Women and Justice: Location

Domestic Case Law

HKSAR v. Law Wan Tung District Court of the Hong Kong Special Administrative Region (2015)

Domestic and intimate partner violence, Trafficking in persons

Three Indonesian domestic helpers claimed that they were assaulted and abused by Law Wang Tung,a Hong Kong housewife, during their employment by Defendant between 2010 and 2014. The District Court convicted the Defendant of 19 charges assault, intimidation, and failure to provide wages, insurance and holidays during the complainants’ employment, and was sentenced for six years of imprisonment and a fine of HK$15,000. During the trial, that one plaintiff was deprived from sleep, food and wages during the employment, and had suffered from extensive physical damages due to the serious abuse, assault and beating from defendant. Evidence also showed that the other two victims also suffered from similar but different degrees of harm while working for the Defendant. In reaching the judgment, the court held that the evidence was admissible for uncharged acts so as to “get a proper picture about the characters involved in the case” and that the account would be incomplete or incoherent without such evidence. The court also noted that the only issue in the case was the credibility of the witnesses. Despite defense’s attempt to challenge the consistencies and credibility of the victims’ testimonies and the question for lack of independent evidence, both the district court and the appellate court found in favor for the victims in the respective proceedings, by taking into account the victims’ background and the specific circumstances in the case. In affirming the decision, the Court of Appeal need to protect the interests of domestic helpers and articulate the society’s abhorrence for conduct.

L.W.L. v. Y.T. Cheng, Inc. District Court of the Hong Kong Special Administrative Region (2006)

Employment discrimination, Gender discrimination

The Plaintiff was employed as secretary of the Director by the Defendant in 2001. In February 2002, the Plaintiff suffered a threatened miscarriage, and was admitted to the hospital several times thereafter. From June to August 2012, she took sick leave frequently for treatment of her pregnancy complications.  During that period, a permanent secretary was hired by the Defendant.  The Plaintiff returned to work after expiry of her maternity leave in November 2012 as agreed with the Defendant, but was moved to a new work station which was not properly equipped, and was not given her original duties.  Shortly after she resumed her work after maternity leave, she was dismissed by the Defendant. She sued the Defendant for her dismissal on the grounds of discrimination due to pregnancy, family status and victimization.  The Court applied the “but for” and “less favorable treatment” test, and held that the burden is on the Plaintiff to prove discrimination on a balance of probabilities – once the Plaintiff can show that a possibility of discrimination can be inferred from the primary facts, the Court will look to the employer for an explanation, with which or if such explanation is not enough, the Court will infer the existence of discrimination.  Based on the facts and evidence in this case, the Court found that the Plaintiff has established the primary facts on her claims on the grounds of discrimination due to pregnancy and family status, and found that the Defendant failed to establish the unsatisfactory performance of the Plaintiff and there were no significant enough reasons for the Defendant to dismiss the Plaintiff.  On a balance of probabilities, the Court concluded that the Plaintiff was dismissed because of her pregnancy and family status, and held the Defendant liable.  Damages for injury to feelings and loss of income were awarded to the Plaintiff.

B. v. King of the King Group Limited District Court of the Hong Kong Special Administrative Region (2012)

Employment discrimination, Sexual harassment

The Plaintiff worked as a cashier at King Palace Chinese Restaurant, which was operated by King of the King Group Limited (“Defendant”). The Plaintiff alleged that she was sexually assaulted by Mr. Leung, an employee of the Defendant, who made a sexual remark to the Plaintiff and also touched the Plaintiff’s chest. Immediately after the incident, the Plaintiff reported it to her direct supervisor, who promised to follow up on the incident, but did not do so. When the Plaintiff raised the harassment again later on and wanted to report it to the police, her supervisor asked the Plaintiff not to do so or the Defendant would terminate both her and Leung’s employment.  Eventually, her supervisor arranged a meeting and asked Leung to apologize to the Plaintiff, but he did it reluctantly and disrespectfully.  The Plaintiff, irritated by the disrespect, slapped Leung, and was then immediately fired by the Defendant.  The Plaintiff settled the case with Leung and made a claim under the Sex Discrimination Ordinance. The Court held that the dismissal was not made by the Defendant on the ground of the Plaintiff’s sex, or because she was sexually harassed, but because the Plaintiff slapped the harasser.  However, the Court ruled that the acts committed by Leung constituted unlawful sexual harassment, and that the Defendant, as employer of Leung, was vicariously liable for Leung’s sexual harassment for the reason that the Defendant failed to take all reasonably practicable steps to prevent the sexual harassment against the Plaintiff in the workplace. The Court awarded the Plaintiff damages for injury to her feelings and costs caused by or in connection with the sexual harassment.

