DCEO 4/2016
[2018] HKDC 1485
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES ACTION NO 4 OF 2016
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BETWEEN
X
Claimant
and
MELVYN KAI FAN LAI
1st Respondent
LEIGH & ORANGE LIMITED
2nd Respondent
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Before: His Honour Judge Ko in Court
Dates of Hearing: 8-12 January, 6-9 and 12 February 2018
Date of Judgment: 30 November 2018
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JUDGMENT
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A. Background
1. This is a sexual harassment case.
2. The claimant (“X” [1] ) is a young female professional pursuing a career in the field of architecture. In 2007, she took up employment with the 2nd respondent (“L&O”), which is a reputable architecture firm with a long history in Hong Kong.
3. In April 2011, X was promoted to the position of Project Designer and began working under the supervision of the 1st respondent (“ML”), who was then an Associate Director of L&O. ML has since become a Director of the firm.
4. There had not been any complaint by X against ML, whether to ML or to L&O, whilst she was working at L&O. On 3 July 2013, X suddenly gave 2 months’ written notice of resignation and her employment ceased on 2 September 2013.
5. On 21 January 2014, she lodged a sexual harassment complaint with the Equal Opportunities Commission (“EOC”) against ML.
6. On 10 March 2016, she commenced this action against both ML and L&O.
B. The claim
7. Essentially, X complains that she was sexually harassed by ML whilst she was under his supervision and L&O, as her employer, had failed to do what was necessary to prevent sexual harassment in the workplace.
8. According to her Amended Notice of Claim (“ANOC”), ML frequently touched her, often scanned and stared at her body, and sent her text messages that made her uncomfortable. In February 2012, ML invited her to attend an exhibition in Shenzhen. During the trip, he took excessive and unusually candid photographs of her that caused her to feel that her privacy had been invaded.
9. As against L&O, X alleges that the firm had no policy on sexual harassment and provided no anti-sexual harassment training to its staff. Furthermore, it is alleged that the firm had no complaint or grievance procedure.
10. By this action, X is seeking the following relief:-
(a) a declaration that ML had engaged in conduct that is unlawful under the Sex Discrimination Ordinance, Cap 480 (“SDO”); and an apology from him;
(b) an order requiring L&O to implement policies and procedures to address sexual harassment in the workplace;
(c) an order that ML and L&O ought not to repeat or continue with any unlawful conduct; and
(d) damages.
C. The defence
11. Both respondents deny any sexual harassment.
12. They aver that X’s claim is, in any event, time-barred.
13. X’s boyfriend (“Y”[2] ) used to work in L&O. His employment was terminated in late June 2013. It is ML’s case that X was motivated to claim against him by her mistaken belief that he was somehow responsible for Y’s termination.
14. On the part of L&O, they claim that they had taken such steps as were reasonably practicable to prevent sexual harassment in the workplace and invoke the statutory defence under section 46(3) of the SDO.
D. The trial
15. The claim pursued by X at trial is narrower than her pleaded case.
16. First, it was pleaded in paragraph 10 of the ANOC that the impugned conduct was “contrary to the Sex Discrimination Ordinance and/or contrary to common law”. However, the parties have only invited me to consider if ML had engaged in conduct contrary to the SDO and the trial proceeded on that basis.[3] No one has addressed me on any common law cause of action.
17. It is still unsettled whether there is a tort of harassment at common law in Hong Kong.[4] And it is not clear whether the reference to “sexual” harassment is meant to add anything to such common law cause of action if it exists. As the parties have elected not to argue the issue, I shall say no more on it. The ensuing discussion on “sexual harassment” is therefore premised on the SDO.
18. Secondly, the primary case of X against ML was based on section 23(3) of the SDO (sexual harassment against a colleague at work). Although X also invoked section 24(3) (sexual harassment against someone seeking or undergoing training) in the ANOC, no such claim was pursued at trial.
19. Thirdly, “sexual harassment” as defined in the SDO covers two types of harassment: (i) quid pro quo harassment under section 2(5)(a) and (ii) hostile environment harassment under section 2(5)(b).[5] Typically, the first type involves a person in a position of power making unwelcome sexual advances, requests or conduct to a subordinate in return for a benefit or under a threat of a detriment. The second type concerns one or more persons engaging in conduct that creates a hostile or intimidating environment for the victim. Whilst the claimant’s counsel (Ms McClellan) made references to both limbs in her closing submissions (at §12(iii)), no argument was in fact advanced on the latter.
20. Fourthly, X’s claim against L&O is primarily one of vicarious liability based on section 46(1) of the SDO. Despite the pleading in paragraph 29 of the ANOC that L&O also owed X a duty of care, no argument was advanced in that regard.
21. Given the above refinements, the broad issues that require determination are:-
(1) Whether X’s claim is time-barred under the SDO?
(2) Did ML commit any unlawful sexual harassment against X in terms of the SDO?
(3) Is X motivated to claim against ML to avenge Y’s termination of employment?
(4) If ML is found to have committed any unlawful sexual harassment, should L&O be vicariously liable and whether it may escape liability by reason of section 46(3) of the SDO?
22. In terms of evidence:-
(a) X testified and called Y, Cindy Lam and Au Man-Ying to give evidence. They were all former employees of L&O.
(b) ML testified and called no witnesses.
(c) On behalf of L&O, David Stanford (Principal Director), Chan Mo-Yee (General Manager), Wong Yau-Lim (Associate), Ng Kwong-Fai (Clerk) and Nicholas Lai (Director) gave evidence.
I shall set out their testimony in the discussion below insofar as they are relevant to any issue.
23. There is no dispute over the documentary evidence contained in the trial bundles (“Bundle”), including the documents pertaining to X’s complaint to the EOC.
E. Discussion
E1. Whether X’s claim is time-barred under the SDO?
24. As stated above:-
(a) X’s claim against ML is based on section 23(3), which is contained in Part 3 of the SDO; and
(b) X’s claim against L&O is based on section 46(1).
25. Under section 76 of the SDO:-
“(1) A claim by any person (the claimant) that another person (the respondent)–
…
(c) has committed an act of sexual harassment against the claimant which is unlawful by virtue of Part 3 …; or
(d) is to be treated, by virtue of section 46…, as having committed an act of … sexual harassment referred to in paragraph … (c) against the claimant,
may be made the subject of civil proceedings in like manner as any other claim in tort.
…
(3) Proceedings under subsection (1) shall be brought in the District Court...”
26. The jurisdiction of the District Court to hear such claims is not unqualified. Under section 86:-
“The District Court shall not consider a claim under section 76 unless proceedings in respect of the claim are instituted before the end of the period of 24 months beginning–
(a) when the act complained of was done...”
27. According to X’s case, the impugned acts happened between December 2011 and September 2013. As this action was only commenced on 10 March 2016, her claim is prima facie time-barred.
28. Ms McClellan deployed two arguments to tackle the limitation defence.
29. First, she argued that: “the impugned acts continued and extended over [X’s] employment whilst under the supervision of Mr Lai from late 2011 until she left her employment in 2013”. Under section 86(5)(b), any act extending over a period shall be treated as done at the end of that period. By such argument, she is hoping to defer the commencement of the limitation period in respect of all the impugned acts to 2 September 2013.
30. More importantly, Ms McClellan invoked section 86(2A) which is in these terms:
“For the purposes of determining the period under subsection (1) within which proceedings may be brought, where an act to which the claim relates was the subject of a complaint lodged under section 84(1), then the period that elapsed between the date when the complaint was lodged and the date when the complaint was disposed of under section 84(3) or (4), as certified in writing by the Commission, shall be disregarded.”
31. She relied on the oral testimony of X (in terms of paragraphs 30 to 36 of the ANOC) and argued that the period that elapsed between 21 January 2014 (being the date when X lodged her complaint with the EOC, as pleaded in paragraph 30) and 31 December 2014 (being the date when the complaint was disposed of by the EOC, as pleaded in paragraph 33) should be disregarded in reckoning the limitation period. If she was right, then a period of about 12 months might be knocked off and X’s claim would be within time. However, I do not agree with her contention.
32. Section 86(2A) specifically calls for written certification by the EOC of the period that elapsed between the date when the complaint was lodged and the date when the complaint was disposed of. Despite her submission that “the letter from the EOC on 31 December 2014 satisfies the requirement under section 86(2A) of certification in writing from EOC”, that letter was only mentioned in paragraph 33 of the ANOC (which was adopted by X in her oral testimony) but was never produced. So, there is no written certification based upon which X could invoke section 86(2A).
33. In the end, Ms McClellan was driven to invoke the residual discretion of the court to entertain X’s claim under section 86(3) of the SDO – a course which was neither pleaded nor argued in her written submissions.
34. That section provides that:-
“Notwithstanding subsections (1) and (2), the District Court may consider any claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
35. All parties agree that I should adopt the following approach, taken from Siu Tung Choi v Foo Lum Holdings Ltd [2016] 1 HKLRD 1411 at §29:-
“Although s 82(3), DDO [which is equivalent to s 86(3) of the SDO] gives the court a discretion to consider a claim which is out of time if it is just and equitable to do so, it has not spelled out the specific factors to which it should have regard. I accept the submission of Mr Chiu [counsel for the respondent], with which Ms Szeto [counsel for the claimant] does not seem to disagree, that in exercising the discretion, the court would be assisted by a consideration of the matters listed in s 30(3) of the Limitation Ordinance (Cap 347), insofar as they are applicable. I bear in mind, however, that the six specific factors listed there are non-exhaustive and that s 82(3), DDO requires the court to look at ‘all the circumstances’. I note also that it is well-established that under s 30 of the Limitation Ordinance it is for the plaintiff to show that it is equitable to allow the claim to proceed, and it is for the defendant to show prejudice if the claim is to proceed: see Cheung Yin Heung v Hang Lung Real Estate Agency Ltd [2010] 3 HKLRD 67. In my view, similar onuses should be placed on the claimant and the respondent respectively in relation to s 82(3), DDO…”
36. The six specific factors mentioned above (couched in terms of a general civil action) are:- (i) the length of, and the reasons for, the delay on the part of the plaintiff; (ii) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed; (iii) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (iv) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (v) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and (vi) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
37. In the present case, I am not satisfied that it is just and equitable for the court to entertain X’s claim made out of time.
