SOBREVILLA RHENNIE BOY FERNANDEZ v. CHUA GRACE GONZALES

HCLA 7/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 7 OF 2015

(ON APPEAL FROM LBTC 2466/2014 c/w LBTC 1987/2014)

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J U D G M E N T

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1.  This is an application by the claimant for leave to appeal from a decision of the Labour Tribunal to the Court of First Instance.

Claimant’s case

2.  The claimant’s case, according to his written statements, was that one Mr Lalaan, who was a pastor of a church in Hong Kong, arranged for an employment contract for him to work in Hong Kong, after his mother and sister (who were both working in Hong Kong) had together paid $18,000 to Lalaan as fees to find him a job.  He had to sign an employment contract in blank.

3.  Subsequently, the claimant was given to understand that he would be working as a domestic helper for the defendant under DH Contract No J180655.  The date of 30 May 2013 was inserted as the date of the contract. 

4.  The claimant arrived in Hong Kong on 13 February 2014 to work on that contract.  He was fetched at the airport by a lady called Julie who was the domestic helper of Lalaan.  He was brought to a workers’ shelter connected with Lalaan’s church.  He said he waited there but Lalaan made no arrangement for him to see the defendant.

5.  The claimant said he finally met the defendant at the church on 23 February 2014 but she fobbed him off.  He kept asking the defendant and Lalaan when he could start work but they kept telling him to wait.

6.  On 9 March 2014 the defendant took the claimant and Julie to the defendant’s residence and asked him to estimate how much it would cost to replace the balcony tiles.  Then the defendant took them to a restaurant and paid the claimant one month’s wages of $3,920 and food allowance of $920, though she did not mention at the time whether she was terminating the contract.

7.  A few days later the defendant met the claimant, his sister and mother at a restaurant in Yuen Long and confessed she had been paid $9,000 by Lalaan to enter into the employment contract with the claimant but in fact had no real intention to employ him.  The defendant told the claimant she needed to terminate his contract as her attempt to sign a contract with another domestic helper had been delayed because Lalaan had failed to find the claimant another employer.

8.  On 14 March 2014, the defendant asked the claimant to sign 2 receipts, namely: (1) Receipt dated 28 February 2014 — for his wages for 12 to 28 February 2014 [Document C2]; and (2) Receipt dated 1 March 2014 — for WILON and travel and food allowance and cost of air ticket [Document C3]. Both receipts acknowledged that the claimant’s employment was terminated.  The claimant initially refused to sign them but agreed to sign when the defendant told him she was not really terminating the contract and that the documents were needed for their protection in case the claimant was stopped and questioned by the police.

9.  On 16 March 2014 the claimant confronted the defendant and Lalaan at a church gathering.  Lalaan became angry and evasive and said he was “washing his hands” of the whole situation.

10.  On 18 March 2014 the claimant was advised by a support group that he was entitled to treat the contract as having been constructively terminated on 14 March 2014.

11.  The claimant then lodged a claim (LBTC 1987/2014). The matter was referred to the Minor Employment Claims Adjudication Board.  The claim was erroneously confined to air passage and travel allowance in the total sum of $2,700.  The claimant signed a settlement agreement with the defendant for $1,000 in June 2014 as he felt he had no choice but to accept it.

12.  After further consideration, the claimant lodged a new claim in the Labour Tribunal (LBTC 2466/2014).  The claimant claimed a total of $94,080, being (1) $3,920 (monthly wages) x 23 months (13 March 2014 to 12 February 2016) = $90,160; and (2) $3,920 being wages in lieu of notice.

Labour Tribunal’s decision

13.  On 6 February 2015, after a trial that spanned many sittings, Ms Jocelyn Leung, Deputy Presiding Officer of the Labour Tribunal, decided to dismiss the claimant’s claim and to award a small sum of costs to the defendant.  On 1 April 2015 her Reasons for Decision were handed down. 

14.  The witnesses who gave evidence included the claimant, his sister and mother, the defendant and her husband, and Lalaan. The Deputy Presiding Officer noted various aspects in which the claimant gave answers in oral testimony, especially under cross‑examination, which were at variance with his original case: see §§18–19, 20, 26–27, 32–34, 36, 40, and 44–45 of the Reasons.  She concluded that he was not a reliable and credible witness (§163). 

15.  Likewise, the Deputy Presiding Officer did not accept the evidence of the sister and mother (§§164–170).  She also found the defendant’s evidence unsatisfactory and did not rely on it except in relation to matters that were consistent with the contemporaneous documents (§174).  Nor was she impressed by the evidence of the defendant’s husband and Lalaan.  In the case of the latter, she concluded he was not a credible witness (§§176–178).

