MA BIK YUNG v. KO CHUEN

CACV 267/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 1999

(ON APPEAL FROM DCEO 1/1997)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal from the judgment of Her Honour Judge Wong who heard the first action taken out under the Disability Discrimination Ordinance, Cap. 487 ("the Ordinance"). She awarded the plaintiff damages amounting to $20,000. The defendant appeals against this judgment. The award was for discrimination and harassment.

2. On 26th November 1996 in the morning the plaintiff who is a paraplegic and her sister, who at the time was suffering from schizophrenia, wanted to take a taxi from their residence at Tung Lung Road to East Kowloon Clinic ("the Clinic"). She was in her wheelchair.

3. According to the plaintiff's evidence she saw the defendant's taxi and attempted to hail it. It was waiting nearby diagonally across the road. The taxi driver, the defendant, did not drive the taxi over to her and her sister. She therefore went over to the taxi and remonstrated with him for not coming over to them. The defendant made no move to help her get into the taxi, but she managed to get into the passenger seat by herself, leaving her wheelchair outside, by the taxi. The defendant refused to get out of the taxi to assist her in loading the wheelchair in the boot. There was an unpleasant verbal exchange, the defendant telling her to get out of the taxi if she or her sister could not manage to do so themselves. The plaintiff managed to obtain assistance from a passer-by who loaded the wheelchair into the boot. She then asked the taxi driver to take them to the Clinic.

4. During the journey the defendant scolded the plaintiff and amongst other things said "Do you think not being able to walk and in a wheelchair is everything! I too had an operation on my leg."

5. After arrival at the Clinic the defendant refused to assist the plaintiff to retrieve her wheelchair and help her out of the taxi. It was only after the plaintiff had succeeded in obtaining the assistance of a bystander that the defendant did eventually help. After this there was an argument over the fare payable and the defendant made further hurtful and offensive remarks.

6. As might be expected the defendant gave a very different version of the incident.

7. He claimed that initially he had not seen the plaintiff and her sister. When they did approach him the plaintiff scolded him. At this point he informed her that he himself had a physical affliction the result of which was that he was unable to lift heavy objects such as a wheelchair. There was medical evidence adduced at the hearing which supported this. He denied that he had harassed the plaintiff during the journey to the Clinic. He also said that as soon as the passer-by offered to help he got out of the taxi and assisted. He further denied making the hurtful remarks which the plaintiff attributed to him when she left the taxi.

8. As will be appreciated from this very short summary of the respective cases the Judge had to resolve a number of factual issues. In general terms she found the plaintiff to be a truthful and honest witness and she rejected much of the defendant's evidence.

9. It needs to be further added that unfortunately the plaintiff's sister died sometime after the events in question and was not available to give evidence.

10. It was accordingly to a large extent a question of which witness was the more credible bearing in mind of course that the burden of proof lay with the plaintiff.

11. Mr Wong for the defendant made an application to adduce further evidence in the appeal in accordance with the principles laid down in Ladd v. Marshall [1954] 1 WLR 1489.

12. The evidence which it was sought to introduce related to an allegation that the plaintiff had been in receipt of a research bursary from 1994 to 1998 and had not disclosed this fact to the Director of Social Welfare when she had applied for and obtained financial assistance from his department.

13. In our view the 2nd condition referred to in Ladd v. Marshall has not been complied with. This is that it has to be established that the additional evidence must be such that, if given, it would probably have an important influence on the outcome of the case.

14. We do not see how even if this allegation could be substantiated it could have much bearing on the case. It is by no means clear that the plaintiff acted dishonestly. Even if she had this need not mean that a judge should view the complaints she made with suspicion.

15. Mr Wong accepted that he had something of an uphill task in getting a Court of Appeal to interfere with findings of fact made by a judge at first instance. He submitted that the observations made by Lord Greene M.R. in Yuill v. Yuill [1945] P.15 at p. 19 were of assistance.