38. First, X is still 6 months out of time even if I accept the continuous act argument advanced by Ms McClellan. The period is not insubstantial bearing in mind that the SDO requires proceedings to be commenced within 24 months.
39. Secondly, according to X she had been on guard prior to ML becoming her supervisor by reasons of the rumors that ML had acted inappropriately against other female staff. When she began receiving uncomfortable text messages from ML and was allegedly touched on her thigh in December 2011, she should have realised that she had fallen victim to sexual harassment. According to her, she had since then been subjected to daily and escalating harassment. Yet, she did not raise any complaint until January 2014 and only commenced this action in March 2016.
40. It is not X’s case that she had been prevented by illness or disability from commencing this action. There is also no suggestion that the respondents had anything to do with the delay.
41. Ms McClellan has suggested from the Bar table that X had wanted to avoid multiple proceedings and to pursue her complaint through the EOC process. The suggestion is not borne out by the evidence.
42. According to X, EOC investigated her complaint and suggested conciliation. On 31 December 2014, she was informed that conciliation had failed whereupon she applied for legal assistance to pursue her complaint further. The EOC granted her legal assistance in April 2015, but the same was later withdrawn in December 2015. So, the EOC process had ended long before September 2015 (being 24 months from September 2013 when the limitation period began to run according to Ms McClellan’s continuous act argument). X had legal assistance when the limitation period ran out in September 2015 but did not file any claim.
43. X explained that she had been afraid that her career would be jeopardized if she raised a complaint. In particular, she was mindful of the importance of obtaining a good reference. That was why, according to her, she had reacted passively to the harassment.
44. In my view, that does not explain the delay. X left L&O in September 2013. In late October 2013, she received a favourable reference from L&O which was in terms of a draft submitted by her. She took her professional examination and then went on an overseas trip. Upon returning to Hong Kong, she looked for a job and was offered employment at another established architecture firm in mid-January 2014 on terms that were more favourable than her employment with L&O. So all her inhibitions were gone by January 2014 and she complained to the EOC on 21 January 2014. Yet, she did not file a claim before the limitation period ran out in September 2015 notwithstanding the fact that she had legal assistance at that time.
45. By the foregoing analysis, it was X’s own making that she had missed the deadline and the delay remains unexplained.
46. Thirdly, I do not agree with Ms McClellan that X had “timelessly pursued her claims both vis-à-vis the EOC and vis-à-vis these court proceedings”. As mentioned above, there is no explanation as to why X did not commence proceedings when she had legal assistance from the EOC. It took her another 3 months after the termination of her legal assistance to commence this action.
47. Fourthly, there is evidence that what was adduced at trial in terms of evidence has become less cogent because of the delay.
48. According to Ms McClellan, the claimant called Cindy Lam to give similar fact evidence. It is Ms Lam’s evidence that she had been sexually harassed by ML whilst she was working in L&O. She made a complaint to her supervising Director (David Stanford) and to the Principal Director (Dominic Lam) but to no avail.
49. ML admitted in court that he had been informed by the management of a complaint made against him by a female colleague but claimed that he had not been told of the details (such as the identity of the complainant). He only learnt about Ms Lam’s complaint through reading her witness statement filed herein and he denied her allegations.
50. David Stanford (a witness for L&O) could not recall either Ms Lam or her complaint. Dominic Lam retired from L&O in 2013 and was not available to give evidence. The staff record pertaining to Ms Lam was destroyed. The bits and pieces of documentary evidence produced by Ms Lam (such as unsigned timesheets, her resignation letter and reference letter) do not shed light on her complaint. It is understandable for L&O’s counsel (Mr Chung) to complain in his closing submissions that his client would suffer grave injustice if X were allowed to proceed with her claim under such circumstances.
51. Lastly, I am directed by section 86(3) to consider all the circumstances. ML’s counsel (Ms Herbert) made the point that the claimant had been alerted to the missing certificate on the first day of the trial and could have plugged the loophole (so to speak) as the trial had been adjourned part-heard for a month in the middle of the claimant’s case. Yet, nothing was done to remedy the situation.
52. In summary, X’s claim is clearly out of time and the delay is substantial. No explanation has been proffered for the delay. There is no good reason for me to overlook the clear requirement of section 86(2A) (of written certification) in the circumstances of this case for X to proceed with her claim notwithstanding that it is out of time.
53. So, X does not get pass the first hurdle and her claim should be dismissed on the limitation ground alone. In deference to the submissions made, I shall continue to discuss the merits of her claim.
E2. Did ML commit any unlawful sexual harassment against X in terms of the SDO?
54. Before turning to the specific complaints, I shall first discuss what “sexual harassment” is and how it may be proved.
E2.1 What is “sexual harassment” under the SDO?
55. “Sexual harassment” is defined in section 2(5) of the SDO:-
“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.”
56. Sections 23 and 24 apply the definition in employment field. Of particular relevance to this case is section 23(3), which 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.”
There is no dispute that this is applicable, as ML and X were both employed by L&O at the time.
57. The Court of Appeal has given guidance in Chen Ray v Tamara Rus [2001] 3 HKLRD 541 (at §9) on how sexual harassment under section 2(5)(a)[6] may be proved:-
“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.”
58. Three aspects of the test were mentioned:-
(a) The evidential aspect: that it must be established that the event complained of has taken place.
(b) The subjective aspect: that the event must be unwelcome to the person concerned.
(c) The objective aspect: that it should have been anticipated as a matter of objective assessment that the person concerned would have been offended, humiliated or intimidated by the event.
59. For the purpose of the ensuing discussion, the first aspect requires some elaboration.
60. First, the general rule in civil cases is that the party who substantially asserts the affirmative of an issue bears the burden of proof.[7] Since the SDO provides (in section 76) that a sexual harassment claim may be made the subject of civil proceedings in like manner as other tort claims, it is for X to establish that the impugned conduct has taken place. On the other hand, it is for ML to substantiate his accusation that he is being framed by X.
61. Secondly, whilst the standard of proof in civil cases is generally on the balance of probabilities, the civil standard is flexible in its application. In A Solicitor (24/07) v The Law Society of Hong Kong (2008) 11 HKCFAR 117 at §116, the Court of Final Appeal said that:-
“The more serious the act or omission alleged, the more inherently improbable must it be regarded. And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.”
62. In the often-quoted judgment of Lord Nicholls in H (Minors) [1996] AC 563, it was explained (at 586D-H) that:-
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue, the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”
63. In the present case, X’s allegation of sexual harassment and ML’s allegation of frame up are both serious. Both allegations arose in the context of their professional practice and impact on their integrity. If X is right, then ML may even have committed the offence of indecent assault. However, accidental touching is generally more likely than deliberate touching especially in an office environment. On the other hand, even if ML is exonerated by these proceedings, it does not mean that X had lied. It is generally more likely that she was over-sensitive to ML’s conduct than for her to deliberately lie or invent evidence to frame him. In the premises, I shall consider the evidence carefully to see if their respective allegation is cogent enough to overcome the unlikelihood of what is alleged.
64. Thirdly, the event complained of is one of sexual harassment. What distinguishes sexual harassment from other forms of statutory harassments[8] is the “sexual” nature of the complaint – viz the statutory definition is couched in terms of “unwelcome sexual advances”, “unwelcome request for sexual favours” and “unwelcome conduct of a sexual nature”.
65. Section 2(7) of the SDO provides an example of “conduct of a sexual nature”, namely, making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing. Again, the “sexual” nature of the statement is emphasized. Apart from that, there is no elaboration in the ordinance of what “sexual” means.
66. The online Oxford dictionaries carries this meaning of the word: Relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.[9]
67. It has been said that our laws on sexual harassment were modelled on Australian jurisprudence.[10] Our definition of “sexual harassment” is almost identical to that in section 85 of the Equal Opportunity Act 1995 of the State of Victoria in Australia.
68. In AB v Adult Multicultural Education Services [2006] VCAT 1862 at §§18 & 19, Judge Davis of the Victorian Civil and Administrative Tribunal Human Rights Division said this of the Australian provision:
“It is clear from section 85 of the Act that ‘conduct of a sexual nature’ is confined to words or conduct of a sexual nature which can be characterised as sexual or sexually-related. The term has a broad scope and essentially relates to matters which have to do with sexual activity or attraction or relationships. It may refer to physical activities such as touching, pinching or patting in a sexual manner, or may refer to other words or conduct, such as commenting on parts of a person’s body regarded as having a sexual function, requesting sexual intercourse, explicit language, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is ‘sexual’ may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time.
Sexual harassment in the workplace is likely to be covert, and generally speaking, occurs when a person is subjected to unsolicited and unwelcome sexual conduct by another where that person knows or ought to have known that the conduct was unwelcome. The test to be applied to determine whether conduct is of a sexual nature is an objective one and does not take into account the motivation of the perpetrator or the individual. Rather, regard must be had to all the circumstances.”
69. It is apparent from the above that the meaning of “sexual” extends beyond indecency. Depending on the circumstances, physical activities, words or conduct relating to matters which have to do with sexual activity, physical attraction or relationships can amount to sexual harassment.
70. In the Hong Kong context, the EOC has issued a “Code of Practice on Employment under the Sex Discrimination Ordinance”(“the EOC Code”) aimed at, inter alia , the elimination of sexual harassment.[11] It contains the following examples of sexual harassment in the workplace:[12]
(a) unwelcome sexual advances – eg leering and lewd gestures, touching, grabbing or deliberately brushing up against another person;
(b) unwelcome requests for sexual favours – eg suggestions that sexual co-operation or the toleration of sexual advances may further a person’s career;
(c) unwelcome verbal, non-verbal or physical conduct of a sexual nature – eg sexually derogatory or stereotypical remarks; persistent questioning about a person’s sex life; and
(d) conduct of a sexual nature that creates a hostile or intimidating work environment – eg sexual or obscene jokes around the workplace, displaying sexist or other sexually offensive pictures or posters.
