WONG LAI WAN AVRIL v. THE PRUDENTIAL ASSURANCE CO LTD AND ANOTHER

DCEO 3/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 3 OF 2008

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BETWEEN

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DECISION

1.  The 1^st and 2^nd Defendants applied for an Order that the Plaintiff’s Statement of Claim in this action be struck out on the ground that it discloses no reasonable cause of action and the action against the 1^st and 2^nd Defendants be dismissed. Further or in the alternative, the Defendants seek Orders for:-

(1) the following questions be determined:-

(a) whether, as a matter of law, the status of “being the wife of Mr. Andy Leung” is a “family status” within the meaning of that term as defined in section 2 of the Family Status Discrimination Ordinance (Cap. 527); and

(b) whether, as a matter of law, the less favourable treatment of the Plaintiff on the ground of her status of “being the wife of Mr. Andy Leung” alleged in paragraph 11(b) of the Statement of Claim is unlawful discrimination against the Plaintiff contrary to sections 7 and 20 of the Sex Discrimination Ordinance (Cap. 480) when it is not alleged (as confirmed in the Plaintiff’s Answer to Request for Further and Better Particulars of the Statement of Claim) that the 2^nd Defendant would not have recommended the 1^st Defendant to terminate, and the 1^st Defendant would not have terminated, the agency relationship of a female (other than the Plaintiff) with the marital status of being either;

(i) single; or

(ii) married but living separately and apart from that person’s spouse; or

(iii) divorced; or

(iv) widowed,

who was the de facto spouse of Mr. Andy Leung (rather than the de jure spouse of Mr. Andy Leung as in the alleged case of the Plaintiff); and

(2) if the questions in paragraphs 2(1)(a) and 2(1)(b) both be answered in the negative, then this action against the 1^st and 2^nd Defendants be dismissed;

(3) if the question in paragraph 2(1)(a) be answered in the negative and the question in paragraph 2(1)(b) be answered in the positive, paragraph 11(a) of the Statement of Claim be struck out; and

(4) if the question in paragraph 2(1)(b) be answered in the negative and the question in paragraph 2(1)(a) be answered in the positive, paragraph 11(b) of the Statement of Claim be struck out.

2.  The Defendant’s application is made under Order 18 r. 19(a) and Order 14A of the Rules of District Court. Order 18 r. 19(a) provides:-

“Striking out pleadings and indorsements (O. 18, r. 19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:-

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

3.  Order 14A provides:-

“1. Determination of questions of law or construction (O. 14A, r. 1)

(1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

(a) such question is suitable for determination without a full trial of the action; and

(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.

(2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.”

Background

The Statement of Claim set out the background to the Plaintiff’s case which is summarised as follows:-

4.  The Plaintiff, Madam Wong Lai Wan Avril, joined the 1^st Defendant as a business manager on 1 May 2001. She became a unit manager of the 1^st Defendant (“Prudential”) on 1 January 2005 under the direct supervision of her husband, Mr. Andy Leung, who had joined Prudential at the same time as Madam Wong as a branch manager. He was demoted to the post of senior unit manager on 1 April 2006.

5.  The 2^nd Defendant, Mr. Shum Wang Shiu Louis (“Mr. Louis Shum”), was the agency director of Prudential. Mr. Andy Leung was working under the direct supervision of Mr. Louis Shum together with four other branch managers. Madam Wong and one Mr. Simon Ng were the unit managers working under the direct supervision of Mr. Andy Leung. Shortly before 6 April 2006, Prudential decided to terminate its agency relationship with Mr. Leung.

6.  On 6 April 2006, Mr. Louis Shum informed Madam Wong that her agency relationship with Prudential would be terminated. He further informed her that while she was innocent and had committed no fault, her agency relationship with Prudential had to be terminated because she was the wife of Mr. Andy Leung.

7.  By letter dated 6 April 2006, Prudential notified Madam Wong in writing that her agency relationship with the 1^st Defendant would be terminated with effect from 6 May 2006.

8.  Prudential’s chief agency officer, Mr. Michael Leung, later informed a colleague of Madam Wong that Prudential had terminated the agency relationship with Madam Wong solely because she was the wife of Mr. Andy Leung.

9.  It is Madam Wong’s pleaded case that Prudential’s termination of Madam Wong’s agency agreement and supplementary agreement was made on the recommendation of Mr. Louis Shum.

