C v. THE CHINESE UNIVERSITY OF HONG KONG

DCEO 6/2017

[2022] HKDC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 6 OF 2017

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JUDGMENT

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Introduction

1.  C was a part-time postgraduate student in the Chinese University of Hong (“the University”) suffering from certain disabilities within the meaning of the Disability Discrimination Ordinance, Cap 487 (“the DDO”). C alleges to have been directly and/or indirectly discriminated by the University on the grounds of her disabilities and her studies were compulsorily terminated in 2015 as a result. Hence, C instituted these proceedings against the University pursuant to the DDO.

2.  C alleges that the University was in breach of its duties owed to her under the DDO and has, including through its servants and agents, acted towards her in a manner that constitutes:-

(1)  Direct and indirect discrimination;

(2)  Harassment;

(3)  Victimisation; and

(4)  conduct contrary to the Code of Practice on Education (“the COPE”).

3.  On the basis of the foregoing complaints, C claims the following relief against the University:-

(1)  a declaration that the University is engaged in conduct, or committed an act, that is unlawful under the DDO;

(2)  an order that the University do apologise in writing to C for the said unlawful act or conduct under the DDO;

(3)  an order that the University do re-instate C as a student for a period of time reasonably sufficient for her to complete the outstanding requirements necessary for C to be admitted to the degree of Master of Arts in Gender Studies and, subject to satisfactory completion thereof, the University do confer upon C the degree of Master of Arts;

(4)  an order that the University perform a full review of its compliance with the COPE, including inter alia in relation to formulating policies, establishing grievance procedures, a promotion unit, and a compliance body, for ensuring compliance with the DDO and the COPE;

(5)  damages, including aggravated, punitive and/or exemplary damages;

(6)  interest, including pursuant to sections 49 and 50 of the District Court Ordinance, Cap 336 (“the DCO”).

Background facts

4.  Before I set out the respective cases of the parties, I should first give an account of the non-controversial background facts, which are mainly gleaned from the pleadings as undisputed or admitted facts and undisputed documents, unless otherwise stated.

5.  The University needs no introduction. It is an educational establishment within the meaning of the DDO and it is subject to the COPE issued by the Equal Opportunities Commission (“EOC”) under section 65 of the DDO.

6.  In or around early 2011, C accepted an offer of a place on the Master of Arts in Gender Studies Programme (“the MA Programme”). The MA Programme is a part-time taught course provided by the Gender Studies Division (“the Division”) of the Graduate School of the University (“the Graduate School”).

7.  All postgraduate students of the University are subject to the General Regulations Governing Postgraduate Studies (“the General Regulations”). Paragraph 5.1 of the General Regulations (“the 5.1 Regulation”) is a table setting out the normative periods and the maximum periods of study for different courses.

8.  Paragraph 5.4 (“the 5.4 Regulation”) provided,

“A student shall complete all requirements for graduation within the maximum period of study, which shall include any periods of leave of absence and suspension of studies. A student who has not completed all requirements for graduation within the maximum period of study shall be required to discontinue studies at the University. However, in special cases, the Graduate Council may on the recommendation of the Graduate Division concerned grant a student extension beyond the maximum period of study.”

9.  According to the 5.1 Regulation, the normative study period and the maximum study period (“the MSP”) for a full-time Master of Arts course are 1 year and 3 years respectively and those for a part-time Master of Arts course are 2 years and 4 years respectively.

10.  Therefore, C must complete the MA Programme within the 4-year MSP though it is extendable in accordance with the 5.4 Regulation.

11.  At all material times, C suffered depression and generalized anxiety disorder (collectively “the Disabilities”) within the meaning of section 2 of the DDO. Though the University does not admit this averment in its pleading, Mr Cheung, for the University, fairly accepts this in his opening submissions.

12.  With the production of the medical certificates issued by Prof. Sing Lee (“the Psychiatrist”), who is the treating psychiatrist of C, to the University, C was granted leave on an on-going basis for four consecutive terms (being the fourth, fifth, sixth and seventh terms of C’s studies) running from January 2013 to December 2014, lasting for 2 years in total (“C’s 2-Year Leave”).

13.  Prof. Choi, then Programme Director, sent an email to the Psychiatrist dated 16 April 2014 and requested him to provide a brief account of whether C was at the time fit for academic studies.

14.  The Psychiatrist replied by an email of the same date gave information about C’s medical condition, family problems, physical illness and psychiatric conditions. Prof. Choi, shortly afterwards, forwarded this reply email to the Graduate School.

15.  Dr Zhong, currently the director of the MA Programme, sent an email dated 18 September 2014 to the Psychiatrist and enquired about the medical and psychiatric conditions of C.

16.  By his email of the same date, the Psychiatrist replied that C suffered from chronic depression and C was not medical fit for academic study. This reply of the Psychiatrist was forwarded to other staff members of the University including Ms Sandy Chan (“Ms Chan”), Project Coordinator of the Division, Ms Queeny Li (“Ms Li”), Ms Sharina Fan and Ms Polly Cheung of the Graduate School.

17.  On the other hand, on a different topic, Ms Chan sent an email dated 15 November 2013 to C (“the 15/11 Email”). She warned C that unless C submitted all her three outstanding assignments by 23 December 2013, no marks would be awarded and her overall grades would be submitted to the Graduate School, possibly resulting in her failures of the courses.

18.  The three outstanding assignments referred to in the 15/11 Email (“the 3 Assignments”) included:-

(1)  GDRS5131 Women and Literature from Term 1 (2011-12);

(2)  GDRS5050 Contemporary Women’s Issues from Term 2 (2011-12); and

(3)  GDRS5086 Gender and Family from Term 1, 2012-13.

19.  C regarded the 15/11 Email as a threat and she instructed Messrs C L Chow & Macksion Chan, her former solicitors, to issue a reply letter to the University. In the letter dated 23 December 2013 (“the Complaint Letter”), C alleged that there were breaches of the DDO and/or the COPE on the part of the University and asked the University to make reasonable accommodation by provision of further extension of time so as to facilitate to enable C to complete the MA Programme.

20.  Messrs Fred Kan & Co (“FKC”), the solicitors for the University, replied to the Complaint Letter on behalf of the University by their letter dated 18 January 2014 and denied C’s allegations. FKC further raised the issue of defamation in respect of C’s allegations.

21.  Eventually, C was granted further extensions of time in respect of the 3 Assignments.

22.  In late December 2014, C informed the University of her intention to complete the remaining three courses in the eighth term, from January to April 2015 to fulfill her graduation requirements.

23.  On or about 4 January 2015, C filled an application form entitled “Selection of Courses Outside Prescribed Study Scheme” (“the Application Form”), which was wrongly dated 4 January 2014, for her application (“the Enrolment Application”) to enrol on two elective courses (“the Two Elective Courses”) offered by another department, namely, the Cultural and Religious Studies Department of the Graduate School (“the CRS Department”). The Two Elective Courses were “Gender, Love and Sexuality in Intercultural Studies” (CULS5206) (“the 5206 Course”) and “Interdisciplinary Approach of Technoscience Culture” (CULS5207).

24.  The Application Form was first submitted on or about 15 January 2015 in person. Ms Chan told C that she was not allowed to take the Two Elective Courses because they were not listed within her syllabus. C resubmitted the Application Form on 19 January 2015.

25.  By an internal memo dated 29 January 2015 (“29/1 Memo”), Prof. Michael O’Sullivan, who was then the Head of the Division, sought the approval of the Graduate School. Prof. O’Sullivan supported the Enrolment Application and set out his reasons in the 29/1 Memo.

26.  By an email dated 25 March 2015 (“25/3 Email”), Ms Polly Cheung informed C that the Enrolment Application had been approved by the Dean of the Graduate School on an exceptional basis upon the recommendation of the Division Head, i.e. Prof. O’Sullivan.

27.  C now complains about the delay in the registration of C’s for the Two Elective Courses (“the Registration Delay”), which was about 9 to 10 weeks. Her pleaded case is that one Mr Tom Pang, a student on the MA Programme, was registered on the 5206 Course within approximately 2 weeks only.

28.  C also alleges that other unidentified students on the MA Programme were allowed to take more than one elective course offered by the CRS Department within approximately 2 weeks, or in significantly less than 12 weeks.

29.  C then asserts that a hypothetical student in all material respects like C, but without a disability, would have been registered more promptly than C was.

30.  C says that the Registration Delay is directly discriminatory against her on account of her Disabilities.

31.  The last straw for C is the discontinuation of her studies by the University. I should now outline the undisputed facts evidenced by documents leading to this controversial decision of the University. Since this is the core complaint, I shall refer to the relevant documents in some details.

