MA BIK YUNG v. KO CHUEN

FACV No. 25/2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 25 OF 2000 (CIVIL)

(ON APPEAL FROM CACV No. 267 OF 1999)

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J U D G M E N T

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Chief Justice Li :

1. The appellant/plaintiff was a paraplegic ("the plaintiff"). The respondent/defendant was a taxi driver ("the defendant"). The trial judge held him liable to the plaintiff for discrimination and harassment under the Disability Discrimination Ordinance, Cap. 487 ("the Ordinance"). The conduct in question occurred when the plaintiff travelled in the defendant's taxi. The judge ordered him to pay $20,000 as damages and to apologise. On appeal, the Court of Appeal upheld the harassment finding, quashed the discrimination finding and reduced the damages to $10,000. The defendant was unwilling to apologise. It was held that there was no power to order an apology against an unwilling defendant and the order for an apology was quashed. The sole question in this appeal is whether the defendant could and should be ordered to apologise. This raises the question of principle whether a court has the power to order an unwilling defendant to apologise for unlawful conduct under the Ordinance.

2. As the plaintiff's claim is the first claim made under anti-discrimination legislation in Hong Kong, this appeal gives the Court its first opportunity to consider such legislation. The question raised is one of public importance and has an impact on the important work of the Equal Opportunities Commission. ("the Commission")

The anti-discrimination legislation

3. In recent years, anti-discrimination legislation has been enacted in Hong Kong to deal with certain types of discrimination. At present, we have three statutes, namely the Sex Discrimination Ordinance, Cap. 480, the Ordinance and the Family Status Discrimination Ordinance, Cap. 527. They tackle respectively discrimination on the grounds of sex, marital status or pregnancy, disability and family status. They render discrimination in certain areas on these grounds and related conduct unlawful and provide legal redress for aggrieved persons.

4. The Commission was established by statute with important functions and powers. Its duties include working towards the elimination of discrimination, promoting equality of opportunity and the encouragement of settlement of disputes by conciliation. The Commission has power to issue codes of practice containing practical guidance for the purposes of the elimination of discrimination and the promotion of equality.

5. In prohibiting the various types of discrimination, these Ordinances reflect the principle of equality which is enshrined in international covenants which under art. 39 of the Basic Law shall remain in force and shall be implemented through our laws. See art. 2(1) of the International Covenant on Civil and Political Rights ("the ICCPR"); art. 1(1) of the Hong Kong Bill of Rights, Cap. 383 which incorporates the ICCPR into the law of Hong Kong; art. 2(2) of the International Covenant on Economic, Social and Cultural Rights.

6. By the enactment of these anti-discrimination Ordinances, the community has condemned the conduct outlawed by them and has made clear that such conduct is not to be tolerated in a civilized society. Through the work of the Commission and by providing legal redress for aggrieved persons, the legislation seeks to eliminate discrimination and to change the prejudicial attitudes that may exist in society.

The Disability Discrimination Ordinance

7. As its long title states, the Ordinance renders unlawful discrimination against persons on the ground of their disability in respect of their employment, accommodation, education, access to partnerships, membership of trade unions and clubs, access to premises, educational establishments, sporting activities and the provision of goods, services and facilities and makes provision against harassment and vilification of persons with a disability.

8. The plaintiff's claim was for redress for discrimination and harassment in respect of the provision of services. A person discriminates against another if on the ground of that other person's disability, he treats that person less favourably than he treats a person or would treat a person without a disability. Section 6(a). It is unlawful for a service provider, whether paid or unpaid, to discriminate against a person with a disability (a) by refusing to provide the disabled person with services; (b) in the terms or conditions on which the provider provides the disabled person with services; or (c) in the manner in which the provider provides the disabled person with services. Section 26(1).

9. It is unlawful for a service provider, whether paid or unpaid, to harass another person with a disability who wants to acquire the services. Section 38(1). Harassment is defined as unwelcome conduct (which may include an oral or written statement) on account of a person's disability, "in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that [the disabled person] would be offended, humiliated or intimidated by that conduct". Section 2(6).

10. Complaints may be lodged with the Commission. Where a complaint is lodged, the Commission shall conduct an investigation and endeavour to effect a settlement by conciliation. Section 80.

