CASTRO EVELYN DIMALANTA v. WONG CHOI WAH

HCLA 9/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 9 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 8155 OF 2001)

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J U D G M E N T

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1. This is an appeal brought by the Claimant against an order made by a Deputy Presiding Officer on 8 February 2002 in relation to the Claimant's claim against her former employer, the Defendant.

2. The Claimant, a Filipino, was employed by the Defendant as a domestic helper under a standard term employment contract signed in January 2001. Actual work apparently started on 9 February 2001. The Claimant was dismissed by the Defendant in August 2001 and claimed in the Labour Tribunal against the Defendant one month's wages in lieu of notice, arrears of wages from 1 August 2001 to 19 August 2001 (the date she said she was summarily dismissed by the Defendant), air ticket, meal allowance from 9 February 2001 to 19 August 2001, annual leave pay for the same period of time, food and travelling allowances for returning to her home country and travelling expenses from Manila Airport to the Claimant's home town.

3. It was the Claimant's case before the Tribunal that she was told by the Defendant to look for a new employer on 1 August 2001. Thereafter she left the Defendant's house and stayed at a boarding house. On 19 August 2001, the Claimant phoned the Defendant and asked for a notice of termination, and payment of her salary due and air fare as she had found a prospective employer, but the Defendant told her that she had already terminated the Claimant's employment and refused to pay her anything.

4. It was also the case of the Claimant before the Tribunal that she was only provided with leftover food by the Defendant during her stay with the Defendant's family, which was not enough for her.

5. On the other hand, it was the Defendant's case before the Tribunal that on 31 July 2001, she told the Claimant that she wanted to terminate her employment. Upon hearing that, the Claimant became agitated and requested to take leave in order to find a new job. The Defendant acceded to her request for leave from 1 August 2001 onward. The Claimant then left the Defendant's house. The Defendant's case was that on 15 August 2001, the Claimant called the Defendant at her office and asked for one further week's leave. The Defendant told the Claimant to return home at 7:00 p.m. on that day. When the two met at home that evening, the Defendant refused the Claimant's request for further leave and terminated the Claimant's employment. She paid the Claimant her wages from 1 to 15 August 2001, one month's wages in lieu of notice and air fare in the total sum of HK$6,905.00. To prove these, the Defendant produced a receipt which was allegedly signed by the Claimant on 15 August 2001 in her house. According to the receipt, the Defendant paid the Claimant HK$6,905.00 in cash.

6. The Defendant also testified before the Tribunal that she wrote to the Immigration Department on the following day to the effect that the Claimant's employment was terminated on 15 August 2001. A copy letter was produced as an exhibit before the Tribunal.

7. As for food, it was the Defendant's case and evidence that the Claimant ate together with the Defendant's family and sufficient food had been provided to the Claimant during her employment.

8. According to paragraph 10 of the Reasons for Decision, the Presiding Officer preferred the evidence of the Defendant:

"Having listened to the evidence given by the parties and closely observed their respective demeanour in Court and having taken into account the documentary as well as circumstantial evidence in this case, I have come to the conclusion that the case and evidence of the Defendant are to be preferred."

9. The Presiding Officer rejected the Claimant's explanation about the receipt, i.e. that when the employment contract was signed, the Defendant asked her to sign some blank paper, and the Claimant believed that the so-called receipt was manufactured by the Defendant from the signed blank paper. The Claimant also testified before the Tribunal that she did ask the Defendant the purpose of signing the blank paper but the Defendant just told her "no problem".

10. The Presiding Officer found as a fact "on balance of probability" that on 15 August 2001, the Claimant's employment was terminated and that upon signing the receipt, the Claimant was given HK$6,905.00 in cash by the Defendant comprising HK$1,835.00 being wages from 1 to 15 August 2001, HK$3,670.00 being one month's wages in lieu of notice and HK$1,400.00 for air ticket.

11. As for the complaint over the provision of food, the Presiding Officer accepted the evidence of the Defendant that she had provided sufficient food to the Claimant.

12. As for the claim relating to the annual leave pay, the Presiding Officer regarded the leave taken by the Claimant from 1 to 15 August 2001 as being more than sufficient to cover the Claimant's pro-rata annual leave entitlement, given that the Defendant had also, according to his finding, paid the Claimant her wages during that period of time.

13. In the circumstances, apart from a minor and immaterial item of claim, the Presiding Officer rejected the Claimant's claim.

14. In this appeal, Mr Chung, counsel for the Claimant, seeks to argue that the Claimant did not receive a fair trial below. He claims that the Presiding Officer was biased against the Claimant. He relies on several specific matters in support of his argument.

