HASSAN AHMAD v. SANDHU ABDUL REHMAN

HCLA 6/2021

[2021] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 6 OF 2021

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 1389 OF 2019)

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D E C I S I O N

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A.   Introduction

1.  This matter concerns an application by a defendant (“Defendant”) to a claim in the Labour Tribunal (“Tribunal”), for leave to appeal from a decision of the Tribunal (David Chum, Presiding Officer) dated 18 December 2019.

2.  The matter has a protracted procedural history, which it will be necessary to rehearse below.  But, by way of introduction, the application for leave to appeal was made out of time, and an extension of time for applying for leave to appeal was granted by the Master on 14 May 2021. The application was filed on 26 May 2021.

3.  Section 32(1) of the Labour Tribunal Ordinance Cap 25 (“Ordinance”) provides that:

If any party is dissatisfied with an award, order or determination by the tribunal on the grounds that the award, order or determination is –

(a)  erroneous in point of law; or

(b)  outside the jurisdiction of the tribunal,

such party may, within seven days after the date on which the award, order or determination was served on him, or within such extended time as may be allowed by the Registrar of the High Court on good cause, applied to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave.

4.  The stated ground on which the Defendant desires to appeal is said to be on the basis that the order made by the Tribunal is erroneous in point of law, in that (sic):

I am out of Hong Kong and stuck in UK due to COVID-19 and there is the travelling ban from UK to Hong Kong until to 7 May 2021 by the Hong Kong governement.  The claim was filed agast me when the claiment knows I am in UK already which makes me unable to defend myself.  Claiment fails to provide any evidence of his claim except one his statement.  Labour Tribunal doesn’t grant me logical timeframe for me to appear in front of the respected tribunal, making me liable for huge amout out of blue.  I beg the court of first instance to grant me some time to appear in the court and defend myself.  I am very urgently booking my air ticket back to Hong Kong to be present in the court.  Once again I begged the court to take my circumstance into consideration and grant me a chance to defend myself from this sham mock story agaist me.

5.  The matter was originally fixed for hearing on 15 July 2021.  By letter dated 11 July 2021, the Defendant sought an adjournment, saying that he was trying his best to engage with several Hong Kong law firms to represent him on 15 July 2021, but had failed to get any representation up to the day of his letter.  By directions given on 14 July 2021, I acceded to the adjournment application, and I re-fixed the hearing to 13 August 2021. I expressly stated that the adjournment was to permit the Applicant a further period of time within which to find legal representation.

6.  However, by email dated 9 August 2021, the Defendant sought a further adjournment.  He did so on the basis that he had not yet managed to find a law firm to make sufficient progress on his case, and that each firm he contacted asked him to ask the court to grant sufficient time to prepare the case.  He also informed the Court that he had booked a flight to return to Hong Kong on 10 October 2021, so sought an adjournment until some time after 10 November 2021.  On 10 August 2021, I refused any further adjournment.  I did so on the basis that there would be a significant delay which was not warranted, and further that there had been sufficient time provided the Defendant for him to find and instruct lawyers to conduct the hearing on 13 August 2021.

7.  At the hearing, the Defendant was not present. Nor was he legally represented.  Instead he sent his father-in-law, Mr Chan Kwok Cheung Ahmad to ‘represent’ him, and to hand in various documents.  As a matter of courtesy, I listened to what Mr Chan had to say on the basis that I would decide whether or not to take it into account.  I also received documents from him on the same basis.

8.  My direction dated 14 July 2021 (adjourning the hearing to 13 August 2021) and 10 August 2021 (refusing a further adjournment, and confirming that the hearing on 13 August 2021 would go ahead) were both sent by post to the Claimant’s address.  He did not attend the hearing.

9.  At the hearing, I reserved my decision.  This is my Decision.

B.    History

10.  The claim by the Claimant in the Tribunal was for certain arrears of wages, annual leave pay, statutory holiday pay, and rest day pay said to arise from his employment by Defendant.

11.  The claim was lodged on 30 April 2019. A call-over hearing was fixed for 22 May 2019, but the Defendant wrote to the Tribunal to apply for that hearing to be postponed on the basis that he was travelling to the UK for medical treatment.  The application was refused, and the Defendant was therefore absent at the hearing on 22 May 2019. However, at that hearing the Claimant informed the Tribunal that he had been arrested and charged with an offence of breach of condition of stay, and the claim was adjourned sine die, with liberty to restore by either party.

