On 11 February 2022, the District Court (which has exclusive jurisdiction to hear all discrimination cases) handed down a landmark judgment on racial discrimination¹ in a high-profile case that has attracted much media attention and taken just over three years to get to trial.

The Claimant, Mr. Francis Haden, was hired by the Defendant, Leighton Contractors (Asia) Limited (Leighton) as a blasting specialist. He worked for Leighton for a little over six years before his employment was terminated. Very shortly after his termination, he lodged a complaint for racial discrimination with the Equal Opportunities Commission, although it is unclear what happened to that complaint. He commenced the District Court proceedings in September 2018, complaining that the termination of his employment was due to his race (i.e. that he was not Chinese).

In Hong Kong, race discrimination is prohibited under the Race Discrimination Ordinance (Cap. 602) (the Ordinance). Under the Ordinance, it is unlawful to treat one person less favourably on the ground of his/her race, including termination.

While much of the media attention focused on Mr. Haden’s complaint that he was called a "gweilo", a term commonly used in Hong Kong to describe foreigners, by his co-workers, and therefore he had been the victim of racial discrimination at the workplace, the use of the term "gweilo", and its impact on Mr. Haden’s case, was insignificant – it only comprised a little over four pages of the 130-page judgment which contains a comprehensive overview of the law on discrimination in Hong Kong and is likely to represent the leading authority on the subject going forwards.

Mr. Haden had been assigned to work on the construction of the Tseung Kwan O to Lam Tin Tunnel as a blasting team leader. The contractor for the project was a joint venture, established between Leighton and China State Construction Engineering (Hong Kong) Limited (China State).

In a case for racial discrimination, the burden is on the claimant to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, because there are rarely instances of overt acts of discrimination. Once that is established, the court will then look to the respondent for an explanation. If no reasonable or satisfactory explanation is put forward, then the court would be entitled to infer discrimination as a matter of common sense.²

In this case, there was no direct evidence that Mr Haden was terminated on the ground of his race. Therefore, he asked the court to infer it, based on a series of "primary facts", as follows:³

• that he was competent and technically very good at his job;
• that he had been bypassed and his role as team leader usurped;
• that he had raised the issue of racism at a meeting held with his superior;
• that the term "gweilo" was used by his co-workers; and
• there was a lack of process in his termination.

The court examined the extensive evidence given by both sides, often quoting passages from witnesses’ written statements, and found that the real reason he was terminated was not because of his race, but "due to his inability to work in a team and also the clients [sic] representatives".⁴ One of Leighton’s witnesses described him as being biased against colleagues from China State, openly expressing his dissatisfaction with China State and making unfound accusations against its personnel, to the extent that he deliberately seated a colleague in a particular position in the office so that he could observe his computer screen and check whether he did things secretly for China State.⁵ Another witness for Leighton described Mr Haden as being "abrasive and short-tempered" and "difficult to talk to" when problems arose.⁶ Indeed, according to one witness, Mr Haden "had to leave the XRL 822 Project because of the request [sic] of the MTR Corporation".⁷ He was also described as harbouring a "dismissive attitude towards other team members".⁸

The court found that, while Mr. Haden had tried to justify his attitude towards China State and his colleagues, he had in effect admitted the evidence of the Leighton witnesses (apart from the allegation of bias).⁹ It was clear that, by the time of his termination, Mr Haden had developed a "strained relationship", especially with members of the blasting team.¹⁰

As to the other "primary facts", the court considered the evidence and found that:

• there was no bypassing or usurping of Mr. Haden’s role as team leader in any of the examples given. The evidence suggested that, because of Mr. Haden’s temperament, members of the blasting team preferred to talk to another colleague (who was also non-Chinese) or communicate with Mr. Haden via the other colleague;
• the fact that Mr. Haden had raised the issue of racism at a meeting (that was intended as a termination meeting) was not the reason that he was not terminated at the meeting. Rather, he was given one last chance to improve on the problematic areas identified;
• use of the term "gweilo" at the workplace does not necessarily carry a derogatory meaning as alleged. In fact, Mr. Haden had only overheard other people using this term and those people were not even talking directly to him. So, either Mr. Haden had "misunderstood the real meaning of the word or he had exaggerated his 'bad feeling'";¹¹ and
• Mr. Haden had failed to prove that his employment was terminated in breach of any stipulated procedure within Leighton.

To establish a case for direct discrimination, a claimant must show:

• that the respondent had treated the claimant less favourably than it treated or would treat others; and
• the less favourable treatment (if any) was on the ground of the claimant’s race.

Mr. Haden had failed to prove both of the above.

The jury is still out on whether uttering the word "gweilo" to a foreigner is racist per se. Much will depend on the context in which the term is used. The term, which directly translates to "ghost man", has been around since the 16th century and is used by Chinese and foreigners alike in Hong Kong to describe non-Chinese people in Hong Kong. Even if, in the right context, use of the term could be construed as being racist, whether or not it is actionable in a civil claim for discrimination is an entirely different matter.

1. Haden, Francis William v. Leighton Contractors (Asia) Limited [2022] HKDC 152.
2. Paragraphs 43 and 247 of the judgment.
3. Paragraph 65 of the judgment.
4. Quoted from an internal e-mail of the Respondent, at paragraph 197 of the judgment.
5. Witness evidence of Mr. JanTorka, at paragraph 68(3) of the judgment.
6. Witness evidence of Mr Darren Grant, at paragraph 68(1)(i) of the judgment. 
7. Witness evidence of Mr JanTorka, at paragraph 68(2) of the judgment.
8. Witness evidence of Mr. JanTorka, at paragraph 68(3) of the judgment.
9. Paragraph 70 of the judgment.
10. Paragraph 73(2) of the judgment.
11. Paragraph 224 of the judgment.