JAMES WILFRED ALFRED SOULSBY v. TOTAL CONTROL TECHNOLOGY INTERNATIONAL LTD.

DCCJ14943/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 14943 OF 2000

(Transferred from HCA 11400 of 1996)

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Judgment

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Hearing of evidence in this case concluded on 23rd November 2000. Since the case may well turn on the evidence of the only witness at the trial, counsel for the parties were given leave to make closing submissions in writing after they have had opportunity to consider the transcript of the testimony of the witness. The last of closing submissions reached me on 14th February, 2001. This is my judgment.

2. This action is for monies due and owing pursuant to a contract of employment evidenced by a letter dated 31st March 1994 ("The Employment Letter") which commenced on or about the 1st April 1994 and was terminated some time in October 1994. It will be seen that the terms of employment and the circumstances of termination are the crucial issues.

3. The Employment Letter reads :-

" 31st March 1994

Offer of Appointment

Dear James,

We would like to confirm your employment with our company by way of this offer which becomes our mutual agreement on your deliverance of a signed copy to ourselves. The following terms shall apply;

1. Starting date : April 6th 1994.

2. Starting Salary : HK$16,000 payable on last Friday of each calendar month.

3. Next Salary review : 5th September 1994.

4. Commission on Sales : 8-10% of Sales value, to be determined.

5. Paid leave : 12 working days per annum.

6. Unpaid leave : 8 working days, dates decided by mutual agreement.

7. Termination of this agreement : One calendar month shall be given by either party. One days pay for each leave day taken exceeding the number of months worked in the preceding months of the same calendar year shall be deducted from the final months' payment. All commissions earned during and up to the termination date shall be due unconditionally.

Please sign here to signify your acceptance of these brief terms;

Signature	1 April 1994
Signed Mr James W.A. Soulsby	Date

I welcome you heartily to our company, and look forward to our prosperous and fulfilling relationship!

Marc G. Cuthbert
Managing Director"

According to the Plaintiff ("Mr. Soulsby"), the parties never reached any further agreement in regard to commission - item 4 in the Employment Letter.

4. There are further documents which have direct bearing on the issues before the court. In a memorandum ("The Commission Memorandum") dated 30 September 1994 addressed to the Plaintiff, the Defendant stated that :-

"1. The following shall be effective as of 1st October 1994.

2. Please be reminded of regular office hours, and ANY time taken off during these hours should be ok'ed beforehand with Stanley or myself, otherwise they shall be assumed as unpaid leave. Any work done outside regular office hours are entirely at your discretion and will not counter balance time out.

3. A monthly target of HK$70,000 shall be effective. An average every 4 months can be taken, but the monthly average over this period should reach a minimum of HK$70,000. This target must consist of NEW business signed in contract during any particular month. The totals will not include installations.

4. Please see the attached sheet regarding the commissions due from broadcast business.

5. I regret to inform you that the salary review due at the end of the initial employment period drew the conclusion that due to an insubstantial rise in business income, the A/V division cannot support an increase for you at this time. However, we shall set the next review for January 1st 1995.

6. ALL information, notes, and documents must be kept in a common area, ie : the filing system, whether official contracts or handwritten notes. The A/V division information cannot live on your desk if we are working together as a team - which we are. When a client or prospect calls, information must be readily available from the files.

Attachment

Ref : With effective from 1st October, 1994

Commission Rate

Purchase
MC-300 Pro System	--------	$4,760
MC-18 System	--------	$2,700
Speakers (643R)	--------	$9 each
Amplifier (A31M)	--------	$152 each
Amplifier (A61M)	--------	$160 each
Amplifier (A512M)	--------	$160 each
Microphone (PM120)	--------
Installation	--------	None
Rental

Description	1st Year	2nd Year	3rd Year
(If the list price is $780)
Per Line	HK$43	negotiation	negotiation
Speaker (643R)	HK$0.7	negotiation	negotiation
Amplifier (A31M)	HK$6.9	negotiation	negotiation
Amplifier (A61M)	HK$8.8	negotiation	negotiation
Amplifier (A512M)	HK$16.5	negotiation	negotiation
Microphone (PM120)	HK$1.4	negotiation	negotiation
Installation	--------	None

Any discount, free installation or "freebies" given shall be split 50/50 between yourself and TCT.

You have to prepare a commission claim form for Stanley at the end of every month. No commission will be paid until we received the payment from clients."

Mr. Soulsby admitted in evidence that he received The Commission Memoradum. But he regarded it as a proposal from the Defendant which he had rejected.

5. On 13th October 1994, Mr Soulsby handed to the Defendant a letter ("the Resignation Letter) of even date which says :-

"Dear Marc & Stanley,

It is after great thought and deliberation that I tend my resignation to you.

