DCEO 10/2021

Background Facts

The Claimant was a female Event Coordinator of a recreation club. She worked with the Respondent who was a male Operations Manager in a senior position. The Claimant alleged that she was sexually harassed by the Respondent on at least ten occasions over the span of one year when they were co-workers at the club, contravening section 2(5), when read together with 23(3) of the SDO.

After the first sexual harassment incident in which the Respondent stroked the Claimant’s back, he was cautioned by the club management not to have physical contact with her again. However, he continued to sexually harass the Claimant by subjecting her to unwelcome physical touch (e.g. pressing his chest against her back) and attention of a sexual nature by staring at her chest and legs. The Claimant eventually resigned from her employment due to persistent distress caused by the Respondent’s continuing acts of sexual harassment.

The EOC represented the Claimant in bringing legal proceedings against the Respondent. Interlocutory judgment on liability was entered against the Respondent.

At the hearing for the assessment of damages, apart from the Claimant’s testimony, a former colleague of the Claimant who had witnessed several of the sexual harassment incidents also gave evidence in Court. The Respondent did not file any documents in the action nor did he attend the hearing for the assessment of damages.

Court’s Decision

The Court awarded damages to the Claimant for injury to feelings, exemplary damages, interest and costs.

Injury to feelings

The Court accepted the Claimant’s evidence and allowed her claim for HK$80,000 in damages for injury to feelings in full to mark the degree of embarrassment, humiliation, emotional distress and anxiety caused by the Respondent’s repeated sexual harassment acts. Although each of the Respondent’s unlawful acts singularly was not as serious and sexually explicit as those in L v Burton DCEO15/2009, the Judge recognised that the repetitive nature of the multiple harassing acts over an extended period of over a year, and which had continued despite the Claimant’s complaints, had rendered the Respondent’s exploitation of the imbalance of power comparable to that in L v Burton.

The Court accepted that the Claimant was progressively offended and distressed by the Respondent’s persistent harassment acts, which eventually led her to resign from a job which she treasured so as to avoid further harassment from the Respondent.

Exemplary damages

The Court awarded HK$10,000 in exemplary damages to the Claimant as the compensatory award was inadequate to punish the Respondent, who remained undeterred in his harassment acts despite caution from his former employer (i.e. the club). The Judge took into account the relatively junior position of the Claimant which rendered her vulnerable to the unlawful conduct of the Respondent in the workplace. The Claimant’s psychological distress was further aggravated during the EOC complaint process during which the Respondent failed to provide any reasonable explanation for the harassment incidents. Thus exemplary damages were required to mark the disapproval of the Court towards the Respondent’s outrageous conduct and abuse of power.

Costs

The Court held that there were special circumstances which warranted an award of costs against the Respondent. The Respondent had known from the outset that his conduct was wrong, yet continued his unwelcome sexual harassment to the Claimant for over a year. Moreover, not only did the Respondent fail to put forward any valid justification for his actions, he chose not to respond to the Claimant or the EOC prior to the commencement of litigation, and he failed to participate in the present proceedings.

DCEO 4/2016

Background Facts

The Claimant, X, works in the field of architecture. In 2007, she joined an architectural firm Leigh & Orange Limited (“the Firm”). Since April 2011, the 1st Respondent, who was then an Associate Director of the Firm, supervised X.

X alleged against (i) the 1st Respondent for unlawful sexual harassment in the course of employment, and (ii) the Firm for vicarious liability for (i).

Regarding (i), X alleged the 1st Respondent committed the following impugned conduct:-

1. Touching her buttocks, thighs and hand;
2. Staring and scanning at her;
3. Taking excessive photographs of her; and
4. Sending her uncomfortable text messages.

Both the 1st Respondent and the Firm denied the allegations and claimed:

1. X’s claim was time barred;
2. X framed the 1st Respondent to avenge her boyfriend’s termination of employment from the Firm; and
3. the Firm had taken reasonably practicable steps to prevent sexual harassment in the workplace and could invoke the statutory defence under s. 46(3) of the SDO.

