TSANG LAI MAN v. WONG LUNG SHAN AND ANOTHER

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 1 OF 2000

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JUDGMENT

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          On 12 April 2001, I dismissed the Plaintiff's claim for sexual harassment against D1 and vicarious liability and victimization against D2. Pursuant to section 73B of the District Court Ordinance, Cap 336 I made an order nisi that both parties shall bear its own costs subject to any application to show cause. In the event, both D1 and D2 applied for costs thus giving rise to this morning's hearing.

2. Having heard counsel, I am satisfied that, in section 73B(a), Cap 336 the word "maliciously" covers situations where an action is brought not only out of spite or ill-will but also where there is improper motive. As regards "frivolously", I am happy to adopt the meaning attributed to it under Order 18, Rule 19(1)(b), Rules of the High Court, ie an action is frivolous if it is one that the plaintiff clearly cannot prove and is obviously unsustainable. In deciding whether this is so, however, I agree with Mr Wong that one can look at all the evidence at the end of the trial. This is so particularly because section 73B is on costs, a question which must be considered with a degree of retrospection

3. Looking at my own findings on the case, I should say that the Plaintiff's claim exhibits an element of both maliciousness and frivolity. On this, I agree with Mr Coleman that one has to consider the entire case as a whole and not compartmentalize incidents. At the end of the day, my judgment points to a brash, loquacious young woman who was part of the company norm suddenly turning round and pointing a finger at what was going on. She claimed to have been singled out for harassment but her accounts of the same and the reasons for not disclosing it earlier all failed to convince me. Worse, I found her evidence unreal, embellished, contrived and a host of other things. There was also every indication that her husband was highly influential in the course and direction that the matter took. Many examples have been cited but not exhaustively by defence counsel from my judgment this morning. They speak for themselves.

4. In the circumstances. I agree that the Plaintiff should lose the protection against costs normally accorded in an equal opportunities action. I rely on section 63B(a). I order that the costs of this action be paid by the Plaintiff to the Defendants to be taxed on an indemnity basis if not agreed. The Plaintiff's own costs are to be taxed according to legal aid regulations. Certificate for counsel is granted.