When I joined the company in April of this year I was led to believe that I was to be a part of a three man team, but apparently not, as now appears

As part of that three man team I expected to be taken into company confidence ie : privy to some A.V. confidences, even a breakdown of commissions, costs, etc. and to have worked with these being forthcoming at my request, only to be denied access either directly or indirectly by yourselves.

I have also had the same unanswered question for a few months now, about second and third years commissions. I am aware of your first dithering answer, but these are not the terms we first agreed, as you well know!

Well!

I cannot and will not work under these conditions, neither can I work without 100% of your support on company business. Only recently did I nearly (too nearly) lose all, lack of respect (San Po Kong installation).

Over the years in Hong Kong, I have worked very hard and tried to have endeavour and honesty as my motto, and I consider that I have built up a good name, as far as these and reliability are concerned.

I do consider my own weakness, Giving too much! without return.

Well! I have given you the key (which you did not have) to an open market and you have not held out on your promises in return, as usual!

Memo's!

Get your facts right before you send out any memo to anyone, a bad memo can cause great discomfort to all concerned. At my time in the business, I'm passed receiving stupid memo's. As I have taken time out to speak to you both on separate occasions I did expect these to be brought up at our weekly meeting, but to no avail again.

Anyway I consider I have given and said enough.

I trust that you will honour the contract we entered into and that an ammicable settlement will be forthcoming as soon as you have collated all the figures.

Yours faithfully

James"

It is important to note that in the Resignation Letter Mr. Soulsby made no reference, complaint or objection to the terms in the Commission Memorandum.

6. Then there are two sick leave certificates (Exhibits "D4a" and "D4b") both apparently issued by one Dr. Chan Iu Kau. D4a dated 7 October 1994 covers sick leave for eleven days from 7th October 1994 to 17th October 1994 inclusive. D4b dated 17th October 1994 covers sick leave for eleven days from 17th October 1994 to 27th October 1994 inclusive. At a later stage of the trial, Mr. Soulsby distanced himself from D4a. He belatedly said under oath that he had nothing to do with D4a and it was implicit in his case by that stage of the trial that the Defendant manufactured this fake to discredit him. I shall return to these sick leave certificates in due course.

7. There is also a transcript of certain recorded conversations between the parties in October 1994. It would be idle to reproduce the entire transcript here. However, the part leading to the end of the transcript of side B (the later in time) of the recorded conversation that took place on 28 October 1994 must be borne in mind:-

"Legend : Mark and Stanley - directors of the Defendant. James - Mr. Soulsby.

............

James: Yeath, it is. Well I don't know if I'm, you know I mean I bump into people. I went downstairs to see him, not on business, not to speak to him, simply he's got an overhead projector which one of my friends is interested in. I went to get a quotation of him knowing that he wants to get rid of it. That's what he said to me. 'What can I do for you? You're no longer with the company upstairs'. I said 'who said that'. 'Mark told me?' 'Serious? Well, I haven't come on business. The fact is that I have come about the projector.'

Mark : So, what thoughts did you have last night?

James : I had lots of thoughts about lots of things last night. The point about it is that I am sick and I am sick until my doctor says I'm back to work, all right! I've been to see the doctor yesterday. He gave me a sick note.... I got a sick note yesterday off him. It's dated up to today and when I go back to see him next week he will give me another one as from today to carry me up to the end of my sickness period.

Mark : What did he recommend you doing while you're sick?

James : He recommended I get fresh air. And he has given me a breathing thing.... when I get short of breath etc. etc. I don't excited and I don't get out of breath and I don't walk up a lot staircases etc. etc.

Mark : When can you get back to work?

James : He's put me off on sick, right? That's the doctor's decision not my decision.

Mark : Do you have one for yesterday?

James : I got one up to yesterday, until the 27th and the 27th is yesterday.

Mark : Well, can we keep those, or give me a photocopy.

James : Well I've got a photocopy. I got the original and a photocopy.

Mark : That'll be fine.

James : I will go back to see him next week. And if I have to, he'd give me lots of tablets and if I have to go back to see him when I go back to see him next week..... they're very funny doctors, as you know in Hong Kong, because they don't give stuff that will last you a month, that will last you a fortnight, they give you stuff that only lasts a week because they want more money because it's HK$280 every time you go to see them.

Mark : Right.

James : [        ]

Mark : [         ]

James : So what's your side of the story?

Mark : Ah... Yesterday we were discussing how the relationship and all the basics for working together, i.e. confidence, reliability, commitment, faith, trust and all that sort of things were all being badly scarred. Right? So I thought about it a lot last night as did Stanley, independently, and in fact we both came to the same conclusion that the working relationship has been too badly damaged and it cannot continue. So, you know, the agreement... the employment arrangement that we had has to be cancelled itself. So, with that in mind we've put together a summary which we think covers all the outstanding financials. We hope it covers our everything, If it doesn't, please says so. [silence while James read document]... and the purpose of this is to tie up all the loose ends and everything that has been spoken of.

