CHEN RAYMOND v. LO SAN AND OTHERS

DCEO1&4/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES NOS. 1 & 4 OF 2003

(Consolidated pursuant to the order of H H Judge Muttrie dated 8 June 2004)

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J U D G M E N T

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1.  This is a claim for disability discrimination and harassment under the Disability Discrimination Ordinance (“the DDO”), Chapter 487, Laws of Hong Kong.

2.  The 3rd Defendant at all material times carried on the business of operating chain fitness centres in Hong Kong.  On 25 December 2002, the Plaintiff joined the 3rd Defendant as a member for a term of one year, and as a member, he had unlimited usage of the 3rd Defendant’s facilities during the term of his membership.

3.  After joining the 3rd Defendant as a member, the Plaintiff paid regular visits to the 3rd Defendant’s centre at Kornhill Plaza (“the Kornhill Centre”).  According to the record of the 3rd Defendant, during the period between 26 December 2002 to 21 January 2003, he visited the Kornhill Centre 21 times.

4.  By joining the 3rd Defendant, the Plaintiff agreed to observe the rules and regulations of the 3rd Defendant.  In the case of any breach of the rules, the 3rd Defendant reserved the right to terminate the membership of the relevant customer without refund.  One of the rules of the 3rd Defendant required the users of weight-plates and dumbbells to return such equipments back to the racks after use.  However, despite numerous warnings and reminders, the Plaintiff repeatedly refused to return the weight-plates and the dumbbells back to the racks, and as a result, the 3rd Defendant terminated the Plaintiff’s membership on 22 January 2003.  The 3rd Defendant agreed to return the prepaid membership fee to the Plaintiff, subject to the payment of the service fee for the period prior to the termination of the membership.  However, the Plaintiff failed to pay such service fee, and so the 3rd Defendant refused to refund the unused membership fee to the Plaintiff.

5.  The 1st and the 2nd Defendants were the employees of the 3rd Defendant at the Kornhill Centre at the relevant time.

6.  The Plaintiff claims that he had lower back pain, and as a result he could not put the weights and the dumbbells back to the racks.  Further, he claims that he had been unlawfully discriminated and harassed by the following conducts on the part of the Defendants:

(i)	requiring the users of the fitness centres to return the weight-plates and the dumbbells back to the racks after use without taking into account the Plaintiff’s disability;
(ii)	terminating his membership with the 3rd Defendant again without taking into account the Plaintiff’s disability; and
(iii)	refusing to return the unused portion of his membership fee to the Plaintiff.

7.  As I see it, the second and the third complaints in substance originated from the first complaint, and so the main issue in the present case is whether the Defendants had wrongfully and unlawfully discriminated or harassed the Plaintiff by requiring him to put the dumbbells and the weight-plates back to the racks after use. 

Evidence in the trial

8.  3 persons testify at the trial.  The first one is Madam Tsang Lai-man who is the wife of the Plaintiff.  According to her, she has known the Plaintiff for about 10 years, and the Plaintiff occasionally made complaints of his lower back pain.  After the 3rd Defendant terminated the membership of her husband, she approached the 3rd Defendant for the refund of the unused membership fees for both her husband and herself.  As she agreed to pay $270 for the membership fee for the period prior to the termination of her membership, she got the whole refund from the 3rd Defendant, but her husband did not get the refund.  Although Madam Tsang claims herself to be a qualified fitness trainer, the Plaintiff has not given any notice of tendering her as an expert witness.  I therefore refuse to allow Madam Tsang to give any expert opinion on matters relating to fitness training.

9.  The second witness is orthopaedic surgeon, Dr Leung Man-fai, from the Hospital Authority.  He comes to testify on a very short notice upon the application for witness summons made by the Plaintiff only on the first day of the trial.  Dr Leung examined the Plaintiff in April and June 2004.  According to the medical records, the Plaintiff then did make complaint of his lower back pain.  X-ray examination revealed that there was decreased space between L4 to L5 of the lumbosacral spine of the Plaintiff.  In other words, the discs become thinner.  Dr Leung explains that this is a common form of degeneration found in many people.  A lot of persons suffering from such degeneration may have no symptom while some other persons may experience pain.  Further, Dr Leung explains that if a person suffering from such degeneration experiences pain in putting back the weight back to the rack, that person should probably experience pain when doing other exercises with such kind of equipment, and he cannot see the difference between the different forms of action.  Further, if someone experiences pain when putting the weight back to the rack, he should have avoided doing any form of exercise involving such weight in the first place.

