ADHOC MEDIA CO LTD v. CHAN LAI LUN

HCSA 76/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 76 OF 2015

(ON APPEAL FROM SCTC No 12998 OF 2015)

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D E C I S I O N

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1. The defendant was employed by the claimant as chauffeur to provide services for the defendant’s chairman Mr Cheung and his family. He was so employed from 17 September 2012 until 10 March 2015, and was responsible for driving a vehicle with registration number CH2228 (“Vehicle”).

2. On 9 April 2015, the claimant filed a claim at the Labour Tribunal. The claimant’s various heads of claims were summarised in paragraph 4 of the Presiding Officer’s written Reasons for Decision handed down on 18 February 2016 (“Written Reasons”) as follows:

「申索人在本案的追討有以下各項是被告人曾向申索人報銷或申索人已支付的費用：

(1) 被告人在非工作時間及放假時間沒有按申索人要求將公司車停放在指定車位，擅自駕駛他處所衍生的相關泊車費用共7,505元。

(2) 被告人在工作沒有按申索人要求將公司車停放在指定車位，擅自駕駛他處所衍生的相關泊車費用共5,782元。

(3) 在非工作時間及放假時間所引致的隧道費共4,558元。(1)-(3)是申索人認為被告人在非執行作範疇期間沒有按公司規定將車泊在指定車位引致的泊車／隧道費。

(4) 同一時段之內有重疊的泊車費共438元。

(5) 作為受聘司機不應乘搭的士的費用共395.9元。

(6) 同一張停車場單據曾向申索人報銷兩次，一次以停車場單據申請報銷，另一次以八達通消費向申索人申請報銷，共5,150元。

(7)  被告人沒有知會或獲得申索人授權下擅自駕駛公司車外出，並與的士發生碰撞，最後申索人公司以和解金6,000 元給予對方作結。而該交通意外導致公司車維修花了14,170元，由於交通意外是由被告人疏忽而造成，故申索人向被告人追討與該交通意外有關的費用共20,170 元。」

3. The defendant denied liability, and the parties proceeded to trial which took place on 1 September 2015. On 18 September 2015, the Presiding Officer found for the claimant on 4 heads of claim as follows:

「有關第4段(1)-(3)項費用-多次泊車費和隧道費

34. 由於被告人沒有合理解釋及證據反駁申索人的證據，因此，本席認為被告人須就上述第4段(1)-(3)各項費用自行負責，即：

(a) 非工作日的泊車費7,505元

(b) 工作天非工作時間的泊車費5,782元

(c) 隧道費4,558元。

有關第4段(4)項-重複泊車費

35. 申索人提交被告人曾報銷有3張單據[C63-C64]，其中一張單據$210顯示的泊車時間是由2013年8月2日18:58至2013年8月5日15:12，但另外兩張則顯示在上述時段內的兩段不同時間的泊車費。前述的泊車不可能與後兩時段的泊車同時發生，但被告人對此未有作出任何合理回應，因此本席接納申索人於本項的証據，裁定被告人應自行責438元。」

4. In the circumstances, the Presiding Officer granted an order/ award in the sum of $18,283 in favour of the claimant against the defendant together with costs assessed in the sum of $2,220 and interest (“Order”).

5. On 15 September 2015, the defendant filed an application for review of the Order. On 27 November 2015, the application for review was heard before the Presiding Officer. On 9 December 2015, the Presiding Officer upheld the award of $438 set out in paragraph 35 of the Written Reasons (see paragraph 3 above), but dismissed the other 3 heads of reimbursement/loss previously awarded to the claimant (“Dismissed Claims”).

6. In the circumstances, the Presiding Officer granted an order/ award to revise the Order to the extent that the sum payable by the defendant to the claimant be reduced to $438, and there be no order as to costs in respect of the review (“Review Order”).

7. On 31 December 2015, the claimant filed an application for leave to appeal against the Review Order in relation to the Dismissed Claims on the grounds that the Presiding Officer:

(a)  wrongly abdicated her duty to inquire and investigate under section 16(3) of the Labour Tribunal Ordinance Cap 25 (“Ordinance”);

(b) misunderstood key pieces of evidence;

(c)  erred in law in reaching a determination (ie the Review Order) that reversed the original determination (ie the Order) in that (i) such reversal was unsupported by any or any proper evidential basis, based upon erroneous inference of facts, based on wrongful assumption of facts contrary to the evidence presented before the Labour Tribunal, and contrary to the original determination, and (ii) the Presiding Officer failed to give any or any proper regard to the factual findings she made during the original hearing, especially when the factual basis for her review determination was directly at odds with (and contradictory to) her original determination.

