LAW YING CHUNG v. LO CHUN-KIE t/a KOON HING PLASTIC FACTORY

DCCJ1071/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1071 OF 2002

(transferred from LBTC 5166 of 2000)

--------------------

--------------------

___________________________

JUDGEMENT

___________________________

1. This is a claim by the Plaintiff against the Defendant his former employer for unpaid allowances, unpaid wages, 1 month's salary in lieu of notice, compensation for annual leave not taken, severance pay or alternatively long service pay, annual bonus payments in the total sum of $471,377.54 or alternatively, damages to be assessed.

2. In the opening submission, the Plaintiff has conceded his claim for untaken annual leave should be 13.6 days instead of 57 days in paragraph 9 (e) of the Statement of Claim.

3. These proceeding were originally commenced in the Labour Tribunal under Action No. 5166 of 2000 and were subsequently transferred to the District Court.

4. It is not in dispute that:-

(a)	The Plaintiff was employed by the Defendant as a supervisor of the Defendant's factory in the PRC immediately prior to his dismissal on 16th June 2000;
(b)	The employment contract between the Plaintiff and the Defendant was made orally in or about 1968.

5. The Issues to be decided:-

(a)	Whether the Defendant employer had unilaterally varied the terms of employment by reduction of wages and cancellation of payments for allowances and annual bonus/year end payments;
(b)	Whether the summary dismissal of the Plaintiff employee on 16th June 2000 was justified; and
(c)	Whether there is untaken annual leave entitled by the Plaintiff.

Background

6. The Plaintiff has received only up to Primary School full-time education but whilst in employment, he had taken evening classes and has up-graded his educational standard to Form 4. According to the Plaintiff he has worked in the Defendant's Company since the end of 1968. According to the Defendant, the Plaintiff has worked for the Defendant since 1969. At the time of the Plaintiff's dismissal, he had worked for the Defendant for 32 years. According to the Defendant, the Defendant Company commenced operation in 1967. Hence, the Plaintiff worked in the Defendant Company shortly after the commencement of business of the Defendant.

7. At first the Defendant worked for the Defendant as an apprentice. According to the Defendant, the Plaintiff did not know anything when he started work as a very young man and he learned on the job and was promoted from time to time. Initially, the Plaintiff worked in the Defendant's factories in Hong Kong. Subsequently, in 1986, he was transferred to work in the Defendant's Mainland factory. Between 1990 to March 2000, he was responsible for overseeing the production unit of the Mainland factory apart from the production of samples. According to the Plaintiff, apart from this, he also had to be responsible for the production orders contracted out to sub-contractors although the quantity of these sub-contractors decreased with time. During the period of the illness of Lee Kung Kuen who was responsible for the Sample Section of the Mainland Factory, the Plaintiff had to stand in to do the work of Lee Kung Kuen in addition to his own work. According to the Defendant from March 2000, the Plaintiff was responsible for the Sample Section of the Factory when Lee Kung Kuen resigned. The work in the Production Section had been taken from the Plaintiff since the beginning of 2000.

8. The Plaintiff worked under the supervision of Mr. Lo Chun Cheung, who was overall in charge of the Mainland factory. Mr. Lo Chun Cheung was the paternal cousin of the Defendant.

9. According to the Plaintiff the Defendant treated him well at the beginning. In 1997, there were problems in the Defendant Company. From 1997, the management of the Defendant's Company was taken over by the Defendant's 2nd son Law Wah Fai （羅華煇）. The relationship was difficult between him and the Defendant's 2nd son.

10. The Defendant Company was run as a family business. The Defendant himself was in overall charge. His two sons were also in the management. Mr. Lo Chun Cheung, DW4, the Defendant's paternal cousin was overall in charge of the Mainland factory. Other staff from Hong Kong included Lee Kung Kuen originally in charge of the sample department of the Mainland Factory who had resigned because of ill health stated to be in the nature of mental illness. The other staff was Szeto Lai Chun, DW2 in charge of documentation in the Hong Kong office. She was a cohabitant of Lo Chun Cheung and had been so for 18 years.

11. It is not disputed that in before March 1998, the Plaintiff's salary was $10,680 per month. According to the Defendant, $80 of this was a traveling allowance that was given many years ago. However, according to the Plaintiff the Defendant unilaterally reduced his salary to $8,080 per month. According to the Defendant, the reduction was by agreement. From sometime in 1997 the Defendant started to make complaints about the work performance of the Plaintiff. There were many incidents complained of. Many of these incidents have written records with signed admissions and confessions by the Plaintiff.

12. The style of management and the atmosphere under which the Plaintiff had to work becomes clear from the evidence of the witnesses.

The 1st Issue

Did the Plaintiff agree to the reduction of salary

The Plaintiff's Evidence

13. The Plaintiff stated that every year before the Defendant issued the year-end bonus payment, he would speak on a one to one basis with his staff in his office. On the 24th January 1998, he had a meeting with the Defendant in his office wherein the Defendant stated that he was not satisfied with the performance of Lo Chun Cheung, Lee Kung Kuen, Szeto Lai Chun and himself. He then stated that the monthly allowances that had previously been issued would not be issued on a monthly basis and it would be withheld. If anyone of them made an error it would not be issued but would be issued when their performance is good. If anyone of them made an error, none of them would be issued any allowance. Secondly, the Defendant told him orally that this year, he would not be issued a year-end bonus. He stated that he did not agree as he had not been given earlier notice and he had no money for Chinese New Year. The Defendant stated that he would be willing to lend him money for Chinese New Year. Thirdly, the Defendant stated that after Chinese New Year, the Defendant may reduce his salary. After he came out of the office, the Defendant spoke to other colleagues on a one to one basis. Afterwards, the Defendant spoke to the four of them. The Defendant stated that they had to follow the Defendant Company's instructions to manage well the factory failing which the Company would deduct either part or the entirety of their year-end bonus. They had to sign on a piece of paper. He signed one sheet of paper. He then asked Lo Chun Cheung whether he should borrow money from the Defendant as the Defendant had offered to lend money to him. Lo Chun Cheung stated that if he did not borrow money from the Defendant he would be a fool, as the Defendant had never requested repayment of money lent to staff. He then went into the Defendant's office and he requested to borrow $2,000 more than the sum of $10,000 offered. He therefore borrowed $12,000 from the Defendant. He signed a loan note therefore.

14. Subsequently, on payday on the 5th March 1998, he discovered that a sum of $2,600 had been deducted from his salary. He wrote a letter to the Defendant at page 11 of the Bundle of Documents (BD2). In that letter he stated that he found it unreasonable that the Defendant deducted his salary and allowance in the total sum of $4,350 per month and cancelled his double pay. He stated that if the Defendant found that his work performance did not reach the Defendant's requirement, the Defendant should either lay-off or dismiss him. He requested the Defendant to reconsider the matter. On 10 March 1998, he again sought to claim or recover this deducted salary from the Defendant. He had a three-hour discussion with the Defendant but without result.

15. On the 14th March 1998, he wrote a letter to the Defendant informing him that as he did not have any success in his discussions with the Defendant, he would approach the Labour Department for help. This is at page 12 of the Agreed Bundle of Documents (BD2).

16. On the 26th March 1998, the Defendant and Szeto Lai Chun persuaded him to cancel his claim to the Labour Department. The Defendant threatened him that if he did not abandon his claim to the Labour Department, he would deduct all the money he owed the Defendant from his next month's salary. The Defendant promised that if he canceled his complaint to the Labour Department, he would give back the deducted salary to him. At this point he still did not agree to cancel his complaint.

17. On 30th March 1998, the Plaintiff was in the Mainland factory. He received a telephone call from Szeto Lai Chun who was based in Hong Kong. Szeto Lai Chun stated that the Defendant promised and undertook to reimburse the deducted salary to him and would write a written undertaking to him. Further, his superior, Lo Chun Cheung constantly whispered in his ear that he should allow the Defendant room to step down. The Defendant would surely lose in a claim filed by the Plaintiff. Were he to pursue his claim, it would cause the Defendant to lose face. Under such circumstances he believed in the Defendant. He therefore sent a fax to the Labour Department to cancel his complaint from the Mainland factory and thanked the Labour Department for their help. The letter is at page 2 of BD2 wherein he stated that he had considered the matter and he would resolve this claim between himself and his employer. He asked to cancel the appointment fixed for the 1st April 1998.

18. On 2nd April 1998, he returned to Hong Kong. Szeto Lai Chun handed him the undertaking from the Defendant. This is at page 16 of BD2. This states that the boss stated that in relation to the question of $2,600, it relates to the year-end bonus Agreement. $2,600 would be deducted each month from his salary and would be put into the 1998 year-end bonus Agreement. The Plaintiff would receive at the end of the year $36,000 or more. This is an undertaking. The Plaintiff stated that he felt cheated as the original year-end bonus Agreement related to the setting aside of his allowances to be put into the year-end bonus Agreement, now this note referred to the deduction of $2,600 from his salary into the year-end bonus Agreement. He stated that on 24 January, he had signed the note at the Defendant's request related to the year-end bonus Agreement because he was in need of money for Chinese New Year and he needed to borrow the money from the Defendant. That was why he signed this at page 13 of BD2 and signed the loan note.

