HKSAR v. KWAN WAH MEDICINE CO LTD

[English Translation – 英譯本]

HCMA 551/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 551 OF 2005

(ON APPEAL FROM TMCC NOS. 12123-7 OF 2004)

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BETWEEN

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REASONS FOR JUDGMENT

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1. The Appellant was convicted after trial on 5 counts of “wilfully failing to pay wages within the wage period”, contrary to sections 23 and 63C of the Employment Ordinance, Cap. 57 of the Laws of Hong Kong.  The Appellant now appeals against conviction.

The legislative provisions

2. Sections 23 and 63C of the Employment Ordinance provide as follows:

23.    Time of payment of wages

Wages shall become due on the expiry of the last day of the wage period and shall be paid as soon as is practicable but in any case not later than 7 days thereafter.

63C. Offences relating to time and payment of wages

Any employer who wilfully and without reasonable excuse contravenes section 23, 24 or 25 commits an offence and is liable to a fine of $200,000 and to imprisonment for 1 year.

Summary of facts

3. Prosecution witness Ms Chau was employed by the Appellant from 1 June 1990 to 7 November 2003, with wages calculated on a monthly basis.  Since 1999, the Appellant had on numerous occasions failed to pay Ms Chau her wages, which she repeatedly tried to recover but to no avail.  On 8 October 2003, Ms Chau issued a Notice of Termination of Employment to the Appellant, the notice period being one month.  At that time, the Appellant was owing to Ms Chau a total of 17 months’ wages, covering the period from May 2002 to September 2003.  On 28 October 2003, the Appellant and Ms Chau entered into an agreement, which stated clearly that the Appellant would pay to Ms Chau $17,426.04 of the outstanding wages immediately and pay the remaining $264,142.33 by monthly instalments.  However, the Appellant failed to pay after the first 3 instalments.  On 24 July 2004, Ms Chau went to the Labour Department, which arranged a meeting between her and her employer, but the Appellant refused to pay the outstanding wages.  Thereafter, Ms Chau lodged a claim at the Labour Tribunal and obtained judgment on 21 September 2004.  However, to date the Appellant has still not paid the 14 instalments of outstanding wages.  The present case involves 5 summonses in respect of wages due to become payable on 31 August, 30 November 2002 and 28 February, 31 May and 30 September 2003.

4. The Appellant did not dispute the above allegations.  Nor did it give evidence or call any witness at trial.  It raised several arguments through Counsel, all of which involved technical legal issues.

5. In the end, the Magistrate convicted the Appellant of all 5 charges.

Grounds of appeal

6. The technical legal issues raised at trial are all used as the Appellant’s grounds of appeal.

7. Ground (1) is that the agreement made on 28 October 2003 had converted the outstanding wages into a debt.  Therefore the requirement under section 23 of the Employment Ordinance that “wages shall be due” not later than “7 days after the wage period” is not applicable to the present case.  Furthermore, in rejecting this argument, the Magistrate erred in relying on section 69 of the Employment Ordinance to conclude that the agreement was void for being contrary to the provisions of the Ordinance.

8. In my judgment, Ground (1) cannot be made out.

9. The Magistrate was certainly wrong in saying that “… section 69 … clearly states that, if any express condition in any agreement between an employer and an employee is contrary to the provisions of this Ordinance, such express condition shall be void. … ” (see page 7 of the written judgment).

10. Sections 69 and 70 of the Employment Ordinance provide as follows:

69.       Saving as to existing contracts of service

Save as is otherwise provided in this section, any agreement or contract of employment entered into between an employer and an employee, which is valid and in force at the commencement of this Ordinance, shall continue to be in force and, subject to any express conditions contained in any such agreement or contract, the parties thereto shall be subject to and entitled to the benefit of the provisions of this Ordinance:

Provided that where any express condition in the agreement or contract is contrary to the provisions of this Ordinance, the express condition shall be void.

70.       Contracting out

Any term of a contract of employment which purports to extinguish or reduce any right, benefit or protection conferred upon the employee by this Ordinance shall be void.

11. It is abundantly clear that sections 69 and 70 are directed at a contract of employment and cannot be applied to “any agreement between an employer and an employee”.  As the agreement between Ms Chau and the Appellant does not constitute a contract of employment, it cannot be regarded as void by virtue of sections 69 and 70.  The Respondent has not disputed this point.

