REYES ELENA E v. UNITED STATES MARINE CORPS, MARINE SECURITY GUARD DETACHMENT, AMERICAN CONSULATE GENERAL, HONG KONG

HCLA 87/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 87 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM

NOS. 3403/2004 and 2200/2004)

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D E C I S I O N

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1.  The Claimant worked as a domestic maid at a unit at Estoril Court, Garden Road between 25 March 1995 and 15 July 2001.  The unit was the residence of several members of the United States Marine Corps, Marine Security Guard Detachment of the American Consulate.  The Claimant did not receive any severance payment or long service payment upon the termination of her employment.  According to the Form 2 filed in the Labour Tribunal, the sum is $21,031.90.  The Commissioner for Labour granted extension of time to the Claimant under Section 31N for notice of claim to be given. Such notice was duly given thereafter. 

2.  The demand of the Claimant was not met and she commenced proceedings in the Labour Tribunal against the Defendant.  The Defendant did not appear in the Labour Tribunal.  It is not entirely clear whether the Defendant is claiming consular immunity.  The Labour Tribunal was informed through the Protocol Division of the Government Secretariat that the Defendant would not be represented at the proceedings in the Tribunal.  The grounds given for the absence were set out in two letters dated 25 February 2004 and 17 March 2004.  They could be summarized as follows,

(a)     there were four employment contracts, each lasted for less than two years;

(b)    the employers were the individual members of the United States Marine Corps instead of the Defendant;

(c)     time bar under Section 31N.

It seems to me that these letters raised substantive defence rather than claiming consular immunity.

3.  It may be that the Defendant did not deem it appropriate to claim consular immunity in the present case.  The employment of domestic maid does not fit easily into any one limb of the definition of “consular functions” under Article 5 of the Vienna Convention on Consular Relations which is applicable in Hong Kong by virtue of the Consular Relations ordinance, Cap.557.

4.  At the Tribunal, the Presiding Officer was somehow under the impression that the Defendant might claim consular immunity.  However, I have difficulty with his reasoning in that regard.  Anyway, that was not the basis of his decision.

5.  Turning to the substantive issues, the time bar cannot be a valid defence given the extension of time granted by the Commissioner.  As regards the duration of the four contracts, on the facts of the present case, it is at least arguable that this could not prevent the employment of the Claimant to be a continuous one under the Employment Ordinance, see Lui Lin Kam v Nice Creation Development Ltd  HCLA 106 of 2002, 9 July 2003.

6.  The other issue is the identity of the employer, viz. whether the Claimant was employed by the Defendant or by the individual members of the United States Marine Corps.  

7.  At the Tribunal, the Presiding Officer found that the employers were the individual members instead of the Defendant.  The Claimant’s claim was dismissed.  She now seeks leave to appeal against that award.

8.  Although the identity of employer is basically a question of fact and Section 32 of the Labour Tribunal Ordinance restricts appeals from the Tribunal to errors of law and jurisdiction, in certain cases findings of fact could be challenged as errors of law.  I only need to refer to what I said in Kiawchansaeng, Renu v Ho Kim Kay Canny, HCLA 78 of 2001, Para.5,

“If a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law (see Cheng Yuen v. Royal Hong Kong Golf Club [1997] 2 HKC 426; Andayani v. Chan Oi Ling [2000] 4 HKC 233).”

9.  Having perused the papers including the transcript of the trial and the evidence filed at the Labour Tribunal, I am of the view that it is reasonably arguable that the Presiding Officer made an error of that nature in concluding that the Defendant was not the employer of the Claimant.  In particular, it is reasonably arguable that the Presiding Officer misapprehended the effect of exhibits C-7, C-8 and C-10 and therefore failed to evaluate the Claimant’s case properly.  It is reasonably arguable that on proper understanding of these documents, the said finding of Presiding Officer is not one that could be entertained by a reasonable tribunal.

10.  I therefore grant leave to the Claimant to appeal against the award on the grounds set out in this Decision.  I understand the Claimant will get a lawyer to represent her in the substantive appeal.  I also direct a copy of this Decision to be sent to the Defendant through the Protocol Division so that the Defendant will be informed about the progress of the appeal.  The appeal will be heard on a date to be fixed by the court (with an estimate length of 3 hours) and parties will be notified (in the case of the Defendant, again through the Protocol Division).  The Claimant is directed to file appeal bundle and skeleton submissions at least 10 days before hearing and the Defendant, if they intend to take an active part in the appeal, should file their skeleton submissions at least 5 days before the hearing.  Costs of the application for leave shall be costs in the cause of the appeal.