A new chapter in the law of sexual harassment in Malaysia: The emergence of the torts of harassment and sexual harassment

Introduction

In Malaysia, until recently, the victims of sexual harassment had very little effective protection against their perpetrators whether at common law or under a statute. This flowed from the fact that sexual harassment was not actionable per se at civil law. True there was some protection for sexual harassment in the workplace by way of a suit for constructive dismissal. ¹ A condition precedent for constructive dismissal based on sexual harassment requires the victim to complain to the employer and upon the employer not acting on it, to accept the employer’s repudiation of employment contract by walking off the job. As should be apparent, the normal employee is not cognisant of the condition precedent. For that reason, very few victims of sexual harassment were able to use it.

Sexual harassment has long been an issue in Malaysia. Women’s groups began agitating for a sexual harassment statute in the 1980s. ² Apparently, in response to such agitation, the government reacted in 1999 not with the desired statute but with the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (the ‘Code’). ³ This was not a law but a collection of guidelines that employers were urged to adopt in processing complaints of sexual harassment. The next development took the form of two amendments to the Employment Act 1955 (the ‘EA’) in 2012. The first was the insertion of a definition of sexual harassment in the EA. The second was the addition of a new ‘Part XVA’ to the EA headed, ‘Sexual Harassment’. ⁴ The EA generally applies to employees whose wages do not exceed RM2000 per month. However, Part XVA applies to all employees in Malaysia regardless of the quantum of their monthly salary. ⁵ Under Part XVA, as the Federal Court noted, these amendments to the ‘EA only impose…a duty on employers to adequately deal with sexual harassment complaints at their workplace’. ⁶

This law on sexual harassment as part of the larger tort of harassment was changed by Malaysia’s Federal Court in Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor. ⁷

The rest of the article is structured as follows: The next section provides background before the case which changed the law. The case revolved around four key issues. Each of the third, fourth, fifth and sixth sections deals with a different issue as follows. The third section presents the appellant’s claim in defamation and the respondent’s defence thereto while the next section sets out the defendant’s/respondent’s counterclaim. The fifth section focuses on the tort of intentionally causing nervous shock as dealt with by the Court of Appeal in the instant case. The sixth section then analyses the Federal Court’s pronouncements on the tort of harassment and sexual harassment. The last section concludes by considering the future of the tort of harassment and sexual harassment in Malaysia.

The background

The Federation of Malaysia is, by reason of its history as a British colonial possession, a common law jurisdiction. ⁸ In England, there is no common law tort of sexual harassment. However, in England, the emergence of this tort may have been rendered superfluous by the passage of legislation which made sexual harassment an actionable wrong for which the victim could recover damages and other relief. ⁹ In Malaysia, calls by non-governmental groups for statutory protection against sexual harassment may be traced to the 1980s. ¹⁰ To such calls, the government apparently responded in 1999, by putting forth, not a statute but the Code.

The appellant’s claim in defamation and the respondent’s defence

Both the appellant and the respondent were employees of Lembaga Tabung Haji (or Pilgrimage Board) (the ‘company’). The appellant was the General Manager of the Risk Department and the respondent was a manager in the same department reporting to the appellant.

The respondent lodged a letter of complaint dated 29 July 2009 with the Chief Executive Officer (the ‘CEO’) of the company alleging sexual harassment by the appellant (the ‘complaint’). A committee of inquiry (the ‘committee’) conducted an inquiry. After it had completed a report, the committee was advised that it had to sit again as it had not complied with the procedure. This, the committee did. The High Court held that the work of the committee was in the nature of a preliminary inquiry and that it fell short of disciplinary proceedings. Ultimately, the committee found that while the appellant had indeed uttered some of the words and committed some of the acts alleged, there were other complaints against him that could not be established. The committee decided not to institute disciplinary proceedings against the appellant. However, the company’s Human Resources Division decided to issue a serious administrative warning to the appellant not to repeat such misconduct. On her application, the respondent was transferred from the Risk Management Division to the Legal Division, supposedly on a temporary basis. ¹⁸ In fact, after being left in that position for 15 months, the respondent resigned. The appellant was aggrieved by the reprimand and demanded that the company discipline the respondent for her ‘unfounded’ complaint. The company rejected his demand.