71. The EOC has also published a few booklets to educate the general public on sexual harassment and to provide practical assistance.[13] The booklet entitled “Preventing and Dealing with Sexual Harassment” (“the EOC Booklet”) carries the following examples of sexual harassment:[14]
- Repeated attempts to make a date, despite being told “NO” each time
- Comments with sexual innuendoes and suggestive or insulting sounds
- Relentless humour and jokes about sex or gender in general
- Sexual propositions or other pressure for sex
- Implied or overt threats for sex
- Obscene gestures or inappropriate touching (eg patting, touching, kissing or pinching)
- Persistent phone calls or letters asking for a personal sexual relationship
- Displaying sexually obscene or suggestive photographs or literature
- Sexual assault or forced sexual intercourse (rape)
72. In my view, the examples given by the EOC for the Hong Kong context are consistent with the ordinary meaning of the word and the elaboration of Judge Davis. In particular, conduct of a sexual nature is not confined to indecent conduct, see the example of “Repeated attempts to make a date, despite being told “NO” each time”. These examples, whilst not exhaustive, demonstrate the broad ambit of the law in terms of protection against sexual harassment.
73. The second and third aspects are derived from the statutory definition.
74. On the subjective aspect, the Court of Appeal said (in Chen v Tamara Rus at §9)that:-
“When it [ie section 2(5)(a)] 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.”
75. It does not matter how the complainant viewed the advance, request or conduct in retrospect.[15] What matters is that “at the time when the matters of which complaint is made took place they were unwelcome to the plaintiff”.[16]
76. It was also said in the first instance decision of Chen v Tamara Rus , supra that:-
“The Court, in considering whether the complainant welcomed the conduct, may consider all the circumstances, including the plaintiff's testimony in Court, as well as his behaviour at the relevant time. If the advances were solicited, procured, or invited by the plaintiff at the material time, it can hardly be said that such advances were unwelcome. Although the plaintiff is not required to prove that he expressly objected to the harasser or to any other representative of the employer about such unwelcome conduct, it is certainly one factor for the Court to consider in deciding whether the conduct alleged was unwelcome or not.”
77. One cannot have workable laws which proscribe activities solely based on the attitude of the recipient of those activities. Apart from proving that the impugned conduct was not welcome by the complainant, it must also be shown that a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, humiliated or intimidated. This is the objective aspect of the test.
78. The relationship between the subjective and objective aspects of the test was discussed in Reed v Stedman [1999] IRLR 299at §30 (a case cited by all the parties):-
“As to whether the conduct is unwelcome, there may well be difficult factual issues to resolve. In general terms, some conduct, if not expressly invited, could properly be described as unwelcome. A woman does not, for example, have to make it clear in advance that she does not want to be touched in a sexual manner. At the lower end of the scale, a woman may appear, objectively, to be unduly sensitive to what might otherwise be regarded as unexceptional behaviour. But because it is for each person to define their own levels of acceptance, the question would then be whether by words or conduct she had made it clear that she found such conduct unwelcome. It is not necessary for a woman to make a public fuss to indicate her disapproval; walking out of the room might be sufficient. Tribunals will be sensitive to the problems that victims may face in dealing with a man, perhaps in a senior position to herself, who will be likely to deny that he was doing anything untoward and whose defence may often be that the victim was being over-sensitive. Provided that any reasonable person would understand her to be rejecting the conduct of which she was complaining, continuation of the conduct would, generally, be regarded as harassment.”
79. In my view, the example of “Repeated attempts to make a date, despite being told ‘NO’ each time” mentioned in the EOC Booklet provides a good illustration of the interplay between the three aspects of the test. An attempt to make a date with another person may be due to physical attraction or out of a genuine desire to build relationships instead of anything indecent. Nonetheless, persistent attempts to make a date in the face of repeated rejections can constitute sexual harassment if the circumstances are such that a reasonable person would have anticipated that the complainant would feel offended, humiliated or intimidated. As it is for each person to define his/her own level of acceptance, it is often necessary (save for conduct that is clearly “sexual”) for a complainant of sexual harassment to make known his/her rejection before repetition of a similar conduct could amount to sexual harassment.
80. In one of the first cases on sexual harassment in Hong Kong,[17] the court accepted that:-
“Anti-discrimination laws cannot be taken to proscribe or discourage consensual sexual activity, whether in the workplace or elsewhere. Hence the initial requirement that the sexual activity should be unsolicited and unwelcome. A person who makes advances, knowing that they are reciprocated, cannot be guilty of unlawful discrimination. Nor can a person who makes advances genuinely believing them to be welcome, so long as the circumstances are not such that he should, objectively, have realised that they were unwelcome. In other words, if an employer continues to make advances to an employee, against the employee’s objections, then even though that employer might personally believe that the objections were not meant seriously, and that his advances were quite welcome, nevertheless he can still be guilty of discrimination. The test then will be whether the circumstances were such that he should have realised that his approaches were unwelcome. Each party has something of a responsibility here: The employer has an onus to take the employee’s objections seriously, and not to proceed with advances in the face of any apparent unwillingness or reluctance on the part of the employee… [T]here is also an onus upon the employee to make her unwillingness known to the employer.”[18]
81. In the present case, whilst some of X’s complaints are clearly sexual (such as the touching of her buttocks and thigh, and the staring and scanning of her body), her other complaints (such as the text messages) are more subtle. For the latter type of complaints, it would be necessary for her to show that the circumstances of her complaint were such that a reasonable person would have anticipated that she would be offended by such conduct.
82. I shall now turn to the specific complaints. To recap, they comprise:-
(a) touching of buttocks, thigh and hand;
(b) staring and scanning;
(c) taking excessive and unusually candid photographs of her at the Shenzhen Biennale exhibition; and
(d) uncomfortable text messages.
E2.2 Physical contact
83. Of the allegations, those involving physical contact are most indicative of sexual harassment. As said in Reed v Stedman , a woman does not have to make it clear in advance that she does not want to be touched in a sexual manner.
E2.2(a) Touching of buttocks
84. The touching of buttocks allegedly happened on 8 July 2013 during a site inspection. On that day, ML led a delegation (including Government officials) to inspect a 13-storey building. Although X had not been involved in the project, ML invited her to come along and she agreed to join as it would be a good opportunity for her to learn and gain experience.
85. It is X’s evidence that: “During the site visit, I fell behind the group to look at the walls and the finishings and was walking along a corridor that was about 2.5 meters wide. I thought I was alone in the corridor until someone came up behind me and brushed my buttocks. I was shocked and abruptly turned around upon which I saw Mr Lai over my shoulder. He said ‘oh, sorry’ to me and walked past quickly.”
86. She suspected that: “… Mr Lai had invited me to the site visit in order to do something like this and waited for his opportunity and when he saw me alone, he brushed past me, touching me. I believe that Mr Lai set up this opportunity and abused my eagerness to gain more experience. I was furious and I felt insulted by his inappropriate behaviour.”
87. All these are denied by ML.
88. I do not think X has quite established the event.
89. X’s accusation, if substantiated, amounts to the commission of the offence of indecent assault. However, the circumstances of the inspection were such that it was rather unlikely for ML to have done that.
(a) ML was the Authorised Person responsible for the project and the person-in-charge of the inspection. On that day, he led a delegation of 50 to 100 people (including Government officials) to inspect the building for the purpose of issuance of occupation permit. He walked the Government officials through the building and dealt with their queries. Any impropriety on his part would entail serious consequences for himself, the firm and the project.
(b) Ng Kwong-Fai, a clerk of works of L&O, also attended the inspection. He was responsible for following the group around and taking notes for follow-up actions. He recalled that: “It was a very busy day and the inspection was, by nature, very fast-paced... The AP [ie ML] was preoccupied with guiding the Building Surveyor around while answering questions raised by them. At all times during the inspection, I along with the staff from the 2nd Respondent [ie L&O], followed the AP and the Government representatives… Throughout the inspection, I did not recall seeing the AP leaving the Building Surveyor or staying away from the group at the front.”
Although Mr Ng fairly accepted under cross-examination that there had been occasions when ML had gone out of his sight, his evidence on the general circumstances of the inspection was not disputed. In my view, it was rather unlikely (given the pace of the inspection) for ML to find the opportunity to leave the group (with the intention of assaulting X) and to locate X (in a 13-storey building) to indecently assault her (when she was not looking) in the absence of others (amidst 50-100 people scouting around the building).
90. As the touching allegedly happened when no one else was around, there were no witnesses to corroborate X’s account. On the other hand, I do not find X’s evidence reliable:-
(a) In the ANOC, she pleaded that ML “touched” her buttocks. At trial, it is her evidence that ML “brushed” against her buttocks. Under cross-examination, she said that the physical contact was swift (as she had reacted immediately) and there was no grapping. As submitted by Ms Herbert, X’s allegation has reduced in severity on each retelling of the incident.
(b) X insisted under cross-examination that she had been touched by X’s hand or arm. I find that perplexing. It is not her evidence that she saw the movement of ML’s hand or arm when she turned around. It is not disputed that ML was carrying a notepad and a pen during the inspection. Bearing in mind that she was brushed from behind, it would be impossible for her to tell what had come into contact with her. It was possible that she came into contact with the pen or notepad if there had been any physical contact.
(c) Importantly, her evidence in court is inconsistent with her complaint to the EOC. She told the EOC in March 2014 that when she turned around, she “found the Respondent behind me, walking passed me without a word.” At the trial, she insisted that he had said “oh, sorry”. There is no explanation as to why she gave a different account earlier (when the event was presumably still fresh on her mind) and how she had come to realize that she had made a mistake.
