XCHRX MA BIK YUNG v. KO CHUEN

HCMP 4303/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 4303 OF 1999

(ON APPEAL FROM EQUAL OPPORTUNITIES ACTION No. 1 OF 1997)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

This is an application for leave to appeal to the Court of Appeal against the judgment of H.H. Judge H.C. Wong in the District Court that the applicant was guilty of discrimination and ordered the applicant to pay exemplary damages and tender an apology.

2. The applicant is a taxi driver who suffers from some permanent disability which renders him unable to lift heavy objects. The respondent is a doctor in sociology. She suffers from certain physical disability which confines her to a wheelchair in order to move around. On the day in question, the respondent got into the taxi of the applicant and asked the applicant to load her wheelchair into the boot for her but the applicant refused.

3. The allegation of the respondent is that the applicant not only refused to load the wheel chair for her but also used abusive words towards her discriminating her because of her disability. The applicant on the other hand denied that he had discriminated the respondent and contended that what he said was to tell the respondent that he too was suffering from a disability and would not be able to help her but the respondent misunderstood him as being sarcastic to her.

4. The grounds of appeal are the Judge did not properly assess the credibility of the respondent and the inherent improbability of the respondent's story. Further the Judge was bias and was influenced by the fact that the respondent was a woman of high education and a champion for the rights of the disable. Further the Judge's finding that the applicant did not tell the respondent that he too was disable was wrong and not supported by the evidence. The Judge was also wrong in concluding the acts of the applicant amounted to harassment within the meaning of the Discrimination Ordinance, Cap. 487 because the Judge had applied the wrong test.

5. Both counsel for the applicant and counsel for the respondent have submitted lengthy written skeleton arguments and authorities in support of their respective cases. But I do not think it is necessary for me to consider these details which should better be reserved for the appeal proper. What is required for the purpose of this application is for the applicant to show that he has an arguable case with reasonable chances of success on appeal. The authority on this should be found in the case cited by Mr. Wong for the applicant, the case of Smith v. Cosworth Casting Processes Ltd. [1997] WLR 1538 in which Lord Woolf provided the following guidance:

"1. The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word 'realistic' makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

2. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying."

6. Having considered the judgment and the findings of the Judge and the grounds submitted by the applicant and having heard the arguments from both sides, I am unable to say that this is a case which does not come within the jurisdiction of this court to grant leave and I see no reason that leave of appeal should not be refused. Accordingly I grant leave to the applicant to appeal to the Court of Appeal and the costs of this application should be costs in the appeal.