On 9 December 2011, the appellant had issued a writ against the respondent seeking, inter alia, a declaration that he had not sexually harassed her and that he had been defamed by her. He contended that the respondent’s alleged defamation had affected his reputation and standing as a Muslim, and as a member of the senior management of the company. He further maintained that the lies had also been responsible for the company’s failing to renew his contract.

In her defence, the respondent particularised the words of the appellant which formed the basis of her counterclaim that the appellant had sexually harassed her at work. The sexual harassment, she claimed, had resulted in her suffering ‘serious emotional, mental stress and trauma, and that she had become ill as a result’. ¹⁹ The relief she claimed was general, aggravated and exemplary damages.

Some of the vulgar and other sexually charged words which the respondent had detailed in her defence were:

‘Fuck you’;

Though the High Court did not say so, it would appear that it treated the plaintiff as claiming that the respondent had defamed him by the very act of lodging the complaint. The learned High Court Judge treated the evidence as entitling the respondent to rely on the defence of qualified privilege which is triggered when there is a common and corresponding duty or interest between the person who makes the communication and the person who receives it. ²² Here, the respondent had a complaint about the appellant’s misconduct at the workplace. As a victim of workplace misconduct, the respondent had a duty to report it to the company CEO and the latter had a duty to receive the information and investigate it. The learned judge found that while the words in the complaint were defamatory of the appellant, they were not defamatory in law as the respondent had followed the proper procedure in making the complaint to the company CEO and all that followed the complaint was the company’s investigation of the said complaint. The defence of qualified privilege is defeated by malice. As Her Ladyship Amelia Teh Abdullah J noted, ‘no malice could be inferred’ ²³ from the letter of complaint lodged by the respondent.

The High Court found that there was ample evidence that the appellant had uttered the words complained of. That sufficed for the High Court to hold that the respondent had justified the impugned words, and to dismiss the appellant’s claim in defamation. The appellant’s appeals to the Court of Appeal and subsequently the Federal Court were dismissed. ²⁴ That took care of the appellant’s claim in defamation.

The defendant’s/respondent’s counterclaim

The respondent counterclaimed not just for sexual harassment but for ‘sexual harassment that caused adverse effects on her and induced emotional, mental and traumatic pressure on her’. ²⁵ In justifying the impugned words, the respondent had succeeded in establishing her counterclaim of sexual harassment against the appellant. ²⁶ The learned trial judge continued to weigh the evidence establishing that the sexual harassment had caused the physical, mental and emotional pain which the respondent claimed. The evidence in this connection included the respondent’s testimony, a medical report and the testimony of the psychiatrist who saw and treated the respondent, and authored the medical report. The psychiatrist diagnosed the respondent as suffering from major depression caused by the sexual harassment in the workplace by her boss. The physical symptoms of the depression included nausea, poor appetite, poor concentration and low energy. The psychiatrist testified that the major depression which was caused by being harassed by the appellant continued to haunt the respondent even after she left the company. The defendant was under so much emotional stress that she could no longer bear being in the company and left to take up a post in Sabah. ²⁷ The High Court also accepted the testimony of the psychiatrist. The learned trial judge had no difficulty accepting the medical evidence which, in any case, was not ‘seriously challenged or at all’. ²⁸

To sum up, the court ‘was satisfied that there…(was)…a direct link between (the respondent’s) mental, physical and emotional suffering, and the sexual harassment committed by the appellant’. ²⁹ The High Court awarded the respondent a sum of RM100,000 as general damages and a sum of RM20,000 as aggravated and exemplary damages. ³⁰ The appellant appealed to the Court of Appeal on the ground that the learned High Court Judge had erred in allowing the defendant’s counterclaim, inter alia, because the tort of sexual harassment was unknown to Malaysian law. ³¹ But as the appellant conceded, even if the tort of sexual harassment was not incorporated into Malaysian law, there was no impediment to the judiciary recognising such a tort.