11. Civil claims may be brought for discrimination and harassment "in like manner as any other claim in tort". Section 72(1). The District Court is vested with jurisdiction but all such remedies shall be obtainable in such proceedings as would be obtainable in the Court of First Instance. Section 72(3). (The District Court will be referred to in full or as "the court"). Section 72(4) provides:

"Without limiting the generality of the power conferred by subsection (3), the District Court may -

(a) make a declaration that the respondent has engaged in conduct, or committed an act, that is unlawful under this Ordinance, and order that the respondent shall not repeat or continue such unlawful conduct or act;

(b) order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant;

(c) order that the respondent shall employ or re-employ the claimant;

(d) order that the respondent shall promote the claimant;

(e) order that the respondent shall pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent's conduct or act;

(f) order that the respondent shall pay to the claimant punitive or exemplary damages; or

(g) make an order declaring void in whole or in part either ab initio or from such date as may be specified in the order, any contract or agreement made in contravention of this Ordinance."

This appeal concerns the scope of s.72(4)(b). Provisions relating to remedies similar to ss.72(3) and 72(4), including s.72(4)(b), are to be found in the Sex Discrimination Ordinance, ss.76(3) and 76(3A) and the Family Status Discrimination Ordinance, ss.54(3) and 54(4).

12. In this case, the Commission conducted an investigation of the conduct the subject of the plaintiff's complaint. Despite its endeavours, no settlement was effected by conciliation. The plaintiff commenced proceedings in the District Court, alleging both discrimination and harassment, seeking damages and an order for apology. The defendant disputed the plaintiff's version of events and contested liability.

The District Court

13. At the trial in the District Court (before Judge HC Wong) ("the judge"), the plaintiff and the defendant gave different versions of the incident. The defendant's version exculpated him. The judge found the plaintiff to be an honest witness and believed her and found the defendant to be "a completely unreliable witness and his evidence unconvincing." The judge held in the plaintiff's favour on both discrimination and harassment: [1999] 2 HKLRD 263, [1999] 1 HKC 714.

14. The judge granted the following remedies: (1) damages in the sum of $15,000, expressed to be a global sum for injury to feelings with its aggravating features; (2) punitive damages in the sum of $5,000 "due to the particularly oppressive and insulting circumstances" the defendant had subjected the plaintiff to; and (3) an order for the defendant to deliver to the plaintiff an apology in writing through their respective legal representatives within 14 days.

The facts found

15. It is important to set out the facts found by the judge in full. They are set out in the judgment under the heading "Findings of Facts" and under the heading "the plaintiff's case" which the judge in believing her must have accepted. There are also some specific facts taken from the plaintiff's evidence which the judge accepted.

16. The plaintiff became a paraplegic 30 years ago after an operation for a spine tumour. She had worked as a social worker. At the time of the incident, she was studying for a Ph D which she later obtained in November 1998. On 26 November 1996, in the morning, she and her sister wanted to take a taxi from their home to a clinic for her sister to attend a medical appointment. Her sister was suffering from schizophrenia. (Sadly, she died before the trial). The plaintiff was in her wheelchair. The defendant had parked his taxi in front of a bus stop waiting for hire. The plaintiff attempted to hail it but received no response. It was inconceivable that the defendant failed to see them. They then moved to the defendant's taxi. She had to knock on the passenger door several times before the defendant eventually opened the door. But he remained in his seat and did not help her to get in. The plaintiff managed to get into the taxi by herself, leaving her wheelchair outside it.

17. When she asked the defendant to load the wheelchair into the boot, he refused, saying "who do you think you are, my responsibility is to drive and I have no responsibility to your wheelchair!". He said the plaintiff's sister could help. The plaintiff replied : "You can see her condition for yourself, how can she help me?" She was referring to her sister's obviously stiff limbs and trembling hands. The defendant then said that if her sister could not help, it was her business, not his, and she could get out of his taxi. The plaintiff managed to obtain assistance from a passer-by who loaded the wheelchair into the boot. It was only when the plaintiff was showing the passer-by how to fold up the wheelchair when the defendant got out of the taxi and talked with other passers-by who had by then gathered in front of the taxi. It was obvious that he did not welcome her patronage and his only concern was to avoid being accused of refusing hire.

18. During the journey, the defendant scolded the plaintiff and amongst other things said "Do you think not being able to walk and in a wheelchair is everything! I too had an operation on my leg". According to the two medical reports produced by the defendant, the doctors agreed that his left leg was 1.5cm shorter than the right leg and his left hip was weak and unstable and that it was understandable and reasonable for him to avoid lifting heavy weights.

19. On arrival at the clinic, the defendant sat with his arms crossed and did not respond to the plaintiff's plea for help to unload the wheelchair and did not summon passers-by to help. The plaintiff was by then in tears. Her sister, who was easily excitable, was agitated and was trembling even more. The plaintiff tried to calm her down and waited inside the taxi until someone passed by to whom she explained what had happened. The passer-by then asked the defendant to go and help unload the wheelchair.

