M v. SECRETARY FOR JUSTICE

CACV 265/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 265 OF 2007

(ON APPEAL FROM DCEO NO. 8 OF 2004)

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J U D G M E N T

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Hon Tang VP:

1.  The plaintiff was referred to at trial as Mickey Chan to protect his privacy.  He was employed as an administrative officer (AO) on probationary terms for 3 years.  He assumed duty on 26 October 1998 and was posted to the Home Affairs Bureau (“HAB”) as an Assistant Secretary where he remained until 28 July 1999.  On 29 July 1999, he was transferred to the Transport Bureau (“TB”) also as an Assistant Secretary.  He resigned from the civil service on 2 June 2000.  It is common ground that he had been told that the government was going to terminate his employment as a probationary administrative officer and it was in his interest to resign.  His last day in the office was 27 June 2000.  Thereafter, he was on the pre-resignation leave until 12 August 2008 when his employment with the government formally ended.  He claimed he had been constructively dismissed. 

2.  The plaintiff’s case is that at the material time, he was a person with a disability within the meaning of section 2(1) of the disability of Disability Discrimination Ordinance, Cap. 487 (“DDO”).  He claimed damages on the basis that he had been the subject of discrimination under section 6 of DDO and article 22 of the Bill of Rights as well as being the victim of harassment within the meaning of section 2(6) of DDO. 

3.  The defendant has denied discrimination under section 6.  Alternatively, he relied on section 12(2)(i) of DDO.  The defendant also denied that there had been harassment.

4.  The plaintiff’s claim was dismissed by District Judge Lok after a trial which had lasted 16 days.  The main issues before him were:

(1)   (a)     whether at the material time the plaintiff was suffering from a disability, and, if so,

(b)     what disability.

(c)     whether the government was aware or ought to have been aware of each disability

(2)     whether there had been discrimination: under section 11(2) of DDO, it was unlawful to discriminate against a person with a disability by dismissing him.  There would have been discrimination if on the ground of the plaintiff’s disability the employer has treated him less favourably than he treated or would treat a person without a disability.  Section 6 of DDO.  In this connection, section 8 of DDO provides:

“8.     Comparison of cases under section 6

         A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

(3)     whether, if a case under section 11(2) had been established, the defendant had established the defence that the plaintiff, because of his disability:

“… would be unable to carry out the inherent requirements of the particular employment;” section 12(2)(i)

(4)     Had the plaintiff been the subject of harassment under section 2(6) of DDO, where:

“2(6) … a person (howsoever described) harasses another person if that first-mentioned person engages in unwelcome conduct (which may include an oral or written statement) on account of that second-mentioned person's disability …”

5.  These questions are essentially questions of mixed law and fact. 

6.  The learned judge held that:

(1)(a)   the complainant was indeed suffering from a psychiatric or psychological illness known as Generalized Anxiety Disorder (“GAD”) or adjustment disorder, however, since all the medical experts were agreed that they are psychiatric or psychological illnesses, it was not necessary for him to decide:

“46.   … whether [the plaintiff] was suffering from GAD or adjustment disorder when he worked in the Government.”

    (b) The learned judge was inclined to the view that the plaintiff began to suffer from the disability in mid-1999.  He said:

“48.   [The plaintiff’s] another expert, Professor Lieh-Mak, is of the view that [the plaintiff] had symptoms of the GAD way back in 1995, but it was probably in December 1998 that [the plaintiff’s] anxiety passed the threshold to become a disorder.  Dr. Chung, however, is of the opinion that [the plaintiff] might have suffered from psychiatric disorder in 2000.

49.    As I see it, all the medical experts agree that there were a number of factors interacting with each other causing [the plaintiff] to develop the psychiatric disorder.  These factors include: (i) the specific weaknesses in his cognitive functioning; (ii) his personality; (iii) his proneness to anxiety; (iv) the difficulties and the pressure encounter by him in his work; and (v) the tension with his supervisor, and it is difficult to isolate the effect of a particular factor in contributing to the development of the disorder.  However, as his work at the HAB was less affected by his cognitive weaknesses and the workload by that time was not particularly heavy, I am more inclined to accept the opinion of the majority of the experts that [the plaintiff’s] anxiety had not passed the threshold of being a disorder until mid-1999 when [the plaintiff] started to work at the TB.  In any event, it is clear from the medical evidence that [the plaintiff] was not suffering from any psychiatric or psychological illness in the first few months when he worked in the HAB in 1998.

……

141.  There is also no dispute that [the plaintiff] was suffering from some kind of psychiatric disorder in the latter half of his employment with the Government, whether such disorder should be labelled as ‘GAD’ or ‘adjustment disorder’.  According to Professor Lee, [the plaintiff’s] proneness to anxiety, the pressure from his work, the tension with his supervisors, his specific cognitive weaknesses and obsessive personality traits all contributed to the development of such illness.  However, as I have said in the earlier part of this judgment under the section of the ‘Medical Condition of [the plaintiff]’, I find that [the plaintiff] can only be regarded as suffering from such disorder, to the extent that the anxiety had affected his emotion and judgment, from mid-1999 when he started his work at the TB (see: paras. 40-50 above).”

    (c)(i)       The learned judge held that, at no material time was the government aware that the plaintiff was suffering from any disability.  He regarded that as important to the question whether there had been discrimination under section 6(a) on the ground of [the plaintiff’s] disability as well as the harassment claim.

 (ii)      The learned judge also held that the government could not be regarded as having had constructive notice of the plaintiff’s disability.  He concluded that:

“217. ... the facts here fall far short of establishing the necessary knowledge on the part of the Government or its officers.  As I accept the factual evidence of the Government’s witnesses, the display of the “symptoms” on the part of [the plaintiff] was not obvious to an extent that it would have alerted the Government’s officers about the possibility of [the plaintiff] having disability.  In fact, as I have mentioned above, even [the plaintiff] did not regard the “symptoms” as serious enough for the same to be revealed to his own doctor (see: para. 123 above).  Further, if the symptoms were obvious, I find it surprising that the Government’s officers, who all had had considerable experience in public administration, did not make reference to the possibility of any psychiatric or psychological disorder in any of the reports or memos, in particular when they had no real financial interest as to how to deal with [the plaintiff’s] case.”

 (iii)     The learned judge went on to say:

“213. … I would maintain that nothing short of the obvious symptoms and recklessness on the part of the employer is sufficient.”

(2)     The learned judge held that there was no discrimination under section 6(a).  The learned judge held that a person who was without any disability but who had performed as poorly as the plaintiff in his job, would have received the same treatment as the plaintiff.  Furthermore, the treatment received by the plaintiff was not caused by his disability.  Essentially, he followed the approach adopted by the majority in Purvis v State of New South Wales (HCA) [2003] 217 CLR 92.  He held that section 6 required proof that:

(i)    the plaintiff had been treated less favourably than a person without disability which required a comparison of persons with or without a disability:

“such that the relevant circumstances in the one case are the same, or not materially different, in the other.”  (the comparator question.)

(ii)   that the less favourably treatment was “on the ground of” the plaintiff’s disability (the causation question).

(3)     The learned judge held that the defence under section 11(2) had been established.

(4)     The learned judge held that there had been no harassment.

Background

7.  The plaintiff was 21 and a university student at an overseas university when he took part in the government’s annual AO recruitment exercise for 1997/1998.  According to Ms Lin Hon-ho, Bernadette, the principal assistant secretary for the civil service (administrative service) at the material time, there were 13,626 applicants.  30 of those applicants were offered appointment, of whom 29 accepted the appointment including the plaintiff.  The plaintiff had passed 5 written tests and gone through a 2-day selection interview.  The statistics produced by Ms Lin showed competition for AO posts had always been very keen and that the success rate was less than 0.5% in most years.  In the relevant year, 1997/1998, the success rate was 0.2%.

8.  The learned judge said:

“9.    The employment package of an AO is an attractive one.  In 1998 when [the plaintiff] joined the Government, the monthly salary of an AO was $35,285.  He was also entitled to 31 days of annual vacation leave, free medical and out-patient dental treatment, reduced rates for hospital accommodation, housing benefits upon reaching a certain pay-scale and local education allowances for children.

10.    Each newly recruited AO is provided with an induction training programme which embraces various training modules on a wide variety of subjects, normally including management, law, media skills, language and personal development.  As AOs are required to be capable of taking many different roles and responsibilities in the administration of the Government, to ensure the all-rounded development and versatility, it is the general policy of the Government to require all AOs to be exposed to different areas of work, including those which require skills that the officers may have yet to develop full competency, for training and development.  Hence, AOs on probation are usually given 2 substantive postings of different nature in the 3 years’ period of probation.  The postings may be to a policy or resource bureau, a District Office or a department in the Government.