Tsang v. Cathay Pacific Airways Ltd. District Court of the Hong Kong Special Administrative Region (2001)

Employment discrimination, Gender discrimination

The plaintiff, Helen Tsang, was employed by Cathay Pacific Airways Ltd. (“Cathay”) as a flight attendant in 1979. According to the retirement policy at the time of her employment contract, the retirement age for a female attendant was 40, while the retirement age for a male attendant was 55.  Ms. Tsang was required to retire in 1992 when she reached 40. Cathay offered consecutive one year extensions of her employment thereafter till 1997 when she reached the age of 45. During that period, Cathay adopted a new retirement policy in 1993, which changed the retirement age of both the female and male cabin crew to the age of 45 and provided that female employees already on extension may choose to further extend the employment with Cathay till the age of 45 if Cathay agreed so. After 1997 (when Ms. Tsang was 45), Cathay did not offer Ms. Tsang any extension of her employment. Ms. Tsang sued Cathay alleging that the retirement policy implemented by Cathay was discriminatory and that she was discriminated on the ground of her sex. The court held that it constituted direct sex discrimination against Ms. Tsang because a male employee in the similar situation would be in a much better position than Ms. Tsang as he would have been entitled to remain employed with Cathay until the age of 55, or would at least have had the option to retire at 45 if he chose so and would have received more favorable benefits than Ms. Tsang had. In reaching such conclusion, the court upheld the view that the employment contract does not form the basis of a discriminatory claim and the discrimination is continuing and actionable if the discriminatory policy has been in place and implemented during subsequent extension(s) of employment.

Waliyah v. Yip Hoi Sun Terence District Court of the Hong Kong Special Administrative Region (2017)

Employment discrimination, Gender discrimination

The complainant, an Indonesian domestic helper, was asked by her employer’s wife to urinate for a home-pregnancy test. After the result showed positive and was subsequently confirmed by a physician, the employer terminated her employment by a month’s notice. Ultimately, the complainant was required to move out of the couple’s home before the notice period ran out. She sued the couple for damages based on, among others, sex and pregnancy discrimination. The court held the couple liable for the act of sex discrimination against the complainant by asking her to take the pregnancy test, despite the fact that she voluntarily participated in the test and wanted to know the result. The court took the view that whether the employee had consented or voluntarily cooperated to take the pregnancy test is not determinative as to deciding the nature of the employer’s request to take the pregnancy test, and that the lack of intent or motive to discriminate by the employer is a factor to assessment of damages but would not bar an act from being determined as discriminatory. The court held that the employer has no right to know about a female employee’s pregnancy status, which is a private matter of the employee. The court determined that requesting a female employee to take a pregnancy test without giving her a choice not to disclose the result to the employer constitutes a “less favorable treatment” to that employee because of her gender, for the reason that a male employee would not be requested to take such a test or reveal such private information to his employer.

HKSAR v. Cheng Kwong-Chung Hong Kong Special Administrative Region Court of Appeal (2001)

Trafficking in persons

Cheng Kwong-Chung was charged with four offenses. Wong Lai-Ming was charged with two offenses. Cheng’s first and third charges alleged conspiracy to possess a false instrument, contrary to section 75(1) and section 159A of the Crimes Ordinance, Cap. 200. Count 1 alleged that Cheng conspired with other defendants to possess a false passport, which he knew was false. Cheng and Wong also allegedly conspired to provide Lu Quifeng to enable her to possess a false US passport with knowledge that it was false. Several other fraud charges were brought. The prosecution alleged that Lu and another defendant were to be smuggled from Hong Kong to the US. Neither Cheng nor Wong presented any evidence at trial. Cheng appealed, arguing that the verdicts were unsatisfactory and against the great weight of the evidence. The Court held that there was “an abundance of evidence on which to convict” of both conspiracies in counts one and four, citing evidence adduced and presented at trial. Cheng also argued that there was insufficient evidence for the trial court judge to find that the instrument that was the subject of charge one was false. The Court also held that the trial court judge’s conclusion that whatever passport Cheng held must have been false was not erroneous. Cheng’s appeal was dismissed. Wong also appealed, arguing that the trial judge had insufficient evidence upon which to find that it was in fact Wong who committed the crime. The Court held that there was no ground upon which to disturb the trial judge’s conviction. The evidence against Wong included standard procedures from airline employee’s standard procedure of matching passports against the person who presents it and the fact that Wong never reported her passport lost or stolen. Cheng and Lu appealed their sentences as manifestly excessive because their offenses were part of one course of conduct. The Court held that the course of conduct was sophisticated and, further, stated, “We take the view that offences such as these are very serious. They involve the exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that and importantly, the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigration laws of other jurisdictions and to enable persons to travel on aircraft when they are not authorized to do so. It hardly needs to be emphasized that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.”