20. The plaintiff asked why the fare was higher than usual to which the defendant replied: "who do you think you are, do you think being in a wheelchair is everything and you do not have to pay? You look at the meter! Do you think because you have an illness is everything?" The plaintiff paid and said: "I do not have an illness, you have an illness, your illness is in your mind." As stated above, the defendant had during the journey mentioned that he had an operation on his leg. But at no time did he inform the plaintiff of his own disability.

21. At the time, the plaintiff was humiliated and she felt frustrated and angry at her own disability. She continued to feel upset for a long time, after the incident and it had affected her in her studies and her care of her sister.

22. In finding harassment, the judge specifically referred as follows to the words which the defendant had used inside the taxi : "eg. 'Do you think you are superior on a wheelchair? Who do you think you are?' 'Get out of the car if you cannot manage the wheelchair' etc." The plaintiff's pleaded case on harassment relied on the defendant's conduct throughout the incident and was not confined to these words. The judge's finding on harassment should be taken to have been based on the defendant's conduct throughout as pleaded. The words specifically referred to were highlighted by the judge by way of example.

The Court of Appeal

23. The Court of Appeal (Mayo VP, Keith JA and Ribeiro JA, as he then was) allowed the defendant's appeal in part: [2000] 1 HKLRD 514, [2000] 1 HKC 745. The Court of Appeal did not disturb the judge's findings of fact. The Court's conclusions may be shortly stated as follows.

(1) The Court upheld the judge's finding on harassment on the basis that the defendant was rude and offensive and specifically referred to the plaintiff being a disabled person; the finding that the defendant's remarks were "on account of" the plaintiff's disability being amply justified.

(2) The Court set aside the judge's finding on discrimination. In reaching this conclusion, the Court considered that the judge erred in applying s.6(a) of the Ordinance. That provision required the plaintiff, when alleging direct discrimination, to prove that she had been treated by the defendant less favourably than he would have treated a person without a disability. In applying s.6(a), it is necessary to find a suitable comparator and then to compare how the defendant would have treated such a comparator. The judge correctly took as a suitable comparator an able-bodied person who had a heavy item of luggage but failed to consider and make a finding on the evidence as to how the defendant would have treated such a comparator. Accordingly, discrimination was not established. A re-trial was not ordered.

(3) The Court then went on to reach the critical conclusion that an unwilling apology was not within s.72(4)(b). It would appear that the defendant was by no means contrite and repentant and had never indicated that he was. The Court considered that no useful purpose would be achieved by requiring him to apologise. It would be a meaningless and empty gesture. An apology should not have been ordered "as it would not, in the circumstances, have constituted redress to the plaintiff's loss and damage which ought reasonably to be ordered". However "a sincere and appropriate apology", timeously proffered, ought properly to be taken into account in mitigation of the plaintiff's damages.

(4) Although the awards made for both (i) discrimination and (ii) harassment totalling $20,000 could not be criticised, the Court held that with (i) not established, the amount should be adjusted. Although (i) and (ii) were closely interrelated, the gravamen of the defendant's conduct was reduced without (i). The award was reduced to $10,000.

The question of principle

24. The plaintiff appeals with leave of the Appeal Committee to the Court on the question of the District Court's power to order an apology under s.72(4)(b). Both before the Court of Appeal and the Court, the matter proceeded on the basis that the defendant was unwilling to give an apology. As the Court of Appeal stated, he was not contrite and repentant and had never indicated that he was.

25. The question of principle is therefore raised whether the court has the power to order an unwilling defendant to give an apology. In this context, an unwilling defendant is one who does not feel sorry. As he has no sense of regret, any apology by him would be insincere and an empty gesture. It is in this sense that the phrase "unwilling defendant" is used in this judgment. The question is whether the court has the power to order an unwilling defendant to make an apology which would in the circumstances be an insincere one. In the worst scenario, an unwilling defendant may even go to the extreme of defying the order which would then have to be enforced by contempt proceedings.

26. If the answer to the question of principle is that the court does not have the power to order an unwilling defendant to give an apology, that is an end of the matter. On the other hand, if the answer is that the court has such a power, the Court would then have to consider whether in the circumstances of this case, an order for apology should be made against this unwilling defendant.

The submissions

27. The plaintiff submits that in this novel area of the law, the court has the power to order an apology, even against an unwilling defendant under s.72(4)(b). It is contended that this is an important weapon in the armoury in the fight to eliminate discrimination and that the existence of this weapon is useful in the encouragement of settlement in the conciliation process.