91. I therefore find against X on her allegation of touching of buttocks.
E2.2(b) Touching of thigh
92. The touching of thigh allegedly happened in the office. According to X, ML sometimes pulled his chair from his desk to sit next to her to review matters on her computer. She said that: “In two to three occasions, he would position himself close to me so that his thigh would touch my thigh. He also leaned toward me so that his elbow was on my chair’s arm rest. This unsolicited physical contact was both unwelcome and unnecessary. I tried to avoid contact by moving away from Mr Lai to the furthest side of the chair, however, he would simply move closer to me. I also tried to turn the monitor toward him, hoping that it would cause him to sit up straight and stop leaning in my direction. As stated above, even though I took pains to avoid physical contact, Mr Lai would continue to move closer to me in order to maintain or resume the physical contact until I had no room to move further away. In these circumstances, Mr Lai would maintain the physical contact for the duration of the meeting between Mr Lai and myself. The meeting lasted approximately 10 minutes as we needed to go through each issue and take immediate action to change things in the document. I felt intimidated and demeaned by Mr Lai’s [sic ] but unable to complain as he was my boss. I hoped that Mr Lai would respond to the very clear signals I was sending him via my body language and repetitive failure to respond to his attempts at physical intimacy and realise just how unwelcome his behaviour was and how extremely uncomfortable it made me feel.”
93. ML could recall one occasion in 2012 when he had to sit next to X at her workstation to review a presentation that she was working on but he denied positioning himself in such a way that their thighs would touch.
94. Having considered the evidence very carefully, I am not satisfied that X has proved the event. There are some disquieting features in her account that remain unresolved to the end.
95. X and ML worked in an open plan office. It is common ground that the floor plan on page 424 of the Bundle accurately depicts the layout at the time. I have annexed to this judgment an enlargement of the relevant part of the floor plan with the name of the staff occupying each desk masked (Appendix B). The row where X and ML were seated is marked Row B, and the rows to its left and right are marked Row A and Row C respectively. I shall refer to the seating arrangement of each row from top to bottom. At the material time, X and ML were occupying B4 and B5 respectively.
96. The office is fitted with carrel-style desks with high sides of about 5 meters tall. Thus, someone sitting in B4 would be visually isolated from those sitting in B3 and B5. However, it is not clear if there was anything blocking the view of B4 from A4. No one cared to explain in evidence what the rectangle between A4 and B4 was. Was it a low side-table, or a tall bookcase or file cabinet? More importantly, could someone sitting at A4 observe what was going on at B4 bearing in mind that it is X’s evidence that she was sending “very clear signals … via body language” of rejection? If so, whoever was sitting at A4 should be able to observe ML inching towards X and X’s response. There is no such evidence.
97. Although there is a thick black line drawn between Row B and Row C on the floorplan, it is common ground that there was in fact nothing separating the rows. In other words, B4 was in full view of those sitting in Row C (especially the staff seated at C4) as well as those using the aisle. There was also a printer station at the end of Row C (marked “PRN046” on the floor plan) where, according to the evidence, people frequented.
98. It is X’s evidence that the harassment had gone on for 10 odd minutes and she had sent out very clear signals of rejection. According to Ms Au (one of X’s witnesses), her workstation “was situated close to the photocopier and the corridor to the pantry”. However, she only said she saw ML looking at X on two to three occasions but did not mention any thigh-touching incident. As I have mentioned above, the name of the staff occupying each workstation is documented. It would not be difficult to ascertain from those sitting around B4 and B5 if they had seen anything. I find it perplexing that the harassment could have gone on for so long without anyone noticing it.
99. According to X, she had been harassed by thigh-touching for two to three times. Even if X was unable to avoid the touching when it first happened, the layout of the office (as described above) was such that it would not be difficult for her to foil any subsequent attempt(s), eg by standing up the moment when ML moved his chair around.
100. The mechanism of the alleged touching is also unclear. It is X’s evidence that her chair was fitted with arm rests. It is not known if ML’s chair was similarly fitted with arm rests. In the end, I am left to ponder myself how their thighs could have come into contact given the arm rest(s) in-between.
101. All in all, X has failed to convince me on her allegation of thigh-touching.
E2.2(c) Touching of hand
102. According to X:-
(a) “Beginning around January 2012 and through to September 2013, during office hours, I noticed that when I would pass Mr Lai items such as documents or drawings for his review and endorsement, or other items like stationery, he would deliberately slide his hand over mine when it was clearly unnecessary to do so. For example, when he took the documents or drawings from me, he would touch my hand, which seemed deliberate as he could have easily avoided doing so. These contacts were made in the few seconds that the documents or items were passed to him. I felt that the frequency, nature, duration, and the way of touching were intentional and overly familiar; they made me feel uncomfortable. After touching me, he acted as if nothing had happened.”
(b) “The behavior would also occur at external meetings and events. For example, we were at a meeting with clients, contractors and consultants for the Shatin Racecourse Project and Mr Lai asked me for a pen. Again, Mr Lai unnecessarily caressed my fingers when taking the pen from me.”
103. ML said that the passing of papers and objects between them happened very infrequently. He could vaguely recall that on one occasion X had held a piece of paper in front of him by the corner but he denied any sexual harassment.
104. In my view, it is difficult for colleagues at work to avoid physical contact altogether. This is particularly true for a busy architectural office where documents, drawings and stationery are passed around.
105. X said she was certain that the hand-touching was intentional and not accidental because of “the frequency, nature, duration, and the way of touching”.
(a) On “frequency”, X complained to the EOC that the touching of hand happened “[a]lmost every day”. I find the high frequency alarming.
X had been on guard right from the beginning by reason of the office rumours regarding ML. She said she managed to avoid any physical contact over the use of computer mouse as she had been careful to move her hand away from the mouse when ML was near.
When it comes to the passing of documents and other objects, she said she had “devised a strategy to try to avoid further unnecessary touching by changing the way I held items to pass to him by holding the farthest end from him to try to avoid any contact.” Nonetheless, she claimed that: “Mr Lai would still reach his hand over so that he would touch my hand even though he could clearly take up the document or item without touching me.” It was put to her during cross-examination that she could have simply put down the document for ML to pick up in order to avoid physical contact. She replied that ML would ask her to amend the document and hand it back to him and it would be the same. She did not explain why she could not have deployed the same tactic (of leaving the document on the table for ML to pick up) when she handed the document back to ML after amendment.
(b) X did not elaborate on what she meant by “nature” and “way of touching”. Notwithstanding her pleaded case that there were “unnecessary groping” of her hand (at §13 of the ANOC) there was no mentioning of any acts of groping in her evidence.
(c) On “duration”, it is X’s case that the touching happened “in the few seconds that the documents or items were passed [by her] to him”. Given the swiftness of the contact and ML’s reaction (that he acted as if nothing had happened), the possibility of accidental touching cannot be discounted.
106. Much was said in closing submissions about ML’s response to the EOC in April 2014 that: “I do recall in passing documents that I might have accidentally touched her hands and such was my careless behavior. Although I have seen other colleagues in physical hand contact with her on some occasions, I agree that this is entirely personal and cannot be generalized. Once she flags up her resentment in holding documents with finger tips, this alarms me and I become more vigilant to refrain from such careless behavior. If the complainant feels offended in any way, she deserves my apologies.” This has led Ms McClellan to submit that ML could in fact recall the hand-touching.
107. ML has provided a plausible explanation. He said that he had been advised by the EOC to be conciliatory and not to use words that would excite the other side in his response. He further said that: “[W]hen the Claimant made the complaint against me in the EOC, I thought very hard to think why she would make such an allegation. I thought of the occasion when she held the corner of the paper and I considered that maybe it was possible that it was a reaction to an accidental touching. I prepared my response to the EOC without legal advice and appreciate now when I look back on it that it is badly worded. In relation to this complaint what I meant to say was that if the Claimant had ever raised any concern, I would act on that concern and apologise if I had done anything to cause upset.”
108. In any event, ML’s response to the EOC is consistent with his evidence in court that he might have accidentally touched X’s hand out of carelessness. In the end, there is nothing to show that the touching of hand in the office environment was intentional.
109. I now turn to consider the allegation relating to external meetings. It is X’s evidence that ML “caressed” her fingers when she passed a pen to ML during such meetings. However, she omitted to mention such conduct in her complaint to the EOC back in 2014 when the incident(s) should be fresh on her mind. I do not find her evidence reliable.
110. All in all, I find against X on her allegation of hand-touching.
E2.3 Staring and scanning
111. It is X’s evidence that: “Between January 2012 and September 2013, I noticed that Mr Lai would look at me in a way where he would scan my body from top to bottom or would stare for an inordinate amount of time at my chest or lower body. This type of staring or leering at me happened on a number of different occasions and would include when I would be walking through the office, when he was listening to me reporting on the progress of projects or during discussions at his workplace. I also noticed that he would eye me from top to bottom when he would see me from a distance. On these occasions, Mr Lai would stare at me at length and for not less than approximately five seconds, such that I would become extremely uncomfortable as I felt that he was studying my figure in detail. Mr Lai would not stop staring at me or look away, even if I made eye contact indicating that I had ‘caught him’ staring at me. I did not notice Mr Lai looking at other female or male colleagues like this. As with the inappropriate touching, when Mr Lai would look at me in this way, I felt uncomfortable. The way that Mr Lai looked at me was different from a glance or look from other colleagues, both male and female. Mr Lai’s behaviour left me feeling disgusted and upset. I also felt trapped as I had to see him every day at the office.”
112. This is denied by ML.
113. I accept that scanning a woman from head to toe and staring at a woman’s chest or lower body for an inordinate amount of time could be described as “leering and lewd gesture” (per the EOC Code) or “obscene gesture” (per the EOC Booklet) and constitute sexual harassment. However, much depends on the circumstances. In my view, it is unavoidable in an office environment for colleagues to look at each other whether from a distance or during discussions. Sometimes, people engaging in deep thought may appear to be staring at others. There may also be innocent explanations as to why one would stare at or scan another’s body. For example, it is ML’s evidence that X had asked him to spin like a model when he wore designer shirts to work. Under cross-examination, X claimed not to recall the occasion but said she would not dispute ML’s account.
114. In the present case, X insists that ML’s gaze was different and constituted sexual harassment because: (i) he scanned her body from top to bottom to study her figure and stared at her chest or lower body for an inordinate amount of time; and (ii) he did not look at other colleagues like that.