11.    The AO Grade Management Division of the CSB would monitor and assess the performance of AOs of all ranks through Performance Appraisal Reports.  AOs on probation are normally appraised and reported on by their supervisors once every 6 months for the first 2 years and then once every 4 months for the last year of probation.  The appraising and reporting officer would apply the 25 ‘core competency’ requirements in assessing the work performance of the AOs.  By reason of the versatile nature of the work done by AOs, the ‘core competency’ requirements cover a broad range of knowledge, skills and qualities required in most posts, including leadership quality, communication skill, personal effectiveness, analytical skill, staff and resource management skills and knowledge of work.  Further, the appraising and reporting officer would assess the probationer’s long term potential to reach the directorate ranks in the Administrative Service, and it is the policy of the Government that only those probationers who have displayed all-rounded abilities and clear potential to advance to the directorate ranks would be allowed to pass probation.  Further, probationers would be assessed taking into account their learning curve at different stages of their 3 years of probation.  If a probationary AO is considered to be below the standard required of an AO, a Performance Review Conference (‘PRC’) would be convened with the appraising officers to review the case and to discuss follow-up actions, including the possibility of immediate termination of the employment of the relevant AO.”

9.  Out of all the functional AO posts (of about 500), around 50% were directorate posts, as compared with the civil service as a whole where only about 1% of all posts were directorate posts.  The Administrative Service was described as the linchpin in the operation of the government and played a pivotal role in the governance of the Hong Kong Special Administrative Region. 

10.  Indeed, in the application form for AO signed by the plaintiff, under “Reasons for applying to join the Administrative Officer Grade”, he had written:

“I am most excited about Administrative Officers’ high level of responsibilities early on their career.  No other career offers the same challenges so early.”

11.  In paras. 12 to 37 of the judgment the learned judge summarised the defence evidence on the plaintiff’s performance at HAB and TB. 

12.  Mr John Wan, then the Principal Assistant Secretary, Home Affairs (“Mr Wan”) was the plaintiff’s supervisor at HAB.  The learned judge said:

“13.   … Mr. Wan was not satisfied with the work performance of [the plaintiff].”

13.  According to Mr Gary Poon (“Mr. Poon”), the Assistant Secretary for the Civil Service (Administrative Service) in the Civil Service Bureau (“CSB”), who was responsible for monitoring the performance of AOs during their probation period, in about January 1999, he had a telephone conversation with Mr Wan.  According to his note of the conversation:

“[Mr. Wan] was not satisfied with the performance of [the plaintiff], who seemed to have difficulties to settle in the job.  According to [Mr. Wan], [the plaintiff] was lacking in motivation and was the most inert AO he had ever seen.  He worked very slowly and did not impress as a smart person.  [Mr. Wan] had to coach [the plaintiff] hardly and give him very detailed instructions before [the plaintiff] could deliver.

         ………

[Mr. Wan] said that [the plaintiff] seemed still very unsure of himself.  He must show more motivation, better develop his sense of proportion and think more about his work.  The only strength [Mr. Wan] could find in [the plaintiff] was that when provided with details, he could write them out in a satisfactory manner.”

14.  As a result, Mr Poon met the plaintiff in a career development interview on 26 March 1999, when he told the plaintiff Mr Wan’s comments.  He then referred the plaintiff’s case to his superior, Ms Lin.

15.   In July 1999 Mr Wan requested the CSB to transfer the plaintiff out of HAB.  In Mr Wan’s First Appraisal Report covering the plaintiff from 26 October 1998 to 25 April 1999, he had written:

         “Overall, [the plaintiff’s] performance fell short of the requirements of an Administrative Officer.  He was unable to perform to an acceptable standard on his own or to offer constructive solutions to a problem, I had given him clear directions regarding our objectives and expectations, but he appeared to have problems understanding what was required of him.  In the first few months, he could hardly deliver.  I had to restructure his job in such a way that he could contribute to the team, but even then, his performance had not been up to standard.

         [The plaintiff’s] notable strength is his conviction about his ability to do things his way.  Unfortunately, he has neither the experience nor the skills to get things done.  The result was that he had problems getting the co-operation he needed from his colleagues in departments and other bureau.  Nevertheless, [the plaintiff] could communicate better on paper. ………

         ………[The plaintiff] was not always able to meet deadlines.” (p. 7 of the report)

         “………He appeared slow and even sluggish. ………I have found it difficult to communicate with this young man.  [the plaintiff] told me that his dream job would be one with precedents to follow and where procedures are laid down clearly step by step.  He did not appear to me to be a [focused] or organized person, and I have been unable to motivate him.  He might have great potential, but they must have escaped me.

         There are signs that [the plaintiff] has tried to improve, and one hopes that he would.  [the plaintiff] clearly needs training, on teamwork, interpersonal skills, time management and management generally.” (p. 13 of the report)

16.  The learned judge said:

“17.   Mr. Wan gave Mickey a ‘Grade 5’ for overall performance, which means ‘Performance falls well short of requirements. An unsatisfactory performance which has much room for improvement’, and Mr. Wan was also of the view that Mickey was not yet fitted for confirmation.  The countersigning officer agreed with such appraisal.  Mr. Wan then had an interview with Mickey to discuss the 1^st Appraisal report on 14 July 1999.  In that interview, they discussed the problems faced by Mickey in his work, and they both agreed that a transfer of posting would be beneficial to Mickey in term of his career development.”

17.  In Mr Wan’s second Appraisal Report which covered 26 April 1999 to 29 July 1999 (the 2^nd Appraisal Report) he had written:

“‘During these three months, [the plaintiff] demonstrated signs that he had tried hard to improve his performance.  However, I would have liked him to be more forceful and pro-active in his day to day contact with his counterparts either in government departments or with the [non-government organizations].

His overall performance just fell short of our requirements, but as I said, he was working hard to improve.” p. 7 of the report.

“At this stage, I cannot see his potential. ………” p. 13 of the report.

18.  The learned judge went on to say:

“20.   Mr. Wan gave [the plaintiff] a higher grade, ‘Grade 4’, for overall performance, which means ‘Performance close to fully meeting requirements.  Generally effective, with some room for improvement.’  Mr. Wan was again of the view that [the plaintiff] was not yet fitted for confirmation, with which the countersigning officer agreed.”

19.  On 29 July 1999, the plaintiff was transferred to the TB where he was supervised by Mr Patrick Ho (“Mr Ho”). 

20.  According to the learned judge, the main responsibilities of the plaintiff at TB were:

“(a)    to provide input to and to co-ordinate the efforts of the Transport Department (‘TD’) and other relevant departments to rationalize bus services to solve the congestion problem in the Central Business Districts;

(b)     to examine working papers and proposals of and to attend meetings on the consultancy study on the co-ordination of public transport services with new railways, and to monitor the implementation of the policy to improve the co-ordination of different public transport modes;

(c)     to draft replies to enquires from transport operators and the general public on matters relating to franchised bus services and inter-modal co-ordination, to collate background information for preparation of replies to questions from members of the Legislative Council and briefs and lines to take for the relevant meetings of the Chief Secretary for Administration’s Committee and the Legislative Council Transport Panel;

(d)     to monitor the progress of bus service improvement measures;

(e)     to examine the agenda items for the monthly board meetings of franchised bus companies and to develop recommendations for the Government Directors sitting on those boards in consultation with the relevant colleagues in the TB and the TD;

(f)     to participate in the consultant selection exercise and pre-study preparation for the Consultancy on Trolley Bus Feasibility Study; and

(g)     to perform other duties such as to alternate with the other Assistant Secretaries in the TB in acting as the secretary of the bi-weekly Bureau Directorate Meetings (‘BD Meetings’).”

21.  The learned judge said:

“22.   It is common ground that the workload in the TB by that time was heavier than that in the HAB, and [the plaintiff] and other AOs in the Bureau would usually have to work until late in the evenings and during Sundays.  However, there is no evidence to suggest that the workload there was heavier than that of other bureaus or departments.”

22.  At the HAB,

“12.   … The responsibilities and duties of [the plaintiff] mainly involved the formulation of youth policy of the Government, and his work required constant contacts with the Commission of Youth, the Fight Crime Committee, other Government bureaus and departments and non-Governmental organizations.”

23.  One of the plaintiff’s responsibilities at the TB was to take turn to be the secretary of the BD meetings.  But the plaintiff had difficulty preparing the papers for such meetings, especially, if formatting of documents and preparation of visual presentations such as diagram and charts were involved.  Since his work involved collection and analysis of data about bus routes, which were often presented in visual forms that had caused the plaintiff great difficulty.  Also, he was dissatisfied with his own secretary, whom he regarded as inefficient and prone to make mistakes in typing and preparation of documents.  So the plaintiff sought the assistance from Mr Ho’s own secretary.  When Mr Ho learned about that, he told the plaintiff that it was not desirable for him to do so.