19. He stated that it was incorrect to set aside $2,600 of his salary into the year-end bonus Agreement as originally, the agreement was to set aside the allowances into the year-end bonus Agreement.

20. In 1999, the Defendant did not issue to him the deducted salary. He then realized that the Defendant had cheated him.

21. In August 1998, he enquired from Szeto Lai Chun about the owed salary. She replied that the note already stated that it would be issued at the end of the year. He could wait till the end of the year to raise this should the Defendant fail to issue this to him.

The Defendant's Evidence

22. The Defendant stated that in his interview with the Plaintiff on the 24 January 1998, he told him that the Defendant Company had decided the following:-

(1)	In relation to the year-end bonus for the year 1997, the Defendant Company would not issue any year-end bonus to him.
(2)	From the month of February, a sum of $2,600 would be deducted from the Plaintiff's monthly salary of $10,600. The Plaintiff's salary would be adjusted downwards to $8,000 p.m.
(3)	The decisions made were based on the work performance of the Plaintiff. The decision was to serve as a warning and to spur him to work harder.

After discussion, both sides agreed as follows:-

(1)	From February 1998, the Plaintiff's salary would be reduced from $10,600 to $8,000.
	The Defendant agreed that were the work performance of the Plaintiff to improve, with the agreement of his superior, the Plaintiff could apply to the Defendant to reinstate his former salary.
(2)	In relation to the new arrangement for the year-end bonus, he told the Plaintiff that the Defendant would try a new system of releasing year-end bonus. The issue of year-end bonus in the past 40 years had been dependant on the work performance of staff and had been issued on a discretionary basis. He now reaches a year-end bonus agreement with his staff. He would notify his staff in advance the amount of the year-end bonus, which he wrote on a sheet. He hoped they would do they best to attain this. Those whose performance is not up to standard would only be able to get part of the bonus or none at all. He required each of his 4 staff to sign their names on the note. The Plaintiff also signed on the note.
(3)	Subsequently he spoke to Lo Ying Chung alone and told him that the Defendant had fixed a sum of $36,000 year-end bonus as a sum that could be attained by him. Should his performance improve after the New Year holidays, with the permission of his superior, he could apply to the Defendant to restore his original salary. Even were his original salary to be restored, he could still have the possibility of attaining a year-end bonus of $36,000.
(4)	The Plaintiff indicated his agreement and stated that he would work hard. Subsequently the Plaintiff asked the Defendant for a loan of $12,000. The Plaintiff also stated that he would work hard.

23. On 5th March 1998, the Plaintiff reneged on the agreement and wrote a letter to him. The Defendant stated that he was angry. He talked with the Plaintiff but without result. He stated in evidence in chief that at that point he called the Plaintiff back to scold him. On 10th March 1998, he had a 3-hour discussion with the Plaintiff but without result. On 14th March 1998, he arranged a further discussion. However, the Plaintiff failed to turn up. He then discovered that the Plaintiff had filed a complaint to the Labour Department related to the reduction of salary.

24. On 26th March 1998, the Plaintiff requested Szeto Lai Chun to reflect to him that the Plaintiff requested him not to require the Plaintiff to repay the money he owed the Defendant. Were the Defendant to reduce his salary because the Defendant Company encountered a reduction of profit, he would agree to such reduction.

25. On 30th March 1998, the Plaintiff voluntarily canceled his claim filed at the Labour Department. Szeto Lai Chun handed to him the memorandum written by her on behalf of the Plaintiff at page 1 of BD2 to reflect the Plaintiff's views. He found that it did not contain the signature of the Plaintiff. He stated that he scolded Szeto Lai Chun because she had not obtained the Plaintiff's signature to this memorandum that was said to reflect the views of the Plaintiff. He told her to obtain his signature on it first before giving it to him. Subsequently the Plaintiff and Szeto Lai Chun signed it.

26. On 2nd April 1998, the Plaintiff together with the Defendant's representative, Ms. Szeto Lai Chun signed the Labour Department form to cancel to the Plaintiff's complaint at page 3 of BD2. The Defendant told the Plaintiff that he had to write a note to acknowledge that there is no contractual obligation on the Defendant to pay year-end bonus and there was no salary due. He told the Plaintiff to sign this document. The Plaintiff therefore wrote and signed the note at page 4 of BD2 referred to above.

27. The actual salary of the Plaintiff from February 1998 should be $8,000 p.m. together with $80 allowance.

Evidence of Szeto Lai Chun

28. In relation to the arrears of salary, she stated in her witness statement that she could verify that the Defendant had never owed the Plaintiff any salary. She stated that on 26th March 1998 she had a meeting with the Plaintiff. The Defendant was not there contrary to what the Plaintiff stated. At the request of the Plaintiff she wrote the memorandum at page 1 of BD2 dated 26th March 1998 to reflect the view of the Plaintiff. She said she handed this to the Defendant. The Defendant said that if these really reflected the view of the Plaintiff, the Plaintiff had better sign it. She then got the Plaintiff to sign the note. She said she did not persuade the Plaintiff to cancel the appointment with the Labour Department. She stated that she did not give any oral undertaking through the telephone on the 30th March 1998.

29. The note at page 1 of BD2 states in effect that the Plaintiff did not have any dispute with the Defendant. Were the Defendant to reduce his salary because the Company's business return was not good, he would take no issue with it but for the Defendant to reduce his salary on the basis of errors at work or his standard of performance at work, he would not accept it. He had done his work to the best of his ability. The Plaintiff requested her to reflect the Plaintiff's view that the Defendant should not seek repayment of the several tens of thousand of dollars owed by him to the Defendant as the Plaintiff did not have any money to repay. The Plaintiff went to the Labour Department in order to get fair treatment and had no personal issue with the Defendant.

30. Szeto Lai Chun stated further that the undertaking at page 16 of BD2 dated 2nd April 1998 was written by her after discussion with the Plaintiff. It recorded the Plaintiff's intentions and understanding. She did not say to the Plaintiff that the Defendant promised that the salary reduction of $2,600 would be repaid later. She stated that she had no discussion with the Defendant before she wrote this. What was purported to have been spoken by the Defendant in the undertaking did not come from the Defendant. However she could not explain why she stated in the undertaking words to the effect that "the boss stated in relation to the question of $2,600..."

31. She had earlier stated that the proposed year-end bonus of each of the staff had been spoken privately by the Defendant to each staff. Under cross-examination, she stated that she came to know about the bonus of $36,000 promised to the Plaintiff written in the undertaking. She then stated that the Defendant gave her this information on the 26th March 1998 when she handed the Memorandum at page 1 of BD2 to him.

32. In examination in chief, when she gave evidence about what happened when she handed the Memorandum at page 1 of BD2 to the Defendant she had not mentioned about the Defendant giving this information to her.

33. When cross-examined why she wrote on the undertaking dated 2nd April 1998 that $2,600 from the Plaintiff's salary would be put into the year-end bonus pool of the Plaintiff, she said that it was just her own understanding and this information did not come from the Defendant.

Finding

34. I have a clear conviction that the version of facts of the Plaintiff is truth. The Plaintiff immediately upon payment of his reduced salary on 5 March 1998 wrote to the Defendant objecting to the deduction (see page 11 of BD2). He saw the Defendant on 10 March 1998 for a 3-hour interview in order to claim back his deducted salary. He then went to the Labour Department on 11 March 1998 to file his complaint.

35. It seems to me highly unlikely that the Plaintiff had agreed to the reduction of his salary at the interview with the Defendant on 24 January 1998. If he had truly consented to the reduction in salary, it would not be likely that he would have reacted as he did when his salary was actually deducted.

36. He held on to his intention to recover the deducted salary and would not have easily given way in my view were it not for pressure from his colleagues and from the Defendant. The fact that the Defendant threatened to deduct his salary to enforce repayment of loans due by the Plaintiff to the Defendant is supported by the paragraph 3 of the memorandum at page 1 of BD2. In this paragraph the Plaintiff reflected through Szeto Lai Chun that the Defendant should if at all possible not require him to repay the several tens of dollars owed by him to the Defendant. If the Defendant had not stated that he would require repayment of such, it is not likely that the Plaintiff would have mentioned this. Were it not for threats and promises, the Plaintiff would not have given up his resolve to seek to recover his deducted salary.

37. The Defendant demonstrated from his evidence and his demeanor that he is not a man that could be crossed. He could not stand any resistance to his autocratic views. He could not see any perspective other than his own. He is also given to strong expression if not angry expression. This was clear even in his outbursts when cross-examined by the Plaintiff's Solicitor. A description of the Defendant's management style is "patriarchal". It seemed to me that given his personality and character the Defendant would do his best to stop the Plaintiff's process of his complaint with the Labour Department. The Plaintiff was due for an interview with the Labour Department on the 1st April 1998. As the Section of the Labour Department dealing with this complaint was the dispute resolution section, it would be highly likely that the Defendant would also be approached by the Labour Department to attend an interview. In my view it was highly likely that he would have threatened the Plaintiff with repayment of the loans due to the Defendant from deduction of the Plaintiff's salary.

