THE QUEEN v. GOBIND HUNDRAJ PARWANI

1987, No. 920

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HEADNOTE

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Employer failing to grant statutory holidays and rest day.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 920 OF 1987

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J U D G M E N T

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1. The appellant was convicted of two offences under the Employment Ordinance, Cap. 57, namely :-

(a) Failing, to grant his employee a statutory holiday on 25th December, 1986

(b) Failing to grant his employee a rest day between 19th -25th December, 1986

2. The only prosecution witness was the employee herself, Mrs Anina Fernandes. She is a native of Goa, where her husband and children live and where she was recruited as a domestic helper by the appellant.

3. In August, 1985, Mrs Fernandes was working in a hotel in Goa. She was introduced by the manager to the appellant, who offered her a job in Hong Kong. In the presence of her husband the appellant promised to pay her HK$500 (equivalent to 1000 rupees) a month and give her one day off a week. He gave her a piece of blank paper to sign. She took it away and, after she had signed and her signature had been witnessed by two cousins, she returned it to the appellant. She identified this document as the employment contract produced in court as Ex. P1. She later received this back by registered post from Hong Kong, all the particulars having been completed.

4. In November Mrs Fernandes went to Bombay, where she completed the necessary formalities-with the Indian Emigration Department, and obtained a medical certificate. Then she borrowed money for her airfare, as previously arranged with the appellant. Eventually she flew to Hong Kong on 25th January 1986.

5. The next day the appellant asked Mrs Fernandes for her passport, her copy of the employment contract and the loan receipt, which she gave him. He told her she must work according to instructions and she would get no holidays.

6. In March Mrs Fernandes asked the appellant for her wages. The appellant said, he would send the money to her husband if she would write a covering letter. In the course of the year the appellant sent 3000 rupees to her husband; she herself received nothing.

7. After three months of working without a holiday, she asked the appellant, one Sunday in March, if she could attend Mass. He agreed she could have from 4.00-7.00 p.m. off on Sundays. Throughout the year she had no holiday, or other time off work. She did housework from 6.00 a.m. till 1.00 p.m. daily. Apart from the three hours off on Sundays, she worked in the appellant's shop in Tsimshatsui from 1.30 to 6.00 or 7.00 p.m.

8. She was aware she was supposed to have one holiday a week. She told the appellant that, if she had to work on Sundays, she should get paid extras. He told her not to pursue the matter or he would send her back to India.

9. On Christmas Day Mrs Fernandes had the temerity to ask for the day off. The appellant refused and his son pushed her into a chair. She left the flat and pressed the lift button, but appellant manhandled her into the kitchen. She again asked for time off and the appellant finally agreed to let her off for three hours. She had been working from 6.00 until 10.30 a.m. When she reached the street she saw a police officer and made a complaint.

10. In cross-examination Mrs Fernandes admitted she and her husband had also signed a letter that the appellant had sent to her in Goa. After a short adjournment, she produced a letter typed under the letterhead of the appellant's import/export business (Ex. P2). It is dated 12th October, 1985 and sets out the terms of her employment, as already stated to her orally in Goa by the appellant, except there is no mention of holidays or time-off.

11. The appellant and his wife gave evidence for the defence. The appellant said that he and Mrs Fernandes had agreed on the terms of employment during their first meeting in the hotel in Goa : a two year contract, HK$1,800 a month, one day off a week, which would be Sunday. But she had fallen on her knees and begged the appellant and his wife not to disclose the salary to her husband, who was a drunkard, and asked them to send a letter from Hong Kong saying it was only 1000 rupees. The appellant agreed and subsequently wrote Ex. P2 on 2nd October, which he sent to her for signature, together with a covering letter (Ex. D1), in which he explains why he is doing it. Also, on 2nd October, he wrote another letter (Ex. D3) containing instructions concerning documentation, medical examination and her airfare. Strangely, he adds at the end that he is sending Ex. P2 for signature and gives instructions as to how she should sign and witness it. One would expect this instruction to have been included in the covering letter (Ex. D1), though it is remarkable that the appellant should have gone to such trouble and have put himself in a false position for a prospective employee. But the appellant says that five copies of the completed official employment contract (Ex. P1) had already been sent in early September to Mrs Fernandes for signature. The contract is stamped 25th September by the Labour Department in Hong, Kong. By that date it would have been signed by both parties. Mrs Fernandes' evidence was that she received Ex. P2 before the completed Ex. P1.

12. The appellant's evidence about the letters was extremely confusing but, so far as I can unravel it, the above is the gist.