8. The onus is on an applicant to show that the intended appeal has arguable grounds.[1] Whilst an appeal against a determination by the Labour Tribunal is on point of law,[2] leave to appeal will also be granted if the determination was made without regard to relevant factors, was made without evidence, or there was failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained.[3]

9. Mr Ho, counsel for the claimant, submitted that the claimant clearly had an arguable case that the Presiding Officer had committed fundamental errors of law and had failed to discharge the statutory duty to inquire/investigate in a material way in the above senses. He therefore argued this court should grant leave for the claimant to appeal against the Review Order insofar as it related to the Dismissed Claims.

10. The 3 grounds for attacking the Review Order as set out in the application for leave to appeal were not a direct attempt to overturn the findings made by the Presiding Officer, but a criticism as to how the Presiding Officer approached the evidence in coming to her conclusion in relation to the Dismissed Claims under the Review Order. I note that under section 35(2) of the Ordinance, an appeal to the Court of First Instance from an order/award by the Labour Tribunal may not (a) reverse or vary any determination made by the Labour Tribunal on questions of fact or (b) receive further evidence. However, the main thrust of Mr Ho’s submissions was that the findings by the Presiding Officer for the review determination were suspect in the senses as set out in the intended grounds of appeal, which he argued would not infringe the restriction in section 35(2) of the Ordinance.

11. Mr Ho submitted the claimant’s case on the Dismissed Claims was quite straightforward in that (a) the defendant was required to park the Vehicle at a designated parking space, (b) during the course of the defendant’s employment he made various requests for reimbursement of expenses/expenditure allegedly incurred for the claimant (eg parking and/or tunnel expenses) that had been settled but were subsequently discovered to be unrelated to the defendant’s employment duties, and (c) the claimant sought to recover the overpaid sums that had been paid to the defendant under a mistake of fact.

12. Mr Ho submitted the Written Reasons demonstrated that the Presiding Officer accepted the truthfulness of the documentary records adduced by the claimant which showed inter alia the defendant incurred parking expenses for over 90 times on non-working days under the employment contract, parking expenses for over 80 times during non‑working hours on working days outside the designated parking space, tunnel expenses (as evidenced by monthly Autotoll statements) incurred for the Vehicle 180 times on non-working days when Mr Cheung’s family was not in Hong Kong, and further accepted the claimant’s contention that the defendant was required to park the Vehicle at a designated parking space during non-working hours.

13. Mr Ho reminded that the Presiding Officer also rejected the defendant’s explanations, and went on to observe that (a) although the defendant might have assisted the Cheung family with certain tasks on a few occasions when they were out of town these were infrequent occurrences, and (b) it was likely that the defendant chose to park the Vehicle near his home during non-working hours purely out of convenience. The Presiding Officer also found it was an implied term of the employment agreement between the parties that the defendant’s claims for reimbursement of incurred expenses must reasonably relate to the performance of his duties under such agreement.

14. However, in respect of the review determination, the Presiding Officer upon reconsideration observed in the Written Reasons that even though she did not accept the defendant’s evidence, it did not necessarily follow the claimant had successfully proved its case on the balance of probabilities.

15. On the application to review the Order, the Presiding Officer made the following findings:

「61. 本席從証據中接納以下事實：

(a) 僱傭合約規定被告人在任何日子、任何時間須有工作準備，因此所謂工作日子及放假日子難以區分。

(b) 僱傭合約未有規定被告人駕駛之公司車需泊指定停車位。

(c) 張太太的庭上作供確認，被告人接載她出外活動期間，她知悉被告人在外泊車等候。

(d) 全權處理報銷的廖小姐或會計部在本案之前從未反對支付被告人在外泊車費和隧道費。

(e) 張氏或部份成員在港期間任何時段（包括超出該合約規定的工作時段），曾吩咐被告人接載，為此，被告人亦有可能或需要在外泊車。

(f)  張氏或部份成員放假不在港期間，曾吩咐被告人駕車他處處理與張氏家庭成員有關的其他事務。」

16. Based on the findings set out in the above paragraph, the Presiding Officer concluded that“申索人未能提出具體証據證明那些日期或那一次的費用並不屬於第61段所述的某些情況”,[4] and held that “在相對可能的情況下，法庭認為就算對被告人在外的泊車和過隧道的次數頻密(第26段)有所質疑，但申索人未能提出具體證據區分那一次的費用是不合理抑或是被告人替張家服務或為工作合理地引致，因此申索人的證據未能達致51%或以上為法庭所接納”.[5]