38. The evidence of Szeto Lai Chun related to the fact that she did not receive instructions from the Defendant in respect of the contents of the undertaking dated 2nd April 1998 at page 16 of BD2 is obviously untruthful. The undertaking itself stated some of the contents were words of the boss. In my view, it is highly unlikely that Szeto Lai Chun would have written the undertaking in that way if the Defendant did not ask Szeto Lai Chun to act as his representative to handle this matter according to his instructions. I therefore find that the Plaintiff's version of Szeto Lai Chun's telephone conversation with him conveying the undertaking and promise from the Defendant is highly likely to be true.

39. Furthermore, the Defendant's evidence under cross-examination that he had not seen the content of the undertaking at page 16 of BD2 when Szeto Lai Chun handed it to him is incredible. His evidence related to this was evasive and inconsistent.

40. I accept the Plaintiff's version of facts and totally disbelieve the version stated by the Defendant and Szeto Lai Chun.

41. I find that the Plaintiff did not at any time agree to the reduction of his salary. His objections to the salary reduction after the 5th March 1998 was stifled by threats that he would lose more of his salary through enforced deduction of his salary to repay his loans from the Defendant. He was also given a promise of restoration of the salary deducted. He conveyed his view through Szeto Lai Chun when he faced the threat of deduction of salary to repay his loans from the Defendant and he asked Szeto Lai Chun to write the note at page 1 of BD2 to the Defendant. Paragraph 3 thereof requests the Defendant not to require repayment of his loans. I also accept his evidence related to the Defendant's promise conveyed to him by Szeto Lai Chun.

42. I do not accept the evidence of Szeto Lai Chun or that of the Defendant as credible. Szeto Lai Chun in my view is not an independent witness as she is still under employment with the Defendant. She is also the cohabite of Lo Chun Cheung the paternal cousin of the Defendant and the employee of the Defendant. She had also been drafted by the Defendant to be his representative in dealing with this matter.

43. I find for the Plaintiff in respect of this item of claim. This is calculated at $2,600 per month from 1st February 1998 to 31st May 2000 (28 months) = $72,800 and $12,430 per month from 1st June 2000 to 16th June 2000 (16 days) $12,430 x 12 x 16/365 - $309.35 = $6,229.17. This item of claim totals HK$79,029.17.

Did the Defendant unilaterally vary the terms of employment by removing the payment of allowances and annual bonus/year end payments?

44. I have first to find whether the Defendant had contracted to pay the Plaintiff the bonuses as claimed by the Plaintiff, namely, $250 per month and $1,500 per month.

45. The Defendant admitted that he had paid staff the sum of $250 per month when he no longer provided feasts twice a month for his staff. He stated that payment of this sum was discontinued when he provided his staff meals at the factory.

46. In relation to the sum of $1,500, the Defendant stated in examination-in-chief that there is such an allowance. The Defendant paid the Plaintiff every two weeks when the Defendant knew that the Plaintiff had worked hard but the Defendant stated that they did not promise to give that to the Plaintiff. It was not a regular payment. It was a discretionary payment for good performance. He stated that for many years he had asked the bank to transfer this sum into the plaintiff's bank account.

47. The Plaintiff stated that the $250 per month had been paid since 1969. Originally it was $20 per month and subsequently increased to $250 per month. In relation to the allowance of $1,500 per month it was paid either by cheque or by cash. He stated that it was a part of his salary. In 1988 his boss stated that he would increase his salary by $1,500 per month. However the Defendant failed to issue that in his salary but instead gave $1,500 per month to him either by cash or by cheque. As far as the Plaintiff was concerned it seemed to me that he genuinely thought these two allowances were contractual and not discretionary as he referred to this as his entitlement in his letter to the Defendant with this claim dated 5th March 1998. In my view, the evidence of the Plaintiff is to be preferred. I find this item of claim in favour of the Plaintiff. The Plaintiff is entitled to unpaid allowance A of $250 per month from 1st February 1998 to 31st May 2000 (28 months) = $7,000 and $250 per month from 1st June 2000 to 16th June 2000 (16 days) = $133.33. This total the sum of HK$7,133.33. The Plaintiff is entitled to unpaid allowance B of $1,500 x 31 = $46,500 (from 1st November 1997 to 31st May 2000) and $1,500 x 16/30 = $800 (from 1st June 2000 to 16th June 2000). $46,500 + $800 = HK$47,300.00.

Was the Plaintiff entitled to annual bonus or year-end payments

48. The Defendant stated that there had been neither annual bonus nor year-end payments. He stated that such sums were discretionary. The Defendant's solicitor referred to the documents at pages 3 and 4 of BD2 where the Plaintiff admitted that there were not such payments. However, I had found that the Plaintiff under threat wrote such documents or pressure and therefore no weight should be placed on them.

49. The evidence of Lo Chun Cheung and Szeto Lai Chun, which state that the Defendant did not have any year, end payments nor annual bonus cannot be relied on as I found that they were not independent witnesses. They were very much acting for the Defendant all along.

50. Another clue as to the fact that there was annual bonus and year-end payments was the evidence of the Defendant that he introduced a new scheme of things when he introduced the New Bonus Agreement referred to above. He obtained signatures to the New Bonus Agreement from the Plaintiff and other staff. Was it not the fact that the original scheme of the payment of year-end payment and annual bonus not a contractual scheme, he would not have to try to bring forward a new scheme of things. He could just say that this year there would be no annual bonus or year-end payment.

51. I find that it was a term of the contract of employment between the Plaintiff and the Defendant that the Defendant would pay the plaintiff a year-end bonus, which would be equivalent to at least one month's wages. I find on behalf of the Plaintiff in respect of this item of claim. I calculate this at $12,430 x 3 years (1997 to 1999) = $37,290 and $12,430 x 168/365 from (1.12.00 - 16.6.00) = $5,721.20. In which event I find that the Plaintiff is entitled to this item of claim in the total sum of $43,011.20.

The 2nd Issue

52. The Defendant relied on a chain of incidents of misconducts alleged to be done by the Plaintiff. These happened from September 1997 to June 2000. There were 32 incidents. The particulars of these alleged misconducts were recorded in writing. They were set out in detail in the Defence and Counterclaim at pages 10-16 of Bundle of Pleadings and Court Documents (BD1), the witness statements of the Defendant at page 42, 61-66 of BD1 and of Lo Chun Cheung at pages 97, 111-116 of BD1. The Plaintiff gave his version of these in his Reply and Defence to Counterclaim at pages 22 to 28 of BD1, his witness statement at pages 81 to 92 of BD1.

53. For each incident there was corresponding document in writing.

54. Two things are worthy of note:

(a)	The Plaintiff signed and made admission of faults;
(b)	All these incidents happened in the last three years of the Plaintiff's term of employment of 32 years.

55. These incidents were examined in details during trial.

56. It is the Defendant's case that the Defendant is not relying on any single incident of the Plaintiff but a series of incidents since September 1997 until June 2000 as the basis of summary dismissal of the Plaintiff.

57. The Defendant now says that these incidents fall within the meaning of the following categories under S.9(a) of the Employment Ordinance (the numbers in brackets hereinafter refer to the page no. of the Agreed Bundle of Documents):-

(i)	"is habitual neglectful in his duties"-
	(55)-(63), (69)-(71), (73)-(75), (80), (81), (83)-(85), (89), (91)-(93), (96)
(ii)	"misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties"-
	(54)(87)(88)(93)
(iii)	"is guilty of fraud or dishonesty"-
	(53)(79)

The Incidents

58. The Plaintiff stated that from 1997 to June 2000, he had signed many documents, which were disadvantageous to him. He signed these unwillingly. He also was under some miscomprehension of the situation when he signed these. He stated that the reference to his having made mistakes due to his negligence does not reflect the truth.

59. He stated his version of events both in his witness statements that had been adduced into evidence as his evidence in chief and in his oral evidence. The Defendant and Lo Chun Cheung and Szeto Lai Chun also referred to their witness statements in relation to these events and gave oral evidence related to them. I shall refer to their evidence related to each of these incidents.

(1) 13 Sept. 1997

The relevant document is at page 53 of the Bundle of Documents (BD2). This relates to the alleged falsification of the time of his signature of No.2 Form. Page 53 of BD2 states that the time stated to be the time he signed No.2 Form was false. The forms referred to were dated 24th, 25th and 26th August 1997. It states that the form dated 26 August was signed at 9:30 p.m. when it states that it was signed at 4:50 p.m. The accurate time for the signing of these forms were between 9:30 p.m. to 10:30 p.m. The Plaintiff stated that he signed page 53 of BD2 at the request of Mr. Lo Chun Cheung to indicate that he knew of this. He did not agree to its contents. Upon cross-examination, the Plaintiff disagreed that he was dishonest as a supervisor when he signed the form and wrongly reported the time he signed the form. He stated that he signed the document under pressure from Mr. Lo Chun Cheung who was his superior. He stated that Mr. Lo Chun Cheung would countersign the No. 2 forms each time he signed the forms. Mr. Lo did not raise this matter at the time he signed these forms until the 13th September. This reflects the lack of veracity of the accusation against him.