James : So what you are saying is that you are paying me up to 16th October.

Mark : Well, we haven't .... I mean it's two weeks later, and we haven't had any sick notes. Well, we haven't heard from you, and as far as we are concerned, you left on that day.

James : How about sick leave then?

Mark : [        ]

James : [       ]

Mark : Well yes and no. Because from what I have been told Labour Law requires that within 3 days you get in touch with your employer and let them know that you are off sick or the doctor's [ ]. We didn't hear that for 3 days from you or your doctor. So..

James : Well, the secretary knows it and can say it in court!

Mark : The secretary can and the secretary will say... there is no secretary .... so you know you spoke to Vilma and Vilma said...

James : Commonly known as a secretary by everyone throughout Hong Kong.

Mark : Nobody I know, only people....

James : Commonly known as....

Mark : Whatever James.

James : Let's forget the crap. [ ] Let's forget the crap. You have fired me. We're through it. You forget the crap.

Mark : What do you think what we have written?

James : You go ahead and do it mate. You go ahead and do what you have to do.

Mark : Would you like to sign it now?

James : I won't be signing anything now. I won't be signing anything.

Mark : So what are your thoughts and what's your intentions?

James : My intentions are to give you... to furnish you with a sick note now and to ...as far as I'm concerned you have officially terminated my contract as of now. OK. So as of now I am still on sick and you have terminated my contract. I'll go to see the Labour Department and you go from there. OK. So what money am I due as of up now.

Mark : Well, it's got it there.

Stanley : You owe company twenty five thousand two hundred and you owe [ ]

James : [ ]

Mark : [ ]

James : So what about my commissions as from onwards commissions? You say that I do not receive any commissions.

Mark : Of course not. Your contract is terminated.

James : I've got a contract that says.... It's a joke. OK you leave it at that then. If that's what you.....

[too far from mic.....]

END. 25 mins." (Emphasis added.)

8. As to oral testimony, only Mr. Soulsby and Dr. Chan gave evidence. No other witnesses were called on behalf of Mr. Soulsby. No one gave evidence for the Defendant at all. During the course of the trial, I was told that Mr. Cuthbert for the Defendant was willing to give evidence but for some reason he was detained or delayed overseas and after Mr. Wright closed the case for Mr. Soulsby, Mr. Cuthbert was still unavailable. Since Mr. Wright also insisted judgment without further delay, I refused to adjourn the case part heard. Miss Cruden for the Defendant, therefore, closed the Defendant's case without calling any witness.

The Evidence in General

9. The only evidence before me, really, is the evidence for or relied upon by Mr. Soulsby. Most of the documentary evidence cannot be disputed except as to their meaning and effect. The testimony of Dr. Chan must be accepted as true. The testimony of Mr. Soulsby, I would say at once, is highly unreliable. Mr. Soulsby did not come across as a convincing witness in terms of general disposition. Of course, impressionistic assessment can be wrong. But if one goes though the actual evidence by Mr. Soulsby, one would not have difficulty in noticing that he shifted his position time and again whenever he was cornered by Miss Cruden's testing questions during cross-examination. Miss Cruden is not an aggressive (in the abusive sense) cross-examiner. But in her calm polite manner, factual issues were brought up one by one with questions bearing relevant logic that made Mr. Soulsby gave increasingly untenable or unconvincing answers. Normally, I would have extracted relevant parts from the transcript of trial to demonstrate by several examples this conclusion I have drawn. But, to cut a long story short, I would use the sick leave certificates D4a and D4b to show that Mr. Soulsby is an unbelievable witness.

The Sick Leave

10. Mr. Soulsby's case regarding sick leave is, chronologically, this:-

(1) Statement of Claim dated 7 October 1996

"8. Prior to the aforesaid wrongful dismissal, the Plaintiff was duly granted sick leave for the period from 7 October 1994 to 31 October 1994 (both dates inclusive)."

(2) Written Witness Statement by Mr. Soulsby filed with the court on 7 September 1999

"16. Due to the stress and pressure of the Directors' attitude to me I began to feel dizzy and breathless and I was advised by my Doctor to take a rest. In any event, I started to suffer from acute bronchitic since around 3 October 1994.

17. On Saturday 8 October 1994 and the next day I tried, in vain, to contact Mr. Stanley Mak and Mr. Cuthbert to inform them of my sick leave. Finally, on Sunday 9 October 1994 I contacted Ms. Vila at her home and told her that I would be not able to work the following day (Monday 10 October 1994), and probably for the most of that week. I also asked her to convey that message to Mr. Mak and Mr. Cuthbert on Monday morning and she promised to do so. Later in the week I asked Ms. Vila whether she had in fact conveyed that message to the directors of the Defendant company and she informed me that she had done so first thing in the morning on Monday 10 October 1994.

