DR. ALICE LI MIU LING v. THE HONG KONG POLYTECHNIC UNIVERSITY

DCEO 1/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 1 OF 2004

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JUDGMENT

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Introduction

1.  The plaintiff, Dr Alice Li, was employed as an assistant professor of the defendant from 1992 to 1999.  Her contract with the defendant, the Hong Kong Polytechnic University, was not renewed in September 1999.  She believes she was a victim of sexual harassment by the then acting head of department, Dr T Wong, who caused her to lose her employment and a future in academia. The plaintiff’s claims against the defendant are under the following:-

(i) sexual harassment under s 23(3) of the Sex Discrimination Ordinance (“SDO”) Cap 480;

(ii) victimization under s 9 of the SDO;

(iii)  breach of the Personal Data (Privacy) Ordinance (“PDPO”) Cap 486;

(iv)  defamation for malicious falsehood;

(“the said claims”).

2.  The plaintiff was declared bankrupt on 15 January 2003 under HCB No 20505/2002 and on 4 July 2012 under HCB 6537/2012.  The Official Receiver’s office notified the court by a letter dated 9 July 2012 the second bankruptcy order of 4 July 2012 and that the plaintiff is at liberty to proceed with the said claims as they would not require the Official Receiver’s consent or intervention.  However, the Official Receiver refused to give its consent to the rest of the plaintiff’s causes of action discerned from her Amended Statement of Claim which included:

(i)  Fraud, deceit and conspiracy to defraud;

(ii)  Breach of contract;

(iii)  Obstruction and perversion of the course of justice;

(iv) Fraudulent misrepresentation and misconduct in public order;

(v)  Breach of fiduciary duty; and

(vi)  Torture and oppression.

(“the remaining claims”).

3.  On the first day of trial, time was given to the plaintiff to find out from the official receiver her position and if the official receiver would take up and pursue the remaining claims on her behalf.  The plaintiff informed the court that the official receiver required 6 months to process her remaining claims, as she did not wish to delay the trial, she would proceed with the said claims of four causes of action and abandon the remaining claims.  The trial of this action is on the aforesaid basis.  Furthermore, as the official receiver failed to attend the trial and pursue the remaining claims vested with him, the remaining claims are dismissed.

The plaintiff’s claims

4.  The plaintiff, Dr Alice Li Miu Ling (“Dr Li”) began her employment at the defendant (“the University”) in September 1992 as an assistant professor at the Department of Nursing and Health Sciences (“NHS”). Her employment with the University terminated on 27 September 1999 when her contract was not renewed by the University.

5.  Dr Li alleges that she was sexually harassed by the then acting head of department, Dr Thomas Wong Kwok-shing (“Dr T Wong”), for which she claims the University is vicariously liable.  She claims the University had (a) failed to protect her from being sexually harassed and discriminated against; (b) committed acts to cover up the acts of sexual harassment; and (c) failed to provide a work place free of sexual harassment under sections 23(3) and 46(3) of the SDO.  Further, she claims she was victimized by the University under s 9(1) of the SDO when the University did not allow her to cross the efficiency bar and failed to renew her employment contract in 1999.

6.  Dr Li further claims against the University for breach of section 66 of the Personal Data (Privacy) Ordinance, that she suffered damage due to the University’s failure to supply personal data relating to her in defiance of the enforcement notice of the Privacy Commission’s Office.  Dr Li also claims the University had defamed her by publishing documents that are untrue.

The plaintiff’s complaint lodged with the University

7.  Dr Li lodged a complaint against Dr T Wong for sexual harassment and his recommendation for the non-renewal of her employment contract with the President of the University, Professor Poon Chung Kwong (“the President”), on 23 January 1999.  On 6 February 1998, the University appointed an inquiry panel in respect of Dr Li’s complaint.  After the panel interviewed Dr Li and Dr T Wong, the President, at the recommendation of Ms Stott, the chairperson of the University’s Ethics Committee, gave his permission to convert the inquiry panel into an investigation committee on 15 February 1999 with the same members as the inquiry panel.

8.  The investigation committee completed its final report on 12 March 1999, it rejected Dr Li’s sexual harassment claim.  The decision was communicated to Dr Li on 17 March 1999.

9.  Dr Li disagreed with the investigation committee’s decision and complained against the procedure of the formation of the investigation committee, the existence of which she was not notified.  As a result, the University decided to set up a new inquiry panel with new members and informed Dr Li of its decision on 15 June 1999.  At Dr Li’s request, the work of the new inquiry panel was held in abeyance pending Dr Li’s application for personal data access to the Privacy Commissioner and the investigation by the Equal Opportunities Commission of her complaint against Dr T Wong and the University.

The breach of personal data claim

10.  Dr Li requested the University for access to her personal data kept by the University on 28 January 1999.  Not satisfied with the response, Dr Li made a total of 3 access requests to the University on 10 February 1999, 11 May 1999 and 31 May 1999.  She subsequently lodged a complaint to the office of the Privacy Commissioner of Personal Data (“PCO”) on 2 June 1999, by which time, the University had provided her with a total of 550 pages of documents.

11.  On 29 March 2001, the Privacy Commissioner’s Office (“PCO”) issued an enforcement notice to the University under s 50 of the Personal Data (Privacy) Ordinance (“PDPO”) on the ground that it considered the University had contravened section 19(1) of PDPO.  The enforcement notice was amended after an appeal by the University to the Administrative Appeals Board, and an additional 1,320 pages of documents were supplied to Dr Li in compliance of the amended enforcement notice on 12 July 2002.

12.  Following Dr Li’s complaint on 8 October 2002 to the PCO of the University’s failure to comply with the amended enforcement notice, the University informed Dr Li an additional 143 pages of documents have been made available to her on 11 September 2003, she failed to collect those documents.

The defamation claim

13.  Based on the information disclosed in the documents supplied pursuant to the PCO’s enforcement notice and amended enforcement notice, Dr Li claims the University had defamed her.  The documents containing the alleged defamatory statements were made by Professor Martinson, the Head of Department (“HOD”) of the Nursing and Health Services Department (“NHS”); senior colleagues of the NHS; Dr T Wong the acting HOD in 1998-1999; the University’s Appointments Committee for Academic Staff (I) (“ACAS(I)”) to the President on Dr Li’s performance; Dr Vera Yip on the complaint by students recorded in a 25 March 1999 memo and the summary record of a meeting with Dr Li on 27 March 1999, etc. 

14.  The plaintiff claims the defamatory statements are found in the following documents:

(i)  The Recommendation for Crossing of Efficiency Bar (“CEB”) for Assistant Professors dated 21 December 1998 containing comments of Dr T Wong.

(ii)   The Proforma Reply submitted by Dr T Wong to the Dean of the Faculty of Health and Social Sciences recommending non-renewal of Dr Li’s contract dated 29 January 1999.

(iii)   The 8 February 1999 memo from Dr T Wong to the personnel office elaborating on the reasons for not recommending the renewal of Dr Li’s contract.

(iv)   The memo from Drs David Arthur, Esther Mok, Frances Wong and Ms Samantha Pang dated 1 March 1999 supporting Dr T Wong’s recommendation not to renew Dr Li’s contract.

(v)   The memo from Drs David Arthur, Esther Mok, Frances Wong and Ms Samantha Pang dated 12 March 1999 to the Dean of Faculty of Health and Social Studies elaborating on their memo of 1 March 1999.

(vi)   The memo from Professor Ida Martinson, the Head of Department of NHS, to the Appointments Committee for Academic Staff (I) (“ACAS(I)”) dated 12 March 1999 supporting Dr T Wong’s recommendation of non- renewal of Dr Li’s contract.

(vii)  The memo from Ms Wendy Wong to Dr T Wong dated 12 March 1999 on Dr Li’s request for blank student feedback questionnaires.

(viii)  The note from Professor Ida Martinson to Ms Sandy Yan of the personnel office dated 12 March 1999 on her recommendation of non-renewal of Dr Li’s contract.

(ix)   Professor Ida Martinson’s memo of 13 March 1999 to the President of the University on her reasons for supporting the non-renewal of Dr Li’s contract.

(x)   The ACAS(I) document summarising the reasons and remarks on non-renewal of the contract of Dr Li in 1999.

(xi)   The ACAS(I) document recording the President’s approval of its recommendation on 24 March 1999.

(xii)  The note from Ms Vera Yip to Dr T Wong of 25 March 1999 on the complaint of two students against Dr Li (the ‘drip fever’ complaint).

(xiii)  The summary record of meeting conducted by the Department of NHS panel with Dr Li on 27 March 1999 on the students’ ‘drip fever’ complaint.

(“the documents”).

The defence

15.  The University claims that because of Dr Li’s unstable teaching performance, low academic research output and ineffective interpersonal skills, her contract was not renewed.  That the documents reflected the natural meaning of the words alleged by Dr Li to be defamatory of her were true in substance and in fact.  It claims a defence under justification and qualified privilege.

16.  It is the defence case that Dr Li’s sexual harassment allegations against Dr T Wong are false and the alleged events of sexual harassment did not take place.  Alternatively, even if they did, the University had taken such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of that description under section 46(3) of the Sex Discrimination Ordinance (the “SDO”).

17.  As a further alternative, the defence claims that even if the alleged acts did take place, they did not amount to ‘unwelcome’ sexual conduct, as they were usual social interactions between colleagues.

18.  The defence further claims that it had taken steps as were reasonably practicable to prevent its employee from sexually harassing Dr Li by (a) introducing a Code of Ethics to all its staff under Administrative Note No 18/97 on 3 October 1997 and (b) adopting a policy under Administrative Note No 1/99 on 4 January 1999 to prohibit sexual harassment with regulations for resolution of sexual harassment complaints.

19.  On Dr Li’s claim of victimization that the University had failed to allow her to cross the efficiency bar and not renew her contract in 1999, she was therefore treated less favourably than other employees of the University under section 9(1) of the SDO, and the University had falsified documents and submitted false information to the EOC and the PCO in order to hinder their investigations, the University denies these allegations.  It asserted Dr Li’s allegations of sexual harassment against Dr T Wong were false and raises the defence under section 9(2) of the SDO on the victimization claim.

20.  On the issue of breach of s 66 of the PDPO, the University claims it had provided 550 pages to Dr Li by late May 1999 and given her access to inspect and peruse her personal data at the personnel office of the University on a number of occasions.  That on the complaint lodged by Dr Li to the PCO on 2 June 1999, the PCO’s enforcement notice 29 March 2001 was successfully appealed against by the University to the Administrative Appeals Board on 27 May 2002, as a result, the PCO amended the enforcement notice.  The University claims it had complied with the amended enforcement notice by supplying a total of 1,320 pages of documents to Dr Li on 12 July 2002.  A further 143 pages of documents were made available to her in September 2003 which she failed to collect.  The defence denies Dr Li suffered any loss or damage and is not entitled to any damages.

21.  On the issue of defamation, the University claims the alleged defamatory statements were true and fair comments or substantially true relying on sections 26 and 27 of the Defamation Ordinance Cap 21.  The defence further relies on the defence of qualified privilege.

22.  Further, the defendant’s amended defence alleges that Dr Li made false allegations against the University as a result of a psychiatric illness. 

The plaintiff’s evidence on sexual harassment

23.  Dr Li’s claim of sexual harassment by Dr T Wong related to a number of incidents between 1992 and 1999.  The alleged incidents are set out at para 4.1.1 of her Amended Statement of Claim and most of the sexual harassment complaints involved comments made in Cantonese.  A summary of the more serious allegations are as follows:

(a)  On an occasion in November 1992, Dr T Wong grabbed Dr Li’s hand in a rude and strange manner.

(b)   In or about February or March 1993, Dr T Wong invited her to have breakfast at the canteen of Queen Elizabeth Hospital at 7:30 am and offered to show her around the hospital afterwards.  He patted or touched her hand or forearm.  After Dr Li turned down his invitation, he wrongly accused her of wearing long fingernails claiming there was a student complaint on her long fingernails.

