Jurisdiction - Hong Kong
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Court’s Approach In Hearing a Sexual Harassment Case with no Eye Witness.

15 March, 2012

 

Legal News & Analysis – Asia Pacific – Hong Kong – Dispute Resolution

 

The Complainant and the Defendant were co-workers at the Food and Environmental Hygiene Department (the "FEHD"). According to the Complainant, during June/August 2005 to March 2007, the Defendant sexually harassed her in the place of work contrary to section 23(3) of the Sex Discrimination Ordinance.

 
The alleged sexual harassments include inappropriate touching, languages and/or conducts of a sexual nature.
 
In particular, on 10 March 2007, the Complainant alleged that the Defendant sexually harassed her again in the office. The Complainant called her supervisor Mr. Lau at night to complain about the harassing incidents that day, and on 11 March 2007, the Complainant set out the harassing incidents on 10 March 2007 in writing as suggested by Mr. Lau.
 
On 13 March 2007, the Complainant formally wrote to FEHD to complain against the Defendant. FEHD conducted an internal investigation about the complaint but concluded that since there was no witness or other concrete evidence to support the Complainant's complaints, the sexual harassment allegations against the Defendant could not be sustained.
 
The Complainant lodged her claims against the Defendant in the District Court.
 
The Complainant did not have any eye witness confirming the harassing incidents, and the Defendant denied the Complainant's allegations. The Court has to consider the overall evidence including the evidences given by other witnesses to determine whether the Defendant sexually harassed the Complainant as alleged.
 
According to the Complainant's supervisor Mr. Lau, the Complainant mentioned some of the harassing incidents to him in two occasions before 10 March 2007, though he did not witness any of them. Mr. Lau also mentioned that in his view the Defendant liked to take advantage of the opposite sex. With respect to the incident on 10 March, Mr. Lau did not witness any of the incidents alleged by the Complainant. He just noted when he saw the Complainant at around 3:30pm on 10 March, she was very angry and when he asked the Complainant what happened to her, the Complainant just scolded the Defendant.
 
According to another witness, Mr. Ho, the immediate supervisor of the Defendant, he also did not witness any of the harassing incidents alleged by the Complainant. However, he also noted that the Complainant was very angry in the afternoon of 10 March 2007. He also saw the Complainant scolded the Defendant whilst the Defendant was smiling at that time.
 
The Court pointed out that when FEHD was conducting the internal investigation, the standard of proof adopted by it was "beyond all reasonable doubt" which was applicable in criminal proceedings. However for sexual harassment case (which is in fact a civil claim), the standard of proof should be on a "balance of probability".
 
After considering all the evidence, the Court considered that the Complainant's evidence was more consistent with the other witnesses and was more reliable, whilst the Defendant's evidence was in many aspects inconsistent with the other witnesses, and the contents of his evidence were less reliable. The Court adopted the evidence provided by the Complainant and ruled that the Defendant did commit the harassing incidents.
 
 
For further information, please contact
 
Joseph Kwan, Partner, Deacons
joseph.kwan@deacons.com.hk
 

 

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