According to the Defendant, this No. 2 Form was a new innovation. Before the form was devised the Plaintiff did not know the progress of production of orders. The form was to ensure the progress is clearly known.

Lo Chun Cheung gave evidence that the Form 2 is very important as it enables the Factory to keep check of the speed of production. All subordinate heads have to prepare it by 11 a.m. for the Plaintiff to see. If it were given later it cannot serve its purpose. He stated that the document at page 53 was signed after discussion between him and the Plaintiff. He stated that the Plaintiff's staff has to hand it to him within time. They prepared it at 9:30 p.m. The Plaintiff wrote the time as 4:50 p.m. The Plaintiff was covering for his staff.

(2) 19 January 1998

This relates to page 54 of BD2, it stated that the Plaintiff should not have quarreled with "Auntie" who was the aunt of the Defendant, working in the factory. In so doing, he had lost the dignity of the post of Supervisor and that was wrong. The Plaintiff stated that the words at the bottom of the report which stated that he entirely agreed with the criticism made against him and that he should not have quarreled with 'Auntie" were written by him. He stated that he wrote this because Lo Chun Cheung asked him to write it. He stated that he did not quarrel with a colleague.

The Defendant acknowledged that the factory was in the charge of the Plaintiff. On the date in question his "Auntie" should have respected the Plaintiff who was her superior. However "Auntie" is from the village. Villagers would say what they liked. He admitted that "Auntie" should not have interfered by stepping into the Plaintiff's domain, not her area of work, the Plaintiff had the authority to ask her to leave. However, the Defendant insisted that the Plaintiff was quarrelling with his "Auntie" and he knew that because others told him.

Lo Chun Cheung stated that it was written by him. She stated that "Auntie" discovered the error of the beige thread being sewn on the brand rather than white thread. She discovered it was poorly done and informed the Plaintiff. She quarreled with the Plaintiff. The Plaintiff as the Supervisor should not quarrel in the factory but go to the office. He stated that the words "In relation to the above criticism I entirely agree were written by the Plaintiff willingly". He stated he did not suggest that these words should be written.

(3) 20 January 1998

This relates to page 55 of BD2. It states that after the cutting machine related to "magic" tapes had been repaired and there was no further leakage of electricity. It had been brought back to the factory. This states that he had failed immediately to give the direction that the machine could resume operation. The Plaintiff stated that this was wrong. He stated that the machine had leaked electricity. It was pushed away from the factory. Subsequently, the Defendant's Auntie pushed back the machine and said that it was workable and started to use it. The Plaintiff stated that he could not resume its use until the electrician had checked it. He stated that of course he would tell the staff to resume work with it after the machine was fixed and had been checked by the electrician that it was safe to use. However at that stage it had not been checked. He stated that Lo Chun Cheung his superior wrote the top part of this note and asked him to write the last two lines. It was Lo Chun Cheung who asked him to sign.

The Defendant's position on this was that "Auntie" who was not an electrician, found that the machine was usable. He accepted "Auntie's" opinion on this despite the fact that the Plaintiff decided that it could not be used.

Lo Chun Cheung stated that the report except the last two lines <1>, <2> were written by him. He had discussed this with the Plaintiff. The last two lines were written by the Plaintiff. He did not tell the Plaintiff to write it. The Plaintiff signed it voluntarily. Lo Chun Cheung stated that in his view it was a serious wrong.

(4) 2 March 1998

This relates to page 56 of BD2 that states three work processes. The last two lines stated that the Plaintiff had failed to carry out the three processes and stated that he must do so in the future. The Plaintiff stated that he had carried out the 3 processes. The Plaintiff stated Lo Chun Cheung, his superior, prepared this document and he asked him to sign it.

Lo Chun Cheung stated that this was written by him. One signature was his and the other was the Plaintiff's. He stated that in relation to items <1>, <2> and <3> the Plaintiff had to account to him. The Plaintiff had done these three processes but not satisfactorily. The production was slow and the Plaintiff was not aware of it. The worse scenario is that they could fail to meet production deadline. The execution of the three processes by the Plaintiff was not clear enough. He stated that the Plaintiff willingly signed this.

The Defendant disagreed that the Plaintiff had carried out these three processes. He did not agree that the Plaintiff signed this because he was pressurized.

(5) 19 March 1998

This was a meeting, which took place after the Plaintiff had filed his complaint to the Labour Department on the 11 March 1998. Pages 57 and 58 are Minutes of Meeting. The note at the end of the minutes state that the boss had repeatedly informed the Plaintiff to record the incidents in the factory in a record book and to bring this record to company meetings held in Hong Kong. The Plaintiff failed to do that. A serious warning was given that the Plaintiff had to follow the instruction. The Plaintiff states that there were four signatures underneath that warning and one of them was his. The Plaintiff disagreed that he had failed to follow the Defendant's instructions.

DW2 Szeto Lai Chun stated that when the boss stated that the Plaintiff had frequently forgotten the record book and warned him, the Plaintiff was silent. The Plaintiff signed this record willingly.

(6) 30 April 1998

This relates to pages 59 -60 of BD2. The Plaintiff stated that he had forgotten about the incident related to this record of meeting on the 30th April 1998. There was a statement by the Defendant stated to be a conclusion that the Defendant was not satisfied with the work of the Plaintiff. There was a further comment that the Plaintiff has to write a confession that he knew he had made an error in principle. In my view this is telling of the type of attitude of the Defendant who requires his staff to make signed admissions and confessions in writing of wrong or error. The Plaintiff stated that this recorded the opinion of the Defendant. He disagreed that he had been negligent.

The Defendant stated that at times before this warning the Plaintiff there were occasions when the Plaintiff did not bring this record book. After this warning the Plaintiff still forgot to bring the record book about 4 times in total. He disagreed that the Plaintiff was pressurized to sign this.

(7) 7 May 1998

This relates to page 62 of BD2. The Plaintiff's evidence was that he was following the usual procedure. In relation to the width of the material delivered not being correct, this happened often. He stated that it was within his usual authority to return material if the width is short up to 3 inches. The complaint was that he returned the material to the supplier without first notifying the Hong Kong office. Further silk damaged by silk screen- printing can sometimes happen. Lo Chun Cheung was responsible for the management of the factory. The Plaintiff stated that he had already reported the matters to him. Being the one in the senior position, he should be the one to report the matters to the Hong Kong office. He was not the only one who had responsibility for this process. This incident occurred when he was questioned on his return to the Hong Kong office. Items 3 and 4 were more in the way of instructions. There were no particulars of complaint.

The Defendant disagreed that in relation to the incident related to damage by silk screen-printing that the Plaintiff had reported this to Lo Chun Cheung. He disagreed that the Plaintiff was pressurized to sign this by Mr. Lo Chun Cheung.

Szeto Lai Chun stated that this was written by her. The words were spoken by the boss and she recorded the important facts. The last two lines were written by her. It was the boss's idea that such words should be written. The Plaintiff willingly signed this.

(8) 13 June 1998

This relates to document at page 63 and contains a number of records of process. It was alleged that the Plaintiff had not made such records. The Plaintiff stated that this contract no. 19 was the responsibility of his colleague Mr. Lee Kung Kuen. The Plaintiff could not explain why he signed this.

The Defendant disagreed that this was Mr. Lee Kung Kuen's responsibility. He also disagreed that the Plaintiff was pressurized to sign it.

(9) 13, 20, 27, July 1998

This is a series of meetings with minutes in pages 64 to 68 of BD2, attended by the Defendant, Lo Chun Cheung, Lee Kung Kuen and Szeto Lai Chun. Apart from the Defendant and Lo Chun Cheung who were superiors of the Plaintiff, Lee Kung Kuen and Szeto Lai Chun were the equals of the Plaintiff. The meeting was a meeting where the Defendant stated his dissatisfaction of the work of the Plaintiff and the reason therefore. The Plaintiff was not in attendance. The Defendant indicated his intention to dismiss the Plaintiff and asked the others as to their views. This is merely a record of such a meeting.

Szeto Lai Chun stated that pages 64-65 were written by her. The Plaintiff was not present. The boss stated his thoughts. Page 66 was a record of interview written by her. She stated that it was an accurate record of what transpired. Where it said Ah Chung stated, these were words reported by Lo Chun Cheung as to what the Plaintiff was alleged to have said.

Lo Chun Cheung stated that this was a meeting where they all discussed about the Plaintiff's work performance and mistakes. All the errors of the Plaintiff were mentioned by them.