(g)   In or about July 1995, Dr Li returned from a conference in Australia and brought back a fury toy wombat for Dr T Wong’s daughter at his request.  He insisted on taking her for a meal to thank her.  He further asked her：「幾時可以同佢liaise吓」.

(h)   On 25 February 1998, Dr Li notified Dr T Wong of an email of 19 February 1998 from Dr Frances Wong on the DLTC project application, Dr T Wong complimented Dr Li and said「你今日嘅打扮咁靚，襯晒啲天氣，不如一齊lunch再傾」.

(i)  On 4 March 1998, after returning from the video conference demonstration at China Resources Building in Wanchai, Dr Li met Dr T Wong outside the 5^th Floor stairway between blocks FG and FH at the University, he said to her：「好彩有我响到，噤住Ida，佢咪唔好happy嗰個V-con Demo.，咁你幾時請我飲番杯奶茶呀」.  He then leaned forward and whispered 「無我睇住你就慘咯」.  Dr Li replied: 「搵日呀」.

(j)  On 6 March 1998, at around 3 pm at the basement staff restaurant, Dr T Wong said to Dr Li：「好彩啲杯奶茶，嗰個DLTC project點呀！Frances又玩嘢呀，咁咪reply比佢囉，睇吓佢點餃 (sic) 啫」.  He then softened his tone and said：「仲係一個人住呀，咁咪好靜，會唔會寂寞啲呀！」Dr Li replied「遲啲先傾」.

(k)   On 11 March 1998, after the 9:30 am meeting at Dr T Wong’s office, Dr T Wong complimented Dr Li on her memory and good looks and invited her for a chat over tea,「蝦 (sic)，你咁好記性嘅，又靚，又好記性，一定好細心呀肋 (sic) …… 幾時一齊飲番杯奶茶再傾吓」.  She replied：「傾啲乜嘢」.  He said：「咁我哋PUMC project呢，唔駛再傾」.

(l)  On 25 March 1998, just before 3:30 pm, Dr T Wong met Dr Li on his way to the washroom between 4/F and 5/F FG/GH.  Dr Li told him of the email she just sent to Dr Frances Wong.  He said to her：「咁咪好囉，睇吓佢嘅答覆 …… 咁我哋幾時再坐埋一齊傾吓 …… 果個PUMC  project呀！聽日去完柴灣，再上哩 (sic) 傾下，好唔好」.

(m)   On 26 March 1998, after returning to the office from a meeting in Chai Wan, Dr T Wong asked Dr Li to go to see him.  They met at the basement staff restaurant at 6 pm.  He said to her：「仲喺愉景灣住呀，咁咪好靜，一個人咁寂寞，不如我入去探吓你呀！我同你講啦，無德無能，理工精神，或者你須要個男朋友,保護吓你，又可以企得穩，平步青雲，咁咪幾好 ……我雖然結咗婚，有仔女，但係我仍然有時間照顧女朋友呀」，「Joanne都幾識做，俾我揸佢架車 ……哈！我鍾意揸佢邊度就邊度！」，「佢個husband又唔係時常喺屋企嘅！……」.

(n)   On 2 April 1998, after the video conference demonstration visit with colleagues, the whole party had lunch in Wanchai.  Dr Li went to find Dr T Wong to pay him her share of the lunch at the University, outside the man’s washroom on 4-5/F, Dr T Wong said to her：「嘻，咪咁儍啦，今餐我請，咁你幾時請番我呀！不如遲啲call你去basement飲番杯奶茶，再傾吓我哋嘅PUMC project，好唔好？」

(o)   A few days after 2 April 1998, Dr T Wong called Dr Li asking her to meet him at the basement staff restaurant to discuss the PUMC and tele-education project over a cup of tea.  He said to her at the restaurant：「我話咗你知啦，無德無能，理工精神，有我睇住你，包你唔同，咁都唔識諗 ……咁你唔想我關心吓你，比我探下你，一齊傾吓，咁有乜唔好，吓！」.

(s)  In or about the 3^rd or 4^th week in April 1998, Dr Li met Dr T Wong at tea break in the basement staff restaurant, he offered to take her out for a beer and said to her：「唔怪得你嫁唔出去啦，都唔明男人心嘅，等我帶你出去泡吓，見識吓啦， …… 連啤酒都唔識倒，整到咁多泡，等我教吓你啦！ …… 我响到，有你著數呀！」

(t)   On 26 June 1998, at Dr T Wong’s office he approved Dr Li’s application to attend an international conference, and rubbed his shoulder against hers suggesting the two of them to go to Beijing for a site visit in conjunction with the PUMC, whispering “only you and me!”.  Dr Li stepped away from him, Dr T Wong’s mood changed and said：「咁遲啲再講」.

(v)   In or about August or September 1998, after Dr Li sent him a brief proposal on “Trend of Global Education and Knowledge Transfer via Video Conferencing”  Dr T Wong asked Dr Li to see him at his office and said to her:「我話咗你知啦！無德無能，理工精神，大才就小用，卑鄙無恥就金腰帶，我同你講，有我响到，睇住你，包你事業都唔同晒，你自己諗吓啦」.

(x)   On a day in August or September 1998, after Dr Li left a box of ginseng tea and dry seaweed at Dr T Wong’s office, at the stairway between 4-5/floor outside the men’s washroom, Dr T Wong moved his pelvis back and forth and said：「咁就叫參茶，點夠勁呀！」.

(z)  On a day in September 1998, Dr Li handed in the proposal on “Trend of Global Education and Knowledge Transfer via Video Conferencing” at Dr T Wong’s office.  He told her 「智 (sic) 識，好同我爭咩，姿色就唔同肋 (sic)，話過你知啦，無德無能，理工精神，如果你比我照顧你，我包你有定企，事業都完全唔同」.

(aa)   In or about the 4^th week in September 1998, Dr T Wong asked Dr Li to co-ordinate the production of a department profile on CD-Rom at a section meeting.  After the meeting he told her：「有我响到，支持吓你係咪唔同!」

(cc)  On 29 October 1998 at around noon at Dr T Wong’s office after a meeting, he said：「我知你一定好忙，想唔想一齊去tea break呀？」She replied：「第日先！」

(dd)  On 30 October 1998, Dr T Wong invited Dr Li to his office and said to her：「男人心咁都唔知，幾時比我帶你出去泡吓，教吓你倒啤酒啦 ……」  While talking, he slowly stroked a sexy blonde female figurine and said：「就等/比我睇住照顧吓你，我包你會完全唔同晒 …… 你都知Ida遲啲會再返離啦，我同你講，你最好就乖乖地聽話，我一定會睇住你，信我啦，我包你會唔同呀，同你講過，無德無能，理工精神，智 (sic) 識用離做樣嘅啫，姿色就唔同肋。信我啦，有我响到睇住你，包你唔同晒，你自己諗吓啦！」.

(ee)  On 13 November 1998, after the photo-taking session at Dr T Wong’s office, he said to her while staring at the blond figuring holding a can of beer：「睇吓個靚女幾開心，淨係揸住罐啤酒 …… 咁你幾時比我教吓你倒啤酒呀」.

(gg)   At the end of November 1998, outside Dr Li’s office after the lab opening ceremony, Dr T Wong said to her：「啲 (sic) 個virtual figure，身材就最吸引，咁你幾時可以demonstrate一吓啫。」 pointing to the slogan on the wall poster that read “from virtual to reality”.

(hh)  On 2 December 1998, Dr T Wong said to Dr Li at his office when she submitted her application form for a conference in Shenzhen：「一個女仔去嗰到，好牙煙呀！我可以escort你一齊去，咁好唔好」.  When Dr Li declined his offer, Dr T Wong turned down her funding application.  She crossed out the funding column adding the words “self-financing” on top.

(jj)   In the 2^nd week of December 1998, before Dr Li attended the conference in Shenzhen.  Dr T Wong told her：「同妳講過，一個女仔去嗰度好牙煙呀！比我陪你一晚，睇吓你嘅‘Demonstration’，我講過，包你平步青雲，唔同晒 …… 一晚咁多啫，好唔好！」.

(kk)  On 18 December 1998, around 6:15 pm at the 5^th floor staircase, Dr T Wong told Dr Li：「我嘅話你都唔聽，咁就睇住啦」。

(ll)   On 21 December 1998 at 1:30 pm, after informing Dr Li her contract would not be renewed, Dr T Wong told Dr Li at the secretary’s compartment outside the Head of Department’s office,：「你乖乖地聽話，我包你就乜事都冇，我會睇住你 …… 」  He touched her shoulder with his and said：「咁咪就乖乖地囉，你自己諗吓再話我知啦」.

(mm)   On 22 December 1998, Dr T Wong denied his involvement in Dr Li’s DLTC project.

(“the alleged sexual harassment incidents”)

The defendant’s evidence on the sexual harassment claim

24.  The University denies any sexual harassment acts took place, claiming (1) Dr Li’s allegations were not corroborated; (2) she did not lodge any complaints at the time; (3) her evidence varied at different stages before and during these proceedings; and (4) her behaviour at the time was not consistent with that of a victim of sexual harassment.  And, if the acts took place, they were not unwelcome.

25.  The University further emphasised that Dr Li’s sexual harassment complaint was made one month after she was told her contract with the University would not be renewed in the 1999/2000 academic year.

26.  The University stressed that Dr Li’s contract was not renewed because of her poor interpersonal relationship with her colleagues; her ineffective teaching performance, her unsatisfactory research output and her lack of academic management leadership.

27.  The evidence of Dr T Wong in answer to the alleged incidents of sexual harassment was:

(a) - (f)  He denied he had either grabbed or patted Dr Li’s hand or touched her on the forearm or rubbed his shoulder against Dr Li at any time.  Neither did he fabricate the students’ complaint against Dr Li in his memo of 1 March 1993.  He had noticed Dr Li’s long fingernails himself when he visited QEH to verify the students’ complaint.  He further found Dr Li was also late in attending the hospital clinical sessions which were scheduled to start at 7:30 am not 8 am.  That the schedule Dr Li produced in these proceedings was subject to the time table of different hospitals sent to Dr Li and her students.

(g)   He had also attended the Perth Conference with another colleague.  He denied he asked Dr Li to get her daughter a toy wombat or insisted to take Dr Li out for a meal in July 1995.

(h)   He denied he had commented on Dr Li’s looks after the meeting with colleagues on 25 February 1998.  He claimed he had informed Dr Li a number of times that he did not wish to be involved in Dr Li’s DLTC project, therefore could not have invited her to talk about the project over  lunch.  Further, he was on his way to the airport for a trip to Beijing after the meeting and would not have time to chat with Dr Li.

(i)  He denied he blamed Dr Li for the technical failure of the video conference demonstration in Wanchai.  He could not have met Dr Li at the stairway because he had an appointment with his research student at his office at 5 pm after he returned to the University from the demonstration that finished at 4:30 pm in Wanchai.

(j)  He denied he had commented on Dr Li’s personal life and repeated that he did not wish to be involved in her DLTC project.

(k)   He denied he made the alleged comments to Dr Li after their meeting in his office at 10:40 am.  He claimed all conversations at his office would have been overheard by his assistant, Gloria Yeung, who sat just outside his room.

(l)  He admitted he did meet Dr Li in the corridor and suggested a discussion on the PUMC project but he denied he had named a date for the discussion.

(m)  He denied that on 26 March 1998 he had asked Dr Li to meet him at the staff restaurant to talk about the PUMC project.  He claimed he was taking a tea break at the staff restaurant at 5:30 pm by himself when Dr Li came over to his table.  They were soon joined by a colleague from the Department of Social Sciences, Dr Shae.  He denied he talked about Joanne Chung or made the alleged comments.

