HKSAR v. GOVEKAR KUMUDA DAMODHAR

HCMA 5/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 5 OF 2008

(ON APPEAL FROM STCC 6828 OF 2007)

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REASONS  FOR  JUDGMENT

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1.  The appellant was convicted after trial in the Magistracy by Mr Anthony Yuen, on one count of making a false representation to an Immigration Officer, contrary to section 42 (1)(a) of the Immigration Ordinance, Cap. 115.  She was sentenced to two months’ imprisonment suspended for one year.  She appealed against conviction.

2.  On 24 July 2008, I allowed this appeal and quashed the conviction and sentence.  I stated that written reasons for my judgment would be handed down at a later date and I now do so.

3.  The appellant, an Indian national, was a domestic helper.  She was contracted to work for Mr Tolani (PW1), under a standard domestic helper contract, from February 2007 to 20 February 2009.  She was permitted to remain in Hong Kong until 20 February 2009 or two weeks after termination of the contract, whichever was earlier.  The appellant left Hong Kong on 5 September 2007 to go to Shenzhen and it was alleged by the prosecution that she had represented falsely to an Immigration Officer that she was employed by Mr Tolani, when her contract had been terminated on 11 August 2007.

4.  The issue for the court was whether at the time the appellant was questioned by the Immigration Officer on 5 September 2007, her contract of employment had been terminated and, if it had, did she know that it had been terminated when she told the Immigration Officer that she was employed by Mr Tolani.

5.  Although a copy of the contract was not produced at trial, it was common ground that Clause 10 of the standard form Domestic Helper contract stated “a party may terminate the contract by giving one month’s notice in writing or by payment of one month’s wages in lieu of notice”.  It was not disputed that the appellant had not been summarily dismissed.

6.  The employer, PW1, gave evidence.  He had first employed the appellant in 2002 for six or eight months.  He had re-employed her in August/September 2003 and she worked a 2 years’ contract until its expiry in 2005.  She began working for him again in February 2007, but he was unhappy with her work and according to him, the appellant was fully aware of his dissatisfaction.  He claimed she had told him she wished to look for another job and that there had been mutual discussion of termination.

7.  Suddenly, on 11 August 2007, the appellant left his residence without prior notice leaving a quantity of her belongings behind.  She telephoned him from the airport on her departing from Hong Kong to return to India.  He told her he had terminated her employment on that day and that he would give her one month’s salary in lieu of one month’s written notice.  No payment was made at that time.

8.  He advised the Immigration Department of the termination by a letter dated 13 August 2007 (Exh P5).  He claimed he gave written notice of termination to the appellant by sending an e-mail (Exh P6) to his office in India with an instruction to the staff that the letter advising termination should be given to the appellant.  The staff were required to telephone the appellant and ask her to collect the letter.

9.  PW1 ultimately claimed that he had terminated the contract by paying the appellant one month’s wages in lieu of notice, into her bank account on 4 September 2007. The appellant, was not told of this payment, which was accompanied by a sum of money for her unpaid wages for the period 1-11 August 2007.  The appellant denied that she had ever been told about, or given notice of termination of contract, nor had her contract been terminated in writing.  She said she had been given one month’s leave at short notice, by PW1 and had gone to Mumbai on 11 August 2007.

10.  The major ground of appeal was that the Magistrate had made a number of inconsistent findings as to how the appellant’s contract had been terminated.  These were as follows:

(1) all the evidence suggests that she left PW1’s home on her own with the understanding that she was terminated i.e. before she had even reached the airport;  (Oral reasons T51N)

(2) her own conduct terminated the contract;  (Oral reasons T51P)

(3) the appellant had terminated the contract herself when she decided to leave PW1 on 11 August 2007. (SF AB 20)

(4) in the course of the Magistrate’s recitation of the prosecution evidence, he stated “the appellant called from the airport and over the phone, PW1 told her that her contract was terminated”.  (SF AB 13 para. 6)

(5) All the evidence suggested she was fully aware her contract had been terminated when she left Hong Kong on 12 August 2008.  (SF AB 15 para. 38)

Ground 2

11.  The Magistrate had been wrong to find that it was the appellant who had terminated the contract, because that had never been part of the prosecution case and the Magistrate had never suggested that he was minded to consider the case in that manner.  There had been no opportunity for the defence to address that particular approach whether by way of cross examination, through appellant’s own evidence, or in final submission.

