XCHRX CHAN KWOK WAH AND OTHERS v. INTERACT CONTRACTING CO. LTD. AND OTHERS

HCLA 87/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 87 OF 2000

(On Appeal from Labour Tribunal Claim No. 11346 of 1999)

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REASONS FOR DECISION

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1. This is an application for leave to appeal against the decision of the Presiding Officer Mr Jack Wong given on 27 October 2000 under section 32 of the Labour Tribunal Ordinance, Cap.25. Only one ground of appeal was pursued by Mr Andy Cheng on behalf of the 1st and 2nd Defendants at the hearing of the application for leave to appeal and the 1st and 2nd Defendants only sought leave to appeal in respect of the awards made in favour of the 5th, 7th, 18th, 20th and 21st Claimants.

2. The background may be given as follows.

3. The 26 Claimants claimed arrears of wages against the 1st to 4th Defendants. The Claimants were the direct employees of the 4th Defendant and were engaged in a project to renovate a building at the Chinese University of Hong Kong at the material time in September and October 1999. The 1st Defendant was the principal contractor and had sub-contracted part of the work to its associated company the 2nd Defendant. The 2nd Defendant sub-contracted to the 3rd Defendant, the proprietor of which had been made bankrupt in April 2000. The proceedings against the 3rd Defendant had been stayed in view of her bankruptcy. The 4th Defendant was the sub-contractor of the 3rd Defendant. Due to disputes between the parties on the quality and progress of the work, there is pending litigation in the High Court.

4. The claim for arrears of wages against the 1st, 2nd and 3rd Defendants, who were the principal contractor and superior sub-contractors respectively, was made under Part IXA of the Employment Ordinance, Cap.57. All the Claimants were remunerated on a daily basis. The principal dispute in this case was whether the Claimants had worked the number of days they claimed they had worked at the site. Although the 4th Defendant as their direct employer had records on the progress of work and the number of workers who had worked each day for each type of work, he did not record the names of the workers who had worked each day. The Claimants had submitted to the Tribunal various records of their own regarding their days of work. Not all of them were made contemporaneously and some were found by the Presiding Officer to be clearly incorrect when he called for the arrival and departure records of the Immigration Department of the Claimants during the relevant period.

5. The 5th and 7th Claimants were painting workers. The 5th Claimant claimed that he had worked 19 days and the records of the Immigration Department showed that he was not in Hong Kong for 2 days. The Presiding Officer deducted the 2 days from 19 days of work as claimed by the 5th Claimant and applied 70% to the wages claimed for 17 days and awarded the 5th Claimant arrears of wages for that amount. The 7th Claimant claimed to have worked for 15 days and the records of the Immigration Department showed that he was not in Hong Kong for 1 day. Similarly, the Presiding Officer applied 70% to the wages of 14 days and made an award in that figure.

6. The 18th, 20th and 21st Claimants were concretors. Their case should be considered with that of the 19th Claimant, whose claim was dismissed by the Presiding Officer. In respect of this group of workers, the 21st Claimant was responsible for recording the days of work of himself and his work mates. The 19th Claimant claimed to have worked for 14 days and it was shown by the records of the Immigration Department that he was absent in Hong Kong for 8 days during this period. He absented himself from the trial when he was notified by the Tribunal to attend for further questioning after the records of the Immigration Department had become available. The 18th, 20th and 21st Claimants were not shown by the records of the Immigration Department that they had not been present in Hong Kong during the relevant period. However, as the records of work of these workers were all compiled by the 21st Claimant whose record in respect of the 19 Claimant was shown to be inaccurate and unreliable, the Presiding Officer made a 40% deduction from the wages claimed by the 18th and 20th Claimants. In respect of the 21st Claimant, one day was deducted as he had not actually carried out any work on a particular day when the typhoon signal was hoisted although he had allegedly visited the site and 60% was then applied to the adjusted figure.

7. The point taken by Mr Cheng at the hearing was that the Presiding Officer had taken the percentage of 70% in respect of the 5th and 7th Claimants and 60% in respect of the other 3 Claimants without justification. It was submitted that as the records of the Immigration Department had shown the work records of these Claimants to be inaccurate, the Presiding Officer should not have merely reduced the amount claimed by applying a percentage of 70% or 60% as the inaccurate information could not be accounted for by poor memory of these Claimants but was a matter of credibility. Further, in respect of the 18th, 20th and 21st Claimants, it was submitted that the Presiding Officer had failed to conduct proper enquiries as it would appear from the grossly inaccurate work record of the 19th Claimant that this group of Claimants must have been concocting evidence.

8. I have considered the relevant parts of the transcript that counsel had referred me to. I do not think the Defendants have made out a prima facie case that the Presiding Officer had erred in law or that his deduction by applying the percentages of 70% and 60% was unjustifiable. In respect of these 5 Claimants, the Presiding Officer had questioned them on the nature of the work they had carried out on the site, how they had come to work on the site, who had teamed up with them in their work, who had allocated work to them and the parts of the building in which they had carried out work. He was entitled to come to the view on the evidence before him that these Claimants had worked on the site for some if not all of the days they had alleged. He had weighed the evidence before him carefully and had come to the conclusion that although a small proportion of the number of days of work were shown to be inaccurate, these Claimants had not concocted evidence and made up records that were wholly false. He had also checked the number of days claimed by the Claimants to have worked against the records of the 4th Defendant. In his judgment, a deduction of 30% in some instances and 40% in other instances were appropriate deductions taking into account all the circumstances of the case. I am quite unable to see how his finding could be said to be contrary to the weight of evidence or that there is any or any sufficient room for interference on appeal.

9. As for the submission that the Presiding Officer had failed to make proper investigation in respect of the 18th, 20th and 21st Claimants, I also reject this submission. The 19th Claimant had failed to attend court upon being told that the records of the Immigration Department were available. The Presiding Officer had questioned the 21st Claimant again very closely after he had seen the immigration records of the 19th Claimant and afforded the representative of the 1st and 2nd Defendants an opportunity to cross-examine the 21st Claimant again and that the representative had declined to do so. I do not think the Presiding Officer was in error in not questioning the 18th and 20th Claimants again. The records of the Immigration Department did not show that these Claimants were not in Hong Kong on any of the days they claimed to have worked. Further, the work records of these 2 Claimants were made up by the 21st Claimant and the Presiding Officer had questioned the 21st Claimant again and very thoroughly after he had been supplied with the immigration records.

10. As the 1st and 2nd Defendants have not shown any or any sufficient basis for their intended appeal in respect of the awards made against the 5th, 7th, 18th, 20th and 21st Claimants, I refuse their application for leave to appeal.