(n)   He denied he had asked Dr Li to buy him lunch or tea after he took all the staff who attended the video-conference demonstration in Wanchai to lunch on 2 April 1998, nor did he ever invite Dr Li for tea or lunch on a one on one basis.

(o) - (p)   He denied he had asked Dr Li to buy him tea or said to her the things she alleged in April 1998.

(r)   He denied he had received any written requests from Dr Li to clarify her role and involvement in the PUMC.

(s)   He denied he had offered to take Dr Li out or to show her how to pour beer.  Neither did he tease Dr Li on her marital status.  In fact, during the alleged 3^rd and 4^th week of April 1998, he was fully occupied with meetings and teaching and had been away from Hong Kong for part of the time in those two weeks.

(t)  He denied he had a meeting at his office with Dr Li on 26 June 1998.  He did not say the alleged words to Dr Li or rubbed his shoulder against hers.

(v) He denied he said the alleged words to Dr Li in or about August or September 1998 or had a meeting with her at this office after 6 pm.

(x)  He agreed Dr Li did leave a box of ginseng tea and seaweed at his office after her trip to Korea, but his assistant had returned them to her because he did not wish to accept gifts from his staff.  He denied he spoke to Dr Li about the ginseng tea.

(y) - (z) He denied he made the alleged comments to Dr Li or that he had met with her on the submission of the proposal.

(aa) He agreed he did ask Dr Li to co-ordinate the production of the department profile on CD-Rom at a section meeting, he denied he had made the alleged comments to her.

(bb) He denied he had made the specific encouraging comments to Dr Li in October 1998 when she was co-ordinating the production of the CD-Rom.

(cc)  He denied he had ever invited Dr Li to take the tea break with him on a ‘one on one’ basis.

(dd)  He claimed that immediately after the 30 October 1998 video shooting session, he had to rush over to the airport at 2:30 pm.  He denied he had ever made the alleged comments to Dr Li.

(ee)  He denied he had made the alleged comments to Dr Li after the photo taking session on 13 November 1998.

(ff) - (gg)   He denied he made the alleged comments to Dr Li at the end of November 1998, save that he did mention the CD cover was well designed and told her the cover looked like ‘a virtual baby’.  He denied his comments on the design were sinister.

(kk)   He denied suggesting to Dr Li he would escort her to Shenzhen.  He claimed that on 2 December 1998, he was fully engaged from 9:30 am to 8 pm with meetings at Princess Margaret Hospital and the University.  He denied meeting Dr Li to discuss her Shenzhen conference on that day.

(ii)   He claimed he was fully engaged on 10 December 1998 from 8:30 am to 9:30 pm with meetings at hospitals and teaching at the University.  He denied ever encouraging Dr Li to apply for the CEB or meeting Dr Li on that day.

(jj)   He denied requesting sexual favours from Dr Li or making the alleged comments to her or talking to her before she attended the Shenzhen conference.

(kk)   He denied making the alleged comments to Dr Li on 18 December 1998.

(ll)   He agreed he and Dr Frances Wong met Dr Li at Professor Martinson’s office at 1:30 pm on 21 December 1999 to discuss the renewal of her contract and her CEB application.  He denied he made the alleged comments to Dr Li at the secretary’s compartment.  He claimed Ms Teresa Tse, the Head of Department’s secretary, was sitting at her desk and would have overheard the alleged comments if he had made them.

(mm)   He denied he had agreed to take part in Dr Li’s DLTC project.  He claimed he had only discovered his name was included in the project proposal when he received the documents for the DCTC meeting.

The law

28.  Section 23(3) of the Sex Discrimination Ordinance Cap 480 (‘the Ordinance’) provides that:-

“It is unlawful for a person who is employed by another person at an establishment in Hong Kong to sexually harass a woman who is seeking to be, or who is, employed by that second-mentioned person.”

29.  Section 46 of the Ordinance provides that:-

“46. Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Ordinance as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

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

30.  Section 2(5) and (7) of the Ordinance provides that:-

“(5) For the purposes of this Ordinance, a person (howsoever described) sexually harasses a woman if-

(a) the person -

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

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

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

(7) In subsection (5) –

“conduct of a sexual nature”（涉及性的行徑）includes making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing.”

31.  In the present proceedings, Dr Li claims the University is in breach of section 46(1) of the Ordinance.  The burden is on Dr Li to show that the alleged acts took place and that they were acts as defined in section 2(5) and (7) of the Ordinance ie the acts were unwelcome and were conduct of a sexual nature.  Further, the University has a defence under section 46(3) if it can show that it had taken such steps as were reasonably practicable to prevent the employee from doing the act or acts or from doing in the course of his employment acts of that description.

The processing of Dr Li’s complaint by the University

32.  Dr Li first complained to the University on 23 January 1999 by writing directly to the University’s then President, Professor Poon Chung Kwong and the committee of senior management (see Bundle C1 p 310).  The purpose of lodging the complaint stated in her letter was to ask the University for a fair hearing.  She accused Dr T Wong to have sexually harassed her since December 1996, she further claimed Dr T Wong had engineered a campaign of harassment and misled her into trusting him and to apply for a teaching grant (‘DLTC’) and for crossing the efficiency bar in 1998.  Because she had refused “to comply with his sexual agenda”, he had decided to remove her from the scene.  She believed his comments on her application form for crossing the efficiency bar (“CEB”) were part of his vicious and premeditated campaign of personal harassment.  She felt humiliated and intimidated by Dr T Wong’s comments and believed she was a victim of his unfair treatments.  In her 23 January 1999 letter to the President, she pleaded for justice hoping that she would be reinstated at the University.  She asked the President of the University for a proper investigation of her case.

33.  The President followed the University’s policy on sexual harassment and regulations for resolution of claims concerning sexual harassment and forwarded Dr Li’s complaint to the chairperson of the Ethics Committee, Ms Vanessa Stott.  Ms Stott under the University’s regulations for resolution of sexual harassment complaints appointed an inquiry panel.  The panel of three headed by Ms Pamela Smith met with Dr Li on 8 February 1999 and Dr T Wong on 9 February 1999 respectively.

34.  On 11 February 1999, Ms Stott, the chairperson of the Ethics Committee reported to the President, Professor Poon, that after the inquiry panel met with the accuser (Dr Li) and the accused (Dr T Wong), it was of the opinion that due to the seriousness of the allegations, the lack of corroboration and the allegations involved the processing of staff appraisal and contract renewal, an ‘investigation committee’ with power of investigation should be appointed.  She further recommended to the President that the inquiry panel should become the investigation committee to minimize further stress to the parties.  Ms Stott’s request and recommendation was approved by the President on 15 February 1999.

35.  The minutes of the inquiry panel’s meeting with Dr Li on 8 February 1999 together with Dr Li’s further written statement to the panel, her CV and research output submitted to the panel were sent to Dr Li for her confirmation and signature on 25 February 1999.  A similar memo to Dr T Wong with the attachment information he supplied to the panel were sent to Dr T Wong for his confirmation on the same day.  Subsequently, Dr Li sent an addendum to the notes of her meeting with the inquiry panel to its chairperson, Ms Smith, on 2 March 1999.  Dr Li’s addendum was accepted by Ms Smith with the exception of the last paragraph (section 7) which Ms Smith disagreed with (see p 431 - 434 bundle C2).

36.  On 12 March 1999, the chairperson of the investigation committee, Ms Smith, sent a copy of the final inquiry report to the chairperson of the Ethics Committee.  The report was prepared after the investigation committee considered in addition to the interviews with Dr Li and Dr T Wong, Dr Li’s appraisal report, Dr T Wong’s report on his reasons for not recommending Dr Li to cross the efficiency bar, his report on the reasons he did not recommend her for a further contract to the Dean of the Faculty of Health and Social Studies, and Dr Li’s written communication to the inquiry panel after the 8 February 1998 meeting and Dr T Wong’s written response to it.  The investigation committee further interviewed the chairperson of DLTC Dr Alice Lai, Dr Frances Wong, Dr David Arthur, Ms Janice Kam of the personnel office, Dr Stephen Lau and telephone interview with Dr Li’s M Sc student Mr Raymond Wong.  The investigation committee did not uphold Dr Li’s complaint against Dr T Wong.

37.  The outcome of the findings of the investigation committee was sent to both Dr Li and Dr T Wong on 17 March 1999.  Dr Li upon discovering that the inquiry panel had become the investigation committee and that there would be no appeal from the investigation committee appointed by the President of the University, raised an objection to the procedure.  As a result, in June 1999, the University agreed to set up a new inquiry panel.  At the time, Dr Li was in the process of obtaining her personal data from the University having lodged a personal data complaint to the PCO, and there was an ongoing investigation by the EOC of her sexual harassment complaint against Dr T Wong and the University lodged on 29 February 1999, the work of the new inquiry panel was held in abeyance at her request.

Discussion

The allegation of sexual harassment

38.  Dr Li referred to 30 odd incidents in the two years prior to 23 January 1998 in her claim.  They were pleaded in para 4.1.1 of her Amended Statement of Claim, the gist of which is set out in paragraph 23 above.

39.  Considering all the alleged incidents of sexual harassment in the round, I found the outstanding feature of these alleged encounters is the absence of independent witnesses at any of the encounters.  Some of the incidents allegedly took place at the office corridor or staircase, some happened at the staff basement restaurant and others took place at Dr T Wong’s office.

40.  According to Dr T Wong, who denied he had ever sexually harassed Dr Li, he and Professor Martinson had been warned by the personnel office not to meet Dr Li alone in late 1997.  He asserted that he had never invited Dr Li for a meal on a ‘one on one’ basis or suggested to escort her to the Shenzhen conference or made any comments to her with sexual connotations.  He further claimed that on most of the 30 odd occasions Dr Li alleged, he had a busy schedule and did not meet Dr Li.  On the few occasions involving tea breaks where he met Dr Li at the staff basement restaurant, he was by himself and Dr Li had come up to him and they were joined by other colleagues.

41.  Dr T Wong alleged that on the occasions he met Dr Li at his office, the conversations would have been overheard by his assistant, Ms Gloria Yeung, who was sitting outside his office and his door was always kept opened.

42.  He further claimed that the conversations he had with Dr Li were misinterpreted by her when they were made without malice or sinister intentions.

The evidence of the defence witnesses

43.  Other than Dr T Wong, the defence adduced evidence from 8 witnesses who gave evidence on their encounters and acquaintances with Dr Li at the University.  They were Professor Martinson, Professor George Woo, Dr Danny Gohel, Dr Meyrick Chow, Miss Gloria Yeung and Ms Kam Wai Chun of the personnel office.  Ms Pamela Smith, chairperson of the inquiry panel and Ms Vanessa Stott, chairperson of the Ethics Committee, gave evidence on the inquiry panel’s set up in February 1999 and the workings of the inquiry panel/investigation committee.

44.  Professor Martinson, Ms Pamela Smith and Ms Vanessa Stott have all retired from the University and returned to their respective home countries. They now have little or no association with the University. 

45.  Professor Martinson was the chair professor at the University between 1 September 1996 and 20 June 2000.  At the time, she was professor and chair of the Department of Family Health Care Nursing at the University of California in San Francisco since 1982 from which she took leave of absence to serve as the Head of Department (“HOD”) of Nursing and Health Sciences (“NHS”) at the University.  Between 1 September 1998 and 31 August 1999, she took time off to return to the University of California.  She resumed the duties of the Head of Department at the University in September 1999 until 20 June 2000.  She remained a visiting professor at the University from 1September 2000 until 31 August 2003.  She informed the court that the University had engaged her assistance in 1996 to raise the standard and improve the status of the Department of NHS both locally and internationally.  To do so, she had been encouraging all professional teaching staff to engage in academic research work, to obtain a doctorate degree and to publish their research work in international refereed journals.  Consequently, all academic staff were assessed by their research output, success in research grant applications and publications at refereed journals.  She was not aware of Dr Li’s alleged sexual harassment claim for Dr Li did not make any such complaints to her at the time.  She also stressed that she had tried to help Dr Li while she was the HOD at the University’s NHS Department.