32.  By an email dated 4 May 2015 as a gentle reminder, Dr Zhong reminded C of the 3 Assignments and confirmed that the relevant teachers were willing to grade them if they were submitted albeit out of time. Dr Zhong further pointed out that the grade submission deadline of postgraduate courses for Term 2 was 21 May 2015 and asked C if she was able to contact the teachers and submit the 3 Assignment to them on or before the deadline. Lastly Dr Zhong suggested that C should apply for an extension if she had any difficulties in meeting the deadline.

33.  By an email dated 19 May 2015, Dr Zhong reminded C of the 3 matters concerning her fulfillment of graduation requirements and the approaching of the end of the MSP. Those matters included the submission of the 3 Assignments, an outstanding IT competence test (the last test session being19 July 2015) and the MSP. The last day of the MSP applicable to C fell on 31 July 2015 and Dr Zhong advised that if C wished to apply for an extension of the MSP, she should submit her application before 15 June 2015 to the general office of the MA Programme for the consideration of the Division and the Graduate School.

34.  C did not make such an application before 15 June 2015 as advised. By an email dated 6 August 2015, Dr Zhong reminded C of the 3 Assignments and another outstanding assignments, which was GDRS5403 Gender and History from Term 2, 2014-2015 (collectively “the 4 Outstanding Assignments”) and the IT competence test. Those were the graduation requirements which C was yet to fulfill. Dr Zhong set out the 5.4 Regulation and drew C’s attention to the internal Graduate School’s deadline of 17 August 2015 and the final deadline of 24 August 2015 of the ExCo of the Graduate School. It was highlighted that the approval of the ExCo of the Graduate School was required for an application for extension of the MSP.

35.  Prior to this email, in fact, Ms Alison Wong who was Assistant Registrar of the Graduate School sent an internal memo dated 12 June 2015 to the Division regarding graduate assessment of taught postgraduate students (“the June Memo”). C was included and her outstanding requirements were set out. After assessment, the Graduate School proposed that C’s studies should be discontinued. Ms Alison Wong invited Prof. O’Sullivan to give his recommendation on behalf of the Division.

36.  Prof. O’Sullivan wrote this on the June Memo as the recommendation of the Division signed thereon dated 17 June 2015:-

“We recommend she continue her studies until the end of her maximum study period.”

37.  On 14 August 2015, C submitted her application for an extension of the MSP for two months, i.e. 15 October 2015 (“the Proposed New Deadline”) so that she could complete the 4 Outstanding Assignments and the IT competence test (“the Extension Application”). C specifically referred to her Disabilities, which prevented her from completing the MA Programme within the MSP. Moreover, she enclosed her application letter with a medical certificate issued by the Psychiatrist dated 15 June 2015 (“the Medical Certificate”).

38.  Ms Chan acknowledged receipt of the Extension Application by an email of the same date. She then sent an email dated 18 August 2015 to Ms Claire Chan of the Graduate School and asked her for any precedents of postgraduate students applying for an extension of the MSP on medical grounds.

39.  Ms Claire Chan replied to Ms Chan that any such applications should be endorsed by the Division and the Executive Committee of the Graduate Council would consider such applications with supporting documents such as medical certificates on a case-by-case basis. She confirmed that there were approved applications on medical grounds in the past.

40.  Prof. O’Sullivan sent an email dated 22 August 2015 to C regarding the Application. His undated letter (“the Termination Letter”) was attached to the said email. The Termination Letter is the linchpin of the case of C and for a proper understanding of the same in context, it is necessary to set out its contents in full and for ease of reference, I have made certain definitions therein:-

“We have received your email and the subsequent application letter for an extension of maximum study period on 14 Aug 2015. I am sorry to inform you that after much careful consideration by the Gender Studies Graduate Panel and after discussions with the Graduate School, we have decided not to support your application. (“the First Paragraph”)

According to the letter, you would like to apply for an extension of the deadline of maximum study period from the original date of 31 July 2015 to 15 October 2015, in order to take the IT competence test and complete outstanding assignments to fulfil your graduation requirements. (“the Second Paragraph”)

These include assignments of the following courses:

1. GDRS5131 Women and Literature from Term 1, 2011-12

2. GDRS5050 Contemporary Women’s Issues from Term 2, 2011-12

3. GDRS5086 Gender and Family from Term 1, 2012-2013

4. GDRS5403 Gender and History from Term 2, 2014-15 (“the Third Paragraph”)

In discussions with the Graduate Panel, I have learned that two of the assignments were originally due over three years ago, one was due over two years ago, and one was due three months ago. We do not believe that your work to date has clearly demonstrated that you would be able to complete these assignments. Seeing as we are now almost into September and that new deadline would be Oct. 15, we also feel that you have not clearly demonstrated that you would be able to complete these assignments by the new deadline. (“the Fourth Paragraph”)

The pressure to complete all these assignments in such a short period of time, considering your recent medical history, would also not be in your best interests as a student. As you know, the Gender Studies Programme has always been mindful of your exceptional circumstances and it has on numerous occasions granted you lengthy extensions for your assignments. (“the Fifth Paragraph”)

I am sorry to inform you that the Gender Studies Programme cannot support a further extension of study at this time. If you would like to discuss this further, please don’t hesitate to contact me of the Gender Studies Programme. (“the Sixth Paragraph”)

Best regards,

Graduate Division Head

Prof. Michael O’Sullivan”

(emphasis supplied)

41.  In her witness statement, C, however, contends that she has never received the Termination Letter.

42.  Ms Joanna Lee who was Senior Assistant Registrar of the Graduate School sent an internal memo dated 27 August 2015 to the Division regarding graduate assessment of taught postgraduate students of the MA Programme (“the August Memo”). By the August Memo, the Graduate School again asked for the recommendation of the Division in view of the outstanding requirements of C. This time, Prof. O’Sullivan ticked the box of “Discontinue studies” as the recommendation of the Division on or about 1 September 2015.

43.  By a letter dated 10 September 2015, the Graduate School informed C that as recommended by the Division, C was required to discontinue studies with effect from the first term of 2015-16 in accordance with the General Regulations.

44.  On or about 13 November 2015, C lodged a complaint about disability discrimination with the EOC against the University. The EOC closed the case on 15 June 2016.

C’s claim

45.  The discontinuance of C’s studies is the subject matter of C’s claims of both direct and indirect discrimination.

46.  For direct discrimination, the pleaded case of C is premised upon the Termination Letter. The reference to the consideration of C’s recent medical history is alleged to be the reason, or one of the reasons for the refusal of the Extension Application and the discontinuation of C’s studies.

47.  C says that the refusal of the Extension Application by reason of the recent medical history of C constitutes refusal on the grounds of C’s Disabilities and further was or involved stereotyping in which University made incorrect assumptions as to the effect of completing the 4 Outstanding Assignments on C and a patronising and offensive assessment about what in C’s best interests was.

48.  In addition, C says that the consideration of her recent medical history would not have been applied to an actual and/or hypothetical student in all material respects like C, but without a disability.

49.  Lastly, C contends that the Extension Application would not have been refused in comparable circumstances if C had been an actual or hypothetical student in all material respects like C, but without a disability.

50.  C says that the discontinuance of her studies with the consideration of her recent medical history contravenes sections 6(a) and 24(2)(a) to (c) of the DDO. Section 6(a) provides that a person discriminates against another if on the ground of that other person’s disability he treats him less favourably than he treats or would treat a person without a disability.

51.  Section 24(2) provides,

“… it is unlawful for an educational establishment to discriminate against a student disability

(a) by denying that student’s access, or limiting that student’s access, to any benefit, service or facility provided by the educational establishment;

(b) by expelling that student; or

(c) by subjecting that student to any detriment.”

52.  C also relies on section 3 of the DDO which provides that if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the DDO, the act is taken to be done for the reason of disability.

53.  For the alleged indirect discrimination, C says that the discontinuance of her studies contravened sections 6(b), 24(2)(a), (b) and (c) by reason of the application of the requirement or condition in the 5.4 Regulation to her.

54.  Section 6(b) of the DDO provides,

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of (the DDO) if—

(a) …

(b) he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but—

(i) which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and

(iii) which is to that person’s detriment because he cannot comply with it.”

55.  C says that she has demonstrated that she has the intellectual ability to complete all the requirements of the MA Programme to earn the Master of Arts degree but she has been impeded by the Disabilities rendering it impossible for her to complete the 4 Outstanding Assignments within the time stipulated in the 5.1 Regulation.