115. X called Ms Au to corroborate her complaint. According to Ms Au: “During my time at L&O, I witnessed that Mr Lai often looked at the Claimant in the office. During my Work Experience, my seat was situated close to the photocopier and the corridor to the pantry. I saw Mr Lai look at the Claimant walking to the pantry when he was doing photocopying on at least two to three occasions. I am sure that Mr Lai was looking at the Claimant on these occasions as she was the only one on the corridor. I also observed that Mr Lai seemed to pay close attention to the Claimant as he did not appear to be focused on the operation of the photocopier and would fail to close the photocopier lid when the Claimant passed by. When Mr Lai was sitting at his workspace and the Claimant had to pass by, he would raised his head so the partition could not block his view of the Claimant. I told the Claimant afterwards, she told me she was not aware of it and felt shocked after hearing that.”
116. In my view, Ms Au’s evidence tends to undermine (as oppose to support) X’s case.
(a) There were two periods of time when Ms Au worked at L&O: (i) from July 2011 to August 2012; and (ii) from June to August 2013. She collectively called the two periods “Work Experience” in her evidence.
It is not clear when Ms Au informed X that ML had been paying close attention to her.
If it happened during the first period when she worked in L&O (ie between July 2011 to August 2012), then Ms Au should have ample opportunity to observe ML’s conduct. However, she only saw ML “looking at” or “pay[ing] close attention” to X but did not witness ML scanning X from top to bottom or staring at X’s chest or lower body as alleged by X. This is particularly significant as Ms Au also complains that ML “would scan my body from head to toe”.
If it happened during Ms Au’s second period of employment with L&O (ie between June to August 2013), then X could not have noticed ML scanning and staring at her as early as January 2012 (as alleged by X) because (according to Ms Au) X had not been aware of the scanning and staring before Ms Au told her so.
(b) X’s case that ML had looked at her differently is at variance with Ms Au’s evidence that “[i]t was well-known in L&O that Mr Lai looked at the bodies of female colleagues, from head to toe. His nickname amongst my colleagues was ‘the Scanner’.”
(c) Ms Au fairly accepted under cross-examination that she could have misconstrued ML’s intention as she did not know what ML was thinking at the time.
117. In the circumstances, I am not satisfied that X has established any sexually harassment by staring and scanning.
E2.4 The Shenzhen Biennale exhibition
118. The Shenzhen Biennale (“SB”) was an exhibition in urbanism and architecture in Shenzhen that ran from 18 December 2011 to 19 February 2012. The exhibition was well publicized amongst architects in Hong Kong.
119. According to X, ML produced a brochure of the exhibition to her and suggested that they should go together. She understood that his invitation did not extend to other colleagues. She felt uncomfortable and “[i]n order to avoid having to go to the SB alone with Mr Lai, I invited other colleagues from the office to go as well.”
120. Following ML’s invitation, X sent out the following email to over a dozen colleagues:-
“Hey guys
Just wondering who would be interested to go Shenzhen on the 18 Feb 2012 (sat) to visit the biennale which our Melvyn has kindly volunteered to be our tour guide!!!!!
Please let me know the numbers by this Friday or next Monday would be great. Melvyn can even take us to some good food places [an emoji of a smilie]”
X sounded enthusiastic in the email. There was no indication that she found ML’s invitation unwelcome.
121. On 18 February 2012, around 7 to 8 persons (including ML, X, Stephen Yu and Anita Au) went on the trip.
122. It is X’s evidence that after the trip, “I was shocked to find out that he took 11 photos of me. I did not give him any permission to take my photos. I noticed Mr Lai was always carrying his camera on that day and I saw him taking photos of the exhibits, but I was not aware that he took pictures of me. Nearly half of the photos were my close-up shots, and most of them were photos of me alone and where I was not looking at the camera; they were taken when I was not noticing or looking.”
123. As to the complaint that ML took excessive and unusually candid photographs of X, it is noted that:-
(a) ML took similar photographs of other colleagues during the trip.[19]
(b) Stephen Yu similarly took photographs of X whilst she was alone and not looking at the camera.[20]
(c) Anita Au similarly took photographs of X whilst she was alone and not looking at the camera.[21]
124. When it was pointed out to X during cross-examination that Stephen Yu had in fact taken more such photographs of her (totaling 14) than ML (just 11), she replied that Stephen Yu was a friend and it was normal for friends to take photographs of each other but she did not consider ML a friend.
125. In my view, it is normal for participants in a group trip to take photographs of each other, even close-up portraits when the subject is not looking into the camera. There had been no indication from X that she would mind such photographs being taken of her. It could not have been anticipated that she would be offended by ML (but not others) taking such photographs of her.
126. There was no sexual harassment in relation to the trip.
E2.5 Text messages
127. The staff of L&O generally used instant messaging platforms (such as WhatsApp) for communication on top of other more official channels (such as company email). Whilst X was working in L&O, X and ML used WhatsApp to communicate with each other. They have both adduced their communication records in evidence, which are generally consistent save that there is a slight difference in the timing of the messages.
128. The messages that had transpired between X and ML were mostly work-related. It is X’s complaint that ML also sent messages unrelated to work to her that made her uncomfortable. Her complaint covers 23 communications.[22] They are set out in Appendix A.
129. The impugned messages may be grouped under the following headings:
(a) Invitations to take photograph: Chats “aa” and “a”.
(b) Inquiries as to X’s health: Chats “b”, “e”, “k” and “n”.
(c) Invitations to meal: Chats “c”, “g”, “i”, “j”, “l”, “p” and “q”.
(d) Invitations to travel together to and from work: Chats “d” and “m”.
(e) Birthday and festival greetings: Chats “f”, “r”, “s” and “v”.
(f) The messages dated 15 December 2012: Chat “h”.
(g) Souvenir from overseas trip: Chat “o”.
(h) Inquiries about X’s vacation and examination: Chats “t” and “u”.
130. In her closing submissions, Ms McClellan went beyond X’s complaint and made references to two more communications:
(i) the invitation to dinner dated 30 March 2012;[23] and
(j) the invitation to take photographs dated 6 and 8 April 2012.[24]
131. She argued that:-
(a) “The impugned text/whatsapp messages from Mr Lai form part of a pattern of conduct by Mr Lai that included and must be considered alongside the persistent scanning or leering and the groping of hands and the power imbalance between the parties.”
(b) “… taking into all of the circumstances, it is submitted that the impugned text/whatsapp messages from Mr Lai were unwelcome to Ms X and amounted to unwanted conduct of a sexual nature and that a reasonable person taking into account the timing, nature and context of the messages would consider that Ms X would be offended, humiliated and/or intimidated.”
132. It is apparent that Ms McClellan’s argument was crafted on the basis of the UK case of Miss S Majid v AA Solicitors Ltd t/a AA Solicitors, Asghar Ali , unreported, Employment Tribunals Case No 2409586/2013, 4 June 2014, cited by her.
133. In that case, the respondent was the claimant’s employer. The respondent’s rather innocuous enquiry as to what the claimant had been doing was held to be sexual conduct because (at §§55 & 56):-
“… it was unwanted contact which was part of a pattern whereby the respondent had made suggestive or personal remarks to the claimant … we have taken into account the fact that she was a young woman about to commence new employment and receiving a personal call from her boss, the owner of the business, asking her what she was doing entirely unrelated to her work was intimidating and given what had occurred [before] we find, taking all the circumstances into account it was reasonable for the conduct to have that effect.”
134. Thus the decision was premised on a pattern of prior suggestive or personal remarks on the part of the respondent. That included: asking the claimant if she had been spoken for and whether they would get married (Allegations 2 & 4 in the judgment); leaning over to feel the claimant’s arm whilst commenting that the claimant must go to the gym often as she was very stocky (Allegation 3); informing the claimant that there was a double shower at the office (Allegation 5); informing the claimant that he was going to put a double bed in the cellar of the office for an out-of-hours chill-out area (Allegation 6); and trying to hug the claimant (Allegation 7).
135. As explained in Reed v Stedman (at §29):-
“… a blatant act of a sexual nature, such as the deliberate looking up of the victim’s skirt whilst she was sitting down, may well make other incidents, such as asking to be shown personal photographs which the victim was looking at work, take on a different colour and significance. Once unwelcome sexual interest has been shown by a man in a female employee, she may well feel bothered about his attentions which, in a different context, would appear quite unobjectionable.”
136. In the present case, I have found against X on her complaint based on physical contact, staring and scanning and in relation to the SB exhibition. Unlike the UK case cited, there was no blatant act of a sexual nature or prior pattern of personal or suggestive remarks for me to cast a different light on the impugned messages.
137. The general impression I derived from perusing those messages is that they were general chit-chats commonly transpired between acquaintances and friends. The timing, nature and context of ML’s messages were quite unremarkable. As I shall endeavor to show in the discussion below, there is nothing “sexual” in those messages.
138. Much was said about the “power imbalance” between ML and X. Ms McClellan went as far as suggesting that: “While some behaviour may be acceptable between colleagues, the same or similar behaviour targeting or focused on Ms X by Mr Lai may not be acceptable or welcome to Ms X.”
139. As said in O’Callaghan v Loder , supra (at p 28)that:-
“One can entirely sympathise with an employee, such as the complainant, who has reservations about expressing her true feelings as she genuinely, if unnecessarily, fears for her job. An employee should not be placed into a situation where she feels constrained to endure her employer’s continued advances because she fears employment-related retaliation if she expresses her resistance. That should be one of the evils sought to be remedied if one is to have effective laws against sexual harassment in the workplace. On the other hand, one cannot have workable laws which proscribe activities solely upon the basis of the attitude of the recipient of those activities. There must also be a requirement that the recipient – in this case, Miss O’Callaghan – took some steps to make her attitude known to the employer. The onus of showing that she did so in this case rests upon her.”
140. There had been no indication from X that she took exception to ML’s messages. It was wrong for Ms McClellan to suggest that their supervisor-supervisee relationship per se would turn an otherwise innocuous conduct into sexual harassment.
141. It is apparent from Appendix A that the impugned messages were reciprocated by friendly replies from X most of the time. It cannot be said that a reasonable person would, in the circumstances, have anticipated that X would be offended, humiliated or intimidated by such messages.
