CO MINH v. MING HING GEM CO. LTD.

IN THE COURT OF APPEAL

1993, No 180
(Civil)

_________________

_________________

J U D G M E N T

_________________

Nazareth, J.A. (giving the judgment of the Court):

1. The plaintiff, Co Minh, originally commenced proceedings in the Labour Tribunal. Later these were transferred to the High Court. In January 1992 the plaintiff discontinued his claim against the 2nd defendant and proceeded only against the 1st defendant.

2. His case was set out in the statement of claim prepared by his solicitors. It was, shortly, that the 1st defendant agreed to employ him as a jewellery designer and factory manager for a period of three years, commencing on 27th May 1991 with no provision for earlier termination; and that he was to receive a monthly salary of $8500 in the first year of employment with double pay at Chinese New Year and the prospect of increase of salary. The plaintiff claimed that he should, according to the terms of the contract, receive 1% commission on orders and shares amounting to 15% of the defendant's share capital. He claimed he was wrongfully dismissed by the 1st defendant on 29th June 1991, after working for just one month although the agreement was for a period of three years. After that he said he was unable to secure employment apart from a small amount of money which he earned. He claimed for the loss of salary for the period of three years, amounting to $297,500.

3. The 1st defendant in its Defence raised a number of matters. First, that the plaintiff was in fact employed by the 2nd defendant, against whom the plaintiff had discontinued the action. Second, the 1st defendant said that the plaintiff was only employed for a trial period of three months at a salary of $8500 per month on terms set out in their own factory regulations. It was the defendant's case that terms were discussed but were not agreed. Among those discussed were the plaintiff's requests for fringe benefits including New Year bonus, 1% commission and 15% shares. Third, the 1st defendant claimed that the plaintiff had been supplied with the 1st defendant's standardised factory regulations terms and conditions. Fourth and finally, the 1st defendant claimed that if there was an oral contract, not being in writing it would be deemed to be a contract for one month, terminable by one month's notice or one month's pay in lieu under the provisions of the Employment Ordinance, Cap 57.

4. The trial came before Deputy Judge Wally Yeung on 5th and6th January 1993. The plaintiff appeared in person and gave evidence on his own behalf. For the 1st defendant evidence was given by Mr Au Yeung, a director and by a member of the staff, Miss Kwok.

5. I will not recount in any detail the evidence which the plaintiff gave. In substance, it was that he came to know Mr Au Yeung and they had discussions. Mr Au Yeung invited him to join his company. They discussed the matter over tea The plaintiff indicated his demands. There were negotiations and Mr Au Yeung indicated he was agreeable to the plaintiff's suggestions, including employment for three years. After dinner they went to a coffee shop. The plaintiff wrote down the terms on a paper mat. He was later asked by Mr Au Yeung to go to his office and report for duty. Mr Au Yeung produced a piece of paper on which certain terms of employment were recorded. He commenced employment shortly after and was terminated after about a month on 29th June.

6. Mr Au Yeung, as I have said, gave evidence. He said that he could only offer $8000 but in the event increased it to $8500. He referred to the plaintiff requesting certain terms and fringe benefits, but he said he did not agree to them. The other- witness, Miss Kwok, did not give evidence that is of significance.

7. The judge dealt with the matter in the following way. He said that he found it very difficult to accept that the plaintiff had been promised the terms of a 3-year contract and/or 15% shares of the company capital. He also referred to the documents, first that prepared at the coffee shop, and the other that Mr Au Yeung made of the terms of the employment, pointing out that the latter made no provision for a 3-year contract nor did it mention a bonus of 15%. He pointed out the plaintiff had known Mr Au Yeung for only a short period and questioned how he would offer 15% of the company's share capital to the plaintiff even before he had started work. He said he was inclined to accept Mr Au Yeung's evidence that the document he had prepared was just notes as to the demands and expectation of the plaintiff and that he had not agreed them as terms of employment. On the evidence in its entirety he held that the plaintiff's claim, so far as it alleged terms of a 3-year contract and 15% share of the company's share capital, had not been made out and failed.

