WU MAN KWONG v. ASIA CULTURE BROADCAST CO LTD

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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REASONS FOR DECISION

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1. Today, after discussion with Mr. Collins for the Appellant, I adjourned the hearing of this appeal to a date to be fixed to enable the Labour Tribunal to furnish supplemental Reasons for Decision if considered necessary. This is not the usual order one would make in this sort of matter at this stage. I think I owe an explanation to the learned Presiding Officer concerned as to how he might further assist the appellate court. Moreover, since the Appellant is legally aided and Mr. Collins for the Appellant having indicated that he is ready to proceed with the hearing of the appeal, I should give my full reasons for adjourning the hearing.

2. This is an appeal against the decision of the Labour Tribunal dismissing the Appellant's claim for arrears of wages. The Grounds of Appeal also refers to end of year payment and damages. However, counsel for the Appellant says in the Skeleton Arguments that those two latter items are no longer in issue. According to the Grounds of Appeal, the learned Presiding Officer erred in law in dismissing the claim of the Appellant for arrears in wages for the period from 1st December 1996 to 28th February 1997:-

3. I do not think it is necessary for present purposes to go further into the Skeleton Arguments prepared by Mr. Collins suffice to say that on the face of it those arguments are attractive.

4. I regret to say that the written Reasons for Decision of the Tribunal is not easy to follow. This may reflect the unhelpful way the parties presented their respective case during the trial. Apparently, the Appellant was employed as the supervisor of a cultural television programmes production unit. Towards the end of November 1996, the entire staff of that unit tendered collective resignation to the management alleging mal-administration by the Appellant. According to the learned Presiding Officer, it was not in dispute that a senior person acting for the Respondent" suspended the duty of the Claimant as production supervisor with effect in early December 1997 in order to maintain the continuous service of the other staffs." I am sure what the learned Presiding Officer meant is that the Appellant was temporarily relieved of his supervisory post by the Respondent company in order to induce all the other staff to withdraw their resignation. The learned Presiding Officer further observed that "The salary of the Claimant is also reduced by 1/3" and that "The Claimant admits that he has been suspended."

5. The Reasons for Decision indicates that the learned Presiding Officer was presented with a barrage of witnesses over factual issues as to what happened after the Appellant was suspended. The Respondent company alleged that the Appellant, although relieved of supervisory duties, was instructed to a report to a branch office. However, the Appellant failed to report to the branch office as instructed but he did attend some meetings. The Appellant's case, apparently, was that after he had been suspended, he was given three assignments and he exerted efforts on those assignments until the end of February 1997 at which point in time he regarded himself as having been constructively dismissed.

6. The learned Presiding Officer devoted a lot of efforts to evaluation of the evidence. In short, he found most, if not all, the witnesses for each side either useless or unreliable. He did not believe the Claimant's evidence about reporting for work. He specifically concluded that the Claimant did not at all work on the three assignments he said he was given. The basis for dismissing the claim for arrears of wages, and I quote from the Reasons for Decision of the Tribunal, was that:-

"Where an employee was not required to return to work, and could not prove that he had performed any work for the employer, he is not entitled to any wages as he has given no consideration for the contract."

I am inclined to think that it would be well nigh impossible to find any authority for such proposition.

7. Section 11 of the Employment Ordinance, Cap. 57 relied upon by Mr. Collins restricts suspension with reduced pay to a maximum of 14 days At today's hearing, I mentioned that although the Appellant was suspended from a supervisory office, a kind of temporary demotion, there may be a distinction between such kind of suspension and the suspension within the meaning of section 11. Moreover, whilst the learned Presiding Officer observed that the Appellant "admitted" that he was suspended, Mr. Collins on behalf of the Appellant conceded that he the Appellant "agreed" to the reduction in salary. Since today was not to be treated as the hearing of the appeal, I did not press Mr. Collins on the extent of the Appellant's agreement, i.e. whether he agreed to a permanent reduction of salary or just for the duration of the suspension as he the Appellant understood it. If in fact the Appellant agreed to a permanent reduction of salary, say, as an alternative to outright dismissal, then the calculation of any arrears of wages owing is different. The evidence before the Tribunal seem to suggest that the Respondent initially suspended the Appellant for one month after which time the board of directors would make a further decision. The Reasons for Decision states that the suspension was never lifted but the Tribunal is silent about the possible effect of section 11 of the Employment Ordinance, Cap. 57.

8. Further on evidence before the Tribunal, I note from the Tribunal's case file that various documents amounting to a bundle, almost all in Chinese, were produced. The Reasons for Decision referred to Exhibit D10. The significance of this document, according to the learned Presiding Officer, is this:-

"According to the DCR, [the Respondent] accepted [the Appellant's] repudiation by sending him the letter "D10". But in the evidence, this letter was put in the desk of the Claimant at the Kodak House, which according to the Defendant, he had not attended. It could not be proper service. Posting of the letter could not be proved. I therefore found that [the Appellant's] employment was terminated by the Defendant on 28/2/97 when he claims section 10 resignation."

I have studied this letter Exhibit D10. It is a very short letter worded in Chinese purportedly by the Respondent company addressed to the Appellant Roughly, this letter dated 9th December 1996 says that because the Appellant had failed to report for work and perform duties since 1st December, 1996, more than seven days having elapsed since then, and there being no report or explanation to the Managing Director of the Respondent company, the Appellant was thereby notified that he was deemed guilty of gross dereliction of duty and having left employ of his own accord. Did the learned Presiding Officer consider this letter as decision to summarily dismiss the Appellant under section 9 of the Employment Ordinance, Cap.57? Under section 9, an employee may be dismissed without notice for wilful disobedience, misconduct, dishonesty or habitual neglect of duties. No question of service of notice arises in the case of a section 9 termination of employment.

9. As I indicated to Mr. Collins, if the Tribunal had not come to any finding about the status of employment of the Appellant as of 9th December, 1996, it would be open to an appellate court to draw inference from the letter Exhibit D10 and from the finding by the learned Presiding Officer that the Appellant had disobeyed a reasonable order requiring him to report for work and had neglected to perform assignments given to him such that the Appellant was effectively and lawfully dismissed under section 9 without notice. In that event, the Appellant's claim for arrears of wages must fail. Even if the Appellant was not dismissed on 9th December 1996 by virtue of the letter, non-payment of salary on the following pay day may be taken as unequivocal decision to dismiss. In that event, the arrears of wages may be reduced. But there is no clear finding by the learned Presiding Officer as to when the Respondent stopped paying the Appellant. An inference or finding of fact on this may be based on the bundle of documents in Chinese produced at the trial.

10. Acting as the appellate court, I would not like to come to any conclusion on the basis of primary documentary evidence unless Mr. Collins has had the opportunity to assess the meaning and effect of such evidence. Mr. Collins informed me that those instructing him had not obtained copies of the primary evidence and so he had not gone into them. In any event, I suspect Mr. Collins would need certified translation of the documents to work on. And, if indeed the evidence throws the case in different light, the basis of the appeal and even the basis of legal aid may have to be re-considered.

11. In all the circumstances, it would not be right to proceed with hearing the appeal. Accordingly, I adjourned the hearing pending any further assistance that may come from the learned Presiding Officer by way of supplemental Reasons for Decision.