46.  Both Professor George Woo, the dean of the faculty, and Dr Danny Gohel had brief encounters with Dr Li in 1997 and 1998.  They confirmed their impressions of Dr Li.

47.  Dr Meyrick Chow was a lecturer at the University working at the same department as Dr Li.  He described the unpleasant episode over the preparation of the workbook for a course taught jointly by Dr Li and himself in 1998.

48.  Ms Kam Wai Chun of the personnel office gave evidence on the personnel office’s record on all of University staff and Dr Li’s requests for her personal data and the subsequent access of those documents to Dr Li.

49.  I am satisfied these witnesses for the defence were honest witnesses and had told the truth.  I further accept the documents produced including the departmental memoranda were documents made at the relevant time.  I find it incredible that any of these witnesses would have falsified documents or forged students’ complaints or backdated memoranda in order to malign Dr Li.  The volume of these documents with dates spanning a period of seven years and their consistency with the evidence of the defence witnesses support their veracities.

ANALYSIS OF THE PLAINTIFF’S SEXUAL HARASSMENT CLAIM

(a)  Lack of corroboration

50.  Dr Li’s account of sexual harassment is uncorroborated.  There were no witnesses at any of the incidents when the alleged comments were made by Dr T Wong to Dr Li.

51.  There was also no contemporaneous documentary evidence in support of Dr Li’s allegations from which the court can verify if these incidents did happen as described by Dr Li.  Dr Li referred to a number of emails she had exchanged with Dr T Wong.  I find they were general emails from Dr T Wong on work assigned to and taken up by Dr Li such as the emails Dr T Wong sent to all NHS staff on the production of the department profile on CD-Rom requesting for the department staff’s co-operation or thanking Dr Li for her work, suggesting Dr Li to take the $18,000 grant offered by the DLTC assessment committee, and a general reply on the PUMC project etc.  There were no references of intimate or sexual nature in these communications.

52.  Dr Li claimed she had confided her complaints of sexual harassment by Dr T Wong with a colleague, unfortunately, she did not divulge his/her identity nor did she call him/her to give evidence at the trial.  She also claimed she had consulted a firm of solicitors on her sexual harassment claim at the time and she was advised there was no need to mention all the incidents of sexual harassment in her complaint.  She did not give the name of the solicitor or the firm of solicitors or the date of the advice, but maintained she had paid for the advice given to her.

(b) Delay in lodging complaint

53.  A prominent feature in Dr Li’s claim is that she did not lodge an immediate complaint of sexual harassment at the time they allegedly took place to Professor Martinson, the dean or the University’s Ethics Committee in accordance with the University’s Sexual Harassment Regulations.  Furthermore, it is surprising that she did not confront Dr T Wong when the alleged acts of sexual harassment or comments took place.

54.  Dr Li repeatedly described in her 23 January 1999 complaint against Dr T Wong that it was in ‘retrospect’ she realized they were acts of sexual harassment.  An offer to spend a night with her in Shenzhen and in Beijing, an offer to visit her at her home as she was living alone, and that he had ‘time’ or ‘room’ for a girlfriend in spite of being a married man with children if not said in jest are clear and obvious suggestions for an intimate relationship. If they were not welcomed by Dr Li and if Dr Li felt offended or intimidated by these comments, one would expect Dr Li to have reacted to them strongly and confronted Dr T Wong immediately, or at the very least, reported the matter to someone in senior management position when the suggestions were made to her.  Dr Li failed to explain why these incidents were not mentioned in her 23 January 1999 complaint or disclosed to the inquiry panel.

55.  Based on events in the past described by Professor Martinson and her colleagues in the NHS, Dr Li was not shy to voice her complaints against other colleagues to the department head.  Neither was she timid in expressing her dissatisfaction over what she considered to be unfair or wrong.  Professor George Woo, who was the Dean of the Faculty of Health & Social Sciences, informed the court that he first came to know Dr Li when she visited him on 24 December 1997 at his office.  She was emotional and upset and told him of her grievances.  He recalled she specifically complained that she was coerced by a senior colleague, Dr David Arthur, to sell her car to him even though she did not own one.  She also complained about the comments made against her in the processing of her application to cross the efficiency bar.  She felt she was wronged by senior colleagues in the NHS Department and her desire was to publicise the matter.  Professor Woo comforted her and suggested her to lodge her complaints under the University procedure and regulations rather than publicising her grievances.  She apparently decided not to go public about her grievances after seeing Professor Woo.

56.  Professor Martinson’s evidence was when Dr Li was made the computer liaison officer at the Department in 1996, Dr Li had gone to her office complaining repeatedly of other staff members.  There were sometimes 2-3 complaints per week.  Eventually, Professor Martinson decided to relieve Dr Li from the position because other staff members had complained to her that Dr Li was not helpful.

57.  Dr Li was also not shy of making her views known on the complaints made against her.  This can be seen from her written response to Professor Martinson on Dr Meyrick Chow’s memo to Professor Martinson that they had a difference of opinion on the co-production of a teaching workbook for the course.  Professor Martinson tried to resolve the matter and informed Dr Li that both authors ought to have equal say in deciding the authorship of the teaching workbook for the course.  Dr Li replied by an email on 21 February 1997 to Professor Martinson informing her the way the matter was handled was “insulting, manipulative and degrading”.  Professor Martinson was stunned by Dr Li’s choice of words to her, the HOD (see para 16 of Professor Martinson’s witness statement at p 308 of Bundle B).

58.  On the occasion Professor Martinson and Dr T Wong met with Dr Li on 19 December 1997 to discuss her CEB application, Professor Martinson talked to her about her communication problems and her misinterpretations of comments and events such as taking comments out of context and imagining there was a scheme against her.  Dr Li after learning Professor Martinson had reservations in recommending her to cross the efficiency bar, told Professor Martinson she would go public to demand justice.  It was around this period that the personnel office advised Professor Martinson and Dr T Wong not to meet with Dr Li alone (see para 24 of Professor Martinson’s witness statement at p 310-311 of Bundle B).  It was against this background that Dr Li paid a visit to Professor George Woo, the dean, on 24 December 1997 and complained to Professor Woo threatening to go public about the unfair treatment she received on being told her application to cross the efficiency bar had failed.

59.  The above events illustrated that Dr Li was not shy of lodging complaints to senior management at the University if she felt she was victimised or unfairly treated.  It is therefore hard to understand her silence in spite of the alleged repeated incidents of verbal and other acts of sexual harassment in 1998.  Her first complaint was only lodged on 23 January 1999, one month after she was told by Dr T Wong he would not recommend to ACAS her application to cross the efficiency bar or the renewal of her contract in 1999.

(c)  Changes in Dr Li’s allegations

60.  Dr Li’s initial complaint sent to the President on 23 January 1999 contained just a few incidents alleging Dr T Wong had made inappropriate and unwelcome suggestions or comments to her with no specific dates mentioned (see p 313 of Bundle C1).

61.  There are changes in Dr Li’s allegations after her 23 January 1999 complaint.  In her memorandum to the inquiry panel of 8 February 1998 after her meeting with the panel, she added for the first time the incident that took place after the opening of the Virtual Reality Lab in November 1998 (p 367 of Bundle C1) and an incident in late December 1998 when she received a telephone call at home (the number of which was kept private) that the male caller said to her “watch out if you want to taken (sic) photos like the virtue doll”.  She also added the complaint that Dr T Wong had withdrawn his name as a co-investigator of the DLTC proposal.

62.  In her 2 March 1999 addendum to the inquiry panel’s 8 February 1999 meeting note, under section 6(d), she added a new incident concerning the conversation she and Dr T Wong had over tea about a female colleague, and she was later told by him not to tell the colleague concerned they had lunch or tea.  The description of this incident became more detailed and specific in her Amended Statement of Claim.

63.  In paragraph 26(c) of Dr Li’s 3 March 2002 letter to EOC’s chairperson, she made a further allegation that Dr T Wong had threatened not to renew her contract if she did not comply with his ‘immoral wishes’, indicating to her he was the only one making the CEB recommendation.

64.  In Dr Li’s Amended Statement of Claim of 23 May 2005, she added new allegations against Dr T Wong.  One of them was the incident of the Shenzhen conference that Dr T Wong had offered to accompany her to Shenzhen for one night.  It is hard to understand why Dr Li should omit to mention this important incident in her letters and statements to the EOC.  That almost 6 years after the incident, Dr Li would for the first time include the incident in her Amended Statement of Claim.

65.  The evidence of Ms Pamela Smith, chairperson of the inquiry panel was, at the 8 February 1999 meeting, Dr Li did not provide further details in relation to Dr T Wong’s alleged requests for sexual favours or the alleged incidents of sexual harassment other than those disclosed in her memo to the President of 23 January 1999.  She said, in essence, Dr Li just went over the alleged incidents described in her original complaint.  Dr Li told the inquiry panel that, in retrospect, she realized the campaign of harassment began over 2 years ago.  According to Ms Smith, the words “in retrospect” (or words to similar effect) were used by her on more than one occasion, and she spoke about the matter as if it was with hindsight she thought the alleged incidents were sexual harassment rather than recognized as sexual harassment at the time.  The impression of Ms Smith was :

“In explaining her case to the panel, I observed that she was calm, but she had strong feelings of righteous indignation. It was clear that she bitterly resented Professor Wong. However, her recollection of the alleged incidents of sexual harassment and the incidents themselves were rather vague, and she seemed unable to elaborate on her allegations and just repeated herself a lot during the meeting.”

66.  This indicates Dr Li had gradually built up the volume of alleged incidents of sexual harassment against Dr T Wong between her first complaint on 23 January 1998 and her amended Statement of Claim in May 2005.  Her revelation that it was in retrospect that she realized she was sexually harassed by Dr T Wong between 1996 and 1998 reflected that when the alleged incidents happened they were not perceived as sexual harassment conduct.  She stated in her 23 January 1999 complaint to Professor Poon after she cited the incident that Dr T Wong had suggested taking a trip with her to Beijing on the PUMC project saying to her ‘only you and me’ and at p 4 para 7 she said:

“I now see what he was suggesting, that favours to him could enhance my career (and that refusal could damage it). I would suggest that the statements made of the CEB form, would be a completely different light, if I had complied with his persistent and unwanted requests for sexual and immoral pressure.”

67.  If the Beijing trip was intended to be of intimate or sexual nature, it would have been made clear by the offerer to the recipient rather than referred to in casual conversations and banters between colleagues.  It appears that Dr Li had, upon repeated reflections and deliberations years after the events, came to convince herself that these incidents happened in the way she came to believe they did and words said to her meant more than what was understood originally.

(d)  Inconsistent behaviour of Dr Li at the alleged period of sexual harassment

68.  Dr Li admitted she had addressed Dr T Wong as “亞哥” (“brother”) and his wife “亞嫂” (“sister-in-law”). She claimed to have brought back a toy wombat for Dr T Wong’s daughter after her conference trip to Perth, Australia in 1995, she gave his wife a Wing On VIP card in 1996 and sent him a box of ginseng tea and a packet of seaweed in 1998 from her conference trip to Seoul, South Korea. 

69.  She was also exchanging friendly emails with Dr T Wong over the production of the department CD-Rom in October 1997 and the submission of the DLTC proposal in April 1998.  In her email to Dr T Wong on 23 April 1998 over her DLTC proposal, she wrote, “How do you think of it.  I looking (sic) forward to have a chat with you.” (see Bundle D15 of p 6477).  There were also emails from her thanking Dr T Wong and other colleagues for their support and help in compiling the CD-Rom.  (see the 21 December 1998 email on completion of the electronic departmental profile at p 6821 bundle D15).  These are inconsistent behaviour of a victim towards the person who had repeatedly sexually harassed her and who had been humiliating her or intimidating her by his conduct or comments.