12.  On 11 July 2019, the Claimant sought permission to restore the case following the completion of criminal proceedings against him.  A new mention hearing was fixed for 12 September 2019. But, at that hearing, the Claimant informed the Tribunal that he had not yet arranged any substituted service on the Defendant.  Therefore, the hearing was adjourned to 26 November 2019.  Unfortunately, on that date, the Tribunal building had to be closed, and a new date was subsequently re-fixed for 18 December 2019.  Before that hearing, the bailiff arranged to deliver a notice of hearing to the Defendant on 4 December 2019.

13.  On 18 December 2019, the Defendant was again absent.  The Presiding Officer thought it not desirable for the Claimant to effect substituted service again, and was satisfied that the Defendant had notice of the claim, since he had filed the Defence and the application for postponement to the Registrar.  Therefore, the Presiding Officer conducted the ex parte proceeding, in the absence of the Defendant, pursuant to section 21 of the Ordinance, on 18 December 2019.

14.  The Decision of the Tribunal was also made on 18 December 2019. However, the reasoning for the decision appears only in the Reasons for Decision dated 28 June 2021 (following a later application to set aside the judgment/award).

15.  From that document, it can be seen that the Claimant gave evidence, on the basis of which the Presiding Officer found the following facts proved:

(1)  he was employed by the Defendant to perform cleaning work (other than household duties as a domestic helper) for the period between 16 February 2018 and 9 December 2018 (the date that the Claimant was arrested for an offence of breach of condition of stay);

(2)  the Claimant alleged that he believed the Defendant had arranged a working visa for the cleaning works;

(3)  the Claimant had performed cleaning work under the instructions given by the Defendant;

(4)  the Claimant had worked for 19 hours a day cleaning the 19-storey Star Mansion and the house of the Defendant, such as sweeping the floor, collecting and disposing of rubbish;

(5)  no remuneration was paid to the Claimant, but he was asked by the Defendant to sign receipts of $6,000 as wages;

(6)  the Claimant believed that he should at least receive the statutory minimum wage of $34.5 per hour.

16.  The Presiding Officer noted from the Defence filed that the Defendant disputed the employment relationship with the Claimant, although he agreed that he had employed the Claimant as domestic helper and that he had worked for him.  A settlement agreement had been entered into with the Claimant in which the Defendant admitted he was the employer of the Claimant.

17.  On the basis of those established facts, the Presiding Officer accepted that the Defendant had failed to pay the wages to the Claimant for his performance of cleaning works.  He entered judgment accordingly, in the total amount of $229,225.65, together with interest on that sum from the date of the award until satisfaction.

18.  The Defendant had a right to apply for setting aside the Judgment entered in his absence, pursuant to section 21A of the Ordinance.  The Defendant made that application on 25 December 2019, so he had obviously received the judgment on or before that date.  The hearing of the setting aside application was scheduled for 8 April 2020. But, due to Covid-19, the application was adjourned with the consent of the parties to be heard by the Deputy Presiding Officer on 24 November 2020. On that date, the Defendant was absent, and his application to set aside was adjourned to 21 April 2021.

19.  At the hearing on 21 April 2021, before the same Deputy Presiding Officer, both the Claimant and the Defendant were absent.  The application for setting aside the Judgment was dismissed by Order made on that day.  The Order also identifies that the Defendant’s application for adjournment was also refused, before the matter was heard in the absence of both parties.

20.  The Tribunal’s file also includes an Order dated 3 May 2021, served 4 May 2021, dismissing the Defendant’s application to set aside the Order dated 21 April 2021.

21.  Most of those matters were canvassed in a single Reasons for Decision dated 28 June 2020, written (only) by the Presiding Officer.

C.   Other Materials

22.  The Tribunal’s file contains a Form 6 ‘Summary of Facts’ memorandum prepared by a Tribunal Officer (“TO”) dated 2 May 2019. The document contains a summary of facts alleged by the Claimant.  Notably, the claim is on the basis of a contract of employment made in writing, of which the Claimant stated he did not have a copy.

23.  The TO conducted an interview with the Defendant and noted matters alleged by the Defendant.  They included the following:

(1)  The Defendant hired the Claimant is a domestic helper via an employment agent.