So Wai Lun v. HKSAR Court of Final Appeal of the Hong Kong Special Administrative Region (2006)

Statutory rape or defilement

Appellant, So Wai Lun, was convicted of unlawful sexual intercourse with a girl under the age of 16, in contravention of section 124 of the Crimes Ordinance, Cap. 200, which made sexual intercourse with a girl under the age of 16 a strict liability offense, punishable by five years’ imprisonment. Appellant first argued that section 124 was unconstitutional because it criminalized only the male’s conduct, depriving him of equality under the law. Appellant also argued, alternatively, that the law was arbitrary because it did not deter people who did not believe that what they were doing is unlawful. The Court dismissed the first argument, noting that the legislature is entitled to take into account various differences between men and women, such as the problem of teenage pregnancies, deterring females from reporting if they would also be criminally liable, etc., and concluded that the legislature’s differing treatment was justified by reference to genuine need, rationality and proportionality. The Court also dismissed the second argument, stating that protecting young girls is a choice constitutionally open to the legislature. Therefore, the judge dismissed both of Appellant’s appeals.

HKSAR v. KKK High Court of the Hong Kong Special Administrative Region Court of First Instance (2011)

Sexual violence and rape

Defendant, a male, was charged with six counts of rape and one count of indecent conduct towards a child under the age of 16. All the crimes were committed against Defendant’s three daughters. Defendant pled guilty to all charges. The victim of four charges of rape was his eldest daughter, whose rapes occurred over a three year period, when she was between 12 and 14. The other two rape charges occurred against a younger daughter, who is a twin, when she was 10 and 11. The other twin girl was the victim of the indecent conduct charge. One rape of the eldest daughter took place in the presence of her mother, who was also naked, adding to the humiliation and dominance that Defendant was attempting to exude. The eldest daughter even became pregnant as a result of one of the rapes and was forced to have an abortion, while only being 14 years old. The Court sentenced Defendant to 23 years and seven months’ imprisonment. It analyzed the cold and callousness with which Defendant committed his crimes and the seriousness of the crimes. The Court described Defendant’s crimes as “horrific,” noting that Defendant “treat[ed] his children as though they were less than human, as just sexual objects who existed solely to satisfy his lust . . . .” The Court further stated that “language seems quite a poor medium for conveying the depth of feeling that these crimes generate. Words such as ‘revulsion’ and ‘despicable’ seem quite inadequate in expressing the court’s and society’s denunciation of his conduct. . . . [W]hat this defendant did is wholly contrary to the values by which Hong Kong people live and the courts will reflect and affirm that fact by not just making statements condemning that conduct but by imposing sentences sufficiently severe and substantial to protect and preserve those values.”

HKSAR v. Lau Chung-tim High Court of Hong Kong Special Administrative Region Court of First Instance (2014)

Domestic and intimate partner violence, Gender violence in conflict, Gender-based violence in general

Defendant pled guilty to two counts of throwing corrosive fluid with intent to do grievous bodily harm, in contravention of section 29(c) of the Offences Against the Person Ordinance, Cap 212. The corrosive fluid thrown was sulphuric acid, concentrated at 87%. Sulphuric acid at that concentration is highly corrosive and capable of causing severe burns to the skin and permanent damage to the eyes. His victims were his estranged wife and his 21-year-old son. At the time of the incident, Defendant was 65 and he was in the process of divorce, living apart from his estranged wife. Defendant returned to the marital home and became emotional, taking a knife and threatening his soon to be ex-wife. When his son, the second victim, saw what was occurring, he stood in front of his mother to protect her. Defendant opened a bottle of liquid and poured it on his estranged wife’s chest. The liquid also splashed onto his son. Because his wife was wearing only a nightgown and his son only underwear, both were burned. The victims rushed to the bathroom to attempt to wash off the liquid. They locked the door and called for help, but Defendant kicked the door in, causing a subsequent struggle. After the situation ended, the victims were taken to a hospital, where it was determined that Defendant’s estranged wife suffered 38% body burns and the son suffered 25% surface burns. The Court noted that “[acid throwing] is a very serious offence of a type which sadly occurs far too often in Hong Kong. . . . The offender aims to punish the victim for the emotional damage and to ensure that the victim is disfigured or incapacitated. The defendant here was intent on punishing the first victim for proceeding with the divorce.” The maximum penalty for acid throwing is life imprisonment. In this case, the judge passed down a sentence of 10 years’ imprisonment.