The Plaintiff’s Claim

10.  It is Madam Wong’s pleaded case that the 1^st and 2^nd Defendant had unlawfully discriminated against her contrary to:-

(a) sections 5 & 16 of the Family Status Discrimination Ordinance (Cap. 527) (“FSDO”) for the reason that Madam Wong was not allowed to continue to be an agent of 1^st and 2^nd Defendants on the ground of her particular family status, namely, being the wife of Mr. Leung;

(b) sections 7 and 20 of the Sex Discrimination Ordinance (Cap. 480) (“SDO”) for the reason that the Plaintiff was not allowed to continue to be an agent of the 1^st and 2^nd Defendants on the ground of her marital status, namely, being the wife of Mr. Leung.

The Defence Argument

11.  The Defendants have not yet filed a defence in these proceedings. Their application to strike out Madam Wong’s claim against them is on the ground that the Statement of Claim discloses no reasonable cause of action. At common law, discrimination or less favourable treatment of one person compared with another of whatever type and on whatever ground is not unlawful. Discrimination becomes unlawful if it is a type and on the ground rendered unlawful by statute under one of the Hong Kong anti-discrimination ordinances (“the legislation”).

12.  The Defendants argued that the termination of Madam Wong’s agency relationship with Prudential on the alleged ground of “being the wife of Mr. Andy Leung” is not unlawful discrimination because the status or condition of being married to a particular person is not a ground of discrimination that is rendered unlawful under the FSDO or the SDO.

13.  The Defendants argued that Madam Wong had no reasonable cause of action; further or alternatively, as a matter of law it ought to be determined that the discrimination that Madam Wong alleged is not unlawful.

The Applicable Anti-Discrimination Legislation

14.  Section 5 of the Family Status Discrimination Ordinance (“FSDO”) provides:-

“5. Discrimination against a person who has family status

A person discriminates against a person who has family status in any circumstances relevant for the purposes of any provision of this Ordinance if –

(a) on the ground of the second-mentioned person’s family status or that person particular family status (“the relevant family status”) he treats that person less favourably than he treats or would treat another person who does not have family status or the relevant family status, as the case may be.”

15.  Section 16(2)(b) of the FSDO provides:-

“16. Discrimination against commission agents

(1) This section applies to any work for a person (“the principal”) which is available for doing by individuals (“commission agents”) as the agents of the principal and who are remunerated, whether in whole or in part, by commission.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a person who has family status who is a commission agent-

(b) by not allowing that person to do or continue to do that work. ……”

16.  The definition of ‘discrimination’ under section 2 of the FSDO is:-

“discrimination: （歧視）, in relation to a person-

(a) who has family status, means discrimination falling within section 5; and

(b) who is victimised, means discrimination falling within section 6, and related expressions shall be construed according.”

17.  The definition for ‘family status’ is:-

“family status （家庭崗位）, in relation to a person, means the status of having responsibility for the care of an immediate family member.”

18.  The definition for ‘immediate family member’ is:-

“immediate family member （直系家庭成員）, in relation to a person, means a person who is related to the person by blood, marriage, adoption or affinity.”

19.  Under section 2 of the Sex Discrimination Ordinance (“SDO”) ‘marital status’ is defined:-

“marital status （婚姻狀況）means the state or condition of being-

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced; or

(e) windowed.”

20.  Section 7 of the SDO provides:-

“7. Discrimination against married, etc. persons in employment field

(1) A person discriminates against a person of either sex in any circumstances relevant for the purposes of any provision of Part III or IV if-

(a) on the ground of his or her marital status (“the relevant marital status”) he treats that person less favourably than he treats or would treat a person of the same sex with a different marital status or ……”

21.  Section 10 of the SDO provides:-

“10. Comparison of cases under sections 5(1), 7(1) and 8

A comparison of the cases of persons-

(a) …….

(b) of different marital status under section 7(1);

(c) ……

shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other. ”

22.  Section 20 of the SDO provides:-

“20. Discrimination against commission agents

(1) This section applies to any work for a person (“the principal”) which is available for doing by individuals (“commission agents”) as the agents of the principal and who are remunerated, whether in whole or in part, by commission.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a woman who is a commission agent-

(a) ……

(b) by not allowing her to do it or continue to do it.

