WONG KWOK MUI, ENOCH v. LEE YUEN TIM

DCEO 9 of 1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 9 0F 1999

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JUDGMENT

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1. This is a claim under section 40(1) of the Sex Discrimination Ordinance, Cap 480. For alleged acts of sexual harassment during the course of receiving martial art instructions, the pupil Plaintiff seeks from the master Defendant damages pursuant to sections 76(3A)(f) and 76(6) of the ordinance. An apology pursuant to section 76(3A)(b) is also sought.

The Claim

2. The Plaintiff was a pupil of the Defendant. She enrolled his wing tsun classes in Baptist University before graduating in 1995. These classes were run under the auspices of the International Wing Tsun Association ("IWTA") with which the Defendant was an instructor. After a traditional ceremony in 1996 the Defendant became a proper master or sifu of the Plaintiff. Before that, the Plaintiff had begun taking lessons in the IWTA gym in Nathan Road. She started with group classes but, wanting to acquire more advance techniques, arranged with the Defendant to take private supplementary lessons. These lessons followed an agreed syllabus. The alleged acts of sexual harassment took place over the course of these lessons. Eight acts or incidents are specifically pleaded. They are summarised as follows -

(a) 26 July 1997. During practice in a private lesson, the Defendant deliberately and unnecessary touched and squeezed the Plaintiff's waist for a few times.

(b) 2 August 1997. As (a).

(c) 4 August 1997. During a private lesson, the Defendant asked the Plaintiff to be his woman and help him develop his martial art business.

(d) 8 September 1997. After a private lesson, both the Plaintiff and the Defendant took the MTR and the Defendant put his arm round the Plaintiff's shoulders.

(e) 22 September 1997. As (d).

(f) 20 April 1998. During a private lesson, the Defendant divulged to the Plaintiff his sex life with his wife and boasted about his sexual prowess.

(g) From April 1998. Repeatedly the Defendant telephoned the Plaintiff and left messages on her pager, telling her about his marital problems and asking for dates.

(h) 18 May 1998. As (f), but after a private lesson and in the MTR.

On most, if not all, of the above occasions the Plaintiff did make it known to the Defendant that his conduct was unwelcome. Such conduct put the Plaintiff off private lessons from mid-September 1998. Come October, she stopped going to the group classes as well.

3. As a result, the Plaintiff suffered loss and damages, not least injury to feelings (section 76(6), Cap 480). Apart from an apology (section 76(3A)(b)), she seeks aggravated damages and/or punitive or exemplary damages (section 76(3A)(f)). Her main grounds are -

(a) the Defendant had, by his action, abused and betrayed the trust and respect that the Plaintiff had in and for him as a sifu.

(b) the alleged acts of sexual harassment spanned over an extended period.

(c) some of the acts took place in public, ie the MTR.

(d) after the Plaintiff had complained to the Equal Opportunities Commission ("EOC"), the Defendant:

i) sought to persuade his other pupils not to co-operate in the investigation;

ii) took steps to procure the expulsion of the Plaintiff from IWTA.

(e) after the writ of the case had been issued, the Defendant made improper and inaccurate comments about the Plaintiff both on television and to the press.

The Defence

4. In short, the Defendant says none of it ever happened, whether as pleaded or at all. What he could have done is accidentally touch the Plaintiff during practice without knowing. Although he has put his arm round the Plaintiff before, he has done it to other female pupils. It happened during such times as birthdays when photographs were taken, and only as a fatherly gesture. He has never done it in the MTR and the Plaintiff has never objected. Neither has he said any of the things alleged.

5. The Plaintiff ceased to take private lessons not in mid-September 1998, but end of August 1998. It was because they had completed the syllabus. Meanwhile, there was the KK LEE Incident. It began in July when the Plaintiff accused LEE, a junior pupil, of indecent assault (touching her elbow). Repeatedly she pressed the Defendant for LEE's expulsion but failed. There was an ugly scene when, after the two had had a heated exchange in front of other pupils, the Plaintiff stormed out of a restaurant. In the September-October period, the Plaintiff refused to pay the fee for her promotion as an instructor and incited another pupil to do the same. Furthermore, she distributed rules concerning cross-gender teaching and practice without approval. These led to the Plaintiff's own expulsion by LEUNG the Grandmaster of IWTA in a meeting on 15 October 1998. The same meeting cleared LEE of indecent assault.

