NG HON SUM v. LAM MAN LUNG AND ANOTHER

DCEO 7/2023

[2024] HKDC 415

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 7 OF 2023

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BETWEEN

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DECISION

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1.  This is a summons regarding costs in an Equal Opportunities action.

Background

2.  The Claimant alleges, inter alia, sexual harassment by the 1^st Respondent (for which the 2^nd Respondent was vicariously liable) in breach of the Sex Discrimination Ordinance Cap. 480 (“SDO”).

3.  The 1^st and 2^nd Respondent have applied to strike out the Notice of Claim (and the subsequent Amended Notice of Claim) but the Claimant filed and served a Notice of Discontinuance for the claim against the 2^nd Respondent on 12 October 2023.

4.  The 2^nd Respondent subsequently took out the current application on 9 November 2023 seeking, inter alia, costs of the these proceedings to be payable by the Claimant to the 2^nd Respondent, with such to be summarily assessed.

Legal Principles

5.  There is no dispute that the 2^nd Respondent has the right to seek costs against the Claimant after the Notice of Discontinuance has been filed and served (Rule 15 of the District Court Equal Opportunities Rules, Cap. 336G).

6.  Under the circumstances, the court may make any order that it thinks fit subject to, inter alia, section 73B(3) of the District Court Ordinance, which stated:

“Each party to any proceedings in the Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (Cap. 480) shall bear its own costs unless the Court otherwise orders on the ground that—

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.”

Considerations

7.  Mr. Alvin Hor, Senior Government Counsel for the 2^nd Respondent, argued that the claim was indeed brought maliciously or frivolously.

8.  I agree with Mr. Hor that much of the Claimant’s claim concerns with normal arguments or at best harassment at work with no sexual elements.

9.  The only relevant claim which the Claimant raised sexual harassment concerned the incident which took place on 19 June 2021. The Claimant alleged that the 1^st Respondent was “engaged in rude and offensive behaviour” and “repeatedly shouting rude remarks…sexually harassed the Claimant by making indecent and offensive remarks – “Your wife is X by me”…at least five times and “Your mother is X by me to have your bad boy”…” (paragraph 3(a) of the Amended Notice of Claim, Hearing Bundle page 29)

Definition of “sexual harassment”

10.  Under section 2(5) of the SDO, it is provided that:

“For the purposes of this Ordinance, a person (however described) sexually harass a woman if –

(a)The person-

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

(ii) engages in other unwelcome conduct of a sexual nature in relation to her, circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or

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

11.  As to what “sexual” means, in the judgment of X v Melvyn Kai Fan Lai [2019] 1 HKLRD 163, Chief District Judge Justin Ko stated, under paragraphs 64 and 65:

“64. …the event complained of is one of sexual harassment. What distinguishes sexual harassment from other forms of statutory harassments is the “sexual” nature of the complaint – viz the statutory definition is couched in terms of “unwelcome sexual advances”, “unwelcome request for sexual favours” and “unwelcome conduct of a sexual nature”.

65. Section 2(7) of the SDO provides an example of “conduct of a sexual nature”, namely, making s statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing. Again, the “sexual” nature of the statement is emphasised…”

12.  In my view, the wordings allegedly used by the 1^st Respondent were commonly used by persons in certain sector of the Cantonese-speaking society as swear words in normal conversation or during quarrels. Although saying such words may imply certain unethical sexual relationships, such should not necessarily constitute “sexual harassment”. (see 鄭燕芳對兆安苑業主立案法團和其他人 HCA 5975/1999 及 HCA 5970/1999)

13.  Taking the Claimant’s claim to the highest, the background of the claim was a long-standing feud (due to political opinion and therefore not sexual in nature) between the Claimant and the 1^st Respondent with repeatedly heated quarrels. Clearly, this is not the case that the 1^st Respondent has been making any sexual advancement, requesting for sexual favours or engaging in any conduct of a sexual nature towards the Claimant.

14.  The Claimant submits various precedents concerning finding of “sexual harassment”: e.g. “lewd” jokes before a female colleague, telling a female colleague to the effect “I am not asking you to be a prostitute!”