15. First, counsel argues that the Presiding Officer misinterpreted clause 5(b) of the employment contract. Clause 5(b) of the contract provided that:

"The Employer shall provide the Helper with suitable and furnished accommodation as per the attached Schedule of Accommodation and Domestic Duties and food free of charge. If no food is provided, a food allowance of HK$500.00 a month shall be paid to the Helper."

16. He points out correctly that the Presiding Officer took this clause to mean that no food allowance could be claimed for so long as the employer had provided to the helper some food to eat regardless of its quality or quantity; it was only when no food whatsoever had been provided that the helper could claim against the employer a food allowance pursuant to the clause. Indeed, the Presiding Officer used this as a further ground for supporting his rejection of the Claimant's claim in relation to food allowance.

17. Counsel argues that this construction of the clause in question was not only erroneous but also demonstrated that the Presiding Officer was biased against the Claimant. I agree with the first part of this proposition but not the second part. I agree that on a proper construction of the clause in the employment contract, the food to be provided had to be reasonable both in terms of quality and quantity, failing which a food allowance or a pro-rata food allowance would have to be paid by the employer to the helper in lieu of food. The choice was with the employer _ either to provide food reasonable in terms of quality and quantity or to pay a food allowance or a pro-rata portion thereof, depending on the facts.

18. But I do not agree that the Presiding Officer was biased against the Claimant, whether looking at this matter by itself or in conjunction with the other matters raised by counsel which I will deal with in due course.

19. For the sake of completeness, I should point out that the erroneous construction of the clause in question by the Presiding Officer did not affect his conclusion in relation to the claim for food allowance. This is because the Presiding Officer found as a fact that sufficient food had been provided by the Defendant to the Claimant as per the evidence of the Defendant which he accepted. This is accepted by counsel.

20. The second matter relied on by counsel to support his claim that the Claimant did not receive a fair trial below is that the Presiding Officer allegedly "coached" the Defendant regarding her evidence about the provision of food. Counsel argues from the transcript that the Presiding Officer actually coached the Defendant to say that she had allowed the Claimant "to eat anything in the house".

21. In my judgment, this is a totally unfair criticism and really has nothing in it. It is abundantly clear from the written statements submitted by the Defendant to the Labour Tribunal prior to the actual hearing that it was the case of the Defendant throughout that the Claimant had been provided with sufficient food to eat; that the Claimant was the person responsible for preparing meals; and that she ate together with the Defendant's family. As revealed in those statements, on the case of the Defendant, there was no question of the Defendant's not providing sufficient food or her providing leftover food to the Claimant for her consumption.

22. The relevant part of the transcript reads as follows:-

"Q. Defendant, please sit down. Now, you just tell me first what do you want to say.

A. ... was there any meal that I didn't ask you to come over to have the meal with us? Had I disallowed you to eat the food at home?

COURT: The Defendant, perhaps you can say you allow the claimant to eat anything in the house. I think, instead of putting a question to the claimant, you can make the statement to me. If you really want to ask the claimant question, I will let you do that later. Yes, please finish all your evidence, first.

Q. Yes, anything you want to say apart from you allow the claimant to eat anything in the house?

A. In fact, she could eat anything at home and I did not restrict her.

Q. The Defendant, you and your family are eat together with the claimant or eat separate with the claimant?

A. Together."

23. I have no doubt that when the Presiding Officer intervened after hearing the direct questions put by the Defendant to the Claimant while the Defendant herself was in the box giving evidence and told the Defendant that perhaps she could say that she had allowed the Claimant to eat anything in the house, the Presiding Officer was just seeking to elicit from the Defendant evidence to support her case. Now the Defendant's case was not only already apparent from the statements that had been submitted by the Defendant to the Tribunal as referred to by me above, but was also apparent from the direct questions put by the Defendant to the Claimant appearing in the transcript extracted above. In other words, when the Defendant asked the Claimant, no doubt rhetorically, "Had I disallowed you to eat the food at home?", she was telling the Tribunal in no uncertain terms that the Claimant was free to eat anything at home. That precisely was the Presiding Officer's understanding and represented the gist of his intervention.

24. Viewed in that light and objectively, I can see nothing in counsel's criticism, particularly bearing in mind that the Presiding Officer had an inquisitorial role to play in the proceedings and was actually under a statutory duty to "investigate any matter which he [might] consider relevant to the claim, whether or not it [had] been raised by a party", and that he might "put to a party or witness such questions as he [might] think fit". See section 20 of the Labour Tribunal Ordinance (Cap. 25).