"We were reminded of certain well-known observations in the House of Lords dealing with the position of an appellate court when the judgment of the trial judge has been based in whole or in part on his opinion of the demeanour of witnesses. It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest considerations, that it would be justified in finding that the trial judge had formed a wrong opinion. But when the court is so convinced it is, in my opinion, entitled and indeed bound to give effect to its conviction. It has never been laid down by the House of Lords that an appellate court has no power to take this course. Puisne judges would be the last persons to lay claim to infallibility, even in assessing the demeanour of a witness. The most experienced judge may, albeit rarely, be deceived by a clever liar, or led to form an unfavourable opinion of an honest witness, and may express his view that his demeanour was excellent or bad as the case may be. Most experienced counsel can, I have no doubt, recall at least one case where this has happened to their knowledge. I may further point out that an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question. If it can be demonstrated to conviction that a witness whose demeanour has been praised by the trial judge has on some collateral matter deliberately given an untrue answer, the favourable view formed by the judge as to his demeanour must necessarily lose its value."

16. He went on to argue that the present case was one where the Court would be justified in setting aside the Judge's judgment.

17. He based his submissions on what he described as being two fundamental mistakes made by the Judge and the glaring improbabilities inherent in the plaintiff's case.

18. The first fundamental mistake related to the Judge's assessment of the evidence concerning the defendant's incapacity and consequent inability to load the wheelchair into the boot of the taxi. Mr Wong submitted that it was evident from the transcript that the plaintiff had not initially believed the defendant when he had said that he had had an operation performed on his leg. Indeed when the particulars of claim were first prepared, the claim relating to discrimination had been based upon the defendant's refusal to load the wheelchair into the boot of the taxi.

19. Later when medical evidence was forthcoming concerning the defendant's condition the particulars of claim had been amended. They were amended to delete the claim that the defendant should have assisted in the loading of the wheelchair and a claim was added that the defendant should have attempted to approach bystanders and endeavour to seek their assistance.

20. The complaint which is made by Mr Wong is that the plaintiff tailored her evidence so as to overcome any inconsistencies which may have arisen as a result of her previous perception of the situation that the defendant had not been suffering from any incapacity. He also claimed that the plaintiff's evidence bore all the hallmarks of recent fabrication.

21. We do not consider that these complaints have any justification. The plaintiff was fully entitled to take cognisance of the changed situation arising from the medical report. The important question was whether she was giving truthful testimony. There was no reason whatever to conclude that her revised evidence was not truthful or inconsistent with her evidence in relation to the case as originally formulated.

22. Closely associated with this complaint is the second submission made by Mr Wong on fundamental mistakes. He referred to p. 12 of the judgment where the Judge states when making her findings of fact "At no time did he inform the Claimant of his own disability." Mr Wong argued that if indeed this had been the Judge's understanding of the position she had totally misunderstood the evidence.

23. At p. 4 of the judgment when setting out the plaintiff's claim she refers to the statement attributed to the defendant that he himself had had an operation on his leg. Also at p. 17 of the judgment she refers to the fact that it is common ground that the defendant is himself disabled.

24. Indeed it can be said that apart from that one reference at p. 12 of the failure of the defendant to inform the plaintiff of his physical condition the whole judgment is based on the premise that the defendant did refer to his physical affliction during the course of the journey to the Clinic. We do not know why the Judge made the finding she did on p. 12. We can only assume that it was some form of aberration. In our view it is clear from reading the judgment as a whole that the Judge did not misapprehend the case.

25. So far as the alleged glaring inconsistencies were concerned Mr Wong mainly placed reliance upon the way in which the Judge accepted the plaintiff's evidence concerning the note she claimed to have made of the fare payable at the conclusion of the journey to the Clinic. She claimed to have written on a piece of paper that the fare had been $27.80 which was not an amount the meter was calibrated to show. Her evidence concerning the note was not entirely satisfactory. To summarise the position at different points of time she claimed to have lost the note, found it and lost it again.