24.  I gratefully repeat the learned judge’s narrative from paras. 25 to 37:

“25.   As [the plaintiff’s] case was identified as one which required close monitoring, Mr. Poon called up Mr. Ho in November 1999 to discuss [the plaintiff’s] progress.  During that telephone conversation, Mr. Ho expressed his dissatisfaction about the work performance of [the plaintiff].  With that comment, Mr. Poon noted in the file that [the plaintiff’s] case required close monitoring in the future.

26.    Mr. Poon was posted out of the CSB in March 2000, and his successor was Mr. Tony Cheng (‘Mr. Cheng’) who happened to have worked under Mr. Ho previously in the Constitutional Affairs Branch.

27.   In April 2000, Mr. Ho approached Mr. Cheng expressing his disappointment of [the plaintiff’s] work performance at the TB.  On 11 April 2000, Mr. Cheng had a meeting with [the plaintiff] to discuss such issue.  One of the subjects of discussion was the difficulties faced by [the plaintiff] in his work.  Mr. Cheng also warned [the plaintiff] that if his performance did not improve, a PRC might be held and recommendation might be made for the termination of his employment.  It was also decided that [the plaintiff] would be put under observation for a period of one month, and if his performance did not improve by the end of that period, his employment with the Government might be terminated.  Further, Mr. Cheng asked him to submit a performance improvement plan in a week’s time.  Apart from the aforesaid, the contents of the conversation are matters of some dispute. 

28.   On 17 April 2000, [the plaintiff] had another meeting with Mr. Cheng to discuss [the plaintiff’s] work performance.  During the meeting, Mr. Cheng shared with [the plaintiff] his own experience of taking 3 months of sick leave as a result of work stress.  Apart from that, there is again dispute between the parties as to the contents of the conversation at that meeting.

29.    After the completion of the observation period of one month in mid-May 2000, Mr. Ho was again not satisfied with the work performance of [the plaintiff].  Mr. Cheng duly reported the matter to his supervisor, Ms. Linn, and they both agreed to convene a PRC in respect of [the plaintiff’s] case.

30.    On 23 May 2000, Mr. Ho completed a performance appraisal report of [the plaintiff’s] performance in the TB covering the period from 29 July 1999 to 28 January 2000 (‘the 3^rd Appraisal Report’).  In this report, Mr. Ho made the following comments about [the plaintiff’s] work performance:

‘[The plaintiff] is a diligent officer who worked long hours and stayed up late in the office.  However, he was unable to put the time and efforts spent to good value.  He took very long response time to act on each assignment, including simple tasks like routine updating based on previous proforma reports.  He was absent-minded and very often failed to meet deadlines despite repeated reminders, irrespective of whether the deadline was a matter of days or weeks.  He was poor in organization and time management and very often he was unable to work in accordance with the set priorities. ……..

At times, [the plaintiff] showed inability to grasp the policy objectives of certain initiatives/measures.  He required frequent and detailed coaching to help him understand his role.  He spent too much time on operational and clerical tasks and his work lacked intellectual quality.  On the other hand, he seldom approached his supervisor or senior officers for advice/steer even in doubt.  And he was not always able to deliver even with detailed guidance.  At times, he simply failed to follow up on actions required.

[The plaintiff] is a very quiet man.  He did not quite blend with his colleagues in the Bureau and the Department.  He kept his own thoughts and had little communication with others.  Also, he had difficulty in expressing his ideas clearly whether orally or in writing.  Quite often, this resulted in wasted efforts of himself and his colleagues.  On the other hand, he needed to be more thorough in his background and research work.  He also needed to develop positive thinking in problem solving.’ (p. 7 of the report)

31.    Like Mr. Wan in the 1^st Appraisal Report, Mr. Ho gave [the plaintiff] a poor ‘Grade 5’ for his overall performance, which means ‘performance falls seriously short of requirements’.  Mr. Ho was also of the view that [the plaintiff] was unlikely to become fitted for confirmation to the Administrative Grade.

32.    As Ms. Linn and Mr. Poon recommended to convene a PRC in respect of [the plaintiff’s] case, a report was then made to Ms. Anissa Wong who was by that time the Deputy Secretary for the Civil Service and the supervisor of Ms. Linn.  In support of such recommendation, a written submission in the form of a memo was prepared by Mr. Cheng and Ms. Linn on 25 May 2000.  After outlining the complaints by [the plaintiff’s] 2 supervisors, Mr. Cheng wrote the following in the said memo:

‘9.     ……[The plaintiff] felt very stressful in the past few months: could not sleep well, always feeling tired and could not concentrate at work …… Recently, he has stomach ache, cold and flu.  From all these, it is obvious that he is under severe stress.

10.    As reflected in his detailed appraisal reports, there is no doubt that [the plaintiff’s] performance falls well short of requirements for a probationary AO.  His weakness were identified at a very early stage and intensive coaching and guidance have been given by his supervisors and the grade management.  While he did show some eagerness to try to improve, there is regrettably no indication that he has the ability to do so.  His non-performance has adversely affected his teammates and also the work in TB.  It is apparent that he is now under severe stress and it is not known how much longer he can stand.  In view of these factors, it will be in the interest of the grade and [the plaintiff if he] leaves the grade, the earlier the better.  As this is a case of non-performance as a result of lack of ability rather than disciplinary recourse, it will be more appropriate to give one month notice instead of one month salary for termination.

………

13.    Having considered all the above factors carefully, I recommend that:

(a)  [The plaintiff’s] appointment be terminated with one month notice;

(b)  We explain to [the plaintiff] explicitly the option of resignation;

………’

33.    Before the PRC, Ms. Anissa Wong had consulted Mr. Lam Woon Kwong (‘Mr. Lam’), who was then the Secretary for the Civil Service, about [the plaintiff’s] case.  Ms. Wong informed Mr. Lam about the poor comments by [the plaintiff’s] 2 supervisors and the likelihood of a recommendation for the termination of [the plaintiff’s] employment.  Mr. Lam endorsed the assessment and the convening of the PRC.

34.    On 26 May 2000, the PRC was held to discuss [the plaintiff’s] case.  It was attended by Ms. Anissa Wong who was the convenor of the PRC, Ms. Linn, Mr. Cheng, Mr. Wan and Mr. Ho.  During the conference, Mr. Wan and Mr. Ho expressed their dissatisfaction about the work performance and ability of [the plaintiff].  After the discussion, the participants of the conference recommended to terminate [the plaintiff’s] employment.  In fact, para. 6 of the notes of the PRC summarizes the recommendation as follows:

‘The Conference considered that the nature of [the plaintiff’s] two postings were typical for AOs and that the extent of supervision which [the plaintiff] received should be comparable to that of his peers.  Judging from the oral and written feedback received, [the plaintiff’s] performance fell well below the standards required of a probationary AO.  There were consistent problems with both his abilities and personality.  Despite close supervision and repeated counseling, he failed to make any improvement and there was little prospects of him improving in the foreseeable future, whether he stayed in the same posting or was to be transferred elsewhere.  Hence, the Conference recommended that his service should be terminated.’

35.    After the conference, [the plaintiff] was interviewed by Ms. Anissa Wong, Ms. Linn and Mr. Cheng.  There is again dispute about the contents of the conservation in that interview, but it is common ground that the CSB officers informed [the plaintiff] that the Government was going to terminate his employment as a probationary AO, and it would be in the interest of [the plaintiff] to tender the resignation himself.  After the interview, [the plaintiff] was given time to consider his options.

36.    In the morning on 2 June 2000, [the plaintiff] was not in the office and Mr. Cheng tried to contact him repeatedly by phone.  After arriving at the office in the afternoon, [the plaintiff] tendered his resignation letter indicating that the effective date of his resignation was 2 July 2000.  Later on 12 June 2000, [the plaintiff] sent another letter to the CSB requesting to change the effective date of his resignation to 5 July 2000.  Around that time, [the plaintiff] sought treatment from a psychiatrist Dr. Peter Yu.  [the plaintiff] received from Dr. Yu 2 certificates recommending sick leave from 15 to 28 June 2000.  The diagnoses in the 2 certificates were ‘anxiety disorder’ and ‘anxiety state’ respectively.  On 26 June 2000, [the plaintiff], relying on such certificates, applied for sick leave from 6 to 20 July 2000.  On the same day, [the plaintiff] sent another letter to the CSB requesting to change the effective date of his resignation to 25 July 2000.  Both requests were denied by the Government.

37.    [The plaintiff’s] last day of work was 27 June 2000, though he formerly left the Government on 12 August 2000 because of his leave entitlement.”

25.  The plaintiff had had 7 jobs after leaving the government in about 6 years.  In relation to them, the learned judge said:

“39.   [The plaintiff] was able to obtain good reference letters from 2 of his employers, Consulting Company A and Non-Governmental Social Services Organization D.  However, [the plaintiff] experienced difficulty in the last 2 employments.  According to him, he had problems in preparing visual presentations for the clients of his employers and his supervisors became frustrated.  [The plaintiff] claims that after his supervisors had learnt about his disabilities, they were not understanding and were even hostile to him.  As a result of such alleged discriminatory conducts, he had to quit both jobs.  At the time of the trial, [the plaintiff] was unemployed.”

