L v. DAVID ROY BURTON

DCEO15/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 15 OF 2009

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BETWEEN

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ASSESSMENT OF DEMAGES

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1.  This is a claim for damages for sexual harassment and sex discrimination under the Sex Discrimination Ordinance, Cap. 480 (“the SDO”).

2.  The Defendant did not indicate an intention to defend the claim and interlocutory judgment was entered on 7 May 2010 against him with damages to be assessed. This is therefore the assessment of the damages of the Plaintiff’s claim. Prior to the hearing, the Defendant has expressly written to the court indicating that he would not attend today’s hearing. 

3.  There has been an anonymity order dated 5 January 2010 prohibiting the naming or other identification of the Plaintiff in the contents of any report of her case and the Plaintiff would simply be referred to as “L” in all the court documents. 

Facts

4.  L is a Chinese female who is able to speak English, Putonghua, Shanghainese and Cantonese.  She graduated with a Master degree in Australia in 2003.  Upon her graduation, she applied for and was offered a job by the Sydney office of the Marcus Evans Group which is a worldwide established marketing enterprise. However, she was forced to give up the offer due to visa complication. 

5.  L then emigrated to live in Hong Kong.  Some time in July 2007, she saw a job advertisement of the Hong Kong branch of the Marcus Evans Group (“the Company”) recruiting sponsorship sales executive, and L applied for the job immediately.

6.  On or about 3 August 2007, L attended a job interview which was conducted by the Defendant who was the general manager and the most senior staff of the Company. 

7.  After the interview, the Defendant tried to develop a close relationship with L by sending her a number of text messages by mobile phone, including one saying “Missing you already” and another one saying “You are a very special lady and I hope we can become more than friends.” 

8.  On or about 10 August 2007, L received an e-mail from the Malaysian office of the Marcus Evans Group giving her an offer of the said job of sponsorship sales executive.  Her duties included contacting the top companies in the world with a view to secure sponsorship for various big events.  L accepted the offer. 

9.  Before the commencement of L’s employment, the Defendant invited L to a dinner at a restaurant in a hotel.  During the dinner, the Defendant started to talk about topics with sexual overtones.  He talked about the sexual orientation of two senior managers and said that his relationship with his wife was not good.  He also told L that he had sexual relationship with a Chinese colleague in the Singapore branch of the Marcus Evans Group when he was working there.   L was astonished by the private nature of the conversation.  During the dinner, the Defendant invited L to dance with him five times, and each time L declined his request politely. 

10.  After the dinner, the Defendant suggested L should go to a hotel with him and L refused.  The Defendant then asked L to go to the office of the Company for a business discussion, and L agreed.  When they arrived in the office, the Defendant turned on the music after a brief business discussion.  The Defendant then walked close to L and asked L to dance with him.  L declined and then left.  At that time, L felt offended and thought that it was inappropriate for the Defendant to persist in his advances after her repeated rejections. 

11.  When L left the office and waited for a taxi, the Defendant followed L and again asked L to go to a hotel.  L refused and told him that she had a boyfriend.  The Defendant immediately turned cold and demanded L to pay for the dinner and said it was a business dinner. 

12.  After returning home on the same evening, L told her boyfriend what had happened.  As L wanted very much to establish herself in the marketing industry, L still took up the offer of working in the Company. 

13.  L started her employment with the Company on 18 September 2007.  During her first week in the office, the Defendant taught L how to log-in the computer system of the Company.  The Defendant sat close to L, put one hand on his private part and leered at L.  L was quite offended and L thought that the Defendant was trying to send her a sexual signal. 

14.  On or around 20 September 2007, the Defendant asked L to go to the board room for a meeting.  When they were inside the room, the Defendant praised L’s appearance and then stroked L’s thigh.  L felt disgusted and immediately stopped him.  L left the room immediately. 

15.  On or about 25 September 2007 during lunch time, the Defendant again stood close to L in the office.  He praised L’s dress and touched L’s breast lightly.  L immediately stopped him and brushed his hand away. 

16.  On or about 9 October 2007 during lunch time, L was in the office with the Defendant.  The Defendant turned on the CD player in the office and asked L to dance with him.  He then indicated that he wanted to have sex.  L immediately refused and she was increasingly upset with the Defendant’s sexual advances.

17.  On or about 15 October 2007 in the afternoon, L was standing by the water machine in the Company office.  The Defendant walked towards L and said, “Darling, how are you?”  At the same time, the Defendant put one hand on his private part and leered at L.  L was disgusted.  Since then, L began to avoid the Defendant and did not greet him when L saw him in the office.  Sensing L’s change in attitude, the Defendant’s attitude towards L began to deteriorate. 

18.  In or around the week before L’s dismissal on 24 October 2007, the Defendant began to treat L badly and constantly picked on L’s performance.  Further, the Defendant asked L to move to sit in an isolated desk in the back of the office and he also wrongfully accused L of not properly cleaning the desk. 

