CHAN WING KUM v. MING’S PIANO LTD

[English Translation – 英譯本]

DCEO 3/2024

[2024] HKDC 2046

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 3 OF 2024

________________

________________

________________

JUDGMENT

________________

I.  Introduction

1.  This is a hearing for the assessment of damages arising from the respondent’s act which constituted disability discrimination against the claimant. The claimant specifically contends that the respondent has contravened sections 6 and 11(2)(c) of the Disability Discrimination Ordinance, Cap 487 of the Laws of Hong Kong. In default of response from the respondent, an interlocutory judgment in favour of the claimant was entered on 18 April 2024.

2.  This hearing provides an opportunity for the courts in Hong Kong to revisit the English case law and the guidelines laid down by the judiciary in England concerning the quantum of damages for injury to feelings in discrimination cases, which are of considerable referential value.

II.  Background

3.  On 30 January 2024, the Equal Opportunities Commission commenced this claim as the representative of the claimant. According to the notice of claim, the claimant’s case (which remains unanswered by the respondent, as noted above) is as follows:

(1)  The respondent operates a piano classroom business, with one of its branches located in Shatin (“Shatin branch”). The person in charge of the Shatin branch is Leung, the manager.

(2)  The claimant’s employment with the respondent commenced on 12 May 2022 as a customer service officer working at the Shatin branch. The probationary period was stipulated for 3 months, expiring on 11 August 2022. Her monthly salary was HK$16,000, and her day-to-day responsibilities included performing general counter and administrative duties, handling daily student affairs, answering telephone calls, conducting customer analysis and so on.

(3)  The claimant performed her work satisfactorily, maintained good relationship with her colleagues and was not subjected to any complaint.

(4)  On 25 July 2022, the claimant was diagnosed with hyperthyroidism (the “disability”) by a medical practitioner who granted her 6 days of sick leave, ending on 30 July 2022. The claimant therefore informed Leung, manager of the Shatin branch that she required sick leave from 26 to 29 July 2022.

(5)  During her sick leave, the claimant’s duties were shared among other colleagues.

(6)  On 28 July 2022, Leung sent a WhatsApp message to the claimant. During their communication, the claimant told Leung that she still felt unwell and would seek medical treatment on the following day. Leung replied by saying that the Shatin branch “got to have someone; I can hardly wait indefinitely until you recover”.

(7)  On 29 July 2022, the claimant was granted sick leave from 29 July 2022 to 8 August 2022, inclusive. It was also specifically noted on the medical certificate that the claimant was required to attend a follow-up appointment on 12 August 2022. The claimant subsequently sent the medical certificate to Leung via WhatsApp. When Leung asked about her condition, the claimant replied that as the medication had produced the desired effect and her medical condition had stabilised, she would, as advised by her doctor, continue long-term medication and undergo regular blood tests.

(8)  On 2 August 2022, Leung telephoned the claimant and terminated her employment with a 7 days’ notice. Her last working day was consequently 8 August 2022. Subsequent to that, Leung also sent her the termination letter via WhatsApp and email.

III.  Damages

4.  The claimant seeks damages under two heads: (1) injury to feelings and (2) loss of income.

A.  Damages for injury to feelings

5.  In assessing damages for injury to feelings, the court categorises discrimination cases into three bands based on their seriousness:

(1)  The top band: the most serious cases; for example, where the claimant is subjected to a lengthy period of discrimination;

(2)  The middle band: serious cases which do not merit an award in the highest band; and

(3)  The lowest band: less serious cases; for example, where the discrimination in question is an isolated or one-off occurrence.

See Yuen Wai Han v South Elderly Affairs Limited [2005] 2 HKLRD 277, Court of Appeal, paragraph 47.

6.  Regarding the quantum of damages within the respective bands, in Yuen Wai Han, it appears that the Court of Appeal concurred with the amounts in pounds sterling as set out in the English case, Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, namely:

(1)  The top band : £15,000 - £25,000;

(2)  The middle band : £5,000 - £15,000; and

(3)  The lowest band : £500 - £5,000.

7.  From the authorities submitted by the claimant, it appears that the courts in Hong Kong have never specified the exchange rate to be adopted for converting the amounts in pounds sterling in Vento.

8.  The judgment of Vento is dated 20 December 2002. According to the information on the website of the Inland Revenue Department (ird.gov.hk/eng/tax/ind_stp03.htm), in December 2002, £1 was roughly equivalent to HK$11.9798. In my view, and the claimant also agrees, this constitutes a reasonable exchange rate.

9.  Furthermore, in her written opening submission, the claimant suggests that the court refers to the English case, Da’Bell v National Society for Prevention of Cruelty to Children [2010] IRLR 19 and the Presidential Guidance (dated 5 September 2017) issued by the judiciary in England together with its addendum (dated 25 March 2024) to adjust the quantum set out in Vento with regard to the UK inflation data. In my view, there is no impediment to referring to the above authorities as a basis for illustrating that Hong Kong courts are entitled to adjust the quantum to account for inflation. It is also a well-established principle that courts possess such power: see A v 陳偉堂, DCEO 7/2009, 23 December 2011, paragraph 62.