25. The third matter relied on by counsel to say that the Claimant did not receive a fair hearing is this: Counsel correctly points out that the Presiding Officer wrongly thought that the Claimant had been in Hong Kong for 18 months when she was allegedly asked by the Defendant to sign the blank paper which eventually became the receipt (as per the Claimant's case), i.e. when the employment contract was signed in January 2001. This arose out of a question asked by the Presiding Officer as to how long the Claimant had been in Hong Kong. The Claimant gave the answer that since her arrival in Hong Kong, it had been "18 months from now", i.e. 18 months from the date of hearing in January 2002. In other words, she had only been in Hong Kong for about 6 months when allegedly she was asked to sign the blank paper. The Presiding Officer used this as one of the reasons for disbelieving this part of her story.

26. As I said, I agree that the Presiding Officer misunderstood the evidence of the Claimant in this regard. On the other hand, counsel specifically disavows any intention to use this error as a ground by itself to attack the relevant findings regarding the genuineness of the receipt or the truthfulness of this part of the Claimant's story (or her credibility as a whole). Rather counsel's point is that this was more than an innocent misapprehension of the evidence; it demonstrated the bias, conscious or subconscious, of the Presiding Officer against the case of the Claimant. I must say that I totally disagree with this contention. Judging from the transcript and the circumstances of the whole case, I am firmly of the view that this was an innocent error made by the Presiding Officer. He simply mistook the short answer given by the Claimant to mean that by the time of the alleged signing of the blank paper in January 2001, which was in fact the subject of investigation by the Presiding Officer when he asked the question, the Claimant had been in Hong Kong for 18 months. He simply missed out the crucial words "from now" in the short answer given by the Claimant.

27. As I said, counsel does not use this misapprehension of the answer given by the Claimant to mount any attack on the relevant findings of fact. I have thus heard no argument on whether the misapprehension of evidence amounted to an error of law thereby entitling this Court to disturb any erroneous findings of fact resulting from it (see Andayani v Chan Oi Ling [2000] 4 HKC 233), and whether any of the findings of fact was indeed erroneous so that it should be disturbed. Given counsel's approach, I need not and do not deal with any of these. All that I would like to note, in fairness to the Presiding Officer, is that he based his relevant findings of fact not only on this particular answer the meaning of which he misunderstood, but also on the evidence given by the parties in general, their respective demeanour which he had closely observed, as well as the documentary and circumstantial evidence; moreover, he also highlighted the fact that the Defendant was the Claimant's second employer in Hong Kong, and was therefore unlikely to be as na?ve as she claimed she was in January 2001, and gave that as a specific reason for rejecting her story relating to the signing of the blank paper.

28. One final matter raised by counsel is that the Presiding Officer failed to make a finding in relation to the true circumstances under which the Claimant failed to provide further service to the Defendant's family starting from August 2001. It was the Claimant's case before the Tribunal that she was asked by the Defendant to go and find a new employer and therefore it was the Defendant who did not require her service starting from August; in other words, this could not be regarded as her taking any annual leave. On the other hand, the Defendant's case was that the Claimant asked her to give her leave in order to find a new employer and not to dismiss her immediately, she agreed and therefore paid leave was thus given to the Claimant.

29. Counsel says that the Tribunal failed to make a finding of fact in relation to whose version should be believed. This is put forward as a separate ground (from the ground about the Claimant not receiving a fair trial) in the present appeal. I find nothing in it. As I said, the Presiding Officer specifically said in his Reasons for Decision that he preferred the case and evidence of the Defendant to that of the Claimant's. That must have covered the competing versions relating to the circumstances under which the Claimant stopped providing any further service to the Defendant's family as from August 2001. Moreover, in paragraph 16 of the Reasons for Decision, the Presiding Officer specifically found as a fact that the Defendant had granted 15 days' leave to the Claimant from 1 to 15 August 2001 at the Claimant's request and did pay the wages for this period to the Claimant on 15 August 2001. In those circumstances, the Presiding Officer concluded that the Claimant had been granted annual leave which was more than what she was entitled to.

30. I find all this to be a reasonable amplification or elaboration of what the Presiding Officer had said in relation to this particular claim of the Claimant in the ex tempore judgment given by the Presiding Officer. I find nothing wrong with it.

31. In short, I reject all the grounds of appeal put forward by counsel on behalf of the Claimant. The appeal is dismissed. I order that the costs of this appeal be paid by the Claimant to the Defendant, to be taxed if not agreed. I also order that the Claimant's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91). To simplify matters, I make an order nisi that the costs to be paid by the Claimant to the Defendant be summarily assessed at HK$2,000.00. Unless either party applies to vary this costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

32. I also make a direction that this judgment be orally interpreted to the Defendant in Cantonese when this judgment is handed down or at such other time as may be convenient to the Defendant by arrangement with the Court Registry.