NESTOR TANO v. TANG HIN MING

Labour Tribunal Appeal No. 95/1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The appellant was given leave to appeal in this matter on 8 September 1995. When the matter came before me on appeal on 17 November 1995, neither party was represented. I explained the situation to the parties. Understandably, neither of them had anything to say on the law. I told them that I would read the papers, and then hand down a written decision on whether or not the matter should be remitted to the Labour Tribunal.

2. The story is a confused one. The appellant says that he worked for a Mr Chan in a restaurant and then for a Mrs Chan. On 4 June 1994, he was dismissed by Mrs Chan. He did not know the respondent until he met him at the Labour Department reconciliation meeting, although his employment contract was with him. The respondent says that the appellant worked for him from 24 January 1993. He paid him. The appellant's work performance became poor around March/April 1994. Towards the end of May 1994, the respondent tried to get the appellant to sign a document acknowledging one month's notice of termination. The appellant refused to do so. From that time, the appellant made excuses not to work. The respondent says he lost touch with him after 11 June 1994.

3. The appellant was given leave to appeal on the following points -

a) whether or not the contract with the respondent was a "sham";

b) whether the presiding officer could reject the evidence of all parties; and

c) whether in law it was the respondent who was in breach of the agreement.

4. It does not seem to me that a finding in favour of the appellant on points a) and c) will assist him in view of the fact that the presiding officer found, on a sound basis, it seems to me, that he was not told the truth by the appellant or the respondent. If he was unable to accept the evidence on either party, then of course he was entitled to say so, and dispose of the case accordingly. It is not the law, as I understand it, that a judge is bound to accept the case of one party or another. If he cannot do so, as here, then he cannot do so, and the onus will decide the case.

5. It is true that the presiding officer found that he should not enforce the contract because the appellant came to work as a domestic worker and did not do so. It does not matter whether he was right or wrong on this point, because, if he could not find where the truth lay, he could not find for the appellant or the respondent.

6. Whether or not the respondent was in breach was a matter of fact. The presiding officer found that he could not believe either party, so how could he find who was in breach?

7. Essentially, the appellant lost his case because the presiding officer did not know who to believe. This is a matter of fact. I cannot interfere with this finding. I will say, however, that having read the papers, this is a conclusion with which it difficult to disagree.

8. The appeal is dismissed.