18. On the following three days, Monday 10 October, Tuesday 11 October and Wednesday 12 October, I rang Ms. Vila for any important developments and told her that I would be back to the office on Thursday 13th October. I always asked whether the directors were in but each time she told me they were not. I therefore left messages for the Mr. Cuthbert and Mr. Mak to call me back.

19. On Thursday 13 October 1994 I went to the office of the Defendant company, and I saw another man working there. In the presence of that man Mr. Cuthbert and Mr. Mak verbally attacked me. They said that they did not believe I was sick because I was wearing a suit and they took the view that if I was sick I should not be out at all. They accused me of taking time off without permission. I protested that any conversation of this kind should be in private. Consequently, the three of us went into a room where Mr. Stanley Mak suggested that I take a month off to sort out my medical problem. In response I took out the original sick leave certificate and handed it to Mr. Cuthbert and Mr. Mak. I also told them that since my wife was waiting for me, I would return to see them to discuss the matter further. Before I left I handed a resignation letter dated 13 October 1994 to Mr. Cuthbert and Mr. Mak giving them one month's notice pursuant to clause 7 of my employment contract. Reasons for my resignation were stated in my said resignation letter."

(3) Evidence-in-chief by Mr. Soulsby on 20 November 2000 morning

Q. Would you leaf over the pages and look through to the end of that at page 8? Is that a witness statement? It's not dated, but have a look at the following page, page 9. It records on page 9 that it was filed in court on 7 September last year. Can you recall on what date you - let's first ask you, is that your signature on page 8?

A. Yes, it is.

Q. Did you sign that document?

A. Yes, I did.

...........

Q. Are the contents of that document true and correct to the best of your knowledge and belief?

A. They are true and correct to the best of my knowledge.

Q. And have you read that document again before giving evidence today?

A. I have read this document several times.

Q. Do you adopt the contents of that document as part of your evidence-in-chief?

A. Yes, I do.

Mr. Wright: Your Honour, there is an order in the bundle that witness statements stand as evidence-in-chief unless the court orders otherwise.

…………

Q. Did you take frequent days off sick?

A. Never until I became ill when I went to see my doctor and he advised me to take time off work and I obtained a medical certificate from the doctor, which I handed in to Mr. Cuthbert into the office.

Q. Just turn quickly to the last section of the file, the last bundle, please. Turn to page 12. The page numbers are in the bottom right-hand corner of the paper. Do you have page 12?

A. Yes, I have.

Q. Is that a copy of a sick leave certificate signed by Dr. Chan Yiu-kau?

A. Yes, it is.

Q. Is he your doctor?

A. Yes, he was my Hong Kong doctor.

Q. Is that the sick leave note that you're referring to?

A. Yes, it is.

Q. And again over the page, page 13, is that another sick leave note that he gave you?

A. Yes, it is.

Q. And the diagnosis is acute bronchitis.

A. As stated on the medical certificate, yes.

Q. And is that what you had?

A. He did say I was suffering from bronchitis and stress.

(4) Cross-examination of Mr. Soulsby on 20 November 2000

Q. And on the 13th, that is the day you say you went to the doctor ...

A. I believe so.

Q. ... what time of day did you go to the doctor, morning, noon or night?

A. In the morning.

Q. And then did you go to work thereafter?

A. I went to work that day.

...........

Q. Is it possible that the 13th was a Thursday?

A. I believe it was a Saturday.

Q. You went to the doctor on a Saturday, not sure of the date, but about the 13th.

A. Yes.

Q. And then thereafter when did you go to the doctor again? Did you go to the doctor again?

A. Certainly, I went on - the first time I went to the doctor ...

Mr. Wright: I've got a diary if you like of 94.

A. I've got a doctor's certificate in actual fact.

Mr. Wright: My diary for 1994.

Court: Hold on, please.

A. I have a doctor's medical certificate which is on file, I think there are two on file. I don't have them in my possession, I don't think. I haven't seen them, looking through the ...

Q. Would you be good enough to look at page 14D? All the documents can be found in bundle D, for documents.

Mr. Wright: Can I help? 13 October 1994 was a Thursday, your Honour.

A. I've got a note here which I'd missed ...

Q. First of all would you be good enough to look at page 14? This is a medical report, in the form of a letter, from your doctor, is that right? Do you accept that, a medical report from your doctor?

A. Yes.

Q. And if you would look at the first paragraph, which is numbered paragraph, it says, "Mr. Soulsby attended my clinic on 27 October 1994." Do you see that?

A. Yes.

Q. Would you accept that that was the first time you attend his clinic?

A. No, I have a doctor's medical certificate here from the 7th.

Q. You have a certificate from the 7th. You also have one for the 17th.

A. That's right, so the 7th was the first time I visited my doctor.

Q. Isn't it right that in fact these certificates were dated retrospectively? You went to see the doctor on the Saturday, around the 13th, I would suggest it was Saturday the 15th.

