OLIVER KATHERINE QUEBEC v. LUI CHAN YEUNG

HCLA 26/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 26 OF 2011

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 694 OF 2011)

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BETWEEN

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D E C I S I O N

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1.  The applicant (claimant) is dissatisfied with the decision of the Labour Tribunal (“the Tribunal”) dated 23 August 2011 whereby the Tribunal dismissed her claim for wages with costs, and applies to this court for leave to appeal against the decision.

2.  The relevant parts of s. 32(1)(a), Labour Tribunal Ordinance (Cap. 25) provide:-

“If any party is dissatisfied with an award, order or determination by the tribunal on the grounds that the award, order or determination is ... erroneous in point of law ... such party may, within 7 days after the date on which the award, order or determination was served on him, … apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave” (emphasis supplied).

3.  The Tribunal’s decision was based effectively on its acceptance of the testimony of the defence witnesses and the rejection of the applicant’s witnesses.

4.  Such a finding is in the nature of a finding of fact.  Any challenge against such a finding is not one based on an error in point of law unless the finding is:-

(a)    perverse in the sense no reasonable tribunal properly directed can reasonably so find; and/or

(b)   against the weight of the evidence before the tribunal.

5.  The applicant’s grounds in this application (set out in a document headed “statement of appeal”) are in short:-

(1)   the Tribunal wrongly concluded that the employment agency (“the agency”) was a “duly appointed agent” within the meaning of s. 26(2), Employment Ordinance (Cap. 57) when there was insufficient evidence for such finding;

(2)   the only basis on which the Tribunal relied in support of the finding was the applicant’s failure to complain;

(3)   the Tribunal also failed to consider why the applicant’s former employer (“the employer”) asked the applicant to go to the agency to collect her wages;

(4)   further to sub-para. (1) above, a “duly appointed agent” within the meaning of s. 26(2), Cap. 57 has to be one appointed beforehand.  The evidence adduced could show at most that the applicant’s consent to collect her wages from the agency was given after the event;

(5)   the amount of costs awarded against the applicant ($8,000) was excessive and was intended to be a punishment.

6.  It is undisputed:-

(a)   the applicant was employed as a domestic helper from September to November 2010 (a period of about 3 months);

(b)   her wages were paid by the employer through the agency;

(c)   she acknowledged in writing at the agency her receipt of the wages on 3 different occasions.

7.  The ground of application summarized in para. 5(1) and (2) above is not entirely fair to the Tribunal.  The Tribunal’s conclusion was not based simply on the applicant’s lack of complaint (to the employer and/or the authorities).  First, there was the testimony of the defence witnesses (which the Tribunal accepted) to the effect the meetings at the agency in October and November 2010 were pre-arranged with the agreement of the applicant.  Secondly, the Tribunal found it incredible the applicant would repeatedly acknowledge in writing her receipt of the wages if her wages were in fact unlawfully deducted by the agency first in October and then in November 2010.

8.  Further, subsequent to the October 2010 meeting, the employer has good grounds for believing the applicant was happy with wage payment arrangement through the agency.  With this in mind, there was also good ground for the employer to infer that the same wage payment arrangement for November 2010 was accepted by the applicant. 

9.  By reason of the above matters, it is wrong to say that the Tribunal’s finding concerning the appointment of the agency as the applicant’s agent for collecting wages only occurred after the event (para. 5(4) above).

10.  In relation to the ground summarized in para. 5(3) above, the reasons given by the defence for meeting at the agency were different from the applicant’s.  The Tribunal prefers that version over the applicant’s.

11.  Further to paras. 7 to 9 above, the Tribunal observed, by way of obiter dictum, that s. 26(2), Cap. 57 is also well capable of including an agency created by ratification and/or by estoppel (which by definition has to take place after the event).

12.  The Tribunal also found that the agency had not deducted the applicant’s wages.  The finding was based (among other things) on the Tribunal’s rejection of the applicant’s case because of various differences in the factual accounts given in the applicant’s witness statements and testimony, as well as its acceptance of the testimony of the defence witnesses.

13.  None of the above can properly fall within the error referred to in para. 4 above.  The application for leave to appeal relating to the applicant’s claim for wages is accordingly refused.

14.  In relation to the application for leave to appeal against costs, the Tribunal has given the following reasons for awarding what on its face was an unusually large amount of costs:-

(1)   the hearing had been adjourned a number of times due to the applicant’s absence without cause;

(2)   the applicant’s late application for subpoena;

(3)   the need for repeated translation of the documents to the applicant.

15.  A costs award made by the Tribunal was an exercise of its discretion.  The appellate court should not intervene with the discretion purely because it would not have so exercised the discretion; there must be properly grounds for doing so: the order was either unreasonable or it was caused by an error in law (that is, it either failed to take into account relevant matters or took into account irrelevant matters).

16.  There is insufficient evidence to show such was the case.  Consequently, the application for leave to appeal against costs is also refused.

17.  The applicant also requested for a copy of the transcript of the Tribunal hearing.  In view of the main grounds she put forth in this application (which are summarized in para. 5(1) to (5) above), there is no valid reason for the request.