The tort of intentionally causing nervous shock

Noting that there was no local authority on whether sexual harassment existed in Malaysian law, the Court of Appeal went on a historical tour of such local provisions—legally binding or otherwise—as existed. It began by discussing some provisions of the government’s alternative to a meaningful law on sexual harassment, the Code, introduced in 1999. But as submitted earlier, the Code was not a law ³² but was merely a collection of guidelines that employers could resort to in processing allegations of sexual harassment in the workplace. However, the Court of Appeal did draw on the categories of sexual harassment recognised in the Code. The categories were ³³ :

verbal harassment as in offensive or suggestive remarks, comments, jokes, jesting, kidding, sounds, questioning;

The Court of Appeal had no difficulty holding that the vulgar and sexually explicit words complained of clearly constituted sexual harassment in the form of verbal harassment as defined in the Code. However, the Court was very aware that the Code did not have force of law, especially not as between co-workers as in the case before it. ³⁴ The Court then directed its attention to the question, whether in the absence of statutory provisions on sexual harassment, the perpetrator could be allowed to inflict the acts of sexual harassment on a person with impunity. ³⁵ What was the basis on which sanctions, if any, could be imposed on the perpetrator?

The award by the High Court of exemplary and aggravated damages (in addition to general damages) in effect indicated that a tort had been committed. However, the High Court did not, as the Court of Appeal noted, specify the tort in relation to which the exemplary and aggravated damages were awarded. This deficiency was a glaring omission because one of the issues the High Court had to decide was whether the tort of sexual harassment was actionable in Malaysia. If there was no statutory provision giving rise to an action at civil law against sexual harassment neither could the common law—as it did not recognise the tort of sexual harassment. Noting this, the Court of Appeal turned its attention to whether the acts of sexual harassment which had been established were serious enough to have an adverse psychological effect on the victim. It opined that if they were, those acts would fall within the tort of intentionally causing nervous shock as in Wilkinson v Downton. ³⁶ It would, with respect, appear that the Court of Appeal was not prepared to recognise a brand new tort in the form of sexual harassment. But, with respect, the Court was willing, so it seems, to import an existing tort other than sexual harassment namely, the tort in Wilkinson v Downton.

In Wilkinson v Downton, the defendant had, by lying to the plaintiff caused her to suffer a nervous shock which incapacitated and caused her much suffering. He was found liable in damages. In an early line of Canadian cases based on Wilkinson v Downton, the emphasis was on the defendant uttering a falsehood which he could reasonably foresee would be carried to the plaintiff who would suffer a nervous shock. Then the essence of the tort shifted. The emphasis shifted to the defendant wilfully doing an act calculated to cause physical harm to the plaintiff and which did in fact cause harm. The focus was now on the defendant’s intention and the court began to impute to the defendant the intention to produce such an effect. The defendant who attempted to argue that the damage was too remote, that is, more harm was done than was anticipated was brushed aside on the ground that the limitation of liability based on remoteness and lack of foreseeability is inapplicable in the field of intentional torts.