13. The appellant said Mrs Fernandes had a holiday every Sunday. She used to leave the house at about 10.30 a.m., see friends in Statue Square, go to church and return after 9.00 p.m. On weekdays she worked from 8.00 a.m. until 1.00 p.m., when she brought the appellant his lunch in the shop. Between 3.00-5.00 p.m. she rested. The appellant's wife did all the cooking at home.

14. Mrs Fernandes received HK$1,800 every month in cash. In December she received her month's salary before Christmas from the appellant's wife. On Christmas Day she asked the appellant for money, but was told she had already been paid. He later scolded her because his wife told him she had caught the maid tampering with her purse. He warned her that there would be trouble if she did it again. She left the flat at 11.00 a.m. and returned later with a police officer, who said she had made a complaint of assault.

15. They all went to the police station and Mrs Fernandes was medically examined in Tang Shiu Kin Clinic. The police told the appellant it was a false report and asked if he was prepared to settle the matter. The appellant agreed, but Mrs Fernandes said she wanted to leave and she did not return.

16. In cross-examination the appellant admitted that Mrs Fernandes worked on all the other statutory holidays that year. The reason for this was that she had told the appellant she had no friends in Hong Kong and it was agreed she should have time off at the end of the year instead in order to visit her family. Presumably she was to pay her own fare.

17. The appellant also admitted that Mrs Fernandes had twice asked during the week before Christmas, and again on the morning of 25th, if she could have Christmas Day off. He was asked why she needed to ask more than once if permission had already been granted. He replied : "I don't know. She wanted to be sure".

18. The appellant's wife confirmed that Mrs Fernandes had a holiday every Sunday and did no work that day. She said that on 25th December Mrs Fernandes asked her for money. She told her she had already received her December pay. She later caught Mrs Fernandes opening a cupboard in her room and her son said she should be ashamed of herself. The appellant's wife then made breakfast, after which Mrs Fernandes left the house, only to return with the police 15 minutes later, alleging scolding and beating.

19. She also confirmed the appellant's evidence that Mrs Fernandes had been given a holiday on Sunday, 21st December. She was present when it was agreed that the statutory holidays should be accumulated.

20. In cross-examination, when she was asked if she had been surprised to find Mrs Fernandes in her room, she replied: "Saw her opening cupboard. She was nervous - was touching my purse, purse fell down on floor". She could not explain why she had not mentioned this in chief.

21. The magistrate found Mrs Fernandes to be a simple unsophisticated woman, who gave her evidence with noticeable sincerity. She found her an honest and credible witness and, having warned herself of the danger of acting on the uncorroborated evidence of a single witness, accepted her evidence unreservedly. She did not believe the evidence of the appellant and his wife. She summarised her view of the defence in these terms :-

"Appellant's account of employment contract and its beginnings I found entirely unconvincing. His explanation of the letter exhibit did not ring true nor did his explanation that all PW1's statutory holidays were to be taken together at the end of the year. His allegation of PW1 being found at his wife's purse, an account corroborated by his wife, I found to be an outright lie told to blacken the name of Mrs Fernandes."

22. The magistrate convicted on both summonses accordingly.

23. Mr Matthews, for the appellant, makes two principal points. He says the appellant went to the Magistrates Court expecting to hear evidence relating strictly to the two summonses and not to the formation of, the contract, to wages or to assaults. When it was his turn to go into the witness-box he was called upon to deal with a mass of extraneous evidence, rather than the simple issue of what happened during one week in December.

24. Mr Matthews submits this was crucial to the vital issue of credibility. In particular, the appellant was in possession of two letters written by Mrs Fernandes in September, 1985, which counsel has produced in this court, which indicate that she received the five completed copies of the contract (Ex. P1) in August. This shows, he says, that her evidence, that she saw the letter Ex. P2 before the completed contract, is untrue.

25. The appellant was represented by a solicitor at the trial, who apparently was not aware of these letters. The trial lasted all day. The appellant did not give evidence until after the lunch adjournment. The defence had ample time to consider that evidence should be produced to counter the prosecution case.

26. It is true that the first letter, dated 2nd September, contradicts Mrs Fernandes evidence. Mr Matthews makes a fair point when he says that, had she been cross-examined about this letter, the magistrate might have taken a different view of her credibility. But it is significant that the second letter dated 21st September, after acknowledging a letter from the appellant dated 10th September, and obviously in response to a request from the appellant, names the witness who "signed the blank contract forms". Since Ex. P2 was not signed and returned by Mrs Fernandes until 12th October, she must be referring to the official contract forms Ex. P1. This entirely corroborates her evidence that she signed these forms in blank and that the first written contract terms she saw were contained in Ex. P2. Although it is puzzling why the appellant should wish to know the names of the witnesses, this reference to signing blank forms may explain why the appellant did not tell his solicitor about these letters before the trial.

