CHINA TECHNOLOGY CORPORATION LTD v. RANA NETRA KUMARI

HCSA37/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 37 OF 2016

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO. 2160 OF 2016)

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D E C I S I O N

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1.  The applicant, Madam Kumari, is the defendant in the case of SCTC 2160/2016 in the Small Claims Tribunal. She is seeking leave to appeal against a judgment of Deputy Adjudicator, Ms Shannon Leung, made on 18 October 2016 upon review of her judgment made on 14 July 2016.

2.  Madam Kumari is an employee of the claimant, working in the Admiralty extension construction site of the MTR.  The Deputy Adjudicator ordered her to repay the claimant HK$10,600 which was overpaid to her as tunnel allowance. 

3.  The employment contract did not specify the circumstances under which a tunnel allowance would be paid.  When entering into the employment contract, there was an oral agreement between the claimant and the defendant on the tunnel allowance.  However, the contents of the oral agreement are in dispute. 

The claimant’s case

4.  The claimant’s case is that the tunnel allowance would be paid to the employees who worked in the tunnel area.  The defendant was at all material times aware of where the tunnel area was.  Workers entering the construction site had to first pass through a main entrance by swiping their staff cards and imprinting their handprints.  After passing through the main entrance, there were, inter alia, the following areas.

(a) An office area.

(b) A station box.

(c) The tunnel area.

5.  The tunnel area was fenced off.  There was a separate gate and counter at its entrance.  The workers had to register and present a circular aluminium plate as identification before being allowed to enter the tunnel area.  At all material times, the computer records showed that Madam Kumari had only worked in the office area and the station box, but not in the tunnel area.  Therefore, she was not entitled to the tunnel allowance.  The claimant paid her the sum of $10,600 from 1 March to 31 August 2015 as tunnel allowance by mistake because of the heavy workload of its accounts department and the difficulties in checking the names of its Nepali employees.

6.  The claimant further asserted that the defendant was not authorised to work in the tunnel area and she did not possess the circular aluminium plate necessary to access the tunnel area.  Thus, she was not allowed to and should not have entered or worked in the tunnel area.

Madam Kumari’s case

7.  Madam Kumari’s case is that upon signing the employment contract, the claimant told her that she would be entitled to the tunnel allowance and she had to work underground.  She admitted that once she had passed through the gate to the station box, there was no separate entrance to the tunnel area.  She said she had worked both in the station box and the tunnel area.  Thus, she was entitled to the tunnel allowance.

The factual analyses of the tribunal

8.  The Deputy Adjudicator analysed the evidence as follows.  Madam Kumari had suggested in her witness statement that when she signed the employment contract, the claimant told her that as her job required her to work underground, the tunnel allowance would be provided to her. However, she gave another version in oral evidence.  When she was cross-examined, she said that the claimant had instead told her that she would be entitled to the tunnel allowance whilst employed by the claimant regardless of where she had to work.

9.  Secondly, in her witness statement, she said that she had worked in both the station box and the tunnel area.  Therefore, she claimed to be entitled to the tunnel allowance.  However, she said in oral evidence that the tunnel area was marked in her photo D13 which she had not entered into and that was the tunnel area.  She also added that once she had got close to the fence of the tunnel area, the safety officer had told her not to get close to that area.

10.  Furthermore, the computer records, which she had accepted to be correct and accurate, also recorded that she had not worked in the tunnel area.

11.  Furthermore, she had also said in her witness statement that after she had entered the construction site, she had worked in both the station box and the tunnel area and there was no need to pass through any gate and there was no separate entrance for the tunnel area.  However, she said in oral evidence that the tunnel area was fenced off and workers had to go through another gate and registered at a booth before they could entered the tunnel area which was depicted in her photo D13.

12.  In view of these inconsistencies and contradictions, the Deputy Adjudicator did not find Madam Kumari a creditable or reliable witness.  Instead, the Deputy Adjudicator accepted the evidence of the claimant witness, Mr Poon, which was consistent throughout and supported by the computer records.

The factual findings and order of the tribunal

13.  The Deputy Adjudicator thus made the following factual findings:

(a)    At the material time, the claimant had told Madam Kumari and Madam Kumari had agreed that the tunnel allowance would be given if she had to work in the tunnel area and Madam Kumari was aware of where the tunnel area was.

(b)  At all material times, Madam Kumari had not worked in the tunnel area.

(c)   The claimant paid the tunnel allowance of $10,600 to Madam Kumari by mistake.

14.  Hence, the Deputy Adjudicator ordered her to repay the said sum.

The law on granting of leave to appeal

15.  Section 28 (1) of the Small Claims Tribunal Ordinance, Chapter 338 provided that the Court of First Instance can grant leave to appeal on points of law or jurisdiction.  The findings of the Deputy Adjudicator are all on matters of fact.  No leave to appeal can be granted on these findings.

16.  Mr Leung, counsel for Madam Kumari, in his written submissions suggested that the finding of facts by Deputy Adjudicator is perverse or irrational and I do not agree with such submissions.  Mr Leung also submitted that there is nothing in the employment contract that had provided on how the tunnel allowance was paid.  But that was not the evidence of Madam Kumari before the tribunal.

Jurisdictional challenge

17.  Madam Kumari has another point which was made on her application to review the tribunal’s findings.  This point is repeated in this application.  It is a jurisdiction point.  Mr Leung says that the claim by the claimant is within the scope of the schedule of the Labour Tribunal Ordinance.  Hence, the claim should have been brought before the Labour Tribunal and the Small Claims Tribunal did not have jurisdiction to entertain this claim. 

18.  The schedule of the Labour Tribunal Ordinance provides under paragraph 1 for a claim for a sum of money which arises from the breach of a contract of employment or the failure of any person to comply with the provision of the Employment Ordinance to be brought in the tribunal.  The claim by the claimant here does not fall within this paragraph.  It is a claim, as rightly observed by the Deputy Adjudicator, for money had and received by Madam Kumari.  Hence, it is not within the jurisdiction of the Labour Tribunal but within the jurisdiction of the Small Claims Tribunal.

19.  There are other paragraphs in the schedule of the Labour Tribunal Ordinance, but they provide for claims under various parts of the Employment Ordinance and have nothing to do with the claimant’s claim herein.

Order on this application

20.  In the premises, I dismiss the application for leave to appeal.