HKSAR v. YU'S TIN SING ENTERPRISES CO. LTD.

HCMA986/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.986 OF 2001

(ON APPEAL FROM KTCC 9277-9284 OF 2001)

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J U D G M E N T

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1. The appellant was convicted by Deputy Magistrate P.Y. Lo sitting at Kwun Tong Magistracy on 17 August 2001 of eight summonses and on each summons was fined $3,000. It now appeals against the convictions.

2. The summonses were all laid under section 39 of the Employment Ordinance, Cap.57 ("the Ordinance") and alleged that the appellant being the employer of the two employees mentioned in each summons, did without reasonable excuse, fail to grant to the said employee a holiday which it was required to grant under section 39. The two employees were called to give evidence for the prosecution as PW1 and PW2 and the holidays which were withheld were, in respect of each employee, Christmas Day 2000, the first day of January 2001, the second day of Lunar New Year 2001 and the third day of Lunar New Year 2001.

3. The place of employment was in respect of each employee the public toilet at Chun Wah Road, Ngau Tau Kok, Kowloon. The evidence was that this toilet had to remain open the whole year round for the public to use.

4. PW1's evidence was that he was paid a monthly salary of $7,800. When he took holidays, the appellant paid him extra money for him to employ substitute workers. Under section 39(1) one of the statutory holidays was the Chinese Winter Solstice Festival or Christmas Day, at the option of the employer. PW1's evidence was he worked on 21 December 2000 (Chinese Winter Solstice Festival), Christmas Day 2000, 1 January 2001, the second day of Lunar New Year 2001 (25 January 2001) and the third day of Lunar New Year 2001 (26 January 2001). However, he said he was given a holiday on one day in November 2000 and on one day in December 2000 and on 17, 18 and 19 April 2001. He said he had requested these days off but he was told only one or two days before the requested holiday whether he could take it and he had to find the substitute worker. He said he preferred to nominate the substitute worker because he would find someone whom he knew and who was in the same line of work so that that person would do the work properly and not leave behind a lot of undone work.

5. PW2's evidence was that she would be told when to take holidays each month and she did not have to work on normal public holidays. If she took holidays, she had to find a substitute worker. She said she had to work on 21 December 2000 (Chinese Winter Solstice Festival); she could not remember if she worked on Christmas Day 2000; on 1 January 2001, she had to work, but she was given a holiday on one day subsequent to that; and she had to work on the second and third days of Lunar New Year 2001. However, she said that she was given subsequent holidays to make up for those four days that she had to work, but she could not remember when those replacement holidays were. These replacement holidays were sometimes taken one week and sometimes a few days after the statutory holidays. On days when she was on holiday, she did not have her salary deducted. She was able to say that the appellant company did not owe her any holidays; also whenever there was a public holiday, if she asked for a holiday, on most occasions she would be granted the holiday. Sometimes when she went on holiday, she would get her colleagues or friends to come and help her do the cleaning work.

6. Under section 39, if an employer did not grant a statutory holiday to his employer, he may grant him what is described in the Ordinance as an alternative holiday or a substituted holiday. An "alternative holiday" is defined in section 2 as a holiday granted or to be granted under section 39(2) and (2A) and a "substituted holiday" is defined in the same section as a holiday granted or to be granted under section 39(3).

7. Under section 39(2) the alternative holiday has to be within the period of 60 days immediately preceding or next following the statutory holiday and the employer has notified the employee, either orally or in writing or by notice posted in a conspicuous place in the place of employment, of the day on which the employee will be granted the alternative holiday. There is no requirement of when the notice has to be given to the employee and in my view, a pre-condition that the employee has to find or help find a substitute worker does not nullify the holiday to be granted.

8. Under section 39(3) the employer and employee may agree that another day shall be substituted for a statutory holiday or an alternative holiday if such substituted holiday falls within the period of 30 days of such statutory holiday or alternative holiday. I note that in this subsection, there is no provision and hence no requirement for any notices and in my view, the only requirements are the agreement between the employer and employee and the substituted holiday falling within 30 days of the statutory or alternative holiday. Therefore, it seems to me that if the substituted holiday were to be in substitution for an "alternative holiday" under subsection (2), the maximum period when the substituted holiday has to be taken is 90 days from the statutory holiday as under subsection (2) the "alternative holiday" can be within a maximum of 60 days immediately preceding or next following the statutory holiday.

9. The evidence of PW1 and PW2 was very sketchy and unclear and lacking in details. What details that could be culled from their evidence has been mentioned by me above. From their evidence, it is impossible to say whether the days that they were given to replace the statutory holidays were simply notified to them by the appellant or were days which were decided upon after agreement between the appellant and PW1 or PW2 as the case may be. If there was evidence in the prosecution case which raised a reasonable possibility of the appellant being able to rely on either "alternative holidays" under subsection (2) or "substituted holidays" under subsection (3), then it was incumbent on the magistrate to acquit on all charges. If one applied the 90-day rule as explained above, there is, in my view, plenty of room for doubts on whether the appellant is guilty of any of the eight summonses. It was, in my view, wrong of the magistrate to find that subsections (2) and (3) were or similar to, negative averments and therefore required proof from the defence.

10. In view of what I have said above, the appeals against all these convictions must be allowed. The convictions are quashed and any fine which has been paid has to be returned to the appellant.