SUBIANTO WINDAYANI v. HON WAI SHAN JESSICA

HCLA 102/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 102 OF 2001

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 9433 /2000)

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REASONS FOR DECISION

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1. This is an appeal against the decision of the Labour Tribunal made on 14 December 2001. The Presiding Officer dismissed the Claimant's claim. Leave to appeal was granted to the Claimant on 7 June 2002. On 22 November 2002, after hearing submissions from the parties, I allow the appeal and set aside the award of the Presiding Officer. I also remit the case to the Labour Tribunal for a retrial before another Presiding Officer. I now give reasons for my decision.

2. In view of the fact that there would be a retrial, I would not go into much of the details of the case except to highlight the essential points. Although a number of grounds were raised in the appeal, I only find it necessary to decide the appeal on one ground. It was accepted by counsel that if this ground is established, the case has to be remitted to the Tribunal for retrial.

3. Before I turn to this ground of appeal, I briefly state some background about the case. The Claimant was an Indonesian maid employed by the Defendant for two contract periods between 15 November 1996 and 12 November 2000. Her case is that the Defendant did not pay her the wages at the rates she was entitled to and this had occurred since her first employment contract with the Defendant. Under the first contract (15 November 1996 to 14 November 1998), she was entitled to a monthly salary of $3,750 per month whilst she was only paid $2,000 per month. Under the second contract, she was entitled to a monthly salary of $3,860 but she was only paid $2,600. She also claimed that she was deprived of rest days, statutory holidays and annual leave throughout her employment. The other claims of hers are severance pay or alternatively long service pay.

4. The Defendant denied that she had underpaid the Claimant. She also denied that the Claimant did not have any rest days, statutory holidays or annual leave. Regarding the termination of the employment, the Defendant's case is that the Claimant left on her own volition.

5. There is no direct documentary evidence to support the case of either party. The Defendant alleged that she had receipts regarding payments of salary made to the Claimant. However she said those receipts had been stolen and therefore she could not produce the same. The payments were, according to her, made in cash. Although the bank passbook record in respect of the bank account of the Claimant were produced as evidence, they are again inconclusive by themselves. The Claimant has provided some explanations as to some of the entries. There are also some entries which are consistent with her case.

6. It is quite obvious to me that the resolution of this case depends on the credibility of the parties and their witnesses. In the circumstances, it is important that the Presiding Officer has to hear the oral testimony of the parties carefully and assess the same in the light of the other evidence placed before him. He would also need to test the evidence before he could properly come to the relevant finding of facts.

7. Regrettably, based on the material before me, I have come to the conclusion that the Presiding Officer did not perform this task satisfactorily and there is a serious likelihood that the Claimant has not had a fair trial. The first ground of appeal relied upon by Ms Sim (counsel for the Claimant) is divided into three points in the Grounds of Appeal filed on 8th November 2002. They are as follows,

"(a) The learned Presiding Officer erred in law that he failed to call the Defendant to give evidence or omitted to direct that the Defendant give her evidence in court for the trial before the Tribunal. In that the Defendant did not give evidence in court, the Claimant has been deprived of the opportunity to cross examine the Defendant on the relevant issues and to the credence of the Defendant's assertions, thereby giving rise to the Claimant being seriously prejudiced in the said proceedings.

(b) The learned Presiding Officer erred and was wrong and mistaken that the Defendant herself did give evidence where in fact the Defendant had not given any evidence at all during the trial. Further, that the Defendant herself did not give evidence during trial, the learned Presiding Officer did not or has failed to investigate or had not adequately investigated into the assertions of the Defendant on the relevant issues or at all.

(c) By reason of the matters aforesaid, the learned Presiding Officer was wrong and erred in his findings that the Defendant was a credible witness and that the Defendant's evidence and that of her husband, the Defendant's 1st witness were honest and reliable. Such findings were bias, inconsistent, have no bases and was wrong, erroneous and unsupported by evidence."

8. Those grounds were not advanced when the court granted leave to appeal. This is understandable. The Claimant was unrepresented at that stage. The transcript was not produced. Through the diligence of Ms Sim, these grounds were formulated after she had the chance to go through the transcript. At the outset of the appeal, she applied for leave to raise some additional grounds (including those set out above) in the appeal. Mr Leung, counsel for the Defendants, quite fairly did not object since he has been given sufficient time to deal with those grounds and has in fact filed skeleton submissions in response to those grounds. I gave leave accordingly.

9. Mr Leung accepted that the Presiding Officer made mistakes in his oral and written reasons for decision by referring to evidence being given by the Defendant whilst in fact she did not formally give any oral evidence at the trial. What happened was that the trial proper took two days and there was, unfortunately, a long time lapse in between. The written Reasons for Decision recorded that the trial took place on 15 January, 20 March, 9 July and 14 December 2001. The first two dates, according to the transcript, were actually call-over hearings. The trial proper took place on 9 July and 14 December.

10. On 9 July 2001, the Claimant gave evidence first. She was cross-examined by the Defendant. Then the Presiding Officer enquired with the Defendant whether she would give evidence herself or call her witness first. The Defendant elected to call her witness first (see p.33S of transcript). Her first witness was her husband. The evidence of that witness and the cross examination by the Claimant took up the rest of the afternoon. Before the case was adjourned on that day, the Presiding Officer reminded the Defendant that she had not yet given evidence (see p.46G of transcript).