28. On the other hand, the defendant submits that s.72(4)(b) does not enable the court to compel an unwilling defendant by a court order to make an apology because such an order (1) would be unreasonable; (2) would not have the effect of redressing any loss or damage suffered by a plaintiff; (3) would infringe the defendant's rights and freedoms guaranteed by the Basic Law and the Legislature could not have intended to include such an order within s.72(4)(b); and (4) the enforcement of such an order is futile or disproportionate and is contrary to the interests of the administration of justice. Further, the defendant submits that even if such an order were within the contemplation of the section, it should never be made as it would infringe the guaranteed rights and freedoms.

29. It is convenient to set out here the rights and freedoms relied on by the defendant.

(1) Freedom of thought or conscience.

Article 32(1) of the Basic Law provides that "Hong Kong residents shall have freedom of conscience". Article 39(1) provides that the provisions of amongst others the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through our laws. And art. 39(2) provides :

"The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of ... [Article 39(1)]."

The Hong Kong Bill of Rights has incorporated the ICCPR into the law of Hong Kong. Article 15 of the Bill (corresponding to art. 18 of the ICCPR) provides :

"Freedom of thought, conscience and religion

(1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

(2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

(3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

(4) The liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions shall be respected."

(2) Freedom of expression

Article 27 of the Basic Law, provides that "Hong Kong residents shall have freedom of speech ...". Article 16 of the Hong Kong Bill of Rights (corresponding to art. 19 of the ICCPR) provides :

"Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals."

Remedies in general

30. Before turning to s.72(4)(b) and the question of an order for an apology, a number of general points should be made on remedies available under the Ordinance. First, s.72(3) provides that all remedies that would be obtainable in the Court of First Instance of the High Court shall be obtainable in proceedings before the District Court under the Ordinance. Section 72(4) then sets out, without limiting the generality of the power in s.72(3), particular remedies which the District Court may grant. With these provisions, the District Court has a wide range of remedies at its disposal. Leaving aside the scope of s.72(4)(b) which is in issue in this appeal, the available remedies include mandatory orders that would be enforceable by contempt proceedings. For example, an order under s.72(4)(c) that the defendant shall employ or re-employ the plaintiff and an order under s.72(4)(d) that the defendant shall promote the plaintiff. The circumstances of the cases brought under the Ordinance would be of an infinite variety. With the wide range of available remedies, it is for the court to fashion the remedies that are appropriate for the case in question.

31. Secondly, at the stage when the court addresses the question of remedies, the court would have already concluded that the defendant had committed unlawful conduct under the Ordinance. In deciding on the remedy or the package of remedies that would be appropriate in the circumstances of the case, the court should consider the matter in the round and take a global approach.

32. Thirdly, we are in a new area of the law. As has been stated, by enacting anti-discrimination legislation such as the Ordinance, the community has condemned the conduct outlawed and the purpose of the legislation is to seek to eliminate discrimination and the prejudicial attitudes that may exist in society. It is important for the court to bear in mind that the remedies granted should ensure respect for the legislation and its purpose. In fashioning remedies, the court should be prepared, where necessary, to be innovative. At the same time, the court should be flexible and pragmatic in its approach to remedies.

Section 72(4)(b)

33. By this provision, the court may order that the defendant shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the plaintiff. In considering the order to be made, the loss or damage suffered by the plaintiff as a result of unlawful conduct under the Ordinance must first be identified and assessed. This loss or damage will in many cases include injury to feelings. Next, it will be necessary to consider whether there is any reasonable act or course of conduct that will redress the loss or damage and whether the defendant should be ordered to perform that act or course of conduct. The act or course of conduct must be such that it would have the effect of redressing the loss or damage in the circumstances of the case in question. Whether a particular act or course of conduct is reasonable must of course be judged objectively, taking into account all circumstances.

Order for apology on the assumption that the defendant is willing to apologise

34. To apologise is simply to say sorry. An apology is a regretful acknowledgement of a wrong done. It can be made privately or publicly. The making of an apology will usually redress, at least to some extent, the loss or damage, particularly injury to feelings, suffered by the plaintiff as a result of the defendant's unlawful conduct under the Ordinance. Where a defendant voluntarily makes an apology at early stage, for example, soon after the incident, during the conciliation process or before legal proceedings, it will usually mitigate the plaintiff's loss or damage. And the earlier it is made, the stronger will be its mitigating effect.

35. Where the defendant contests liability but the court after trial makes a finding of liability against the defendant, the court may then consider the question whether it would be appropriate to order an apology. In many cases, the court may well decide that an apology would be appropriate. An apology, even at this late stage after a finding of liability, could have the effect of redressing at least to some extent the plaintiff's loss and damage. So long as the making of the apology is a reasonable act for the defendant to perform, the court may order an apology. Such an order would be within the court's power under this provision. In making such an order, it is desirable that the court should set out the terms of the apology (the terms should usually be simple) and appropriate directions, such as whether it should be private or public and, directions concerning communication and publication.