27. Even if Mrs Fernandes saw Ex. P1, in its completed form, before she received Ex. P2, it may not have registered that her agreement was different to the one entered into with the appellant in August in the hotel in Goa. She is a simple woman, as the magistrate found, whose evidence about documents may not be reliable.

28. I am unconvinced that the production of these letters would have had any significant effect upon the magistrate's view of Mrs Fernandes' credibility, or that the appellant was in any way prejudiced by the approach of the prosecution. His solicitor could have applied for an adjournment had he felt he was taken by surprise or otherwise prejudiced. He did not do so and I do not think it is open to the appellant to complain about it now.

29. Mr Matthews' other complaint has greater substance. He submits that the evidence relating to the formation of the contract, including in particular Mrs Fernandes wages - or lack of them - together with the assault evidence, was irrelevant and therefore inadmissible. It was also highly prejudical on the credibility issue, he says, because, if the magistrate disbelieved the appellant e.g. on the wages evidence, this may have affected his judgment on the holiday issue, which was the only one for decision.

30. Dealing with the question of the assault evidence first, counsel for the Crown is in my view correct in his submission that this was part and parcel of the events of 25th December and entirely relevant on the issue of whether Mrs Fernandes was being allowed to have a holiday that day. Just because a minor assault took place, it was not incumbent on the Crown to bring that charge in tandem with summonses under the Employment Ordinance, as Mr Matthews suggests it should have done had the assault taken place.

31. The evidence relating to the formation of the contract was also relevant in my judgment. S. 39 of the ordinance provides scope for negotiation regarding statutory holidays. The appellant's evidence that he and Mrs Fernandes had agreed that the statutory holidays should be accumulated, had it been accepted by the magistrate, would have amounted to a complete defence to the first summons. It was therefore open to the prosecution to lead evidence that the agreement contained no such term.

32. In doing so, it necessarily led evidence of peripheral matters, not important in themselves but which became a test of credibility. The magistrate was entitled to look at the evidence as a whole and form a view as to the credibility of the witnesses.

33. One of these matters was Mrs Fernandes wages. This is how the magistrate dealt with it :"The question of salary was not relevant to the summonses except for showing appellant's attitude to the contract and as an example of the way Mrs Fernandes was treated under it in Hong Kong. And again: "Although I accepted that Mrs Fernandes had had no wages all year except the sum of $1,500 I was not in fact required to make any such finding as the matter of salary was not the subject of the charge and would in any event be dealt with by the Labour Department".

34. Counsel for the Crown conceded that, although the evidence was not inadmissible, the magistrate was wrong to rely upon it as showing the appellant's attitude to the contract. He submits, nevertheless, that any prejudice that may have resulted was insufficient to have affected the magistrate's judgment.

35. Mr Matthews points out that proceedings in the Labour Tribunal have resulted in a settlement. A claim for HK$18,000 has been settled for 25 rupees. This proves does it not, he submits, that Mrs Fernandes' evidence about her wages is untrue? He fairly concedes that, after receiving legal aid, she is seeking to have this order set aside. This settlement, however, was reached before the trial. It is surprising that the appellant, when he heard the prosecution evidence about wages, did not mention the settlement when he went into the witness-box. He had a perfect opportunity to do so when he spoke of the police enquiry whether he was willing to settle the matter. It is remarkable also that he did not mention it to his solicitor, in order that the matter be put to Mrs Fernandes in cross-examination, which spanned the mid-morning adjournment.

36. The magistrate was aware that wages were not the issue. She was convinced Mrs Fernandes was a witness of truth and that the appellant was not. The evidence clearly shows the appellant was lying concerning the holidays. Had there been an agreement to accumulate statutory holidays, this should have been recorded. Nor would it have been left in the air who was to pay for Mrs Fernandes trip to Goa. Such an extravagance on her part was surely unthinkable. Would the appellant have been so generous? He would have been left in Hong Kong, for a couple of weeks with no maid and a large family to be looked after. Had Mrs Fernandes been worried about her family in Goa, she would surely have mentioned this to the appellant in Goa in August, 1985 and some arrangement could have been made. On this point there was also contradictory evidence from the appellant as to whether Mrs Fernandes met friends in Statue Square on Sundays.

37. The defence evidence about what happened on 25th December was so obviously untrue that I am sure the magistrate would inevitably have rejected it, even had she not let herself be influenced by the wages evidence. Finally, Mrs Fernandes had no reason to go to the police, throw up her job and go through so much unpleasantness, including giving evidence in court, unless she was telling the truth.

38. In these circumstances I have no doubt that the magistrate came to the right conclusion and I dismiss the appeal against conviction.