10.  The 1st Defendant testifies on behalf of the Defendants’ case.  She was the assistant branch manager working for the 3rd Defendant at the Kornhill Centre at the material time.  According to her, when the Plaintiff joined the 3rd Defendant as a member, the Plaintiff signed an agreement under which he agreed to comply with the rules and the by-laws of the 3rd Defendant.  At the relevant time, there were a lot of notices posted in the Kornhill Centre, requiring users of weight-plates and dumbbells to put back such equipments at the racks after use.  After the Plaintiff joined the 3rd Defendant, he paid regular visits to the Kornhill Centre.  On various occasions, the Plaintiff just put the weight-plates and the dumbbells on the floor creating disturbing noises, and despite repeated requests, he refused to return the equipments back to the racks.  When pressed for an explanation, the Plaintiff told the staff of the 3rd Defendant that he had lower back pain, and upon medical advice, he could not place the equipments back in the racks after use.  After that, the 1st Defendant observed the Plaintiff at the Kornhill Centre for a period of about 7 days.  During such observations, the Plaintiff often used heavy weights to exercise and the Plaintiff was seen to have had no difficulty in lifting the weights off the racks, lifting them from the floor and performing at least 2 to 3 sets of exercise afterwards.

11.  2 warning letters dated 2 January 2003 and 13 January 2003 were sent to the Plaintiff, reminding him to return the weights back to the racks after use.  In the second letter, the Plaintiff had been warned that if he continued to ignore the rule, the 3rd Defendant would terminate his membership without compensation.  Despite the oral and written reminders and warnings, the Plaintiff continued to place the equipments on the floor after the exercise.  On one occasion, one of the staffs of the 3rd Defendant actually advised the Plaintiff, due to his alleged back injury, not to perform heavy weight exercise.  However, the Plaintiff ignored his advice and threw the dumbbells on the floor after the exercise.  After resting for a while, the Plaintiff picked up the dumbbells from the floor by himself and continued with the exercise, and again he left the equipments on the floor after use.

12.  The 3rd Defendant did ask the Plaintiff to produce medical report to substantiate his allegation of disability.  Despite such request, the Plaintiff refused to do so and he continued to place the dumbbells on the floor.  On 22 January 2003, the 3rd Defendant terminated the Plaintiff’s membership.  After that, the Plaintiff’s wife approached the 3rd Defendant to ask for a refund, of the pre-paid membership fee.  The 3rd Defendant agreed to make the refund, provided that the Plaintiff and his wife each pay a sum of $270 as the membership fee for the use of the facilities prior to the termination of the membership.  The Plaintiff’s wife agreed to do so and the refund was made.  However, the Plaintiff did not make the payment or sign the cancellation form, and so no refund was made to the Plaintiff.

13.  Since there is no rebuttal evidence, I have no reservation in accepting the evidence of the 1st Defendant as the truth. 

14.  Before the Plaintiff closed his case, he made a conscious decision not to give evidence himself.  By that time, I had already explained to the Plaintiff that if he did not testify, he would not be allowed to give factual evidence at the later stage of the proceeding.  After the testimony of the 1st Defendant, the Plaintiff then made an application for him to give rebuttal evidence.  However, since the main points of the 1st Defendant’s testimony had already been disclosed in her witness statement and the oral testimony added nothing new to the Defendants’ case, and further the Plaintiff had made a conscious decision not to testify before he closed his case, I refused his application to give rebuttal evidence after the oral testimony of the 1st Defendant.

Whether the Plaintiff was a person under disability?

15.  Before the Plaintiff can succeed in his claim, he must be able to prove that he was a person under disability at the relevant time, and this is the main issue in the present case.

16.  “Disability” is defined in section 2(1) of the DDO to mean:

“	(a)	total or partial loss of the person’s bodily or mental functions;
	(b)	total or partial loss of a part of the person’s body;
	(c)	the presence in the body of organisms causing disease or illness;
	(d)	the presence in the body of organisms capable of causing disease or illness;
	(e)	the malfunction, malformation or disfiguring of a part of the person’s body;
	(f)	a disorder or malfunction that results in the person learning differently from a person without disorder or malfunction; or
	(g)	a disorder, illness or disease that affects a person’s thought process, perception of reality, emotions or judgment or that results in disturbed behaviour,
	and includes a disability that -
	(i)	presently exists;
	(ii)	previously existed but no longer exists;
	(iii)	may exist in the future; or
	(iv)	is imputed to a person.”

