Hong Kong

The Employment Ordinance regulates the general conditions of employment and related work matters. Part III of the Ordinance provides for maternity protection, including provisions for maternity leave.

The Matrimonial Causes Ordinance governs the jurisdiction of Hong Kong courts over divorce and legal separation proceedings. It also contains provisions providing for how to determine child custody.

The Sex Discrimination Ordinance (“SDO”) prohibits discrimination on the grounds of sex, pregnancy, and marital status. Both direct and indirect discrimination are prohibited. Direct discrimination occurs where a party treats a person “less favorably” than another person in similar circumstances, except for the attribute of sex/pregnancy/marital status. Courts use a “but for test,” asking whether the complainant would not have received the less favorable treatment but for his/her sex/pregnancy/marital status. Indirect discrimination occurs where a seemingly uniform condition is applied, but the burden disproportionately falls on a group defined by sex/pregnancy/marital status.

The plaintiff sued a senior manager at the company she worked for, alleging repeated sexual harassment. The harassment, which included many unwanted sexual advances toward the plaintiff, started with the plaintiff’s initial interview and continued until her eventual firing by the defendant. The court found that the defendant’s acts were a violation of the Sex Discrimination Ordinance. The court awarded the plaintiff damages to cover emotional distress as well as lost earnings.

The plaintiff, a British national, applied for a Hong Kong visa as a dependent of her same-sex partner, who was in Hong Kong on a work visa. The plaintiff and her partner had entered into a civil partnership in England. The Director of Immigration rejected the plaintiff’s application on the grounds that the term “spouse” in the spousal dependent visa policy was limited to the concept of marriage as defined under Hong Kong law, recognizing only the union of a man and a woman. The court found that the director acted unlawfully by not granting dependent visas to the same-sex spouses of holders of work visas. It did not, however, hold that Hong Kong law recognized same-sex marriage.

The plaintiffs were non-indigenous villagers who sought declarations that their local village election laws were unlawful for restricting the participation of non-indigenous villagers in the election of village representatives. According to the plaintiff’s complaint, non-indigenous females married to indigenous villagers could vote, but non-indigenous males married to indigenous villagers could not vote. The court found that this distinction violated the Sex Discrimination Ordinance.

The plaintiff was the defendant’s employee. The plaintiff alleged that the defendant’s management began treating her poorly after her pregnancy, culminating in her eventual dismissal. The plaintiff claimed that the defendant’s actions were prohibited by the Sex Discrimination Ordinance. The court found that management had, among other things, had made derogatory remarks to the plaintiff, reduced her income, compelled her to transfer teams, and failed to investigate her internal complaints about her treatment. The court further found that the plaintiff had showed that, on a balance of probabilities, she had been discriminated against by the defendant’s management on the basis of her pregnancy.

The plaintiff was a former employee of the defendant. She alleged that the defendant had unlawfully discriminated against her because of her gender. Following poor performance reviews, the plaintiff had been fired by the defendant. She pointed to disparate treatment of her versus a male colleague, who despite having had multiple complaints made against him (while there were none against her) had received better performance reviews than the plaintiff. The court denied the plaintiff’s claims, relying in part on nine allegations of substandard performance that had been made against her.

The court considered the amount of assets a wife was entitled to in a divorce proceeding. The wife appealed the lower court decision that one-third of the joint assets should go to her. The court did not find the allocation to be unfair or unreasonable and upheld the lower court’s division of the total assets.

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.

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.

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.

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.”

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.”

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.”