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Li Lai Yim v Leung Siu FanCourt Ruling (In Traditional Chinese only)
The Claimant was a Health Surveillance Assistant for the Department of Health. The Respondent, being a Health Surveillance Supervisor, was one of her supervisors since 2006.
The Claimant was diagnosed with bipolar disorder in 2012, and had regularly applied for early release and/or sick leave for medical consultations and/or physiotherapy since then. As one of her supervisors, the Respondent was responsible for approving her leave applications.
During August 2014 to August 2015, the Claimant alleged that the Respondent harassed her on the grounds of the Claimant’s disabilities by (1) calling her “VIP” whenever she submitted early release or sick leave applications, and/or (2) just calling her “VIP” for no apparent reason.
The Respondent denied the allegation.
The Claimant brought proceedings against the Respondent under the DDO.
The Claimant’s claim of disability harassment was dismissed. The case only involved a dispute on facts and thus turned on the evidence. Although the Respondent was aware of the Claimant’s bipolar disorder, the Claimant’s evidence failed to establish that the alleged incidents of harassment had ever taken place. As such, the Claimant failed to show that the Respondent harassed her as alleged. As the Court found that the Respondent did not harass the Claimant, there was no need to consider what remedies should be awarded to her.
Ma Bik Yung v Ko Chuen (appeal)Court Ruling EOC's Comments
The Plaintiff appealed to the Court of Final Appeal against the quashing of the apology order by the Court of Appeal.
The Court of Final Appeal decided that the Court has the power to order a defendant to make an apology, even if the defendant is unwilling to apologize. However, the Court should only exercise such power in rare cases with exceptional circumstances, especially when the defendant is unwilling to do so. The Court needs to be satisfied that the apology order will redress the plaintiff’s loss and damage to some extent, and it is a reasonable act for the defendant to perform, after taking into account issues such as whether there are any alternative remedies, or whether the apology order will infringe the defendant’s rights to freedom of expression and of thought.
It should, however, be noted that no apology order was made in the present case as the Court viewed that it could not be considered as those “rare cases with exceptional circumstances”.
Ma Bik Yung v Ko Chuen (appeal)Court Ruling
The Defendant appealed to the Court of Appeal against the above judgment of the District Court.
The appeal against the finding of harassment was dismissed. However, the appeal against the finding of discrimination was allowed, as the Court of Appeal found that the District Court had failed to find a suitable comparator, who should be a person without disabilities having a heavy suitcase and asking the Defendant to put it into the boot of the taxi, to prove the less favourable treatment suffered by the Plaintiff. As a result, the total amount of damages awarded was reduced from HK$20,000 to HK$10,000 for the harassment act alone.
Besides, the appeal on the requirement for the Defendant to apologize was also allowed. The Court of Appeal decided that an unwilling apology was not within the scope of s. 72 (4)(b) of the DDO.
Further Case Development
Ma Bik Yung v Ko Chuen
DCEO 1/1997 (Court Ruling does not have an online version)
The Plaintiff was a paraplegic. One day, she was in her wheelchair in the street intending to get a taxi, and the Defendant, a taxi driver, had engaged in a series of unwelcome conduct towards the Plaintiff. These included the Defendant’s unwillingness to accept the Plaintiff’s patronage, refusal to assist the Plaintiff in getting into the taxi and putting her wheelchair into the boot of his taxi, as well as rude and offensive remarks towards the Plaintiff concerning her disability while the Plaintiff was in the taxi.
The Plaintiff brought proceedings against the Defendant under the DDO.
The Court found that the Defendant’s behavior and remarks were not only rude and offensive, but also specifically referred to the Plaintiff being a disabled person, and hence they were clearly “on the ground of” the Plaintiff’s disability. It was held that the Defendant’s behavior and remarks fell within the meaning of disability harassment as defined in s. 2 (6) of the DDO. Hence, the Defendant had committed an act of disability harassment under s. 38 of the DDO, which stated that it was unlawful for a service provider (i.e. the Defendant in this case) to harass a service recipient with a disability (i.e. the Plaintiff in this case).
The Court also found that the Defendant had treated the Plaintiff less favourably on the ground of her disability, hence amounting to direct discrimination under s. 6(a) and s. 26 of the DDO.
As a result, the Defendant was ordered to give a written apology under s. 72 (4)(b) of the DDO. Besides, the Plaintiff was awarded a total of HK$20,000 (HK$15,000 as injury to feelings and HK$5,000 as punitive damages) for the harassment and discrimination act.
Further Case Development
The Defendant appealed to the Court of Appeal against the above judgment of the District Court. See here for details.