The law on the intentional infliction of nervous shock developed apace from one case to another in the Canadian courts. A high point seems to have been reached in Rahemtulla v Vanfed Credit Union. ³⁷ There, McLachlin J, as she then was, extracted from earlier cases three principles which her Ladyship applied in deciding the case before her. The first was outrageous or flagrant and extreme conduct. The second was conduct calculated ‘to produce some effect of the kind which was produced’. The third was conduct producing actual harm, that is, a visible and provable illness. To explicate the first of the three principles, the Court of Appeal quoted Allen M Linden, Canadian Tort Law ³⁸ that: the quality of outrageousness might…‘lie in the defendant’s knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress at the particular conduct’. On the second principle, the Court of Appeal reproduced Fleming’s comment as follows ³⁹ :

Cases will be rare where nervous shock involving physical injury was fully intended. More frequently, the defendant’s aim would have been merely to frighten, terrify or alarm his victim. But this is quite sufficient, provided his conduct was of a kind reasonably capable of terrifying a normal person, or was known or ought to have been known to the defendant to be likely to terrify the plaintiff for reasons special to him. Such conduct could be described as reckless. (Emphasis provided because these words applied to the plaintiff in the case before the Malaysian Court of Appeal)

Reverting to the victim herself in the instant case, the Court of Appeal held that the evidence revealed an emotionally vulnerable person suffering from migraine and pains in the leg. She was, so it held, clearly the sort of person who would be more susceptible to being adversely affected by the kind of objectionable remarks made by the appellant. The Court of Appeal found that although the appellant knew that his unending stream of sex-charged remarks directed at the respondent would make her uncomfortable, he continued with the sexual harassment. Another source of distress to the respondent was that after the investigation of her complaint, she was transferred, albeit at her own request, to another department ostensibly for a short term (which ended 15 months later by her resignation). There, she had to perform duties unrelated to the job she was hired to do. This, the respondent effectively testified, added to the suffering inflicted by the appellant’s sexual harassment. A psychiatrist had diagnosed her as having major depression caused by the appellant’s sexual harassment. This depression continued even after she resigned from the company and took up a post in Sabah. The acts of the appellant uttering the sex-charged remarks to the respondent with knowledge of her vulnerability caused her mental and physical pain which fell within the ambit of the tort of intentionally causing nervous shock. Or, so the Court of Appeal found. With respect, the Court of Appeal decided to rest its decision on a tort which focused on the effect of the appellant’s misconduct rather than the conduct itself.

Analytically, what the Court of Appeal did was to establish the fact situation and identify an existing tort into which the facts of the instant case could be slotted. This was, according to the Court of Appeal, the Canadian variation of the tort in Wilkinson v Downton also known as the tort of intentionally causing nervous shock. The Court of Appeal operated on the assumption that the tort of intentionally causing nervous shock was an independent free-standing tort in its own right without a connection to any other tort. However, as we shall see, the Federal Court had something to say on that although not explicitly.

The tort of harassment and sexual harassment

Dissatisfied with the decision of the Court of Appeal, the appellant applied for leave to appeal to the Federal Court on the following question of law ⁴³ :

Is there a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia?

The learned Federal Court Justice disagreed with the Court of Appeal’s decision that the appellant’s words uttered to the respondent constituted the tort of intentionally causing nervous shock. As the Malaysian Court of Appeal had followed the decision of the Canadian courts to recognise the said tort, it might be well to begin with a brief account of the same. In Dechant v Law Society of Alberta, ⁴⁴ a Canadian case which was not cited to the Federal Court, Madam Justice KM Horner reiterated:

54 In order to establish the tort (of intentionally causing nervous shock), a plaintiff must establish that there was:

a deliberate, wilful misstatement of fact;

  In other words, it must be shown that the defendant’s false statement would directly come to,    and thereby physically affect the plaintiff.

55 The law is not fully settled in Canada with respect to what specific acts or courses of conduct and what types of harm can establish the tort. The same is true of the tort of harassment. In fact, it may well be that the tort of harassment is the same as, or a variation of, the tort of intentional infliction of nervous shock.