6. It was the Plaintiff's spite over the KK LEE Incident that spawned the present claim. He himself has never asked anyone not to co-operate with the EOC. He did give interviews to the media but only to rebut the Plaintiff's false and defamatory allegations. As part of his defence, the Defendant also raises the questions whether, under section 40(1) of Cap 480 -

(a) the giving of martial art instructions amounts to the provision of goods, facilities or services.

(b) acts alleged to have taken place after class can be said to be in the course of providing such goods, facilities or services.

The Issues

7. There are thus three main issues in this case -

(a) whether the Defendant did the alleged acts.

(b) if the answer to (a) is affirmative, whether some or all of them fall within section 40(1) of Cap 480.

(c) if the answers to (a) and at least partly to (b) are affirmative, whether the alleged acts and/or what the Defendant did after the complaint were done in circumstances warranting aggravated and/or punitive or exemplary damages.

8. Since the determination of facts is crucial to all three issues, in fact forming the basis on which issues (b) and (c) are to be assessed, it is what I will turn to first.

Determination of Facts

9. The entire trial took ten days. The bulk of it was taken up by oral evidence. Much of that was given with reference to documents running to two lever-arch files. Some of the grounds covered go straight beyond the pleadings and/or witness statements. It is to be expected, therefore, that there should be cross-charges of contradictions and inconsistencies - contradictions and inconsistencies that both parties put down to failed memory, innocent mistake or plain omissions by their solicitors. No doubt some of these explanations are true, others more difficult to tell. Either way, it is unhelpful as it is impracticable to enumerate all such instances. The same applies to many other lame assertions or shaky answers of only tangential relevance. A better approach would be to identify to one's best matters of scale-tipping significance, whether individually or in conjunction with others. In so doing, things must be looked at in the round and in their full contexts. Much emphasis will also have to be placed on events collateral to or which took place after the alleged acts of sexual harassment. It is by these that third parties and other evidence were brought into the picture. They provide indirect yet cogent material for the court's deliberation.

10. I deal first with the Defendant. He was not an impressive witness. In a few areas his evidence is, to say the least, questionable. First on the list is his defence - he says the Plaintiff became spiteful because he refused to expel LEE. As counsel pointed out, the whole KK LEE Incident is documented in the uncontested minutes of the Defendant's own club (the "social club"). Although they show the Plaintiff pursuing the matter in a crusade-like frenzy (she repeatedly pressed the staff committee of which she was a member for action and "punishment") she had never demanded LEE's expulsion. The most she had asked was for LEE to be suspended for a period and be warned of the possibility of expulsion in case of re-offending. [Tab 16 of the bundle of documents] I also note that LEE himself had never expressed feeling such pressure, not even in his letters to the inquest (if I may so call it) on 15 October 1998. To this, all the Defendant can say is that the demand was oral (twice uttered) except for a letter that the Plaintiff wrote him (which he had thrown away). This answer is, to say the least, unimpressive. That said, it is true that relations deteriorated openly after the KK LEE Incident. It is also true that the Defendant was against taking action against LEE.

11. Next come the rules on cross-gender teaching and practice. [Tab 9] They were adopted in a meeting of the social club on 2 August 1998. Their rough content can, however, be traced back to the one on 5 July. [Tab 8] It was the Plaintiff's idea to introduce these rules. The immediate cause was another incident of alleged indecent assault in June. This time it involved a senior called TSUI and another pupil. It is the Plaintiff's case that the Defendant used these rules as an excuse to engineer her expulsion from IWTA. The Defendant denies this. But it was only during cross-examination that he was made to admit that they were social club rules, not IWTA's. The question, therefore, arises as to why they should become such an issue in the inquest of 15 October. Why should they bother LEUNG the Grandmaster? Why was the Plaintiff alone to be blamed? The Defendant's explanation is that although the social club had agreed to the rules' content, he had not given the permission to distribute them. He did not know they were distributed until the end of August when the head pupil at Baptist University told him they were too strict. As a result, the Defendant took the rules to LEUNG for approval. It was LEUNG who said they were a violation of IWTA regulations and became very angry, not him. The problem with this explanation is that it cannot withstand the scrutiny of the minutes of the meeting of the social club on 6 September. [Tab 15] Paragraph 2 of those minutes refers to a "Teaching Code" which clearly was the rules. It also records a report on how the code was distributing in the branches. The Defendant was present in that meeting. He could not have been unaware of it. The fact that he is untruthful on this point throws great doubt on why he later brought the matter to LEUNG, and what he said about it.