17. In respect of the proposed ground of appeal in paragraphs 7(a) and (c) above, Mr Ho submitted that although the claimant bore the burden of proof, the Presiding Officer exercised an inquisitorial jurisdiction, and if she considered there was any evidential lacuna (eg whether and if so which occasions or the number of times or the period thereof the incurred parking and tunnel expenses were non‑work related), it was her duty “to search for facts and explanations” rather than to decide the matter on the burden/standard of proof, especially when she expressly stated she was circumspect as to the frequency of the incurrence of such expenses by the defendant and when the Review Order was at odds with the Order. Mr Ho submitted it was incumbent on the Presiding Officer to keep a “clear and adequate record” of her investigation, and any failure to do so would raise questions as to whether the Presiding Officer had failed to discharge her duty.

18. Mr Ho argued that in the present case there was even more compelling reason for the Presiding Officer to inquire and investigate rather than to rely on the burden of proof because of the initial findings of fact she made that resulted in the Order. Mr Ho complained that in the Written Reasons for the Review Order, the Presiding Officer failed to deal with (a) the initial findings of fact she made in support of the Order (some of which were based on objective documentary evidence), especially as to the number of times parking and tunnel expenses were incurred and for which the defendant had sought reimbursement, and the infrequency of the occasions that the defendant performed tasks for the Cheung family when they were out of town, and (b) her observation that the defendant parked the Vehicle near his home for convenience when there was a designated parking space for the Vehicle.

19. In respect of the proposed ground of appeal in paragraph 7(b) above, Mr Ho submitted that this ground related to the claimant’s claim for parking and tunnel expenses incurred by the defendant when the Cheung family was out of town. It was suggested that the Presiding Officer dismissed such claims in her review determination because she thought it was part of the defendant’s duties to occasionally work for the Cheung family even when they were out of town, and it was not possible to tell whether the parking and tunnel expenses were unrelated to the defendant’s duties. However, the Presiding Officer had previously found the occasions when the defendant was required to work for the Cheung family when they were out of town were infrequent, and according to Mr Ho, there was evidence to show that the defendant was separately remunerated by the Cheung family outside his employment contract (which still regarded those days as non-working days) for such work. Mr Ho therefore submitted that the Presiding Officer misunderstood the evidence or alternatively she failed to investigate and resolve any lacuna or ambiguity in the evidence.

20. In respect of the proposed ground of appeal in paragraph 7(c) above, Mr Ho submitted that the reasons given by the Presiding Officer for reversal of the Order were based on misunderstanding of evidence or were logically questionable. Mr Ho argued there was insufficient analysis and/or findings on matters which were truly pertinent for the Presiding Officer’s rejection of the Dismissed Claims, and the new findings made pursuant to the application for review were not persuasive of the disputed issues in relation to the Dismissed Claims, especially when their correlation to the initial findings of fact made in support of the Order had not been properly analysed.

21. Although Mr Ho’s submissions targeted the findings made by the Presiding Officer, they arguably came within the potential errors that render such findings liable to be challenged in the senses discussed in paragraph 8 above. It is unnecessary and indeed inappropriate at this stage for me to discuss the aforesaid grounds of appeal in any detail or to come to any definitive view. However, having reviewed the Written Reasons and relevant parts of the documentary evidence and transcript of the trial which Mr Ho referred me to, I am persuaded that the above proposed grounds of appeal are arguable grounds of appeal on point of law.

22. In the circumstances, I grant leave for the claimant to appeal against the Review Order on the 3 grounds specified in the Application for Leave to Appeal on Point of Law filed on 31 December 2015. As for costs (as Mr Ho accepted at the hearing), I direct that costs of the application be costs in the cause of the appeal.