11. When the trial resumed on 14 December 2001, the Presiding Officer somehow thought that the Defendant had already given evidence and made observation to that effect (see p.1 M of the transcript). I cannot speculate how the Presiding Officer got that misconception. If the parties were legally represented, I am sure that such misconception on the part of the Presiding Officer would have been rectified. However, there is no legal representation in the Labour Tribunal and in order to have a fair trial, a presiding officer must familiarize himself adequately about the case without the assistance of lawyers. As it happened, that misconception was not dispelled and it surfaced again in his reasons for decision.

12. Mr Leung submitted that although there were mistakes on the part of the Presiding Officer, they were only technical mistakes and the Claimant was not prejudiced. He invited this court to view the mistakes of the Presiding Officer as "slips of tongue" and treat the references by the Presiding Officer to the evidence of the Defendant as references to the evidence of her husband. I cannot accept this submission. Reading the Reasons for Decision carefully, the inevitable conclusion is that when he was weighing the evidence, the Presiding Officer mistakenly thought that the Defendant had actually given evidence before him. This is apparent from Paras. 3, 4, 9,11 and 12 of the Reasons for Decision. Such conclusion is reinforced by the observation of the Presiding Office at the beginning of the resumed trial on 14 December 2001 referred to in Paragraph 11 above. The Presiding Officer gave his decision on the same date, and the transcript of his oral reasons recorded the same mistakes.

13. I could not see how it can be suggested that such mistakes would not cause any prejudice to the Claimant. Mr Leung's contention was that the absence of evidence from the Defendant herself would not prejudice the Claimant. But we are not dealing with a situation of absence of evidence from the Defendant per se. We are dealing with a situation where notwithstanding that the Defendant did not give evidence, the tribunal of fact acted on the basis that she had given evidence. Mr Leung said the evidence the Presiding Officer had in mind must be the evidence of the husband since he had not heard evidence from the Defendant. Again I cannot agree with this speculation. One must not forget that the Defendant has also given a statement to the Labour Tribunal and it was marked as exhibit D-1. From the transcript, it is not clear as to how and when that statement was adopted as evidence of the trial. In any event, it is quite clear that the Defendant did not confirm the contents of the statement under oath and the Claimant was not offered any opportunity to cross-examine the Defendant. There is no record that the Claimant was given any chance to read that statement. In any event she might not even be in a position to understand it since it was written in Chinese and the Claimant is an Indonesian. In such circumstances, bearing in mind the significance of the credibility of the witnesses in the present case as stated in Paragraph 6 above, although the strict rules of evidence is not applicable and the procedures could be informal in the Labour Tribunal, it would be grossly unfair to the Claimant if such statement were taken into account by the Presiding Officer as part of the evidence.

14. Of course, we do not know whether the Presiding Officer actually regarded the contents of that statement as evidence of the Defendant when he adverted to the Defendant giving evidence in his Reasons for Decision. Ms Sim submitted that the Presiding Officer probably thought that the Defendant had given oral evidence. In paragraphs 3, 4 and 12 of his Reasons for Decision, the Presiding Officer said the following,

"被告人及她的丈夫 ...作供都說..." (Para. 3)

"被告人及她的丈夫亦作供說..." (Para. 4)

"本席接納被告人所說" (Para. 12)

These suggest that the Presiding Officer thought that the Defendant had actually given oral evidence. One possibility is that the Presiding Officer thought that the Defendant had given evidence to the same effect as the evidence of the husband. Alternatively, the Presiding Officer might have thought that the Defendant had adopted her statement as evidence under oath.

15. As I said, I do not think it is appropriate for me to speculate. It is enough for me to say that I cannot be satisfied that the mistakes of the Presiding Officer did not cause any material prejudice to the Claimant.

16. Mr Leung raised two points to support his submission of lack of material prejudice. The first point was that the Presiding Officer had the evidence of the husband in any event. In my judgment, that is of no assistance to the Defendant. One really cannot rule out the possibility that there might be material difference if the Presiding Officer had it clear in his mind that the defence case on those matters rested on the evidence of the husband alone instead of the evidence of the husband and the Defendant. The Presiding Officer might have assessed the weight of the evidence differently.

17. Mr Leung's second point was that in his Reasons for Decision, the Presiding Officer gave several reasons in paragraphs 6 to 8 for disbelieving the Claimant and Mr Leung submitted that once the Claimant was disbelieved, her case must inevitably fail. The Presiding Officer did not mention the evidence of the Defendant in those paragraphs setting out his reasons for disbelieving the Claimant. However, the Reasons for Decision must be read as a whole and it is quite clear to me that he thought that the Defendant had given evidence and took that into account in his fact finding process. The reasons given by the Presiding Officer in paragraphs 6 to 8 for disbelieving the Defendant were rather inconclusive by themselves and I could not rule out the possibility that he was influenced by the misconception as to the Defendant's evidence when he rejected the evidence of the Claimant. In this connection, one must bear in mind the observations of Lord Hoffmann in Piglowsa v Piglowski [1999] 1 WLR 1360 at p. 1372 E to F,

"...[S]pecific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

18. Because of this, this court should be slow in coming to the conclusion that the mistake of the Presiding Officer as to whether a witness has actually given evidence did not cause any material prejudice to the other side. In the circumstances of the present case, I could not come to this conclusion.

19. It follows that on this ground alone, the appeal must be allowed and the case has to be remitted to the Labour Tribunal for retrial.