E2.5(a) Photo invitations
142. It is common ground that ML was a keen photographer. He had taken photographs for a number of work-related functions and events before. It is not surprising that he was keen to take photographs at his leisure too.
143. In my view, there is nothing wrong for co-workers to get together socially outside office hours. ML had thrice invited X out to take photographs (including the one identified by Ms McClellan). These invitations were made in December 2011 (Chat “aa”), March 2012 (the chat identified by Ms McClellan) and April 2012 (Chat “a”) respectively.
144. X accepted none of the invitations:-
(a) For the December 2011 invitation, X replied: “Merry Christmas Melvyn. I have a birthday party to attend…”.
(b) For the March 2012 invitation, X replied that: “Just came back from Macau haha. Think I’ll need to rest and clean the house tmr! U have fun!!”
(c) In the April 2012 invitation, X asked ML to “get more ppl to go as well” and ML did not revert on the invitation.
145. So, X did not expressly decline any invitation. It was not apparent from her rather lighthearted and friendly replies that she had been offended. This is very different from the “Repeated attempt to make a date, despite being told ‘No’ each time” scenario mentioned in the EC Booklet.
E2.5(b) Inquiries as to X’s health
146. Prior to each of the impugned messages, ML had been informed that X had taken ill and gone home early. In my view, there is nothing wrong for colleagues to be concerned about each other’s health or well-being. This is all the more so for supervisors who would have to make alternative work arrangement if his/her subordinate cannot return to work on the following day.
147. In her closing submissions, Ms McClellan complained that the wordings of Chat “k” (suggesting X to “Take a hot water shower and this will put u to sleep”) and Chat “n” (asking X “Is someone looking after you?”) were overly personal and intrusive. ML also agreed, under cross-examination, that such remarks were “personal” and that he would not normally send such message to his subordinates.
148. In my view, there is nothing “sexual” in those remarks. The test is not whether the messages contained “personal” or “intrusive” remarks but whether they relate to matters which have to do with sexual activity, physical attraction or relationships. In fact, X had similarly probed into ML’s personal life before:-
(a) Whilst ML was in the hospital expecting a newborn baby, X enquired:-
29/6/2012
(7:21:29 pm) X: Congratulations Melvyn. Is it a dragon boy or dragon girl?
(7:43:25 pm) ML: Not quite there yet, still expecting. Likely to be boy. How did you go with BD today?
(9:44:55 pm) X: So everything ok at Hosp today? BD is ok. Need to discuss with u on some comments they made
(10:15:12 pm) ML: Just delivered.
(10:16:56 pm) X: Congratulations!
(10:52:50 pm) ML: Thanks
(b) Thereafter, X repeatedly asked ML to show her photographs of his baby son. ML felt embarrassed and did not want to do so as his son has development difficulties.
E2.5(c) Invitations to meal
149. As can be seen from the following table, it was quite often for colleagues at L&O to share a meal. I have included X’s complaints in the chronology so that the context of those messages may be appreciated.
2/3/2012
X organized a Chinese meal to thank ML for showing the group around at the SB exhibition, see the emails at pp 368-370 of the Bundle
23/5/2012
(4:05:09 pm) X: We’re at FA yuen cha chaan teng across the road
25/5/2012
Chat “c”
17/7/2012
Group lunch at 鴻星海鮮酒家, see the emails at pp 373-377 of the Bundle
17/8/2012
(9:07:48 am) ML: Where at Shatin station? I am almost there?
13/9/2012
(7:02:09 pm) ML: Would u prefer to meet at MacDonald or somewhere else near BD at 9:00am?
14/9/2012
(8:52:35 am) ML: Red Ant 紅螞蟻
27/9/2012
Chat “g”
4/11/2012
(7:44:06 pm) ML: Shall we meet at Shatin station tmr, around 8:40am?
19/12/2012
Chat “i”
23/2/2013
Chat “j”
26/2/2013
Chat “l”
5/3/2013
(8:59:18 am) X: Arrived Shatin station
11/7/2013
Chat “p”
150. In addition,
(a) X remembered having a quick supper with ML once in Wanchai after work.[25]
(b) ML also recalled two occasions when he and X had breakfast in Shatin at Oliver’s Super Sandwiches[26] and an occasion when he had lunch with X and Y on a Saturday at a Turkish restaurant near the office.[27]
151. At the trial, X said she found ML’s invitations objectionable because of their supervisor-supervisee relationship and that ML did not appear to invite other colleagues to meals. However, ML has provided examples of him sharing a meal with other colleagues (including subordinates) at paragraph 10.21 of his witness statement.
152. As shown in the chronology, prior to her first complaint (ie Chat “c”) X had initiated a group lunch to thank ML for showing them around at the SB exhibition (2/3/2012) and invited him to join another group lunch (23/5/2012). There were occasions when X and ML apparently shared a meal without the presence of others (eg 17/8/2012, 14/9/2012, 5/11/2012, as well as the undated quick supper in Wanchai). It is not apparent that she had objected to sharing a meal with ML before. To the contrary, she had apparently invited him to join her for breakfast as late as in March 2013 (5/3/2013).
E2.5(d) Invitations to travel to and from work together
153. In relation to the invitations to travel to and from work together (ie Chats “d” and “m”), X thought that ML had gone out of his way to try to be with her. She said that: “According to my knowledge, Mr Lai lived in Ap Lei Chau, and I lived in Sheung Wan, and our office was in Quarry Bay. On occasion and when I was working late, I believe that Mr Lai would remain in the area around the office and wait for me to finish work so that he could take a taxi with me.”
154. It appears that X was mistaken. According to ML:-
(a) At the time of Chat “d” (ie 15/6/2012), he was living either in Ap Lei Chau or Western District. Thus, sharing a taxi with X and travelling via Sheung Wan (where X resided at the time) was not out of his way. He considered it to be a responsible and gentlemanly thing to offer a ride to a junior staff who had worked late (Chat “d” was sometime after 10 pm).
(b) By the time of Chat “m” (ie 28/2/2013), he was living in the Western District. Sheung Wan was his closest MTR station. On that day, he and X were due to meet other colleagues in Lok Ma Chau Station for a meeting with clients in the Mainland. It occurred to him that he and X would be travelling at around the same time and that they could discuss work matters on the long MTR journey.
155. In my view, it is not unusual for colleagues to share a ride after work. It is ML’s evidence that they had shared a taxi before uneventfully.[28] That was how he came to know about X’s address. There is no evidence that ML had stayed behind to wait for X to finish work.
E2.5(e) Birthday and festival greetings
156. X resented ML sending birthday and festival greetings to her. She described ML as generally “not friendly or approachable” and an “introverted person” and was surprised that ML knew about her date of birth.
157. According to ML, he had been invited by Y to attend a cake-cutting celebration on the occasion of X’s birthday in 2012.[29] That was how he came to know X’s date of birth. He thought it would be a pleasant gesture to wish her happy birthday and so he sent her greetings in 2012 and 2013.
158. In my view, it is quite normal for colleagues to greet each other on birthdays and other festivals. Indeed, ML recalled X sending him well-wishes for the Chinese New Year in 2012.[30] ML also received greetings from Y on his birthday, and for Christmas and Chinese New Year.[31]
E2.5(f) The messages on 15 December 2012 (Chat “h”)
159. On 15 December 2012, ML sent a message to X enquiring about the location of a restaurant in X’s neighborhood. According to ML, he had an appointment with his high school classmates at Magnolia private kitchen in Sheung Wan. He had not been to the restaurant before and got off at the wrong bus stop and was running late. Upon realizing that the restaurant and X’s residence were in the same building, he contacted X for direction. The communication developed into general chit-chat.
160. It is, however, X’s evidence that: “Once he asked whether I was at home, I became very scared and worried that he planned to come to my home. Based on his previous behaviour, I was concerned that he might come to my home and that because we would be alone, his inappropriate conduct might escalate. Out of concern of my safety as well as to avoid any further overtures by Mr Lai, I showed the messages to [Y], who was with me in the house, and sought his advice on how to reply to Mr Lai. After discussing this with [Y], I replied to Mr Lai and said that I was not at home and was staying at my friend’s place. After sending the message saying I was not at home, Mr Lai discontinued text messaging me for that night.”
161. She complained that: “… Mr Lai’s personal text messages to me were not what one would expect between colleagues who did not have a friendly or personal relationship. They were both unwanted and extremely inappropriate. I was afraid that my safety would be at risk no matter what kind of response I made.”
162. In my view, there was nothing “sexual” in ML’s initial enquiry and subsequent messages. ML stopped messaging X after she had replied that she was out. There has been no suggestion after 15 December 2012 for ML to pay a visit to X’s residence.
E2.5(g) Souvenir from overseas trip
163. In her witness statement, X described Chat “o” as the “final straw”. She said she “felt disgusted as I knew that I was the only one he asked and that he wouldn’t have asked anyone else. I felt I was singled out for special but very much unwanted attention by Mr Lai. Again, I was under pressure to think of yet another excuse to drive him away politely. It was at this point that I came to the realization that I could not and should not have to deal with Mr Lai’s behaviour and the stress it caused me. I no longer wanted to have to go to sleep anxious about another day of Mr Lai’s unwelcome conduct. I was spending too much time trying to deal with Mr Lai’s inappropriate and unwanted conduct and that I would have to leave L&O.” She tendered her resignation on 2 July 2013.
164. Chat “o” was not the first time X and ML talked about bringing back souvenir from overseas. On 23 November 2011, there were these exchanges:-
(5:08 pm) ML: There is 50% chance I may not be in HK next week…
(5:09 pm) X: O? How come? Still need me to come in then?
(5:12 pm) ML: May be traveling to US for BRD. There is always work to do in the office and you may help to do a one day review of the amendment submission for BRD.
(5:16 pm) X: Sounds like fun! Remember to bring us souvenirs!
(5:18 pm) ML: All made in China!
(5:25 pm) X: Food shouldn’t be!!
(5:26 pm) ML: I will see what I can find…
(5:32 pm) X: Yay!