36. Under the global approach to remedies discussed above, the order for an apology would in many cases be one element in a package of remedies which may well include damages. In making an order for an apology, the court is entitled to proceed on the assumption, in the absence of any contrary indication, that after a finding of liability, the defendant will be willing to apologise pursuant to the order. That is, the defendant will be willing to make an apology which is sincere.

The appropriate procedure

37. As a practical matter, where the court wishes to grant remedies which include an order for an apology, the appropriate procedure would be to proceed by making in the first instance provisional orders (that is, orders nisi). The court should give the parties the opportunity to make representations, if they wish, before the provisional orders are made final (that is, before the orders nisi are made absolute). If contrary to the court's assumption, the defendant indicates that that he is an unwilling defendant in the sense referred to above (that is, he does not feel sorry and any apology would therefore be an insincere one), the court should hear the parties and consider the submissions made, including any argument by the defendant that such an order, if made final, would infringe his guaranteed rights and freedoms. The court would then decide on the orders that should be made final. I shall turn in a moment to deal with the question whether the court should make a final order for an apology where the defendant has indicated that he is an unwilling defendant.

38. Where the court decides not to include an order for an apology in the final orders, the court would, on the global approach, usually adjust the other orders. Where the package of remedies provisionally ordered included not only an award of damages, but also an order for an apology and the final order omits the latter, the deficiency must be filled, unless there is good reason for not doing so. The adjustment would usually take the form of a substantial increase in the quantum of damages. It will generally be appropriate for the court, when making the provisional orders, including the order for an apology, to state that if the final orders do not include the order for an apology, then it is likely that the quantum of damages would be substantially increased. Whether the court should indicate at that stage the actual amount by which the damages would be increased is a matter to be considered. See the helpful discussion in Carole J Peterson : The failure of the Hong Kong Court of Appeal to recognise and remedy disability discrimination (2000) HKLJ Vol. 30 Part 1 p.6 esp. 20-1. Generally speaking, however, it will be preferable not to indicate the amount of likely increase at this stage. First, the court should leave the amount of increase to be determined after hearing argument. Secondly, indicating the amount of increase at that stage may give rise to a perception which would be undesirable that the defendant can buy his way out of making an apology.

39. What has been said already about the making of an order for an apology as an appropriate remedy within s.72(4)(b) is consistent with the approach taken in Australia. There, many tribunals (both Commonwealth and State) have ordered an apology under a provision in anti-discrimination legislation similar to s.72(4)(b). See the following examples in Commonwealth legislation : Racial Discrimination Act, s.25Z(1)(b), the Sex Discrimination Act, s.81(1)(b) and the Disability Discrimination Act, s.103(1)(b). And see the following examples in State legislation : the Anti-Discrimination Act (Queensland), s.209(1)(c), the Equal Opportunity Act (Victoria), s.46(2)(c), the Anti-Discrimination Act (New South Wales), s.113(1)(b)(iii). Note, however, that the last Act mentioned contains an express provision in s.113(1)(b)(iiia) that where a vilification complaint is substantiated, the tribunal may order the respondent to publish an apology or a retraction with directions concerning the time, form, extent and manner of publication.

40. The Court is indebted to both counsel for their industry in citing numerous tribunal decisions in Australia. But it is unnecessary to burden this judgment by referring to them. In a number of these decisions, orders for apology were made. The tribunals appear to have made the orders on the assumption that the defendant would be willing to apologise pursuant to the orders.

Whether order for apology against unwilling defendant

41. This brings me to the critical question whether the court has the power to make a final order for an apology against an unwilling defendant in the sense referred to above. In response to a provisional order, the defendant indicates that he is unwilling to apologise; he does not feel sorry and any apology will therefore be insincere. In the worst case, he will defy the final order for an apology, (assuming the court has the power to make it), and contempt proceedings for enforcement will have to be taken.

42. Two separate questions arise : (1) Whether the court has the power under s.72(4)(b) to make an order for an apology against an unwilling defendant. (2) Even if it does, whether such an order would necessarily infringe the defendant's guaranteed rights and freedoms. The guaranteed rights and freedoms are also relevant to (1); it is argued that the Legislature could not have contemplated an order which would necessarily infringe the guaranteed rights and freedoms to be within the provision. That being so, it is convenient to deal with the guaranteed rights and freedoms first.