12. A related topic is the Defendant's social club. The Defendant insists that its purpose was to enhance communication between pupils in the different branches. There was no plan to become independent. If one looks at the minutes of the meetings of the club, however, signs towards such a move are abundant. For instance, there were various posts in the staff committee including those for discipline - an arrangement even the Defendant accepts was unnecessary unless the club had other intentions. Then there were all sorts of discussions like having the club's own "technique development department", bank account and punching equipment. A final decision was reached in the meeting of 6 September 1998 to name the club "Hong Kong Lee Yuen Tim Wing Tsun Association" with no reference to IWTA. There was even to be a separate logo. The same meeting decided that the club should "register" in March 1999, nine months after its first preparatory meeting. From the start, "all content and papers of the meetings were not to be disclosed to outside parties". [Tab 3] According to LEUNG, affiliated associations with semi-independent status are permitted in the IWTA. To be fair, it might just be that to which the club was heading. The point is, the weight of the evidence is against the Defendant having ever revealed his intention. LEUNG himself admits to have known nothing about it until late into the inquest of 15 October 1998. (His evidence of the Defendant's brief mention of the subject in a restaurant is shaky and contradicts the Defendant who said it happened in IWTA premises.) The significance of this does not, however, lie in the reason for secrecy (it could have nothing to do with the case) but that the Defendant might have deliberately misled LEUNG on the nature of the rules that the Plaintiff introduced.

13. While still on the subject of the Plaintiff's expulsion, the inquest of 15 October raised three matters - the rules, KK LEE and the Plaintiff's failure to pay fees. The rules I have dealt with. As regards the other matters, the complaints came directly from LEE and the office, and it was LEUNG who instructed that there should be a meeting. No doubt, LEUNG is the strong man in IWTA, and not just because of his founder status. I have seen him give evidence and his robustness exuded. Be that as it may, the Plaintiff was the Defendant's pupil. So was LEE. And so were most of those who attended on 15 October. It intrigues me therefore why, with some effort, he could not have contained the dispute at his level. He could have played it down even when it caught LEUNG's attention. The same goes with the question of fees. The amount disputed ($1,600) was not great by any standard. Had the Defendant intervened, such as by assuring LEUNG that he would look into the matter, there is no reason why it should become such a major issue. This is not to forget that the Plaintiff was the Defendant's favourite pupil. Over all, I am not sure if the Defendant did not welcome the inquest. I am not sure if he did nothing to procure it and its result. It was certainly him who egged LEUNG on to an expulsion notice on 9 November. The question is why.

14. I move now to the core allegations. All of them are said to have taken place in private (in the sense that there were no witnesses) so reliance will again have to be placed on indirect evidence. First, there are two letters. They were dated the 3rd and the 5th of August 1998. [Tab 11 and 12] Both are said to be written by the Plaintiff to the Defendant. What triggered them was the ugly scene in the restaurant. The thrust of the first letter was on how thoroughly bad the Defendant had handled the KK LEE Incident, the second a numeration of his shortcomings. These letters provide considerable insight into the relationship between the parties but there are passages that are more directly relevant and which warrant special mention. They are, in the first letter, where the Plaintiff wrote, "I hope you will talk to your close friends or sisukbak (sifu's male seniors or juniors) about your marriage problems, or you can go travelling with tamun ("them" indicating a group of men) to cure your insomnia". The word tamun was, I should add, underlined. Similarly, the second letter has the following line - "You often ask people out on the pretext of discussing wing tsun and other matters, and then talk nonsense. I am extremely shocked and offended by it." Further down, the Plaintiff wrote, "I also hate it when people touch me or dzipdzuk (to contact) me on pretext". The word dzipdzuk was in square brackets. Obviously, such references are highly probative to the Plaintiff's claim.