17.  It is a very wide definition, as observed by HH Judge Muttrie at paragraphs 38 and 44 of his judgment in L v Equal Opportunities Commission, unreported, DCEO Nos. 1 & 6 of 1999 (decision on 13 November 2002):

“	38.	... ... The definition in section 2 seems to allow for any partial loss of bodily or mental function, however insubstantial or however temporary, to be regarded as a disability.  Further, the origin of the loss of function seems to be irrelevant.  So if a doctor found a loss of bodily or mental function it would follow that for the purposes of the DDO there was a disability.  Alternatively, if a doctor found a disorder, illness or disease that affected the plaintiff’s thought process, perception of reality, emotions or judgment or that resulted in disturbed behaviour it would follow that there was a disability.
		... ... ...
	44.	... ... As I have indicated, the definition of disability is very wide.  Just about everything would do.  The loss of function or the effect of the disorder on thought process or emotions need not be substantial or long-term.  The way is open for claims based on minor and temporary disability which a really disabled person, such as a paraplegic, would no doubt find ludicrous; but that is the way the legislation is drawn.”

18.  Despite the wide definition, I do not find that the Plaintiff has proved on the balance of probabilities that he was a person under disability at the relevant time.  The reasons are as follows.  At the trial, the Plaintiff only summoned Dr Leung of the Hospital Authority, who first examined him in April 2004, to give expert evidence about his medical condition.  However, Dr Leung cannot give any expert evidence about the Plaintiff’s condition in December 2002 or January 2003, and so the court has no expert evidence about his condition by that time.  In the pleading, the Plaintiff claims that he could not put the equipments back to the racks upon the advice of his doctor.  However, no medical record of the Plaintiff at the relevant time has been produced to substantiate his claim.  Neither has the Plaintiff disclosed the details of the medical advice.  As testified by Dr Leung, if one experiences pain in putting the weights back to the racks, it is not desirable for that person to have exercised with such equipments in the first place.  In such circumstances, the court would be most interested to know what sort of medical advice that the Plaintiff had received by that time, but unfortunately, no information is supplied to the court in this regard.

19.  Secondly, even assuming that the Plaintiff’s complaint was genuine and there was degeneration in his L4 and L5 discs, it is not clear as to whether such pain had caused the Plaintiff to have suffered any partial loss of bodily function, which is a requirement for the definition of “disability” in the DDO.  The important fact is that the Plaintiff could perform other exercises with the weight-plates and the dumbbells.  According to Dr Leung, if the Plaintiff had experienced pain when lifting the weights back to the racks, he would probably have experienced pain when performing other exercises involving the same weights.  Hence, I have great doubt as to whether the pain, even if genuine, was serious enough to the extent that it caused the Plaintiff to have suffered any loss of bodily function.  Further, the Plaintiff himself does not testify at the trial and so we have no idea how the Plaintiff’s pain, even if genuine, had prevented him from putting the dumbbells and the weights back to the racks while, on the other hand, he had no difficulty in lifting them up from the floor or the racks and doing other exercises with such equipments.  Neither is the Plaintiff’s complaint of loss of bodily function supported by any medical test conducted by specialist medical practitioner.  In such circumstances, the Plaintiff has simply failed to prove on the balance of probabilities that he was a person under disability at the relevant time.

Other reasons to dismiss the Plaintiff’s claim

20.  This would have been sufficient to dismiss the Plaintiff’s claim.  However, even if the Plaintiff’s claim is properly formulated and he was a person under disability, I must say that there are a lot of other reasons why the Plaintiff cannot succeed in his claim. 

21.  The Plaintiff pretends to know quite a bit about the law by submitting a lengthy list of authorities of about 50 cases.  Unfortunately, it turns out that the Plaintiff knows nothing about these cases, and eventually, I have to formulate the claim for him. 

22.  Sections 26 and 38 of the DDO respectively prevent someone from discriminating and harassing another person in relation to the provision of goods, services or facilities.  So far as discrimination is concerned, the Plaintiff can rely on claims for direct discrimination under section 6(a), indirect discrimination under section 6(b) and discrimination by victimisation under section 7.  On the other hand, “harassment” is defined in section 2(6) of the DDO.

