DE LEON MARIBEL RAMOS v. AUREA C RAMIREZ

HCLA 75/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR APPEAL NO. 75 OF 2004

(On appeal from LBTC 1877 of 2003)

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DECISION

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1.  This is the claimant’s application for leave to appeal against the decision of the Deputy Presiding Officer made on 21 June 2004, dismissing her application for review with no order as to costs.

2.  On 4 March 2003, the claimant commenced proceedings in the Labour Tribunal claiming against the defendant 15 months’ of arrears of wages and food allowances, annual leave pay, statutory holiday pay, travelling allowance and air fare. 

3.  Briefly put, the claimant’s case is that she was employed by the defendant as a domestic helper under a foreign domestic helper contract that commenced on 13 September 2001, and her employment was terminated on 31 December 2002.   The claimant claims that the defendant had throughout the employment, failed to pay her any salaries or food allowances, or grant her any annual leave or statutory holidays.  She also claims that the defendant and her husband had forced her to take loans from finance institutions for their own use.  

4.  The defendant denies there was any employment between her and the claimant.  Her case is that although she did sign the foreign domestic helper contract in question, the claimant had never worked for her under the contract.  Instead, the claimant had been working in pubs and nightclubs, and she only stayed in the defendant’s house.  According to the defendant, she agreed to the arrangement because she was heavily indebted to the claimant. 

5.  The claim was tried on 27 May 2004.  The Deputy Presiding Officer heard evidence from the claimant and the defendant and their witnesses.  He disbelieved the claimant and her witness, finding their evidence incredible.  He considered the defendant and her witnesses credible and accepted their evidence.  On this basis, he dismissed the claimant’s claim and made no order as to costs.  On 1 June 2004, the claimant applied to review the decision.  On 21 June 2004, the Deputy Presiding Officer heard the application and dismissed it. On 25 June 2004, the claimant made the present application for leave to appeal.

6.  Under section 32 of the Labour Tribunal Ordinance cap. 25, appeals from decisions of the Labour Tribunal are only permitted where a point of law or jurisdiction is involved.  The claimant must therefore demonstrate that her intended appeal involves an arguable point of law or jurisdiction before the court can grant leave to appeal.

7.  In her application for leave to appeal, the claimant made two points.  The first is that the defendant had failed to appear at the first five hearings at the Labour Tribunal. The second is that the “evidence given by the witness for the defendant was not known by the claimant”. 

8.  It is a fact that at the hearing on 12 February 2004, the defendant was absent and judgment was entered against her in her absence.  Subsequently on the defendant’s application, the ex parte judgment was set aside and the defendant was allowed to defend the claim.  These steps were all in accordance with the procedure set out in the statute.  The claimant has also not pointed to any procedural irregularity.  There is nothing in this point.

9.  As to the second point, the claimant had elaborated on this at the hearing before this court.  What she meant was that she did not know the witness and did not know what she was talking about.  The claimant had also at the hearing repeated her claim and her case in some details.  She reiterated that the defendant had been untruthful, had used her in obtaining loans, and that she was indeed employed by the defendant.  In short, the claimant is contending that her version of the events should have been accepted whereas that of the defendant ought to have been disbelieved.

10.  Primarily, the main issue in this claim is whether there was a genuine employment relationship between the claimant and the defendant.  This is essentially a question of fact that turns on a finding of credibility of the parties and their witnesses.  It is for the Deputy Presiding Officer, after hearing and assessing all the evidence, to come to a determination as to which version of the events to believe and to accept.  The Deputy Presiding Officer had decided to prefer the evidence of the defendant and her witnesses to that of the claimant and her witness, and he had given reasons for coming to that view.  The claimant’s intended appeal is in substance a challenge of the Deputy Presiding Officer’s findings of credibility and fact.  This is outside the permitted scope of appeal under the Labour Tribunal Ordinance.  It should also be noted that in any case, it is only in very exceptional cases that an appellate court will interfere with the factual findings of a first instance tribunal.

11.  The claimant has failed to show that her intended appeal involves any point of law or jurisdiction, let alone an arguable point of law or jurisdiction.  In the circumstances, her application for leave to appeal is dismissed.