56.  C contends that a student with her other relevant attributes, but without the Disabilities, would have been able to comply with the 5.4 Regulation, or alternatively a significantly greater portion of students without a disability (or without the same disability) would have been able to so comply. As a result of the unfair application of the 5.4 Regulation to her, she suffered the detriment in that her studies were terminated and she lost the opportunity to graduate with a Master of Arts degree thereby diminishing her employment prospects and earning capacity. She is also stigmatised as a failed student.

57.  C further says that the discontinuance of her studies is less favourable treatment in retaliation for her complaints about suffering unlawful discrimination including the Complaint Letter (“the Discrimination Complaints”).

58.  Hence, section 7 of the DDO is engaged and the discontinuance of her studies amounted to victimisation within the meaning of the provision.

59.  It is a convenient juncture to mention section 8 of the DDO. Section 8 provides that a comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in one case are the same, or not materially different, in the other.

60.  The remaining two claims are based on the Registration Delay. C relies on the registration of Mr Tom Pang and alleges that the University registered him on the 5206 Course within approximately two weeks. She believes that the Registration Delay was due to the Disabilities, which is a direct discrimination. Further or in the alternative, it was due to a retaliation for the Discrimination Complaints and therefore it is a discrimination by way of victimisation contrary to section 7 of the DDO.

61.  In addition to the foregoing alleged contraventions of the DDO, C’s pleaded case includes other miscellaneous allegations against Ms Chan and Prof. Choi. C also complains about the University’s gaining unauthorised access to her medical information held by the Psychiatrist. I cannot see how they are relevant to her claims without express references to any sections of the DDO. Mr Parker, together with Mr Chau, for C, submits in his closing submissions that these matters provide important context of the claims of C and are germane to the question of relief. Nevertheless, I shall deal with these allegations at the end.

62.  On the other hand, Mr Parker draws to my attention certain provisions of the COPE and submits that the University has failed to adopt a proper anti-discrimination policy in accordance therewith and hence its staff members have engaged in various unlawful discriminatory conduct. C does include in her prayer of relief that the University be ordered to perform a full review of its compliance with the COPE.

63.  It is hence necessary to give a brief introduction of the COPE here and I adopt the opening submissions of Mr Parker in this regard.

64.  The COPE was promulgated by the EOC pursuant to section 65(1) of the DDO in 2001 and was subject to vetting by the Legislative Council under sections 65(5) to (8). The legal significance of the COPE is explained in section 65(13) of the DDO. That section provides that a failure on the part of a person to observe a provision of a code of practice shall not itself render him liable to proceedings, but:-

“(13) … in any proceedings under this Ordinance before any court any code of practice issued under this section shall be admissible in evidence, and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.” (Emphasis added)

65.  Mr Parker highlights to this court the following provisions of the COPE:-

(1)  Paragraph 11 of the COPE, which appears under the heading “Practical Guidelines for Educational Institutions”, gives various guidance to educational establishments about putting in place policies on equal opportunities for persons with disabilities to ensure that staff and students are aware of the requirements of the DDO and the COPE, and that these important instruments are given real and practical effect. In particular:

(a)  A policy should be adopted which will: “make a clear commitment to promote positive educational outcomes”, “indicate that disability harassment and vilification will not be tolerated”, “make it clear that there are grievance procedures in the educational establishment to handle complaints or disputes concerning matters relating to the DDO” (§§11.1.1 to 11.1.3);

(b)  Such policy: “should be promoted and made available to all stakeholders of an educational establishment” (§11.2); and

(c)  Particularly relevant is paragraph 11.4, which reads:-

“11.4 Larger educational establishments, such as universities, are advised to prepare a separate policy on disability discrimination, detailing matters such as objectives, admission procedures and support mechanisms available for students with disabilities. They should also have a clearly stated grievance procedure to deal with complaints. Large tertiary institutions are encouraged to establish a centre or designate a group to distribute information, implement and coordinate related activities in areas of equal opportunities.” (Emphasis added)

(2)  At paragraph 12.2 of the COPE, it is stated that reasonable accommodation should be afforded persons with disabilities:-

(a)  “Accommodations are measures or actions taken in order to provide equal opportunities for students with disabilities” (§12.2.1);

(b)  “Educational establishments have the obligation to make reasonable accommodations in their existing programmes, services, facilities and benefits in order to meet the needs of their students” (§12.2.2, emphasis added);

(c)  “the accommodations are reasonable for the purpose; that is, they reasonably fulfill the educational and training needs of the student” (§12.2.3.1)

(d)  “the accommodations are the least disruptive and intrusive for the student” (§12.2.3.3)

    (Emphasis supplied)

66.  It is obvious that the allegations of C in support of her present claims are, to a large extent, factual in nature. However, before I deal with the factual issues, there are two interesting legal issues raised by the defence. Strictly speaking, my conclusion on the factual issues can render the legal issues academic. In deference to counsel’s full debate on these issues, I intend to get them out of the way prior to my analysis of the factual issues.

67.  The first legal issue is whether claims of direct and indirect discrimination are mutually exclusive. Mr Cheung, for the University, argues that they are and Mr Parker disagrees.

68.  Mr Cheung refers this court to Regina (Elias) v Secretary of State for Defence [2006] IRLR 934. There, the English Court of Appeal considered certain provisions in the Race Relations Act 1976 on which the claimant, a British citizen born in Hong Kong, based her claims. These included sections 1(1)(a) and 1(1)(b), which are structurally not dissimilar to sections 6(a) and 6(b) of the DDO. The former covers direct discrimination and the latter covers indirect discrimination. Mr Cheung draws my attention to the following observations made by Lord Justice Mummery on the differences between direct and indirect discrimination, at §§115–119:-

“115. The discrimination complained of in this case does not take the direct form of treatment 'on racial grounds.' The birth link criteria take an apparently neutral form, which applies or would apply equally to all applicants for payments under the compensation scheme. It is the application of the neutrally worded criteria which produces the disparate adverse impact and puts persons of the same national origins at a particular disadvantage when compared with other persons. These are the distinguishing features of discrimination in its indirect form.

116. On this aspect of the case I would make the following particular points.

117. First, the 1976 Act clearly creates two different causes of action for race discrimination. They are two different statutory torts. The conditions of liability, the available defences to liability and the available defences to remedies differ. So far as remedies are concerned damages for injury to feelings for indirect discrimination were not available in cases of unintentional indirect discrimination contrary to s.1(1)(b): see s.57(3).

118. Secondly, it is well established on authority and in practice that the material facts for the separate causes of action need to be separately pleaded, proved and ruled on. Section 1 of the 1976 Act cannot be construed as collapsing two causes of action into a single cause of action, the ingredients of which are discriminatory purpose and/or discriminatory effects.

119. Thirdly, the basic differentiation between the two causes of action is plain: it is between one form of discrimination, which focuses on treatment of another person on prohibited grounds and aims at achieving 'formal equality' of treatment, and a different form of discrimination, which aims at achieving 'substantive equality of results' where the application of apparently racially neutral criteria produces disproportionate adverse racial impact: see the trenchant observations in Secretary of State for Trade and Industry v Rutherford [2006] UKHL 19; [2006] IRLR 551 at paragraph 71 per Lady Hale.”

69.  I note that Lady Justice Arden (at §276) stated her agreement with Mummery LJ at least in general that there is no overlap between direct and indirect discrimination. However, it is worthy of note that her Ladyship also expressly accepted that, if a different approach had been taken to the meaning of direct discrimination, there might well have been an overlap.

70.  Next, Mr Cheung refers to an earlier decision of the High Court of Australian in Waters and Others v Public Transport Corportaion (1991) 103 ALR 513 and submits that the court shared the same view and noted that direct and indirect discrimination are mutually exclusive and cannot arise from the same facts.

71.  In the Waters case, sections 17(a) and 17(5) of the Equal Opportunity Act 1984 (Vic) (“the EO Act”) were under scrutiny. The said two provisions are to some extent comparable with sections 6(a) and 6(b) of the DDO. In the joint judgment of Dawson and Toohey JJ (at p546), it was concluded that the said two provisions of the EO Act dealt separately with direct and indirect discrimination and do so in a manner which is mutually exclusive. McHugh J reached the same conclusion (at p552).

72.  Lastly, on this issue, Mr Cheung cites Professor S Freman’s Discrimination Law – Clarendon Law Series (2^nd ed) (pp153-154). The Professor explained the concept of indirect discrimination and it has little bearing on the present legal issue.

73.  On these authorities, Mr Cheung submits that the Registration Delay cannot amount to both direct and indirect discrimination. But this is not really the case of C.