(e)  Evidence from witnesses andother sources

70.  The University produced supporting evidence from departmental heads such as the then dean Professor George Woo, Professor Martinson, Dr Gohel (a section head at the department), Ms Pamela Smith (the then head of English Language Centre and chairperson of the inquiry penal) and Ms Vanessa Stott (the associate head of the School of Accounting and Finance and the chairperson of the Ethics Committee of the University).  Ms Stott and Ms Smith had no or little interaction with Dr Li before the 23 January 1999 complaint, and Dr Gohel had little contact with Dr Li at the time. 

71.  There were inter-departmental memoranda from Dr David Arthur and Dr Frances Wong to Professor Martinson reporting on incidents that Dr Li had acted strangely and lost her temper over minor matters such as accusing other staff of the Department of tampering with her desk or theft (p 428-32 of Bundle C2). Evidence produced also showed Dr Li had accused Dr Frances Wong of unfair distribution of teaching workload (p 428-36 of Bundle C2).  Dr Danny Gohel had complained to Dr T Wong of Dr Li’s insensitive and selective way in compiling the department profile on CD-Rom.

72.  At the trial, Dr Li insisted Dr Frances Wong’s teaching allocation was unfair to her when she was assigned to teach a new class for a small number of degree students which was previously taught together with students from the diploma course. She also claimed that the University’s maintenance team was responsible for installing the padlocks on each of the drawers of her filing cabinet because she had complained to them that the central lock did not work.  She maintained that her observation to Professor Martinson that Dr David Arthur was ‘racist’ for complaining about the toilets in China was correct.  These incidents though minor showed Dr Li often voiced her dissatisfaction and was not shy to confront her colleagues to the extent of being abrasive to colleagues and other departmental staff.  These incidents supported Professor Martinson’s and Dr T Wong’s claim that Dr Li had poor interpersonal relationship at the Department.

73.  There are further documentary evidence including the inter-departmental memoranda from colleagues of Dr Li and Professor Martinson who made a point of recording her encounters with Dr Li and her assessments of Dr Li in her CEB applications in 1997 and 1998.  Further, there were the joint statements of Dr Arthur, Dr Frances Wong, Dr Esther Mok and Ms Samantha Pang of 1 March 1999 and 12 March 1999 to Professor Woo (p 430 and p 444 of Bundle C2).

74.  The evidence of Ms Gloria Yeung supported the claim that Dr Li’s attitude often intimidated the Department staff.  She further added that throughout the period, she did not detect any unusual behaviour between Dr Li and Dr T Wong.

Ms Teresa Tse’s witness statement

75.  Mr Yu urged me to accept the evidence of Ms Teresa Tse who made a witness statement in these proceedings on 2 June 2006.  She unfortunately passed away 2 years ago.  The evidence in her witness statement is hearsay because she did not give evidence in court and the plaintiff was not given an opportunity to cross-examine her.

76.  Section 47 of the Evidence Ordinance Cap 8 provides,

“Admissibility of hearsay evidence

47. – (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless –

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) The court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.”

77.  I am satisfied the witness statement though hearsay should be admissible for the court’s consideration because the maker has passed away.  The only issue is the weight the court should place on the evidence.  S 49 of the Evidence Ordinance provides that:

“Considerations relevant to weighing of hearsay evidence

49. – (1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following –

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by party.”

78.  I have assessed the evidence of the late Ms Tse on her witness statement with the criteria set out in s 49(2) in mind.  I do not believe she had any motive to conceal or misrepresent matters.  Ms Tse’s witness statement was served on Dr Li seven months before the trial and Dr Li did not raise any objection to its being admitted.  I find Ms Tse’s evidence to be consistent with the evidence of Dr T Wong and other defence witnesses.  I also find it is reasonable and practicable for the defence to produce Ms Tse’s witness statement, as it was based on Ms Tse’s direct experience and knowledge.  I have no reason to believe she was not telling the truth from her recollection.

79.  Paragraph 16 of Ms Tse’ witness statement stated that she was sitting at her desk outside Professor Martinson’s office during the meeting between Dr T Wong, Dr Frances Wong and Dr Li on 21 December 1998.  She said she was certain Dr T Wong did not walk Dr Li out of the office after the meeting for Dr Li was sitting close to the door.  She also recalled Dr Li was ‘fairly angry’ after the meeting.

80.  Ms Tse’s evidence supported Dr T Wong’s evidence that he did not escort Dr Li out of the office or said the alleged words to her after the 21 December 1998 meeting.

Pressure to apply CEB in 1998

81.  Dr T Wong was the acting HOD in 1998.  Dr Li blamed him for encouraging her or ‘pressurizing’ her to submit the application when Dr T Wong sent her two emails requesting her to sign the CEB form on 11 January (through his assistant Ms Gloria Yeung) and 29 January 1999, while, at the same time, failed to recommend her to pass the CEB or the renewal of her contract.  It is not disputed that at the 21 December 1998 meeting with Dr T Wong and Dr Frances Wong, Dr T Wong had informed Dr Li he would not be recommending to ACAS her application to cross the efficiency bar or the renewal of her contract.  If Dr Li was indeed told by Dr T Wong to ‘listen to him’ after the 21 December 1998 meeting at the secretary’s compartment and she had no intention of listening to him or accepting his sexual advances, it is difficult to understand why she should feel any pressure in signing the CEB form in January 1999.  Based on the contents of the two emails and the University’s CEB procedure, Dr T Wong was merely carrying out the administrative duties of the acting head of department in reminding all of the department’s assistant professors who had sent their CVs to the personnel office to sign the CEB form for further processing.

82.  Just like the previous 2 years when Dr Li was told by Professor Martinson her reservation in recommending Dr Li’s CEB application, she displayed a strong reaction refusing to accept criticisms of her performance when she was told on 21 December 1998 at the meeting with Dr T Wong and Dr Frances Wong that he would not be recommending her CEB application and the renewal of her contract, she refused to accept the decision.  She further felt cheated later when she was reminded to sign the CEB form by Dr T Wong who did not recommend the renewal of her contract.  In an attempt to look for a reason for the acting HOD’s decision, she became convinced that Dr T Wong had acted out of vindictiveness.  That was why she repeatedly inform the inquiry panel that she lodged the sexual harassment after reflections in retrospect.

Dr T Wong’s proforma reply

83.  Dr Li claimed that Dr T Wong had falsified this document because he was required to send in the proforma reply on the renewal of her contract to the Dean on 8 January 1999 but he had only sent it on 28 January 1999 after she had lodged a complaint of sexual harassment against him on 23 January 1999 to the President.  Dr T Wong, on the other hand, said he was not able to get Dr Li to sign the CEB form for she was on sick leave and he had been delaying the return of the CEB form and his proforma reply waiting for the original CEB form to be signed and returned to him by Dr Li.  Meanwhile, on 14 January 1999, he had orally informed Professor Woo that he would not recommend the renewal of Dr Li’s contract.  According to Ms Stott, she did not see the President’s 29 January 1999 memo requesting her to take up Dr Li’s complaint until after she returned from her departmental retreat (28^th–30^th January 1999).  She was contacted by Dr Li on 2 February 1999 enquiring about the progress of the inquiry panel.  She told her she had only just begun reviewing the documents, it was not until 6 February 1999 that the inquiry panel was set up.  Therefore, Dr T Wong could not have been told there was a complaint against him by Dr Li before 28 January 1999 when he sent his proforma reply to the Dean unless he was personally informed of it by the President or someone from senior management or Dr Li.  There was no evidence the President or anyone in senior management or Dr Li herself had done so.  It was the evidence of Professor Woo that he was not aware of Dr Li’s sexual harassment complaint of 23 January 1999 until sometime in February 1999.  Under the circumstances, Dr T Wong’s reasons stated in the proforma reply consisting of 3 lines the contents of which he had already told Dr Li at the 21 December 1998 meeting (p 354 Bundle C1) could not have been affected by Dr Li’s complaint against him.

84.  I am persuaded Dr Li had exaggerated the past events in her mind and convinced herself that Dr T Wong did not recommend the renewal of her contract in retaliation of her rejecting his sexual advances.  Social conversations gradually took on a different meaning and grew in proportion after months and years of reflections.  In fact, the encounters and exchanges were perceived by her as jocular harmless banters and light hearted social exchanges between colleagues in the department at the time.

85.  It is unlikely for Dr T Wong who was warned by the personnel office not to see Dr Li alone to have made the alleged comments to Dr Li or to meet her alone.  This is particularly so after the outbursts of Dr Li at the previous CEB exercises when Professor Martinson told her of her performance appraisal in Dr T Wong’s presence.  There were also complaints lodged by other colleagues of the department which supported Dr T Wong’s reason for avoiding the company of Dr Li in the absence of other colleagues.  Professor Martinson had long held the view that Dr Li tend to misinterpret comments and situations. I accept Dr T Wong’s evidence that he was careful when he met and talk to Dr Li at the Department.

Unwelcome conduct

86.  The interpretation of ‘unwelcome’ conduct is explained by the Court of Appeal in the case of Chen Ray v Tamera Rus [2002] 1 HKC 546 held at para 9 p 549:

“In my view, the section is clear. When it speaks of an unwelcome sexual advance, or an unwelcome request or unwelcome conduct, the word ‘unwelcome’ must relate to the parties concerned. In particular the matter must be unwelcome in relation to the person who is the object of the advance, request or conduct. Once it is established that such an event has taken place which was unwelcome to the person concerned, it is then a matter of objective assessment as to whether it was such that it should have been anticipated that the person concerned would have been offended or humiliated or intimidated.”

87.  Even if the alleged comments were made, it is on an objective assessment that the comments would have offended, humiliated or intimidated Dr Li.  Dr Li admitted in cross examination she was not put in fear when the alleged comments were made, she admitted she had regarded them as jokes.  Neither was she annoyed or distressed at the time.  She obviously did not associate the alleged remarks with sexual harassment.  The so-called ‘sexual agenda’ was an afterthought after the 21 December 1998 meeting when she was informed the renewal of her contract with the University would not be recommended by the acting HOD.

88.  This explains Dr Li’s failure to react against the alleged comments even if they were made, for she had regarded the alleged comments as jokes. Therefore, they were not ‘unwelcome’ as defined in the SDO.  If she found the comments abhorrent, disgusting, humiliating or intimidating, she certainly would have reacted to them immediately as she had done so with other colleagues including Professor Martinson over her workload, teaching manuals, the security of her personal belongings and her CEB recommendations.  Professor Martinson said at paragraph 32 of her witness statement:-

“In all my years as an academic, I have never been yelled at and threatened by a staff member as I have been by Alice.  Her threat was to “expose” how she had been treated in the Department on the internet and in newspapers.  This threat was repeatedly made to me over several days on December 19 & 20 1997 when she wanted to cross the efficiency bar.  In my view, Alice simply could not accept her own role in her difficulties.  If I fully agreed with her and did exactly what she wanted me to do, she could be very nice.

……

However, when I was unable to do or write exactly what she wanted, then there would be outbursts and she would become very angry with me.”

89.  Professor Martinson who had worked with Dr Li for 3 years further commented at para 29 of her witness statement:

“Alice had the tendency to take comments out of context and imagine that there was a whole scheme against her on the basis of a single comment. I remember spending a great deal of time trying to help her see how she was misreading the situation, but she was unable to see her own problems. The best example of this was when one of our male colleagues, David, made a comment on how bad the toilets were in China and Alice said to me that David was racist.”

90.  It is my conclusion that even if the alleged comments were made, they were not unwelcome at the time.  Dr Li had taken some of the casual comments made by Dr T Wong out of context and after a prolonged period of deliberations came to convince herself that there was a scheme or conspiracy against her by Dr T Wong and the staff of the University.

