WAI MEI LAI STELLA v. VIYA PRAMITA

HCLA 3 / 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.3 OF 2010

(ON APPEAL FROM LBTC 5227 OF 2009)

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BETWEEN

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J U D G M E N T

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A. Introduction

1.  The Claimant is an Indonesian who worked as a domestic maid for the Defendant between 14 September 2007 and 8 June 2009, when the employment contract was terminated.   After the termination, the Claimant lodged a claim at the Labour Tribunal for (a) payment in lieu of notice, (b) outstanding wages, (c) various outstanding paid leaves and compensation for unclaimed leaves, (d) air ticket fare, and (e) outstanding payments for transportation and meal subsidies pursuant to the contractual provision.

2.  The Defendant denied the claims and counterclaimed for payment in lieu of notice and the refund of 6 days’ wage as overpayment in light of the Claimant leaving the employment on her own.

3.  After trial, by an Award dated 7 January 2010 (“the Award”), the learned Presiding Officer of the Labour Tribunal allowed the Claimant’s claims and also allowed part of the counterclaim.  After setting off, the Claimant was awarded a total sum of HK$49,769.36.

4.  On 20 April 2010, I granted the Defendant leave to appeal against the Award.

5.  This is the substantive hearing of the appeal.

B. The trial and the judgment below

B1. The parties’ case and evidence at trial

6.  The trial took place before the Labour Tribunal on 6 January 2010, and lasted for about half a day.

7.  The Claimant alone gave evidence herself in support of the claims.  The gist of the Claimant’s claims was premised on the following principal allegations:

(1) Since the employment in 2007, although the Defendant had been allegedly making monthly salary payment in the statutory and contractual sum^[1] into her bank account, she was required by the Defendant to repay each month HK$1,480.00 to HK$1,500.00 to the employer. This was what she had been doing. Thus, in fact, the Defendant had been short-paying the Claimant salary in the sum of that amount each month for the period of her employment.

(2) The Claimant relied on various bank statements and ATM withdrawals receipts to show that she had been withdrawing sums from the bank account after receiving the purported monthly salary payments. Out of which, she explained in evidence at trial, she repaid the Defendant the sums as demanded. She also relied on a recording of a conversation she said she had with the Defendant at the Defendant’s home on the evening when the contract was terminated, in which the Defendant admitted that she had been short paying the Claimant. The Claimant said she recorded the conversation with her mobile phone.

(3) Further, other than a few statutory holidays that she had taken in the beginning of her employment, the Defendant had not allowed her to take most of the other entitled holidays and rest days, and she had to work on those days. She should therefore be paid or compensated for those lost holidays.

(4) In those circumstances, the Claimant had no alternative but to treat the employment contract to have been terminated constructively. She therefore left the employment.

8.  The Defendant denied the above, and said in gist that:

(1) She had been paying the Claimant full salary as required under the contract and the law. This was fully supported by the bank records of the payments and her signing of payment records. She also denied that she was the person having the alleged conversation with the Claimant as allegedly recorded by the Claimant. She said the said recording was a fake.

(2) The Claimant had been taking all her entitled holidays under the law. Initially the Claimant had signed the leave record which was drafted in Chinese. As the Claimant said she could not understand it, the Defendant subsequently prepared a new record in English which was also signed by the Claimant. However, the Claimant had taken away the signed English record when she left the employment.

(3) The Claimant’s work attitude had been deteriorating after a year of her employment, and the Defendant was getting more and more unhappy about her performance. On 8 June 2009, it was the Claimant who left the employment immediately without giving any notice.

9.  The Defendant also called four other witnesses to give evidence for her.  They were (a) a Ms Cheng, the owner of the employment agency, (b) one Ms Suri Puji, the Defendant’s present maid, (c) Ms Wei, the Defendant’s elder sister, and (d) Mr Leung, the Defendant’s husband.