Equal Opportunities Comm’n v. Dir. of Educ. High Court of the Hong Kong Special Administrative Region (2001)

Gender discrimination

The Equal Opportunities Commission (the “Commission”), which is an entity formed pursuant to Hong Kong’s Sex Discrimination Ordinance, Chapter 480 (the “Ordinance”), brought a challenge against the Director of Education (the “Director”), alleging that the system for transferring students from primary to secondary school (the “SSPA System”) discriminated against students on the basis of sex in violation of the Ordinance. The discrimination affected both sexes, but it primarily affected females. There were three structural elements of the SSPA system that allegedly discriminated against students: (1) A scaling mechanism, which scaled the scores of all primary students in their school assessments to ensure that they could be fairly compared with scores given by other primary schools; (2) a banding mechanism, which banded all students into broad orders of academic merit; and (3) a gender quota, which ensured that a fixed ratio of boys and girls were admitted to individual co- educational secondary schools. Though the structural elements were facially neutral, they were being employed on a gender basis. The Director argued that there were legitimate differences between boys and girls at younger ages, which justified the SSPA’s contested elements and, therefore, the SSPA simply removed initial gender bias inherent in the system. The High Court of Hong Kong Special Administrative Region held that all three allegedly discriminatory elements of the SSPA system were in fact discriminatory and contrary to the Ordinance. The Court ordered—as requested by the Commission—that the Director eliminate sex discrimination against girls within a reasonable time and that a user-friendly mechanism be put in place to deal with and remedy complaints of sex discrimination by individual parents on behalf of their children.

HKSAR v. Cheung Cho-Fat High Court of the Hong Kong Special Administrative Region Court of Appeal (2010)

Domestic and intimate partner violence

A Hong Kong man pleaded guilty to two counts of throwing corrosive fluid with intent to do grievous bodily harm at his wife and daughter. The man and his wife were in their early 70s. The facts showed that, after a 50-year marriage, the man and his wife separated. The man, in an angered state, went to his wife’s home with two jars of a liquid that was 88% sulphuric acid. The man threw one jar at his wife’s face, causing her to run. The wife ran and hid behind her daughter, but the man still launched the second jar of acid at them, causing them both burns. The wife suffered second degree partial thickness burns to her face, eyelids and arms, leaving her in the hospital for four days. The daughter suffered first-degree burns to her neck and arm. The man was sentenced to four years’ imprisonment for each crime, which he was to serve concurrently. The man appealed his sentence, claiming the following: (1) The sentences were wrong in principle because, in coming to the factual circumstances in which the offenses had been committed, the judge took into account evidentiary material that was not properly before the court; and (2) by making such impermissible findings and by failing to give proper weight to the matters advanced in mitigation, the judge imposed a sentence that was manifestly excessive. The High Court dismissed the man’s appeal. As to the first count, the High Court held that the evidence that the judge took into account would have made no practical difference to the sentence because, in part, acid throwing is “a particularly vicious crime, one viewed with understandable abhorrence by right thinking members of society.” As to the second count, the High Court compared the case at hand to precedent cases and held that the sentence imposed in this case was “entirely appropriate.”

Ng Hoi Sze v. Yuen Sha Sha High Court of the Hong Kong Special Administrative Region Court of Appeal (1999)

Gender violence in conflict

The plaintiff, Ng Hoi Sze and defendant Yuen Sha Sha shared a college dorm room. Yuen Sha Sha discovered a video recorder that plaintiff’s boyfriend, Tse Chi Pan, placed in the room, which recorded Yuen Sha Sha while she was undressing. Ms. Sha Sha had Mr. Pan expelled from the University and the plaintiff was expelled from the dorm room. The plaintiff filed a nuisance claim against Ms. Sha Sha and her boyfriend, Fung Ka Fai, the other defendant, who was a student at another university. The plaintiff moved to amend the complaint to introduce a claim for sexual harassment under the Sex Discrimination Ordinance, Cap. 480. Specifically, the plaintiff alleged that there was unlawful sexual harassment in contravention of section 39(3) of the Sex Discrimination Ordinance, Cap. 480, by the defendants’ engaging in unwelcome conduct of a sexual nature in relation to the plaintiff and, consequently, the plaintiff suffered embarrassment, humiliation and shock. The plaintiff sought damages under section 76 of the Ordinance. The Ordinance stated that a person sexually harasses a woman if the person (i) makes an unwelcome sexual advance, or an unwelcome request for sexual favors to her, or (ii) engages in other unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated, or the person, alone or together with other persons, engages in conduct of a sexual nature that creates a sexually hostile or intimidating work environment for her. The question in this case was whether there were allegations that the defendants, or either of them, engaged in unwelcome conduct of a sexual nature in relation to the plaintiff. The first judge held that the plaintiff’s claim was facially deficient because she did not plead any sexual conduct that she found offensive. The second judge agreed with the first judge’s assertions. However, notably, the second judge stated that when a female student’s roommate engages, in their shared room, without the female student’s consent, in conduct of a sexual nature with another person, that conduct is capable of being considered sexual harassment of the female student. A reasonable person would have anticipated that the female student would be offended by such conduct. Thus, had the plaintiff simply properly pleaded what the sexually offensive conduct was, she would have stated a claim against the defendants for sexual harassment and would have been able to pursue a strong claim against the defendants.