LILIK ANDAYANI v. CHAN OI LING

CACV 104/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 104 OF 2000

(ON APPEAL FROM HCLA NO. 96 of 1999)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Rogers V-P):

The background facts

1. The Claimant is a young woman from Indonesia. She came to Hong Kong to work as a domestic helper. She was employed by the Defendant. After 9 months or so, she left her employment in circumstances which, if her account is true, amounted to her constructive dismissal. She would then have been entitled to wages in lieu of notice. However, she claims to have a much more sizeable claim against her employer. She alleges that her employer failed to pay her her monthly salary during the period of her employment save for two payments amounting to $3,000.00. If that is true, she would be entitled to a substantial sum as arrears of salary.

2. The Claimant brought these claims against her employer in the Labour Tribunal. She had other minor claims as well. Those claims were (a) the reimbursement of the cost of her air ticket back to Indonesia, (b) the cost of travelling from the airport in Indonesia to her home, (c) statutory holiday pay, (d) annual leave pay, and (e) a food and travelling allowance. The employer admitted these five claims, and the Presiding Officer in the Labour Tribunal gave the Claimant judgment for these heads of loss in the sum of $3,884.80.

3. However, the Presiding Officer dismissed the Claimant's claim for wages in lieu of notice and arrears of salary. He did so on the basis that the contract of employment on which the Claimant's claims were based was tainted with illegality and therefore unenforceable. The illegality was that her salary under the agreement which she had reached with her employer was $2,200.00 a month, but because the employment of a domestic helper from overseas will not be approved by the Department of Immigration if the helper's salary is to be less than $3,860.00 a month, the true salary was concealed from the Department. The Presiding Officer found that the employer was aware of the deception being practised on the Department, but it is less clear whether the Presiding Officer made such a finding against the Claimant. To the extent that he made such a finding, it looks as if he did so because he thought that the Claimant's evidence amounted to an admission that she had been aware of the deception.

4. The Claimant applied to the Court of First Instance for leave to appeal against the dismissal of her claims for wages in lieu of notice and arrears of salary. Her application was heard by Deputy Judge Tong on 23 December 1999. The Claimant was unrepresented because her application for legal aid had been refused. The judge dismissed the application for leave. He gave no reasons for doing so, limiting himself to the observation that he had "considered the decision in respect of the factual and legal aspects, and found there is no sufficient grounds to allow the claimant's claim".

5. The Claimant's case was then taken up by the pro bono panel of the Bar Association. The case was assigned to Mr Paul Harris. He took the view that the case raised an important point of legal principle which the Claimant had been totally unable to argue on the application for leave. Accordingly, he wrote to the judge requesting a rehearing of the application for leave. The judge replied through his clerk on 25 February 2000 in the following terms:-

"In respect of this matter, I have already made a decision and refused the application for leave. In the circumstances, I do not consider I have jurisdiction to hear further submissions. Therefore, I am unable to entertain the request made by Counsel to re-list the case for hearing."

The current appeal

6. The Claimant cannot appeal to the Court of Appeal against the refusal of the judge to grant her leave to appeal. That is because section 32(3) of the Labour Tribunal Ordinance (Cap. 25) provides that a refusal by the Court of First Instance to grant leave to appeal is final. Accordingly, what the Claimant is appealing to the Court of Appeal against is the refusal of the judge on 25 February to rehear the application for leave to appeal. The judge believed that he did not have a discretion in the matter. He thought that, having decided to refuse leave to appeal, the matter could not be reopened.

7. There must, of course, come a time in any proceedings when the court must be regarded as having completed its task. When that time is reached, the court is said to be functus officio. Once that stage has arrived, the court has no further jurisdiction over the case. But when does that stage arrive? The answer given by the common law is when the judge's order has been drawn up, entered or otherwise perfected. As Slesser LJ said in Millensted v. Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 at p. 722:

"It was not sought to be disputed... that it is within the power of a judge at any time before judgment is entered and perfected to alter its terms. This is the effect of two judgments, the case of In re St. Nazaire Company (1879) 12 Ch D 88, in which case it was held, following In re Australian Direct Steam Navigation Co., Millers' case (1876) 3 Ch D 661, that a judge can always reconsider his decision until the order has been drawn up, and the case of In re Suffield & Watts ex parte Brown (1888) 20 Q B D 693, to the effect that 'so long as the order has not been perfected the judge has a power of reconsidering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end'..."

The view of the English Court of Appeal in Millensted was cited with approval by the English Court of Appeal in Pittalis v. Sherefettin [1986] 1 QB 868.