(10) 29 July 1998

This relates to the statement at page 69 of BD2 that the Plaintiff would be dismissed summarily. The Plaintiff requested that he be allowed to continue his employment and stated that he would improve his work performance. He stated that he would not commit the same errors again. The Plaintiff stated that he would prepare a Work Improvement Plan on the next day being 30th July 1998. This was signed by the Plaintiff.

Szeto Lai Chun stated that this was written by her. The Plaintiff signed it on the 30 July 1998 because he prepared a work improvement report to the boss. This is at page 70. He signed it and asked her to hand it over to the boss. She asked him to write the last two and a half lines at the bottom. She said to him that he had not stated that it is a Work Improvement Proposal. So she attached the Minutes at page 69 to it and asked him to sign it as she did not want to be scolded by the boss as to why she should hand this document to him.

(11) 30 July 1998

This relates to the document at page 70 wherein the Plaintiff prepared a statement of work process that he would follow in the future. He also stated that he would follow the work process stated and hoped that the Defendant would to give him a chance. This relates to the three incidents at page 71.

Lo Chun Cheung stated that the document at page 71 was all written by the Plaintiff. He signed it. The silkscreen print was printed in the wrong direction because of failure of the staff to follow the sample, which had been prepared by him. He had failed to instruct the staff how to print. As a result the staff made a mistake. In relation to Contract 54, the Plaintiff had failed to compare the print with the original sample. Again Contract 67 had gone into error because of the failure of workers to compare the sewing with the original sample. Had to re-do the three contracts. Lo Chun Cheung stated that he scolded the Plaintiff and blamed him because the consequence could be that they may have to pay compensation for errors.

(12) 17 December 1998

This relates to documents at pages 73 and 74 of BD2. This alleged that the Plaintiff had failed to follow the work procedure. The first item relating to Contract 103 related to the boss after turning out. They did not meet required measurement. The Plaintiff explained that the reason was the material used was thicker than that of sample.

In relation to Contract 122, it related to writing a wrong number on the work order leading to the wrong brand label being put on the sleeping bags. These had to be re-done. The Plaintiff signed against a statement at the bottom that he would in future comply fully with work procedure set out by him. He signed against that. These two items were samples and mistakes were discovered and the samples were re-done.

The Defendant disagreed that the Plaintiff was pressurized to sign this document.

Lo Chun Cheung stated that the Plaintiff had the responsibility to tell the workers how to do it. In relation to Contract 103, this related to the making of a few samples. These were taken to the Hong Kong office for quality control and the mistake was discovered. In relation to Contract 122, the wrong brand name was sewn because the Plaintiff did not write the production invoice carefully. About 40 brands had to be re-sewn. He stated that the words written by the Plaintiff were written voluntarily. He had told the Plaintiff how he came into error. The Plaintiff then wrote those words.

(13) 28 January 1999

Document at page 75 refers. In relation to Contract 17, the Plaintiff stated that it relates to an approval sample that had been sewn at about 10:30 p.m. He found an oil stain on it. He put a piece of paper labeling that there was a stain but did not clean it immediately because it was late. Later he found that at 7 a.m. the vehicle came and took the garment away because the packer did not notice the label related to the oil stain.

In relation to the mixing up of school bags in packing, the staff that did the packing made an error. The kindergarten school bags were delivered to the wrong school. This was discovered in Hong Kong and re-packed and sent back to the correct school.

Lo Chun Cheung stated that before the Plaintiff wrote this, he had discussed the problem with the Plaintiff. He stated that the Plaintiff wrote this voluntarily after he had pointed out the error to the Plaintiff.

The Defendant's position was that if these errors were the errors of the Plaintiff's subordinates as alleged by the Plaintiff, then the Plaintiff is at fault for he is responsible for his subordinate's errors.

(14) 12 February 1999

Document at page 17 of BD2 refers. This is a note where the Plaintiff admitted that he did not reach the requirement of the Defendant and agreed that the Defendant would cancel his entitlement to the year-end bonus. The Plaintiff agreed to do his best to improve and to follow the directions of the Defendant to manage well the factory so that he would be issued the year-end bonus either in whole or in part. The Plaintiff stated that this related to the 1998 year-end bonus. Szeto Lai Chun drafted it. He entirely disagreed to the contents of the document. He was forced to make an admission and to cancel his right to the year-end bonus. He signed this because together with this he signed a loan note for $10,000 for a loan lent to him.

(15) 10 March 1999

This relates to the Production Forecast form related to a contract, which the Plaintiff had been told at 7:30 p.m. that he must do it. The Plaintiff agreed to do so. On Sunday afternoon the Plaintiff still had not done it.

This note was written by Lo Chun Cheung and signed by the Plaintiff and Lo Chun Cheung. Lo Chun Cheung stated that before he wrote this he had discussed this matter with him. Lo Chun Cheung stated that the working hours ended at 10:30 p.m.

(16) 20 April 1999

This relates to a note at page 79 of BD2. This is a note that the Plaintiff must personally write the Sewing Inspection Report and not leave it to his subordinates to write it. The Plaintiff wrote under this note that often he did not have time to prepare this report. The Plaintiff stated that Lo Chun Cheung handed him a document, which stated that he must prepare the Sewing Section Inspection form personally. The Plaintiff stated that he had on a daily basis inspected the production in the Sewing Section and had not found any problems. The section head of this section continuously on a daily basis inspected the quality of the production and taught the sewing workers the process. Problems that they could not resolve they would ask him. He stated that he had many urgent matters to do. He asked whether this report could be prepared by his subordinate. Lo Chun Cheung felt that this reply was a serious error and immediately reported this to his boss.

Lo Chun Cheung stated that he wrote the first line. The second and third lines were written by the Plaintiff. He did not find the Plaintiff's comments as acceptable.

The Defendant disagreed with the Plaintiff's assertion that this Report could be prepared by a subordinate staff because the Plaintiff's work volume was heavy. The Defendant disagreed that the Plaintiff signed his name to this under pressure.

(17) 13 May 1999

This relates to a note headed "Essentials of Work Process" at page 80 of BD2. It contains three work processes. The note ends with a statement that these three processes had not been conscientiously followed through and there was an admission of wrong. The note states that these three steps would be regarded as important and should be adhered to. This was not signed by the Plaintiff. The Plaintiff stated that he had written four versions of this document. On 12 May 1999, the Defendant required him to return one report, which was to state were the Defendant to arrange for the Plaintiff to return to work in the Hong Kong office what the Plaintiff would do in that eventuality. Again on the same day, the Defendant required him to prepare a new report on the important points of returning to work in the Mainland Factory. On the same date, the Defendant asked him to write a third report on the same subject. On 13 May 1999 the Defendant was not satisfied, and through Szeto Lai Chun instructed him to write this document. The Defendant specifically required that the document should be changed to one where he made a confession of wrong. He realized after this that in relation to documentation he had to follow the Defendant's ideas otherwise the Defendant would not be satisfied.

The Defendant disagreed that it was he who asked the Plaintiff to add the statement that ends this note referred to above namely that these three processes had not been conscientiously followed through etc.

(18) 14 May 1999

This refers to the "Serious Warning" note at page 81 of BD2. The notes state that the Plaintiff has too many serious errors at work. These seriously breached the requirements of the Company. The Plaintiff was warned and told that he must in future follow the regulations of the Defendant failing which he may be dismissed and lose all benefits. The Plaintiff signed this. The Plaintiff stated that he did not agree to the contents of this. He stated that when the Defendant asked him to sign this he immediately refused to sign it. He did not agree that he had made serious errors or that he had failed to comply with the instructions of his company. He stated that the attitude of the boss at the time was very ominous. The Defendant put his hand in a fist and required him to sign it. At the time when he signed it he suddenly plucked up courage and refused to follow the Defendant's instructions to sign. The Defendant then said, "I am not asking you to admit wrong or to accept the way the company look at you, I just want you to be clear about the view of the Company." Hence he asked Szeto Lai Chun to add a sentence "I Law Ying Chung understand the aforesaid facts". He signed it on the basis suggested by the Defendant. At the time he signed it he was not clear what serious errors at work or breaches were referred to.

Szeto Lai Chun stated that she wrote this. The boss asked her to write it with the contents given by him. She signed it as the Factory Representative. She stated she was in fact based in Hong Kong but following orders of the Factory and had contact with the Factory and delivery of documents from the Factory. The Plaintiff signed it. She was asked to hand one copy to the Plaintiff and to get it to sign after that. She stated that the Plaintiff signed it willingly. She did not pressure him.

(19) 9 October 1999

This relates to the Report related to silk printing of Contract 93 at page 82 of BD2. The Plaintiff stated that the report was written by Lo Chun Cheung, the Plaintiff's immediate superior. The Report related to a number of procedures that should be followed for silk printing. It was signed by the Plaintiff and Lo Chun Cheung. The Plaintiff stated Lo Chun Cheung was returning to Hong Kong on the Saturday afternoon. He held a meeting before he left with the Plaintiff and the head of silk printing section related to Contract 93. Immediately after that he handed the report to the head of silk printing, Ho Ying Mui. He did not have the report to begin with and how would he have the thought that he should obtain a photocopy of this for himself?