16.  The Deputy Presiding Officer decided to rely primarily on the contemporaneous documents together with certain admissions of the parties (§179).  She noted at §§31–34 that in addition to the two receipts, there were 3 other documents all dated 1 March 2014 which the claimant also signed or countersigned, namely: (1) a letter from the defendant to the claimant stating she was giving him a month’s salary up to 30 March 2014 in lieu of notice [Document C4]; (2) a letter from the defendant to the Immigration Department to the same effect [Document C5]; and (3) a standard form Notification of Termination of Employment Contract with Foreign Domestic Helper stating the contract termination date to be 30 March 2014 [Document C6].

17.  The Deputy Presiding Officer concluded that the claimant failed to make out his case that the employment contract was a sham, that he was the victim of human trafficking, and that there was a conspiracy between the defendant and Lalaan (§§187–192).

18.  The Deputy Presiding Officer placed much weight on the 5 documents (C2–C6).  She did not find any ground on which the claimant could impugn or disown those documents which he signed (§197).  She appears to have accepted the defendant’s evidence that Documents C3–C6 were signed on 1 March 2014 (§§198–199).  At §199, she found that: (1) notice of termination was given by the defendant to the claimant on 1 March 2014; (2) the last date of the notice was 30 March 2014; (3) one month’s salary up to 30 March 2014 was paid to the claimant. Accordingly, she found that whether it was termination by giving one month’s notice or by paying WILON, the defendant had fulfilled her obligation.  On that basis, she dismissed the claimant’s claim.

Grounds of appeal

19.  An appeal from the Tribunal to the Court of First Instance is limited to errors in point of law and excesses of jurisdiction: see s 32 of the Labour Tribunal Ordinance (Cap 25).  On this application Mr Marwah who appeared for the claimant advanced three grounds. 

20.  The first ground concerns the standard of proof.  At §§10 & 192 of her Reasons, the Presiding Officer said:

“10. In the present case, serious allegation was made against the Defendant for conspiracy to defraud and human trafficking. Insofar as such serious allegation is concerned, I will adopt a standard of proof more serious than balance of probabilities, and is proportionate to the allegation just mentioned. For the other allegations in this case, civil standard ie balance of probabilities is adopted as the standard of proof.

…

192. For this issue, the allegation concerned is a serious one and the burden of proof was on the Claimant, I am not satisfied that the allegation is proved on evidence.  I have also considered the test on standard of proof of disciplinary proceedings under Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 and Registrar of the Hong Kong Institute of Certified Public Accountants v Chan Kin Hang, Danvil [2014] 1 HKLRD 723.  Even such test was adopted, the Claimant failed to prove his case on evidence.”

21.  The manner in which the Deputy Presiding Officer expressed herself at §10 is, with respect, open to criticism.  There are two standards of proof in our law: proof beyond reasonable doubt applicable in criminal proceedings and proof on the balance of probabilities applicable in civil proceedings.  It is clear that the proceedings before the Deputy Presiding Officer were civil in nature.  In such proceedings even if serious allegations amounting to accusations of criminal conduct are involved, the standard of proof remains the civil standard, though the evidence must be commensurably cogent and compelling before the court will find the allegations proved.  All this is now well established: see the two cases of Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 and Registrar of Hong Kong Institute of Certified Public Accountants v Chan Kin Hang Danvil [2014] 2 HKLRD 723 cited by the Deputy Presiding Officer at §192 of her Reasons.  It is therefore unfortunate that in §10 she referred to adopting “a standard of proof more serious than balance of probabilities”.  Insofar as this suggests a higher standard of proof than the civil standard, it is erroneous in law.

22.  But the matter does not stop there.  In the latter part of §192, the Deputy Presiding Officer made it clear that even if the standard of proof in disciplinary proceedings discussed in the two cases cited (ie the civil standard) was applied, the claimant had still failed to prove his case on the evidence.  Since the Deputy Presiding Officer had actually applied her mind on the basis of the civil standard discussed in those two cases and expressed the finding, albeit as an alternative position, that the claimant had not proved his case on that lower standard of proof, the error of law in §10 is in my view inconsequential. In these circumstances it would be pointless to allow the appeal and remit the case to the Tribunal for it to apply the correct standard of proof. Accordingly, I consider that leave to appeal should not be granted on Ground 1.

23.  The second ground, as stated in the application, is that the Deputy Presiding Officer failed to consider and wrongly excluded all of the oral evidence of the claimant and his witnesses and failed to give a “lies direction” to herself.  In his skeleton argument, Mr Marwah submitted that the fact that a witness has lied (or is mistaken) about some matters does not mean that he or she has lied (or is mistaken) about everything.  He submitted that the Deputy Presiding Officer had excluded the evidence of the claimant, his sister and mother en masse without exception.  The error of law, he submitted, was that the Tribunal failed to consider whether weight could be placed on any aspect of their evidence that was reliable and consistent, and failed to give herself a “lies direction”.

