Criminal And Civil Remedies Available To Victims Of Sexual Harassment At Workplace

Introduction

Victims of sexual harassment at workplace are protected by both the criminal law and specific anti-discrimination legislation. Understanding the legal options available is crucial for employees, employers, and anyone seeking to foster a safe working environment.

Criminal remedies

Sexual offences (such as indecent assault) are serious criminal matters. Indecent assault covers unwanted sexual touching or acts of indecency. If a person experiences any form of non-consensual sexual contact in the course of employment, the matter can be reported to the Police and charges may be brought against the alleged offender in the criminal courts. A conviction can result in criminal penalties including a fine or imprisonment, and the perpetrator will have a criminal record.

HKSAR v JI Xiang

For instance, inHKSAR v JI XiangHCMA 14/2024, HKCFI 3109, the appellant was convicted after trial by a Magistrate of one count of indecent assault contrary to section 122(1) of the Crimes Ordinance (Cap. 200) ("CO"). The appellant appealed against the conviction to the High Court.

The appellant was the supervisor of the victim. The incident occurred in a company vehicle after a lunch gathering. The Magistrate, accepting the victim's clear, honest and reliable testimony that was unshaken under cross-examination, found that the appellant had touched the victim's chest, both over and under her clothing, while she was drunk and feeling unwell. The appellant's denial was rejected. The conviction was upheld on appeal, with the High Court finding the Magistrate's factual and credibility assessments sound, and was satisfied that the charge was proven beyond a reasonable doubt. The appellant was sentenced to 6 weeks' imprisonment.¹

Not all sexual harassment cases rise to the level of a criminal offence, but where the conduct is sufficiently serious – such as physical assault or obscene acts – criminal prosecution can and does occur under relevant provisions of the CO.

Civil remedies

For a broader range of behaviour, including those that may not meet the threshold for criminal prosecution, victims have robust civil remedies under the Sex Discrimination Ordinance (Cap. 480) ("SDO"). Workplace sexual harassment in Hong Kong is strictly prohibited under the SDO. In simple terms, it means any unwelcome or uninvited sexual behaviour in the workplace that is generally regarded as offensive, humiliating, or intimidating to the recipient.

Sexualharassment

There are two main forms of sexual harassment:

1. Unwelcome sexual advances or conduct

This covers situations where a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in any other unwelcome conduct of a sexual nature towards another person. The key consideration is whether a reasonable person, having regard to all the circumstances, would have anticipated that the victim would feel offended, humiliated, or intimidated.

2. Hostile or Intimidating Environment

Even if the conduct is not directed at a particular individual, sexual harassment may still occur if the behaviour creates a work environment that is hostile or intimidating because of conduct of a sexual nature. For example, telling crude sexual jokes at work or displaying sexually explicit materials can form a hostile environment.

The law protects everyone in the workplace, regardless of gender, and is intended to cover a wide range of work situations. The harasser could be a colleague, a supervisor, someone in a position of authority, a contract worker, or even a third party such as a customer or a person who happens to share the premises where work is being performed.

Importantly, the law does not require the harasser to intend harm – sexual harassment can occur even if the conduct was not meant to harass. Both men and women can be victims or perpetrators, and same-sex harassment is equally covered.

Examples include:

• Unwelcome touching, hugging, or kissing;
• Sexually suggestive comments, jokes, or gestures;
• Repeated requests for dates or sexual favours after rejection;
• Displaying or sending sexually explicit images or messages.

In short, employment-related sexual harassment is any conduct of a sexual nature in the workplace, whether direct or indirect, that is unwelcome and creates an offensive, humiliating, or intimidating environment for others.

Sexual harassment is clearly prohibited in the workplace, whether committed by a colleague, supervisor or even a customer. Victims can seek help from the Equal Opportunities Commission ("ECO"), which is empowered to investigate complaints, facilitate conciliation, and, if necessary, assist complainants in bringing their cases to the District Court. In civil proceedings, the court can order the perpetrator (and, in some cases, the employer) to pay compensation for financial loss, emotional distress, or injury to feelings suffered by the victim. The court can also grant injunctions to stop the harassment and make declarations that an unlawful act has occurred.