A. No, I'm just looking at the medical certificate now, it begins on the 7th. I apologise.

Q. But that certificate was given to you after the 7th.

A. That certificate, I cannot recall the date, but it was a Saturday, I believe.

Q. It was about the time that you handed in your letter of resignation or not? That's dated 13 October.

A. I was on medical leave with the attached certificate, original, given to Mr. Cuthbert, I believe. And I went into the office, I believe it was on the 13th.

Q. The first time you gave Mr. Cuthbert an original medical certificate, when was that?

A. I believe it was the 7th.

Q. And that was the only occasion you gave him a medical certificate.

A. No, I gave him two medical certificates.

Q. You gave him one on the 7th.

A. Two. Yes, round about the 7th or the following day.

Q. So you went into the office on the 7th after you'd been to the doctor.

A. Yes.

Q. And you say you gave the certificate to Mr. Cuthbert.

A. That's correct.

Q. Did you go to work on the 8th?

A. I sat down at my desk and took certain papers out, yes.

Court: Well, look, I have a feeling you did not go back to the office until the 13th. I don't want to sort of barge in, but you know, don't just say things ...

A. Your Honour, I went back ...

Court: ... or whatever comes to your mind. You've got to be careful a bit.

A. Yes.

Court: And if you need time to think, think about it.

A. I certainly do. I'm looking at the date. I didn't even - I'd forgotten I had this in my file.

Court: I mean, depending on how you look at it, that was one thing that you've been caught. You've been telling and emphasising that the first time you went to see a doctor was on 13 October. Then you looked at the actual medical certificate and you see that medical leave started on the 7th and then you said that was the first day you went to see the doctor. You had to apologise or make the correction for that.

A. Yes, sir.

Court: Now you said the first time you handed in the medical certificate to Mr. Cuthbert was either the 7th or the day after that.

A. Yes, sir.

Court: I have a feeling, although I don't remember everything from the documents, I have a feeling that you did not go to work until perhaps the 13th, and even on the 13th you did not see Mr. Cuthbert. I have the feeling.

A. I handed this into Mr. Cuthbert, sir, I believe, on the following day I believe now.

Court: Which following day, either 7th or the 8th?

A. The 7th or the 8th, sir. The 13th sticks in ...

Court: All right, it's been a very long day, unless Miss Cruden insists, I think we break for the day and come back tomorrow at 10.

(5) Cross examination of Mr. Soulsby on 21 November 2000

Q. Mr. Soulsby, you had an opportunity last night and perhaps this morning to review your witness statement, did you?

A. I briefly observed last night because I took the tablets that I had missed during the day and before 9 o'clock I'd fallen asleep.

Q. Have you, any time since yesterday, had an opportunity to review your witness statement?

A. Yes I did.

Q. And this morning you've been reviewing the court bundle of documents.

A. I've been a having a look through it, yes.

Q. And you've had an opportunity to speak with your counsel in respect of medical certificates, only that matter.

A. Yes.

Q. And you were in court earlier when Dr. Chan gave his evidence.

A. Yes, I am.

Q. May I remind you of some evidence you gave at the close of yesterday? And perhaps I can remind you of the evidence first, if you would bear with me, and then of course I'll give you an opportunity to answer to any question.

A. Okay.

Q. At the close of yesterday you said that you first saw Dr. Chan on 13 October 1994 and later in the morning you went into work and worked that day. You repeated evidence to that effect and you said that you returned to work in fact for 10 or 11 days after having seen Dr. Chan. But subsequently you did review a medical certificate, a photocopy in the bundle, and it appeared to say you had sick leave from 7 October. So you then gave evidence to the effect that you went to see Dr. Chan on 7 October, so that would be well before 13 October. And you also said that you went to the office, presumably the defendant's office, and handed the doctor's certificate to Mr. Cuthbert whom you were referring to 7 October. Now, in light of all the documents and having had time to consider the matter, which date is it, the 13th that you went to the doctor, the 7th or some other date?

A. Well, firstly, I'd like to apologise to His Honour and to the court for my confusion yesterday, but I was led to page 12 by yourself and I believe that to be a true authenticated copy of a medical certificate. I did state that I had attended the doctor around about the 13th. After consultation with my counsel during the period and having taken the notes out of the bundle and placed them side by side, I can see similarities between the two. Even though the dates are different, it appears that it probably is a photocopy which has been tampered with. I accept no responsibility for the tampering of these documents whatsoever.

Q. Would you be good enough to just pause there? At the moment you are referring to two documents, that would be ...

A. Placed side by side.

Q. ... page 12 and 13 of the bundle, you've taken them out of the bundle.

A. That's correct.

Q. And you're answering the question as to when you went to see the doctor.

A. Uh huh.

Q. Now, when do you say you went to see the doctor?

A. I said I thought it was round about the 13th, but after saying that and looking at this document and looking at the next document, really, at that particular time, six years ago, I cannot recall the exact date. The two documents I have in front of me regarding medical certificates, even I have no idea. And remembering that I am on oath in this court, I have no idea where these documents came from, whether they came from my first lawyer/solicitor or how they come to be in my possession and the court's possession.