(c) ……

(d) ……”

The Defence Submission on the FSDO Ground

23.  The test for discrimination under the legislationis the “but for” test as expressed by Lord Goff at p. 1194 A to C of the R v Birmingham City Counsel Ex parte Equal Opportunities Commission [1989] 1 AC 1155 which was followed in the Hong Kongcase of Secretary for Justice & Others v. Chan Wah & Others [2000] 3 HKLRD 641 (per Li CJ at p. 656 H to J):

"There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex”

24.  Mr. McLeish, Counsel for the Defendants, submitted that by adopting this test, if Madam Wong’s agency relationship with Prudential would not have been terminated but for her ‘family status’, this would have constituted unlawful discrimination against Madam Wong under the FSDO. Madam Wong did not, however, allege in her Statement of Claim that her agency relationship with Prudential was terminated because she had responsibility for the care of an immediate family member because she was married to Mr. Andy Leung as defined under section 2 of the FSDO “the status of having responsibility for the care of an immediate family member”. Consequently, Prudential could not have discriminated Madam Wong because of her family status. In Mr. McLeish’s submission, the status or condition of being married to a particular person is not the same as the status of having responsibility for the care of an immediate family member on the plain and ordinary meaning of those words. Therefore, by itself, it cannot find an action for unlawful discrimination under the FSDO.

The Defence Submission on the SDO Ground

25.  The Defence accepted that by virtue of sections 7 and 20(2)(b) of the SDO, the termination of Madam Wong’s agency relationship for Prudential would have constituted unlawful discrimination if it had been done on the ground of Madam Wong’s ‘marital status’. In other words, Madam Wong’s agency relationship with Prudential would not have been terminated but for her ‘marital status’, this would have constituted unlawful discrimination against Madam Wong under the SDO. Mr. McLeish argued that the definition of ‘marital status’ under section 2 of the SDO includes the status or condition of being ‘married’. However, Madam Wong did not allege her agency relationship with Prudential was terminated simply because she was ‘married’, but claimed that her agency relationship with Prudential was terminated because she had ‘the status or condition of being married to Mr. Andy Leung’. Madam Wong’s own case therefore is: had she been married to anyone other than Mr. Andy Leung, her agency relationship with Prudential would not have been terminated. The defence argued, this demonstrated that Madam Wong does not rely on the status or condition of being ‘married’ in alleging unlawful discrimination under the SDO.

26.  Madam Wong had accepted, in her answer to the Defence’s Request for Better and Further Particulars, that she did not allege she was treated less favourably than a person with a different ‘marital status’ would have been treated whose relevant circumstances were the same as or not materially different from hers (which is a requirement under section 10 of the SDO). The Defence argued, therefore, it is Madam Wong’s case that she was not treated less favourably for the purposes of section 7(1)(A) of the SDO. In consequence, no unlawful discrimination under the SDO could be made out by Madam Wong.

27.  According to Mr. McLeish, the fundamental obstacle to Madam Wong’s claim under the SDO is the status or condition of being ‘married to a particular person’ falls outside the definition of ‘marital status’ in section 2 of the SDO. Hence, discrimination on this basis is not unlawful. The Defence found support for the argument in similar statutory provisions in the Anti-Discrimination Act of New South Wales in Australia where it is unlawful to discriminate against a person on the ground of his ‘marital status’. The term is defined in the NSW legislation as meaning the status or condition of, inter alia, ‘being married’. The definition is similar in the SDO, the only difference is, the NSW definition also included the status or condition of ‘in co-habitation otherwise than in marriage’.

28.  In the NSW case of Boehringer Ingelheim Pty Ltd. v. Reddrop [1984] 2 NSWLR 13 where the appellant employer declined to employ a married female on the ground of the possibility she might disclose its confidential information to her husband who was employed by a competitor. The NSW Court of Appeal unanimously decided that unlawful discrimination on the ground of ‘marital status’ did not extend to proscribe the discrimination based upon the identity or situation of a person’s spouse. In both Boehringer Ingelheim Pty Ltd v. Reddrop and Waterhouse v. Bell [1991] 25 NSWLR 99, the NSW Court of Appeal considered s. 39(1) of the NSW Anti-Discrimination Act 1977. S. 39(1):-

“that a person discriminates against a person on the ground of his marital status if, on the ground of:

(a) his marital status;

(b) a characteristic that appertains generally to persons of his marital status; or

(c) a characteristic that is generally imputed to persons of his marital status,

he treats him less favourably than in the same circumstances or in circumstances which are not materially different, he treats or would treat a person of a different marital status.”

29.  The Court of Appeal in NSW held:-

“(1) Section 39(1)(a) does not extend to proscribe discrimination based upon the identity or situation of a person’s spouse.

(2) The terms of s 39(1) are directed to three specific situations:

(a) Discrimination against a married person simply because he is married and for no other reason;

(b) Discrimination against a married person because of some particular characteristic which the individual has and which all or nearly all married persons have; and

(c) Discrimination against a married person on the ground of some particular characteristic which married persons are generally believed to have whether or not they in fact have it.