Court’s Decision

X’s claim was time barred and thus should be dismissed on the limitation ground alone. Nevertheless, the Court discussed the merits of her case.

The Court gave guidance on the test of proving sexual harassment under s. 2(5)(a) of the SDO. The test has three aspects:

1. The evidential aspect: the Claimant had to establish that the event complained actually took place;
2. The subjective aspect: the event must be unwelcome to the Claimant; and
3. The objective aspect: it should have been anticipated as a matter of objective assessment that the Claimant would have been offended, humiliated or intimidated by the event.

Regarding the relationship between the subjective and objective aspects, in addition to proving that the impugned conduct was unwelcome, the Claimant must show that a reasonable person, having regard to all the circumstances, would have anticipated that the Claimant would be offended, humiliated or intimidated. Since it is for each person to define his/her own level of acceptance, it is often necessary (save for conduct that is clearly “sexual”) for a complainant of sexual harassment to make known his/her rejection before repetition of a similar conduct could amount to sexual harassment.

Here, X failed to establish any sexual harassment by the 1st Respondent. Her evidence was not cogent enough to establish that the impugned conduct actually took place and/or they constituted sexual harassment.

That said, the Court disagreed with the 1st Respondent’s accusation that X framed him. The Court commented that even if the 1st Respondent was exonerated, it did not mean that X had lied. It was more likely that she was over-sensitive to the 1st Respondent’s conduct than for her to deliberately lie and invent evidence to frame him.

Since X had failed to establish that the 1st Respondent committed unlawful sexual harassment in the course of employment against her, there was no basis of vicarious liability against the Firm. Therefore, the Court did not consider whether the steps taken by the Firm to avoid sexual harassment in the workplace were sufficient to satisfy the statutory defence under s. 46(3) of the SDO.

DCEO 9/2010

Background Facts

The Plaintiff was sexually harassed by a dim sum worker employed by the Defendant. The harassment incident involved the dim sum worker making a sexual remark and touching her chest. The Plaintiff complained to the Defendant, but it did not take any prompt action. When the Plaintiff wanted to report the harassment to the police, the Defendant pressured her not to do so or both she and the harasser would be dismissed.

The Defendant eventually arranged a meeting during which the harasser was told to apologize to the Plaintiff. However, he did so in a disrespectful manner. Aggravated by the harasser’s disrespect, the Plaintiff slapped the harasser in the face. She was then dismissed by the Defendant. The Plaintiff filed a complaint with the EOC against the harasser and the defendant for sexual harassment and vicarious liability for the harassment respectively. The Plaintiff’s claim against the harasser was settled via conciliation, while the Plaintiff’s case against the Defendant was brought to the Court under the Sex Discrimination Ordinance (SDO).

Court’s Decision

The Court accepted the Plaintiff’s evidence and found that the acts committed by the harasser amounted to unlawful sexual harassment. The Defendant, as the harasser’s employer, was liable for his acts because it did not take reasonably practicable steps to prevent sexual harassment against the Plaintiff in the workplace. However, the Court ruled that the dismissal was because the Plaintiff slapped the harasser, not because she was sexually harassed or she is female. The Court awarded damages to the Plaintiff for injury to feelings in the sum of HK$80,000, as well as costs to the Plaintiff.

DCEO15/2009

Background Facts

The Plaintiff interviewed for and was offered a position with a marketing firm, for which the Defendant was the general manger. Before the Plaintiff commenced her employment and during her employment, the Defendant made numerous sexual advances towards her and twice touched her inappropriately. The Plaintiff rejected the Defendant’s advances every time. The Defendant’s attitude towards the Plaintiff deteriorated and finally he discharged her, at which time he also forcefully grabbed and bruised the Plaintiff’s wrist. The Plaintiff brought proceedings against the Defendant under the SDO.