Suriyadi Halim Omar FCJ referred to a remark by Lord Sumption in Hayes v Willoughby ⁴⁹ to the effect that harassment is ‘an ordinary English word with a well understood meaning’. To communicate that ‘well understood meaning’, his Lordship again drew on Lord Sumption, who explained that harassment ‘is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress’. Lord Sumption refers as authority for this proposition to Thomas v News Group Newspapers Ltd. ⁵⁰ Implicit in the definition of harassment is the requirement that the acts complained of be repetitive. Through this quotation, the learned Federal Court Justice imports into Malaysian law the requirement that to be harassment, the offending actions must be repeated though they need not be identical; the scratching of a car may be followed by unwanted phone calls. ⁵¹

At common law then, harassment is unwelcome conduct that causes disturbance or annoyance or harm to the victim (short of a recognised psychiatric illness or physical harm). One annoying incident does not harassment make; what is required is a course of such conduct though the act repeated need not be identical: assault may be followed by harassing letters. The focus is on the harmful effect that harassment has on its victims. ⁵² The test of liability is whether a harasser is committing actions that a reasonable person in the harasser’s position would expect to give rise to harassment. ⁵³ This test dispenses with the need for the victim to prove the intention of the harasser. The test has been amplified by an American scholar such that ‘harassment must be both subjectively and objectively offensive to qualify as harassment—meaning the complainant must have been offended by the conduct and the conduct would be offensive to a reasonable person’. ⁵⁴

Harassment, it is respectfully submitted, encompasses the actions that constitute such other torts as private nuisance, assault, battery, molestation and intimidation, in that each of these torts requires a course of conduct intended to disturb, annoy or hurt the target. Harassment may overlap with and yet be distinct from such aforementioned torts.

The adoption of the tort of harassment by the Federal Court would provide relief to victims of torts not yet recognised in Malaysia at either the common law or by statute. The reference here is to the invasion of privacy, stalking or harassment on account of the victim’s race, age or disability. More mundane annoyance which would be caught by the tort of harassment as in the case of an 18-year-old girl who lived lawfully in her parent’s home being bombarded by incessant unwelcome phone calls. ⁵⁵ An incessant stream of letters demanding payment for the sum of RM2.84 million and containing constant threats of legal action was what the plaintiff in JM Corporation v Harta Kumpulan Sdn Bhd ⁵⁶ had to bear. In the Hong Kong case of Lau Tat Wai v Yip Kuen Joey, ⁵⁷ the female defendant used the Internet, email and telephone to cause the plaintiff to resign from five jobs and she stalked him. As the plaintiff had neither the ownership nor the tenancy of the premises at which the electronic communications were delivered to him, the court had to dismiss his claim for relief in private nuisance. Further, as stalking was not, at the material time, a tort in Hong Kong, the plaintiff had no legal recourse against the perpetrator. The tort of harassment would be a panacea for victims of the abovementioned actions.

Having clarified the essence of the tort of harassment as a course of unwelcome conduct meant to distress, annoy or hurt the victim, the Federal Court then explained that when the offending conduct ‘is…heavily spiced…with continuous leery and obscene verbal remarks uttered by the…(harasser)…, which culminates in the…(victim)…displaying…(resultant)…symptoms of emotional distress, annoyance and mental depression due to the alarm, fear and anxiety’, ⁵⁸ then the tort of sexual harassment is complete. That is to say, the tort of sexual harassment is committed when to the persistent and deliberate course of unreasonable and oppressive conduct, targeted at another, are added some constant and objectionable sexual elements. The vulgar and sexually explicit words uttered, over an extended period of time, by the appellant to the respondent, clearly amounted, in the Federal Court’s opinion, to the tort of sexual harassment. Here, the Federal court is reminiscent of the Canadian position in Dechant v Law Society of Alberta (para 55) ⁵⁹ that there is an overarching tort of harassment of which sexual harassment is but one manifestation.