Ground 3

12.  If the Magistrate did find the contract had been terminated orally by PW1 on 11 August 2007, he had failed to take into account the inconsistency, equivocality and ambiguity of the words PW1 claimed he had used that occasion and also on a number of occasions up to that date.

Grounds 4 and 5

13.  Grounds 4 and 5 flesh out the preceding grounds.  They refer collectively to the Magistrate’s confused and inconsistent findings about the manner and the date of the alleged termination; the incongruous behaviour of PW1, after the alleged termination, in assisting the appellant in India with accommodation and transport; his allowing her to take his house keys with her; permitting her to leave her belongings at his residence in Hong Kong; the late payment of the salary in lieu of notice and the indirect manner in which it was made.

PW1’s Evidence

14.  The evidence given by PW1 about terminating the contract was contradictory and, overall, unsatisfactory.  He said that on 14 August 2007, he sent a letter by courier informing the appellant of the termination.  Later he changed that evidence to say that he sent an e-mail message to his office in Bombay attaching the letter (Exh 6) informing her of the termination and asked his staff to forward it to the appellant.  Most of the “evidence” of PW1 as to what happened in Mumbai was inadmissible hearsay.

15.  There was no satisfactory explanation why this unreliable method of communication was used.  The appellant lived at Karnataka, more than 400 miles and about 2 days’ travel from Mumbai.  Her full home address was in the contract document and there was no reason why a letter could not have been sent there, either by mail or by courier.  The appellant in evidence said she never received any letter, nor was she told to collect it.

16.  There was no documentary or other evidence produced by the prosecution to support the sending of the e-mail, or its receipt, or of any action taken in consequence of it.  The Magistrate accepted that there was no evidence showing there was any proper termination as stipulated in the contract. (T24G)

17.  On her return to Hong Kong on 23 August 2007, the appellant considered that her month’s leave had not ended, so did not return immediately to PW1’s residence but stayed with friends.  The appellant did not know of the payment by PW1 of money into her account on 4 September 2007.  PW1 did not tell her about it and her passbook was still at his residence.

18.  On 5 September 2007, the appellant wanted to go to Shenzhen on a shopping trip with her friends, but was stopped at Immigration because of PW1’s letter advising of the termination of the contract.

19.  After her arrest the appellant was kept in custody and only after her release on bail on 22 September 2007 did she arrange to collect her belongings from PW1’s residence, including $5,930 in cash and her bank passbook.  She was required by PW1’s son-in-law to sign what she was told was a letter of receipt (Exh D1) before her property was returned.  That letter refers to “the termination letter of 14 August 2007” as if it had been effected validly.  It referred also to payment of salary for the notice period.  Given the circumstances under which her signature was obtained on this “receipt”, i.e. that she was told she had to sign first before she could have her belongings, that letter cannot be relied on as describing the true state of her knowledge.

20.  Counsel for the appellant submitted that even accepting that valid written notice of termination had been given on 11 August 2007, the contract would not terminate until the 11 September 2007.  Thus, appellant’s statement made to the Immigration Department by the appellant on 5 September 2007 could not be false.

21.  Alternatively, if PW1’s confused, and confusing, evidence about how and when a letter of termination had been sent or delivered had been clarified, the earliest date of receipt in India would have been 18 or 19 August 2007.  That would mean the contract would not terminate until 18 or 19 September 2007, some time after the date of the alleged offence.