(3) Accordingly, an employer’s decision not to employ a married female on the ground of the possibility that she might disclose, whether by inadvertence or otherwise, confidential information of the employer to her competitor-employed husband did not amount to discrimination within s 39(1).”

30.  In Waterhouse v. Bell, the NSW Court of Appeal affirmed the Boehringer Ingelheim position and held:-

“(1) The factual inquiry under the Anti-Discrimination Act 1977, s 39, involves two separate questions: the first is, has A been treated less favourably than a person of different marital status was, or would have been treated in the same circumstances, or in circumstances which are not materially different? The second is, if so, was the ground of differential treatment one of those mentioned in s 39(1)(a), (b) or (c)?”

31.  The NSW Court of Appeal in Waterhouse v. Bell found that no case of unlawful discrimination had been made out on the ground of ‘marital status’ on the basis of the less favourable treatment of the appellant arising from particular characteristics of her husband. However, it did find a case of unlawful discrimination had been made out of a different ground of unlawful discrimination provided for in s. 39(1)(c) of the NSW Anti-Discrimination Act, the discrimination on ground of:

“… a characteristic that is generally imputed to persons of his marital status”.

32.  Mr. McLeish argued that since no such ground of unlawful discrimination is provided for in the SDO, even if Madam Wong alleged her agency relationship with Prudential was terminated by reason of a characteristic that is generally imputed to persons of her marital status, such an allegation would not found an action for unlawful discrimination under the SDO.

33.  The Defence further relied on the analysis of the definition of ‘marital status’ by Shepherdson J. of the Queensland Anti-Discrimination Act in the Australian case of Re Mount ISA Mines Limited [1997] 1 QD R 249 where he held at p. 258 line 29-34:-

“In the present case the definition of “martial status” in the Act focuses on the fact that a particular employee is married or is a de facto spouse. The definition does not extend beyond the limit of a person being married or a person being a de facto spouse. The definition does not permit consideration of whether the person to whom the employee is married or who is the de facto spouse of that employee is a person employed by ISA.”

34.  The Defence argued therefore in relation to the status of ‘being married’, the definition of ‘marital status’ in the SDO focuses on the fact of the claimant’s marriage and does not permit consideration to be given to the identity or situation of the spouse of the claimant for the purpose of determining whether there has been unlawful discrimination.

The Plaintiff’s Argument in Opposition

35.  Mr. Johannes Chan S.C., Counsel for the Plaintiff, agreed that the appropriate comparator is a female employee with similar qualification, experience and performance who is not married to Mr. Leung. Such an employee would not have been dismissed and the only reason for the differential treatment of the Plaintiff is her status as the wife of Mr. Leung.

36.  The Plaintiff relied on the Canadian case of B v. Ontario (Human Rights Commission) [2002] 3 SCR 403. The respondent in that case was dismissed from his employment with the appellant D Ltd., a firm owned by two brothers, Mr. B and Mr. C. Mr. B terminated the respondent’s employment after being confronted by the respondent’s daughter and his wife with accusations that Mr. B had sexually molested the daughter when she was a young child. It was held by the Supreme Court of Canada that a broad meaning of ‘marital status’ and ‘family status’ should be adopted to encompass circumstances where the discrimination results from the particular identity of the complainant’s child or spouse and that it is sufficient that the individual experience differential treatment on the basis of an irrelevant personal characteristic that is enumerated in the grounds provided in the Ontario Human Rights Code (paragraph 56-57 of the judgment at p. 429).

37.  Mr. Chan submitted that one of the reasons relied on by the Supreme Court of Canada in B v. Ontario is Ontario Human Rights Code “is aimed at protecting individuals as opposed to groups against discrimination” (paragraph 40 at p. 419). Mr. Chan referred to section 4 of the Hong Kong Bill of Rights Ordinance that provided that all laws enacted subsequent to the enactment of the Bill of Rights Ordinance (8 June 1991) shall be construed consistently with the International Covenant on Civil & Political Rights (“ICCPR”) as applied to Hong Kong. The position is reinforced by Art 39 of the Basic Law that provided: no law shall contravene the ICCPR as applied to Hong Kong. It was Mr. Chan’s submission that the SDO and the FSDO, both being domestic legislation aiming at providing a comprehensive protection on the right to equality and non-discrimination, should be construed consistently with the ICCPR as applied to Hong Kong and a broad and purposive approach to interpretation should be adopted.