10.  At trial, the Claimant denied that she had signed any leave records or taken away such record.

B2. The judgment below

11.  In light of the above contentions, as the learned Presiding Officer identified at paragraph 7 of his written reasons for judgment (“the Reasons”) dated 31 March 2010, the determination of the issues at trial before him depended primarily on the credibility of the witnesses.   

12.  The Presiding Officer at paragraph 6 of the Reasons concluded that he would not place any weight on the recording of the alleged conversation between the Claimant and the Defendant, in light of the Defendant’s denial of being the person to the conversation, and the lack of expert evidence on this question. This part of the Reasons does not concern this appeal.

13.  The learned Presiding Officer then set out at paragraphs 8 to 12 of the Reasons as to why he preferred the Claimant’s evidence to that of the Defendant as follows:

“8. 申索人提交銀行收支賬目，見申索人文件C9(1)-(6)。從紀錄所見，銀行戶口收支詳情，與申索人所說的案情相脗合，這是本席考慮證人證供可信性或不可信性其中一點考慮。

9. 被告人丈夫梁先生、姊姊韋小姐，以及其他被告人證人的證供的內容，都是本席考慮本案時的考慮因素。鄭小姐的証供對本席亳無幫助；Suri Puji 和韋美敬也並不清楚申索人有沒有被少付工資，或是否已享用所有假期；梁先生則是被告人至親，並非獨立証人。

10. 被告人質疑，為何申索人被少付工資，仍然啞忍替被告人工作大約二十一個月以後才離開，這也是本席考慮本案時的考慮因素之一。從情理考慮，本席認為，申索人從印尼來港，隻身在異地工作，忍氣吞聲，並不是不可以理解。

11. 申索人來港工作，須付印尼方面的僱傭代理鉅額所謂訓練費，相信這也是申索人不貿然離開被告人的原因之一。

12. 小心考慮全部證供以後，本席認為申索人是誠實証人，証供可以信賴，信納申索人案情，而並不接納被告人的案情。”

14.  At paragraph 10 of the Reasons, he explained effectively why he did not put any weight on the evidence of the 4 witnesses called by the Defendant.  The Defendant in this appeal also makes no complaint about this part of the Reasons.

C. This appeal

C1. Applicable principles

15.  Under the grounds of appeal where leave was granted, the Defendant effectively challenges the Labour Tribunal’s findings of facts in accepting the Claimant’s evidence.

16.  In such a case, there is no dispute that the following principles apply:

(1) A party’s right to appeal against a Labour Tribunal’s award or order is limited to questions involving points of law or excess of jurisdiction^[2].

(2) Finding of facts by the Tribunal is generally immune from challenge as it involves no error of law, unless such is perverse or irrational, or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors: Kei Siu Hung v CAF Securities Co Ltd (unrep., HCLA 39/2008, Deputy High Court Judge To, 27 November 2008), para 4, adopting Kwong Mile Services Ltd v Commissioner of IRD [2004] 3 HKLRD 168 (CFA), paras 31-37.

(3) Further, failure to discharge the statutory duty to investigate is a ground of appeal. However, it is trite that not every failure to investigate a relevant matter will give rise to an appeal. The appellate court has to be satisfied that the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained: Chan Suk Bing Angie v Harbour Phoenix [1992] 2 HKC 459 at 462A to 463F; James Manuel Ho v Choy Kwei Ling Vionnon (unrep., HCSA 5/2004, 29 July 2005) at para 14 per Chung J.

C2. Discussion

17.  As quoted above, at the trial, the Defendant challenged the inherent credibility of the Claimant’s allegations of being underpaid and deprived of entitled holidays on the basis that it was unreasonable for the Claimant to have continued to work for her for so long (some 21 months) before the agreement was terminated on 8 June 2009.

18.  The learned Presiding Officer dealt with this challenge at paragraphs 10 and 11 of the Reasons.  He did not find the challenge itself being irrelevant.  He accepted that this was a relevant factor that he should take into account in assessing credibility.