Medical evidence

26.  The learned judge had the benefit of the evidence from eminent experts on both sides.  The evidence of Professor Peter Lee, a clinical psychologist engaged by the government was summarised by the learned judge as follows:

“(i)     [The plaintiff] is a person of relatively high intelligence;

(ii)     there is a marked discrepancy between [the plaintiff’s] verbal and non-verbal intelligence, and [the plaintiff] performs poorly on tasks involving visual scanning, perceptual details and tasks requiring ability to see and to assemble whole concept or pictures from their individual parts;

(iii)     [The plaintiff’s] verbal learning and memory functions are normal but his non-verbal learning and memory functions are remarkably weak;

(iv)    [The plaintiff] has difficulty in performing tasks without specific instructions;

(v)     [The plaintiff] has difficulty in making decisions under pressure; and

(vi)    [The plaintiff] is prone to anxiety.”

27.  Professor Lee was unable to offer an explanation for the deficiency identified in (ii) and (iii) above.  However, Professor Felice Lieh-Mak, the psychiatrist engaged by the plaintiff, described the deficiency as “visual short-term memory deficit”.  All the experts agreed that the plaintiff had suffered from such deficiency:

“42.   … long before he joined the Government, though [the plaintiff] was somewhat able to compensate such deficit by various means, for example, avoiding choosing academic subjects or assignments which involved a lot of visual presentations.”

28.  The following passages from the judgment are relevant:

“44.   [The plaintiff] also had problem in motivating others to work, for examples, in obtaining the necessary information from the TD and in supervising his own secretary to carry out the work.  It seems that such kind of problem was caused by [the plaintiff’s] poor working ability rather than by any of his disabilities.

45.    Dr. Benjamin Lai, another psychiatric expert engaged by [the plaintiff], is also of the view that [the plaintiff] has obsessive compulsive personality traits, which include tendency towards perfectionism, excessive suppression of emotion, obsession with details and excessive devotion to work.  Although it is pleaded as some kinds of disability in the Re-Amended Particulars of Claim, I consider that these traits are not disabilities by themselves but only a reflection of [the plaintiff’s] personality.

46.    However, the problem escalated when [the plaintiff] started to suffer from a psychiatric or psychological disorder known as GAD or adjustment disorder.  [the plaintiff’s] experts, Dr. Lai and Professor Lieh-Mak, are of the view that [the plaintiff] was suffering from GAD, while the Government’s experts, Professor Lee and Dr. Chung See-yuen, make the diagnosis of adjustment disorder.  As I see it, the difference lies on the different interpretation and application of the diagnostic criteria of the two leading guides to the classification of mental and behavioural disorder known as ‘DSM-IV’ and ‘ICD-10’.  However, so long as all the medical experts agree that both kinds of disorder can be regarded as a psychiatric or psychological illness, it is not necessary for me to make a specific finding as to whether [the plaintiff] was suffering from GAD or adjustment disorder when he worked in the Government.

47.    There is an issue, however, as to when [the plaintiff] started to suffer from such psychiatric disorder.  The problem arises because even a person free from disability but working under stress may display symptoms associated with such disorder, and so it is not easy for the experts to tell whether the anxiety suffered by someone exceeds the threshold of becoming an illness.  All the medical experts agree that the diagnosis of such disorder would depend on the durations, frequencies and severities of the symptoms.  [the plaintiff’s] expert, Dr. Lai, after reviewing [the plaintiff’s] account of the events, is of the view that the psychiatric illness had an ‘insidious onset’ in 1999.  Towards the end of 1999 and in the first half of 2000, his psychiatric illness had worsened to a degree that his thought process, emotion and judgment were affected.  Obviously, the experts’ diagnoses of the disorder would depend on the subjective complaint of [the plaintiff] about the symptoms, and so ultimately when he first started to suffer from the illness would depend on the creditability of his evidence.  However even based on [the plaintiff’s] own case, it seems that he was only suffering from the psychiatric disorder to the extent of affecting his work performance and judgment in the end of 1999 and the first half of 2000.

48.    [The plaintiff’s] another expert, Professor Lieh-Mak, is of the view that [the plaintiff] had symptoms of the GAD way back in 1995, but it was probably in December 1998 that [the plaintiff’s] anxiety passed the threshold to become a disorder.  Dr. Chung, however, is of the opinion that [the plaintiff] might have suffered from psychiatric disorder in 2000.

49.    As I see it, all the medical experts agree that there were a number of factors interacting with each other causing [the plaintiff] to develop the psychiatric disorder.  These factors include: (i) the specific weaknesses in his cognitive functioning; (ii) his personality; (iii) his proneness to anxiety; (iv) the difficulties and the pressure encounter by him in his work; and (v) the tension with his supervisor, and it is difficult to isolate the effect of a particular factor in contributing to the development of the disorder.  However, as his work at the HAB was less affected by his cognitive weaknesses and the workload by that time was not particularly heavy, I am more inclined to accept the opinion of the majority of the experts that [the plaintiff’s] anxiety had not passed the threshold of being a disorder until mid-1999 when [the plaintiff] started to work at the TB.  In any event, it is clear from the medical evidence that [the plaintiff] was not suffering from any psychiatric or psychological illness in the first few months when he worked in the HAB in 1998.

50.    Since leaving the Government, [the plaintiff] continued to receive psychiatric treatment except for the period between mid-2001 and early 2004.”

29.  The plaintiff’s complaint of discrimination and harassment included complaints of Mr Wan’s hostility towards him as well as Mr Ho.  He also complained about Mr Poon.

30.  According to Mr Poon, during his meeting with the plaintiff, the plaintiff:

“59.   … mentioned that he would like to have a schedule with more well-defined tasks, but Mr. Poon told him that such job expectation was unrealistic in the working environment of an AO.”

Mr Poon made a note on 7 July 1999:

“A worrying case, and [Principal Assistant Secretary] and [Assistant Secretary (Administrative Service) 1] have been informed.  [the plaintiff] appeared to have some problems in his working attitude and his adaptation to the working environment.  There was also room for improvement in his social skills.  He must acquire a better grasp of his role as an [Assistant Secretary] and seek improvement as quickly as possible.  Otherwise, he would have to be further counseled and could be a possible case for [performance] review conference.”

The plaintiff’s complaints

31.  The plaintiff’s complaints were dealt with by the learned judge in paras. 52-107 of the judgment.  The plaintiff had given evidence over 6 days at trial.  The learned judge’s assessment of the factual evidence can be found in paras. 108-134.  He made the following findings of fact:

“133. ……

(i)      the appraisals in the various reports were genuine assessments of the work performance of [the plaintiff];

(ii)     the ‘symptoms’ of [the plaintiff’s] disabilities were limited to the ones mentioned in the various documents, including the appraisals reports and memos, prepared by the relevant Government’s officers and in their testimonies;

(iii)     various Government’s officers who had dealings with [the plaintiff] genuinely and subjectively did not know that [the plaintiff] was suffering from any disabilities when the latter was working as an AO in the Government;

(iv)    although Mr. Wan and Mr. Ho might at times be frustrated with the poor work performance of [the plaintiff] and expressed their dissatisfaction, they had not been hostile to [the plaintiff] in the manner as alleged by him; and

(v)     the CSB officers had not been hostile to [the plaintiff] and they had not misled [the plaintiff] in any way.”

32.  Mr Harris SC who appeared for the plaintiff submitted the learned judge was wrong to have rejected the plaintiff’s evidence on the basis of his findings in paras. 112 and 113.  There, the learned judge said:

“112. Despite [Mr Harris’] submission, I myself have grave reservation about the reliability of [the plaintiff’s] evidence.  According to my observation, [the plaintiff] has an obsession that the termination of his employment was the fault of his 2 supervisors and the CSB officers who had handled his case, and as a result his evidence becomes very biased, and a lot of his evidence is very much his own subjective perception of the events without the support of any factual evidence.  In such circumstances, it is very dangerous for the court to rely on his testimony.

113.  Perhaps I should elaborate on the reasons why I say so.  As I see it, [the plaintiff] is very critical about the temperament of his 2 supervisors when he worked as an AO, and he always queries the reasonableness of his supervisors’ instructions.  After leaving the Government, he took up 7 jobs in a period of 6 years, and he makes similar comments about at least 2 of his supervisors in the post-Government jobs.  He is always obsessed with the idea that there was certain conspiracy against him, and he always interprets the conducts on the part of his supervisors and the CSB officers as unfriendly without proper justification.”