After considering the issue, the Federal Court decided that the time was right for it to recognise the tort of harassment (with sexual harassment being a part of it) in the Malaysian legal and judicial system. ⁶⁰ In arriving at this decision, the Federal Court did not see sexual harassment as a free-standing independent tort but as a tort in which the victim was repeatedly subjected to the unwelcome comments which disturbed, annoyed and hurt the victim, and which became sexual harassment because of the sexual content of the comments. Our analysis of this part of the Federal Court’s judgment shows that harassment is a widely defined tort of which sexual harassment could be a part. The Federal Court acknowledged the lacuna that ‘no civil cause of action per se for sexual harassment under the present Malaysian law exists’. ⁶¹ The Federal Court recognised not just the tort of sexual harassment but also the wider tort of harassment of which sexual harassment is a species. The recognition of the tort of harassment opens the way for the courts to provide relief to victims of stalking, intimidation and vandalism of property; free from the technical requirements of individual torts which shackled the courts from providing relief to such victims.

The features of the larger tort of harassment clarify the ingredients necessary to give rise to the tort of sexual harassment. The Federal Court identifies the recognisable hallmarks that sexual harassment shares with harassment per se. Sexual harassment, like harassment itself, consists of repetitive acts that are unwelcome and may be verbal and even physical, and range from sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied sexual threats, leering, ogling, displaying offensive pictures, making obscene gestures to sexual assaults. These overtures all share similar traits, in that they all have the air of seediness and cause disturbance or annoyance to the victim (short of a recognised psychiatric illness or physical harm). The Federal Court also introduced an effects-based test of sexual harassment by focusing on the detrimental effect of the conduct on the victim instead of the perpetrator’s intention. The effects-based test of sexual harassment is a welcome shift from the plaintiff having to prove that the harasser committed the offending act with the intention to harass the victim.

The basis of sexual harassment is the violation of individual rights, particularly the individual’s ‘inherent dignity’. ⁶² Any inappropriate and unwelcome conduct which the perpetrator can reasonably foresee would belittle a person’s honour or cause that person hurt, annoyance or distress may amount to sexual harassment. In sexual harassment actions, as in actionable libel, the law presumes that some damage must result from the mere invasion of the plaintiff’s right to his/her reputation or dignity. It is for this that the plaintiff is compensated by an award of damages. Thus, a plaintiff in libel and sexual harassment actions is not required to prove that he/she has suffered actual loss or damage. In other words, damage is not an ingredient in either tort. The plaintiff is not obliged to testify although it is customary to do so, but having proved a statement defamatory of his/her conduct amounting to sexual harassment and not excused by any available defence, the plaintiff is always entitled to nominal damages. ⁶³ Further, the general damages awarded may be said to be ‘at large’, that is, to say that the award is not limited to any pecuniary loss that can be specifically proved. ⁶⁴ In sexual harassment cases, one head of loss that cannot be quantified is what might well be the basis of the claim: the injury to the victim’s emotional feelings. And yet, that must be a major component of any non-quantifiable damages awarded. Closely related to the injury to emotional feelings could be psychological trauma. While a plaintiff is not required to testify on damages, it is always open to the plaintiff in a libel/sexual harassment action to plead and prove special damages which he/she is entitled to recover in addition to general damages. In Mohd Ridzwan, the respondent had pleaded for general damages and seems not to have testified on the same but the High Court awarded general damages which were upheld by the Court of Appeal and Federal Court without comment. The respondent did testify that she required the services of a psychiatrist. No separate award was, however, made for ‘special damages’ for the cost of psychiatric treatment, and one may assume that compensation for the psychiatric treatment as well as the condition which necessitated it was incorporated in the general damages. Incidentally, the respondent specifically claimed for aggravated and exemplary damages which the High Court awarded and the two Courts higher in the hierarchy upheld. But none of the three Courts specified that an award was made for the cost of psychiatric consultation.

In Mohd Ridzwan, following the respondent’s complaint, the perpetrator’s sexual harassment ceased, which could probably be explained by the fact that the respondent was transferred out of the appellant’s department. Continuing sexual harassment did not force the respondent to give up her job and take a position in which she was paid less. Nor was the respondent, after being forced to leave her job, unemployed for any length of time. But other targets of sexual harassment may well experience such loss. A respondent who suffers any diminution or loss of income as a result of being forced out of a job by sexual harassment should be able to claim the same as special damage.