12. Nevertheless, I cannot accept the proposition that an offence under section 63C of the Ordinance, for failing to pay wages within the time limit prescribed by section 23, could be overridden by an agreement made privately between an employer and an employee which is purely civil in nature.

13. In coming to this conclusion, I have considered the case of Chiu Wing Hang (趙永恒) HCLA 67/1999, which was referred to by the Appellant.  The judgment in this Labour Tribunal Appeal case states that an agreement to arrange for payment of outstanding wages, similar to the one in the present case, does not constitute a contract of employment and hence is not governed by sections 69 and 70 of the Employment Ordinance.  This is the same as what I have stated above.

14. The judgment goes on to state that the relevant agreement for the payment of outstanding wages is legally effective and the employee cannot subsequently go back to claim that he/she has in effect been dismissed.

15. The problem here is that Chiu Wing Hang is a civil case after all and has not addressed the key issue of the present case, namely whether the Commissioner for Labour can still lay a charge under sections 23 and 63C of the Employment Ordinance despite the existence of an agreement on the payment of outstanding wages.  The said case is therefore of limited assistance.  On the contrary, the Appellant was unable to submit any further authorities to support its arguments regarding the conversion of outstanding wages to a debt and the non-applicability of section 23.

16. I also have to point out that, if the Appellant’s proposition were accepted, it would open a floodgate for unscrupulous employers to seize the opportunity to avoid criminal liability under section 63C by entering into agreements to pay off outstanding wages.  The consequences of this would be unimaginable.

17. Ground (2) of the appeal is that, as the agreement of 28 October 2003 had converted the outstanding wages to a debt, the 5 summonses, all of which were not issued until 26 September 2004, should have been void because section 26 of the Magistrates Ordinance, Cap. 227 of the Laws of Hong Kong required the relevant complaint or information to be laid within 6 months from the time when the matter arose.

18. The above complaint is based on the assumption that the agreement of 28 October 2003 did have the effect of converting the outstanding wages to a debt.  However, as I have ruled that this is not the case in the context of an employer’s criminal liability under section 63C of the Employment Ordinance, the above complaint also cannot be established.

19. Ground (3) of the appeal is related to Ground (2).  It states that, although the offence under section 63C was a continuous offence and some flexibility was allowed in calculating the time limit for laying the complaint or information, the 5 summonses in the present case, which were all dated 26 September 2004, had all exceeded the time limit in light of the wording of section 26 of the Magistrates Ordinance.

20. The English and Chinese versions of section 26 of the Magistrates Ordinance read as follows:

In any case of an offence, other than an indictable offence, where no time is limited by any enactment for making any complaint or laying any information in respect of such offence, such complaint shall be made or such information laid within 6 months from the time when the matter of such complaint or information respectively arose.

凡成文法則對罪行(可公訴罪行除外)並無規定作出申訴或提出告發的時效，則申訴或告發須分別於其所涉事項發生後起計的6個月內作出或提出。

21. The Appellant’s argument is directed at the term “arose” (發生).  What the Appellant means is that the subject matter “arose” from the fact that the Appellant failed to pay the wages within 7 days from the expiry of the wage period.  Thereafter, although the wages remained unpaid, the prosecution could not claim that such a fact “arose” daily and issued the relevant summonses only on 26 September 2004.  The Appellant further contends that the case of SJ v. Li Chi Leung [1998] 1 HKC 612, in ruling that the offence under sections 23 and 65C of the Employment Ordinance was a continuous offence, failed to consider section 26 of the Magistrates Ordinance.

22. In my view, there is simply nothing in the above argument.  The Court of First Instance has clearly stated in the judgment of Li Chi Leung that the offence under sections 23 and 65C of the Employment Ordinance is not for failing to pay wages within the prescribed time, but is for failing to perform the legal obligation to pay the employee as prescribed by the Ordinance.  This obligation exists from the time prescribed under section 23 and continues until the wages are actually paid.  The relevant judgment reads as follows:

The offences before this Court is not that the employer had allowed the time prescribed for payment to pass without making payment but that the employer had failed to perform a statutory obligation to pay the employee. This duty exists from the time prescribed for payment until actual payment. …

23. It can be seen from the above that as long as an employer fails to pay the wages, he fails to perform the relevant statutory obligation and the offence under sections 23 and 65C will “arise” every day.  Although the Court of First Instance has not referred to section 26 of the Magistrates Ordinance in the judgment in Li Chi Leung, the outcome of the case was completely in line with such requirement.  In fact, the main issue in that case was the time limit for laying a summons under sections 23 and 65C of the Employment Ordinance.