19.  On 24 October 2007 at lunch time, the Defendant informed L that she was fired. During the discussion, L felt aggrieved and tore up the letter notifying the termination of her employment.  Just at that particular moment, the Defendant grabbed L’s wrist forcefully and seized the torn letter from her.  His force was so great that L’s left wrist was bruised with apparent purple marks which remained hurtful for several days.  The Defendant was angry and told L not to argue and to pack up her things and get out of his sight immediately.  He took L’s bag away and put it outside the Company office, and he also called the security guard to escort L to leave.  All these happened in front of all the colleagues in the office.  L felt insulted and the experience had gravely hurt her self-esteem. 

20.  L was very upset and contacted the management of the Asia Pacific Headquarters of the Marcus Evans Group the next day to complain about the Defendant’s sexual harassment and unfair dismissal.

Quantum of the claim

21.  Based on the undisputed evidence of L, this is a clear case of sexual harassment under ss. 2(5) and 23(3) of the SDO.  As dismissal was a direct consequence of the Defendant’s act of sexual harassment, damages from sexual harassment should include the damages flowing from the dismissal.  In any event, the dismissal constitutes an independent cause of action, namely sex discrimination under ss. 5(1) and 11(2) of the SDO, because L would not have been subjected to the Defendant’s sexual harassment but for her sex.  Hence, damages should be awarded for loss flowing from both the acts of sexual harassment and dismissal.

22.  L is claiming for damages under the following three heads of damages:

(i)   injury to feelings;

(ii)  exemplary damages under s. 76 of the SDO; and

(iii) loss of earnings.

(i) Injury to feelings

23.  Injury to feelings flows from both the acts of sexual harassment and dismissal.

24.  According to Mr Poon, the Chief Legal Counsel of the Equal Opportunities Commission which conducts the case on behalf of L, Yuen Sha Sha v Tse Chi Pan [1999] 1 HKC 731 is the only case in Hong Kong which touches upon the assessment of damages for sexual harassment claim.  In that case, the defendant was an university student.  He secretly placed camcorder inside the plaintiff’s room who was another student studying in the same university.  The video tapes found on the defendant contained images of the plaintiff changing her clothes and the defendant had shown the tapes to a former schoolmate of both the plaintiff and the defendant.  In 1999, HH Judge H C Wong awarded $50,000 as damages for injury to feelings, $20,000 as exemplary damages and $10,000 as aggregated damages. 

25.  In Yuen Sha Sha, Judge H C Wong adopted the principles in assessing the quantum of damages of injury to feelings as set out by Smith J in Prison Service v Johnson [1999] ICR 275:

“(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award.

(ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to ‘untaxed riches’.

(iii) Awards should bear some broad genuine similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.

(iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.

(v) Finally, tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of awards made (per Smith J on page 283).”

26.  In Yuen Wai Han v South Elderly Affairs Limited [2005] 2 HKLRD 277, injury to feelings and exemplary damages were assessed in the respective sums of $62,500 and $10,000 for a claim of pregnancy discrimination.  The Hong Kong Court of Appeal also approved the principle of three broad bands of compensation for injury to feelings as set out in Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102:

“(i) The top band of between £15,000 to £25,000 for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment.

(ii) Middle band of between £5,000 to £15,000 for serious cases which do not merit an award in the highest band.

(iii) The lower band of between £500 to £5,000 for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.”

The Court of Appeal also commented that, in general, the award of injury to feelings should not be below $50,000.

27.  In the United Kingdom, there are a few authorities on the assessment of quantum of sexual harassment claims and the facts are very similar to those in the present case.

28.  In A v B trading as X&Y Associates and/or PS, London Central Employment Tribunal Case No(s) 2305392/2002, August 11, 2004 (reported in Tucker & George, Discrimination in Employment, 2010 Edition, London: Thomson Reuters (Legal) Limited, page I79, paragraph I2.019), a sales assistant was subjected to sexual advances for around two months which included physical assault on one occasion by her employer. £10,000 was awarded for injury to feelings which fell within the middle band of Vento. £3,000 was awarded for aggregated damages and additional personal injury award of £3,500 was awarded for psychiatric injury.

29.  In Ms A El-Atar v Private Transport for London trading as Teksi & Another, London Central Employment Tribunal Case No. 2202833/2003, June 22, 2004 (reported in Tucker & George, Discrimination in Employment, 2010 Edition, London: Thomson Reuters (Legal) Limited, page I85, paragraph I2.023), a sales manager was subjected to overt sexual comments and requests for sexual relationship for a few weeks from the person who hired her, and was unfairly dismissed after demanding him to stop making non-work related comments.  £8,500 was awarded for injury to feelings which fell within the middle band of the Vento guidelines.

30.  In Da’ Bell v NSPCC [2010] IRLR 19, the Employment Appeal Tribunal in the United Kingdom updated the quantum under the Vento guidelines in line with inflation: £500 to £6,000 being the bottom band; £6,000 to £18,000 being the middle band; and £18,000 to £30,000 being the higher band.