Court’s Decision

The Court found that there was a clear case of sexual harassment under the SDO based on the Plaintiff’s undisputed evidence. The Court awarded damages to the Plaintiff for injury to feelings, loss of earnings, and exemplary damages.

Injury to feelings	HK$100,000
Loss of earning	HK$77,039
Exemplary damages	HK$20,000
	HK$197,039

The Court awarded $100,000 in damages for injury to feelings flowing from both the acts of sexual harassment and the dismissal, which falls within the middle band of the Vento guidelines. The offensive behavior of the Defendant persisted for over a month, and the eventual dismissal of the Plaintiff was high-handed and abusive of the Plaintiff’s personal dignity. As a result of the sexual harassment, the Plaintiff suffered anxiety, stress, humiliation, physical injury, and insomnia.

For loss of earnings, the Court awarded an amount equal to five months and 14 days’ income, as the Plaintiff was unemployed for that period before finding other employment.

The Court further awarded $20,000 in exemplary damages as the compensatory award was insufficient to punish the Defendant in the present case.

The Court also awarded costs to the Plaintiff which it found to be warranted by the circumstances of the case. The Plaintiff had conducted the proceedings in a reasonable manner, whereas the Defendant refused to settle or to apologize for his wrongful conduct. Furthermore, this was a sexual harassment case where the Defendant should have known from the outset that his conduct was wrong.

DCEO 7/2009

Background Facts

The Plaintiff worked with the Defendant in the Food and Environmental Hygiene Department (FEHD) as an Assistant Hawker Control Officer. In the workplace, the Defendant sexually harassed the Plaintiff by making sexual remarks, physical contacts and other unwelcome conducts of a sexual nature against her. The Plaintiff complained to the FEHD which conducted an internal investigation. However, the Plaintiff’s complaint was found to be unsubstantiated.

Despite the result of her internal complaint, the Plaintiff persisted and lodged a complaint with the EOC. The Defendant denied the allegation and claimed that the Plaintiff’s complaint was a revenge for his gossiping with other colleagues about her relationship with one of her supervisors. The Plaintiff brought her claim against the Defendant to the Court under the Sex Discrimination Ordinance (SDO).

Court’s Decision

The Court accepted the Plaintiff’s claims, whose timeline and details were corroborated by witnesses and supported by her own notes of the acts. It found that the Defendant committed unlawful sexual harassment. It rejected his defence that the Plaintiff’s claim was in retaliation for his gossiping.

The Court indicated that the result of the internal investigation did not affect its ruling in the present case, because the internal investigation adopted the criminal standard of proof of “beyond all reasonable doubt”, which is more stringent than the “balance of probability” standard used by the Court.

The Court made an order that the Defendant should give a written apology to the Plaintiff. It also awarded costs and monetary compensation to the Plaintiff as below:

Injury to feelings	HK$50,000
Exemplary damages	HK$10,000
	HK$60,000

The Court awarded $50,000 in damages for injury to feelings. The Court further awarded $10,000 in exemplary damages to punish the Defendant for his conduct in inflicting harm as he completely fabricated his defence that the Plaintiff’s claim was in retaliation for his gossiping.

The Court also awarded costs to the Plaintiff because the Defendant refused to attempt conciliation arranged by the EOC and made a totally fabricated defence.

CACV 57/1999

Background Facts

A policeman was found to have committed sexual harassment acts against a female colleague in an internal disciplinary proceedings. He then challenged the decision in a judicial review.

Court’s Decision

Though this case was not brought under the SDO, the internal police rules relating to sexual harassment were in materially the same terms as the SDO. The Court made useful elaboration concerning situations of sexual harassment covered by the SDO:

First, according to s. 2(5)(a)(i), sexual harassment is committed if a person makes an unwelcome sexual advance or request for sexual favours to the complainant. The advance or request must be made to or directed at the complainant.

