TAN, SHAUN ZHI MING v. EUROMONEY INSTITUTIONAL INVESTOR (JERSEY) LTD

DCEO 4/2017

[2018] HKDC 451

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 4 OF 2017

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DECISION

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1.  On 14 February 2018, I handed down my decision to strike out the claimant’s Notice of Claim and dismiss his action on the ground that his claim is frivolous.

2.  This is his application for leave to appeal against my decision. 

3.  It is trite that leave to appeal should not be lightly granted. Under section 63A(2) of the District Court Ordinance, Cap 336, leave should only be granted if the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard by the Court of Appeal.  On the “reasonable prospect of success” limb, an applicant is required to show more than just an arguable case.  He must show that his appeal has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed:  See Wynn Resorts (Macau) SA v Mong Henry [2009] 2 HKC 515 at para 19.  There can be many reasons for granting leave on the “some other reason” limb even though the court is not satisfied that the appeal has any prospect of success.  For example, the issue in dispute may be one that the court considers should in the public interest be examined by the Court of Appeal or the case raises issue(s) where the law requires clarifying.  See Smith v Cosworth Casting Processes Ltd – Practice Note [1997] 1 WLR 1538 at para 2.

4.  The claimant is unrepresented.  In his affirmation in support of his application for leave, he criticised that I (i) did not take disputed facts in his favour; (ii) demanded a standard of proof from him that was much higher than the standard required to win at trial (and so impossible for most claimants to meet); and (iii) did not ask the respondent to furnish an explanation for its discriminatory behavior or consider how satisfactory the explanation was.  And he elaborated on these grounds at the hearing.

5.  In my view, the claimant is mistaken.  I applied the correct legal principles (see para 9 of my decision), took disputed facts in his favour (see paras 35 & 36) and considered the respondent’s explanations (see paras 10-24).  But even so, as I explained in paras 36-39, the fact that the claimant had been treated unreasonably or even unfairly by the respondent in the investigation process (a fact that is assumed in the claimant’s favour) does not mean that the respondent had committed any act of discrimination under the Sex Discrimination Ordinance, Cap 480.  Taking the claimant’s case to its highest, there is nothing to show that but for his sex the respondent would not have dismissed him and an inference of sex discrimination cannot be drawn merely from the fact that the clamant happened to be male or that his accuser happened to be female.

6.  For the above reasons, I do not think the proposed appeal has reasonable prospect of success and there is no other reason why the appeal should be heard in the interests of justice.  The claimant’s summons is dismissed.

7.  Costs normally follow the event.  I order the claimant to pay the respondent’s costs of this application.  The claimant does not dispute the amount of costs claimed by the respondent.  Nonetheless, the costs claimed is on the high side and I summarily assessed the respondent’s costs at $28,000.