33.  Later in his judgment he said:

“122. Further, I find it increditable that [the plaintiff] is able to recall all the minute details of the various incidents about 6 to 8 years ago.  Although [the plaintiff] is an intelligent young man and he has an obsession with details, he always has something new to add every time when he is asked about a particular incident.  In fact, some of these details are obviously crucial to the issues of the case, and one would wonder why [the plaintiff] had not listed out such details in his witness statements in the first place.  In my judgment, [the plaintiff] has exaggerated his evidence at trial with a view to substantiate his case.

123.  Another factor which may affect the reliability of [the plaintiff’s] evidence is [the plaintiff’s] obsession that he was medically unwell when he worked as an AO.  With all the knowledge of the disabilities subsequently gained from the various medical reports, it would be quite easy for [the plaintiff], either consciously or unconsciously, to exaggerate his symptoms and conditions with the benefit of such hindsight.  Indeed, if the symptoms were so obvious by that time, why did [the plaintiff] not tell the symptoms to his own doctor? The facts reveal that [the plaintiff] had consulted his doctor, Dr. S. F. Fung, for more than 10 times between January and June 2000.  He did not mention to Dr. Fung any of the symptoms that he now relies on except upper respiratory tract infection, epigastric pain, sore throat, runny nose and coughing, and Dr. Fung was not alert enough to treat [the plaintiff’s] condition as anything more than flu or upper respiratory tract infection or asthma.  Further, [the plaintiff] did not raise with Dr. Fung complaints about poor concentration and feeling stressful until 5 June 2000 which was after his resignation.  Even then, he just mentioned these 2 and not other ‘symptoms’, and he told his doctor that he had suffered such symptoms for over a month, and not for about 2 years as alleged by him in his evidence.  Hence, the ‘symptoms’ could not have been obvious by that time.”

34.  Mr Harris submitted that the fact that the plaintiff appeared to have near photographic recall of some incidents long ago does not mean that his account of them must be made up.  Mr Harris also submitted that there is a clear difference between a person who puts the worst gloss on events because of a conspiracy theory, and a person who is deliberately lying.  But, with respect, I do not believe that was the basis of the learned judge’s assessment of the plaintiff.

35.  Mr Harris had applied for leave to adduce new evidence to show that the plaintiff was able to exactly recall events which occurred in February 2006.  But the application was not pursued when it became obvious that none of the Ladd v Marshall conditions was satisfied. 

36.  Mr Harris complained that that the learned judge had failed to make certain findings, for example, whether or not the plaintiff was invited to consider undergoing counselling at a meeting with CSB staff on 26 May 2000.  This, according to Mr Harris, goes to the point whether:

“… the Defendant was at that date aware of the possibility that, the Plaintiff was suffering from a psychiatric disorder.”  Amended Grounds of Appeal para. 3(d)

Mr Harris submitted that the learned judge has not commented on the fact that the senior official chairing the meeting, Ms. Anissa Wong, accepted in cross-examination that, at the time when she was said by the Plaintiff to have referred to counselling, CSB was involved in introduction of an experimental counselling programme for civil servants, of which she was aware.  Mr Harris submitted Ms Wong stated in chief that she did not recall whether she mentioned counselling. It was her subordinates, Ms. Bernadette Lin and Mr. Tony Cheng who positively denied that it was mentioned.  However, Mr Harris said Ms. Lin had conceded in cross-examination that she was not absolutely certain.  So Mr Harris submitted:

“9.     It follows that either (i) counselling was mentioned but only the Plaintiff, to whom it was suggested, recalls this; or (ii) it was not mentioned, the reference has been invented by the Plaintiff to bolster his case, and the fact that CSB was working on an experimental counselling scheme at the time was a coincidence. The balance of probabilities must favour the former possibility. For the Plaintiff to have invented the reference to counselling would show a degree of deviousness on his part for which there is no other evidence.”

37.  But it is clear from Ms Lin’s evidence that if counselling had been mentioned at the meeting it would have been recorded in the minutes.  Naturally she could not rule out the possibility that it had been said but was not minuted, but her evidence at T594 was that:

“A.    … if that utterance was said, of course it would appear in our record in the file because it would be a rather important record.”

38.  Another complaint was that the learned judge had failed to consider whether or not the complainant had said in the same meeting that his poor health condition caused him difficulties concentrating at work, as stated by the complainant in his evidence (T. 344B).  But that was said by the plaintiff during cross-examination and it was put to him by Ms Wong for the defendant that the exchange had not taken place. 

39.  I do not believe the learned judge could be faulted for not dealing with either matter specifically in his judgment.  Such evidence depended on the credibility of the plaintiff, the learned judge had dealt with that amply. 

40.  Mr Harris also submitted that the learned judge was wrong not to have accepted Professor Felice Lieh-Mak’sevidence that it should have been evident to the complainant’s colleague that he had a psychiatric condition.  I do not agree.  Professor Lieh-Mak’s evidence depended on what the complainant had told her (which she had to accept) and not what might actually have happened.  I refer to para. 123 of the judgment which I have quoted in para. 33 above.

41.  I hope I could be forgiven for not dealing with Mr Harris’ submission against the learned judge’s findings of fact at greater length.  The credibility of witnesses, the weight of the evidence and the preference of the evidence of one witness for that of another are matters for the trial judge.  We cannot interfere save where we are satisfied that the finding is plainly wrong.  Ting Kwok Keung v Tam Dick Yuen & Others [2002] 5 HKCFAR 336.  Far from being satisfied that the learned judge was plainly wrong, I am of the respectful view that he was plainly right.

Discrimination

42.  Section 6 covers both direct and indirect discrimination.  Mr Harris relied on both at trial.  But, before us, he relied solely on direct discrimination.  Direct discrimination is covered by section 6(a) which provides that –

“A person discriminates against another person … if -

(a)     on the ground of that other person's disability he treats him less favourably than he treats or would treat a person without a disability;”

Section 8 deals with the “Comparison of cases under section 6” and it provides:

“A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

43.  These provisions are similar to the provisions in The Australian Commonwealth Disability Discrimination Act 1992 (“DDA (Aust.)”).  Section 5 of DDA (Aust.) provides:

“5      Disability Discrimination

(1)     For the purposes of this Disability Discrimination Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)     For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”

There is not the equivalent of section 5(2) in section 8 of DDO, but that difference is immaterial for the purpose of this appeal. 

44.  The leading case in Australia is Purvis v State of New South Wales (HCA) [2003] 217 CLR 92.  Purvis was concerned with a teenage schoolboy who had suffered from behavioural problem which included behaving violently towards others.  The Human Rights and Equal Opportunity Commission upheld a complaint that he had been discriminated against by the State of New South Wales by being treated less favourably in his education and by his suspension, and later, exclusion from a State school by its principal, on the ground that his violent behaviour towards staff and other students resulted from his disability.  The Federal Court set aside the decision and a Full Court of the Federal Court dismissed the appeal.  On appeal to the High Court, the appeal was dismissed by a majority, Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ, McHugh and Kirby JJ dissenting. 

The majority was of the view that the principal focus of DDA 1992 was on ensuring equality of treatment.  That is also the principal focus of section 6 of the DDO as is evident from its language:

“he treats him less favourably”. [Emphasis added]

45.  I am also of the view that as a matter of plain construction, section 6(a) and section 8 require the court to compare the treatment of the complainant with the treatment of a suitable comparator (the “comparator” question) and in the event that less favourable treatment is established the court should decide whether the less favourable treatment was given “on the ground” of the complainant’s disability (“the causation question”).  The comparison under section 8 “shall be such that the relevant circumstances in the one case and the same, or not materially different, in the other.”  The comparator question and the causation question are separate questions.  As Gummow, Hayne and Heydon JJ said:

“231  … The answer to the question presented by treatment ‘because of’ disability does not determine the separate, comparative, question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?”

46.  The difference between the majority and the minority in Purvis on the comparator question turned essentially on what should be regarded as the “relevant” attributes of the comparator.  The minority was of the view that:

“134. … the appropriate comparator is not a student with behavioural problems”.

47.  In Gleeson CJ’s forceful rejection of that view he said if that were so:

“[12] … the comparison required by the Act is purely formal. If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same.”

48.  Gleeson CJ had said earlier:

“11.   … It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.”

49.  Gummow, Hayne and Heydon JJ in their judgment said:

“222  It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the ‘circumstances’ to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

         In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disable.  The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

         The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.”

50.  With respect, I agree with the views expressed by Gleeson CJ and Gummow, Hayne and Heydon JJ. 

51.  Mr Harris submitted that Purvis might have been rightly decided but that its reasoning in comparing a disabled person with an able-bodied person behaving in the same way is fallacious, because, as he submitted, a deaf person whose hearing aid occasionally broke down so that he had to stop work could be lawfully required to leave because a hearing person would be required to leave for stopping work for the same period.  With respect, that is not a valid comparison.  A hearing person who stopped work for the same period for no reason at all is not an appropriate comparator. 