Q. Mr. Soulsby, I'm sure your counsel will give ample opportunity to deal with the documents. If we can go back to the date when you attended the doctor. You cannot recall the exact date that you attended the doctor in October of 1994, is that your evidence today?

A. That is what I am saying now. Yes, it is. After consideration and the stress I was under yesterday, I will believe that it probably was the 27 October.

Q. Okay, so you probably went to see the doctor on 27 October of 1994.

A. Yes.

Q. And do you accept that that was the only day in 1994 that you went to see Dr. Chan?

A. I think Dr. Chan's records are probably more reliable than my memory and so I will accept that date as being the 27 October.

11. So, as early as October 1996, it was pleaded for Mr. Soulsby that he had been "granted sick leave for the period from 7 October 1994 to 31 October 1994 (both dates inclusive)". Mr. Soulsby must have given instructions to his lawyers in those terms. In his September 1999 witness statement, Mr. Soulsby categorically said that he on Thursday 13 October 1994 in the office "took out the original sick leave certificate and handed it to Mr. Cuthbert and Mr. Mak" and that on 15 October 1994 he had "sick leave certificates". In giving evidence-in-chief, Mr. Soulsby affirmed his witness statement made in September 1999 as true and correct. In addition, he again stated under oath that he could identify the two sick leave certificates as those he had obtained. Under cross-examination, Mr. Soulsby went so far as to say that he saw Dr. Chan "in the morning" of 13 October 1994. He insisted that he had two doctor's certificates for sick leave, one to take effect from 7 October 1994 and the other to take effect from 17 October 1994. Mr. Soulsby stuck to this version even when Miss Curuden for the Defendant pointed out to him that a letter from Dr. Chan said that he (Mr. Soulsby) attended the doctor's clinic on 27 October 1994.

12. On 21 November 2000, cross-examination of Mr. Soulsby was interposed by evidence of Dr. Chan. Dr. Chan confirmed from his records that he had seen Mr. Soulsby once in 1993, once in 1994 (on 28 October) and once 1995 (May). According to his records, he did issue the sick leave certificate D4b. He did NOT issue sick leave certificate D4a. In short, D4a must be a fake. It is an obvious fake when one compares the two sick leave certificates. Confronted with such evidence, Mr. Soulsby then admitted that he had seen Dr. Chan only on 28 October 1994 when the sick leave certificate covering 17 to 27th October 1994 was issued. He had to retract his earlier repeated evidence that he saw Dr. Chan on 13 October 1994. He tried to excuse himself for the retracted evidence by putting it down to stress and confusion in the witness box the previous day.

13. I do not accept for a moment the excuse given by Mr. Soulsby. Irrespective of whether there was stress or confusion when he was in the witness box on 20 November 2000, Mr. Soulsby had been very consistent and adamant from 28 October 1994 (see transcript of recorded conversation), to issue of the writ (see Statement of Claim), to exchange of witness statement (see Witness Statement), to evidence in chief and to the first part of cross-examination that he had sick leave certificate covering the first half of October 1994. But in fact he had not even seen a doctor during the first half of October 1994.

14. Mr. Soulsby in the end, when confronted with the evidence of Dr. Chan that the "sick leave certificate" Exhibit D4a for 7 October 1994 to 17 October 1994 inclusive could not be genuine, tried to deny he had anything to do with that exhibit. He even hinted that the document was manufactured by the Defendant to smear him. But he forgot that it was he who from October 1994 and all through these years maintained that he had TWO sick leave certificates. Even adopting a higher (criminal) standard of proof, I have no doubt that Mr. Soulsby staked a case from October 1994 until exposed at the trial that he was covered by a sick leave certificate for the first half of October 1994 knowing full well that he had never been issued a sick leave certificate for any day during the first half of October 1994.

15. Putting aside the matter of the sick leave certificate, it is clear from the evidence that Mr. Soulsby has not justified his absence from work during the first half of October 1994. On his own evidence, he did not report for work from 7th to 16th October 1994. He went to the office on 13 October 1994 and handed in a typed letter of resignation. In that letter, he made no mention as to why he had been absent and would be absent during the first half of October 1994. Even at the trial, after admitting that he was not covered by a sick leave certificate, he gave no explanation as why he had been absent from work for almost ten days up to 16 October 1994. As to his evidence that he had told a secretary over the telephone before 16 October 1994 that he was on sick leave, that was a plain lie to the secretary and, by extension, to the court.

Termination

16. Originally, Mr. Soulsby's case was that he had been dismissed on 16 October 1994. After the fake sick leave certificate had been exposed at the trial, Mr. Wright submitted that his client was in fact dismissed on 28 October 1994 when he had a genuine sick leave certificate. The basis for this modified case is the transcript of the recorded conversation on 28 October 1994 quoted in extenso above.