The Plaintiff stated that on Monday morning he started work. The silk printing section had completed the preparation for silk printing of Contract 93 and was starting the printing. When they asked him for the silk printing sample, they did not mention that they did not have the sufficient oil in the machine. In fact it would not be easy to assess whether the oil was sufficient for the printing of the whole of the contract goods. Even were a mistake made in relation to the quantity of oil for printing, they could immediately buy sufficient oil to add to it. In fact they were in a rush to start this silk printing process, which had to co-ordinate with other sections of work. They could not have waited to purchase more oil for silk printing before starting. If they did not start the silk printing there would be a delay in the silk printing process. This would be regarded as a big sin by the Defendant. When Lo Chun Cheung returned to Hong Kong, he saw that the silk printing had started. He did not concern himself with whether there was sufficient oil for silk printing of this contract. On Friday, the silk printing section applied for more oil to continue the printing of contract 93. Lo Chun Cheung applied to the Hong Kong office to purchase more oil for silk printing. The second son of the Defendant scolded him for not following the instructions of the silk printing report. He required the Plaintiff to sign this admission.

Lo Chun Cheung stated that he prepared this report related to silk printing of Contract 93 on a Saturday. He had to leave for Hong Kong on Saturday evening. He handed this document to the Plaintiff at a meeting before leaving. The Plaintiff did not follow the procedure.

The Defendant disagreed that Lo Chun Cheung had given the necessary instructions to Ho Ying Mui. He also disputed that it was not a big matter because it was a work direction. When the work direction is not followed, it is a big matter. He disagreed that the Plaintiff signed his name unwillingly.

(20) 15 October 1999

This relates to the warning at page 83 of BD2 and relates to the same incident on 9th October 1999 referred to above. The 1st paragraph stated that the Plaintiff had failed to follow the instructions in paragraph 1 of the Report dated 9th October 1999. The Plaintiff had proceeded with silkscreen printing before mixing sufficient dye for printing the whole lot to be printed.

The second complaint related to the Plaintiff's failure to retain a copy of the silk printing report as the Plaintiff handed his one and only report to the silk printing section. This warning was given to the Plaintiff by Lo Chun Cheung. The Plaintiff disagreed with the contents. He stated that Lo Chun Cheung gave the report at page 82 directly to the silk printing section. It was not given by him to that section. He did not know there was insufficient oil for printing before printing started. He wrote the last line of the warning that he was willing to receive the warning and would follow instructions strictly in the future. However, he stated that he wrote that because Lo Chun Cheung was his superior and he had little option but to write that.

Lo Chun Cheung stated that this document was written by him. He stated that the Plaintiff did not adjust the oil at once before the silk printing. If there is insufficient oil, there would be a difference in colour for the rest of the lot to be printed were new oil to be put into the machine. In relation to the second matter, he stated that the Plaintiff did not keep the record of the minutes of meeting. This showed that he did not respect them.

The Defendant disagreed that the Plaintiff signed his name unwillingly.

(21) 11 November 1999

This relates to the document at page 84 of BD2. The Plaintiff stated that it related to the statement to explain faults found in samples. The first related to a black sample bag handed to him by Lo Wah Fai. He was standing in for Lee Kung Kuen who was in charge of the Sample Section and was away on leave. Lo Wah Fai instructed him to inform other staff in the Sample Section to do this sample. He gave instructions to the staff to sew a sample. Subsequently this was checked by Lo Chun Cheung who did not find any problem with it. It was the Company's policy that whoever brought a sample to the Hong Kong office has to examine it as correct before bringing it back. Lo Chun Cheung took it to the Hong Kong office. Lo Wah Fai stated that the grey side of the material should be the top surface. This sample was taken back to the factory and redone. It had not caused any inconvenience to the Defendant. This was a small matter.

The other complaint related to the sewing of "miracle tape" which was sewn incorrectly on a sample. He discovered this error. The Plaintiff stated that when he first signed the documents the words of admission were not written. After reading the document they were not satisfied with it and with great unwillingness and feeling helpless against the pressure, he wrote the admission of serious error in the last line of the document.

Lo Chun Cheung stated that page 84 was entirely written by the Plaintiff. He brought the material to the Mainland Factory. He stated that the complaint was that the Plaintiff did not prepare sample invoice. He did not know he had made a mistake. The mistake was discovered in the Hong Kong office. In relation to the magic tape, the problem caused related to a sample. The sample had to be re-done the next day. He told the Plaintiff he had done wrong. The Plaintiff signed the document voluntarily.

The Defendant stated that he disagreed that the Plaintiff signed this under pressure.

(22) 2 December 1999

This relates to the document at page 85 of BD2. The Plaintiff stated he was not the responsible person for the sample section at the time. The responsible person Lee Kung Kuen was on leave. He followed the 3 suggestions of the master craftsman in charge of sewing samples in order to ease the sewing process. He was formerly advised by Lee Kung Kuen that the guideline for sewing sample was to ease the process of sewing. His subordinate staff processed three changes to the process for making the samples that differed from that set down by the Hong Kong office. He agreed to the proposals of his subordinate staff without consulting the Hong Kong office. The note states that in future should there be problems discovered in the process of making samples he should raise these at the stage when the work process is being decided. Should he discover problems in the work process he should obtain the permission of the Hong Kong office before changing the stipulated process. He had written that he would not in future commit the error of acting in the way he liked.

The Plaintiff stated that he wrote the statement referred to and signed the document and admission of wrong under pressure.

The Defendant disagreed that this was Lee Kung Kuen's responsibility, not the Plaintiff's responsibility. He also disagreed that the words written by the Plaintiff that he would not in future commit the error of acting in the way he liked was written under pressure.

Szeto Lai Chun stated that the document was written by the Plaintiff. The boss asked her to write the words in Chinese meaning "I personally guarantee that I would not commit the error of 'following my own views'" in large Chinese characters so that the plaintiff would not commit the wrong again. Originally she was not present at the meeting. The boss asked her to write these words. She then asked the Plaintiff to sign. When the Plaintiff signed his 2nd signature, he signed it willingly. The boss was there.

(23) 4 January 2000 and 13 January 2000

This is a report at page 86 of BD2 related to using the Company telephone to place bet on horses. This and the report dated 13 January 2000 at page 87 of BD2 related to the same incident. The Plaintiff stated that after the report dated 4 January 2000 was written the Defendant was not satisfied with it and required the 2nd report dated 13 January 2000 to be written. The 2nd report was a statement by the Plaintiff that he would not use the company telephone to dial long distance to place bets on horses and he admitted that it was wrong to do that.

Lo Chun Cheung stated that he prepared that document and it was signed by the Plaintiff. He wrote this face to face with the Plaintiff. It was his idea that the Plaintiff should write this. He did not force the Plaintiff to sign. Page 87 was written when the boss told him to ask the Plaintiff to write it himself. So he got the Plaintiff to write it, to sign it and to present it to the boss. He stated that after this the Plaintiff continued to place bets on horses using the Company telephone. However there was no written evidence of this.

Although the Defendant had stated that the Plaintiff had committed this wrong of placing bets on horses via long distance phone calls using the company telephone, he was not able to particularize the number of times nor when it happened. He only got such information from other staff.

(24) 8 January 2000

This relates to the report on page 88 of BD2. The first part of this report stated that the Plaintiff had between 2 to 8 January 2000 come to work at a time past 9 a.m. In particular, the Plaintiff had been told on 6 January 2000 to come to work before 9 a.m. but failed to do so. The Plaintiff wrote "It was beyond his control". He explained that he had been working 13 hours per day. The work schedule prepared by Lo Chun Cheung for work far exceeded the hours for work under the laws of the Mainland Government. He had been doing overtime arriving early working late and working through his lunch resting time. There had been no record of his overtime and no compensation for such overtime to him. That was why he stated that it was beyond his control.

The second part of this report relate to his failure to present reports. The Plaintiff stated that this related to an incident on Saturday afternoon when Lo Chun Cheung was returning to Hong Kong and asked for a copy of the report. Because he had not completed these he could not hand them over. In the past he would fax such reports to Hong Kong. He had never been asked to write such an admission because of his failure to submit such report to Lo Chun Cheung to take the reports back to Hong Kong. The reason why he could not do it on time was because he had too much work.

Lo Chun Cheung stated that the Plaintiff was often late for work. He stated that when he worked overtime it would be from 7 p.m. to 10:30 p.m.

The Defendant disagreed that the Plaintiff was seldom late and that he had only been late for a few minutes.