38.  In the case of B v. Ontario (Human Rights Commission),the Canadian Supreme Court referred to statutory provisions under the Canadian Human Rights Code 1990 section 5 which provided:-

“5. (1) Every person has a right to equal treatment with respect toemployment without discrimination because of race, ancestry, place oforigin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age,record of offences, marital status, family status or handicap.”

39.  Section 10 of the Canadian Human Rights Code further provided the following definitions:-

“family status means the status of being in a parent and child relationship;

marital status means the status of being married, single, widowed,divorced or separated and includes the status of living with a person ofthe opposite sex in a conjugal relationship outside marriage.”

40.  Mr. Chan further argued that the Defendants’ application rested entirely on a reply of the Plaintiff to a question put by the Defendants in their Request for Further and Better Particulars. The Plaintiff’s answer to the question was, the agency relationship of an unmarried person who was the ‘de facto’ spouse of Mr. Leung would also be terminated; the Defence therefore argued the basis of differential treatment was not the ‘marital status’ of the Plaintiff. Mr. Chan’s position was, whether the Defendants did or did not rely on the martial status of the Plaintiff in terminating her agency relationship is a question of fact which would require a full hearing to determine. The Court would not be able to do so without hearing the evidence at trial relying on the dictum of Lam J. in the Court of Appeal judgment of M v. Secretary for Justice [2009] 2 HKLRD 298 para. 101 at p. 342:-

“101. Subsequent cases in relation to challenges in respect of specific decision against an individual show that in those instances one must have regard to the mental process of the alleged discriminator ……”

41.  Mr. Chan further argued that the hypothetical comparator proposed by the Defendants is not appropriate. It is not the Plaintiff’s case that all married persons would be dismissed, she was dismissed because of her marital status with Mr. Leung. The Defendants had claimed in argument that a ‘de facto’ spouse of Mr. Leung would receive the same treatment. While the Hong Kong legislation did not provide for a ‘de facto’ spouse, or defined it, the status of ‘wife’ is clear under the legislation. In any event, section 4 of the SDO provided:-

“If-

(a) an act is done for two or more reasons; and

(b) one of the reasons is the sex, marital status or pregnancy of a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Ordinance, the act shall be taken to be done for the reason specified in paragraph (b).”

42.  Mr. Chan submitted that as long as the fact that the Plaintiff was ‘the wife of Mr. Leung’ was one of the reasons why her agency relationship must be terminated, whether the ‘de facto’ spouse of Mr. Leung would be treated in the same way or not is irrelevant.

43.  Mr. Chan criticised the Australian cases of Boehringer Ingelheim Pty Ltd v. Reddrop, Waterhouse v. Bell and Re Mount Isa Mines Limited referring to an article in the Adelaide Law Review by Gerard C. Rowe, ‘Misunderstanding Anti-Discrimination Law: The New South Wales Court of Appeal in Reddrop’ (1986) 10 Ade L Rev 318. The author of the article contended that the relevant provision in the Anti-Discrimination Act of 1977 did not exclude behaviour based on mixed criteria from the coverage of the Act. That the “but for” test should be applied and that the presence of mixed factors should not avoid unlawful discrimination. However, the Equal Opportunity Tribunal in Boehringer had failed to extend the meaning of ‘marital status’ in allowing the complainant’s claim, but rather apply the “mixed factors” approach in considering whether or not there was a discriminatory basis to the challenged behaviour.

44.  Mr. Chan submitted that in Hong Kong, the “mixed factors” approach was expressly adopted by section 4 of the SDO. In the Waterhouse case, the NSW Court of Appeal though accepting the Boehringer case was correctly decided, in the end, distinguished the Boehringer case. In the NSW case of Liseo v. Canterbury City Council [1999] NSW ADT 118, the Equal Opportunity Tribunal in NSW accepted that ‘marital status’ discrimination applied not merely to ‘marital status’ as a concept but also to ‘the marital status of a particular person’. The case was referred to in Halsbury’s Law of Australia, Vol 4, para. 80-305 at p. 148-203 “It was accepted that martial status discrimination applied not merely to martial status as a concept but also to the marital status of a particular person, where the complainant was deprived of the ability to work overtime because his employer had a dislike of his wife”. Mr. Chan submitted that the Canadian case of B v. Ontario (Human Rights Commission) is a more recent decision and it had adopted an enlightened approach to this issue in line with the intention of the legislature.