24.  I do not think that there was any need for any express “lies direction” in a case such as the present.  The Deputy Presiding Officer was not trying a criminal case with a jury where there was a risk that a conclusion that the defendant was not telling the truth might be used as a pointer to guilt: see Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 on lies direction generally.  Nor can I see any basis to think that the Deputy Presiding Officer concluded that the claimant had lied about everything because he had lied on something.  It seems to me that the Deputy Presiding Officer found the claimant not a reliable and credible witness, not by virtue of any impermissible reasoning, but because she was distinctly unimpressed by the inconsistencies and contradictions in his evidence.  She gave a number of instances where his evidence was inconsistent and self‑contradictory, stating they were merely “examples” (§163).  Given the seriousness of his allegations against the defendant and Lalaan, the Tribunal had to consider whether the claimant’s evidence provided sufficiently cogent support.  It should be noted that, as I have stated above, ultimately she also found the other witnesses including the defendant’s unreliable.

25.  Whether or not she found a witness reliable and credible is a matter peculiarly within the Deputy Presiding Officer’s province.  I do not agree with Mr Marwah’s oblique suggestion at all that she had failed to analyse the material points in the evidence and to explain her conclusions with adequate reasons.  She clearly paid close attention to the way in which the claimant’s oral evidence differed from his witness statements (see §14 above) and she gave numerous examples of the inconsistencies which cast doubt in her mind on the reliability of his evidence (§163).  She also explained her reasoning adequately in relation to the sister’s and mother’s evidence.  An appeal to this court has to be directed at an error of law and none has in my view been arguably demonstrated.

26.  In the application and in counsel’s skeleton the claimant referred to the various examples the Deputy Presiding Officer gave of the unsatisfactory aspects of the evidence, and sought to argue, with reference to the oral evidence as recorded in the transcript, that the Deputy Presiding Officer “failed to adequately evaluate the evidence of the Claimant and his witnesses, erroneously citing ‘inconsistencies’ and ‘contradictions’ that did not warrant their exclusion”.  Complaints were raised based on the explanations given by the claimant.  I have gone through those matters but I do not think any point of law has been identified at all.  The appeal to the High Court is not an opportunity for a re‑hearing or a re‑trial of the facts.

27.  Accordingly, I see no prospect in the second ground which must also be rejected.

28.  Thirdly, it was submitted that the Deputy Presiding Officer erred in failing to inquire into the issue of misinterpretation raised by the claimant.  The claimant’s evidence was given in Tagalog which was translated into English.  In his supplementary statement dated 10 November 2014 at §14 — submitted in the middle of the case — it was said that his “McKenzie friend”, who had been present from the first day of the hearing, informed him that the interpretation provided by the first Tagalog interpreter was so poor that some of the questions by the Deputy Presiding Officer as well as many of the claimant’s answers were translated incorrectly or inaccurately.  It was said that it became necessary for the adviser to take notes to record those errors.

29.  The Deputy Presiding Officer did inquire at the next hearing (held on 11 November 2014) whether the claimant had any examples of the misinterpretation whereupon the claimant simply said he did not remember (he did not say he could not provide any example because he did not understand both languages, as counsel submitted).  Nor did the claimant revert with any example in any of the many subsequent hearings. 

30.  On this application the claimant contended that the Deputy Presiding Officer should have made direct inquiries with the McKenzie friend or requested to see her notes.  I disagree.  A McKenzie friend has no right of audience.  The tribunal generally does not enter into any direct dialogue with him or her: Ho Lan Fong v Lam Gook t/a Lam Tai Hing Restaurant [2004] 3 HKLRD 47 at §§39–40.  There is no suggestion in this case that the McKenzie friend was prevented from giving assistance to the claimant in responding to the Tribunal’s question about alleged misinterpretation either on 11 November 2014 or thereafter, or from providing to the claimant the notes of errors she allegedly took.  Common sense would suggest that having alleged there was misinterpretation, the claimant should be prepared to substantiate his allegation with particulars within a reasonable time if not immediately.  There is no explanation at all, given it was said the McKenzie friend had made a note, why no attempt was ever made to draw any concrete instance of alleged misinterpretation to the attention of the Deputy Presiding Officer.

31.  I reject the nonsensical suggestion made on behalf of the claimant that in these circumstances the Tribunal was under a duty to investigate the audio recordings of previous hearings with the assistance of a new interpreter, when the claimant (assisted by his McKenzie friend) was not even able to tell the Tribunal any allegedly misinterpreted question or answer.

32.  Nor did the claimant point out any misinterpreted question or answer in this application for leave to appeal. Mr Marwah submitted that on an appeal the claimant was barred from adducing new evidence such as a new translation of any question and answer, but there is nothing to stop the claimant from at least identifying the evidence which he said was misinterpreted so that the court could assess the materiality of that evidence.

33.  For these reasons I do not think the third ground is arguable at all.

34.  The claimant’s application for leave to appeal must accordingly be dismissed.  I make an order nisi that the claimant’s costs be taxed in accordance with the Legal Aid Regulations.