(25) 27 January 2000

This relates to page 89 of BD2. The document refers to the binding used for binding bags in Contract 6. Lau Yuk Wo the head of the sewing machine repair section brought the binding and a completed bag for him to look at. After looking at that and making enquiries he found the binding delivered was not cut at a 45 degree angle. The Plaintiff explained that as they needed to complete the sewing in a hurry, he devised a method to use the binding without affecting the outcome of the work. Lau Yuk Wo brought the matter to the Defendant's son Lo Wah Fai, to show the method in which they devised a way to work around the problem. Lo Wah Fai asked the Plaintiff about the situation and the Plaintiff explained the situation to him. Lo Wah Fai stated that the Plaintiff had to claim damages from the supplier of the binding material or else they would make a worse mistake next time. The Plaintiff deducted a sum of RMB900 from the price due to the supplier and the customer of the goods did not complain of the end result. On another day, Lau Yuk Wo brought the invoice for the binding to take to Lo Chun Cheung to sign. The Plaintiff then remembered that he had not reported the matter about the binding to him. Subsequently, the Plaintiff reported this incident to Lo Chun Cheung. He informed Lo Chun Cheung that he had already reported this to Lo Wah Fai on Sunday. The Plaintiff stated that he was under great compulsion to do so when he signed the record of events, which did not accord with the truth. The Company was still not satisfied and required that he write the 3 admissions in the document. Subsequently Lo Chun Cheung made a report to the Defendant.

The Defendant disagreed that this error had nothing to do with the Plaintiff. He disagreed that the Plaintiff signed this and wrote the lines he did under pressure.

Document at page 90 of BD2 is a report written by Lo Chun Cheung. The Plaintiff stated that Lo Chun Cheung wrote this report to the Defendant the Plaintiff felt in order to disparage him.

The Defendant did not agree that the Plaintiff had too much work and that the Plaintiff could have faxed the report to the Hong Kong office. He did not agree that the Plaintiff was pressurized to sign this.

Lo Chun Cheung stated that it was not true that the goods with the binding problem got accepted. He stated that the binding had to be removed and the goods had to be re-sewn. He stated that the binding should not have been used. It was not usable. He stated that the Plaintiff signed the document willingly. He stated that the contents of page 90 were written by him and relates to the incident referred to at page 89. After discussing with the Plaintiff he prepared the report to give to the boss.

(26) 27 January 2000

This relates to the report at page 91 of BD2. This relates to Contract 89. Lo Chun Cheung instructed the Plaintiff to give instructions for the packing of the goods to be in three boxes - firstly those that had no defects, secondly goods that had minor defects and thirdly goods that had serious problems. The Plaintiff stated that Lo Chun Cheung told him that the goods that had no problems were to be given to the customer for inspection. However the customer selected goods from different boxes for inspection. Because they inspected some goods that were quite defective, they did not accept the goods. He stated that he had fully complied with instructions. He signed the note unwillingly. He stated further that the instructions of Lo Chun Cheung was to deceive the client and therefore was not a good instruction.

Lo Chun Cheung stated that the Plaintiff failed to act according to his instructions to pack the goods into three parts, one being good, one being not so good with slight defective work, one poor work. The customer inspected the goods and saw the goods that were defective. In the end the goods were not accepted. The person in charge of the packing division failed to follow the instructions. He disagreed that it was the intention to deliver the three lots of goods to the customer. He intended to put aside the ones that are seriously defective to put aside.

The Defendant disagreed that this was not the Plaintiff's responsibility or that the Plaintiff signed it under pressure.

(27) 4 February 2000

This relates to the notes written by the Plaintiff at page 92. They state certain requirements that the Plaintiff had to follow.

(28) 7 June 2000

This relates to the document at page 93 of BD2. The Plaintiff stated that he was told to take 3 days leave in Hong Kong after he had sent his letter dated 7 June 2000 making his claim against the Defendant. Upon return to the Hong Kong office, he was asked to inspect samples. He did not have the sample invoices which sets out specifications with diagrams from which to do inspection as these were in the Mainland. He inspected them based on his memory and experience. He wrote on the form that he had re-inspected the samples without the sample invoices. He wrote that upon re-inspection he found the samples were in order. He wrote that on the form at page 93 of BD2. He stated that the samples should have been inspected on the Mainland. He was asked to re-inspect them in Hong Kong. He stated that Lo Wah Fai of the Defendant knew that he did not have the sample invoices with him when he was asked to inspect these samples. He agreed that pages 94 and 95 of BD2 were the sample invoices.

Lo Chun Cheung stated that the Plaintiff did not have the sample invoice and should not have checked the samples. He stated that he was really angry when he saw the Plaintiff's letter to the Defendant claiming arrears of wages etc.

The Defendant disagreed that the Plaintiff did not have the sample invoices with him. He said that the sample invoices should follow the Plaintiff wherever he goes. He further stated that in principle there should be sample invoices in the Hong Kong office, the Plaintiff only had to ask. However this was not put to the Plaintiff in cross-examination.

(29) 12 June 2000

This relates to a note at page 96 of BD2. The Plaintiff stated that the Defendant's son Lo Chi Fai requested the Plaintiff to write down the critical comments about the Plaintiff made by Lo Chi Fai in a private conversation between the Plaintiff and him. The comments included a statement that the production projections made by him were constantly incorrect. The Plaintiff stated that this could have been caused by inadequate staff, work complications, and other matters that were beyond his control.

(30) 16 June 2000

This relates to the refusal of the Plaintiff to sign a Minutes of Meeting to show his presence. The Defendant alleged that this was an act of disobedience. The Plaintiff stated that he saw the Defendant, Lo Chun Cheung and Lo Chi Fai. He spoke to his boss but he was not at the meeting and he had not seen the Minutes of the Meeting. The Plaintiff stated that there was no meeting. The Defendant only requested him to change the reference to Labour Holidays in his letter dated 7 June 2000 to Public Holidays. He denied that his boss the Defendant had asked him to sign the Minutes of Meeting.

He disagreed that the Plaintiff was not present at the meeting. He said that the Plaintiff disobeyed his lawful order to sign the Minutes of Meeting.

Finding

Finding of Facts

60. In relation to the allegation of the Plaintiff that he was pressurized to sign the admissions in the documents unwillingly when he did not agree to the contents thereof, I do accept that the Plaintiff must have acted under great pressure to admit or to sign documents. From the evidence, the Defendant had often required Szeto Lai Chun or Lo Chun Cheung to obtain written signed reports of wrong-doing from the Plaintiff. At times he had been angry with Szeto Lai Chun for failing to obtain the signature of the Plaintiff on documents. There have been instances when the Defendant told the Plaintiff to write the particular words of admission or undertaking that he would not commit the same wrong again. These incidents are not disputed and evidence came from the Defendant and his witnesses in the accounts referred to aforesaid.

61. The Defendant is also a man prone to displays of anger such that Szeto Lai Chun had stated in evidence that she was fearful of coming under his scolding and his temper. No doubt, it was the same for other members of his staff. The Defendant himself admitted to calling his staff in to scold them. Again the evidence of this is recorded aforesaid. The anger of the Defendant in the unwillingness of the Plaintiff to immediately sign Minutes of Meeting is not commensurate with the significance of the act. The Defendant saw it as an act of disobedience when the Plaintiff should naturally have a right to consider the contents of a report before signing. Hence, the culture of this Company and the atmosphere under which the Plaintiff had to work is clearly one where there is little grace but instead it was an atmosphere where the Plaintiff was picked on for faults and errors and asked to confess and sign admissions to incriminate himself. The Plaintiff also had hanging over his head the threat of not being awarded the year-end bonus for the year following that issued in January 1998. Not only that, the Plaintiff had his salary forcibly reduced. This could be regarded as a serious repudiatory breach of the contractual obligation of an employer and could be the basis for constructive dismissal of an employee (see para. 3.55 The Law of Termination of Employment by Rebert Upex at page 139). The Plaintiff also had been enticed to cancel his claim filed with the Labour Department under the offer to re-instate his reduced salary. This was subsequently not honored. He had been pressured to write and sign the note at page at page 4 of BD2 at the request of the Defendant.

62. I therefore accept that there has been pressure on the Plaintiff to incriminate himself with admissions and confessions on appraisal of events, which are one-sided. They were purely from the perception of Lo Chun Cheung or the Defendant and not a balanced or fair perspective as they were written with no reference to explanations given by the Plaintiff. I therefore do not accept the way in which these incidents of misconduct had been reported in the documents submitted by the Defendant as they are not fair and nor accurate records of events. The explanations given by the Plaintiff in evidence provides a more balanced perspective. Where the Plaintiff seeks to give an explanation to the incidents recorded, I take into account his version of the events and accept them as an accurate account from his perspective.

63. The burden of proof is on the Defendant to establish that the Plaintiff had been dismissed with cause. The authority for this is in the judgment of the Hon. Chung J. in Li Shuck Man and 35 others and Ho Way Ling Rebecca trading as Windsor Sauna in HCA 5446 of 1996.

64. It is the Defendant's case that the Plaintiff has:-

(i) wilfully disobeyed a lawful and reasonable order;

(ii) misconducted himself, such conduct being inconsistent with the due and faithful discharge of his duties;

(iii) is guilty of fraud or dishonesty;

(iv) is habitually neglectful of his duties;

65. As stated by Mr. Justice Yeung at page 9 of the judgment of Tsang Tak Chi and China Wall Limited HCLA 33 of 1998,

"But summary dismissal is a very serious step to take against any employee. It is the "capital punishment" in that if the dismissal is justified, the employee will be deprived of all the protection provided by the Employment Ordinance."

