LY GIA NIEN v. The Personal Representative of SIR JOHN JOSEPH SWAINE, the Deceased

DCCJ 3748/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3748 OF 2013

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J U D G M E N T

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1.  This is a claim transferred from the Labour Tribunal.  The plaintiff claimed arrears of wages, wages in lieu of notice, severance payment, annual leave pay, end of year payment and contributions to the Mandatory Provident Fund in the total sum of HK$770,461.77.

2.  Mr John Joseph Swaine (“the Deceased”) died on 7 August 2012 in Malta.

3.  It is the plaintiff case that he had been employed by the Deceased as a clerk and personal assistant since 1 November 1982.

4.  The Deceased suffered from serious illness since the end of 2010 and stayed most of the time at home.  In about November 2011, he went to stay in Malta until he died.  During his absence from Hong Kong, the Deceased still relied on the plaintiff to take care of his personal affairs including attending to his correspondence and taking telephone calls in his Chambers.

5.  Since May 2011, the Deceased had not paid the plaintiff wages up to the date of his death.  The Deceased is indebted to the plaintiff arrears of wages in the sum of HK$274,064.51 as particularized below:

Particulars of Arrears of wages
Period	Monthly wages (HK$)
01/05/2011 – 31/05/2011	18,000
01/06/2011 – 30/06/2011	18,000
01/07/2011 – 31/07/2011	18,000
01/08/2011 – 31/08/2011	18,000
01/09/2011 – 30/09/2011	18,000
01/10/2011 – 31/10/2011	18,000
01/11/2011 – 30/11/2011	18,000
01/12/2011 – 31/12/2011	18,000
01/01/2012 – 31/01/2012	18,000
01/02/2012 – 29/02/2012	18,000
01/03/2012 – 31/03/2012	18,000
01/04/2012 – 30/04/2012	18,000
01/05/2012 – 31/05/2012	18,000
01/06/2012 – 30/06/2012	18,000
01/07/2012 – 31/07/2012	18,000
01/08/2012 – 07/08/2012	4,064.51 (18,000 x 7/31 = 4,064.51)

6.  The plaintiff claimed that he was entitled to one month wages in lieu of notice due to the termination of the employment by the death of the Deceased.

7.  The plaintiff also claimed the severance payment for the period from 1 November 1982 to 7 August 2012, particulars of which are as follows:

HK$18,000 x 2/3 x (29 + 281/366) = HK$357,213.11

8.  The plaintiff alleged that he was entitled to annual leave pay in the sum of HK$53,271.09. Particulars of which are as follows:

Period	Daily wages (HK$) x 14 days’ annual leave	Total (HK$)
01/01/2006 – 31/12/2006	(167,500/334) x 14	7,020.95
01/01/2007 – 31/12/2007	(213,500/366) x 14	8,166.66
01/01/2008 – 31/12/2008	(216,000/365) x 14	8,284.93
01/01/2009 – 31/12/2009	(216,000/365) x 14	8,284.93
01/01/2010 – 31/12/2010	(216,000/365) x 14	8,284.93
01/01/2011 – 31/12/2011	(216,000/366) x 14	8,262.29
01/01/2012 – 31/12/2012	(216,000/366) x 14 x (220/366)	4,966.40

9.  The plaintiff claimed end of year payment in the sum of HK$18,000 per year for the year 2010, 2011, and the sum of HK$10,819.67 for the year of 2012 (18,000 x 220/366). The total of which is HK$46,819.67.

10.  The claim for contributions to the Mandatory Provident Fund was withdrawn at trial. The plaintiff was given to understand that the Deceased had no assets in Hong Kong.  No one applies to be the personal representative of the estate of the Deceased (The Official Solicitor was appointed by court for the limited purpose of accepting service of the Writ of Summons on 22 August 2014).  There are complications in claiming the contributions to the Mandatory Provident Fund.  Usually it is the Mandatory Provident Fund Schemes Authority to conduct such proceedings.

11.  The plaintiff gave evidence in court and his evidence was not challenged.  I accept his evidence and grant judgment for the plaintiff for total sum of HK$749,368.38. Particulars of which are as follows:

Arrears of wages	HK$274,064.51
Wages in lieu of notice	HK$18,000.00
Severance payment	HK$357,213.11
Annual leave pay	HK$53,271.09
End of year pay	HK$46,819.67

12.  Interest is awarded for the arrears of wages pursuant to section 25 of the Employment Ordinance.  For other items, interest at the rate of 2% p.a. from the date the action was transferred to the District Court to judgment day and thereafter at judgment rate.

13.  There be order nisi that costs of this action be to the plaintiff, to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with legal aid regulations.  Unless there is application for variation, such order to be made absolute 14 days thereafter.