22.  The Magistrate in his oral reasons for verdict found that the appellant had fled hastily from the employer’s residence, in such a manner that she had abandoned her belongings and had thus terminated the contract herself [See ORV 41 P].  That was never advanced as part of the prosecution case; the appellant was not cross-examined on that point and her counsel at trial was not apprised of the Magistrate’s view so that he could lead evidence in rebuttal, or make relevant submissions.

23.  A domestic helper can be summarily dismissed in certain circumstances.  There was no suggestion that the appellant had been summarily dismissed.

24.  The only other valid ways of termination are those in Clause 10 of the contract.  Although PW1 had at first referred to written notice of termination having been given, it transpired that that was not correct.  Thereafter PW1 relied on the payment of one month’s salary in lieu of notice.  That payment was made much later than the date of termination, which the Magistrate accepted as 11 August 2007.  Payment was made into the appellant’s account on 4 September 2007, but PW1 never informed the appellant of it.  Only after her release on bail did she learn of the payment.

25.  To establish the charge the prosecution had to prove that as at 5 September 2007 the contract of employment had been terminated validly and, further, that the appellant knew that the contract of employment had been terminated.

26.  There was no reliable evidence before the court which established those two points.  Even if one accepted, as the Magistrate said he did, that PW1 was telling the truth about what happened, at its highest all that his evidence amounted to was an announcement of his wish to terminate the contract.

27.  The confusion in the Magistrate’s findings, as set out above in Ground 1, merely serves to emphasise the lack of a valid termination and/or the absence of knowledge. The Magistrate appeared to consider the termination methods set out in the contract as so much surplusage.

28.  A domestic helper contract is devised to ensure that the obligations and rights of the parties are clear and that the interests of employer and employee are protected.  Clause 10 provides the mechanisms of valid termination for the protection of both parties – to ensure that each knows and agrees to the termination and, importantly, so that other parties e.g. a prospective employer/employee, can be sure that the existing contract is properly terminated.  A clear method of termination also enables the relevant bureaucracy e.g. Immigration, Labour and Legal Aid Departments, as well as consular offices, to know the status of the contract and the parties to it.

29.  There is no point in stipulating methods of termination, unless they are used and relied on by employer and employee.  It is insufficient to say, as the Magistrate did when considering a submission of No Case to Answer, “I agree there is no proper termination pursuant to the contract” [Transcript page 24G] and then continue “But the question is should the appellant know clearly on 11 August 2007 that she had been terminated?” [T24 I]  If there was no valid termination according to the contract there was nothing for the appellant to know about.

30.  Although the Magistrate commented, “all the evidence suggested that the appellant was fully aware that her contract had been terminated when she left Hong Kong on 11 August 2007”, the evidence given by the appellant of her departure and return do not suggest the actions of a domestic helper who knows she has had her contract terminated.

31.  On her return to Hong Kong on 23 August 2007, the appellant’s position was as follows; she was owed wages for the period from 1-11 August 2007; she had a quantity of her belongings at the employer’s residence; cash of $5,983 and her bank passbook were at the employer’s residence; she had taken a set of PW1’s house keys with her, as well as a mobile telephone and SIM card the property of PW1.

32.  Further, there was no suggestion by PW1 that the appellant had asked him for a release letter, although she would have needed one if she was seeking another job, particularly as only 6 months of her contract had expired.  The appellant would have been aware, assuming for the sake of argument that she knew valid termination had been effected on 11 August 2007, that the notice period would end on 11-September 2007.  Thereafter, she had 2 weeks in which to find another employer or risk being sent home.

33.  It is inherently improbable, given her position, that the appellant would have continued in holiday mode, as she appears to have done – by staying away from her employer’s house in company of her friends until her holiday period ended and by making a pleasure trip to Shenzhen as she tried to do.  Such behaviour does not suggest she was aware her contract had been terminated.

34.  Termination cannot be validly made, unless by one of the two contractual methods.  It must also be made known to the employee that the contract has been terminated.  Here there was no proof of valid termination, nor any proof that the appellant knew of it – in particular that she knew of it on 5 September 2007.

35.  Accordingly, I allow the appeal against conviction and quash the conviction and sentence imposed.