45.  Mr. Chan argued that the Australian legislation definition of ‘martial status’ is broader than that in the SDO in that it included the status or condition of a ‘de facto’ spouse of any person. In Hong Kong that part of the definition was omitted. This showed the legislature in Hong Kong intended ‘de facto’ spouses not to be entitled to the same protection as those who are married. Therefore a ‘de facto’ spouse cannot be a suitable comparator.

46.  He further argued that once the complainant showed less favourable treatment in circumstances consistent with a proscribed criterion, the burden is shifted to the Defendants or at least the Defendants are required to provide an explanation. He relied on the English case of Khanna v. Ministry of Defence [1981] ICR 653 where Browne-Wilkinson J. (as he then was), held at 658 to 659:-

“If the primary facts indicate that there has been discrimination for some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will mean the complaint succeeds … These propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.”

The Plaintiff’s Claim under FSDO

47.  In answer to the Defendant’s argument that the status of ‘being the wife of Mr. Andy Leung’ is not a ‘family status’ within a meaning of that term as defined in section 2 of the FSDO, the Plaintiff argued that ‘family status’ means ‘status of having responsibility for the care of an immediate family member’. In ordinary usage, a wife has the responsibility to take care of her husband. It is particularly so when the husband was dismissed, which was what happened in this case.

48.  Mr. Chan further submitted that the specific reference to a person’s particular family status clearly showed it would be caught under section 5 if Madam Wong was less favourably treated by reason of her being the wife of Mr. Leung, relying on the interpretation of Supreme Court of Canadian in the case of B v. Ontario (Human Rights Commission).

49.  Mr. Chan further argued that since the Defendants do not agree the Plaintiff’s agency agreement was terminated because she was ‘the wife of Mr. Leung’ nor do the Defendants admit what the Plaintiff pleaded in paragraphs 8 and 9 of the Statement of Claim, there is basis for the Plaintiff’s claim that there are matters of evidence for the Plaintiff to adduce at the trial of the action.

Analysis

50.  Equality before the law is a fundamental right, the essence of which is a right not to be discriminated against. In the Hong Kong case of Equal Opportunities Commission v. Director of Education [2001] 2 HKLRD 690 Mr. Justice Hartmann said at para. 79 p. 720:

“(i) Freedom from discrimination, a fundamental right of each individual

In my judgment, if there is a central pillar around which the edifice of Hong Kong’ s legal system is built, it is respect for the rights and freedoms of the individual. That is manifest in our instruments of constitution, in our adherence to various international conventions and in our domestic law. As Lord Cooke said in a recent House of Lords decision (R v Secretary of State for the Home Department, ex p. Daly [2001] UKHL 26):

…… the truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.”

51.  Mr. Justice Hartmann held para. 83:-

“Article 25 of the Basic Law holds that “all Hong Kong residents shall be equal before the law”. “All Hong Kong residents”, in my view, equates to each and every resident; in short, to each individual. Article 25 of the Basic Law appears in Chapter III. In respect of the rights guaranteed in that chapter, Li CJ has said, in his judgment in NG Ka Ling & Others v Director of Immigration (1992) 2 HKCFAR 4 (at pp. 28-29):

…… What is set out in Chapter III …… are the constitutional guarantees for the freedoms that lie at the heart of Hong Kong’s separate system. The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.

In the same judgment, Li CJ spoke of the Basic Law – as evidenced by art. 25 – enshrining “the principle of equality, the antithesis of any discrimination”.

Article 25 of the Basic Law is reflected in art. 22 of the Bill of Rights, the Bill effectively bringing the provisions of the ICCPR into our domestic law:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

These guarantees of equality – the antithesis of discrimination – call for a generous and purposive interpretation by our courts. This is to ensure that each person, adult or child, will enjoy the full measure of those guarantees. As Lord Wilberforce said in Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC), constitutional guarantees of human rights call for:

…… a generous interpretation avoiding what has been called “the austerity of tabulated legalism,” suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

It is not disputed that the right to equal treatment free of sex discrimination is in our society a fundamental right; as Lord Lester expressed it, a right of high constitutional importance. As an individual right, it must follow, in my view, that it is a right which cannot be undermined or negatived by broad assumptions or generalisations. What may be true of a group may not be true of a significant number of individuals within that group.”