15.  I think there is no question that those examples would constitute sexual harassment due to completely different sets of context and circumstances to the current case.

16.  The Claimant also attempts to distinguish between the two insults and suggested that “X your mother” aligns with “customary practices” but because spouses share a sexual relationship, “X your wife” carries more “sexual implications” and implied that the 1^st Respondent “wanted to share possession of the wife’s body”.

17.  I disagree.

18.  Any reasonable person, having regarding to all the circumstances in this case, would have interpreted such common swear words (or common ways of verbal abuse), as intended insults in a quarrel. To suggest that, in the middle of a “rude” and “offensive” row, the 1^st Respondent would suddenly take a “sexual” interest in the Claimant’s wife (or mother, for that matter) is a fanciful argument not supported by any reasons or logic under the context. In any case, those wordings could not be a “sexual” advance, request or conduct towards the Claimant himself.

19.  Further, I note that the EOC has already investigated this matter and came to the same conclusion. The Claimant himself admit (under paragraph 5.29) of his skeleton submission:

“In December 2012, the EOC replied to me stating that “although the literal meaning of the alleged remarks in relation to your wife and mother may refer to the act of sexual intercourse, in view of the relevant circumstances and context of the incident, it appears that the Respondent made the remarks to demean and disparage you during the quarrel...rather than seeking sexual advantages from you, your wife, and mother…given the insufficient evidence to suggest that the alleged remarks were conduct of a sexual nature, the alleged act in question may not amount to unlawful sexual harassment under the SDO.””

20.  Despite this decision, the Claimant still chose to bring the current action. This is clearly frivolous.

Vicarious liability of the 2^nd Respondent

21.  Given that I find the claim against the 1^st Respondent frivolous on merit alone, the issue of vicarious liability of the 2^nd Respondent does not even arise. However, for the sake of completeness, I will consider this issue.

22.  Section 46(3) of the SDO states:

“In proceedings brought under this Ordinance against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.”

23.  The 2^nd Respondent has provided evidence that anti-sexual harassment policies and measures has been implemented via the Police General Orders and Force Procedures Manual and that all police officers have all along been required to read, understand and adhere to them. There is no suggestion that the Claimant or the 1^st Respondent have not been all along aware of such before the alleged incident on 19 June 2021.

24.  Further, it is the 2^nd Respondent’s unchallenged evidence after the alleged incident, upon receipt of the complaint from the Claimant, an investigation was conducted and all relevant police officers were interviewed within 2 months with a finding made within 4 months.

25.  In fact, on request by the Claimant, in view that he had made a complaint regarding the allegation of sexual harassment to EOC, the enquiry into this allegation was suspended and to be followed up by the EOC (paragraph 81 of the Covering Report, Hearing Bundle page 303). Nevertheless, there had been various measures put in place to attempt to resolve the dispute (e.g. attempt for mediation).

26.  In any case, irrespective of whether the incident on 19 June 2021 amounted to sexual harassment or not, there were no further disputes between the Claimant and the 1^st Respondent after that date (see paragraph 82 of the Covering Report, Hearing Bundle page 303).

27.  It was the Claimant who asked the 2^nd Respondent to suspend enquiry into his allegation of sexual harassment. As such, it would be totally unreasonable for the Claimant to suggest now that the 2^nd Respondent did not take all reasonably practicable steps regarding his allegation.

28.  Under the circumstances, it should be clear to the Claimant that the 2^nd Respondent has a good defence under section 46(3) of the SDO so I find that the claim against the 2^nd Respondent is misconceived all along.

29.  Mr. Hor submitted that the Claimant chose to claim under SDO to take advantage of the “usual” costs provision: it should be clear that the vast majority of his grief concerned with the tort of harassment, which should have been commenced by writ action. I find that there is at least some suspicion of this intention.

Conclusion

30.  In view of the above considerations, I find that the claim against the 2^nd Respondent was brought frivolously and I would therefore award the cost of the action (including this application) to the 2^nd Respondent summarily assessed at HK$56,000.