74.  Mr Parker submits that the two different kinds of discrimination are often run together or as alternatives. In support of his submission, he cites the speech of Baroness Hale giving the Opinion of the Privy Council in Rodriguez v Minister of Housing of the Government & Anor [2009] UKPC 52. There, the policy under attack was the housing policy of the Housing Allocation Committee in Gibraltar that joint tenancies in public housing units were granted to couples only if they were married to one another or had a child in common. It was held by the Supreme Court of Gibraltar that there was no discrimination at all. The appellant contended that the policy was directly discriminatory against gay and lesbian couples since they were excluded under the policy by reason of their sexual orientation. Baroness Hale disagreed and found that it was indirect, rather than direct, discrimination and explained herself in the following terms at para 19:-

“… The difference in treatment is not directly on account of their sexual orientation, because there are other unmarried couples who would also be denied a joint tenancy. But even if, as Dudley J found, these are the proper comparator, the effect of the policy upon this couple is more severe than on them. It is also more severe than in most cases of indirect discrimination, where the criterion imposed has a disparate impact upon different groups. In this case, the criterion is one which this couple, unlike other unmarried couples, will never be able to meet. They will never be able to get married or to have children in common. And that is because of their sexual orientation. Thus it is a form of indirect discrimination which comes as close as it can to direct discrimination.”

75.  Mr Parker emphasises the last sentence of the above extract of the Opinion. It is, however, not supportive of the proposition that a single act can amount to both direct and indirect discrimination in my judgment. Close as indirect discrimination to direct discrimination in a particular case can be, they are still different kinds of discrimination.

76.  Mr Parker further relies on 3 authorities to show that it is not uncommon that both forms of discrimination were relied upon in the same claim. First, in Islington London Borough Council v Ladele [2010] 1 WLR 955, the claimant made her claims for both direct and indirect discrimination arising from her religious belief against her employer. In the first instance, the Employment Tribunal allowed both her claims. However, the Employment Appeal Tribunal set aside the decision of the Employment Tribunal and dismissed both her claims. Subsequently, the Court of Appeal upheld the decision of the Employment Appeal Tribunal and dismissed the claimant’s appeal.

77.  In Siu Kai Yuen v Maria College [2005] 2 HKLRD 776, Judge CB Chan, after trial, found both direct and indirect discrimination respectively under sections 6(a) and (b) of the DDO against the defendant by reason of its termination of the employment of the plaintiff.

78.  Lastly, in Amnesty International v Ahmed [2009] ICR 1450, the claimant made a claim of direct discrimination and had an alternative claim of indirect discrimination against his former employer. The employment tribunal held that if it had not found the defendant to have discriminated the claimant directly, it would have found it to have done so indirectly. The Employment Appeal Tribunal had a different conclusion. It observed that if the claim of indirect discrimination had been alive, the appeal on this aspect should be allowed.

79.  After considering all the authorities cited to me in detail, I believe that the debate is of little significance. To start with, as pointed out earlier, C does not really rely on the Registration Delay to make her claims of direct and indirect discrimination.

80.  C’s claims for direct and indirect discrimination are based on the discontinuance of C’s studies. Yet, as will be seen below, the factual allegations in support of these two claims are not exactly the same. The issue of the mutual exclusivity of direct and indirect discrimination does not arise.

81.  As with similar discrimination legislation in other jurisdictions which Mr Cheung and Mr Parker have referred to me, the DDO creates two different causes of action for direct and indirect discrimination. Sections 6(a) and 6(b) of the DDO respectively set out the different factual elements of direct and indirect discrimination.

82.  There can be no doubt that sections 6(a) and (b) are two separate and distinct statutory torts. The authorities cited by Mr Cheung do not suggest that these two causes of action cannot co-exist in an action. They identified and acknowledged the differences of the two causes of action. In Regina (Elias), as I understand, it was merely held that the material facts for direct discrimination and indirect discrimination should be separately pleaded, proved and ruled upon. The issue of mutual exclusivity appeared only in the Waters case. It was held that direct discrimination under section 17(a) could not be indirect discrimination under 17(5) of the EO Act at the same time and the two provisions dealt with direct and indirect discrimination in a mutually exclusive manner. They are no authorities for the proposition that one cannot make claims of both direct and indirect discrimination in an action.

83.  In my judgment, so long as a claimant can prove the material facts for both direct discrimination required under section 6(a) and the material facts for indirect discrimination required section 6(b), he should succeed in both claims. There is nothing conceptually wrong or objectionable for a claimant to make both claims in an action in my view.

84.  Returning to the present case, though the core complaint is the discontinuance of C’s studies, the material facts pleaded for each of the claims of direct discrimination and indirect discrimination are not identical. For the former, the direct discriminatory act is the refusal of the Extension Application by reason of the Disabilities. For the latter, the discriminatory act is the across-the-board application of the 5.4 Regulation.

85.  In the premises, the issue of mutual exclusivity in respect of direct and indirect discrimination does not arise in the present case at all.

86.  Next, Mr Cheung raises a legal argument about the comparison exercise under sections 6(a) and 8 of the DDO. He first relies on M v Secretary for Justice [2000] 2 HKLRD 298 per Tang VP (as he then was). At §45, Tang VP said this,

“I am also of the view that as a matter of plain construction, s.6(a) and s.8 require the court to compare the treatment of the complaint with the treatment of a suitable comparator (the comparator question) and in the event that less favourable treatment is established the court should decide whether the less favourable treatment given “on the ground” of the complainant’s disability (the causation question)…”

87.  The comparator question and the causation question identified by Tang JA (as he then was) have been frequently adopted in subsequent discriminatory claims and there is no dispute that these are the usual questions to be resolved.

88.  Mr Cheung then submits that the proper hypothetical comparator is a person without a disability whose circumstances are the same or not materially different from C. In the particular context of the present case, Mr Cheung submits that such a person is a student who habitually failed to hand in course works and complete his or her study within the prescribed or extended period for a reason other than a disability such as laziness, lack of motivation, etc.

89.  Mr Cheung lays stress on the importance of comparing like to like and in this connection, he refers to Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services (2020) 23 HKCFAR 456. There, the Court of Final Appeal dealt with an allegation of sex discrimination against male prisoners regarding their hair length. At §15, Ma CJ referred to the speech of Baroness Hale of Richmond in R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC1 in which a 4-step approach for determination of sex discrimination was set out. In that case, allegations of discrimination under the Race Relations Act 1976 (UK) were examined. Ma CJ, nevertheless, found the 4-step approach logical and could be translated to the context of sex discrimination. It should be equally capable of being translated to the context of discrimination under the DDO by the same token.

90.  The 4-step approach, with the necessary modifications in view of the present case, is as follows:-

(1)  There must be a difference in treatment between one person, the complainant and another person, real or hypothetical, from a different group, the compared person.

(2)  The relevant circumstances between the complainant and the compared person are the same or at least not materially different.

(3)  It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.

(4)  The difference in treatment is on the basis of disabilities.

91.  Ma CJ had this to say about the quality of the compared person at §17,

“… when embarking on the comparison exercise, it is important to compare like with like and to view the matter in proper context. It is only when one is comparing like with like that one can then move to the next critical inquiry of asking whether there is less favourable treatment that has been accorded by the discriminator to the complainant. This reflects s 10 of the SDO that when making comparisons for the purpose of the s 5(1) exercise, “the relevant circumstances in the one case are the same, or not materially different, in the other.” In a nutshell, “there must be no less favourable treatment between otherwise similarly situated people on grounds of”[1] sex. In the present case, the appellant is comparing himself with female prisoners.

92.  Section 8 of the DDO mirrors section 10 of the Sex Discrimination Ordinance.

93.  Mr Parker takes a different position. He first points out that in the particular circumstances of the present case, the conventional approach and the comparator question should be dispensed with due to the complication of identification of a proper comparator. And, in any event, Mr Parker disagrees with Mr Cheung’s characterisation of the proper hypothetical comparator.

94.  Mr Parker’s argument is developed in the following manner. In the first place, as observed by Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §58, the two-stage approach involving the comparator question and the causation question in each of the two stages may not be applicable in all situations. Ma CJ explained in the following terms:-

“While perhaps in some cases, this two-stage approach can neatly be applied, it is important that it should not be regarded as if it were a statute and treated as such. A step by step approach is useful as far as it goes but it must not give rise to complicated and long-drawn out (but ultimately unproductive) arguments as to whether this step or that step has been overcome. Such arguments will often obscure the real issues in a case. This should be borne in mind when dealing with issues of equality where the two-stage approach is useful but must not give rise to complex and unnecessary arguments…”

95.  In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, [2003] UKHL 11, Lord Nicholls made a similar observation and explained the potential difficulty of the two-stage approach as follows:-

“No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, received less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”

96.  After reviewing the facts of the decision under appeal, Lord Nicholls went on to conclude this,

“11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.