15. The Defendant's answer to these letters is to deny ever receiving them. The Plaintiff did send him a letter but not those two. The letter he received was all about KK LEE. He read it and had thrown it away. It was to that letter that he wrote in reply on 6 August. The suggestion is that the Plaintiff made up the letters in Tab 11 and 12. The Defendant agrees, however, that this proposition is flawed in one aspect, ie the accusations were extraordinarily mild and indirect if the purpose was to create false evidence. Furthermore, those letters were dated early August; it was not until late October that the Plaintiff complained to the EOC. Turning to the Defendant's reply, [Tab 13] he did confine himself to KK LEE. This goes some way to support his contention about the content of the letter that he said was sent him. That said, he signed off by asking the Plaintiff in no uncertain terms to keep a forthcoming meeting secret. According to the Plaintiff, that meeting was for confronting the Defendant about his objectionable behaviour. Of that he had prior notice. The plea for secrecy (if I may call it that) shows it. On this point, all that the Defendant can say is that it was the Plaintiff who requested it to be kept secret, lest others might find out and think the Defendant biased over the KK LEE Incident. This is, on any account, a weak suggestion. I am not impressed by it. The syntax of the sentence also shows it to be a plea from the Defendant, not the reverse.

16. I turn to TONG and WONG, two female pupils of the Defendant. They did not give evidence. Notwithstanding the objection of the Defence, I ruled their various statements admissible. I did this pursuant to section 73B(5) of the District Court Ordinance, Cap 336. In a gist, these ladies accused the Defendant of doing things not dissimilar to what he is alleged to have done to the Plaintiff. As a result, their attendance dropped in June to July 1998. The Plaintiff phoned and discovered that they were all in the same boat. After some discussion, a decision was made to ask the Defendant out for an apology. A date was fixed at 28 July or the week that followed but no concrete step was taken to make the appointment. Then came the row in the restaurant on 30 July after which WONG took over the task of approaching the Defendant from the Plaintiff. A meeting was eventually fixed at 9 August in a café in Pacific Place. It is to this meeting that the Defendant referred in his letter. [Tab 13] In the meeting, the Defendant apologised and TONG, WONG and the Plaintiff all forgave him. This is the evidence of the Plaintiff.

17. The significance of TONG and WONG does not lie in the truthfulness or otherwise of their allegations. To conclude that the Defendant has a certain propensity because of them would be most unfair. Rather, they provide the background leading to 9 August and, to a certain extent, independent accounts of what transpired in the meeting. On the last point, it is recorded in an interview by the EOC [Tab 30] that WONG heard the Plaintiff complain to the Defendant that the Plaintiff had been sexually harassed. I should add one thing. Despite the irrelevance of the allegations of TONG and WONG, the Defendant's response to them verges on the ludicrous. Basically, what he says is that both these ladies had a crush on him, and had expressed their feelings to him in each other's presence. He turned them down tactfully but had not told anyone in order to protect their reputation. That is all that transpired between them. He cannot think why TONG and WONG should falsely accuse him of anything. For the full picture, TONG was 21, WONG 25. The Defendant is WONG's great grand uncle. That these ladies should see him as the object of their affection simply sounds unreal. When asked if he thought their feelings were genuine, the Defendant said the incident happened in August 1998 and might have been a trap. When asked when he first suspected that, his answer swayed from at the time to later and then back. Either way, it contradicts his supplementary witness statement filed days before trial [Tab 8a] where no mention whatsoever was made to such suspicion.