Second, s. 2(5)(a)(ii) covers unwelcome conduct of a sexual nature engaged in by a person in relation to the complainant. The words “in relation to” cover not only acts in respect of her, but also with her. In other words, take for an example, if a man tells dirty stories to a woman in a partitioned room of a restaurant and such stories are unwelcome to her, then it amounts to sexual harassment. This is because the stories need not be about the complainant. They will suffice to constitute sexual harassment as the man is having the conversation with the complainant. Yet, on the other hand, if the stories are, unknown to the man, overheard by ladies in the adjoining room, it cannot be claimed that those ladies are sexually harassed as they are neither in the room of the story-teller, nor the addressees of the stories.

It should also be noted that what amounts to “unwelcome” in s. 2(5)(a)(i) and (ii) is judged according to an objective standard. The Court will take into account all the circumstances and if a reasonable person will have anticipated that a complainant will be offended, humiliated or intimated in that circumstance, it will be considered as “unwelcome”.

Third, s. 2(5)(b) is of a different nature, which covers, for example, situations where a person posts up a lewd picture on the notice board of an office or circulates a lewd picture in the office, which creates a sexually hostile or intimidating work environment for others working in the office.

DCEO 9/1999

Background Facts

The Plaintiff was a pupil receiving martial art instructions from the Defendant who was her master. The Plaintiff alleged that over a period of time, the Defendant had sexually harassed her by the following acts:-

1. deliberately and unnecessarily touched and squeezed the Plaintiff’s waist for a few times in a private lesson;
2. asked the Plaintiff to be his woman in a private lesson;
3. put his arm around the Plaintiff’s shoulders inside MTR compartment;
4. divulged to the Plaintiff his sex life with his wife and boasted about his sexual prowess in a private lesson;
5. repeatedly called the Plaintiff and left messages on her pager, telling her about his marital problems and asking for dates.

The Defendant denied any of the alleged acts had ever happened. The Defendant alleged that it could only be accidental touch during practice or a fatherly gesture which was done to other female pupils as well.

The Plaintiff brought legal proceedings against the Defendant under the SDO.

Court’s Decision

The Court dismissed the Plaintiff’s sexual harassment claim.

The Court observed that the Plaintiff was an active, outgoing and strong person. She was a leader both in her career in the media and in her affiliated social club of martial art. She was very conscious of her rights and often tended to be legalistic. On the other hand, she was conservative and highly sensitive to trivial male physical contact.

The Court indicated that given the Plaintiff’s character, education, exposure and high sensitivity to male physical contact, it was unlikely that the Plaintiff would have put up with the Defendant for such a protracted period. The Court further observed that it was within the power of the Plaintiff to put a stop to the whole thing but she did not. This was incompatible with her character.

The Court also noted that the subsequent conduct of the Plaintiff could not easily be reconciled with a claim of sexual harassment. For example, after the alleged acts of sexual harassment, the Plaintiff could still travel with the Defendant to see a free-fighting competition in Shenzhen, an act which the Court found unnecessary, avoidable and impossible to comprehend.

The Court also indicated the approach of assessing oral evidence where both parties have contradictions and inconsistencies as follows:-

1. It is unhelpful and impracticable to enumerate all such instances;
2. A better approach is to identify one’s best matters of scale-tipping significance, whether individually or in conjunction with others, by looking things in the round and in their full contexts;
3. Appropriate weight should be given to events collateral to or which took place after the alleged acts of sexual harassment; and
4. Third parties and other evidence are bought into the picture, which could provide indirect and yet cogent material for the Court’s deliberation.