52.  Further, the deaf person in Mr Harris’ example may be protected by section 9 which provides that:

“… a discriminator discriminates against another person on the ground of that other person's disability if the discriminator treats that other person less favourably because of-

(a)     the fact that other person is accompanied by, or possesses a palliative or therapeutic device or auxiliary aid that is used by that other person; or

(b)     any matter related to that fact …”

If he is dismissed because of the temporary failure of his hearing aid, I believe that would be covered by section 9(b).  I might add that although section 9 uses the expression “less favourably”, unlike section 6, no comparison under section 8 is required.  Section 10 which covers the fact that a disabled person might need “interpreters, readers and assistants” is similar in effect to section 9.

53.  I should also mention section 6(b) which deals with indirect discrimination.  It requires the employer to justify the application of a condition or requirement to a person with a disability in relation to which:

“(i)     … the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;”.

Section 6(b) will be engaged if the employer requires compliance with a requirement or condition which is not justifiable:

“(ii)    … irrespective of the disability or absence of the disability of the person to whom it is applied;”

The mere application to a disabled person of such a requirement or condition is sufficient unless it can be justified.  Again, no comparison under section 8 is required.

54.  These provisions (section 6(b), 9 and 10) reinforce my view that the interpretation adopted by the majority in Purvis is correct.

55.  McHugh J and Kirby J in their minority judgment said:

 “130        … But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment. And loss of the Act's protection would not be limited to such dramatic cases as the blind and amputees. Suppose a person suffering from dyslexia is refused employment on the ground of difficulties with spelling but the difficulties could be largely overcome by using a computer with a spell checker. The proper comparator is not a person without the disability who cannot spell. Section 5(2) of the Act requires the comparison to be between a comparator without the disability who can spell and the dyslexic person who can spell with the aid of a computer that has a spell checker. When that comparison is made the employer will be shown to have breached the Act unless it can make out a case of unjustifiable hardship as defined by s 11 of the Act.”

56.  With respect, I cannot agree.  In any event, I believe the blind and the amputee are covered by sections 9 and 10 of the DDO (sections 7 and 8 of DDA (Aust.)) which make it discriminatory to treat a person less favourably because of any matter relating to the fact that the employee is accompanied by or possesses a palliative or therapeutic device etc.  As for the dyslexic, I cannot believe that the spell check function is not standard to most softwares or that any person would be dismissed for not being able to spell.  The employee would have to be dyslexic, not have a spell check, and be in a job which requires good spelling before such a problem can arise.  But then, since the employee complains of disability discrimination he must know that his inability to spell is the result of dyslexic.  That being the case he would only be unfairly treated if notwithstanding such knowledge no spell check was provided by the employer.  In such a case, one would expect the employee to have a spell check (a possible section 9 case) or the employer will supply one otherwise the employer will fall foul of section 6(b).  With respect, I do not agree:

“130  the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person are to be attributed to the comparator.”

57.  Mr Harris submitted that the court should interpret the DDO so far as possible to conform with the Basic Law and the Bill of Rights.  I agree.  The true purpose and limits of DDO must be ascertained by a faithful construction of the relevant provisions.  Mr Harris has also referred us to the United Nations Convention of the Rights of Persons with Disabilities which became applicable to Hong Kong on 31 August 2008. Leaving aside the fact that we are concerned with events prior to 31 August 2008, it is important to note that such and other international instruments are statements of aspiration.  Here, I wish to echo what Mummery LJ said in Clark v. TDG Ltd t/a Novacold Ltd [1999] IRLR 318, namely, that there is not:

“… an easy way of achieving a sensible, workable and fair balance between the different interests of disabled persons, of employers and of able-bodied workers, in harmony with the wider public interests in an economically efficient workforce, in access to employment, in equal treatment of workers and in standards of fairness at work …”

How the balance should be struck is pre-eminently the responsibility of the legislature.  I do not believe either the Basic Law or the Bill of Rights require me to interpret the relevant provisions in DDO otherwise than in accordance with I perceive to be their plain meaning.

58.  Mr Harris also relied on Clark in support of his submission that the minority view in Purvis should be preferred.  I do not believe Clark assists Mr Harris.  There, the English Court of Appeal was concerned with section 5 of the Disability Discrimination Act 1995, before it was amended by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673.  At the time, section 5(1)(a) provided:

“(1)   For the purposes of this Part, an employer discriminates against a disabled person if —

(a)     for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;” [Emphasis added]

59.  As the judgment of Mummery LJ (with the concurrence of the other members of the court) made clear, the decision turned on the interpretation of “that reason”.  There, it was contended on behalf of Novacold:

“56.   … it refers to the whole of the first clause of the paragraph. … On this approach, the person to whom ‘that reason’ would not apply would be one who, like the disabled person, is incapable of performing the main functions of his job, but for a reason which does not relate to disability. …”

60.  On the other hand, Mr Clark contended that:

“57.   … ‘that reason’ refers only to the first three words of the paragraph - ‘for a reason’. … On this interpretation, the others to whom ‘that reason’ would not apply are persons who would be capable of carrying out the main functions of their job. Those are the ‘others’ proposed as the proper comparators. …”

61.  Although Mummery LJ regarded section 5(1)(a) as ambiguous linguistically, after noting that:

“60.   … The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the ‘reason’ for the treatment of the disabled employee and the comparison to be made is with the treatment of ‘others to whom that reason does not or would not apply’. The ‘others’ with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons ‘to whom that reason does not or would not apply’.”,

he preferred Mr Clark’s contention.

62.  It is clear that Clark turned on the interpretation of provisions which are materially different from those under consideration in this appeal.

Causation

63.  The question is whether the person with the disability has been so treated “on the ground of “ his disability.  As Gummow, Hayne and Heydon JJ said:

“236  … the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.”

Knowledge actual or constructive

64.  The learned judge regarded knowledge of the disability to be critical to causation.  He said:

“170. However, if the alleged discriminator was not aware of the prohibited ground of discrimination, for example someone was suffering from a disability, then whatever treatment received by the alleged victim, it cannot be said that the same was made on the ground of that person’s disability.  That is simply against the plain meaning of the words ‘on the ground of’ in our s. 6(a).”

65.  Since he found on the facts that the government’s officers were genuinely not aware of the complainant’s disabilities, the complainant:

“173. … would have great difficulty in passing the ‘causation’ test.”

66.  He went on to say:

“174. … If the employer was not aware of the disability, the employer’s decision for a particular treatment would not have in any way been influenced by the disability of the employee.  The decision is not a ‘coloured’ decision, and so why should the employer be liable?”

67.  Disability is defined in section 2 as follows:

“(a)    total or partial loss of the person's bodily or mental functions;

    (b)    total or partial loss of a part of the person's body;

    (c)    the presence in the body of organisms causing disease or illness;

    (d)    the presence in the body of organisms capable of causing disease or illness;

    (e)    the malfunction, malformation or disfigurement of a part of the person's body;

    (f)     a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

    (g)    a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour,

    and includes a disability that-

    (i)     presently exists;

    (ii)    previously existed but no longer exists;

    (iii)   may exist in the future; or

    (iv)   is imputed to a person;”

68.  The definition in DDO is virtually the same as the definition in DDA (Aust.).  As was explained by Gummow, Hayne and Heydon JJ the separate paragraphs of the definition have overlapping operation.  Here, as in Purvis, we are primarily concerned with (g), in respect of which, they said in Purvis:

“212  … to focus on the cause of behaviour, to the exclusion of the resulting behaviour, would confine the operation of the Act by excluding from consideration that attribute of the disabled person (here, disturbed behaviour) which makes that person ‘different’ in the eyes of others. …”

69.  It is also relevant to note that the definition is largely descriptive.  It does not require identification of the disability as a disability.  In the case of a person who cannot spell and who is dismissed for that reason (assuming that the comparator test is satisfied), it does not matter that the employer was not aware that the employee suffers from dyslexia.  Nor that the employee himself was unaware of that fact.  In the case of the disturbed behaviour, the result of:

“(g)    a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment …”

provided the employer has treated him the employee less favourably because of such disturbed behaviour, I do not believe section 6 requires knowledge, actual or constructive on the part of the employer that the disturbed behaviour was the result of “a disorder, illness or disease” or that the disturbed behaviour was itself a disability within the meaning of section 6.  As I have said, in para. 44 above, the principal focus on section 6 of DDO is on ensuring equality of treatment.  Why should that depend on the knowledge of the employer?  If there has been unequal treatment, why should liability depend on whether the employer was consciously unfair?  As noted above, two questions are involved under section 6, the comparator question and the causation question.  If the treatment is unfair and the comparator question is answered in favour of the complainant, I cannot accept liability on the part of the employer should depend on whether he was consciously unfair. 