12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.”

97.  Paragraph 11 of the speech of Lord Nicholls cited above was quoted with approval by the Court of Final Appeal in QT v Direction of Immigration (2018) 21 HKCFAR 324 in footnote 60.

98.  In Stockton-on-Tees Borough Council v Aylott [2010] ICR 1278, Mummery LJ explained his agreement to and adoption of the approach of Lord Nichollas in Shamoon at §§43-44:-

“43. At this point I turn to a pellucid passage in the opinion of Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (which was cited by the appeal tribunal), paras 7–12, for the proposition that the two-stage analysis which has been followed by the employment tribunal in direct discrimination cases can cause unnecessary difficulty and confusion in practice. As Lord Nicholls explained in that passage, 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.

44. Applying that approach to this case I think that the decision whether the claimant was treated less favourably than a hypothetical employee of the council is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment: the real question is not so much about the hypothetical comparator, as whether the employment tribunal's finding on the ground of dismissal was supported by evidence.

99.  HH Judge Lok (as he then was) in Sit Ka Yan Priscilla v Equal Opportunities Commission and Ors (unreported, DCEO11/1999, 11.2.2010) also cited the speech of Lord Nicholls and expressed his agreement thereto (at §134). The judge adopted the approach and, instead of finding an appropriate comparator, first addressed the issue of why the claimant was treated in the way as she was.

100.  The judge’s adoption of the approach of Lord Nicholls in Shamoon (“the Shamoon approach”) was challenged by the appellants in the Court of Appeal in Sit Ka Yan Priscilla v Equal Opportunities Commission and Ors (unreported, HCMP 1117/2011, 4.11.2011). Tang VP (as he then was) upheld the applicability of the Shamoon approach at §§26-27.

101.  Quite understandably, there is a heated debate about the identity of an appropriate comparator in the present case.

102.  Mr Parker refers to §§6.74-6.75 in Monaghan on Equality Law (2^nded, OUP). The learned authors state the proposition that when undertaking a comparison, the fact of the protected characteristic, as well as the conduct indissociable from it, or which is a ‘necessary facet’ of it, must be ignored.

103.  Then the learned authors go on to examine the Stockton-on-Tees Borough Council case. There, the Court of Appeal held that the employment tribunal, in search of a hypothetical comparator, had correctly excluded from the relevant circumstances behavioural and performance difficulties stemming from the claimant’s disability. Such difficulties resulting from the particular disability would not be relevant circumstances of a hypothetical comparator who did not have that particular disability.

104.  Mr Parker submits that the question as to why C received the allegedly discriminatory treatment (“the Why question”) is straightforward and the Termination Letter provides a quick and complete answer, rendering the comparator question otiose.

105.  On the other hand, the identification of a hypothetical comparator in the absence of an actual comparator is fraught with difficulties in light of the established principles.

106.  Mr Parker, therefore, submits that this court should adopt the Shamoon approach and determine the Why question first.

107.  His fallback position is that if the comparator question is to be answered, the proper hypothetical comparator would be a postgraduate student in the MA Programme who did not suffer from a disability and had a history similar to that of C i.e. requiring previous extensions of deadlines for wholly justified reasons, not being a disability. He should also have a similar history of being granted leave of a total of 2 out of 4 academic years by the University and had 4 outstanding essays and an IT competence test to complete.

108.  I agree that the comparator question and the causation question are intertwined here. The difficult task of identifying an appropriate hypothetical comparator would only unnecessarily complicate the matter.

109.  Neither Mr Cheung nor Mr Parker can convince me that the hypothetical comparator proposed by them is appropriate. C was refused the extension of the MSP applicable to her to the Proposed New Deadline. The hypothetical comparator should have asked for the same period of extension. The outstanding amount of work required for the completion of the MA Programme should be the same. His reasons for his previous successful extensions should be similar if not identical. He should have innocent reasons but they could not be on medical grounds.

110.  Furthermore, it cannot be denied that any extension of the MSP under the 5.4 Regulation is an exercise of discretion on the part of the Graduate Council. In a proper exercise of such discretion, the Graduate Council is bound to take into account a basket of factors and the personal circumstances of the applicant must be considered.

111.  Hence, I am convinced that in the particular circumstances of this case, I should adopt the Shamoon approach and determine the Why question first.

The Why question

112.  The crux of C’s case of direct discrimination is based on Prof. O’Sullivan’s reference to her recent medical history in the Fifth Paragraph in the Termination Letter (“the Medical History Reference”). Mr Parker relies on no other direct evidence of the reasons why C’s Extension Application was rejected.

113.  Mr Parker submits that the claim of direct discrimination is clearly made out by the Medical History Reference. By such an express and unequivocal reference to C’s medical history in the Termination Letter, C’s medical history including the Disabilities must be at least one of the grounds for the refusal of the Extension Application and hence the termination of her studies. This must be an operative and causal part of the decision. Mr Parker relies on section 3 of the DDO in this regard.

114.  At first blush, Mr Parker’s submission is attractive and forceful. The conclusion that the Graduate School refused to grant the extension on account of, at least partially, C’s Disabilities appears to be inescapable.

115.  It is imperative to examine the contents of the Termination Letter in its entirety carefully and to understand the Medical History Reference in context to determine the Why question, nevertheless.

116.  The Termination Letter was issued in response to the Application Letter. The extension specifically applied for by C was for 2 months only. C supported her Extension Application with the Medical Certificate to explain her mental health issues.

117.  In the First Paragraph of the Termination Letter, Prof. O’Sullivan informed C of the decision not to support C’s application. Then in the Second Paragraph, Prof. O’Sullivan recited the background facts of the Extension Application. In the Third Paragraph, Prof. O’Sullivan went on to set out the details of the 4 Outstanding Assignments.

118.  In the Fourth Paragraph, Prof. O’Sullivan set out the respective lateness of the 4 Outstanding Assignments. 2 of them were due 3 years ago and one of them was due 2 years ago. The remaining one was due 3 months ago. He then indicated his inability to believe that C would be able to complete the 4 Outstanding Assignments by the Proposed New Deadline in the absence of C’s clear demonstration of her ability to do so.

119.  Next, in the Fifth Paragraph, Prof. O’Sullivan stated that there would be pressure to complete the 4 Outstanding Assignments in such a short period of time and such pressure would also not be in her best interests as a student considering her recent medical history. He further reminded C that C had been previously given lengthy extensions for her assignment in view of her exceptional circumstances.

120.  Finally, in the Sixth Paragraph, Prof. O’Sullivan extended his apology to C about the rejection of the Extension Application. He further invited C to further discuss the matter if she so wished.

121.  Lastly, Prof. O’Sullivan signed the Termination Letter as Graduate Division Head.

122.  Prof. O’Sullivan testified and explained the contents of the Termination Letter. I shall deal with his evidence later. Solely on a fair reading of the Termination Letter, I am of the view that, the Fourth Paragraph contained the sole reason why the Extension Application was refused, after the result was given and the background was set out in the preceding 3 paragraphs.

123.  Applications for an extension of time pursuant to the 5.4 Regulation are invariably made on the basis that the applicants are unable to complete the graduation requirements within the MSP such that they need an extension. In considering such applications, the University is bound to consider whether the applicants can satisfactorily explain why they are unable to complete the graduation requirements and whether they are actually able to complete the requirements for graduation within the extended period of study applied for. The University is well entitled to refuse to grant an extension if either of these questions is answered in the negative.

124.  In the present case, in the Fourth Paragraph, the University considered the latter question. 3 of the 4 Outstanding Assignments were late for more than 2 years and the remaining one was due 3 months ago. Against this background, the University firmly concluded that C would not be able to complete them within the extended period applied for, i.e. 2 months from the date of the Application to the Proposed New Deadline in the absence of any information indicating C’s ability to complete the 4 Outstanding Assignments. The IT competence test was not really significant. This conclusion was the reason given by the University for its refusal to grant the Extension Application.

125.  Mr Parker submits that the 4 Outstanding Assignments might not be so heavy and C could have finished them by the Proposed New Deadline. C only made a similar bald assertion under cross-examination without any details supported by documentary proof. Mr Parker complains that Prof. O’Sullivan should have made enquiries with C about her progress with the 4 Outstanding Assignments and asked her how she planned to complete them before making the decision on the Extension Application.