52.  In the application to strike out Madam Wong’s Statement of Claim, the Defence concentrated on the definition of ‘martial status’ in the SDO and the definition of ‘family status’ in the FSDO. Great reliance was placed on the Australian Court’s interpretation of Boehringer Ingelheim and Waterhouse v. Bell where the NSW Court of Appeal found under the NSW Act section 39(1)(a) does not extend to proscribe discrimination based upon the identity of or situation of a person’s spouse. The NSW Court found there was discrimination under s. 39(1)(c) the ground of “a characteristic that is generally imputed to persons of his marital status”.

53.  In the Hong Kong SDO, the equivalent of section 39(1)(b) and (c) of the NSW Act does not exist. The Defence argued the legislature must have deliberately left out those conditions in the Hong Kong legislation; therefore the definition of ‘martial status’ in the SDO should be focused on the fact of the claimant’s marriage and no consideration should be given to the identity or situation of the spouse of the claimant for the purpose of determining whether there has been unlawful discrimination.

54.  On the other hand, the Plaintiff placed reliance on the decision of the Supreme Court of Canada in the case of B v Ontario (Human Rights Commission). The Supreme Court of Canada had adopted a broad meaning of ‘marital status’ and ‘family status’ to encompass circumstances where discrimination results from the particular identity of the complainant’s spouse.

55.  At p. 418 of B v Ontario (Human Rights Commission), the Supreme Court of Canada held:-

“The word “status” is equally capable of encompassing both the absolute definition and the relative definition. Moreover, the terms “marital status” and “family status” are in themselves relative. That is, they require the existence or absence of a relationship with another person. To restrict its meaning to the absolute would ignore the very condition that brings the status into being in the first place.

Turning to the substantive provision in question, the discrimination claim in this case is based on s. 5(1) of the Code which read as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual, family status or handicap.

By using the words “every person” the statute is clearly aimed at protecting individuals as opposed to groups against discrimination. Although it is equally clear that, in order to come under the protection of s. 5(1), the discrimination must be based on one of the listed grounds, this does not mean that the discriminatory action must be directed against an identifiable group subsumed within the enumerated ground. Nor does it mean that the action complained of must result from the stereotypical application of an attributed group characteristic. Such requirements are simply not found in the wording of s. 5(1). Thus, on its face, the provision appears to encompass complaints based on the particular identity of a family member based on either the “marital status” or family status” grounds.”

56.  The Court further held in p. 420 that:-

“The appellants argued that provincial statutes dealing with the same subject matter should be read harmoniously, and cited the definition of “martial status” from the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(i.01), where the term “marital status” is defined as follows:

(i.01) “martial status” means that state of being engaged to be married, married, single, separated, divorced, widowed or living in a common-law relationship, but discrimination on the basis of a relationship with a particular person is not discrimination on the basis of marital status;

Although we agree that statutory language from other jurisdictions may aid in the interpretation process, this does not mean that words used by one legislature in defining a term should be imported into the definition of that term in another jurisdiction where the legislature has not included such words. On the contrary, the express exclusion of particular identity in the Saskatchewan Code and the absence of that exclusion in the Ontario Code lends itself more easily to the conclusion that the broader meaning of status was, in fact, intended in Ontario. At the very least, the definition in the Saskatchewan Code indicates that the term “marital status” is capable of including the particular identity of a spouse when not expressly excluded.”

57.  It held further at p. 421:-

“More generally, this Court has repeatedly reiterated the view that human rights legislation has a unique quasi-constitutional nature and ought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it.”

58.  The approach of the Canadian Supreme Court in the interpretation of the Canadian Human Rights Code of ‘marital status’ and ‘family status’ resembles the Hong Kong Court of Final Appeal’s approach in the case of Ng Ka Ling & Others v. Director of Immigration where Li CJ held:

“The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed (p. 28 – 29).”

59.  In the same judgment, the Chief Justice referred to the Basic Law as evidenced by Article 25 - enshrining “the principle of equality, the antithesis of any discrimination”. Article 25 of the Basic Law is reflected in Article 22 of the Bill of Rights which adopted the provisions in the ICCPR that provided:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

60.  Mr. McLeish in his argument referred to a private member bill introduced in 1994 by the Hon. Anna Wu who was at the time a legislative counsellor, namely the “Equal Opportunities Bill 1994”. In the next year, she introduced the “Equal Opportunities (Family Responsibility, Sexuality and Age) Bill 1995”. The definitions of ‘family status’, ‘marital status’ and ‘de facto spouse ‘ were defined in terms similar to the NSW Act in the 1994 Bill; while in the 1995 Bill, the definition of ‘near relative’ and ‘relative’ were introduced.