17. I accept that the conversation took place on 28 October 1994. I also accept that it was on that day that the two directors of the Defendant told Mr. Soulsby that he had been dismissed. However, as a matter of principle the effective date of dismissal is not necessarily fixed by the date of notice of dismissal. Although notice of summary dismissal ought to be communicated to the employee forthwith, there are cases, as in the present one, when the employee deliberately made himself unavailable for notice. In such cases, the effective date of dismissal is the date on which the decision to dismiss was made. In the instant case, the transcript of the conversation on 28 October 1994 reveals that the directors of the Defendant had decided on 16 October 1994 to dismiss Mr. Soulsby because he had not been to work for 3 days since 13 October 1994. Mr. Soulsby himself complained during that conversation that he had learned from people unconnected with the Defendant that he (Mr. Soulsby) had been regarded as no longer working for the Defendant. Mr. Soulsby bluffed the directors with sick leave for the first half of October 1994. The directors apparently were unsettled by the implication of dismissal during sick leave and were probably willing to reconsider. But Mr. Soulsby eventually scuttled all hope of re-conciliation by saying "Let us forget the crap. You have fired me." So he too treated himself as having been fired on 16th October 1994; otherwise he would not have felt the need to utter a "sick leave certificate" to cover the date of dismissal.

18. Mr. Wright, doing the best for his client, pointed out that towards the end of the conversation on 28 October 1994 the directors handed a termination account to Mr. Soulsby for him to sign. That account is dated 28 October 1994. Hence counsel argued that the date of termination should be 28 October 1994. In fact, the 28 October 1994 was the earliest possible date (due to the absence of Mr. Soulsby) after dismissal on 16 October 1994 that the Defendant could provide Mr. Soulsby with a termination account. When one reads this termination account, it is clear therein that outstanding salary for Mr. Soulsby was calculated to 16 October 1994. Bearing in mind this termination account was prepared before the meeting on 28 October 1994 started, it is indisputable evidence that the Defendant did dismiss Mr. Soulsby on 16 October 1994.

19. As to the ground of dismissal, Mr. Soulsby admitted that he had been late for work on a number of occasions. He also admitted that he had a letter of warning in this regard from the Defendant dated 30 September 1994. Then for nearly 10 days in the first half of October 1994, he was not only late, he was absent. Ironically, Mr. Soulsby throughout his evidence during the trial maintained that he was indispensable because only he knew the system he was put in charge and no one else in the Defendant's office knew much about it. Such key staff making himself unavailable for work for so many days without reasonable excuse cannot be condoned. The law, clearly, must regard such prolonged absence by a key staff without leave or reasonable excuse as conduct inconsistent with the due and faithful discharge of his duties or as habitual neglect of duties.

20. Accordingly, I have no difficulty in holding that the Defendant lawfully dismissed Mr. Soulsby summarily on 16 October 1994 under section 9(a)(ii) or (iv) of the Employment Ordinance, Cap. 57. It follows that the claim for salary in lieu of notice and sick leave allowance must fail.

Commission

21. The Employment Letter says "Commission on Sales: 8-10% of Sales value, to be determined." Mr. Wright contended that such provision means that Mr. Soulsby would be entitled to a minimum of 8 % commission on sales and he would urged the court to award 9% or 10% commission. Miss Cruden, on the other hand, argued that "8-10% to be determined" is only as good as no agreement on commission. I suspect this part of the contract between the parties may well accommodate a range of opinions on interpretation.

22. Counsel for the parties have pointed to 4 possible ways of treating the provision for commission : - 8%, 9%, 10% or none. These are ambiguities. Whilst Mr. Wright's contention is attractive, I suggest it is self-defeating. If I understand it correctly, Mr. Wright was saying that if the parties could not agree on another rate between 8% and 10% Mr. Soulsby is entitled at least to the lower 8%. But counsel for Mr. Soulsby could have also argued that 10% is the starting point unless the Defendant can get Mr. Soulsby to accept a lower percentage. In other words, on behalf of Mr. Soulsby, 2 opposite but equally logical positions can be canvassed. For my part, that the wording under consideration signifies some sort of binding agreement is difficult to uphold. If a percentage (whether the minimum or maximum) has already been agreed, there is no obligation nor incentive for the party who stands to gain more from the agreed percentage to accept another percentage. If it is argued that a range of percentages has been agreed, suppose each party adopts a different percentage within the range and would not compromise with the opposite party, the result would be no binding agreement. Obviously, it is wrong in principle to strike at the middle and take 9% for that would be writing the contract for the parties.

23. Moreover, assuming that the problem of percentage can be resolved, there is no way the court can determine from the wording whether commission is payable on outright sales and rentals or just on outright sales. There are also questions of when commission would be payable - payable upon signing of the contract with the customer? Payable upon full payment by customer? Payable only for so long as Mr. Soulsby was still in the employ of the Defendant? In the premises, I may hold that the wording per se in the Employment Letter is too ambiguous and too uncertain as to constitute any agreement between the parties on commission.