126.  I cannot accept this submission. As an applicant, C should support the Extension Application with all the relevant information. If C had completed the bulk of the 4 Outstanding Assignments and needed 2 more months only, she should have included this information in her application. In any event, I should bear in mind that in this anti-discrimination suit, I am not really concerned with the merits of the reasons of the University for its rejection of the Extension Application. Whether I would have come to another conclusion or even if I would have been minded to grant the Extension Application for some other reasons such as the impressive academic records of C is irrelevant. The real issue is whether the decision was actually made on the proscribed grounds, i.e. on the ground of the Disabilities.

127.  The reason given in the Fourth Paragraph, in my judgment, does not have anything to do with the Disabilities. Mr Parker does not argue otherwise. Objectively speaking, it appears to be a mammoth task for a student to complete the 4 Outstanding Assignments overdue for years within 2 months regardless of his or her health condition. Prof O’Sullivan made a similar observation in his witness statement and he was not cross-examined on this. The University made this assessment and I do not think I can and should call it into question.

128.  Now I consider the Medical History Reference. It was made in conjunction with Prof. O’Sullivan’s observation that the pressure to all the 4 Outstanding Assignment in a short period of time would not be in her best interests as a student. Mr Parker submits that Prof O’Sullivan made an incorrect and unfair assumption about the pressure and it was patronizing and offensive.

129.  I am unable to agree with Mr Parker. Prof. O’Sullivan merely stated the obvious and it was a matter of common sense. The pressure to complete 4 long-overdue assignments within 2 months could not be insignificant to any students without any illness, let alone a student who has the Disabilities. Prof. O’Sullivan also said this in his witness statement and I agree with him.

130.  It appears to me that Prof. O’Sullivan made the Medical History Reference just to highlight that such pressure would be particularly hurtful to C given her mental health condition. The Medical History Reference was not a reason in itself and did not form any part of the reason. Prof. O’Sullivan did not suggest that owing to the Disabilities, C could not withstand such pressure and so she could not possibly complete the 4 Outstanding Assignments by the Proposed New Deadline whereas other students without the Disabilities or any aliments should be able to cope with such pressure. The Termination Letter, read as a whole, is not open to such an interpretation.

131.  Mr Parker points out that the use of the word “also” immediately after the Medical History Reference indicates that it is a reason “in addition to” the reasons that have already been given.

132.  I do not accept this submission. The adverb “also” does not qualify the clause “considering your recent medical history”. Rather, it is a conjunctive adverb working like “furthermore” to indicate that there is something more to be said in addition to the preceding paragraph. After Prof. O’Sullivan indicated his conclusion that C could not possibly finish the 4 Outstanding Assignments by the Proposed New Deadline in the Fourth Paragraph, he merely further observed that in any event the pressure to do so would not be in her best interests considering her recent medical history in the Fifth Paragraph. This observation has a connection with his conclusion made in the preceding paragraph but it is not an additional reason. It is more like a consolation. I believe that the reliance on the adverb “also” is misplaced.

133.  Prof. O’Sullivan explained why he made the Medical History Reference in the Termination Letter. First, in his witness statement, he made a bare denial that the Medical History Reference was not the reason or one of the reasons for the decision.

134.  Under cross-examination, Prof. O’Sullivan insisted that the decision was made solely on academic grounds. Prof. O’Sullivan further explained that he made the Medical History Reference to show his compassion, care and consideration when he broke the news to C that the Extension Application was unsuccessful. He considered that it was part of his pastoral duty to C.

135.  Mr Parker submits that his explanation must be rejected. He points out that no such pastoral duty is pleaded in the first place and is not mentioned in his witness statements. Mr Parker also submits that the Medical History Reference is not comforting at all and is inconsistent with the plain meaning of the Termination Letter. He reminds this court of the unreliability of ex post facto reasons given for a prima facie unlawful decision inconsistent with the original reasons, citing Hereford Waste Watchers v Hereford Council [2005] EWHC 191 (Admin), Young v Oxford City Council [2002] EWCA Civ 990, T v Independent Panel for Devon County Council [2007] EWHC 763 (Admin) and Nash v Chelsea College of Art and Design [2001] EWHC Admin 538.

136.  Lastly, Mr Parker says that the Termination Letter is written in a business-like and matter-of-fact manner and there are not any comforting or consolation words.

137.  I cannot accept the submissions of Mr Parker. I have little hesitation in accepting Prof. O’Sullivan’s explanation for the following reasons.

138.  To start with, Prof. O’Sullivan appeared to be an honest and reasonable witness to me. He was very fair and readily accepted that C performed very well in some subjects and that C’s performance was hindered by the Disabilities. His explanation given under cross-examination, though not previously proffered, sounds genuine. It accords with my understanding of the Termination Letter upon a fair reading of the same. I do not think his explanation is his recent fabrication.

139.  Nor do I find his explanation in any way inconsistent with the reason given in the Fourth Paragraph. The alleged inconsistency is premised upon the allegation that the Medical History Reference is a reason. I have rejected this allegation.

140.  Prof. O’Sullivan was in a very delicate situation and he was sensitive to the feeling to C. The Termination Letter is indeed well-written.

141.  C gave Prof. O’Sullivan a copy of the Medical Certificate to support the Extension Application and naturally he had to indicate that he had considered such information. It was only after informing C of the result of the Application and the reason for the decision in the preceding paragraphs that Prof. O’Sullivan tried to comfort C that the pressure arising from her proposed extension would indeed be harmful to her in light of her medical history in any event. Prof. O’Sullivan obviously wished to guide C to look at the bright side of the refusal of the Extension Application with a view to alleviating her disappointment.

142.  In fact, I have difficulties in accepting that any refusal of C’s Extension Application having taken into account the medical condition of C must be discriminatory. C expected the University to consider her medical condition in light of the supporting document and certainly the University could and should have regard to the same. It does not follow that any decision that the University subsequently made must be on the grounds of the Disabilities and hence directly discriminatory.

143.  In his written closing submission, Mr Paker makes it clear that the personal circumstances of C were indeed relevant. However, he submits that the University should give her reasonable accommodation for her Disabilities in compliance with the DDO and the COPE. The Disabilities could only be a favourable factor and if they were taken to be a factor against her, it would be direct discrimination.

144.  I cannot accept this submission, which would lead to absurd situations. Considering this scenario, a student applies for an extension of his MSP after he has become mentally incapacitated due to an accident causing him serious brain damage. The University in considering his application inevitably takes into account his mental incapacity and should assess the likelihood of his successful completion of the graduation requirements. It is unacceptable to say that the University has no option other than allowing the application by reason of his disabilities.

145.  To conclude, I hold that the answer to the Why question is that the University was not convinced that C could possibly meet the Proposed New Deadline to complete the 4 Outstanding Assignments, as expressly stated in the Fourth Paragraph. None of the reasons given in the Termination Letter is on the grounds of C’s Disabilities. There is no direct discrimination in the decision of the University to reject the Extension Application.

Stereotyping constituting direct discrimination?

146.  Mr Parker, in his written closing submission, submits that the University’s refusal of the Extension Application by reason of her Disabilities involved stereotyping. He submits that the University made incorrect and unfair assumptions about the pressure C would be subject to if she had to complete the 4 Outstanding Assignments by the Proposed New Deadline.

147.  In this regard, Mr Parker relies on Leung Kwok Hung v Commissioner of Correctional Services [2020] HKCFA 37 and the Stockton-on-Tees Borough Council case.

148.  Given my conclusion that the Medical History Reference in the Fifth Paragraph is not a reason at all, the allegation of stereotyping has no factual basis and must be rejected.

Indirect discrimination

149.  C says that the University’s application of the 5.4 Regulation to her detriment constitutes indirect discrimination.

150.  Section 6(b) of the DDO provides that a person indirectly discriminates against another person if:

“he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but-

(i) which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and

(iii) which is to that person's detriment because he cannot comply with it …”.

151.  C’s pleaded case is that it is indirect discrimination to apply to her the 5.4 Regulation that it applies equally to persons with and without a disability, but which a considerably smaller portion of people with a disability, including C’s Disabilities can comply with, which is not justifiable, and which operated to her detriment because she could not comply with it.

152.  C further gives particulars of her detriment. Whilst she had amply demonstrated that she had the intellectual ability to complete all requirements of the MA Programme to graduate with a Master of Arts Degree, her inability to complete the graduation requirements within the MSP laid down by the 5.1 Regulation was due to her Disabilities and in concert with the side-effects of the medical treatments receive for the Disabilities. On the other hand, student with her other relevant attributes, but without the Disabilities would have been able to comply the 5.1 and 5.4 Regulations, or alternatively a significantly treated portion of students without a disability (or without the same disability) would have been able to so comply. As a result, C lost the opportunity to graduate with a Master of Arts Degree and this diminishes her employment prospects and earning capacities and stigmatises her as a failed student.