18. In short, I disbelieve much of what the Defendant says. I believe he had a hand in the Plaintiff's expulsion. Both TONG and WONG alleged in their statements that the Defendant had pressurised them not to co-operate with the EOC and I believe that happened. I also note that on the question of when the private lessons started, he has no answer to the photographs of a visit by a Japanese television crew which bring the time frame forward to when the Plaintiff says. He was close to the Plaintiff or at least had regular and frequent contact with her. He obviously liked the Defendant a lot and probably sought her confidence over a range of things including his "marriage problems". That said, the burden of proof remains on the Plaintiff. It is not enough that the Defendant lies about certain things, albeit crucial things. What remains to be established is that the Defendant made unwelcome advances or engaged in unwelcome conduct in circumstances reasonable people would anticipate it to be unwelcome. It is to this question that I now turn.

19. The Plaintiff is 27 and a university graduate. She was, at the material time, a reporter for a local paper with a big circulation. She did stories and interviews not least one on the kindergarten where the Defendant's wife worked. "Like doctors and lawyers", she was serious about her profession and cared about her reputation. Although she is no longer at the frontline she still works in the media. In fact, active and outgoing may not altogether be an inappropriate description of the Plaintiff. She worked shifts, practiced wing tsun, taught or helped teach some classes, gave performances in various places and was involved in a bit of martial art filming in the Mainland. She represented the other pupils in reciting the rules in the traditional ceremony in 1996 and was vice-chairman (internal affairs) in the social club in 1998. From beginning to end, she was a leader. Before taking up wing tsun, she had practiced taekwondo for six years up to just one grade below black belt. In 1996, she had an argument with a man over the use of a telephone booth which ended up in a slight physical skirmish. No one would ever accuse the Plaintiff of being shy, weak and needing direction.

20. As a matter fact, nothing could be further from the truth. The Plaintiff was in the witness box for five days (three in cross-examination) and, apart from one or two occasions when overcome by emotions, was perfectly capable of holding her own. Whether by trait or training, she is very conscious of her rights and often tends to be legalistic. I have already alluded to how she doggedly pursued the KK LEE incident. But the correspondence thus generated is an even better illustration. Almost invariably her letters would be divided into headings, with numbered points where emphasis was required and garnished here and there with official-like language. She would use such expressions as "openness", "objectivity" and "accountability". She would accuse the staff committee of confusing itself on the difference between an apology and punishment. She would criticise the club's constitution for not spelling out the distribution of power between staff committee and discipline unit. Once she said she would refrain from a meeting because there was conflict of interest. To a certain extent, the same pattern emerges in her two letters to the Defendant. Other instances include her complaint to the Privacy Commissioner about the Grandmaster reading out her letter in the meeting of 15 October and her subsequent appeal to the Administrative Appeals Tribunal. Such examples abound in the papers.

21. It may also not be unfair to say that the Plaintiff is a conservative person. All the evidence shows that she is highly sensitive to physical contact. The KK LEE incident is an example. It involved three "brushing" movements near the elbow. Having seen the Plaintiff's demonstration, however, her hand was almost motionless. I should not think it too much off the mark to say that most young ladies in Hong Kong would not give it a thought, or would disregard it as too trivial. This is particularly if the matter is given its full context, and it being a one-off incident. Yet the Plaintiff was sufficiently disturbed to confront LEE. She concluded that LEE took advantage of her because he said, "I did not know you would mind". [Tab 14] Similarly, the Plaintiff was asked if she had otherwise been indecently assaulted before. She said yes - once a year. While accepting that these things do unfortunately happen too regularly, this answer does suggest a certain disposition on the Plaintiff's part. When pressed, she admitted them all to involve slight touching, but she could not be sure of the other person's motive so no report was made.

22. The Plaintiff's sensitivity does not only relate to herself. The cross-gender rules were her idea but the incident providing the immediate impetus had nothing to do with her. The allegation was that TSUI, a senior, stroke a female pupil at the back of her hand three times when correcting her fist position. Tab 7 shows the Plaintiff taking up the case as internal vice-chairman. Again, words like "abuse of position", "serious wrongdoing", "sexual harassment", "indecent assault in the legal sense", "redressing the victim's grievance", "moral denouncement", "repent" and "rehabilitation" appear everywhere. For another example, it was the last lesson in the instructor course. LEUNG the Grandmaster was teaching a technique in "sticky hands". He found TONG not to be doing it right so he singled her out for a demonstration. It was when he had just hit TONG at the waist (clearly with token force only) that the Plaintiff shouted, "Don't touch her!" It was "as if she was out of her mind". This is LEUNG's unchallenged evidence.