26. Mr Wong compared the Judge's acceptance of the explanation proffered with the way in which the Judge rejected the defendant's evidence that he too had kept a note of the fare and that he had subsequently destroyed it.

27. Mr Wong went on to submit that the Judge had perhaps unconsciously been biased in favour of the plaintiff who is a highly intelligent lady who has to a remarkable extent made a success of her life notwithstanding the terrible handicap she has laboured under. He contrasted this with what he claimed was the general perception of taxi drivers which was somewhat negative.

28. We do not think for one moment that the Judge was in any way biased. She would of course have had regard to the personal characteristics of the witnesses who gave evidence before her. That would not have prevented her from making an accurate assessment of the truth or falseness of their testimony. It is also significant to add that the Judge was not comparing like with like when she was considering the evidence relating to the notes. The plaintiff claimed to have mislaid her note whereas the defendant claimed to have destroyed his.

29. Mr Wong made a number of other submissions as to why we should set aside the Judge's findings of fact. In our view all of the contentions advanced by Mr Wong fall far short of the type of situations referred to in the authorities which it was common ground governed this subject. We are satisfied that the Judge's findings of fact should not be impugned.

30. The next question which has to be considered is whether on the facts as found by the Judge she was right to find that discrimination and harassment had been established.

31. In determining whether discrimination has been established it is necessary to have regard to the provisions contained in sections 6 and 26 of the Ordinance.

Disability Discrimination Ordinance, Cap. 487

"6. Discrimination against persons with disability, etc.

A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if -

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

(b) he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but -

(i) which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and

(iii) which is to that person's detriment because he cannot comply with it; or

(c) on the ground of the disability of an associate of that other person he treats him less favourably than he treats or would treat a person without such a disability."

"26. Goods, services and facilities

(1) Subject to subsection (2), it is unlawful for a person who, whether for payment or not, provides goods, services or facilities, to discriminate against another person with a disability -

(a) by refusing to provide that other person with those goods, services or facilities;

(b) in the terms or conditions on which the first-mentioned person provides that other person with those goods, services or facilities; or

(c) in the manner in which the first-mentioned person provides that other person with those goods, services or facilities.

(2) Subsection (1) shall not apply to a person who discriminates against another person with a disability if -

(a) the provision of the goods, services or facilities would impose unjustifiable hardship on the person who would have to provide those goods, services or facilities; and

(b) in the case of the facilities described in paragraphs (c), (d), (e) or (f) of section 27 (or facilities of a like nature to the facilities so described) and to the extent that those facilities are physical in nature, those facilities are so designed or constructed as to be inaccessible to a person with a disability."

32. The discrimination and harassment averred in the amended particulars of claim are:

"Particulars

(a) The Defendant failed and refused to drive the taxi to a place appropriately close to the Plaintiff and her sister.

(b) The Defendant failed to promptly open the door for the Plaintiff when the Plaintiff finally approached the taxi, and the Plaintiff had to knock on the door before the Defendant opened the door.

(c) When the Plaintiff requested assistance from the Defendant to put her wheelchair into the boot of the taxi, the Defendant made rude remarks to the Plaintiff in connection with her disability and her said requests for assistance.

(d) The Defendant failed and refused to give to the Plaintiff any form of assistance whatsoever in relation (to) her wheelchair (such as seeking the assistance of other persons). The wheelchair was eventually placed into the boot of the taxi by one of the onlookers who came to the aid of the Plaintiff at her request.

(e) During the journey to the Plaintiff's destination, namely, East Kowloon Polyclinic, the Defendant made rude remarks within the Plaintiff's hearing in connection with her disability and her said requests to assist with her wheelchair.

(f) After the taxi arrived at the Plaintiff's destination, the Plaintiff requested the Defendant's assistance in relation to her wheelchair, but the Defendant made rude remarks to the Plaintiff in connection with her disability and failed and refused to give to the Plaintiff any form of assistance whatsoever (such as seeking the assistance of other persons).