153.  Mr Parker draws my attention to Siu Kai Yuen. There, the employment agreement between the school and the teachers contained a provision which defined non-attendance of a teacher for more than 10% of his or her total number of classes in a month of leave for whatever reason to be a fundamental breach of the contract of service. On contractual principles, to the detriment of those teachers who failed to comply with the attendance requirement, the school could either accept the repudiation and terminate the contract or claim damages for the breach.

154.  It was not disputed that teachers with a disability were less likely to be able to comply with the attendance requirement. The judge went on to consider the issue of justifiability under section 6(b)(ii) of the DDO and considered the following factors set out in The Board of Governors of St Matthias Church England School v Crizzle [1993] IRLR472:-

(1)  whether the objective was legitimate?

(2)  whether the means used to achieve the objective are reasonable?

(3)  whether the conditions are justified when balanced on the principles of proportionality between the discriminatory effect upon the applicant’s racial group and the reasonable needs of those applying the condition?

155.  The judge concluded that the means were unreasonable and the attendance requirement was not justified. The judge held that the provision constituted indirect discrimination against those teachers having a disability.

156.  Mr Parker submits that similarly the application of the 5.4 Regulation to C is indirectly discriminatory. The proportion of students with a disability including the Disabilities who can comply with the 4-year MSP requirement is considerably smaller than the proportion of persons without a disability who can comply with it. Basically he attacks the 4-year MSP applicable to all the part-time students of the MA Programme regardless of their disabilities if any.

157.  Mr Parker submits that the MSP in the 5.4 Regulation, which expressly includes periods of leave of absence, is indirectly discriminatory against C given her 2-year Leave and those students who have been granted medical leave disproportionately.

158.  Mr Parker further submits that the extensions allowable at the discretion of the University under the 5.4 Regulation do not remove the indirectly discriminatory element, relying on Siu Kai Yuen in which the offending provision similarly granted the college a contractual right against the claimant only.

159.  I find this claim to be problematic. The first element of a claim of indirect discrimination is that it has to be proved on balance of probabilities that a considerably smaller portion of students with a disability, including C’s Disabilities can comply with the 4-year MSP applicable to her.

160.  As I understand Mr Parker, he does not argue that there should be no MSP at all. He submits that Prof O’Sullivan wrongly presupposed that C’s stance was that there should be no time limit. Then it is not clear what he actually complains about. The 5.4 Regulation does not refer to a particular MSP and there are different MSPs for different courses under the 5.1 Regulation. If C’s argument is that the 4-year MSP applicable to the part-time students of the MA Programme is too harsh and not realistic for C and those students with a disability to comply with and a MSP of a longer length should be in place, there is simply no such plea in her pleaded case.

161.  It is clear that the 4-year MSP already provides accommodation for those students who are for whatever reasons unable to finish their studies within 4 years. The 2-year extra time that part-time MA Programme students have to complete their studies is literally equal to the amount of the normative period of study.

162.  With such additional time, students with a disability or disabilities having taken leave of absence and even had suspension of studies are not necessarily prevented from completing all the graduation requirements within their applicable MSPs. They may still be able to catch up by the use of the additional time despite the leave they have taken on medical grounds. I cannot be convinced or readily conclude, in the absence of statistical evidence, that the proportion of students with a disability who can comply with the 5.4 Regulation is considerably smaller than the proportion of students without a disability.

163.  I cannot accept Mr Parker’s submission that the 5.4 Regulation is indirectly discriminatory to C as a student having the Disabilities in that the leave taken by C on medical grounds were not excluded in the 4-year MSP. The 5.4 Regulation in fact provides that any period of absence on whatever grounds is included in the MSP.

164.  Mr Parker relies on Siu Kai Yuen and submits that no statistical evidence should be required to prove the first element of indirect discrimination. There, at §56, the judge relied on Briggs v North Eastern Education and Library Board [1990] IRLR 181 for the proposition that the court can take into account their own knowledge and experience and it is undesirable that elaborate statistical evidence should be required before a case can be proved. The judge then used her own knowledge and experience to conclude that the proportion of teachers with a disability who can comply with the term that they should not take leave of whatever reason for more than 10% of his/her total number of classes in the month of leave is considerably smaller than those who are without a disability.

165.  I have no qualms about the proposition. The judge in Siu Kai Yuen dealt with an altogether different question and she was entitled to reach her conclusion without any statistical evidence. In the present case, I am simply not convinced that my own knowledge and experience alone could enable me to determine whether the proportion of part-time MA Programme students with a disability who could complete their studies within 4 years is smaller, let alone considerably smaller.

166.  Mr Parker points out that the University has turned down the request of C for the production of non-trivial statistics on the extension of maximum period of study for disabled and non-disabled students from the period from 2005 to 2015 for all part-time post-graduate programmes. By reason of this refusal to provide such data, Mr Parker submits that adverse inference should be drawn against the University.

167.  I cannot accept this submission. And I do not think that the request was proper and reasonable in the first place. Different part-time postgraduate courses have different normative periods of studies and different MSPs. For example, the normative period of studies and the MSP applicable to a part-time PG Diploma in Public Health course are 1 year and 3 years respectively. Furthermore, different post-graduate programmes should have different demands. A disabled student may manage to cope with a particular post-graduate programme with ease whereas he may not be able to meet the demands of another post-graduate programme.

168.  The University has actually given an answer to C’s interrogatory that no other students, except C, of the MA Programme applied for an extension of maximum study period during the period from September 2011 to September 2015 (inclusive). The answer is not contradicted by contrary evidence. Prof. O’Sullivan testified that there was not a single case of approval of a MSP extension application during his tenure. I have no reason to doubt him and he was not challenged by way of cross-examination. I accept his evidence.

169.  Hence, I conclude that C fails to prove the first element of indirect discrimination that the proportion of students with a disability including the Disabilities who can comply with the 4-year MSP requirement in the 5.4 Regulation is considerably smaller than the proportion of persons without a disability who can comply with it.

170.  If I were wrong in this conclusion, I am still of the view that the 4-year MSP is amply justified. On the issue of justifiability of the 4-year MSP, I accept the following 7 reasons for the MSP in the Supplemental Witness Statement of Prof O’Sullivan (§2(h)):

(1)  Not setting and enforcing a maximum period of studies is impracticable and will compromise the University’s ability to maintain a high academic standard;

(2)  It is the University’s duty to require its students to diligently fulfill their obligations and complete their studies;

(3)  The University needs to balance the needs of the students, including future students whose chances of getting an offer will be affected if the University allows its existing students to stay on indefinitely;

(4)  Not setting and enforcing a maximum period of studies will put a substantial strain on the University’s resources, and compromise the University’s ability to provide and organize programmes, especially taught programmes;

(5)  In setting the maximum period of studies, the University has already taken into account of the needs of different students, including those with special needs;

(6)  The maximum period of studies is reasonable. There is reasonably adequate time for students with special needs or are subject to personal ordeals to complete their studies at the University; and

(7)  The maximum period of studies is comparable to similar requirements or conditions of other respectable tertiary institutions.

171.  Mr Parker does not argue that there should not be MSPs applicable to the MA Programme. The focus of his cross-examination on this score is that the 2-month extension sought by C would not defeat the purpose of the 4-year MSP and that C deserved such an extension given her academic excellence.

172.  I find little substance in Mr Parker’s attack on the validity of the reasons given Prof O’Sullivan. It is absurd to suggest that the MSP for the MA Programme should be 4 years and 2 months so as not to be indirectly discriminatory to students with disabilities. The merit of the Application should not be a relevant consideration of the issue of justifiability of the 4-year MSP.

173.  I am satisfied that the 4-year MSP has a perfectly legitimate objective and the means to achieve the objective are reasonable. The extensions expressly provided in the 5.4 Regulation safeguard the rights of those students who, for whatever reasons, fail to complete the MA Programme within the 4-year MSP. The 4-year MSP is adequately justified and there is no proportionality issue.

174.  In the premises, the indirect discrimination claim cannot be made out and must be rejected.

175.  I have disposed of the two main claims of C. Now I turn to her other claims.

Direct discrimination by failure to register C’s courses

176.  This claim is based on the Registration Delay. C complains about the lateness of the approval of the Enrolment Application in respect of the Two Elective Courses. The incontrovertible background facts evidenced by contemporaneous documents are outlined above from §§22 to 26 hereof.

177.  For this claim, Mr Parker elaborates on the allegation of C in her witness statement that the Programme Director alone could decide on the Enrolment Application and there was no need to seek further approval from the Graduate School, thereby causing unnecessary delay.