24. However, there is further evidence that a binding agreement might have been reached later. It has been seen that there is the Commission Memorandum attached to the letter dated 30 September 1994 from the Defendant to Mr. Soulsby. The Commission Memorandum contains concrete terms including the rates of commission for the first year. In the transcript of the recorded conversation on 28 October 1994, the directors of the Defendant mentioned that they had discussed and agreed with Mr. Soulsby commission for the first year. I take it that they regarded the contents of the Commission Memorandum as the result of the discussion and agreement. Pursuant to this later agreement after discussion, the directors included in the termination account dated 28 October 1994 an account of commission (albeit a relatively small amount) due to Mr. Soulsby. I would have thought that these evidence can be the basis on which Mr. Soulsby could claim entitlement to commission.

25. Unfortunately, for whatever reason, Mr. Soulsby instructed his counsel to reject the Defendant's case and put the claim for commission on the basis of the Employment Letter which I have found to be unsound. Indeed, Mr. Soulsby's own evidence under oath is that -

"A. It was never determined in actual fact for the simple fact that they would never talk about it, they would never talk about commissions. When I brought the subject up, commissions, it was always put off.

Q. When you entered into the contract you knew that there was something yet to be determined, because you'd read this clause, had you not?

A. To be determined between 8 and 10 per cent of sales value.

Q. That's how you read that.

A. On one particular instance, the Hong Kong Stadium bought a system from us and I should have received commission for that sale but the commission was deducted from the money I owed to the company and it was deducted on ....

Q. You understand that clause 4 states that your commission is to be determined to some extent.

A. To be determined was stated and that is what is written, but it was never determined because no one would talk about it.

Q. That's not strictly so, is it, because in fact it was a matter that was considered?

A. We never sat down and discussed the determination of the actual commissions.

As to the termination account, Mr. Soulsby on 28 October 1994 and at the trial made it quite clear that he did not accept the calculation of commission based on the Commission Memoradum.

26. There is a further difficulty for Mr. Soulsby. In this case, if one were to force upon Mr. Soulsby the agreement for commission (which he has vehemently denied) reflected in the Commission Memorandum, he still has to prove, according to the terms of that agreement, that the Defendant has received payment from the customers. Mr. Wright complains at the trial that the Defendant had not made full discovery regarding payment from customers. With respect, it was too late to complain and there is little justification for such complaint. If those acting for Mr. Soulsby had reason to suspect failure on the part of the Defendant to make full discovery, they should have applied to the court for an appropriate search order to obtain full discovery. The Defendant having filed its List of Documents stating that it has made discovery as directed by the court, in the absence of contrary evidence, the court has to accept that the Defendant has disclosed all the documents in its possession. But none of the documents disclosed by the Defendant except the termination account shows that the Defendant has received payment or how much from the customers for the "sales" achieved by Mr. Soulsby.

27. Besdies, Mr. Soulsby as the Plaintiff carried the burden to prove each and every element of his claim. Since it is Mr. Soulsby who alleges that he is entitled to commission, and according to the only agreement by which he may receive commission payment by the customers is a necessary condition, Mr. Soulsby must adduce evidence to prove payment by customers. Mr. Soulsby could have summonsed the customers who had allegedly done business with the Defendant through him to show to the court what payments they had made to the Defendant. Nothing towards that end was done. Instead, Mr. Wright contended that the court may find in favour of his client on the basis of a presumption of regularity, i.e. assuming that customers would pay up in full after signing contracts. Plainly I cannot accept such proposition.

28. As matters stand, Mr. Soulsby has rejected the only agreement on which he may claim commission and he has produced no proof that his right to commission under that agreement had arisen. I believe, therefore, that Miss Cruden quite properly submitted that Mr. Soulsby is not entitled to any commission.

29. Nevertheless, the Defendant did render a termination account dated 28 October 1994 acknowledging outstanding commission of $10,982 due to Mr. Soulsby. I think the Defendant cannot begrudge that this sum is awarded to Mr. Soulsby.

30. Mr. Wright in open court has admitted on behalf of Mr. Soulsby that Mr. Soulsby owed the Defendant a total of $35,220 for personal loans and advances counterclaimed by the Defendant.

Order

31. Accordingly, there is judgment for the Defendant on the counterclaim for $35,220 which is partially set off by $10,982 and interest on the balance after the set-off. Subject to the set-off, the Plaintiff's claim is dismissed in its entirety. I also make an order nisi for costs of the action to the Defendant to be taxed if not agreed. The order nisi becomes absolute 21 days after the date hereof unless otherwise varied. The Plaintiff's own costs is to be taxed in accordance with legal aid regulations. There is also certificate for counsel.