8. A perusal of the court file shows that the order made by the judge on 23 December was not drawn up. That is not surprising. The steps to be taken to draw up and enter an order made in the Court of First Instance are set out in Ord. 42 r. 5. Ord. 42 r. 5(5) requires an order which has to be drawn up to be drawn up by the party initiating the application, and if that party fails to draw it up, any other party affected by the order may do so. But Ord. 42 r. 5(5) does not provide for what is to happen when none of the parties draw it up - perhaps because, as here, none of the parties are represented. My practice has always been to draw up the order myself in those circumstances. Whether other judges do that, I do not know. Be that as it may, the fact that the order made by the judge on 23 December was never drawn up meant that he was not functus officio when he declined to rehear the application. His failure to exercise the discretion which he undoubtedly had now entitles the Court of Appeal to exercise that discretion in his place.

9. The exercise of that discretion involves balancing two competing interests. The first is the desirability of treating the judge's order of 23 December as being the last word on the matter so as to bring finality to the litigation. The second is the injustice which the Claimant will have suffered if the judge's order stands despite the existence of arguable grounds for saying that the Claimant should have been granted leave to appeal but which were not considered by the judge because the Claimant had been unrepresented. Having weighed the matter carefully, I have unhesitatingly concluded that the overall interests of justice require the discretion to be exercised in the Claimant's favour. Accordingly, I think that the application for leave to appeal should be reheard by Deputy Judge Tong.

The application for leave to appeal

10. Whether leave to appeal should then be granted is a matter entirely for Deputy Judge Tong. As I have said, if he refuses to grant leave to appeal, his decision is final. However, I take this opportunity of commenting that the decision of the Labour Tribunal is at first sight offensive to elementary concepts of justice. It took no account of

(a) the inequality of bargaining power between the parties, or

(b) the extremely weak position of the Claimant as a first-time worker in Hong Kong with no knowledge of English or Cantonese, or

(c) the exploitative conduct of the Defendant who must have known that the wages which she was paying were extremely low by Hong Kong standards, and who then failed, if the Claimant is telling the truth, to pay even the low wages she had promised, or

(d) the fact that the effect of the Labour Tribunal's ruling, if the Claimant's version of events is true, was to enable the Defendant to obtain the Claimant's services for nothing for several months, while leaving the Claimant, who was at the very bottom of the economic ladder, without any remuneration at all for the work she had done over the period.

If the law requires the Labour Tribunal's decision to stand in these circumstances, it would appear, at first blush, to be an affront to justice.

11. In addition, I take the opportunity of inviting the judge to consider two matters which seem to me to be important in addition to those referred to by Mr Harris in his extremely comprehensive skeleton argument. First, the refusal of the Presiding Officer to enforce the Claimant's contract of employment in respect of her claims for wages in lieu of notice and arrears of salary does not lie easily with his willingness to enforce the Claimant's contract of employment in respect of the five other claims for which judgment was entered for the Claimant - though in the Presiding Officer's defence, it has to be acknowledged that he did not know about the illegality by which the contract of employment was tainted when the Claimant's minor claims were upheld.

12. Secondly, the Presiding Officer's decision that the Claimant could not enforce the contract of employment could only have been justified, if at all, on the basis of a finding of fact that the Claimant had been aware of the deception being practised on the Department of Immigration. As I have said, it is unclear whether the Presiding Officer made such a finding. I accept that, if he did, that finding would, at first sight, not be one which could be challenged, because an appeal from the Labour Tribunal to the Court of First Instance lies only on a point of law: see section 32(1) of the Labour Tribunal Ordinance. However, an erroneous finding of fact becomes an error of law, thereby raising a point of law, if there was no evidence to support the finding of fact or if the finding of fact was based on a misunderstanding or disregard of the evidence.

13. In my view, it is strongly arguable that, if the Presiding Officer found that the Claimant had been aware of the deception, he had either misunderstood or disregarded her evidence. I read the effect of her evidence as having been that when she had agreed to be employed at a salary of $2,200.00 a month, she had been unaware that domestic helpers from overseas were required by the Department of Immigration to be employed on a minimum wage of $3,860.00 a month. She had signed (a) the standard contract for domestic helpers which had been submitted to the Department and which had referred to her salary as being $3,860.00, and (b) various receipts indicating that she had been paid $3,860.00 a month, because she had been instructed to do so by the employment agency which had recruited her and by her employer. Those documents were either in English or in Chinese characters, and she had not understood them.

Conclusion

14. For these reasons, I would allow the Claimant's appeal from the order made by Deputy Judge Tong on 25 February, I would set aside his order, and I would direct that the Claimant's application for leave to appeal be reheard by Deputy Judge Tong on a date to be fixed. Finally, I wish to record publicly Mr Harris's indefatigable representation of the Claimant, which for much of the time was unremunerated, as legal aid has only been granted since the judge's refusal to rehear the application for leave to appeal.

Rogers VP:

15. I agree. In agreeing with Keith JA I only wish to emphasize the comments which he has made in relation to the Presiding Officer's decision. If what the claimant says is correct and, indeed, on the face of the evidence before the Presiding Officer, that decision is one which in my view cries out for review.