31.  There is also an Australian authority cited to me by Mr Poon. In Sheils v James [2000] FMCA 2, 13 September 2000, Raphael FM reviewed the relevant authorities and indicated a range for damages for hurt and humiliation of between AUS$7,500 to AUS$20,000.  For a plaintiff who was subjected to a series of sexual advances and overt sexual comments, a sum of AUS$13,000 was awarded as damages for hurt and humiliation in that case.

32.  L claims a sum of $100,000 as damages for injury to feelings.  After listening to her evidence, I accept that she was at one time full of expectation working for the Company and was very keen to establish herself in the marketing industry. However, much to her dismay, the Defendant’s sexual harassment made her progressively uncomfortable, and eventually she was even disgusted and offended by his persistence and later humiliated by his exploitation of the power imbalance.  It persisted for over a month.  L refused the sexual advances by the Defendant and it eventually led to the deterioration of the relationship between the Defendant and herself.  The dismissal was extremely high-handed and openly oppressive abuse of L’s personal dignity including hurting her wrist.  L was extremely distressed and humiliated.  L suffered anxiety, stress, humiliation, physical injury and insomnia as a result of the sexual harassment.  In such circumstances and based on the authorities mentioned above, I am of the view that the quantum claimed by L, which falls within the middle band of the Vento guidelines, is reasonable and I allow the claim in full.

(ii) Exemplary damages

33.  The second head of damages asked for is exemplary damages which is a kind of damages expressly authorized under s. 76(3A) of the SDO.  The object of exemplary damages is to punish a defendant for his conduct in inflicting the harm, when the compensatory award is inadequate to punish the defendant for his outrageous conduct, to mark the court’s disapproval of such conduct and to deter him from repeating it (see: Yuen Sha Sha, supra., at page 742.). Sexual harassment exploits and abuses the victim, who is generally vulnerable because of the power imbalance.  Sexual harassment is also a tort which is easy to commit and difficult to redress.  All these factors are present in the instant case.  After referring to the two local authorities including Yuen Sha Sha and Yuen Wai Han, I agree that compensatory award is insufficient to punish the Defendant in the present case.  I am of the view that the amount claimed by L in the sum of $20,000 is appropriate and I allow such claim in full.

(iii) Loss of earnings

34.  L has also claimed for loss of earnings arising from the dismissal of her employment.  At the time of the dismissal, L’s salary package was about $14,112 a month.  After the dismissal, she remained unemployed for a period of 5 months and 14 days and she only managed to resume employment again on 8 April 2008 working as a marketing manager.  Hence, L is entitled to claim the full sum of $77,039 [(14,112 x 5 months) + (14,112 x 7/31) + (14,112 x 7/30)] as damages for loss of earnings.

35.  In summary, the quantum of L’s claim can be summarized as follows:

(i)   injury to feeling	$100,000
(ii)  exemplary damages	$  20,000
(iii) loss of earnings	$  77,039
Total:	$197,039

36.  For items (i) and (ii), I allow interest at the rate of 2% per annum from the date of writ to the date hereof.  For item (iii), I allow interest at 4% per annum, which is half the existing judgment rate, from 25 October 2007 to the date hereof.  There would be interest on the whole judgment sum from the date hereof to the date of payment. 

37.  I now listen to the Plaintiff’s submission on the issue of costs.

(Submission on costs)

38.  Under s. 73B(3) of the District Court Ordinance, Cap.336, each party to the proceedings under the SDO should bear its own costs unless the court otherwise orders on the ground that: (1) the proceedings were brought maliciously or frivolously; or (2) there are special circumstances which warrant an award of costs.

39.  In the present case, the Defendant has not indicated an intention to contest the Plaintiff’s claim from the outset of the proceedings.  However, I understand from the correspondence between the parties prior to the action that the Plaintiff was in fact prepared to settle the case in the sum of $60,000 together with an apology from the Defendant.  Even facing with such a humble request, the Defendant refused to accept the offer and was not even willing to offer an apology for his wrongful conduct.  In my judgment, the Plaintiff has conducted the proceedings in a reasonable manner, and as a result I find that the circumstances of the present case warrant an award of costs against the Defendant.

40.  Further, I am of the view that for a claim for sexual harassment, it deserves separate consideration.  Unlike other discrimination claims, the Defendant knew from the outset that his conduct was wrong.  Every adult should know that it is wrong to make unwelcome sexual advances to a person of the opposite sex, in particular, that person is an employee under your supervision.  Further, it is also obvious that one should not touch the body of a person of the opposite sex in an indecent manner, and that was actually what the Defendant had done at least on two occasions.  In such circumstances, I am of the view that there are special circumstances in the present case to warrant an award of costs against the Defendant, and I therefore order him to pay for the costs of this Action.