19.  He however found that there were two reasons to explain why the Claimant would have continued to work for the Defendant for so long despite being allegedly continuously underpaid:

(1) Since she had come from overseas and to work alone in Hong Kong, it was reasonably understandable as to why the Claimant would have to “swallowed up” this ill-treatment by the Defendant, and

(2) She could not easily leave the employment, as she had to repay the training fees she had incurred in Indonesia before coming to work in Hong Kong.

20.  For convenience, I would refer to these two explanations in this Judgment as “the Purported Explanations”.

21.  After reading the Reasons as quoted above, and the relevant parts of the transcripts of the trial at the Labour Tribunal, I am satisfied that the learned Presiding Officer made an error of law in this part of his decision in finding and accepting the Purported Explanations.  My reasons are as follows.

22.  The Claimant under cross-examination was directly asked the question as to why she had continued to work for the Defendant for so long despite her allegations of being underpaid.  The Claimant gave an answer^[3].  But the answer did not involve any of the Purported Explanations.   There is thus no direct evidence to support the Presiding Officer’s finding of the Purported Explanations.

23.  Doing the best as she could, Ms Yiu, for the Defendant, submitted that the Presiding Officer was entitled to infer the Purported Explanations from the undisputed evidence that (a) the Claimant worked alone in Hong Kong, (b) she had been remitting money to her parents in Indonesia to support them, and (c) she had incurred some significant training fees which she needed to repay.

24.  With respect, I am unable to accept Ms Yiu’s submissions:

(1) Given that the Claimant was directly asked the question under cross-examination, and that she gave an explanation to it which did not amount to the Purported Explanations, I am not sure it is open to the Claimant now to say that the Presiding Officer was entitled to “infer” these two reasons to explain why the Claimant had continued work for the Defendant for 21 months despite being continuously underpaid.

(2) In any event, even if the learned Presiding Officer was entitled to look at this evidence to “infer” the explanations which he eventually accepted to reject the Defendant’s challenge on the credibility of the Claimant’s allegations, I am of the view that it has led to injustice to the Defendant in the present case. It is so because, as I pointed out above, the Defendant had asked directly the Claimant the question as to why she had continued to work for so long despite being underpaid. In the trial, the Defendant was never put on alert that the Purported Explanations were to be or might be relied upon to explain away the challenge. The Tribunal had also not raised them at the trial. Apparently, they only appeared in the written Reasons. In these circumstances, the Defendant had been deprived of the important opportunity to explore these “explanations” under cross-examination, as she should be entitled to do so. As pointed out by Mr Cheung for the Defendant, these explanations apparently sat inconsistently with (a) the fact that the training fees had already been fully repaid 5 months after the Claimant’s employment with the Defendant, and (b) the Claimant’s own case^[4] that she “constructively terminated [her] contract due to the reasons that [she was] subject to ill-treatment (the continuous underpayment) by [her] employer…”. The Claimant might well have an answer to these questions if so asked. But the problem is the Defendant simply did not have the chance to cross-examine the Claimant on these questions, if she so wished to, as these “explanations” were never advanced at any stage of the trial.

25.  For these reasons, I am satisfied that in finding and accepting the Purported Explanations, which in turn were taken into account in his acceptance of the Claimant’s evidence, the learned Presiding Officer made an error of law in that:

(1) There was no basis to support the finding of the Purported Explanations, or

(2) The finding and accepting of the Purported Explanations has led to material injustice to the Defendant, and

(3) As such, the Presiding Officer has also taken into account an irrelevant factor (i.e., the Purported Explanations) in reaching his conclusion to accept the Claimant’s evidence.

D. Conclusion

26.  I will therefore set aside the Award and remit the matter back to the Labour Tribunal for a retrial of the Claimant’s claim and the Defendant’s counterclaim before a different Presiding Officer.