23. The question I have to answer is therefore this - given the Plaintiff's character, education, exposure and, shall I say, zero-tolerance to unsolicited male contact, why had she put up with the Defendant for such a protracted period? I have considered the differences between physical and non-physical acts but concluded that they make no meaningful distinction. The Plaintiff's not infrequent reference to ethics and morality indicates that her objection was more fundamental. I do not think she would take a sexual slur more readily than a touch on the elbow. I have also considered if it was as a case of progressively bad behaviour but, again, this is not really how the Plaintiff has pleaded. It was more recalcitrance and victimization than the worsening of the quality of the conduct that brought about the claim. Finally, there is this father-daughter relationship that both sides took time to highlight - the Plaintiff to emphasise trust and susceptibility and the Defendant hierarchical proprieties and the unlikelihood of over-stepping the line. On this, I am, to say the least, skeptical. The talk of a martial art instructor caring and protecting a fee-paying pupil and, in reverse, a pupil revering and submitting to a fee-taking instructor in a filial-like relationship simply sounds artificial in today's context. If the Plaintiff thought there was sufficient cause to fall out with her sifu over how he mishandled KK LEE, there was all the more reason for her to fall out with her sifu over how he mishandled himself. This anomaly is inexplicable by questionable claims to filial-like relationship. There is certainly not much evidence of the Plaintiff showing such sentiments, or respect, to the Grandmaster - her sifu's sifu.

24. Of course, the Plaintiff's case is that she did resist. She had made it known every time that the Defendant's conduct was unwelcome. The point is, it was undoubtedly within her power to put a stop to the whole thing and she did not. Had she wanted, the things that she could have done were unlimited. Threatening publicity was one. Threatening to tell the wife was another. Making a scene when they were alone in the MTR might also be a good deterrent. Incidentally, making threats or warnings was not something that would not occur to the Plaintiff. She herself had threatened to resign from the staff committee if it did not "do her justice" in the KK LEE Incident. [Tab 16] If she could think of it then, she could have thought of it earlier. On a more passive note, the Plaintiff could have left the IWTA or at least followed another master. The reason she gives for not doing so is that she had lost confidence in all instructors. Moreover, wing tsun was a small circle and she was worried that the Defendant might slander her. I find this explanation bizarre and difficult to accept. Putting aside the absurdity of her conclusion about other instructors, it would certainly not be consistent with the Plaintiff's character to allow any retaliation to happen. (It was her expulsion from IWTA that made her report to the EOC.) Such a possibility should not have stopped her. By the same token, I find it difficult to accept any suggestion that the Plaintiff was caught in the impossible situation of either foregoing wing tsun her profound love or putting up with the Defendant. The force of her personality simply would not permit it.

25. Admittedly, the Plaintiff's case goes further. The main reason why she did not complain to the EOC earlier is that the Defendant kept on apologising. He promised not to re-offend and she believed and forgave him. It was not until after the October 15 inquest when she thought back and realised that the Defendant had been taking steps to retaliate against her. This retaliation began after the showdown in the café on 9 August 1998 with TONG and WONG present. That said, the question on the Plaintiff's anomalous reaction remains unanswered. Nothing that I have referred to above could explain this special trust and tolerance. As a matter of fact, the Defendant was openly fond of the Plaintiff. Not only would he put his arms round her shoulders, he would give her gifts. These included cards, perfume and a 999 gold key-holder with a poem roughly about time everlasting. The last time this happened was the Plaintiff's birthday on 16 August 1998. A photograph of that occasion shows the Plaintiff smiling under the Defendant's arm (Tab 61). There is no evidence of her rejecting these gifts. I also note that on a number occasions at least the Plaintiff had gone out with the Defendant, to discuss kungfu or performances, but knowing well that he might have other intentions. These took place as late as March 1998. From late April onwards (between bouts of agitation and forgiveness the Plaintiff says) she would remain a driving force of the social club (see, for example, Tab 71). Come 26 May 1998, the Plaintiff could still be seen travelling to Shenzhen with the Defendant to see a free-fighting competition - an act which I find unnecessary, avoidable and impossible to comprehend in all the circumstances. To complete the picture, one goes back a little to February 1998 to find the Plaintiff introducing a lady friend AU to learn wing tsun from the Defendant. She had apparently warned the latter about bodily contact but this does seem big short fall from her usual sensitivity. In a photograph in March she can be seen in a funny posture (all smile and saluting) next to the Defendant. [Tab 61] In early April, she took the Defendant back to her home in the Mainland to get his permission to install a "wooden dummy". Her explanation is that she did not know she could just buy these dummies off the shops in Hong Kong. She was not very willing to take the Defendant but did not know if it amounted to discomfort. I do not find all these easy to reconcile.