24. Ground (4) of the appeal is that the Magistrate failed to properly consider the problem that, as the Labour Tribunal entered judgment in favour of Ms Chau on 21 September 2004, the laying of the summonses 5 days later was tantamount to double jeopardy.

25. On this issue, the Magistrate had this to say at page 7 of the written judgment:

The ruling of the Labour Tribunal stemmed from PW1’s claim for arrears of wages.  This is distinct from the Appellant being charged with failing to pay wages within the prescribed time, although both matters arose from a failure to pay wages.  Arrears of wages may refer to all or part of the unpaid wages, and may refer to wages paid within or beyond the prescribed time.  PW1’s claim in the Labour Tribunal was a monetary claim which could properly be made through the Labour Tribunal.  Its nature is different from the issue of whether wages were paid within the wage period.  This is particularly so when the Appellant in the present case has not disputed the outstanding wages.  I therefore do not think that the Appellant in the present case has suffered from double jeopardy.

26. The Magistrate’s analysis is, in my view, by and large correct.  I also note that section 63C of the Employment Ordinance is directed at an employer who “wilfully and without reasonable excuse contravenes section 23”.  I believe this is very different from the issues that fell to be determined by the Labour Tribunal.

27. In any event, it is a novel approach to rely on a civil litigation and apply the concept of “double jeopardy” to impede a criminal prosecution that arose from the same facts, and the Appellant has not been able to cite any authority to support such an approach.  Indeed, on being questioned, the Appellant did admit that if his argument were accepted, it could result in absurdity.  For example, if A institutes a civil claim against B for being assaulted by him and wins, the prosecuting authority would, on the Appellant’s argument, not be able to initiate related criminal prosecution against B.  Such a proposition cannot possibly be valid, and this Ground of Appeal must fail.

28. Ground (5) of the appeal is that, without properly considering Ms Chau’s admission in her testimony that she intended to make use of this prosecution as a tool for claiming the arrears of wages, the Magistrate hastily rejected the Appellant’s complaint against Ms Chau for abusing the judicial process.

29. The Magistrate said this in his judgment:

The Defendant claims that the prosecution laid the charges with the intention of making use of the courts as a tool for claiming the arrears of wages.  This is sheer speculation which is not supported by any real evidence.  Furthermore, if section 65 were indeed to confer such an additional right on the courts as a mechanism to ensure that an employee would be paid wages or other sums, there would in my view be nothing wrong for the court to make the relevant orders.

30.  The section 65 referred to by the Magistrate, which comes from the Employment Ordinance, empowers the court to order an employer who has been convicted of an offence under the Ordinance to pay such outstanding wages or other sums as are related to the offence in question.  However, section 65 only provides a mechanism for recovery and has never been engaged in the present case.  In referring to that section, the Magistrate was merely making a passing comment on the mechanism.

31.  As for the Magistrate’s statement that the Appellant’s claim was sheer speculation, this was in fact the case in light of the transcript of Ms Chau’s testimony.  It is true that Ms Chau did admit that her greatest concern was to recover the outstanding wages and that there was no need to go to the court if she could really get the money back.  However, on being asked questions specifically related to abuse of process, Ms Chau clearly answered to the contrary. The following is an extract from her testimony:

Q:     In the end you used this method of making a claim at the Labour Tribunal for breach of the contract, and the Labour Tribunal entered judgment in your favour and ordered it to pay some $200,000 back to you.  Is this correct?

A:      Yes.

…

Q:     Given you have already obtained the judgment, you can simply act on it.  Why do you have to sue it in court again?  You can rely on the judgment and ask it for the money, as this is a legally binding order.  Why are you suing it in court again? You have won the case already, agreed?

A:      Agreed.

Q:     Legally you have won $200,000 odd, you can claim against it for the money together with interest.

A:      Yes.

Q:     Then why did you go for this method?

A:      Because I have asked the Accounts Department of the Labour Tribunal. [The Appellant] still has not paid, and [the Accounts Department] said ‘if … you can seize his property’, but I have to put down $5,000 to $6,000.  Then I gave the matter some thought and I also checked with the Land Registry, he had mortgaged that property in March – the warehouse property.  So if I seize his property, I will even lose my $5,000 to $6,000.