(g) The Plaintiff had to wait in the taxi for about 10 minutes before a passer-by came to the aid of the Plaintiff at her request. The wheelchair was eventually taken out by the passer-by together with the Defendant.

(h) The Defendant allowed and/or failed to stop the fare-meter to continue running during the said 10 minutes period.

(i) The Defendant made rude remarks to the Plaintiff in connection with her disability when she paid the fare."

33. It will be appreciated from the legislative provisions that where, as here, direct discrimination is alleged, section 6(a) required the plaintiff to prove on the balance of probabilities that she had been treated by the defendant less favourably than he would have treated a person without a disability.

34. The Judge's initial approach to this question appears to have been on the right lines. It was necessary for the Judge to find a suitable comparator and then to compare how the defendant would have treated such a comparator. In our view the Judge approached the first element of this inquiry correctly. Although the language which she used was not entirely clear, we are satisfied that she correctly took as the comparator an able-bodied person who had a heavy item of luggage.

35. The problem which arises in this case is that the Judge did not then proceed to the second element of the inquiry. She simply referred to what she considered the defendant should have done vis-a-vis the plaintiff and how he had been remiss in failing to perform all his duties and obligations.

36. What the Judge did not do was to go on to consider on the evidence what it is likely the defendant would have done had he been confronted with the hypothetical able-bodied person who had a heavy suitcase and asked the defendant to place the case in the boot of the taxi. A finding on this is needed if it is to be determined whether the requirement of section 6(a) for less favourable treatment on account of the plaintiff's disability has been made out.

37. There was evidence on this. The defendant said that he would treat everyone in the same way. He maintained his evidence that he had rendered all the assistance he could to the plaintiff which in the circumstances of his own disability consisted of attempting to get anyone in the vicinity to assist in lifting the wheelchair and placing it in the boot of his taxi. This evidence was of course rejected by the Judge. The defendant also gave evidence that he would have rendered similar assistance to an able-bodied person who had a heavy suitcase. However, the Judge made no express finding in relation to this latter assertion.

38. Mr Dykes S.C. for the plaintiff submitted that there was nonetheless clear evidence which would have enabled the Judge to have undertaken the appropriate comparison and thus establish that the defendant had treated the plaintiff less favourably than a person not suffering from a disability.

39. We do not consider that the problem can be resolved in this way. On the basis that the Judge rejected the defendant's evidence that he had rendered all the assistance he could to the plaintiff, it is quite possible that she would not have accepted his testimony that he would have assisted an able-bodied person with a heavy suitcase in the way he said he would.

40. As already stated the Judge did not address this problem. Mr Dykes submitted that it was implicit from the findings of fact which had been found by the Judge that she would have found that the defendant would have treated the comparator differently. We do not agree. There was sufficient material to indicate that the Judge might well have come to the opposite conclusion. The defendant appears to have presented as an unco-operative and ill humoured person and it may well be that the Judge would have found that he would have assisted an able-bodied person in the way he described.

41. Mr Dykes also submitted that it was possible viewing the evidence as a whole and in particular having regard to the defendant's apparent prejudice towards the plaintiff and her physical condition to infer that he was sufficiently prejudiced against disabled people that he would have discriminated against the plaintiff. However, prejudice does not necessarily result in discrimination, and whether discrimination occurred has to be determined in accordance with the provisions of the Ordinance.

42. The consequence of all of this is that the requirements laid down in section 6(a) have not been satisfied and accordingly discrimination was not established. That is not to say that discrimination could not have been established on the evidence. The position is that the Judge did not make the finding (which would have been open to her on the evidence) that the defendant would have treated an able-bodied person with heavy luggage any differently.

43. The position concerning harassment is much simpler. It does not involve proof of treatment less favourable than that given to persons without disability. Harassment is defined in section 2(6) of the Ordinance and section 38 deals with harassment in the context of the provision of services.

Disability Discrimination Ordinance, Cap. 487

"2. Interpretation

(6) For the purposes of this Ordinance, a person (howsoever described) harasses another person if that first-mentioned person engages in unwelcome conduct (which may include an oral or written statement) on account of that second-mentioned person's disability, or on account of the disability of an associate of that second-mentioned person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the second-mentioned person would be offended, humiliated or intimidated by that conduct."