The guaranteed rights and freedoms

43. In the course of his able argument, Mr Wong Yan Lung, counsel for the defendant, submits that an apology which an unwilling defendant is compelled to make by a court order, which would be enforceable by contempt proceedings, would necessarily infringe his guaranteed rights and freedoms. The relevant provisions of the Basic Law and the Hong Kong Bill of Rights have been set out. Mr Wong contends that an order for an apology against an unwilling defendant would necessarily infringe : (1) freedom of thought or conscience which are absolute rights, that is, they are not subject to any restrictions; and (2) freedom to manifest one's beliefs and freedom of expression. He accepts that the freedoms in (2) are subject to the restrictions prescribed in the relevant articles of the Bill of Rights and art. 39(2) of the Basic Law. See HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 for an application of the restriction on the freedom of expression. But, Mr Wong submits that such an order can never be justified as being within the restrictions.

The Canadian decisions

44. Mr Wong relies on a number of Canadian decisions, including two Supreme Court decisions. In National Bank of Canada v. Retail Clerks' International Union [1984] 1 SCR 269, the Labour Relations Board ruled that the Bank had violated certain provisions in the Labour Code by permanently shutting down a branch with a view to denying its employees the fundamental right to bargain collectively. The Board made an order that a letter in specified terms be sent by the Bank's president to all employees, informing them of the Board's ruling and the creation of a trust fund to promote the objectives of the Code. The Bank argued that the letter was humiliating and the order was unreasonable and vexatious. The Supreme Court of Canada allowed the Bank's appeal on this ground. Beetz J. (at p.296) with whom four other Justices agreed said that this type of penalty was totalitarian and that Parliament cannot have intended to confer on the Board a power to impose it, "even assuming that it could confer such a power bearing in mind the Canadian Charter of Rights and Freedoms, which guarantees freedom of thought, belief, opinion and expression. These freedoms guarantee to every person the right to express the opinions he may have : a fortiori they must prohibit compelling anyone to utter opinions that are not his own".

45. That decision was distinguished by the Supreme Court in its later decision in Slaight Communications Inc v. Davidson [1989] 1 SCR 1038. The adjudicator (1) ordered the employer to give an unjustly dismissed employee a letter of recommendation certifying amongst others the sales quota he had been set and the amount of sales he actually made and the fact that the adjudicator had held him unjustly dismissed and (2) further ordered that the employer be prohibited from answering a request for information about the employee except by sending that letter of recommendation. The majority of the Supreme Court held that the orders infringed s.2(b) of the Charter (freedom of thought, belief, opinion and expression). But they were saved by s.1. (The rights and freedoms guaranteed are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society). This was because it was important to counter the effect of the unfair dismissal by enhancing the employee's ability to seek new employment without being lied about by the previous employer, and because the means chosen was reasonable as the employer was not forced to state an opinion which was not its own. The National Bank case was distinguished on the ground that in that case, the Bank was forced to state opinions which were not its own and required to send to a very large audience what amounted to a letter of contrition which conveyed the impression that certain opinion expressed therein were those of the employer. Slaight was referred to in TV3 Network Ltd v. Eveready New Zealand Ltd [1993] 3 NZLR 435. In that case, the New Zealand Court of Appeal, refused to strike out the plaintiff's claim for a mandatory injunction to broadcast corrective advertising in a claim against TV broadcasters for malicious falsehood and defamation arising from a report on the plaintiff's products. It held that there was in principle no jurisdictional bar to granting the mandatory injunction which could be justified under s.5 of the New Zealand Bill of Rights Act (may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society).

46. In Perera v. Canada [1998] 3 FC 381, (1998) 158 DLR (4th) 341, the Federal Court of Appeal refused to strike out a claim for an apology. The employees alleged individual and systematic discrimination by the employer on the basis of race, national or ethnic origin contrary to s.15 of the Charter (equality rights). The reliefs sought included an order directing letters of apology. It was held that, although the order sought would contravene s.2(b) of the Charter (freedom of thought, belief, opinion and expression), it could be granted if it is justifiable under s.1, a question which cannot be answered in the abstract without knowledge of all the circumstances of the case.

The circumstances of each case

47. The cases that may arise will involve circumstances of infinite variety. The questions whether (1) the freedom of thought or conscience would be infringed or (2) the freedom to manifest one's belief or the freedom of expression would be infringed and if so, whether the prescribed restrictions are applicable, must depend on the circumstances of each case. Yet, the defendant's argument on this point amounts to an absolute proposition : that in every conceivable case that could possibly arise, where an order for apology is made against an unwilling defendant for unlawful conduct under the Ordinance, his freedoms in (1) and (2) must necessarily be infringed and, any infringement cannot possibly be justified as being within the prescribed restrictions. As infringement and the application of the prescribed restrictions depend upon the circumstances of each case, the defendant's absolute proposition must be rejected.