23.  In the latter part of this judgment, I will explain why even if the Plaintiff was a person under disability, which I do not find it to be the case, the Plaintiff cannot succeed in the claims mentioned above.  I first start with the claim for harassment. 

(i)  Claim for harassment

24.  Section 2(6) of the DDO defines “harassment” as follows:

“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 the 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.”

25.  In my judgment, the regulation requiring the users of the fitness centre to place the weight-plates and the dumbbells back to the racks after use cannot be regarded as discriminatory in nature.  The regulation was made with a view to avoid other users from injuring themselves with the weight-plates or the dumbbells lying on the floor, and to avoid the noise nuisance caused by the placement or dumping of such equipments on the floor.  Certainly, if someone, by reason of his disability, has difficulty in placing the equipment back in the rack, one would not expect that he would use such equipment for exercise in the first place.  As Dr Leung has testified, if a disabled person has difficulty in placing the equipment back in the rack, the use of such equipment in other forms of exercise would have a great risk of aggravating the pain of that person.  Further, I cannot understand how a person, with no apparent difficulty in lifting the weights from the racks and from the floor, would have difficulty in placing them back in the racks.  Hence, I do not find that a reasonable person, having regard to all the circumstances of the case, would have anticipated that the Plaintiff would be offended, humiliated or intimidated by the 3rd Defendant’s enforcement of the relevant regulation, and the claim for harassment must therefore fail.

(ii) Claim for indirect discrimination

26.  I then turn to the claim on indirect discrimination which is defined in section 6(b) of the DDO as follows:

“	6.	A person discriminates against another person in any circumstances relevant for the purpose of any provision of this Ordinance if -
		(a)	... ... ...
		(b)	if he applies to that other person a requirement or condition which applies or would apply equally to a person without a disability but -
			(i)	which in such that the proportion of person 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.”

27.  The Plaintiff may certainly argue that the regulation requiring the users to place the weights back to the racks constitutes a requirement or condition under section 6(b) and so he, being a person with the alleged disability, would find it more difficult to comply with such requirement as compared with other persons who are not suffering from such disability.  However, if the application of the requirement is justifiable under section 6(b)(ii), then the Defendants would not be liable for indirect discrimination.

28.  In Siu Kai Yuen v Maria College [2005]HKLRD 775, HH C B Chan, in following the dicta of the English Employment Appeal Tribunal in Board of Governors of St Matthias Church of England School v Crizzle [1993] IRLR 472, held that the following factors must be considered in deciding whether a requirement or condition is justifiable for the purpose of section 6(b)(ii):

(i)	whether the objective of applying the requirement or condition is legitimate;
(ii)	whether the means used to achieve the objective are reasonable; and
(iii)	whether the requirement or condition is justified when balanced on the principle of proportionality between the discriminative effect on the alleged discriminatee and the reasonable needs of the alleged discriminator.

29.  Applying the aforesaid principles, I am of the view that the enforcement of the relevant regulation is certainly justifiable.  As I have mentioned above, the object of the regulation is to avoid possible injury caused to other customers and noise nuisance.  In fact, if the 3rd Defendant did not enforce the regulation and some other customers were injured as a result, the 3rd Defendant may be liable for negligence.  This is certainly a legitimate objective and the means used to achieve such objective are also reasonable.  On the principle of proportionality, I do not think that the regulation would restrict the freedom of the Plaintiff in having exercise.  According to the expert evidence of Dr Leung, if the Plaintiff had difficulty in placing the weights back in the racks, he should have avoided exercising with such weights in the first place.  Indeed, the Plaintiff should have exercised with some other lighter weights, and there is simply no justification for the Plaintiff to complain that he had been unfairly treated by the enforcement of the relevant regulation.  The claim for indirect discrimination should likewise fail.

(iii) Claim for direct discrimination and discrimination by victimisation

30.  Lastly, I will deal with the claims on direct discrimination and discrimination by victimisation.  Section 6(a) defines “direct discrimination” as follows:

“	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;
		...”