26. Turning to TONG and WONG, the impression that the Plaintiff gives is that they are crucial but sadly missing witnesses. I am urged to place weight on their statements. Having read their letters and/or records of interview, however, I am not sure if that is the case. I have already referred to Tab 30. Compiled in report speech by the EOC, WONG is recorded to have heard the Plaintiff complain to the Defendant about sexual harassment. But it does not say by whom. If one looks at her own letter dated 7 January 1999, [Tab 47] no such reference can altogether be found. The meeting at the café in Pacific Place and the question of sexual harassment are mentioned, but not in detail. It is not clear at all who was or were the victim(s). In fact, if one looks at TONG's statement to the EOC dated 7 January 1999, [Tab 46] the meeting at the café is clearly stated to have two purposes. The first was for the Plaintiff to straighten out the KK LEE Incident with the Defendant, the second for TONG and WONG to confront him of sexual harassment. The statement carries on to say that the Defendant accepted all the allegations "in the first point" and apologised to the three of them. Judging by the format of the statement and its enclosure, "first point" can only mean the first paragraph of the statement containing the two purposes. In other words, not only does this statement does not advance the Plaintiff's case, it actually contradicts it. It suggests that if there was any sexual harassment, it was TONG and WONG who were the victims, not the Plaintiff. I have considered the possibility of TONG and WONG playing down the matter in the face of pressure. Since they had gone so far to implicate the Defendant, however, I cannot think why they should mince their words in respect of what happened to the Plaintiff. TONG, in particular, had requested that her identity be protected.

27. While I will not conclude on its nature (there is insufficient basis for me to do so) all the evidence suggests a strong personal attachment by the Plaintiff to the Defendant. Her two letters [Tab 11 and 12] alone reflect this. The intensity of emotions as expressed in such words as "grievances all these years" and "heart broken to pieces" is, on any account, extraordinary (see pages 69 t0 70 of Bundle 1 of the Bundle of Documents). The contradiction drawn between her own persevering loyalty and the perceived ungrateful treatment by the Defendant over a cause totally undeserving (ie KK LEE) is also telling. Even so, the reference to touching and talking nonsense was fleeting and the rebuke mild. As a matter fact, it was, according to the Plaintiff, after the October 15 inquest and having to think about it and concluding that the Defendant was victimising her that she reported to the EOC. The point is, with the nature of this attachment remaining a mystery, I am left in the dark as to the real dynamics between the parties. And unless I can work out these dynamics, I am unable to say that the Defendant had made unwelcome advances or engaged in unwelcome conduct, or that he did so in circumstances reasonable people would anticipate it to be unwelcome. This is notwithstanding the Defendant's case which is strict denial. There are readily perceivable reasons why he should adopt such a position. I come to the above conclusion applying the civil standard. The damaging evidence from TONG and WONG does not help.

Other Issues

28. The legal and other issues fall away with my conclusion on the facts above.

Judgment

29. I dismiss the Plaintiff's claim. I make an order nisi that both parties shall bear its own costs (section 73B(3) of the District Court Ordinance, Cap 336) to be made absolute in 14 days subject to any application to show cause.