(5:33 pm) ML: Only I have to fly!
(5:33 pm) X: I know!
165. So, X had asked ML to bring back souvenir before. Given that context, I am not surprised that ML asked X if she wanted anything from his trip on 14 June 2013. It appears from X’s enthusiastic reply (“Food is always welcome! Thanks!”) that she in fact welcomed the suggestion.
E2.5(h) Inquiries about X’s vacation and examination
166. X also complains about ML enquiring about her vacation and examination after she had left L&O.
167. There is nothing “sexual” in ML’s enquiry. In fact, X had responded to similar enquiry before:-
22/11/2011
(8:59 pm) ML: How is your exam this week?
23/11/2011
(4:34 pm) X: Exams officially started yesterday…. how’s the new office seating plan?
168. All in all, I find against X on her complaint of sexual harassment based on text messages.
E2.6 Similar fact evidence?
169. According to Ms McClellan, Cindy Lam was called to give similar fact evidence.
170. Ms Lam worked in L&O between 4 April 2005 and 30 September 2006. She said that ML had touched her fingers when she passed documents to him, stared down her chest whilst she was seated, stared or scanned her body, and brushed against her hip. She complained to David Stanford (who was her then supervisor) and Dominic Lam (L&O’s Principal Director at the time) but to no avail.
171. In her closing submissions, Ms Herbert submitted that the only pleading of the claimant pertaining to Ms Lam’s evidence is against L&O. It was pleaded in paragraph 28 of the ANOC that:-
“L&O was or ought to have been aware that another former employee had previously raised allegations of sexual harassment and/or unwelcome conduct and/or inappropriate conduct by Mr Lai.”
172. In reply, Ms McClellan specifically conceded that: “We are not pursuing or arguing that Ms Lam’s evidence can be used to propensity for the 1st respondent.” Given the concession, I shall not take Ms Lam’s evidence into account when considering X’s claim against ML.
E2.7 Conclusion on X’s claim against ML
173. For the above reasons, X has not succeeded in establishing any sexual harassment against ML.
E3. Is X motivated to claim against ML to avenge Y’s termination of employment?
174. According to ML: “Both [Y] and the Claimant worked under my supervision... [Y’s] employment was terminated during late June 2013 due to performance concerns. L&O management had expressed concerns about [Y’s] performance about one year before his dismissal; however, I spoke with David Stanford, one of the principal directors, and suggested that [Y] should be offered a second chance to improve his performance. Unfortunately, in 2013 when revaluating his performance, David Stanford remained of the view that [Y’s] performance was not good enough and he was given notice of termination in June 2013. The Claimant gave notice to terminate her employment on 2 July 2013, which was within one week of [Y’s] dismissal. I cannot help but think that these two incidents may be linked and that the motivation behind the present action is due to a mistaken belief by the Claimant that I was responsible for terminating [Y’s] employment.”
175. Ms Herbert also submitted in her closing submissions that: “Whilst both X and Y denied that Y’s termination was the motive for the complaint it remains that the timing adds credence to the possibility of an underlying motive for the complaint. The case on motive is strengthened also by the fact that X no longer appears, given how the case was put (or in fact not put) to Mr Lai, to rely on a final straw event.” So, the main thrust of ML’s argument is on the timing of Y’s termination of employment and X’s resignation.
176. To start with, the fact that X has failed to establish her claim against ML does not mean that she had lied. The burden is on ML to prove that X had an ulterior motive in pursuing her claim.
177. For me, ML’s case, which is primarily based on timing, is unconvincing. It is X’s evidence that she dared not voice any complaint whilst she was still working in L&O. She said that: “I spent a lot of time talking to my boyfriend about my problems with Mr Lai and discussed how to avoid Mr Lai’s unwelcome behaviours.” When she learnt that Y was leaving L&O, “I felt even more insecure as [he] would no longer be in the office.” It is clear that X depended on Y for emotional support at that time. In my view, it was reasonable for X to contemplate leaving L&O with Y. That explains why she tendered her resignation shortly after Y’s departure.
178. X’s testimony took almost 4 days to complete. She was subjected to skillful cross-examination of counsel for the respondents. Her questioning was at times testing, generating a lot of emotion on her part (for which she subsequently apologized). It is clear from her evidence that she despised ML as a person. That is understandable given her sexual harassment complaint against him. What her cross-examination has failed to reveal is any sense of animosity on her part. There is no suggestion that X has lied or fabricated evidence against ML.
179. There is no substance in Ms Herbert’s submission regarding the so-called “final straw event”. That concerns Chat “o” which I have dealt with above. X was specifically cross-examined on that and she stood-by her evidence. It cannot be fairly said that she has abandoned the point. The fact that her advocate might not have put the allegation fully to ML is neither here nor there.
180. Another way of testing ML’s accusation is to see if there was any basis for X’s intense feeling against ML. At the heart of X’s complaint was her suspicion that ML had given her differential (more favourable) treatment. It is her evidence that: “… I felt that his attention to me was disproportionate and it made me feel very uncomfortable as I would have to routinely decline and I worried that I would run out of excuses.”
181. In my view, there is evidence in this case that ML had tried to befriend X. For example:
(a) ML thrice attempted to invited X out to take photographs in 2011 and 2012.
(b) ML sent her birthday greetings in the two years that she worked under him. The 2012 message was sent at 1:19 am (see Chat “f”). Around the time of X’s birthday in 2013, ML attempted to invite her out to dinner (see Chats “p” and “q”).
(c) ML was minded to bring back souvenir for X from his overseas trip in 2013.
(d) ML still enquired about X’s well-being after she had left L&O (see Chats “s”, “t”, “u” & “v”).
182. I should not be taken as criticizing ML here. I simply do not know enough to gauge his intention. After all, he was assigned to supervise X and he might be trying to be a good mentor.
183. In fact, X has expressed gratitude to another supervisor of her at L&O (Ivy Lee) for doing just that. This is what X wrote when she left L&O:-
“A heart-felt gratitude for your guidance, kindness and encouragement during those times – I still remember that funny night when we were all playing wii at our place in Macau, or the times when you ask if I was OK if I was feeling ill and even come up to praise me for a write up that I did JJ.”
184. All in all, I find against ML on his case that X is motivated to claim against him herein to avenge Y’s termination of employment.
E4. If ML is found to have committed any unlawful sexual harassment, should L&O be vicariously liable and whether it may escape liability by reason of section 46(3) of the SDO?
185. Under section 46(1) of the SDO:-
“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.”
186. In her closing submissions, Ms McClellan has acknowledged that “the liability of the 2nd respondent will depend on what is found against the 1st respondent, so they would effectively stand or fall together.”
187. As I have found against X on her claim against ML, there is no basis for any vicarious liability. There is no need to consider if the steps taken by L&O to avoid sexual harassment in the workplace (summarized in paragraph 117 of Mr Chung’s closing submissions) were sufficient to satisfy the statutory defence.
F. Disposition
188. For the above reasons, X’s claim against both ML and L&O is dismissed.
189. As to costs, I awarded costs to the respondents on the first day of trial on the claimant’s application for X to amplify her witness statement. Subject to that, I make an order nisi that each party shall bear its own costs having regard to section 73B(3) of the DCO.
(Justin Ko)
Acting Chief District Judge
Ms Karen McClellan of Daly & Associates, for the claimant
Ms Elizabeth Herbert instructed by Oldham, Li & Nie, for the 1st respondent
Mr Hylas Chung and Mr Alvin Hor instructed by Fongs, for the 2nd respondent
Appendix A
X’s WhatsApp complaints[32]
Chat
Messages
aa
25/12/2011
(11:47 am) ML: My camera is itching and may do some photography Tue afternoon. Interested to come?
(11:48 am) X: Merry Christmas Melvyn. I have a birthday party to attend to on Tuesday.
(11:49 am) X: Christmas is a busy time haha
(11:50 am) ML: Definitely
a
28/4/2012
(2:18:54 pm) ML: We lost the HKJC projects
(2:21:13 pm) X: O well. Better luck next time.. :)
(2:24:01 pm) ML: Now I can have time for weekend photography
(2:25:18 pm) X: Well..hot season coming soon. Better grab ur camera and go!
(2:28:15 pm) ML: It will be early in the morning or late in the afternoon, not on mid-day! Interested?
(3:08:47 pm) X: Waaa. A very keen photographer haha. Let see if we can get more ppl to go as well.
(3:10:03 pm) ML: Get Adrian, I want to try his lens
(3:10:47 pm) X: Hahaha. Ok
b
7/5/2012
(3:12:55 pm) ML: Are u doing OK?
(3:35:47 pm) X: Major inflammation to the throat. Resting today hoping to catch up on lost sleep and not spread germs in the office
(3:54:36 pm) ML: Sounds bad. House and pets needs a sanitize treatment. Take care.
(4:05:36 pm) X: Pets are fine. I don share food with them
c
26/5/2012
(12:42:53 pm) ML: For the Monday morning meeting, please meet at 坑口 MTR to catch a taxi. I will be most likely having breakfast upstairs before then so if you arrive earlier, I will give you breakfast treat.
(12:47:26 pm) X: Monday? Foundation meeting u mean? Thought we’re having meeting in afternoon cos I sent out email to b Monday afternoon….or have u been informed of different arrangement that I don knw yet..?
28/5/2012
(8:46:00 am) ML: My confusion. Thought it was 9:30a and was on my way when I read your message.
d
15/6/2012
(10:31:42 pm) ML: Page me if you wish to share taxi. Will finish dinner downstair around 11:15p
(10:31:28 pm) X: Ok thanks. I’ll see how much more I need to do first
(11:11:11 pm) ML: Still struggling?
(11:13:15 pm) X: I’m fine. It’s just a very long letter that’s all
(11:14:45 pm) ML: Taxi?
(11:15:44 pm) X: No it’s ok. My bf is coming to pick me up soon. See u tmr!
(11:23:56 pm) ML: OK
e
4/7/2012
(4:06:10 pm) ML: Feeling OK?