Fundamentally, Mohd Ridzwan (FC) is important in that it belatedly recognised a tort that has long been recognised in other common law jurisdictions. Its belated recognition marks a new chapter in the law relating to sexual harassment in Malaysia. The tort was derived from the English common law and, thus, did not expand the jurisprudence in this area. However, it provides a much-needed avenue of redress for victims of harassment in Malaysia. Even so, the remedies available to a victim may not be as comprehensive as they might have been in a statute. However, that is inherent in a judicial decision which is limited to the facts of the particular case. For instance, as the respondent in the instant case was not forced out of her job and forced to endure a period of unemployment, the judgment does not address this issue but a statute providing remedies could. But given the fact that the judiciary stepped in to fill a lacuna on which neither the legislative nor the executive branches of the government would act, it is a useful first step which either the common law or the legislature could develop.

Conclusion: Future of the tort of sexual harassment in Malaysia

Once an apex court has decided a principle of law, that decision embodies the law even if the executive is unhappy with it. But the executive is not powerless. It may, if it so desires, override a court decision by enacting appropriate legislation. ⁶⁵ There is, however, no reason to believe that the government will override the Federal Court’s decision to recognise the torts of harassment and sexual harassment. It is more likely that the government may legislatively take over the torts to refine their scope and remedies.

If there is no legislative intervention, then the new torts will grow, as the common law has always done, by small increments from one case to the next. The basis of the torts of harassment and sexual harassment is the assault on the inherent dignity of the individual. One of the matters which the courts may in future have to address is the range of remedies that might be made available to victims of the two torts. These are enumerated below:

A court facing a prayer for an apology must be prepared for the possibility that the defendant may be unwilling to apologise. In such a case, a court could proceed, in the first instance, by informing both counsels that it is minded to make an apology order and to invite the parties, if they so desire, to address it on the proposed order. It should also inform the defendant that if he/she did not feel sorry and felt that any apology would, for him/her, be meaningless, then the court would not insist on an apology but would instead enhance the quantum of damages to be awarded to the victim. ⁷³

In the Hong Kong case of Yuen Sha Sha v Tse Chi Pan, ⁷⁴ the defendant secretly videotaped the plaintiff dressing and undressing in her dormitory room. He could have refused to surrender the recording. If he had, did the court have the specific jurisdiction to order the defendant to surrender the videotape? It is respectfully submitted that to obviate the need for mandatory injunctions or orders, the Malaysian courts will eventually have to hold that the courts have the power to order a defendant to perform any reasonable act or course of conduct to redress any loss or damage suffered by the plaintiff. ⁷⁵ Such a power, it is submitted, is necessary for the courts to be able to deal with the infinite and unforeseeable situations that may arise in the future.

There are bound to be circumstances in which a recalcitrant defendant may ignore the plaintiff’s pleas to leave him/her alone and persist in harassing the plaintiff sexually or otherwise. Any court would be empowered, upon application, to issue an injunction or protection order directing the defendant to cease and desist from the conduct specified in the order. The said injunction may be interlocutory or final and, in appropriate circumstances, could be granted ex parte. It may be salutary for the court to clarify that this coercive power extends to the tort of sexual harassment (and harassment).

We resist the temptation to visit criminal sanctions on those who commit either of the torts herein. If the power were to be left to the courts to frame charges and impose criminal sanctions on harassers whose misconduct the courts find egregious, there will be bound to be disparities in the sanctions imposed. We feel that like offences should attract like sanctions. And that this would best be achieved by the enactment of legislation which could prescribe remedies within a prescribed range of fines and/or term of imprisonment. Consequently, we do not venture into the area of criminal actions and sanctions.