(2)  A written employment contract was entered into, and a copy of the Domestic Helper contract was produced.

(3)  After taking a few days rest, the Claimant said he did not know how to cook or do household chores, but rather wanted to seek asylum in Hong Kong.  Whilst he visited his cousin who was also working as a domestic helper for the Defendant, the Claimant never joined the job full-time.

(4)  To prevent trouble, the Defendant wanted to settle the matter with the Claimant.  It took several months to negotiate with his agent on how to repatriate the Claimant and make the settlement.  Finally, the Claimant agreed to go back to Pakistan on 12 July 2018 and signed a final settlement receipt in the presence of a witness.  The Claimant accepted $9,508, including one month’s wages in view of notice, wages for 16 June to 12 July 2018 and six day statutory holiday leave pay, and an air ticket.  Copies of the settlement receipt, the air ticket and the boarding passes were provided.  The Defendant even accompanied the Claimant to the airport and witnessed the Claimant enter the departure hall.

(5)  Later, on a date unknown to the Defendant, the Claimant came back to Hong Kong on his own.  The Defendant later learned that the Claimant was charged by the Immigration Department as an illegal worker, but the Claimant alleged that he still worked for the Defendant.

(6)  The Defendant disputed the employment relationship with the Claimant, and so the claim of the Claimant.

24.  Though not expressly referred to by the TO, I note that the copy passport of the Claimant has an Immigration Department sticker granting permission to remain in Hong Kong on the basis that the Claimant was employed by the Defendant as a domestic helper under a Domestic Helper contract numbered the same as the copy contract provided by the Defendant.  It can be particularly noted that a copy of that Immigration Department sticker is shown on the copy of the Claimant’s passport provided by himself, as well as the copy provided by the Defendant.

25.  I also note that the Defendant provided to the Tribunal a copy of the Immigration Department form relating to Notification of Termination of Employment Contract with Foreign Domestic Helper, dated 12 July 2018, which was signed by the Defendant and the Claimant (with his signature and fingerprint).  That document states as the reason for termination of contract that the Claimant “wants to be refuge, pursue easy life” (sic).  It is witnessed by the same person who witnessed the settlement receipt of the same date.

26.  There is also the Defence filed by the Defendant, refuting the claim.  That document asserts that the Claimant actually worked in various other places, which CCTV recording would prove, giving the lie to the allegations on which the claim is based.  A DVD is in the Tribunal file.  The Defendant averred that the Claimant was simply using him to enter Hong Kong.

27.  At the hearing before me, Mr Chan pointed out that the documents he wanted to hand in were those submitted to the Tribunal before, and other documents which he had tried to hand in to the Tribunal on behalf of the Defendant in his absence overseas.  He drew particular attention to the fact that the Defendant had himself taken the Claimant to the Hong Kong airport on 12 July 2018 to ensure that he left on the ticket provided.  But, somehow, the Claimant returned to Hong Kong.  Mr Chan in addition handed in two statements from individuals who would give evidence to support the Defendant’s defence to the claim, and a thumb drive apparently containing relevant CCTV evidence.

D.    Consideration

28.  It may be understandable that the Presiding Officer was put in a somewhat difficult position by the Defendant’s long-term absence from, and stated inability to return to, Hong Kong.  Therefore, it is understandable that the Presiding Officer felt it appropriate to deal with the claim, even in the absence of the Defendant.

29.  However, simply because a defendant is absent to mount a specific defence to the relevant claim does not mean the Tribunal will unquestioningly accept the claim.  In this particular case, the Presiding Officer recognised that it was for the Claimant to prove his claim.  He allowed or required the Claimant to give evidence.  He also noted some of the points raised by the Defendant.

30.  But, with respect, within that approach there seems to me to have been little critical analysis of the claim and the materials available.

31.  First, as indicated, the Claimant was asserting a contractual right to the statutory minimum wage of $34.5 per hour, notwithstanding that he had a domestic helper’s contract and a domestic helper’s visa based on that contract.  Even if the Presiding Officer were to have accepted the allegation that the Claimant never received any payment, despite having signed receipts for payment, I do not think the failure to pay on a domestic helper’s contract gives rise to a legal entitlement to an hourly payment at the statutory minimum wage for persons who are not employed as domestic helpers under such a contract.

