ALFIAH BINTI NURJAHIDIN v. HUI HOONG KEONG

HCLA NO.14/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

LABOUR TRIBUNAL APPEAL NO.14 OF 1997

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J U D G M E N T

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1. This is an appeal by the Appellant Alfiah Binti Nurjahidin against the Award of the Labour Tribunal dated 26 February 1997 in which her claim for wages in lieu of notice, arrears of wages, airport tax, rest day pay and statutory pay were dismissed. She was ordered to pay costs of $7,000.

2. The Appellant was employed by the Respondent as a domestic helper at a monthly salary of $3,500. On 25 July 1996 she had a dispute with the Respondent's wife and on the following morning she signed a resignation letter which was back-dated to 26 June 1996 on the advice of the Respondent. The Respondent gave her $3,033 which she accepted and was asked to collect the return passage air ticket from the employment agency. She did not leave Hong Kong but took up employment with another employer.

3. The Appellant's case was that she was only paid $1,500 to $1,800 as salary each month instead of the contractual sum of $3,500. She was, however, required by the Defendant to sign for the full amount each month. The receipts bearing her signatures were produced at the hearing. It was also her claim that throughout the course of her employment she was provided with only one rest day each month and had taken no statutory holidays.

4. The Respondent denied the Appellant's allegations.

5. The learned Presiding Officer took the view that the case had to be resolved on the credibility of the witnesses who gave evidence at the trial. Having considered the evidence before her, she did not find the Appellant to be an honest, truthful and reliable witness and rejected her version of events. Likewise she did not accept the testimony of Ms Adelina Tarrayo, a witness for the Appellant. She found the Respondent and his wife to be accurate and credible witnesses and accepted their account of the events.

6. There are two grounds of appeal. The first is that the learned Tribunal Officer failed to discharge her statutory duty to investigate under s.20 of the Labour Tribunal Ordinance. The second is that she failed to give sufficient weight to certain aspects of the evidence.

7. On the first ground, it appears to me that Counsel for the Appellant was labouring under the all too common misconception that no Grounds of Appeal would be complete unless an allegation of failure to investigate is included. More often than not, a Presiding Officer is criticised for not discharging his duties under s.20 of the Ordinance. In my experience this type of allegation has taken on the characteristics of a ground of convenience rather than one of substance and the present case is no exception. In the Records of Proceedings and in her Reasons for Decision, the learned Presiding Officer had addressed herself and looked into all the relevant aspects of the issues before her and I cannot say that she had failed to discharge her duties to investigate.

8. On the second ground, the criticism were directed at the learned Presiding Officer's interpretation of the evidence on the issues of underpayment of wages, sufficiency of rest days and statutory holidays and whether there was constructive dismissal.

9. It was submitted that the contents of Exhibit C-6, a notebook containing itemised entries by the Appellant of her daily expenditure was not given sufficient weight. Had the learned Presiding Officer investigated into the figures in the notebook, it was argued, she could not have failed to notice that the Appellant's total expenditure for each month had never exceeded $1,500. This figure was an important part of the evidence because it would have supported her case that she had never been paid her full contractual salary of $3,500 at the end of each month.

10. With respect to Counsel for the Appellant, his entire line of argument is founded upon the premises that had the learned Presiding Officer adopted a particular approach or interpretation of the evidence she should have found in the Appellant's favour. It was also suggested that too much emphasis was placed on the credibility of the witnesses. On this last point, nowhere in the Reasons for Decision did the learned Presiding Officer appear to have been so preoccupied with the credibility of parties to the extent that she had overlooked the issues before her. It would have been surprising indeed if she was able to decide the case without any reference to the credibility of the witnesses. I can see no merits in the criticism levelled at the learned Presiding Officer on this point.

11. Turning now to the record of income and expenses maintained by the Appellant and produced as Exhibit C-6, at best this document was only an incomplete record maintained by the Appellant the accuracy of which could hardly be confirmed. At its worst it is a self-serving document the origin of which is suspect. At paragraph 16 of the Reasons for Decision the learned Presiding Officer made the following finding :

" I did not find Claimant to be an honest, truthful and reliable witness. At times she pretended not to understand questions, deliberately refused to answer questions or give direct answers. I rejected her version of events."

Having so found, she then refused to attach any weight to the contents of the document and I cannot say that her approach to the evidence before her was in any way flawed. I think this was a perfectly proper conclusion in view of her findings.

12. I see no merits in both grounds of this appeal. For the reasons given above the appeal is dismissed.

(K.K. Pang)

Judge of the Court of First Instance
High Court