8. He then turned to consider the defendant's third ground of defence, i.e., whether in fact the plaintiff had been employed on their own standard factory regulations employment contract. He correctly pointed out that the burden was on the 1st defendant to show that the plaintiff was bound by the document concerned. He found on a balance of probability that the 1st defendant had not discharged the burden. He therefore rejected that defence and turned to the final defence, which was whether the provisions of the Employment Ordinance applied, specifically ss.5(2), 6(1), 6(2) and 7(1) of the Ordinance. He found they did and upon that basis gave judgment to the plaintiff against the defendant in the sum of $8500 being one month's wages in lieu of notice.

9. The plaintiff in his notice of appeal and before us orally today has relied upon a number of grounds. Before us he said, first, that a document, i.e. the note he made on a paper mat to which I referred earlier, was wrongly translated in that it said that copyright in his designs belonged to the factory, whereas it should have said that the designs belong to him. The issue of copyright did not arise in this action. If there was indeed a mistake we are satisfied that it could have had no bearing on the decision or the reasoning of the judge.

10. Next, he said that he had not signed the 1st defendant's factory regulations contract form, and the judge failed to take into account the importance of his not signing. It is clear from his judgment that the judge was fully aware that the plaintiff did not sign and in fact therefore proceeded upon the basis that those documents did not bind the plaintiff. There is nothing in this complaint.

11. Third, he complained that his reputation was ruined by the premature termination of his contract. He had given out work to fellow traders who suffered loss when he was dismissed. While one can sympathise with him this is not a matter that can have affected the decision he complains of.

12. Fourth, he complained to this Court that he had no chance to tell the court below everything and that he had much to tell. However, he was not able to tell us anything of significance that he was not able to put forward.

13. Fifth, he claimed that he had no opportunity to rebut the defendant's evidence. He was not able to particularise any piece of evidence he wished to rebut. In any case the rules of procedure are clearly laid down and there is no suggestion that the judge did not follow them.

14. I turn finally to the plaintiff's notice of appeal. The first three grounds concerned his complaint that the court followed an "inappropriate procedure". He complained first that an exhibit was not presented in time and he consequently had insufficient time to study it. He has not demonstrated any prejudice that he had suffered on this account, or indeed in respect of his second complaint of inappropriate procedure, which was that that copies of the 1st defendant's amended defence and submissions to the court were not sent to him sufficiently in advance.

15. Third, he complained that the court did not allow him enough time to question the defendant and the witnesses. However, he was not able to substantiate this complaint when afforded an opportunity of doing so.

16. The other matters he complained of have been dealt with in the context in his oral complaints, so far as they raise anything that has to be addressed.

17. At the end of the day the burden of his appeal centres upon whether the judge was correct in coming to his conclusion that there had been no agreement between the parties of the nature contended for by the plaintiff. To the extent that such conclusion involved rejection of the plaintiff's evidence and acceptance of Mr Au Yeung's evidence, the Deputy Judge was entitled to take that view and better placed than we are to assess their credibility. Moreover, he gave other good reasons for his conclusion which I have touched upon. We think it is clear from the evidence that the judge was right that no agreement was made in the terms contended for by the plaintiff. For that the judge did not have to rely on Mr Au Yeung's evidence - a matter about which the plaintiff was much exercised before us, complaining that it was false. In that respect I would add that the judge did not accept all Mr Au Yeung's evidence. But in the end it is clear that Mr Au Yeung did try to have the factory regulations contract signed by the plaintiff and the plaintiff declined to do so. That clearly demonstrates not only that such contract was not signed but, in conjunction with the other reasons I have referred to, also that Mr Au Yeung had not entered into the contract contended for by the plaintiff. So the judge was right in then proceeding to the provisions of the Employment Ordinance that I have already mentioned. These are to the effect that where there is a continuous contract, that is a contract for more than four weeks; it is deemed to be a monthly contract that can be terminated on a month's notice or, in lieu of such notice as here, payment of a month's salary. The judge correctly awarded a month's salary in damages. For those reasons the appeal fails and is dismissed.