70.  Once it is accepted that section 6 involves the two questions, by the time one comes to the causation question one is dealing with cases where the complainant has been treated unequally.  No legislative purpose would be served by requiring as a condition to liability that the employer should be consciously unfair. 

71.  I will deal briefly with the authorities discussed in the judgment.  X v McHugh, Auditor-General for the State of Tasmania [1994] EOC 92-623 is a digest of the judgment of the Human Rights and Equal Opportunity Commission (“HREOC”) a case where facts were as the judge said, very similar to those in the present case.  It is however, unnecessary for me to relate the facts.  The relevant passage has been quoted by the learned judge in para. 194 of the judgment:

“The respondent may well feel aggrieved that there should now be an attempt to hold him accountable for conduct which lacked deliberate intention on his part at the time.  But that is not the test.  Intention or motive is not required, as the High Court has said.  The objective of the [DDA (Cth)] is to eliminate, so far as possible, discrimination against persons on the ground of disability in areas of public life; it therefore proscribes, not merely deliberate discrimination, but thoughtless discrimination as well.  Employers are required to be vigilant in their regard for circumstances affecting the interest of their employees.  I agree, at least in the circumstances of this case, with the interpretation of the [DDA (Cth)] advanced by Counsel for the respondent, namely, that s. 5 is about objective discrimination.  It is not necessary that an employer know of the existence of the disability.  It is enough if an employer is shown to have discriminated because of a manifestation of a disability.” (emphasis added)

72.  It can be seen from the emphasis added by the learned judge that he regarded the last sentence “It is enough if an employer is shown to have discriminated because of a manifestation of a disability” to be important.  I agree that it is important.  It is important because the “manifestation of a disability” comes within the definition of disability itself.  Knowledge of the manifestation of a disability is knowledge of disability itself.  It should be noted that such knowledge is also important to the comparator question.  Because unless one can identify the reason why a person was treated in a particular way, it would not be possible to make a meaningful comparison. 

73.  The learned judge also referred to the decision of the Australian Capital Territory Administrative Appeals Tribunal in Re Prezzi & Discrimination Commissioner and Quest Group Pty Ltd [1996] 39 ALD 729, where the tribunal offered this explanation of the decision in McHugh:

“ …… Where the impairment is due to some psychological or psychiatric condition, the manifestations of the impairment are less likely to point to the existence of impairment.  Where the manifestations of an impairment are the necessary consequence of the impairment, then to treat a person unfavourably because of the manifestations means that the person is being treated unfavourably because of the impairment.  This would seem to be the reasoning behind the statement in [X v McHugh] that ‘It is enough if an employer is shown to have discriminated because of a manifestation of a disability’.  Indeed, this was the very issue in [X v McHugh], since the employer did not know that the complainant was a paranoid schizophrenic.  The employer did, however, have a report by the complainant’s doctor which stated that the complainant suffered from a serious medical condition and that this condition contributed greatly to any relationship and interpersonal problems suffered by the complainant.  To that extent, the statement that ‘It is not necessary that an employer know of the existence of the disability’ may not have been necessary for the decision.”

74.  In Prezzi, the complainant was suffering from certain psychological impairment. Quest was engaged to find work for persons who had been unemployed for a long time, of which the complainant was one.  The complainant made abusive telephone calls to the staffs of Quest and made it clear that she would not cooperate with Quest in seeking work.  Quest had difficulty placing the complainant in employment and referred her back to the Commonwealth Employment Service (“CES”). The complainant claimed that Quest had discriminated against her by reason of her impairment.  The Administrative Appeals Tribunal dismissed the complaint as unsubstantiated, as there was no evidence to show that, when Quest referred the complainant back to the CES, it was aware or should have been aware that the complainant was suffering from a psychological impairment, nor did it base its action on a perception that the complainant was suffering from such an impairment.

75.  With respect, for the reasons I have endeavoured to give, I do not agree with Prezzi.  I note that Prezzi might have been disposed of on the comparator question alone.

76.  In Tate v Rafin [2000] FCA 1582, it was found that the revocation of the complainant’s membership with a cricket club was due to his aggressive behaviour in an altercation with a fellow member and the club coach.  Wilcox J of the Federal Court of Australia accepted that the complainant’s psychological status affected his behaviour in the altercation.  However, it was held that the cricket club did not discriminate against the complainant on the ground of his psychological disability, because there was no evidence that any member of the club committee realized that the complainant was suffering from that disability.  Wilcox J said:

“67.   …… The psychological disability may have caused [the complainant] to behave differently than if he had not had a psychological disability, or differently to the way another person would have behaved.  But the disability did not cause the club to treat him differently than it would otherwise have done; that is, than it would have treated another person who did not have a psychological disability but who had behaved in the same way.  It could not have done, if the club was unaware of the disability.

68.    …… The focus of [the DDA (Cth)] is on the conduct of the alleged discriminator; not the effect on the alleged discriminatee.”

77.  Tate v Rafin could have been decided on the comparator question.  However, if the club would not have expelled a member with such aggressive behaviour who was not suffering from similar psychological states, I find it difficult to accept that such unequal treatment should fall outside section 6 simply because the club had not been consciously unfair.  As I have said, the focus of the legislation was to ensure equal treatment.

78.  So far as causation is concerned I think all that is required is that the employee is dismissed because of the disturbed behaviour, or that it is one of the reasons (whether or not it is the dominant or a substantial reason for doing the act, see section 3).

79.  The critical question is “Why was the plaintiff treated as he was?”  According to the government, that was because of his poor performance as an AO.  The learned judge has found that since about mid-1999 his poor performance was the result of a disability.  That being the case I do not believe it matters that the government was not aware that the plaintiff was suffering from a disability.  Nor that even the plaintiff was not aware of that fact.  It is sufficient that his treatment was the result of his disability.  So I would answer this question in favour of the plaintiff.

80.  In case I am wrong on this question, I will deal with Mr Harris’ submission that the learned judge’s conclusion that the employer had no knowledge, actual or constructive, was wrong.

81.  Mr Harris relied on the two sick leave certificates issued by Dr Peter Yu dated 14 and 20 June 0200, respectively which were submitted to Mr Ho by the plaintiff on 24 June 2000 in support of the application for sick leave from 6 to 20 July 2000.  But the sick leave certificates did not cover the period of sick leave applied for.  In any event, 28 June 2000 was the plaintiff’s last day at work.  He was on pre-resignation leave thereafter until 12 August 2000.  The certificates stated that the plaintiff was suffering from “anxiety disorder” and “anxiety state” and recommended sick leave from 15 to 21 June 200 and from 22 to 28 June 2000.  The complaint was that the government should have reviewed the plaintiff’s resignation and should have granted him sick leave from 6 to 20 July 2000.  I agree with the learned judge that having regard to the circumstances under which the certificates were supplied and their contents, they would not have put the defendant on enquiry as to whether the complainant was suffering from a disability.  As for the complaint that the learned judge had given undue weight the evidence of Mr Tony Cheng because he had once studied psychology and yet (on his evidence) failed to consider that the complainant might have a psychiatric problem, I agree with Mrs Wong that the learned judge had not treated Mr Cheng as if he was an expert.  On the evidence so carefully reviewed by the learned judge I agree that if knowledge of disability on the part of the employer was required, there was no such knowledge.

Harassment

82.  This is essentially a question of fact.  The accusations made by the claimant in this regard have been rejected by the learned judge, who dealt with them in paras. 51 to 106 of the judgment.  The learned judge’s findings can be found in para. 133 which has been quoted above.  With respect, I agree with the learned judge’s conclusion. 

Section 12(2)(i) “the inherent requirements of the particular employment”

83.  The first point to note is that the employer who has discriminated against his employee by dismissing him (section 11(2)(c)) is absolved if the employee because of his disability would be unable to carry out the inherent requirements of the job.  Section 12(2)(i).  So this defence only arises if the comparator question is also decided in the plaintiff’s favour.

84.  It is necessary to consider section 12(2)(i) together with section 12(2)(ii).  They provide:

“(2)   Section 11(1)(a) and (c) and (2)(c) shall not apply to an employer who discriminates against a person with a disability, if taking into account -

            (a)   the person's past training, qualifications and experience relevant to the particular employment;

            (b)   where the person is already employed by the employer, the person's performance as an employee; and

            (c)   all other relevant factors that it is reasonable to so take into the account, the person because of the person's disability-

                    (i)   would be unable to carry out the inherent requirements of the particular employment; or

                    (ii)  would, in order to carry out those requirements, require services or facilities that are not required by persons without a disability and the provision of which would                     impose an unjustifiable hardship on the employer.”

85.  Section 12(2)(ii), covers the case where “in order to carry out those requirements” the employee would require extra services or facilities the provision of “which would impose an unjustifiable hardship on the employer”. 