61.  It is common knowledge that the two private member bills introduced by the Hon. Anna Wu were based on the Australian Anti-Discrimination legislation. It is misleading to say that because the Hong Kong legislation failed to adopt the equivalent to Ss. 39(1)(b) and (c) of the NSW Act, the Hong Kong legislature had intended those members that come into the groups under s. 39(1)(b) and (c) should be excluded and not receive the protection of the Hong Kong legislation. It is also common knowledge that the Hong Kong legislation drafted by the Hong Kong Department of Justice was based on the United Kingdom’s Sex Discrimination Act 1975. The U.K. legislation does not have any specific or detailed definition of ‘marital status’ or ‘family status’. Much like the Ontario Human Rights Code ‘marital status’ or ‘family status’ are not specifically further defined. Contrary to the Defence’s submission, the exclusion of the 3 groups under s. 39 (1) (a), (b), & (c) of the NSW Act, tends to support the argument that individuals are not required to fall into one of the 3 groups to succeed in proving discrimination. As held by the Canadian Supreme Court:-

“the express exclusion of particular identity in the Saskatchewan Code and the absence of that exclusion in the Ontario Code lends itself more easily to the conclusion that the broader meaning of status was, in fact, intended in Ontario.”

62.  I agree with Mr. Chan’s submission that the Australian Court adopted a different interpretation of ‘martial status’ in the case of Leseo, when it accepted that ‘martial status’ discrimination applied not merely to ‘martial status’ as a concept but also to the ‘marital status’ of a particular person.

63.  Under the circumstances, I am inclined to consider the Plaintiff’s claim based on a wider and broader interpretation of ‘family status’ and ‘marital status’ following the CFA’s approach in adopting a generous and liberal interpretation of the legislation according to Article 25 of the Basic Laws and Article 22 of the Bill of Rights. The same approach of the Canadian Supreme Court in B v. Ontario.

64.  As to the comparator of the status of the ‘de facto’ spouse and the ‘de jure’ spouse of Mr. Andy Leung, the Hong Kong legislation did not adopt the definition of ‘marital status’ to include the ‘de facto spouse’ of any person in Hong Kong which was provided in Australia and the UK, this clearly meant the Hong Kong legislature did not intend ‘de facto’ spouses to be protected in the same way that ‘married’ spouses are under the legislation. The exclusion is based on local customs and traditional values where a ‘common law wife’ does not receive any protection under the Hong Kong matrimonial legislation. For this reason, I accept a ‘de facto’ spouse is not a suitable comparator.

65.  Under the Hong Kong legislation, once the complainant had shown ‘less favourable treatment’ in circumstances consistent with a proscribed criterion, the burden is shifted to the employer who is obliged to provide an explanation. In most cases in Hong Kong, a complaint would be filed with the Equal Opportunities Commission (the “EOC”) in Hong Kong and the EOC after considering the detail information provided by the complainant would request the employer or person whom the complaint was levelled against to supply an explanation. In the present case, this process has not been adopted by the parties; hence, the Defendants have not been asked to supply an explanation.

66.  As Browne-Wilkinson J. held in the English case of Khanna v. Ministry of Defence at p. 654:-

“If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will mean that the complaint succeeds …… these propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.”

67.  For this reason, this case should go to trial so that the Defendants will be given an opportunity to offer an explanation. It would also provided an opportunity for the Plaintiff to supply the grounds and details of evidence in support of her case.

68.  As Rogers V-P. held in the case of Netwell Properties Ltd. v. JCG Finance Co. Ltd. [2004] 2 HKLRD 138:-

“The first observation which should be made is that the O.14A procedure is one to determine a question of law or construction of a document which arises in an action where the question is suitable for determination without a full trial of the action and the determination would finally determine the entire case or matter of the claim. If there is a dispute as to the facts, it is difficult to see how judgment can be entered in favour of a claimant. Where a claimant seeks judgment under O.14A, the facts would have to be based on either established facts or agreed facts. As set out in the Hong Kong Civil Procedure 2002, Vol. 1 at pp. 178 to 179 para. 14A/2/4, there should be no hypothetical facts and where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination, for to do so would in effect be to give legal rulings in vacuo or on a hypothetical ruling, which the court will not do.”

69.  For the aforesaid reasons, it is pre-mature for the Statement of Claim of the Plaintiff to be struck out under either Order 18 r. 19(a) or 14A. Therefore the Defendants’ application is dismissed.

Costs

70.  Costs normally follow the event. There will be a costs nisi order for costs to be borne by the Defendants to be taxed if not agreed. The order will be made absolute should there be no application from either party within 14 days hereof.