(4:05:25 pm) X: I think I might have caught Teresa’s flu symptoms yesterday. At doctors now
f
15/7/2012
(1:19:38 am) ML: Happy Birthday [emoji of a slice of cake]
(11:34:55 am) X: Thanks Melvyn
g
27/9/2012
(9:18:38 am) X: What time should I meet u at hkjc today?
(9:18:51 am) X: They have the wash down area mock up as well
(10:00:40 am) ML: I am at the HSBC site this morning. We should target arrive at the Site Office at 1:30 pm, and on site by 1:45pm. You can meet me at HSBC site office, have lunch here and go.
(10:49:31 am) X: I still have a bit to do for project C and E. I’ll meet u at hkjc 1.30
(10:50:17 am) X: Teresa said to tell u that FTP has increased capacity so u can put more photos there
(10:50:31 am) ML: OK
(10:51:30 am) ML: Thanks and I am already uploading.
(11:02:49 am) X: Ok
h
15/12/2012
(5:54:29 pm) ML: Are you aware of the Magnolia private dining at 17 Po Yan Street?
(7:36:24 pm) X: Yes.
(7:37:35 pm) ML: Is it good?
(7:37:35 pm) X: I heard its not bad. I always see ppl crowding around that area.
(7:38:11 pm) X: 208 is an Italian restaurant nearby which is said to b good
(7:38:57 pm) ML: I will know tonight
(7:39:14 pm) X: Who u going with?
(7:40:41 pm) ML: High School old boys
(7:40:46 pm) X: Sounds like a good night!
(7:44:01 pm) ML: Question is how do I get there from Robinson Road
(7:45:37 pm) X: [attaching a photograph]
(7:45:42 pm) X: From red point to blue point
(7:45:53 pm) X: U r quite far away
(7:46:23 pm) X: Take taxi and go to tung wah hospital, po yan street
(7:49:00 pm) ML: I get off at the wrong stop. Some walking before a nice meal is fine for me
(7:49:24 pm) X: Agree. Walking is good.
(7:52:44 pm) ML: Reach Caine Road. Trust you are settled with your party costume
(7:55:53 pm) X: Caine road. U should be on track then. Yes. Bought costume from Taobao. Couldn’t rent in time cos asked too late.
(8:34:01 pm) ML: Find it
(8:34:11 pm) X: Congrats! Enjoy ur night!
(9:22:05 pm) ML: Food is good so far. Is this where you are staying?
(9:24:00 pm) X: Yup. That’s the building
(10:48:20 pm) ML: Dessert is very good
(10:48:15 pm) X: Didn’t knw u into western foods too!
(10:54:05 pm) ML: One of the old boys is a hotel manager and F&B expert. Are you upstairs?
(10:55:23 pm) X: No. I’m at friend’s place tonight
i
19/12/2012
(10:17:59 am) ML: Presentation went well this morning, thanks for your effort.
(10:17:44 am) X: [emoji of thumbs up]
(10:18:31 am) ML: [attaching a photograph]
(10:19:04 am) ML: I will buy you lunch next week
(10:19:37 am) X: Cake for breakfast?
(10:19:51 am) X: Waaa
(10:22:03 am) ML: Whatever you prefer. Wouldn’t cake be too heavy as breakfast for you?
(10:22:32 am) X: No I meant the photo u sent
(10:22:49 am) X: Is that what ur having now?
(10:24:39 am) ML: It was the dessert I had at the Ground Floor restaurant last Saturday
(10:24:22 am) X: Ooo. Ok
j
23/2/2013
(11:43:39 pm) X: Just wondering what time will u be in office tmr? Do I have access to office?
(11:48:53 pm) ML: Say around 10am. You have access. Come early and I will buy u breakfast.
(11:50:39 pm) X: Ok. I’ll see u around 10. I got breakfast in the office. Thanks!
24/2/2013
(9:57:07 am) ML: Having my breakfast next to MacDonald opposite Subway.
(10:05:17 am) X: Ok
(10:05:30 am) X: I’m still on my way. Hahaha
k
24/2/2013
(6:42:41 pm) ML: Do u feel better now?
(6:55:00 pm) X: No. Still trying to sleep it off. Damn McD and its greasy food…
(7:33:39 pm) ML: Take a hot shower and this will put u to sleep
l
26/2/2013
(9:16:29 pm) X: What time should I meet u tmr morning?
(9:27:45 pm) ML: I will have breakfast at TST around 9am, and at the G/F lobby around 9:30am. So you may join me for breakfast or meet at 9:30 there
(9:50:17 pm) X: Ok. I’ll ring u when I arrive tst
27/2/2013
(8:49:28 am) X: [attaching a photograph]
(8:49:23 am) X: L6
m
28/2/2013
(7:37:01 am) ML: What station are you boarding the train this morning?
(7:36:30 am) X: Sheung wan
(7:38:21 am) ML: I am heading there too
(7:37:56 am) X: When will u be there?
(7:39:44 am) ML: In 5 minutes
(7:39:34 am) X: I will need abt 8 mins
(7:40:07 am) X: Meet u at concourse?
(7:42:33 am) ML: Ok. text me when you are there. I will be entering the station at the Macau ferry terminal
(7:44:45 am) X: Ok
n
13/5/2013
(7:44:50 pm) ML: Feeling better now after a day’s rest?
(8:01:41 pm) X: Yea. At least the fever has subsided
(8:22:31 pm) ML: Sounds you are on the recovery. Is someone looking after you?
(10:02:23 pm) X: Yes. But I take care of myself ok. See u tmr
o
14/6/2013
(3:17:40 pm) X: In regards to hkjc. You wanna join for the lamex factory visits? If so, pls give me ur available dates so I pass to hkjc
(3:18:11 pm) X: Tentative probably week starting 24june onwards?
(3:22:31 pm) ML: I need to check my calendar and will let you know. Thanks. Anything in particular you want to buy in US?
(3:29:05 pm) X: Food is always welcome! Thanks!
(3:31:51 pm) ML: American food is extremely fatty
(3:32:23 pm) X: [emoji of a sad face] I’m sure fatty means tasty too – they go hand in hand
(3:50:30 pm) ML: From all I can recall, its either the donuts, jelly beans or the chunky dried meat that is uniquely US. Else it is the raw meat that you have to cook ….
(4:32:26 pm) X: If u can bring donuts then bring it on!!!!
(4:33:08 pm) X: I’m sure the rest of the team would appreciate it [3 emojis of donut]
(4:36:58 pm) ML: I remember they advertise on the TV in US that donuts was one of the reasons of super fatness. I will see if I can find something more healthy for you.
(4:53:02 pm) X: I’m sure that’s easy to find too. Thanks!
p
11/7/2013
(7:48 pm) ML: Will you be hungry for good food tmr evening?
(10:48 pm) X: Yes but I have some celebration dinner with friends. Thanks for the offer tho!
q
12/7/2013
(3:32 pm) ML: Perhaps some other time later this month
r
15/7/2013
(7:46 am) ML: Happy Birthday
(8:10 am) X: Thanks Melvyn!
s
19/9/2013
(3:30 pm) ML: Happy Mid-Autumn Festival!
t
17/10/2013
(7:29 pm) ML: Still enjoying your long vacation?
u
3/12/2013
(10:45 am) ML: How did you go with your HKIA exam?
v
24/12/2013
(3:50 pm) ML: Merry X’mas!
Appendix B
Enlarged Floorplan of L&O office
[1] The identity of the claimant is protected by an anonymity order.
[2] Y’s identity is also protected by an anonymity order.
[3] See the List of Agreed Issues.
[4] See the observations of Lok J in Lin Man Yuan v Kin Ming Holdings International Ltd, unreported, HCA 216/2008, 3 June 2015 at §§215-220.
[5] See the first instance decision of Ray Chen v Taramus Rus , unreported, DCEO 2/1999, 6 April 2000, at p 45.
[6] As I have said before, we are presently concerned with quid pro quo harassment under s 2(5)(a) of the SDO.
[7] See Phipson on Evidence , 19th Edition (2018) at §6-06.
[8] Such as “disability harassment” under section 2(6) of the Disability Discrimination Ordinance, Cap 487, and “racial harassment” under section 7 of the Race Discrimination Ordinance, Cap 602.
[9] https://en.oxforddictionaries.com/definition/sexual.
[10] See the first instance decision of Ray Chen v Taramus Rus , supra , at p 45.
[11] I am entitled, under section 69 of the SDO, to take the EOC Code into account in any proceedings under the SDO insofar as it is relevant.
[12] See §6.1 of the EOC Code.
[13] I am entitled to take them into consideration under section 73B(5) of the District Court Ordinance, Cap 336 (“DCO”).
[14] Similar examples are provided in the other booklet entitled “Know Your Rights (Sexual harassment in Workplace)”.
[15] See for example, Dr Alice Li Miu-Ling v The Hong Kong Polytechnic University , unreported, DCEO 1/2004, 1 November 2012 at §§87-90.
[16] Chen Ray v Tamara Rus , supra at §11.
[17] See the first instance decision of Ray Chen v Taramus Rus , supra , at p 45.
[18] The quotation was taken from the Australian case of O’Callaghan v Loder [1983] 6 IR 1 at pp 27-28.
[19] See the photographs on pp 282, 285 & 286 of the Bundle.
[20] See the photographs on pp 333-336, 353, 359 & 361 of the Bundle.
[21] See pp 363 & 366 of the Bundle.
[22] Twenty-two communications were identified in X’s answer to a request for further and better particulars. At the trial, she further identified Chat “aa” as one of the communications mentioned in §36 of her witness statement albeit she had stated the date of the message wrongly on her statement.
[23] At p 249 of the Bundle.
[24] At p 249 of the Bundle.
[25] See p 941 of the Bundle.
[26] See p 196 of the Bundle.
[27] See p 198 of the Bundle.
[28] At §10.23 of his witness statement.
[29] This was confirmed by X in her complaint to the EOC, see p 942 of the Bundle.
[30] See pp 248-249 of the Bundle.
[31] See pp 575-577 of the Bundle.
[32] This is compiled mainly from X’s record. The timing of some of the messages appear to be odd (for example, see Chat e) but the sequence is confirmed by ML’s record.