The defence of due diligence

91.  Even if the alleged comments were made by Dr T Wong and the acts did take place as alleged and even if they could be regarded as acts of sexual harassment, the University asserts that it had taken steps as were reasonably practicable to prevent its employee from sexually harassing Dr Li by introducing a code of Ethics to all its staff members under Administrative Note no 18/97 on 3 October 1997.  Section 2(e) of the Code stated:

“A staff member should not promote nor practice discrimination on the basis of race, colour, language, creed, religion, gender, sexual orientation, mental or physical handicap,and political beliefs.” (p 165 of Bundle C1)

Section 5(2) of the Code provided:

“A staff member should not intimidate or harass, sexually or otherwise, any persons.” (Bundle C1 p 166)

92.  All but 3 of the alleged incidents took place in 1998, after the promulgation by the University of the Code of Ethics.  On the November 1992 incident of the alleged grabbing of hand, Dr Li agreed it was not considered as sexual harassment conduct at the time she lodged her complaint on 23 January 1999; the February or March 1993 incident of invitation to breakfast at the Queen Elizabeth Hospital Canteen at 7:30 am and the July 1995 incident when Dr Li brought a toy fury wombat back from Australia for Dr T Wong’s daughter and Dr T Wong inviting Dr Li for a meal in return, Dr Li admitted she had turned down both invitations. She also admitted she did not regard them as sexual harassment behavior at the time and did not report them to the University senior management.  These incidents were absent in her 23 January 1999 complaint.  In any event, these incidents took place before the SDO came into force.

93.  Dr Li acknowledged the Code of Ethics was made accessible to all of the University’s staff through the intranet of the University.  The University had in addition to the Code established the ‘Staff Appeal and Grievance Procedures’ under circular no 7/95 from the President’s office outlining the resolution of complaint procedure for staff members of the University.  Paragraph 27 of the procedures stated:

“Handling of malicious conduct

27.   In addressing the question of possible malicious conduct in appeals or grievance cases, these procedures start with an assumption that all colleagues in the University community share a common concern for the welfare of the institution, and of the University community of which they are a part.  It is inherent in the concept of a University community that colleagues will behave towards each other in accordance with high standards of ethical behavior.  The first line of defence against malicious conduct, therefore, is a self imposed code of conduct towards colleagues that would preclude acting with malice.”

  (p 6840 of Bundle D15)

94.  The University has therefore implemented steps for resolution of complaint should members of its staff have any grievances or complaints against another staff member in 1995.  With the coming into force of the SDO in 1996, the University published its own Code of Ethics offering the general principles as a conduct guide of its staff members at the workplace. (p 164-182 of Bundle C1)

95.  Under the said Code of Ethics, the University set up “the Regulations for the Resolution of Claims Concerning Violation of the Code of Ethics” and “Policy on Sexual Harassment and Regulations for the Resolution of Claims Concerning Sexual Harassment (see p 307-1 to 307-15 of Bundle C1).  They are posted on the University’s intranet accessible to all staff members and in the staff handbook sent to all staff by email.

The Inquiry Penal and Investigation Committee

96.  When the inquiry panel discovered that Dr Li’s complaint involved complicated issues and its power of investigation was limited, the chairperson, Ms Smith, consulted Ms Stott, the chairperson of the Ethics Committee.  Ms Stott then advised the President to turn the inquiry panel into an investigation committee because it would then be able to obtain and consider other related documents not supplied by the accuser and the accused and to interview other witnesses.  There was, however, no appeal from the investigation committee appointed by the President.  The President approved the recommendation of Ms Stott, leading to the inquiry panel becoming the investigation committee without seeking the prior consent of or notice to the Dr Li or Dr T Wong.

97.  After the investigation committee completed its report, it was sent to Dr Li and Dr T Wong.  Subsequently, Dr Li lodged an objection to the enquiry panel being turned into an investigation committee without a right of appeal.  As a result, the chairperson of the Ethics Committee decided to set up a new enquiry panel to handle Dr Li’s complaint on 15 June 1999.

98.  The oversight of the chairperson of the Ethics Committee in obtaining the prior consent of or consulting Dr Li and Dr T Wong before recommending to the President of the University to turn the inquiry panel into an investigation committee is regrettable and clearly procedurally wrong.  Ms Stott’s and Ms Smith’s suggestion to turn the inquiry panel into an investigation committee may be well intended when the enquiry panel found its hands tied by the limits of its power to fully investigate Dr Li’s complaint due to the serious and complicated nature of her allegations.  Unfortunately, the decision had failed to take into account the wishes and ignored the right of appeal of the accuser and the accused.

99.  The University did, however, took remedial measures and decided to set up a new enquiry panel in June 1999.  Ms Stott had informed Dr Li of the setting up of the new enquiry panel in June 1999 and repeated it in her letters to her in September and October 1999, its work was held back pending the EOC investigation.  The procedural error, however, does not affect the University’s efforts in preventing its employees from committing acts of sexual harassment for it had indeed put in a procedure for the lodging of complaints of sexual harassment through the setting up of an inquiry panel to handle such complaints after promulgating a Code of Ethics regulating and warning its employees against such conduct.  I cannot find any evidence that the investigation committee was set up to cover up Dr Li’s sexual harassment charges against Dr T Wong, neither can I find from the evidence adduced any motive or need for the University to go to such lengths to protect any of its staff members.

100.  I am satisfied the University had taken steps as were reasonably practicable to prevent acts of sexual harassment of its employees in compliance of S 46(3) of the Ordinance.

Victimization

101.  Section 9 of the SDO provides:

“9. Discrimination by way of victimization

(1) A person (“the discriminator”) discriminates against another person (“the person victimized”) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimized less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimized or any other person (“the third person”) has –

(a) brought proceedings against the discriminator or any other person under this Ordinance;

(b) given evidence or information in connection with proceedings brought by any person against or any other person under this Ordinance;

(c) otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance,

or by reason that the discriminator knows the person victimized or the third person as the case may be, intends to do any of those things, or suspects the person victimized or the third person, as the case may be, has done, or intends to do, any of them.

(2) Subsection (1) shall not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

Less Favourable Treatment

102.  The Court of Final Appeal, in the case of Secretary for Justice and ors v Chan Wah and ors  (2000) 3 HKCFAR, in determining whether a particular arrangement involves sex discrimination, held that the Court of Appeal correctly adopted the ‘but for’ test enunciated by Lord Goff on the Sex Discrimination Act 1975 in the House of Lords case of R v Birmingham City Council exp Equal Opportunities Commission [1989] 1 AC 1155 at p 1194A-C.

103.  In order to succeed in her claim of discrimination by way of victimization against the University under section 9, Dr Li has to show the University treated her ‘less favourably than in those circumstances it treats or would treat other persons’ by reason that she had either (a) brought proceedings against the University; (b) given information or evidence in connection with proceedings against the University; (c) otherwise done anything under or by reference to the SDO in relation to the University or any other person; or (d) alleged the University or any other person has committed an act which amount to a contravention of the SDO.  (see section 9(1)(a)-(d) SDO)

104.  The question is whether Dr Li was treated less favourably because the University knew she had lodged proceedings against Dr T Wong or the University under the SDO or had given evidence in such proceedings or alleged the University or any other person to have committed an act in contravention of the SDO. 

105.  The requirement and burden of proof under section 9(1)(a)-(d) was stated by Judge Saunders (as he then was) in the case of Chang Ying Kwan v Wyeth (HK) Limited [2001] 2 HKC 129, following the House of Lords case of R v Birmingham City Council, ex p Equal Opportunities Commission [ 1989] 1 AC 1155,

“In my view a person who complains of discrimination by way of victimization under S 9 SDO must establish that one at least of the four acts set out in S 9(1)(a)-(d) was within the knowledge of the defendant at the time he carried out the acts of which the plaintiff complains. Once that has been established in the absence of an adequate or satisfactory explanation, a plaintiff will have established, on the balance of probabilities that there has been victimization. The burden of establishing that there has been no adequate or satisfactory explanation of the conduct lies upon the plaintiff.”

106.  In the present case, the recommendation not to renew Dr Li’s contract in 1999 was made one month before she lodged a complaint of sexual harassment to the University.  When Dr Li was informed of the decision at the 21 December 1999 meeting at the HOD’s office in the presence of Dr Frances Wong, she knew it was unlikely that ACAS (I) and (II) would renew her contract or allow her to cross the efficiency bar.  That was why she attempted to neutralize the effects of Dr T Wong’s recommendation by her 23 January 1999 complaint to the University’s President.  I find Dr Li has failed to discharge the burden of proof on a balance of probabilities that one of the four acts under section 9(1)(a)–(d) was within the knowledge of the University before a decision was reached not to recommend the renewal of the contract.  Further, there were satisfactory explanations adduced in support of the University’s decision not to renew Dr Li’s contract in 1999 (see paras 116-120 below).  The requirements for victimization have not been fulfilled.

The CEB exercise

107.  Dr Li was clearly unhappy about her experience in the CEB promotion exercise. Her first application was in October 1996, at the time, the comments of Professor Martinson on the application form was:

“I believe Alice Li is becoming a committed and competent staff member. I recommend with reservation for crossing the efficiency bar because of the lack of publications in journals in spite of funding and her somewhat below average in some aspects of the teaching evaluation. Both of these areas I believe can be and will be improved by Alice in future.” (p 66 of Bundle C1)

Dr Li signed Part III of the form to indicate she had read the recommendation of the HOD and she had no views to add on 6 December 1996.

108.  On 3 April 1997, Professor Martinson recorded in her note that she and Dr T Wong had met with Dr Li on 26 March 1997, she told Dr Li she did not pass the efficiency bar because of her poor relationship with staff and that she needed to work on it.  She and Dr T Wong met Dr Li again on 2 April 1997 and Dr Li was said to be more co-operative and “appeared to really listen to our suggestions”. (p 159 of Bundle C1)  In fact, according to Professor Martinson, when Dr Li was told she did not pass the CEB on 26 March 1997, she became very angry and screamed.  (para 18 of Bundle C1 p 308)

109.  On Dr Li’s application for the CEB exercise in October 1997, Professor Martinson’s comments were:

“After last year when I informed Dr. Alice Li of her interpersonal problems, I believed she had made some improvement. I was pleased with her participation with the majority of the staff, for example, our study tour to China. We decided to trust her with the organizing of the first doctoral education forum in Hong Kong and several problems emerged. There was a breakdown in communication on several occasions with Dr. David Arthur in preparation for the SEAFONS. In addition, I believe there has been over-reaction by Dr. Alice Li to various incidents. I recommend Dr. Li to cross the efficiency bar because of her contributions to teaching, but with reservation because her relationship with staff.” (p 190 of Bundle C1)

110.  Dr Li, in response to the comments, sent a reply to the Appointments Committee for Academic Staff in charge of the CEB assessment (ACAS II) with a list of her CV, research work, publications, community involvements and student feedback questionnaires on her teaching.  (p 192–204 of Bundle C1) 

111.  It was Professor Martinson’s evidence that she and Dr T Wong met with Dr Li to discuss her CEB application on 18 and 19 December 1997.  Dr Li refused to sign the CEB form after the discussion and told Professor Martinson and Dr T Wong she would go public and demand justice because Professor Martinson’s reserved recommendation.  Professor Martinson informed her she could file a grievance complaint with the University if she had any real grievances.  Professor Martinson remarked that Dr Li believed she was a victim, she was concerned the way Dr Li was ‘perceiving things and believing things that were not true’.  Professor Martinson subsequently sent a report to Professor Woo, the dean, on Dr Li’s CEB application on 9 January 1998.

112.  Dr Li complained that she was pressurized by Dr T Wong to submit her application for the CEB exercise in late 1998.  She claimed she did not wish to submit an application but she was repeatedly told by Dr T Wong to do so.  This was denied by Dr T Wong.