178.  Mr Parker goes on to submit that on a proper analysis of the Postgraduate Student Handbook 2011-2012 (“the Handbook”), the Two Elective Courses were open to C and no special permission was required at all.

179.  Both these allegations are unpleaded.

180.  The requirements of the MA Programme are set out in the Study Scheme in the Handbook. Students, both full-time and part-time, are required to take a total of 24 units. Apart from the required course GDRS5011 of 3 units, they have to take certain elective courses amounting to a minimum of 21 units. There are altogether 14 of such elective courses for students to choose and they include neither of the Two Elective Courses. Immediately after these 14 elective courses, it reads,

“For Student admitted in 2010 or before:

Students are not allowed to take more than one course from ANTH 5670, CULS5206, CULS5207, GDRS5061-5069, GDRS5142, GDRS5233, GDRS5403, and GDRS5690 except when special approval has been received from the Programme Director or the Graduate Division Head.” (Emphasis added)

181.  C was admitted in 2011 and the requirement of special approval for taking more than one course from the specified elective courses including the Two Elective Courses did not concern C. Mr Parker submits that C was then free to take more than one elective courses without any special approval.

182.  In my judgment, a proper reading of the Handbook does not allow such an interpretation. I cannot accept Mr Parker’s interpretation, which ignores the fact that the Two Elective Courses are plainly not included in those elective courses to be taken by students admitted after 2010. I can see no reason why the Two Elective Courses were conspicuously missing from the 14 elective courses to be taken by those students including C if Mr Parker’s submission is correct.

183.  It is intolerably clear that the Two Elective Courses were only available to students admitted in or before 2010 and if those students wanted to take more than one of those elective courses, they had to obtain special approval from either the Programme Director or the Graduate Division Head.

184.  I have no hesitation in accepting the evidence of Ms Chan in this regard. She was an honest and forthcoming witness. She was certainly right to say that the Two Elective Courses were not listed in the elective courses and they were not part of the syllabus, except for students admitted before 2010. Her initial position indicated to C that the Enrolment Application could not be entertained cannot be faulted. Ms Chan’s response understandably upset C but I find no disability discrimination against her.

185.  I further accept Ms Chan’s unchallenged evidence that owing to the insistence of C, she consulted Ms Li, who advised her that the Division Head of the Graduate School might consider the Enrolment Application as a special case if the Programme Director supported the same. The emails exchanged between Ms Chan and Ms Li on this topic were self-explanatory. I can see that Ms Chan indeed made a genuine and commendable effort to assist C in the Enrolment Application so as to help her fulfill the coursework requirement before the expiry of the MSP. She actually played an instrumental role in the approval of the Enrolment Application.

186.  I refuse to accept any criticisms about Ms Chan in her handling of this matter. It is regrettable that serious allegations were made against her in the closing submissions. These include the allegation that Ms Chan introduced incorrect and counterintuitive obstacles into the process by requiring approval of both the Division Head and the Graduate School on account of C’s Disabilities. All these allegations are utterly baseless and made in total disregard of the undisputed documentary evidence.

187.  In the 29/1 Memo, Prof. O’Sullivan made another good effort to support the Enrolment Application. There, he acknowledged that the Two Elective Courses were not included in the study scheme of the MA Programme in 2011-12. He explained the special circumstances of C and asked Prof Lutz-Christian Woff who was the Dean of the Graduate School for special approval.

188.  It cannot be said that the approval of Prof O’Sullivan was unduly late. Nor can it be said that he did not genuinely seek the approval of the Graduate School and merely tried to create an additional hurdle for C because of her Disabilities in corroboration with Ms Chan.

189.  Given all the correspondences exchanged between the Division and the Graduate School relating to the Enrolment Application, which was untouched in the cross-examination of the defence witnesses, it is evident that the University made genuine efforts to help C in view of her personal circumstances and acceded to her Enrolment Application eventually. I have no doubt that her Enrolment Application was an exceptional case and the Division and the Graduate School handled it on such a basis as was made clear to C in the 25/3 Email.

190.  The Graduate School might have been able to decide on this special case earlier. During the waiting process, understandably C might feel a lot of stress. Nevertheless, I cannot conclude that there was any undue or inordinate delay. In any event, I can detect no sign of discrimination against C due to her Disabilities in the Enrolment Application. Quite on the contrary, I find the University to be supportive and accommodating in its grant of the Enrolment Application. C was able to complete the Two Elective Courses with good grades within the MSP eventually.

191.  Dr Zhang explained that C’s Enrolment Application took longer time than normal cases. I accept her explanation. No delay was caused by reason of the Disabilities. The alleged direct discrimination cannot be established.

192.  The case of Mr Tom Pang is a non-starter. C fails to give any information of his year of admission, which determines the applicability of the study scheme in the Handbook to him. There is a plea in the Re-Amended Notice of Response of the University that Mr Tom Pang was admitted in 2014-15. C has adduced no evidence to rebut this. C did not ask Mr Tom Pang to testify for her to support her allegation. She did not give any reason why she had not secured his attendance and testimony. There is no evidence that the 5206 Course was not open to Mr Tom Pang at all and hence he had to make a special application to the Division like C did.

193.  It is unfortunate that the University did not adduce any evidence about Mr Tom Pang and his enrolment application to substantiate its pleaded case. Nevertheless, the burden remains on C to show the probative value of the registration of Mr Tom Pang. C has clearly failed to discharge the burden.

194.  Lastly, assuming that I were wrong and in fact C were entitled to take the Two Elective Courses as of right and the Enrolment Application should have been promptly approved as an ordinary case, I accept that the University was genuinely mistaken too, as shown by the contemporaneous correspondence. There was no disability discrimination.

195.  All in all, I see no substance in this direct discrimination claim.

Victimisation

196.  C also relies on the termination of her studies and the Registration Delay to make two separate claims of victimisation under sections 7, 24(2)(a) and (b) and 26(1) of the DDO.

197.  I have concluded that her direct and indirect discrimination claims are unsustainable. More pertinently, I do not think that the termination of her studies and the Registration Delay had anything to do with the Discrimination Complaints including the Complaint Letter. The former was decided on valid grounds and the latter, if any, is justified. C’s claims of victimisation are unfounded and must be dismissed.

Miscellaneous allegations

198.  C has made some allegations against the staff members of the University by way of background. She has also made an unparticularised claim of harassment. I fail to see how they are relevant to her disability discrimination claims and I do not intend to deal with such allegations in detail.

199.  Suffice it for me to say, I find no merits in all such allegations at all. In particular, the pleaded allegations of unauthorised access of C’s medical information are perplexing. C clearly invited Prof. Choi and the Graduate School to contact the Psychiatrist to know more about her medical conditions by her email dated 28 January 2014 and her letter dated 28 August 2014 respectively. I cannot understand how Prof. Choi and Dr Zhong could be said to have approached the Psychiatrist and obtained information about C’s medical conditions without her authorization.

200.  C’s accusation about Prof. Choi’s attitude towards her medical condition is also unacceptable. I find Prof. Choi to have acted very caring and supportive to C actually. In all fairness, Mr Parker did not say anything about this accusation in his closing submissions.

201.  In view of my rejection of C’s discrimination claims, the defence of time bar is academic. I just put on record that Mr Cheung has expressly abandoned this defence, quite rightly in my view.

Conclusion

202.  There is no doubt that the University, in view of C’s Disabilities, has already accommodated her special needs during her 4-year MSP so as to enable her to cope with the work demands of the MA Programme. This is amply borne out by the evidence of the defence, documentary and oral. The grant of the Enrolment Application on an exceptional basis is a prime example.

203.  I do not for one moment doubt C’s conviction in her allegations though they are unacceptable to me. C genuinely felt bad about her experience in dealing with the staff of the Universities. The refusal of the Extension Application must be a blow to her. It was unfortunate but it was not discriminatory.

204.  On the evidence, there is simply no basis for a finding of victimization, harassment, direct and indirect discrimination, however hard Mr Parker has tried in his cross-examination and submissions. C’s claims cannot be made out and accordingly I dismiss all her claims in this action.

205.  Section 73C(3) of the DCO provides that each parties to the proceedings under the DDO should bear its own costs unless the court is satisfied that the proceedings were brought maliciously or frivolously; or there are special circumstances which warrant an award of costs.

206.  Mr Cheung makes no submissions to convince me that there should be an award of costs. I cannot see there are sufficient grounds to make one too. I, therefore, make an order nisi that each party do bear its own costs of this action including any costs reserved.

207.  I thank Mr Parker, Mr Chau and Mr Cheung for their able submissions and assistance in this matter.

208.  Lastly, this court owes an apology to the parties for the time taken in making this judgment available.