86.  In order to give full effect to both provisions, I believe it is necessary to confine section 12(2)(i) to the case where the employee would be unable to carry out the inherent requirements of the job either at all or without the provision of services or facilities which would impose an unjustifiable hardship on the employer.  If the employee could carry out the inherent requirements of the particular employment with the provision of services or facilities which would not impose an unjustifiable hardship on the employer, the defence of section 12(2)(i) is not available.  Otherwise, section 12(2)(ii) will be meaningless.  In Silvano Cosma v Qantas Airways Ltd [2002] FCA 640, Heerey J said such provision:

“68.   … does not require the employer to alter the nature of the particular employment or its inherent requirements.  Rather it is a question of overcoming an employee’s inability, by reason of disability, to perform such work.  This is to be done by provision of assistance in the form of ‘services’, such as providing a person to read documents for a blind employee, or ‘facilities’ such as physical adjustment like a wheel chair ramp.  The ‘services’ or ‘facilities’ are external to the ‘particular employment’ which remains the same. …”

87.  Mr Harris submitted that the defendant was required to provide reasonable accommodation to the plaintiff.  Presumably this is on the basis that mere provision of services or facilities would not have enabled the plaintiff to carry out the inherent requirements of the job of an AO.  So Mr Harris contended for reasonable accommodation:

“… of a kind which would thereby enable a disabled person to do the job.”  Para. 11 of skeleton submission.

88.   It is not clear whether such reasonable accommodation might include changes to the inherent requirement of the job of an AO.  On the facts, the learned judge has found that the plaintiff was unable to carry out the inherent requirement of the job.  With respect, I agree.

89.  The learned judge’s understanding of the expert evidence is that, in order to prevent a recurrence of the complainant’s work problems as an AO, the complainant should be placed in a “structured and supportive” working environment and that “this working environment” would mean at least:

“(i)     a reduced workload;

    (ii)     minimized distraction in the work place;

    (iii)    the assignment of one task at a time with instructions and guidelines as clear as possible and deadlines as reasonable as possible;

    (iv)    a pampered and protected working environment with a supportive and understanding supervisor and other colleagues who are ready to perform for [the plaintiff] tasks which he     finds difficult, in particular, words processing, document formatting and other clerical tasks; and

    (v)     colleagues who are watchful of how they are communicating with [the plaintiff], with no flare-up of anger or showing of any ambiguous signs of disapproval.”

90.  But, as Ms Wong submitted, the unchallenged evidence of Ms Lin was that:

“I am sorry but I have to say that no existing post in the Administrative Service could avoid taxing [M] where he is relatively weak or provide the structured and supportive environment that he needs. And it appears to me that the only way in which [M] could have been accommodated in the Administrative Service would be for the Government to place and keep him in a post specially created for him with a job different from that of an AO.”  §10 of her 2^nd Supplemental Statement.

91.  I agree with the learned judge:

“(ii)    the ‘inherent requirements’ defence does not impose an obligation on the employer to alter the nature of the particular employment so as to accommodate the disabled employee, and the court must give appropriaterecognition to the business judgment of the employer in organizing its undertaking and in regarding this or that requirement as essential to the particular employment;

……

(v)     in identifying the requirement, one practical method is to ask whether the employment would be essentially the same if the requirement were dispensed with;”

Although the employer must provide to the employee services or facilities which would not impose an unjustifiable hardship on the employer and which would enable the employee to carry out the inherent requirement of the employment, I agree with the learned judge that the employer is not required to employ someone to do the work of the disabled employee.

92.  Qantas Airways Ltd. v Christie [1998] 152 ALR 365 (HCA) was concerned with age discrimination where an employment contract provided that a pilot could not be employed beyond the age of 60.  The meaning of “inherent requirements” was discussed in the several judgments given by the members of the High Court of Australia, of which, it is sufficient to note that Gaudron J said:

 “36.  A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position could be essentially the same if that requirement were dispenses with. …”

Constructive Dismissal

93.  I am prepared to proceed on the basis that if the plaintiff’s complaints had been made out, that he had been constructively dismissed. 

Conclusion

94.  I would dismiss the appeal with costs.

Hon Yeung JA:

95.  I agree.

Hon Lam J:

96.  I agree with the judgment of the Vice President.

97.  For the reasons given by my Lord on the comparator question, the plaintiff failed to establish that he had been treated less favourably by the Defendant as compared with how the latter treated a person without disability.

98.  Since we are differing from the learned judge on the causation question, I would like to add some observations in that regard. I shall start by pinpointing that, as held by my Lord, the causation question is a separate question from the comparator question. This means that in order to build up a case under Section 6(a) of  DDO, it is not enough for a plaintiff to establish differential treatment. In addition, a plaintiff needs to show that the treatment was “on the ground of his disability”.

99.  Mr Harris submitted that the causation element can be satisfied by the “but for” test and he cited Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459 to support his contention. That was a decision on a claim advanced under the Sex Discrimination Ordinance Cap.383. The wordings under Section 5(1)(a) of that ordinance are similar to Section 6(a) of DDO. At p.476B to F, the Chief Justice said the “but for” test enunciated by Lord Goff in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1153 at p.1194A-C was the correct test.

100.  It is to be noted that on the facts of Chan Wah, the challenge was made in respect of the electoral arrangements for village representatives. As such, it was a challenge to an existing system rather than a specific decision by a person or a corporate body against an individual. The same can be said in relation to the challenge in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1153 and James v Eastleigh Borough Council [1990] 2 AC 751 in which Lord Bridge said the test was objective (also endorsed by the Chief Justice in Chan Wah).

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. In Nagarajan v London Regional Transport  [2000] 1 AC 510, Lord Nicholls said at p.510H to 511B:

“To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favrouable treatment. This is the crucial question. Was it on grounds on race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious case, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

102.  His Lordship went on to explain the distinction between this crucial question and an inquiry into the intention or motive behind the discrimination on racial ground. At p.511C to D, it was said:

“For the purposes of direct discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job applicaton was racial, it matters not that his intention may have been benign.”

103.  It is in this light the test of Lord Goff in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1153 and the remarks of Lord Bridge in James v Eastleigh Borough Council [1990] 2 AC 751 were to be understood. In connection with the latter, Lord Nicholls explained at p.511G to H:

“In stating [that the test was objective Lord Bridge] was excluding as irrelevant the (subjective) reason why the council discriminated directly between men and women. He is not to be taken as saying that the discriminator’s state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment?”

104.  To the same effect is the judgment of Lord Steyn in Nagarajan at p.520B to 521A.

105.  Bearing in mind human nature, there is always room for subconscious discrimination. Lord Nicholls alluded to that at p.511H to 512D. In particular, at p.512A:

“An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realized it at the time or not, race was the reason why he acted as he did.” (My emphasis)

And at p.512C,

“Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.” 

106.  See also subsequent decisions of the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 at p.1954 para.29 per Lord Nicholls and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 ALL ER 26 at p.45 para.55.

107.  In my judgment, these recent authorities support my Lord’s conclusion that one needs to ask the basis on which the alleged discriminator made the decision on differential treatment.  Also, with the recognition of subconscious or even benevolent discrimination, I agree with my Lord that there is no need to prove that the alleged discriminator was consciously unfair.     

108.  My Lord referred to the judgment of Gummow, Hayne and Heydon JJ in Purvis v New South Wales (2003) 217 CLR 92 at para.236 on the causation question. For my part, I find the judgment McHugh and Kirby JJ on this point to be more instructive. On this question, the approach of my Lord is in line with the analysis of Their Honours. The relevant discussion, including a full review of the relevant Australian and English authorities on the point, is at paras.142 to 169. In particular, I would highlight what Their Honours said at para.160:

“The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.”

109.  Then at para.166, Their Honours endorsed the test laid down by Kirby J in IW v City of Perth (1997) 191 CLR 1 at 63 (cited at para.142 in Purvis) as it focused on the real reason for the alleged discriminator’s act.

110.  The more difficult point in the present context is whether discrimination on the ground of disturbed behaviour (which is a manifestation of disability) constitutes discrimination on the ground of disability. McHugh and Kirby JJ answered the question in the affirmative at paras.167 to 168. But on the facts of Purvis, the school had the medical reports of Mr Hoggan’s disabilities even though the teachers had a poor knowledge of the nature of the same and their effects on his behaviour (see para.52 of the judgment).

111.  Once it is accepted (as one must in the light of the authorities) that conscious unfairness is not required, it is difficult to see why a distinction should be drawn between a decision on the basis of the disability and a decision on the basis of the manifestation of the disability as far as the causation question is concerned.

112.  For these reasons, in addition to those canvassed by my Lord, I agree as far as causation is concerned it is not essential to prove that the alleged discriminator had knowledge of the disabilities.

113.  On the overall result, I agree that the appeal should be dismissed.

Hon Tang VP:

114.  The appeal is dismissed with costs.  The plaintiff’s costs are to be taxed in accordance with Legal Aid Regulations.