HERAWATI v. TAY EDWARD

HCLA 70/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 70/2001

(ON APPEAL FROM CLAIM NO. LBTC 9157 of 2000)

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D E C I S I O N

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1. This is an appeal by Mr Edward Tay, the Defendant in Labour Tribunal Claim No. 9157 of 2000 against the decision of the Presiding Officer on 13 September 2001.

2. In the Labour Tribunal, the Presiding Officer found that the Claimant (who was an Indonesian maid employed by the Defendant) was underpaid and did not enjoy all her rest days. The Presiding Officer also found that the Claimant was constructively dismissed and was entitled to claim wages in lieu of notice. Judgment was entered in respect of various items claimed by the Claimant.

3. Mr Tay applied for leave to appeal against that decision and leave was granted by Deputy Judge To on 21 November 2001. Leave was granted to appeal on a point of law viz. that the finding by fact by the Presiding Officer was not supported by evidence and that the Presiding Officer failed to investigate a relevant issue, namely with regard to the payment of $2,200.00 into the Claimant's account and transferred from the Defendant's account. Deputy Judge To also directed the Defendant to file perfected grounds of appeal. For some reasons which, according to Mr Tay, was not due to his fault, the perfected grounds of appeal could not be filed until 27 February 2002.

4. At today's hearing, Mr Ling who appeared on the behalf of the Claimant, objected to this late filing of the perfected grounds of appeal. Before I deal with his objection, I invited Mr Tay to explain to me what his perfected grounds of appeal are.

5. After submissions by him, I understand his grounds of appeal basically boil down to this. In paragraph 30 of the Reasons for Decision of the Presiding Officer, reference was made to records with regard to withdrawals by the Defendant from his bank account which tallied with the Claimant's version of event. I quote from paragraph 30 of the reasons for decision of the Presiding Officer:

"The court also appreciated that the burden of proof is on the Claimant. There is however no concrete evidence on payment. There is no receipt of payment and the bank records (Exhibit D6) submitted by the Defendant cannot demonstrate payments as alleged. Indeed, the court found from such records that there were occasional withdrawals (in the sums of $2,200.00 each) which somewhat tally with the Cliamant's version. It is also strange that the Defendant had told the Claimant that her monthly salary was $3,670.00 when she came to Hong Kong. There is written contract between the parties which stipulates the amount of salary. There is simply no need for the Defendant to explain this to the Claimant. The court, having balanced all the evidence, found that the Claimant was telling the truth. The court found that the Defendant's version is not credible and thus rejected the same."

6. This paragraph has to be read against the background that at the hearing before the Presiding Officer, the Claimant gave evidence and she also called a witness to corroborate her case. On the other hand, the Defendant himself did not give evidence although he was invited to do so by the Presiding Officer.

7. Mr Tay explained to me this morning the reason why he did not give evidence. He said there were some kind of harassment against him in the course of the proceedings and he therefore did not feel comfortable to give evidence.

8. In my judgment, that is not a valid excuse. Proceedings were conducted before the Presiding Officer and if there were interference in the course of the evidence of Mr Tay, the Presiding Officer would no doubt take necessary actions to ensure that the evidence could be given smoothly. In any event, this is not a ground of appeal relied on by Mr Tay in his perfected grounds of appeal. So I need to say no more about that. What is important is that at the hearing below, the Presiding Officer only have the evidence adduced by the Claimant and according to her evidence she was underpaid. The underpayment is as follows: Under the contract her entitlement was actually $3,860.00, the Claimant said all along she was only paid $2,200.00 per month in cash by the Defendant.

9. This was disputed by the Defendant but as the Presiding Officer indicated in paragraph 30, there was no concrete evidence from the Defendant as to how and when he paid $3,860.00 per month to the Claimant. Of course, the Presiding Officer had to assess the credibility of the Claimant even though the Defendant himself did not give evidence in the witness box.

10. Reading the Reasons for Decision as a whole, I am satisfied that the Presiding Officer did adequately assess the credibility of the Claimant. The reference in paragraph 30 to the records of occasional withdrawals in terms of the Defendant's account is only a very marginal piece of evidence. Those withdrawals were in the sum of $2,200.00 each or its multiples.

11. I have looked at the relevant bank statements again. Those were bank statements in respect of the Standard Chartered Bank Account of the Defendant and there were the following withdrawals which I believe could be the withdrawals referred to by the Presiding Officer in paragraph 30: 8 March 1999 in the sum of $4,400.00; 27 April 1999 in the sum of $2,200.00; 26 May 1999 again in the sum of $2,200.00 and 11 April 2000 in the sum of $2,200.00.

12. My reading of paragraph 30 of the Reasons for Decision was that the Presiding Officer regarded these withdrawals in the sum of $2,200.00 each or its multiples, to some extent, tallied with the Claimant's version that the salary actually paid was $2,200.00 instead of $3,860.00. That was just a passing remark. It is clear that the Presiding Officer was not referring to this as evidence on which he relied to find that only a sum of $2,200.00 per month was paid to the Claimant. As to that, he primarily relied on the evidence of the Claimant which at the end of the day after considering all the evidence he accepted to be truthful.

13. Looking the matter from this angle, it can be seen that this reference to the record in the Defendant's bank account played a limited role in the overall picture of the evidence. However, in his perfected grounds of appeal as elaborated by him during the hearing before me, Mr Tay wished to argue that the Presiding Officer fell into error when he referred to these withdrawals because according to these withdrawal records, some were cash withdrawals but some were by way of transfer. He said the transfers were not paid into the Claimant's account.

14. If one considers those records together with the bank records of the Claimant's bank account, one could see that some of these sums were not transferred to the account of the Claimant. Notwithstanding that in my judgment, the point does not have a significant impact as to the finding of fact by the Presiding Officer. As I said, the record about the withdrawals in the sum of $2,200.00 played a very minor role in terms of the overall picture of the evidence. In fact, there was no withdrawal in the sum of $2,200.00 in between June 1999 and March 2000. So the Presiding Officer could not have relied on those bank records as the primary evidence as to the actual amount paid by the Defendant to the Claimant by way of wages.

15. Further, in my judgment, it does not have much significance whether the payments were by way of cash or by way of bank transfer. It was not the Defendant's case that he had paid by means of transfers instead of cash. The Defendant's case was that his payment was not $2,200.00, so these withdrawals of $2,200.00 could not be supportive of his own case that a monthly sum of $3,860.00 was paid to the Claimant.

16. Ultimately, it is just a matter of weighing the evidence and this is a task falling within the sole province of the Presiding Officer. Reading his Reasons for Decision as a whole, I find that he has conducted that task correctly and there is no question of any errors of law in the process. Although the Presiding Officer could have spelt out the limited purpose to which he referred to these so-called withdrawals in the sum of $2,200.00 clearer, bearing in mind that these are reasons given by the Presiding Officer ex tempore at the end of the hearing, I would not criticise his judgment on this score. What I have to look for are errors of law before I can allow the appeal. I do not think this is a case which falls within section 32 of the Labour Tribunal Ordinance. I do not discern any errors in points of law made by the Presiding Officer and there is no suggestion that his decision is outside the jurisdiction of the Tribunal. Because of these, I have to dismiss the appeal.