48. The circumstances to be considered in each case will include the defendant's circumstances and the defendant's reasons for his unwillingness to apologise. Where the prescribed restrictions are relevant, the matters to be considered may include the nature and aim of the legislation, the interests of the community, the gravity of the unlawful conduct and the plaintiff's circumstances, including the extent of the loss and damage suffered. It is only upon an examination of all the circumstances in a particular case that one can answer the question whether the guaranteed rights and freedoms are infringed (including the question of whether the prescribed restrictions are applicable).

Power under s.72(4)(b)

49. The question whether the court has the power to make an order for an apology against an unwilling defendant under s.72(4)(b) will now be considered. One of the arguments advanced by the defendant can now be rejected; that is, the argument that the Legislature cannot have intended such an order to be within the provision on the basis that it would necessarily infringe the guaranteed rights and freedoms. As discussed above, this absolute proposition must be rejected; whether such an order would infringe the guaranteed rights and freedoms would depend on the circumstances of each case.

50. I turn to the defendant's other arguments on this question. Mr Wong for the defendant submits, again as an absolute proposition, that in every conceivable case that could possibly arise where the defendant is unwilling to apologise in the sense referred to above, an apology made pursuant to an order for an apology (1) could not have the effect of redressing any loss or damage suffered by the plaintiff and (2) would be an unreasonable act for the defendant to perform. So, he argues that the criteria in s.72(4)(b) could never be satisfied and such an order is therefore outside the contemplation of the provision. Mr Wong further argues that the enforcement of such an order would always be futile or disproportionate and contrary to the interests of the administration of justice.

51. The absolute proposition advanced by Mr Wong that the criteria in s.72(4)(b) could never be satisfied cannot be accepted. Whether an apology made by an unwilling defendant, albeit insincere, has the effect of redressing the plaintiff's loss and damage to some extent would depend on the circumstances of each case. In some cases, it may have such an effect.

52. Before an order for an apology could be made against an unwilling defendant, s.72(4)(b) requires the court to be satisfied that an apology is a reasonable act for the defendant to perform in the circumstances of the case in question. The requirement of "reasonable" in the provision may not necessarily lead to the conclusion that an order for an apology can never be made against an unwilling defendant. With an unwilling defendant, it may well be that an apology, which will be an insincere one, would usually not be a reasonable act for him to perform. In this context, it must be borne in mind that there are many other remedies at the court's disposal which could be considered. But there may be rare cases where the court could be satisfied that an apology, albeit insincere, would be a reasonable act for the defendant to perform. Further, in these rare cases, enforcement could not be said to be futile or disproportionate and contrary to the interests of the administration of justice. The circumstances in these rare cases, including the degree of gravity of the defendant's unlawful conduct as well as the nature and extent of the plaintiff's loss and damage, would have to be exceptional. Under s.72(4)(b) the court does have the power to order an unwilling defendant to make an apology. It is in these rare cases that the court could consider exercising this power against an unwilling defendant.

Exercise of power

53. Although the court has the power to make such an order against an unwilling defendant, the court, even in the rare cases where the circumstances are exceptional, has to proceed with great circumspection. The court would have to consider carefully the parties' representations, including any submissions in relation to the guaranteed rights and freedoms. The court should take a global approach and consider the wide range of available remedies. Even where the court concludes that an order would not infringe the defendant's rights and freedoms, such an order should not be lightly made against an unwilling defendant. Other available and appropriate remedies would at least include a substantial increase in the amount of damages. An order under s.72(4)(b) directing the defendant to publish a summary of the court's judgment could also be considered. This would only require the defendant to publish facts and information, that is, a summary of what is contained in the judgment, and is different in kind from an order for an apology.

54. As mentioned above, orders for apology have been made by tribunals in Australia under provisions in Commonwealth and State anti-discrimination legislation which are similar to s.72(4)(b). As already observed, when making these orders, the tribunals appear to have assumed that the defendant would be willing to apologise pursuant to the orders made. The question, whether an order for an apology could be made against an unwilling defendant, has not been considered.

55. As the Court of Appeal in this case correctly concluded, the question of whether an order for an apology should be made against an unwilling defendant was not considered by the Supreme Court of Victoria in De Simone v. Bevacqua, (1994) 7 VAR 246, also digested at (1994) EOC 92-630. The Victoria Equal Opportunity Board had held : (1) The complainant, who was employed by the company, had been sexually harassed by her supervisor. (2) However, the company was not vicariously liable for the supervisor's behaviour. Although the company was responsible for the supervisor's conduct under the relevant legislation, the company had established the statutory defence that it had taken reasonable precautions to prevent the harassment. (3) But the company's managing director had discriminated against the complainant by treating her less favourably than other employees because she had made a complaint of sexual harassment against the supervisor and the company was liable for the managing director's conduct. The Board awarded A$50,000 as damages to be borne as to 60% by the supervisor and as to 40% by the managing director and the company. It also ordered the managing director and the company to publish an apology in specified terms to be distributed to all employees that the managing director "on behalf of this company would like to apologise to [the complainant] in that firstly [the company] did not have any formalised program in place to counter sexual harassment and secondly for the manner in which the complaint was dealt with". The apology was ordered under s.46(2)(c) of the Victoria Equal Opportunity Act which enabled the Board to "order the respondent to perform any acts ... with a view to redressing any loss damage or injury suffered by the person ... as a result of the act of discrimination".

