual Harassment in Employment Field". An application under s. 43(1) entails a civil sanction which is provided for by s. 82(5) and (6). The relevant parts of s. 82(5) and (6) are set out below:

26. The words under complaint are:

27. The Commission's certified translation before the judge was:

28. No certified translation was submitted by Apple Daily Limited (the respondent) which relied on the original version in Chinese. The respondent has now obtained for the benefit of this court its own certified translation which reads:

29. The difference in the two certified translations is apparent, one advertising for pretty girl reporters and the other for reporters to cover pretty girls. Representative for the respondent argued on the Chinese version before the judge that the words in the advertisement were "capable of two different interpretations", one as contented for by the Commission in terms of the submitted certified translation and the other parallel to what it now transpires in the respondent's certified translation i.e. "reporters are required for interviews of pretty females at balls".

30. It may conceivably be supposed that no indepth examination needed to be made of the advertisement if "採訪" had been aptly translated as "to cover". "To cover" in the context of the Chinese advertisement connotes a coverage of the Ball by pretty girl reporters. However, the judge had to grapple with the contended meanings before her, albeit with the advantage of the original Chinese advertisement.

31. S. 73B(5) of the District Court Ordinance relieves the judge from the usual constraints of the rules of evidence but regard would have to be paid to the rights to a fair hearing, the need to determine the substantial merits and the need to achieve a prompt hearing. Against that liberal setting, the judge proceeded to consider the application.

32. The judge leaned on the Chinese version. She said: "the court should not close its eyes and look only at the certified translation". The real issue was clearly in the forefront as the judge said she was "therefore to consider the original advertisement to see if it (could) reasonably be understood that it indicated an intention to employ applicants who (were) of a particular gender". (Emphasis supplied)

33. S. 43(1) speaks of the publication of an advertisement "which indicates or might reasonably be understood as indicating, an intention by a person to do any act" of discrimination. No point was taken before the judge on the real nub of the Commission's case under s. 11(a) and (c) of Part III. It would appear to be the consensus that the Commission's interpretation would result in a discriminatory intention but that of the respondent not. At the trial, what boiled down to was how the advertisement should be read. After a closely reasoned analysis, this is what the judge found: "the readers of the Celebrities Fashion Page ........ are capable of reading both meanings from the words of the advertisement". It is implicit in her finding that the advertisement might reasonably be understood as indicating a discriminatory intention as well as one not discriminatory. The judge was not satisfied that "the advertisement as read by the ordinary man or woman bore only the meaning" espoused by the Commission and she dismissed the application. Mr McCoy, leading counsel for the Commission, argues that so long as the advertisement is at all capable of a discriminatory intention, the Commission's application should succeed.

34. Mr Wong for the respondent complains of the order of the judge not being perfected in time, but counsel does not pursue the procedural objection in the substantive appeal. Counsel reserves his arguments for the question of costs.

35. Two points, if I understand counsel correctly, are taken. First, an advertisement may well be reasonably understood in conjunction with special knowledge or extrinsic evidence as indicating a discriminatory intention. Hence, if words in an advertisement are capable of being so remotely understood as indicating a discriminatory intention, not infrequently it could result in an absurdity. But this court is concerned exclusively with the text of the advertisement. Given that special knowledge and extrinsic evidence may extend its meaning, I do not share counsel's anxiety about possible absurdity. It is inconceivable that with reference exclusively to the text of the advertisement, any absurdity could arise on the contended principle.

36. Further, Mr Wong submits that if a District Judge is asked to take a blinkered view, focusing narrowly just on any meaning capable of contravening s. 43(1), the court might be hampered in making all the appropriate findings of fact. That is not the contention of Mr McCoy, which envisages the making of a full range of findings by the court. Cases in which a prominent meaning overrides all others must be rare. In any case, I am not persuaded that there is any real built-in hindrance even in the hypothesis posed by Mr Wong. Both arguments fail.

37. In effect, the judge found a meaning which might reasonably indicate a discriminatory intention under s. 43(1). She was enjoined by her finding to allow the application.

38. Penalty, if sought, is best to be left in the hands of the judge at this embryonic stage of enforcement, where a level would have to be gradually gauged by those in the field. This court's jurisdiction to impose a s. 82(5) & (6) penalty will have to be stood over for another day.

39. On the judge's reading of the advertisement and her implicit determination, a contravention occurred. I, too, would allow the appeal and set aside the order made by the judge.

Leong, J.A.:

40. The question is whether the advertisement complained of indicates or might reasonably be understood to indicate an intention on the part of the newspaper to do an act which is envisaged by s.11(1)(a) and/or (c) of the Ordinance to be unlawful i.e. to discriminate a woman in offering employment by refusing or deliberately omitting to offer her that employment.

41. The judge in the court below found that the advertisement was capable of two meanings, one might reasonably be understood to indicate such an intention and the other not. Her conclusion in effect was that for the Commission to succeed, it must be demonstrated that the advertisement could only be understood to indicate an intention to discriminate and if it was capable of another interpretation, the Commission made out no case that the newspaper contravened s.43 by publishing that advertisement.

42. The clear wording of s.43 is that either the advertisement in fact indicates such an intention or it might reasonably be understood to indicate such an intention. In my judgment, there was a contravention. Having found the advertisement complained of capable of being reasonably understood to indicate such an intention, the judge should decide that there was a contravention of the section. It does not matter that there are other possible meanings. The present case is wholly different from Commission for Racial Equality v. Associated Newspapers Group Ltd [1978] 1 WLR 905 on which the judge relied. In that case, the county court made only one finding of fact and that was: the advertisement could not reasonably be understood in terms of the complaint and that was a finding of fact which the Court of Appeal was not prepared to interfere. In the present case, even on the judge's own finding of fact, a meaning of the advertisement contravened the section.

43. In the circumstances, I also agree that the appeal should be allowed and the decision of the judge should be set aside.

Nazareth, V.-P.:

44. The appeal is accordingly allowed. The order made by the judge dismissing the Commission's summons is set aside. We make the decision sought in paragraph 1 of the summons in terms. We leave the application in paragraph 2 of the summons open for the Commission to pursue in the District Court if it so wishes.