113.  Based on the evidence of Ms Kam of the personnel office, it was her office that was responsible for initiating the annual CEB exercise.  The personnel office would automatically send to all eligible staff at the University an invitation to submit their CV to start the CEB exercise.  Only assistant professors who had reached the top of their grade would be eligible to apply (ie those lecturers who have been teaching at the University for 4 years and above), if they wished to reach the next salary level.  They would be graded by their teaching, research work, publications and student feedbacks.  It is clear the HOD was not responsible for inviting the academic staff to apply for CEB, the HOD was required to make his/ her recommendations and comments and show them to the staff for the staff to sign in acknowledgement before sending the CEB form to the Dean for his endorsement and further processing by the personnel office including seeking external examiner’s assessment for the consideration of the ACAS(II) (see p 3418-8 of Bundle D7).

The DCTC incident

114.  Dr Li claimed Dr T Wong had encouraged her to apply for the DLTC grant against her own inclination.  She sent in a proposal which included his name as one of the co-investigator.  After the initial application, only $18,000 was granted.  Dr T Wong sent her an email suggesting that she should accept the grant and reapply later for more funding.  She claimed she sent in the second proposal in November 1998 and she was later told by the DLTC panel chairman Dr Alice Lai that she would have got the funding had Dr T Wong not withdrawn his name as a co-investigator.  Dr Li therefore believed he withdrew his name because she had rejected his sexual advances.

115.  The email exchanges between Dr Li and Dr T Wong did show Dr T Wong was encouraging Dr Li to reapply for the DLTC grant after the first round.  It is possible that Dr T Wong had encouraged Dr Li to apply for research funding as the acting HOD, but in December 1998, when he decided not to recommend the renewal of her contract, he withdrew his support.  Whether he had misled Dr Li into believing he would be one of the co-investigator is not known.  On the other hand, I am not persuaded that encouraging Dr Li to apply for research funding was the only means Dr T Wong could get close to Dr Li as alleged by her.  It was the duty of the HOD to encourage the academic staff to apply for research funding.

The alleged scheme of victimization against Dr Li in not renewing her contract

116.  On the issue as to whether Dr Li was victimized by the University when Dr T Wong’s decision against the renewal of her contract was supported by senior staff of the Department  (p 379-381 of Bundle C2), Dr Li perceived there was a scheme of victimization against her because she had rejected his sexual advances.  I cannot find any evidence of such a scheme or that her colleagues were pressurized into supporting Dr T Wong’s decision.

117.  From the evidence given in court by Professor Martinson, Dr T Wong, Dr Gohel, Ms Kam, Dr Meyrick Chow and Ms Gloria Yeung and the documentary evidence, it is clear that Dr Li was a formidable figure to her colleagues, the staff and students at the department.  There were direct complaints made to Professor Martinson between 1996 and 1998 from students about her not allowing students asking questions in class, from colleagues reporting she had complained about allocation of workload and suspecting other staff of stealing from her office which required Professor Martinson to resolve.  There were also complaints from students that Dr Li was shortening the clinical classes in spite of knowing the students were required to fulfill a certain number of clinical hours in the year (p 3 Bundle C1), teaching the students an unorthodox method of injection at the hospital ward (p 487-491 bundle C2) and requesting students to fill in feedback questionnaires handed out and collected by her personally against the University’s policy and practice.  Some of the complaints from colleagues of Dr Li were referred to Mr O’Mullan in 1993, to Professor Martinson and Dr T Wong in 1996 to 1998.  There were further complaints disclosed to in Professor Martinson and Dr T Wong’s recommendation not to renew Dr Li’s contract in 1999 to the University’s Appointments Committee for Academic Staff (I) (ACAS(I)) (see pp 445-446 and pp 386-387 of Bundle C2).

118.  Both Professor Martinson’s and Dr T Wong’s comments on the CEB form and reports to ACAS(1) referred to the low research output and publications from Dr Li during the relevant period.  It was their evidence and the evidence of Professor George Woo that academic staff of the Department were required to publish at least one data based research paper per year in an international refereed journal, show competence in research evidenced by successfully obtaining research grants and professional participation in consultancy work after obtaining a Ph D.  Professor Woo agreed that at each department, it is up to the department head to decide how the requirements were enforced.  According to Professor Martinson, obtaining a Ph D is only an entry level requirement and assistant professors are required to further develop and publish innovative research articles within the first year of obtaining their Ph Ds.  A research article published in a refereed journal is more significant because articles published in an international refereed journal are assessed and reviewed by at least three researchers who are top academics in the field.  That a conference paper or abstract of a few pages even if presented at a conference have minimal scientific value.  (See paragraphs 49 and 55 of Professor Martinson’s witness statement at pp 318-321 Bundle B). 

119.  According to Dr T Wong, 25% of the University’s funding depended on the research output of its academic staff.  At the time of assessing Dr Li’s performance in December 1998, Dr Li’s completed research output consisted of two descriptive journal papers and one data based chapter in a book which was not reviewed by peers.  In spite of repeatedly reminded by Professor Martinson, Dr Li was not able to increase her research output and publish her research in refereed journals.  The grants Dr Li received in the past were mainly internal grants and teaching grants rather than research grants awarded on data base research proposals.  Furthermore, Dr Li did not have much success with research grants from outside sources up to the end of December 1998.  Her Competitive Earmarked Research Grant (CERG) proposal submitted to the Research Grants Committee of UGC in 1998 was considered weak and unsatisfactory and rejected for that reason.

120.  The criteria set down by Professor Martinson are consistent with the University’s guidelines circulated by Professor Edwin Cheng that set the minimum requirements for academic staff.  In the two previous CEB exercises, though Dr Li had positive comments from external assessors, their assessments were subject to ‘no problems in relation to her teaching performance’.  The HOD who had worked closely with Dr Li was clearly in a better position to appraise her performance in teaching and management skills as well as interpersonal relationship at the NHS department.  In fact, in 1996, the then HOD Mr Peter Walsh had expressed at the March 1996 ACAS (1) meeting his reservation in recommending the renewal of Dr Li’s contract because of her poor relationship with colleagues (p 63 Bundle C1). Professor Martinson held the same view in the 1998 appraisal.  Before she left Hong Kong in August 1998, she had indicated in writing that if Dr Li’s interpersonal relationship did not improve, the acting HOD should not recommend her contract to be renewed.  Professor Martinson also pointed out in court that compared with the research output of her contemporaries Dr Vera Yip and Dr Joanne Chung, Dr Li’s research performance was weak in scientific value.  Evidence adduced at the trial showed that the nine assistant professors who had their contracts renewed in 1999 possessed the necessary academic research publications and teaching performance to justify ACAS’s decisions.  Both Professor Martinson and Professor Woo said they did not take into consideration Dr Li’s sexual harassment complaint against Dr T Wong at the ACAS meeting in March 1999.

121.  I am satisfied that it was based on the objective criteria set up by the University that Professor Martinson and Dr T Wong recommended to the ACAS(I) that Dr Li’s contract should not be renewed in 1999.  The reasons set out in the two ASCA(I) minutes at pp377-378 and pp 486-1 & 486-2 in Bundle C2 were fully supported. Furthermore, ACAS had shown it had made an effort in considering the renewal of the contract of Dr Li at its meeting on 10 February 1999 and 13 March 1999 after further information was obtained for its members’ consideration.

Breach of Personal Data (Privacy) Ordinance

122.  Dr Li first requested formally for access to her personal data kept by the University on 28 January 1999.  Not satisfied with the response, she made further requests to the University on 10 February 1999, 11 May 1999 and 31 May 1999.  Unhappy with the 550 pages of documents she was supplied with, she lodged a complaint to the Privacy Commissioner on 2 June 1999.  After an investigation conducted by the PCO, the PCO forwarded its report to the University and Dr Li on 28 October 2000.  The PCO found the University had contravened the PDPO in that the University had failed to provide to Dr Li the following documents:-

(i)  a memo dated 4 May 1999 from Dr Li to the acting HOD (Dr T Wong) of the NHS Department;

(ii)   the data collected by the University before the PDPO came into operation; and

(iii)  an interview record “Re: Complaint of Clinical Supervision. BSN (FT) year two student”.

123.  As a result, an enforcement notice was served on 29 March 2001 to the University requesting the University to (1) conduct a thorough search amongst Dr Li’s personal data in the University’s possession or control and (2) compile and provide to Dr Li a consolidated documents list.

124.  The University appealed to the Administrative Appeals Board, the enforcement notice was amended by the Board on 27 May 2002.  The Board ruled that the University was only required to exercise due diligence rather than conducting a ‘thorough search’.  The University complied with the amended enforcement notice and supplied a further 1,320 pages of documents to Dr Li on 12 July 2002.

125.  Dr Li complained to the PCO on 8 October 2002 of the University’s further non-compliance of the amended enforcement notice.  After obtaining an extension of time explaining the omission was unintentional, and upon further search, it was able to provide a further 143 pages to Dr Li on 11 September 2003.  However, Dr Li failed to collect the 143 pages of additional documents.  These documents have been included in the trial bundle (see D6/404 to D6/419).

126.  It was the evidence of the University’s personnel officer Ms Janice Kam that the University had taken reasonable care and steps to avoid non-compliance of Dr Li’s requests and the amended enforcement notice, her evidence was not challenged by Dr Li at the trial.  Further, it was the view of the Chairman of the Administrative Appeals Board that the PCO’s original enforcement notice should be amended because the imposition of this requirement is contrary to s 30(3)(b) (of the PDPO) where it is stated:

“A data user may refuse to comply with a data access request if –

(b)   the data user is not supplied with such information as the data user may reasonably require to locate the personal data to which the request relates.”

That the data requestor is required to identify the data he/she requires rather than for the data user to prepare a full or consolidated list for the data requestor to pick and choose.  For these reasons, the requirements of “thorough search” and a “consolidated list” were struck out (p 2880-81 of Bundle 5).

127.  Sections 19 and 20 of the PDPO provides that:

“19. Compliance with data access request

(1) Subject to subsection (2) and sections 20 and 28(5), a data user shall comply with a data access request not later than 40 days after receiving the request.

(2) A data user who is unable to comply with a data access request within the period specified in subsection (1) shall –

(a)  before the expiration of that period –

(i)  by notice in writing inform the requestor that the data user is so unable and of the reasons why the data user is so unable; and

(ii)  comply with the request to the extent, if any, that the data user is able to comply with the request; and

(b)  as soon as practicable after the expiration of that period, comply or fully comply, as the case may be, with the request.”

“20. Circumstances in which data user shall or may refuse to comply with data access request

(1) A data user shall refuse to comply with a data access request –

(b)  Subject to subsection (2), if the data user cannot comply with the request without disclosing personal data of which any other individual is the data subject unless the data user is satisfied that the other individual has consented to the disclosure of the data to the request.”

128.  The majority of the relevant provisions of the PDPO came into force on 20 December 1996, these included sections 18, 19, 20 and 66.  It was still a relatively new piece of legislation in early 1999 when Dr Li requested access to her personal data.  At first, the University misunderstood the PDPO and wrongly believed the legislation only covered personal data kept by the University created after the PDPO came into operation. 

129.  The position was further clarified after the Administrative Appeals Board’s decision on 27 May 2002 striking out the enforcement notice issued on 29 March 2001, replacing it with an amended enforcement notice.  The University supplied Dr Li a further 1,320 pages of documents in addition to the 550 pages provided to her in late May 1999.  A further 143 pages were made available to her in September 2003 upon her further demand.  Other than documents, she was supplied with a copy of the taped record of the meeting she attended on 27 March 1999 with a written summary of the meeting on 8 July 1999.  She was also given access to inspect and peruse her personal data at the personnel office on a number of occasions in February 1999.