56. The company and the managing director appealed to the Supreme Court of Victoria. One of the issues raised was the apology ordered. They submitted that the Board had no power (1) to order any apology, (2) to order the apology in the terms ordered; in particular, an apology whereby the managing director on behalf of the company apologised for the company not having any formalised program in place to counter sexual harassment. The Supreme Court accepted the submission in (2). It held that it was not open to the Board to require a party to apologise for something for which it was not liable. Since the company was held not liable for not having any such program, the apology ordered should not have covered this matter. There was no suggestion that the company and the managing director were unwilling to comply with an order for apology. Indeed, during the hearing, their counsel put before the court a form of apology if the court should find that the Board was right in ordering an apology. In the circumstances, the court deleted part of the apology ordered by the Board so that the relevant part of the apology simply read : "I [the managing director] on behalf of this company would like to apologise to [the complainant] for the manner in which the complaint was dealt with".

The circumstances of this case

57. As has been stated, both in the Court of Appeal and in this Court, the matter has proceeded on the basis that the defendant would be unwilling to apologise, that is, he was not contrite and repentant and had never indicated that he was and an apology would therefore be an empty gesture. The defendant's harassment of the plaintiff on account of her disability which occasioned the plaintiff considerable distress must be condemned by this Court. By outlawing such conduct, the community has made clear that such conduct is not to be tolerated in our society. However, the circumstances of this case do not come within the rare cases with exceptional circumstances where the Court should consider ordering an apology against the unwilling defendant.

58. As a result of the Court of Appeal's judgment, the plaintiff has ended up with an award of damages of $10,000 for harassment. Although there is no appeal to this Court on the quantum of damages, two points should be made. First, the award at trial of $20,000 for both discrimination and harassment was not a generous award. As has been stated, it is important for the court to bear in mind that the remedies granted, including the quantum of damages, should ensure respect for the legislation and its purpose. Secondly, the facts relating to discrimination and harassment overlapped to a very great extent. As stated above, on a fair reading of the judgment, the judge's finding on harassment should be taken to have been based on the defendant's conduct throughout the incident. This may not have been fully appreciated by the Court of Appeal, although it recognised that the two aspects were closely interrelated. Halving the judge's award so that $10,000 was awarded for harassment alone led to an award which is clearly on the low side, especially as the order for an apology was quashed.

59. This judgment, setting out the facts in full, has unequivocally condemned the defendant's actions as conduct that should not be tolerated in our society. This judgment should provide further vindication to the plaintiff.

Order and costs

60. Accordingly, I would dismiss the plaintiff's appeal. The matter raised is one of public importance. The plaintiff is assisted in her appeal by the Equal Opportunities Commission. The defendant is on legal aid. In the circumstances, there should be an order nisi that there be no order as to the costs of the appeal to this Court. Any party wishing to challenge this order nisi should send in written submissions (copied to the other parties) within 21 days from today. The Court will decide on the basis of the written submissions received within this period. If no written submissions are received by the expiry of this period, the above order nisi will become absolute. In any event, an order is made for the taxation of the defendant's costs in accordance with the Legal Aid Ordinance and Regulations.

Mr Justice Bokhary PJ :

61. I agree with the Chief Justice's judgment. By that judgment, the Court clarifies a difficult aspect of an important branch of the law, namely the role of apologies in discrimination and harassment cases. That the Court has had the opportunity to do this is much to the plaintiff's credit. Having undergone a most distressing experience of the kind which many people would want only to forget, she has had the courage to come to court because there was a principle to vindicate.

Mr Justice Chan PJ :

62. I agree with the judgment of the Chief Justice.

Mr Justice Nazareth NPJ :

63. I agree with the judgment of the Chief Justice.

Sir Anthony Mason NPJ :

64. I agree with the judgment of the Chief Justice.

Chief Justice Li :

65. The Court unanimously dismisses the plaintiff's appeal. An order nisi is made that there be no order as to the costs of the appeal to this Court with the directions relating to submissions on the order nisi set out at the end of my judgment. In any event, an order is made for the taxation of the defendant's costs in accordance with the Legal Aid Ordinance and Regulations.