Compensation for injury to feelings

In assessing compensation for injury to feelings in discrimination cases, Hong Kong courts adopt theVentobands, a framework established by the English Court of Appeal inVento v Chief Constable of West Yorkshire Police[2002] EWCA Civ 1871. These bands provide guidelines for awards based on the severity of the discrimination. Recently, in陳詠琴 及 第一流行鋼琴教室有限公司[2024] HKDC 2046, the District Court adjusted these bands upwards to account for inflation and Hong Kong's economic conditions, setting the new ranges as follows:

• Lower band: HK$9,500 – HK$95,000 (for less serious cases)
• Middle band: HK$95,000 – HK$285,000 (for serious cases)
• Upper band: HK$285,000 – HK$475,000 (for the most serious cases)

In May 2025 edition of our employment newsletter, we discussed in detail theVentobands and Hong Kong's adjustment since陳詠琴. (Please clickherefor our article)

In周露娜v中旅貨運物流中心有限公司[2023] HKDC 1115, a pregnancy discrimination case, the District Court provisionally awarded HK$130,000 in favour of the plaintiff for injury to her feelings on the basis that the employer defendant would issue an apology and a reference letter in appropriate forms and terms. This award, which falls within the (then)Ventomiddle band, reflects the court's recognition of the significant emotional impact of discriminatory conduct, particularly when aggravated by factors such as long service and baseless accusations from the employer.

In August 2023 edition of our employment newsletter, we discussed in detail the周露娜case. (Please clickherefor our article)

Employer's liability

Employers have a legal duty to take reasonably practicable steps to prevent sexual harassment in their workplaces. If an employer fails to establish anti-sexual harassment policies, providing training and implementing clear complaint procedures, the employment can be held vicariously liable for sexual harassment committed by a "workplace participant" in the course of employment, even if they were not aware of or did not approve the act. A "workplace participant" is broadly defined under the SDO and includes employees, employers, contract workers, principal of a contract worker, commission agents, principal of a commission agent, partners in a firm, interns and volunteers.

Personal injuries action in tort

Apart from a statutory claim under the SDO, a victim may commence a personal injuries action under the evolving common law tort of harassment. A tort claim could potentially allow for compensation for recognized psychiatric illness caused by the harassment, which may not always be fully addressed under the SDO's framework for "injury to feelings". However, pursuing a personal injuries claim for sexual harassment is notably more complex and challenging for the following reasons:

1. Unlike a claim under the SDO which primarily addresses injury to feelings, humiliation, and intimidation, a personal injuries action generally requires proof of a physical injury, if not, recognized psychiatric illness such as adjustment disorder. This necessitates compelling and often costly expert medical evidence to establish both the existence of the illness and a direct causal link to the harassing conduct.

2. As clarified in the recent case,Sir Elly Kadoorie & Sons Ltd v Samantha Jane Bradley[2024] HKCA 747, to succeed in a tort of harassment claim, a victim must prove:

1. a course of sufficiently repetitive, unreasonable, and oppressive conduct;
2. that the conduct objectively amounts to harassment;
3. that the harasser intended harm or was reckless as to whether harm would occur; and
4. that this conduct caused actual damage, such as a recognized psychiatric illness.

This is a significantly higher legal threshold than establishing "unwelcome conduct" under the SDO.

Therefore, while a personal injuries claim remains a potential avenue, it is practically limited by the high evidential standard of proof of injury and establishing all elements of tort.

Procedural considerations

Victims generally have 24 months from the date of the last incident to commence a civil claim under the SDO. In some circumstances, the court may allow flexibility based on the interests of justice. Complaints to the Police for criminal conduct can be made at any time, but early reporting is advisable to preserve evidence and allow effective prosecution.

Confidentiality and court proceedings

To minimise distress, court hearings involving sexual harassment or indecent assault may be held in private, and victims' identities are protected by court order where appropriate.

Takeaway

The law offers various avenues of redress for victims of sexual harassment at work. Criminal prosecution aims to punish serious offenders, while civil claims can secure compensation and remedies for victims. Employers should note that prevention, thorough policies, and timely action are essential not only for compliance but also for building a safe and respectful workplace. As always, if in doubt, it is advisable to seek legal advice.

Footnote

1 Leave to appeal to CFA applied for and pending as at 31 October 2025.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.