130.  The findings of the Chairman of the Administrative Appeal Board referred to above (para 126) was that under section 20(3)(b) of PDPO, it is incumbent on the data requestor rather than the data user to identify the data she required. As Dr Li’s data request was extremely wide in scope and the volume of the documents requested was massive, the personnel office had to locate the documents with the joint efforts of the Department of Health and Social Studies, the President’s Office, the Office of the Chairman of ACAS(I) and the Ethics Committee Secretariat, it is understandable that the University’s personnel office required more time and resources in order to comply with the requests.  I accept Ms Kam’s evidence that the personnel office had taken reasonable care and made an effort to fulfill Dr Li’s requests in order to comply with the amended enforcement notice.  It did comply with the amended enforcement notice and meet the statutory time limit when it provided 1,320 pages of documents to Dr Li on 12 July 2002.  I am satisfied the University had exercised due diligence and taken reasonable care to comply with the requirements of the PDPO under section 66(3)(b).

Tampering of personal data

131.  Dr Li claimed the University had tampered with her personal data.  She pointed to the time taken by Dr T Wong in providing her with the personal data she requested on 10 February 1999, even though it was within 1 month when the data requested were given to her on 9 March 1999 by Dr T Wong.  There is no evidence adduced showing any of the documents were altered or fabricated.  The time allowed under section 19(1) of PDPO is 40 days. 

132.  I accept Ms Kam’s evidence that the index of a file on a staff member kept by the personnel office of the University serves as a guide for the office’s internal reference.  The omission to index Dr T Wong’s proforma reply in Dr Li’s personal file does not mean the document was not in existence (para 52 p 524 Bundle B).  Clearly, its accuracy depends on the efficiency and diligence of the personnel office staff to update each staff’s file index timeously.  One cannot assume and conclude from the absence on the index list that the document was fabricated and forged.

133.  Dr Li asserted the fact that the University was not able to produce the taped record of the complaint by two students over the ‘drip fever’ incident meant the complaint was not genuine.  She claimed the students were forced to sign a pre-typed complaint by Dr Vera Yip.  During its investigation, the PCO was given a copy of the typed record kept by Dr Vera Yip who had erased the tape after typing out the complaint.  Therefore, even though Dr T Wong had discarded the copy Dr Yip sent to him, a copy of the report was found in the custody of Dr Yip.  Under section 26 of the PDPO, it is not unlawful for the data keeper to erase data no longer in use.  As there was also a follow up hearing on the ‘drip fever’ complaint in which Dr Li gave her explanation on teaching students an unorthodox method of injection, the ‘drip fever’ incident was clearly not falsified by Dr Vera Yip.

134.  Dr Li alleged that two memos submitted by her to Mr O’Mullan, the section leader in 1993, were tampered with by Dr T Wong or the University.  If they existed, they would have been kept by Mr O’Mullan, who had left the University by 1996, not Dr T Wong who was a course leader at the Department in 1993. 

135.  I am not satisfied there was sufficient evidence to show the University or its staff had tampered with documents relating to Dr Li.

136.  Section 66 of PDPO provides that:

“66. Compensation

(1) Subject to subsection (4), an individual who suffers damage by reason of a contravention –

(a) of a requirement under this Ordinance;

(b) by a data user; and

(c) which relates, whether in whole or in part, to personal data of which that individual is the data subject, shall be entitled to compensation from that data user for that damage.

(2) For the avoidance of doubt, it is hereby declared that damage referred to in subsection (1) may be or include injury to feelings.

(3) In any proceedings brought against any person by virtue of this section it shall be a defence to show that –

(a)  he had taken such care as in all the circumstances was reasonably required to avoid the contravention concerned.”

137.  Section 66 of the PDPO provides for compensation to the data user for damage suffered by reason of a contravention of a requirement under the PDPO.  Section 66(3) provides that if the defendant can show it had taken such care as in all circumstances was reasonably required to avoid the contravention concerned, it shall not be liable.  In the present case, the University has shown it had tried its best to comply with the amended enforcement order even though it might have misunderstood the PDPO at an earlier stage.

138.  Furthermore, there was no evidence Dr Li had suffered any damage or loss or in what way her feelings were injured as a result of the University’s delay in providing all the personal data to her when the request for access was made.  Even if the University was in contravention of the PDPO for the delay in providing the documents, as no evidence on loss or damage directly caused by the delay had been provided, no award of damages will be made.

Defamation

139.  Mr Yu prepared a summary of the Amended Statement of Claim the documents containing the alleged defamatory comments of the University.  It is similar to the ‘examples’ list at p 46 of Dr Li’s final submission.  The documents are set out in paragraph 14 above.  They are documents containing mainly comments on the CEB form and reason for recommending the non-renewal of Dr Li’s contract by Dr T Wong and Professor Martinson, comments of Dr Li’s NHS colleagues, ACAS’s meeting records etc.

140.  The alleged defamatory comments were on Dr Li’s teaching, insufficient research output, poor interpersonal relationship and her performance not being on par with other assistant professors that formed the basis of the recommendations from Professor Martinson and Dr T Wong not to renew her contract in 1999.  The defence had adduced evidence from them at the trial in support of their decision not recommending the CEB and the renewal of her contract.

141.  The comments of Dr T Wong, Professor Martinson and other colleagues disclosed in the memoranda and CEB form were made in the course of their work. Professor Martinson, the HOD and Dr T Wong, who was the acting HOD, were under a duty to give an appraisal of Dr Li.  The University asserted that those comments were true and it was justified to make them.  Even if the truth of some of the charges were not proved, on a balance of probability, if the gist of the comments were true and the remaining charges do not materially injure Dr Li’s reputation due to the truth of the other comments, the defence is only required to establish the imputation in respect of which is substantially true, the defence of justification is afforded to the University.  The defence of justification is found in section 26 of Defamation Ordinance Cap 21 which provides:

“26. Justification

  In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

142.  The second defence of the University is the defence of qualified privilege.  Parke B in Toogood v Spyring (1834) 1 C M & R 181 at 193 held:

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society.”

143.  Further, in the case of Adam v Ward [1917] A C 309 at 334, Lord Atkinson held:

“A privileged occasion is … an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

144.  In para 14.20-14.21 of Gatley on Libel and Slander 11^th ed p 460, the author said:

“(a) Communications made in discharge of a duty

14.20 Introduction. Whether there is a duty to communicate which the law will recognize as creating a privileged occasion depends on all the circumstances and no previous decisions can be conclusive. Nevertheless, some circumstances have regularly been recognized as giving rise to such a duty and are likely to continue to be so.

14.21   Answers to inquiries. Where a person is asked a question about a matter by or on behalf of someone who appears to have a legitimate interest in knowing the answer, the law has recognized that he is under a duty to answer, and that the occasion is privileged; so long as he speaks honestly, he is protected, and the law will not usually inquire into the reasonableness or otherwise of his beliefs.”

145.  In the Hong Kong CFA case of Cheng & Anor v Tse Wai Chun (2000) 3 HKCFAR 339, Lord Nicholls referred to the dictum of Lord Diplock in Horrocks v Lowe [1975] AC 135, at p 355C-E :

“Even a positive belief in the truth of what is published on a privileged occasion … may not suffice to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames.”

and held at p 355J-356A:

“If, adopting the traditional formulation for convenience, a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence. For instance, if a former employer includes defamatory statements in an employment reference with the dominant purpose of injuring the former employee, the former employer is misusing the privileged occasion and this will vitiate his defence of qualified privilege.”

146.  In the present case, the comments of the makers of the documents were all done in discharge of a duty.  The law has afforded them a defence provided the makers did so honestly and without malice or ill will.

147.  The comments of Dr T Wong and Professor Martinson and other colleagues on Dr Li’s performance were made in discharge of their duties whether they be comments on the CEB form or submissions to ACAC(I) and ACAS(II) or documents in support to the Dean, the aforesaid committees or to the President of the University.  Most of the makers gave evidence at the trial, I accept their comments had reflected their observations of her performance through working with Dr Li for a long period of time, and the observations and views expressed were honestly held and without malice.  I cannot find any basis to suggest the makers made the comments dishonestly or maliciously.

148.  I further find the comments expressed in the evidence of Ms Pamela Smith and Ms Vanessa Stott in the process of the inquiry panel and investigation committee of Dr Li’s complaint were made according to opinions honestly held by them.

149.  I am satisfied that the documents with the comments on Dr Li which she alleged to be defamatory of her were substantially true and the University is therefore not liable under section 26 of the Defamation Ordinance.

The defence of the plaintiff’s psychiatric illness

150.  As the defence failed to adduce any evidence in support of this part of the defence, the court will not make any findings on this issue.

Conclusion

151.  Dr Li is a vigorous defender of her own rights.  She does not accept others’ criticisms of her performance easily, she believes she was a competent and effective staff at the NHS of the University.  When she was told her contract with the University would not be renewed, she felt aggrieved refusing to accept the HOD or the acting HOD’s assessments of her performance.  In searching for the reason of the non-renewal of her contract, she came to believe she was a victim of a scheme of persecution against her by the then acting head Dr T Wong.  In order to fight back and to retain her job at the University, Dr Li lodged a sexual harassment claim against Dr T Wong to the President of the University and later a complaint against both Dr T Wong and the University at the EOC.  Not happy with the investigation report of the EOC, she took out these proceedings against the University.

152.  In spite of my sympathy of Dr Li’s predicament after losing her position at the University, for reasons set out above, I found she had failed to prove her case of sexual harassment against Dr T Wong or that the University was vicariously liable to prevent the conduct from occurring.  That even if they did occur, the University had taken steps as were reasonably practicable to prevent Dr T Wong from sexually harassing Dr Li by introducing a Code of Ethics to all its staff members and an Administrative Note on 3 October 1997. I have also found Dr Li was not victimized under section 9(1) of the SDO because the sexual harassment claim was found to be unsubstantiated.  Her sexual harassment complaint was lodged after the acting head of department’s decision not recommending the renewal of her contract or cross the efficiency bar, and the ACAS’s decision was reached without taking into account the sexual harassment complaint she lodged with the President on 23 January 1999 or the EOC on 29 February 1999, she was assessed on her performance at the University, there was no victimization of Dr Li by the University under section 9 of SDO.

153.  I have also found the University had exercised due diligence and reasonable care in providing Dr Li access to her personal data as required by the amended enforcement notice, the section 66(3) of the PDPO defence is available to the University.  In any event, there was no damage shown by Dr Li as a result of the delay or injury to feelings.  Therefore, no damages are payable.

154.  I have also concluded that the University has shown it is entitled to rely on the defence of justification under section 26 of the Defamation Ordinance, in that there was a large volume of documents, departmental memoranda, notes and records in support of the comments of the makers of the documents on Dr Li’s performance which were true or substantially true.  The contemporaneous documents supported the comments and opinions expressed by the makers and they were made without malice or ill will.  I accept the defence of qualified privilege is available to the makers of the documents and the University because the makers were in discharge of their duties when the comments were made.

155.  On the aforesaid basis, I dismiss the plaintiff’s claims against the University.  Though Dr Li was said to be ill for a brief period and receiving medical/psychiatric treatments in 2009, she had recovered from the illness in early 2010, there were long periods of delay in 2006 to 2008 and 2008 to 2010, which were unjustified.  The length of time taken for the trial to take place may have been partly contributed by the interlocutory applications from both parties, however, the complexity of the claims against the University launched by the plaintiff is an obvious contributing cause.

156.  The plaintiff was declared bankrupt on 4 July 2012, she has also informed the court she has not been engaged in gainful employment since 1999, therefore, it may be a futile exercise to make an order of cost against her.  Under section 73B(3) of the District Court Ordinance Cap 336, each party shall bear its own costs on the SDO claims unless special circumstances are shown or the action was frivolously or maliciously brought.  On the other hand, the claims under the Personal Data (Privacy) Ordinance and defamation should never have been brought, I cannot see any reason why costs should not follow the event so far as those two causes of action are concerned.  I therefore make an order nisi of costs against the plaintiff on the two aforesaid causes of action to be taxed if not agreed with certificate for counsel.  Unless there is an application on costs within 14 days hereof, the order will be made absolute.