10.  However, if the claimant, as mentioned in her written opening submission, suggests that Hong Kong courts adjust the figures precisely by relying on the above authorities, I would disagree. The reason is straightforward: the inflation rate and economic conditions in the UK have diverged significantly from those in Hong Kong, at least over the past two decades. Mindful of this, I gave a pre-hearing direction in writing, asking the claimant to submit a supplementary statement on the amounts calculated based on Hong Kong’s inflation rate, taking 2002, the year of Vento, as the starting point. In her supplementary statement, the claimant points out that the Consumer Price Index (“CPI”) released by the Census and Statistics Department of the Hong Kong Government (“C&SD”) is broadly consistent with the increase in damages for “pain, suffering and loss of amenities” as presented on page 65 of the Personal Injury Tables 2019. Additionally, according to the Composite CPI released by the C&SD, the price index for the year 2002 was 67.6 and for January to October 2024, it was 107.2. Therefore, if £ y is the amount in Vento, the formula for converting it to the equivalent sum in Hong Kong dollar in 2024 should be:

  £ y X 11.9798 X {1 + [(107.2 - 67.6) / 67.6]}

11.  The resultant rounded amounts are as follows:

(1)  The top band : HK$285,000 – HK$475,000;

(2)  The middle band : HK$95,000 – HK$285,000; and

(3)  The lowest band : HK$9,500 – HK$95,000.

12.  Having considered the authorities submitted by the claimant (K & Others v Secretary for Justice [2000] 3 HKLRD 777; Siu Kai Yuen v Maria College [2005] 2 HKLRD 775; Ip Kai Sang v Federal Elite Ltd [2008] 2 HKLRD 563; 郭永新 v 羅容佳經營環球金屬塑膠製品廠, DCEO 2/2007; and Li Pui Ha v Wong So Kee Transportation Ltd [2014] 4 HKLRD 254) and the following factors, I am of the view that the discriminatory act in the present case falls either within the most serious category of the lowest band, or at the low end of the middle band:

(1)  The discriminatory act constituted a one-off occurrence.

(2)  During her employment, the claimant maintained positive working relationships with her colleagues, performed her duties satisfactorily and received no complaints.

(3)  The respondent’s dismissal of the claimant just days before the end of her probationary period was clearly intended to circumvent the requirement of providing one month’s notice or payment awaiting notice.

(4)  The period between the claimant’s notification of her disability to the respondent and her subsequent dismissal was a mere eight days. Objectively viewed, the claimant was newly diagnosed with the disability at that time and had to deal with the worries and anxieties associated with her disability. At this point of time, she was also subjected to the respondent’s discrimination against her.

(5)  Following her dismissal, the claimant experienced emotional distress and stress. The quality of her sleep has been adversely affected, as has her progress of recovery.

(6)  The respondent has never tendered an apology.

(7)  The respondent’s failure to apologise is exacerbated by the fact that the respondent has been expanding its business since the case was brought to the court, which could be perceived as rubbing salt into the claimant’s wound.

13.  Hence, I hold the view that the quantum of damages for injury to feelings should be HK$95,000.

B.  Damages for loss of income

14.  Regarding the loss of income, I have considered the following cases: Siu Kai Yuen v Maria College [2005] 2 HKLRD 775 (compensation of 8 months’ salary), 郭永新 v 羅容佳經營環球金屬塑膠製品廠, DCEO 2/2007, 4 December 2008 (awarding damages equivalent to 6 months’ salary) and Li Pui Ha v Wing So Kee Transportation Ltd [2014] 4 HKLRD 254 (awarding damages equivalent to 6 months’ salary). There is no evidence to suggest that the claimant’s employment would not have continued, given her satisfactory working performance. In my view, the claimant’s claim for loss of income for 3 months is reasonable. As mentioned above, the claimant’s monthly salary at that time was HK$16,000, which amounts to HK$48,000 for 3 months.

IV.  Costs

15.  Section 73C(3) of the District Court Ordinance stipulates:

“Each party to any proceedings in the Court in the exercise of its jurisdiction under the Disability Discrimination Ordinance (Cap. 487) shall bear his own costs unless the Court otherwise orders on the ground that— (Amended 28 of 2000 s. 48)

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.”

16.  The respondent has never filed its ground of defence, which, in my view, is logically and procedurally tantamount to no ground of defence on its part. Despite having no ground of defence, it did not agree to any part of the claim but chose to let the claimant go through the entire legal process, thereby unnecessarily causing the claimant to recall the unpleasant experience of discrimination. Even assuming that the respondent’s utilization of judicial proceedings in such a manner was not malicious, it was at least frivolous. Its utilization of judicial procedure as such is not necessarily to be deemed “bringing of proceedings” as prescribed in section 73C(3)(a) of the District Court Ordinance, but in my view, defending or opposing to a claim in legal proceedings should be treated in the same way as “bringing of proceedings”. For this reason, I find that such conduct of the respondent as maliciously and/or frivolously defending or opposing to the claim at least falls into “special circumstances” under section 73C(3)(b). In any event, I find that the absence of an apology from the respondent to the claimant in the present case also constitutes “special circumstances”.

17.  Accordingly, I hold the view that the respondent shall bear the claimant’s costs in this assessment of damages.

V.  Conclusion

18.  For the above reasons, I make the following orders:

(1)  The respondent do pay the claimant damages for injury to feelings in the sum of HK$ 95,000 and damages for loss of income in the sum of HK$48,000;

(2)  On the damages for injury to feelings, there be interest at 2% per annum from 30 January 2024 to date; and thereafter at judgment rate until payment in full;

(3)  On the damages for loss of income, there be interest at half judgment rate from 2 August 2022 to date; and thereafter at full judgement rate until payment in full; and

(4)  The respondent do pay the claimant’s costs of assessment of damages, to be taxed if not agreed.

Translated by the Court Language Section of the Judiciary and vetted by Mr Walter Lee, solicitor.