On the other hand, the definition of “discrimination by victimisation” can be found in section 7(1):

“	A discriminator discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason of that the person victimised or any other person (‘the third person’) has:
	(a)	brought proceedings against discriminator or any other person under this Ordinance;
	(b)	give evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;
	(c)	otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or
	(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance,
	or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the person victimised or the third person, as the case may be, has done, or intends to do, any of them.”

31.  The common element for both claims is that there must be a causal link, in the sense that the treatment to the complainant was made either because of the complainant’s disability or that the complainant had done a protected act as stated in section 7.

32.  As I see it, the imposition of the regulation does not involve unfair treatment.  On the contrary, the regulation requires all the users of the fitness centre to comply with the same requirement.  Hence, the only unfavourable treatment that the Plaintiff can rely upon is the termination of his membership.

33.  As laid down in the case of Nagarajan v London Regional Transport [2000] 1 AC 501, the court must ascertain the real reason for the unfavourable treatment.  In the present case, it is clear that the real reason for the termination of the Plaintiff’s membership was the repeated refusals by the Plaintiff to comply with the regulation.  As shown by the facts of the case, the Plaintiff had no difficulty in lifting the weights from the racks and doing other exercises with such heavy weights.  He was also seen lifting the weights from the racks and from the floor, and yet the Plaintiff claimed that he had difficulty in placing the weights back to the racks.  In my judgment, the Plaintiff’s behaviour was simply inconsistent with his allegation of disability.  To me, the Defendants certainly had genuine reason to doubt the Plaintiff’s allegation in this regard.  The Plaintiff then repeatedly ignored the oral and written reminders from the 3rd Defendant for him to comply with the rule, and he also ignored the advice given by the staff of the 3rd Defendant for him not to engage in exercises involving heavy weights.  He simply adopted an uncooperative attitude.  In my judgment, this uncooperative attitude and the breach of the rule were the main reasons for the termination of the membership, and there is simply no basis to substantiate the Plaintiff’s claims for direct discrimination and discrimination by victimisation.

34.  In ascertaining the real reason for the 3rd Defendant’s conduct, the court is also entitled to take into account the duty owed by the 3rd Defendant to the other customers using the fitness centre.  In Purvis v State of New South Wales (HCA) [2003] 217 CLR 92, a student, by reason of his disability, became violent towards other students and teachers in the school.  The student was eventually expelled from the school.  In dismissing the claim for discrimination made on behalf of the disabled student, the court took the view that in ascertaining the real reason for the unfavourable treatment, the court was entitled to take into account the duty owed by the school to the other students and staffs by not allowing the disabled student to pose as a danger to them.  In my judgment, the same reasoning applies in the present case and the Plaintiff’s claims for direct discrimination and discrimination by victimisation should therefore fail.

35.  The Plaintiff also relies on the refusal on the part of the 3rd Defendant to make a refund of the membership fee as a ground for discrimination.  However, the 3rd Defendant was all along prepared to make the refund to the Plaintiff provided he paid the fee for the services that he had already used.  Just like the case of the Plaintiff’s wife, the 3rd Defendant was prepared to make the refund.  As the Plaintiff’s membership fee was paid by the Plaintiff’s wife by way of instalments through credit card company, the 3rd Defendant could not just simply make the deduction for the service fee and then refunded the balance to the Plaintiff.  In fact, the 3rd Defendant had the right not to make any refund under the membership agreement, and yet the 3rd Defendant agreed to do so if the Plaintiff paid the service fee for the period prior to the termination of his membership.  However, the Plaintiff refused to pay the fee and he also failed to sign the cancellation form, which I understand was necessary for the purpose of cancelling the instalment payment arrangement through the credit card company.  Hence, as I see it, the refusal by the 3rd Defendant not to refund the fee was a commercial decision made in relation to a contractual dispute, and such decision had nothing to do with the claim for discrimination.  In such circumstances, the Plaintiff’s claim in this regard should fail.

36.  Based on the aforesaid reasons, I dismiss the Plaintiff’s claim.  I must also say that the Plaintiff’s claim is totally misconceived and unnecessary.  Apart from the doubt I have about the Plaintiff’s disability, I also do not understand why the Plaintiff felt aggrieved when he was able to do the exercise with the dumbbells and the weight-plates, and yet he refused to return the same equipments back to the racks.  The Plaintiff should understand that the dumping of the weight-plates on the floor was dangerous to other customers, and his uncooperative attitude rather than his disability is the main reason for this unnecessary litigation.