"38. Harassment in relation to the provision of goods, services and facilities

(1) It is unlawful for a person who, whether for payment or not, provides goods, services or facilities, to harass another person with a disability who wants to acquire the goods or services or to make use of the facilities.

(2) It is unlawful for a person to -

(a) interfere with the provision of goods, services or facilities to another person with a disability; or

(b) prevent or to attempt to prevent another person who, whether for payment or not, provides goods, services or facilities, or wishes to provide goods, services or facilities from providing those goods, services or facilities to a third person with a disability."

44. Mr Wong submitted that having regard to the fact that the defendant was himself a disabled person the remarks attributed to him by the plaintiff could not be connected with the plaintiff's disability. What the defendant had been attempting to do was to explain to the plaintiff the nature of his own limitations.

45. In this connection he placed some reliance upon the case of BEU v. P.R. Exhibitions Pty Ltd. (1998) EOC [92-939], p. 78,242 to 78,243. The circumstances of that case were entirely different to those of the instant case.

46. We have no doubt when viewing the evidence as a whole that this submission is unrealistic. The defendant was rude and offensive and specifically referred to the plaintiff being a disabled person. There was ample evidence available to the Judge to enable her to find that the remarks attributed to the defendant by the plaintiff were "on account of" the plaintiff's disability, and that accordingly harassment as statutorily defined had been established.

47. The next point to be considered is whether the Judge was right to order the defendant to tender to the plaintiff an apology.

48. Section 72(4)(b) of the Ordinance provides that the court may "order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant".

49. Our view is that an unwilling apology is not within the scope of the subsection. Mr Dykes drew our attention to the case of Simone and Ors v. Bevacqua Unreported being case no. 8555 of 1993 of the Supreme Court of Victoria Australia where an apology had been ordered. There was a significant difference between the circumstances of that case and the present one. In that case the defendant had prepared a draft form of apology which it was said could be proffered if necessary and this was incorporated by the Court into its order.

50. That is in stark contrast to the present case. Here it would appear to be the case that the defendant is by no means contrite and repentant. He has never indicated that he is. It would appear to us that no useful purpose would be achieved by requiring the defendant to proffer an apology to the plaintiff.

51. Having regard to his attitude to the case it would be nothing more than a meaningless and empty gesture and it should not have been ordered as it would not, in the circumstances, have constituted redress to the plaintiff's loss and damage which ought reasonably to be ordered. We would, however, add that a sincere and appropriate apology, timeously proffered, ought properly to be taken into account in mitigation of the plaintiff's damages.

52. That then leaves the question of the appeal against the quantum of the award. In our view the awards made by the Judge on the basis of both discrimination and harassment totaling $20,000 cannot validly be criticised. However with the falling away of the discrimination it is necessary to adjust the amount awarded.

53. Although discrimination and harassment were closely interrelated in this case the fact that the defendant was not guilty of discrimination does reduce the gravemen of his misconduct. In our view the total award should be reduced from $20,000 to $10,000.

54. In our view the appeal should be partially successful. The appeals against the finding of discrimination and the requirement for the defendant to apologise should be allowed. The appeal against the finding of harassment should be dismissed. We recognise that by this judgment the plaintiff has been denied a possible finding in her favour on the issue of discrimination, when such a finding might have been made if the Judge had properly proceeded to the second stage of the inquiry. We have therefore considered whether we should order a new trial on the issue of discrimination. In all the circumstances of the case, we think that the time has now come for a line to be drawn under these proceedings, and we have decided that a new trial on the issue of discrimination should not be ordered. We should also make an order nisi that there be no order for costs on the appeal and that the plaintiff's order for costs in the court below should be amended so that the plaintiff should only receive 50% of her costs. The defendant's costs should be taxed in accordance with the Legal Aid Regulations.