HCA 5975/1999

Background Facts

The Plaintiff saw several shirtless men around a wet market and an adjacent sports ground. She confronted these men about their attire and they responded with vulgar and abusive language. The Plaintiff filed a sexual harassment claim under the SDO against three Defendants. The First Defendant is the property management company that oversees the housing estate where the market and sports ground are located, which the Plaintiff argues allowed or failed to prevent the presence of shirtless men on its premises. The Second and Third Defendants are a newspaper stall and a vegetable stall at the market, respectively, which the Plaintiff argues the shirtless men were present near. The Plaintiff’s claim was struck out by the Registrar of the High Court to the Court of First Instance and the Plaintiff appealed the decision accordingly.

Court’s Decision

The Court upheld the Registrar’s decision to strike out the Plaintiff’s claim, stating three reasons for its decision.

Firstly, the Plaintiff failed to establish standing to bring the claim as she did not indicate any relationship between her and the Defendants in the capacity of which they could be held responsible under the SDO. Although the Defendants were engaged in the provision of goods, facilities or services, the Plaintiff did not show that she was a resident of the housing estate where the market is located, or a customer of the Second or Third Defendants’.

Secondly, the complained-of conduct does not constitute sexual harassment. The Plaintiff complained of the state of undress of certain men in the vicinity of the market and sports ground who were engaging in physical labor. That they were shirtless is easily explained by the desire for increased convenience and comfort while working. It was not directed at the Plaintiff and does not involve a sexual nature, thus does not constitute sexual harassment. Taking into account of the culture of particular class of people in the Chinese society, in particular, the Cantonese society, the use of vulgar language, even including profanity relating to male and female reproductive organs, is rude and undesirable but not necessarily conduct of a sexual nature thus does not constitute sexual harassment in the circumstances.

Lastly, the men who allegedly committed sexual harassment by being shirtless were wholly unconnected to the Defendants in this case; they were simply present at or around the market. The Plaintiff was unable to establish any kind of relationship between the Defendants and those men, or to otherwise show why the Defendants should be responsible for the conduct of those men.

The Court found that the Plaintiff failed to state a reasonable cause of action and that her claim constituted an abuse of the process of the court. It dismissed the Plaintiff’s appeal and ordered her to pay the costs of the appeal incurred by the Defendants.

DCEO 1/1998

Background Facts

Both the Plaintiff and the Defendant were students residing at the same hostel in a university and they had been friends for a long time. The Plaintiff brought proceedings against the Defendant under the SDO after she discovered that the Defendant had secretly placed a camcorder inside her room over an extended period of time, which had videotaped her thighs, waist, face and chest. Several clothes-changing scenes were also captured where her upper body could be seen with a bra.

CourtContent (Eng)’s Decision

It was held that the Defendant’s video taping fell within the meaning of “unwelcome conduct of a sexual nature” according to s. 2(5) of the SDO. Hence, the Defendant had committed an act of sexual harassment under s. 39(3) of the SDO.

In fact the Defendant had admitted liability and only contested the issue of remedies to the Plaintiff. The Court awarded the Plaintiff a total of HK$80,000 by way of damages as follows

(1) Damages for injury to feelings

The Court recognized that the Plaintiff was shocked and distressed by the Defendant’s actions. HK$50,000 was awarded as damages for injury to feelings.

(2) Exemplary damages

The objective under this head of damages is to punish the Defendant for his conduct in inflicting the harm. Taking into account the Defendant’s exploitation of trust and friendship with the Plaintiff, his calculation in carrying out the whole plan, and his showing of the tape to a friend of both the Plaintiff and the Defendant, exemplary damages of HK$20,000 was awarded to the Plaintiff.

(3) Aggravated damages

From the Defendant’s conduct of prolonging the settlement of the mater, failure to tender a timely apology, as well as causing two phone calls to the Plaintiff before the hearing which aimed at putting pressure on her to abandon her claim, the Court considered that the Defendant had deliberately added insult to the Plaintiff’s injury. Therefore, aggravated damages of HK$10,000 was awarded.

The Court also ordered the Defendant to give a written apology upon the Plaintiff’s request, in addition to an apology in open court.