Q:     This means you know that in the civil claim, or at least in this labour claim, the court has already entered judgment in your favour, and this judgment is legally effective, and you can claim against it for breach of contract and for failing to pay you the money.

A:      Yes, I asked and that is what it said.

Q:     But you chose not to make a claim by yourself but asked the Labour Department to prosecute it.  Is that correct?

A:      I did not ask the Labour Department to prosecute it.

Q:     Then why are you coming here to testify? You are prosecuting him by giving the testimony.

A:      The Labour Department asked me to make a statement, so I did it. The truth is that it owes me money, he owes me wages.

Q:     Of course, I do not think you will disagree if I say this: although when you discussed the agreement with it in August it said it would not pay you and put forward excuses, and it has still failed to pay notwithstanding this judgment, you in fact agree that if it pays you back the money soon after the date of the judgment, you will let the matter go and not bring it to court this time.  Do you agree?

A:      Agree.

Q:     Do you agree that this time, of course, if the Labour Department says ‘Hey, then we will prosecute it and you will have to be a witness’, your actual intention is to testify in court again in order to compel it to pay you back the money, and then everything will be over.  Is that correct?

A:      That is also true, and I also want to see, if these employers do not pay wages to their workers, then …

Q:     But for you personally, ‘the most important thing is that I get back that $200,000 odd’?

A:      Of course.

Q:     ‘If it gives me back my money, I will not bother to go to court, what will be the point of going to court then?’

A:      That is true.

Q:     So if, for example, it paid you back two days ago, you would forget about this case, right?

A:      No, I have promised the Labour Department to be a witness, and I will keep it.

Q:     No, I know you will, but if you get the money, you will tell the Labour Department that you will forget about this case, is that correct?

A:      Not quite.

Q:        Your intention is only to get back the $200,000 odd, right?

A:      But it really has not given me the money.

Q:     I know, but your intention is only to recover this $200,000 odd, agree?

A:      Yes.

Q:     Okay. Have those at the Labour Department told you ‘Hey, Ms Chau, the court has already ruled that you won the case, we cannot claim against it again because it is not fair to punish it twice.’ Have they said something like that?

A:      No, they have not said that.

Q:     No, no, listen carefully, it does not matter whether they have or not, have they said ‘are we not punishing it twice if we prosecute it again? Second, you already have the court judgment and you can claim against it, there is no reason for us to use this method to help you make a claim.’ Have they said something like that?

A:      No.

Mr. Wong:    I have no further questions, thank you.

32.  I think what Ms Chau meant on the whole is very clear.  The $200,000 odd was very important to her, and if she could get it back, she would not want any more trouble.  But it was not for her to decide whether to issue the summonses to the Appellant, and having promised to testify in court, she would not turn her back on the promise.  In view of this, Ground (5) cannot stand.

33.  Ground (6) of the appeal is that, before issuing the summonses, the authority should, in accordance with section 64(2) of the Employment Ordinance, have first “[heard] the person against whom the allegation is made, or [given] him an opportunity of being heard”, and then decided whether to grant a “consent to prosecute” in writing pursuant to section 64(1).  However, the “opportunity of being heard” in the present case did not arise until 27 September 2004, i.e. 6 days after Ms Chau obtained judgment from the Labour Tribunal.  That being the case, the “allegation” referred to in section 64(2) had become a judgment of the court, and the nature of the “opportunity of being heard” had changed so that the subsequent consent to prosecute lost its legal effect and the legal basis of the whole trial fell away.

34.  In my view, this argument must also fail.

35.  As stated above, although the hearing before the Labour Tribunal and the prosecution in the present case arose from the same facts, the nature of and main issues in the two sets of proceedings were markedly different.  For example, the issue for determination in the latter proceedings was whether the Appellant had “wilfully and without reasonable excuse contravened section 23”.  In any event, I do not see how the fact that Ms Chau obtained a judgment in her favour could change the nature of the relevant “opportunity to be heard” or cause any injustice to the Appellant.

Judgment

36.  In my judgment, the Appellant’s grounds of appeal cannot stand and are in fact very flimsy.  The appeal is dismissed and the Appellant is ordered to pay costs of $2,000.