CHEN RAY v. TAMARA RUS & ANOTHER

CACV 135/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 135 OF 2001

(ON APPEAL FROM DISTRICT COURT EQUAL OPPORTUNITIES ACTION NO. 2 OF 1999)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This was an appeal from a judgment and order of HH Judge Poon of 6 April 2000 whereby she dismissed the action brought by the plaintiff against the two defendants. At the hearing of the appeal, this court dismissed the appeal with costs but said it would give reasons in writing later. In the action the plaintiff sought declarations that the 1st and 2nd defendants had unlawfully discriminated against him contrary to section 6, 23 and 46 of the Sex Discrimination Ordinance, Cap. 480 ("the Ordinance"). He also sought a declaration that the 2nd defendant had unlawfully victimised him contrary to section 9 of the Ordinance. Apart from damages, the plaintiff also sought orders that the 2nd defendant should reemploy and promote him.

2. The plaintiff had been employed by the 2nd defendant from August 1998 as a senior information technology specialist. It was his case that very early in his employment by the 2nd defendant he came in contact with the 1st defendant who was a transition manager working on the same project as the plaintiff. The impression might have been gained that the 1st defendant was senior to the plaintiff. That was not, apparently, the case. The foundation of the claim was that the 1st defendant made remarks and sent e-mails to the plaintiff which were of a sexual nature and were unwelcome. The allegation was that these were followed by unwelcome sexual advances by the 1st defendant. The plaintiff said that when he complained of these matters to the senior management of the 2nd defendant he was, at first, removed from the project upon which both he and the 1st defendant were working. On 18 December 1998 his employment by the 2nd defendant was terminated. Again, the plaintiff alleges that that termination was as a result of the complaints which he had made to senior management.

3. The trial in the court below took a total of 11 days. Both the plaintiff and the 1st defendant, as well as the members of the management of the 2nd defendant, including the person to whom the plaintiff had complained, gave evidence.

4. The 1st defendant's case was, in brief, that she had found the plaintiff attractive and had taken the initiative to invite the plaintiff to her flat and had kissed him when he left on the first occasion. On the judge's finding, the 1st defendant was frank in respect of her relationship with the plaintiff and had not tried to hide the events which took place, in particular what had taken place on the three visits by the plaintiff to the 1st defendant's flat. It should be said that there was no suggestion that sexual intercourse had taken place between the plaintiff and the 1st defendant.

5. The judge considered the evidence very carefully in her judgment. She paid particular attention to the specific events which had been particularised in various paragraphs of the pleadings. The judge came to the unequivocal conclusion that the plaintiff's credibility had been completely destroyed under cross-examination, that his allegation that there had been a forced relationship with the 1st defendant was a pretence on the plaintiff's part and that it did not have any ring of truth. She concluded that the plaintiff's evidence was so implausible that no reasonable person would believe it. She summarised her conclusions by holding that the plaintiff had been a willing participant in the personal relationship which he had had with the 1st defendant.

6. For the purposes of this appeal it suffices to consider whether there had been sexual harassment of the plaintiff by the 1st defendant. Section 2(5)(a) of the Ordinance provides that:

"(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;"

Section 2(8) provides that the same shall apply in relation to men as it applies in relation to women.

7. There were two grounds of appeal. The first was that the judge had erred in law in holding that the conduct complained of was not unwelcome and therefore there was no sexual harassment. The second ground of appeal was in relation to the order as to costs in the court below. That latter ground was abandoned and not argued on the appeal.

8. The notice of appeal sought to put the matter in two ways. The first way in which the matter was put was that the test as to whether the conduct was unwelcome was an objective test rather than a subjective test. The second way in which it was put was that the judge had attached "too much weight" to the failure on the part of the plaintiff to complain to the 2nd defendant's management and had failed to take into account the natural inhibition which the plaintiff would have felt about making any such complaint.

9. In the course of argument, Mr Collins, on behalf of the plaintiff, did not pursue the argument that the test should be objective. In my view, the section is clear. When it speaks of an unwelcome sexual advance, or an unwelcome request or unwelcome conduct, the word 'unwelcome' must relate to the parties concerned. In particular the matter must be unwelcome in relation to the person who is the object of the advance, request or conduct. Once it is established that such an event has taken place which was unwelcome to the person concerned, it is then a matter of objective of assessment as to whether it was such that it should have been anticipated that the person concerned would have been offended or humiliated or intimidated.

10. The point which Mr Collins attempted to pursue in argument was that although the judge might have been correct in holding that at one stage the plaintiff had not found the matters of which complaint is made, to be unwelcome, the judge should have found that, at a later stage, the plaintiff did consider those matters to be unwelcome.