32.  To hold otherwise seems to me to be a clear error of law.  Further, if the Presiding Officer was really intending to hold that the Domestic Helper contract was a sham, I do not think he engaged in the necessary analysis to be able to do so, when he failed to address the various documents signed by the Claimant as well as the Defendant (and presented to the Immigration Department).  Nor is there really any analysis as to what would stand in place of a sham agreement and how any alternative (true) agreement instead came into being (though the assumption seems perhaps to have been that there would be some form of oral or implied agreement).

33.  The Claimant’s assertion that he never received any pay was also at least cast in doubt by his apparent contrary assertion to the Immigration Department that he had received (at least, but only) $2,000 per month – a fact specifically referenced in the TO’s memorandum, but not addressed by the Presiding Officer.

34.  The Claimant also asserted in his claim that he had no air ticket or travelling allowance.  But that was strongly disputed by the copy air ticket and boarding passes – for the journey from Hong Kong to Bangkok, and Bangkok to Lahore on 12 July 2018 – as well as the settlement agreement signed and fingerprinted by the Claimant.  Those documents are consistent with a domestic helper’s contract, and not some other form of employment reached on an oral or implied basis.  Copies of all of those documents (where it is difficult to doubt their authenticity, and where no doubt has even been expressed) were before the Presiding Officer, and had been referred to in the TO’s memorandum.

35.  Though, in his Reasons for Decision, the Presiding Officer referred briefly to the Defence filed by the Defendant, disputing the employment relationship, asserting employment of the Claimant as domestic helper, and referencing the settlement agreement in which the Defendant admitted he was the employer of the Claimant, the Presiding Officer does not seem to have taken the other matters of evidence into any account. That seems to me to be another error.

36.  Indeed, it is difficult to understand why a settlement agreement/receipt specifically referencing employment as a domestic helper, and settling payments by reference to what would be due to a domestic helper on termination of that employment, can somehow be taken against the Defendant as some kind of admission that he was employing the Claimant in some other capacity than as a domestic helper, in breach of which employment arrangements the Claimant would become entitled to the statutory minimum wage, calculated on the basis that he had never received any payment whatsoever.

37.  Nor does the Presiding Officer – when awarding unpaid wages up until 9 December 2018 – identify how he took into account the evidence that the Claimant had been required to leave, had been provided with a one-way air ticket to leave, and had apparently left, Hong Kong on 12 July 2018.

38.  Even in the absence of the Defendant, it seems to me that there were significant evidential materials available to the Presiding Officer which either (a) were wholly inconsistent with the Claimant’s claim, or at least (b) cast significant doubt on the claim.  But, they do not seem to have been addressed, and the conclusion as to what flows as a matter of contract seems to me to have been at least sufficiently arguably a serious error of law.

39.  As regards the subsequent applications for review of the original judgment, again – to an extent understandable in the continued absence of the Defendant – there does not seem to have been any independent re-assessment of the materials, so as to consider whether the original judgment might have been reached by way of some significant error.

E.   Result

40.  I can say I was less than impressed by the Defendant’s inability to have arranged any form of proper representation at the hearing of his application for leave to appeal, even assuming his inability to have appeared in person.  I also note that the stated ground of the application for leave to appeal focuses on the reasons for the Defendant’s prior absence, rather than on the proper approach in law to the materials already provided and available to the Tribunal (though that is perhaps the result of the Defendant’s continuing to act in person).

41.  But, this is not a case where the Defendant has in effect ignored the claim.  He engaged with the TO, provided the details of a defence, and produced a number of documents which were at least consistent with and capable of proving his defence (and which were equally inconsistent with or capable of disproving the claim).  A good number of those documents involve third parties, so can be viewed as not simply self-serving.  Further, the Defendant has at least said that he wishes to have been present, and to be present, to engage with the claim and to put forward his defence.  Though perhaps not to the full extent that the Defendant would wish, I do accept that there have been practical difficulties at least for him to travel himself to Hong Kong (even if not to arrange some legal representation instead).

42.  Nevertheless, overall and in the exercise of my discretion (a) on the materials, (b) on what seem to me to be sufficiently arguable prospects of demonstrating relevant errors, and (c) with a real sense of disquiet about the judgment so far reached, this seems to me to be a case where leave to appeal ought to be granted.

43.  Therefore, I grant leave to appeal.

44.  I make no order as to costs.