LAM WING LAI v. Y T CHENG (CHING TAI) LTD

HCMP 718/2006

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 718 OF 2006

(ON AN INTENDED APPEAL FROM DCEO 6 of 2004)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the court) :

Damages for discrimination

1. These are our reasons for refusing to grant leave to the defendant to appeal against the decision of H H Judge HC Wong. 

Damages for discrimination

2. The plaintiff was a former employee of the defendant.  Her employment was terminated by the defendant shortly after her return from maternity leave.  She gave birth on 25 August 2002 and returned to work on 4 November 2002.

3. She claimed damages against the defendant for committing the following unlawful acts :

(a) Unlawful pregnancy discrimination under Section 8A and Section 11(2C) of the Sex Discrimination Ordinance (‘SDO’);

(b) Unlawful family status discrimination under Section 5(a) and Section 8(2C) of the Family Status Discrimination Ordinance (‘FSDO’);

(c) Unlawful discrimination by way of victimization under Section 9(1)(d) and Section 11(2)(c) of the SDO and Section 6(1)(d) and Section 8(2)(c) of the FSDO.

4. H H Judge H C Wong found for the plaintiff.  The defendant applied for leave to appeal against the judgment having failed in similar applications before the judge and before Le Pichon, JA of this Court.

The background

5. The plaintiff was first employed by the defendant on 21 May 2001 on a probation basis.  On 21 August 2001 she successfully completed her probation period.  She served as the secretary for Mr. Cheng, the Chairman of the Board of the defendant and other members of the Board.  Between February and August 2002 the plaintiff experienced complications with her pregnancy and she had to take sick leave from time to time due to hospitalization.  The last time she had been admitted to the hospital was on 20 July 2002 where she stayed until 29 August 2002 after giving birth on 25 August 2002. 

6. This provides the background for the dispute between the plaintiff and her employer.  She was concerned that she might be losing her job because of sick leave and her confinement.  The defendant had employed a new secretary during the time when she was in hospital because of the pregnancy complications.  She had various telephone conversations with Mr. Fung the head of the Human Resources section of the defendant. 

7. It is the plaintiff’s case that on 23 September 2002 Mr. Fung told her that Mr. Cheng did not want to continue to employ her because of her bad health; Mr. Cheng wanted her to stay at home to rest and take care of her son and that the defendant would pay her seven days’ wages in lieu of notice plus ten weeks of maternity leave. 

8. The defendant claimed what Mr. Fung said to the plaintiff was that Mr. Cheng had no intention of dismissing her and was waiting for her to return from her maternity leave, but because she had repeatedly asked if the defendant would terminate her employment and her reasons for so asking was really to stop working in order to look after the baby, the defendant would have no choice but respect her wish. 

9. The judge accepted the plaintiff’s evidence on this issue and found that the defendant had in breach of the statutory provisions committed acts of discrimination against the plaintiff because of her pregnancy. 

Challenge on finding of fact

10. The proposed grounds of appeal relied upon by the defendant challenged the finding of fact by the judge.  The defendant argued that the judge had not considered the inherent improbability of the defendant committing the discriminatory act.

11. In our view, the defendant has not been able to overcome the high threshold of challenging a finding of fact by the judge who had the benefit of hearing and seeing the witnesses.  The finding by the judge of the conversation on 23 September 2002 is fatal to the defence.  The defendant has not been able to demonstrate that this finding is contrary to the evidence or is somehow faulted.  In the circumstances we refused leave.