11. That argument was very clearly not open to the plaintiff. It was an attempt to disturb the clear finding of fact by the judge. Not only was the appeal not launched as an appeal as to fact but, more importantly, there was no basis put forward for disturbing the judge's finding. Mr Collins attempted to refer to a few of the e-mail exchanges which had taken place between the plaintiff and the 1st defendant during the course of the plaintiff's employment by the 2nd defendant. Quite apart from the fact that a perusal of those e-mail exchanges does not, in my view, establish that at the time when the matters of which complaint is made took place they were unwelcome to the plaintiff, it would, it seems to me, require very substantial grounds to disturb the judge's finding as to fact when it was based upon a detailed assessment of all the facts and, in particular, the oral evidence. As already indicated, the judge was highly critical of the plaintiff.

12. In my view, this appeal was hopeless and should never have been brought. For these reasons this appeal was dismissed.

13. It is necessary, however, to go further in this case in relation to the manner in which this appeal was prepared by the plaintiff's representatives. According to an affidavit of the plaintiff, which was sworn on 13 December 2000, the Director of Legal Aid issued a certificate assigning Mr Jerry Jim of Ford, Kwan & Co. to act for the plaintiff on 3 November 2000. Following that, counsel who was counsel other than Mr Collins, had been engaged who had given advice as to the merits of the appeal. Some time before 13 December 2000, the Director of Legal Aid confirmed the instructions to the solicitor and counsel to proceed with the appeal. Leave to appeal out of time was given by Keith JA on 29 December 2000.

14. Despite the passage of 10 months between the time when leave to appeal had been given and the date fixed for hearing of the appeal, no appeal bundles were prepared by the plaintiff's solicitors. On the morning of the hearing, this court was given three sets of 222 sheets each which were held together with large spring clips. Had it not been for the solicitors for the 2nd defendant preparing bundles, this court would not have had any papers to consider prior to the hearing of this appeal.

15. In the two weeks leading up to the hearing of this appeal there were no less than three applications for an adjournment. The first was some two weeks before this appeal came to be heard when the 2nd defendant applied for leave to serve a respondent's notice out of time. When leave was granted, counsel for the plaintiff asked for an adjournment on the basis of the difficulty of preparing this appeal. Following that, a formal application was made for an adjournment which has heard two days prior to this case being listed. The basis of that application was that counsel had been assigned to the case only recently and wished leading counsel to be involved. Such a request had previously been refused by the Director of the Legal Aid in the early part of the year. Finally, a request for an adjournment was made at the commencement of the hearing of this appeal on the basis that the notice of appeal should be amended. There were no draft amendments which were shown to the court and that application too was refused.

16. On inquiry by the court as to why the appeal bundles had not been lodged, the court was informed that the papers had been with the previous counsel and the solicitors had had difficulties in retrieving them. Subsequent to the hearing of the appeal, the solicitor for the plaintiff sent this court a letter seeking to further explain the reasons for the failure. The reasons put forward were based largely upon the difficulty of instructing new counsel in the time available.

17. Even given the late instructions to counsel there was, in my view, adequate time to prepare for this appeal. The late assignment of counsel who appeared at the hearing was the choice of the plaintiff and the solicitors. Whether it had been appropriate to change counsel is not a matter upon which this court can comment. Nevertheless, there had been ample time from the beginning of this year for the preparation of this appeal. If the plaintiff and his solicitors chose to change counsel at the last minute they had to abide by the consequences of that last minute change.

18. In my view, the conduct of this appeal, in particular by the solicitors assigned by the Director of Legal Aid, has been deplorable. I can see no reason whatever as to why the appeal bundles should not have been prepared and delivered in the normal way well in advance of the hearing. That the case should be handled in such a manner is unacceptable in any circumstances. It is only made worse by the fact that this appeal was being conducted at public expense. In my view, there should be an order that, unless within 14 days the plaintiff's solicitors show cause, they should be debarred from recovering any costs, whether from the Legal Aid Fund or from the plaintiff, in relation to the preparation of any papers for this appeal. The 2nd defendant is entitled to the costs of preparing its bundles as part of the costs of the appeal. From the solicitor's letter, it is apparent that such an order is not resisted. Whether any other costs should be allowed to the solicitors in respect of the preparation of this appeal is a matter which must be left in the hands of the Director of Legal Aid and the taxing master.

Hon Le Pichon JA:

19. I agree.

Hon Cheung JA:

20. I agree.