66. In relation to the ground of "willfully disobeys a lawful and reasonable order", the disobedience must be willful and not negligent. In relation to misconduct, it is stated in Acklam v Sentinel Insurance Company, Ltd. Lloyd's List Law Reports [1959] Vol. 2 at page 689 at the bottom of the left column,

"No, what is the misconduct which is alleged in this case? It is said, first of all, that he disobeyed instructions, which he was given. In order for misconduct to be established on that basis, it seems to me to be necessary to show that specific orders were given, which was disobeyed. You would have to show, I think that the order in question was one of vital importance and it was disobeyed, or an order of not, so great importance was persistently neglected."

67. In The Law and Practice of the Labour Tribunal R.A. Ribeiro, at page 50 of the Chapter on Termination of Contracts in relation to section 9(a)(ii) of the Employment Ordinance, under the heading "(ii) Misconduct", it states,

"It is therefore important to remember that, whatever the precise complaint, the modern approach is to regard all forms of summary dismissal as a 'strong measure to be justified only in exceptional circumstances'. Indeed, the case must involve misconduct which 'goes to the root of the contract so as to indicate an unwillingness to continue to be bound upon the original terms. A similar approach is found in the Employment Ordinance, which approves of summary dismissal for misconduct only where that misconduct is 'inconsistent with the due and faithful discharge of the employee's duties.'

68. In relation to the meaning of the expression 'habitually neglectful', Duffy J. in Chow In Chun and Fang Brothers Knitting Ltd HCLA000055 of 1987 stated at page 2 of his judgment,

"In The Law and Practice of the Labour Tribunal R.A. Ribeiro includes a useful chapter on termination of contracts and at page 57 deals with section 9(a)(iv) of the Employment Ordinance and the meaning of the expression 'habitually neglectful'. He emphasizes that the neglect must be substantial and it must be habitual. He also distinguishes cases of actual negligence in performing duties from cases where duties were neglected i.e. absence from or lateness for work."

69. I shall go into each of the incidents, which have been cited by the Defendant.

(1) 13th Sept. 1997

The complaint was that the Plaintiff was dishonest in relation to the date of the No. 2 Form, which was required to have been submitted at an earlier time in the day. This complaint was filed 3 weeks after the event. I accept the Plaintiff's evidence that this form had been countersigned by Lo Chun Cheung. Lo Chun Cheung did not immediately raise any objection as to the time of the signature stated therein. Three weeks after the event to state that the form had been submitted at 9:30 p.m. to Lo Chun Cheung cannot be reliable when it had not been raised immediately. I accept that there had been some pressure to sign this form.

(2) 19 January 1998 and (3) 20 January 1998

These relate to the complaints against the Plaintiff arising from complaints raised by the Defendant's "Auntie". Whether intended or not the actions of the Defendant's "Auntie" would undermine the authority of the Plaintiff. Instead of reprimanding "Auntie", and resolving the issues between the Plaintiff and her, the Defendant obtained admissions and confessions from the Plaintiff. This treatment was unfair to the Plaintiff.

(4) 2 March 1998

This relates to the work process done by the Plaintiff but stated to be not satisfactory. This of itself is not behavior justifying summary dismissal.

(5) 19th March 1998

This is not an act, which would justify summary dismissal. The giving of a serious warning is not justified. Meetings are held in the Hong Kong office on a Thursday. The Plaintiff leaves the Mainland Factory on Tuesday evening for his day of rest in Hong Kong. He goes to the Hong Kong office on Thursday morning to attend the meeting. In the incidents when he failed to have brought the record book, he failed to do so when he left the Mainland Factory on Tuesday evening. According to the Defendant the numbers of times after the warning were about 4 times. According to Szeto Lai Chun and Lo Chun Cheung there were further incidents of failure to bring the record book. However, since this event, there was no other written documentation recording complaints of this nature. This does not justify summary dismissal.

(6) 30 April 1998

There is no specific event or incident to which this relates. It merely states an unsubstantiated opinion.

(7) 7 May 1998

In my view this incident taken on its own does not merit summary dismissal.

(8) 13 June 1998

The Plaintiff stated that this contract was not his responsibility. However in my view even if this were the case, it would not justify summary dismissal.

(9) 13, 20, 27 July 1998

This is a meeting whether the Defendant together with his staff, held meetings to discuss about the Plaintiff's mistakes in his work and about his work performance. The effect of such a discussion where the Plaintiff's colleagues of equal rank were asked to participate would put the Plaintiff in a bad light with his colleagues. They were all called upon to find reasons for the Defendant not to dismiss the Plaintiff. This exercise would create a negative work atmosphere for the Plaintiff and could cause further unfair appraisal of his work performance.

(10) 29 July 1998

Arising from this meeting great pressure was put on the Plaintiff.

(11) 30 July 1998

Document at page 71 related to certain silk printing where the Plaintiff's subordinate staff had made mistakes in silk printing. The mistakes were later rectified. They relate to the supervision of work by the Plaintiff. Of itself this does not justify summary dismissal.

(12) 17 December 1998

These relate to mistakes in the course of production of samples. The mistakes were discovered. Although the work had to be re-done there was no actual loss apart from that arising from the samples having to be re-done. They were mistakes that did not justify summary dismissal.

(13) 28 January 1999

These were mistakes made by the Plaintiff's subordinate staff. They relate to error of his staff. After the error was discovered they were rectified without loss.

(14) 12 February 1999

No specific fault was mentioned. I accept the version of facts of the Plaintiff that this document was signed under pressure and he had no idea what errors were referred to.

(15) 10 March 1999

This relates to lateness in doing a form.

(16) 20 April 1999

The Plaintiff had allowed his subordinates to prepare a report. The Defendant stated that it should have been prepared by the Plaintiff personally. I accept the Plaintiff's explanation. He merely stated his view but Lo Chun Cheung reported this to the Defendant as a wrong.

(17) 13 May 1999

I accept the Plaintiff's explanation of this. He had written that under pressure. There was no fault on the Plaintiff's part. The Defendant stated that the plaintiff had failed to conscientiously follow a work process.

(18) 14 May 1999

I accept the Plaintiff's explanation of this. On that basis there is no fault on the Plaintiff's part.

(19) 9 October 1999

I accept the Plaintiff's explanation of this. The version of facts of the Defendant was not correct. I find no fault on the Plaintiff's part but in fact he was made to confess to a version of facts that was not accurate.

(20) 15 October 1999

This relates to the same incident as on the 9th October 1999 above. I accept the Plaintiff's version of facts.

(21) 11 November 1999

I accept the Plaintiff's version of this. It is an error that involved a number of people including Lo Chun Cheung. I am of the view that it is not serious and does not justify summary dismissal.

(22) 2 December 1999

I accept the Plaintiff's version of facts. It seems that at the worst, the Plaintiff made an error of judgment and the seriousness of it is not as stated by the Defendant. He thought he was doing what was best for the process of work. It is not such as to justify summary dismissal.

(23) 4 January 2000 and (24) 13 January 2000

It is not good for the Plaintiff to use the Defendant's telephone to bet on horses within office hours. It seems that there was no further written record of such. If he had been found in the same error again, it would be most surprising if Lo Chun Cheung or anyone who discovered it would not have reported it to the Defendant. It is not sufficient to warrant summary dismissal as there is no written record of a recurrence after this warning.

(25) 27 January 2000

I accept the Plaintiff's version of facts. This is not an incident that would justify summary dismissal.

(26) 27 January 2000

I accept the Plaintiff's version of this incident related to contract 89.

(27) 4 February 2000

This does not relate to incidents.

(28) 10 June 2000

I accept the Plaintiff's evidence on this. In my view, the Defendant had required the Plaintiff to take 3 days enforced leave after the Plaintiff wrote his letter to claim arrears of wages etc. I accept that when he inspected the samples he was told to do so by Law Wah Fai. He had told Law Wah Fai he did not have the sample invoices and Law Wah Fai stated that they have been inspected in the Mainland Factory. He therefore wrote that when he inspected the samples he did not have the sample invoices. If he wanted to hide this fact, he would not have written thereon. Under such circumstances, he was given instructions to inspect the samples well knowing he did not have the sample invoices.

(29) 12 June 2000

I accept the Plaintiff's version of facts.

(30) 16 June 2000

In my view this incident does not merit summary dismissal even if he failed to sign Minutes of Meeting.

70. Having considered all the incidents together and its cumulative effect I am aware of the fact that the Plaintiff was working in an environment, which was fault finding and he was being accused of different errors and wrongs without total regard to the objective picture. It was an atmosphere where the Defendant was in fact accumulating written admissions from the Plaintiff, which would form the basis for summary dismissal of the Plaintiff. In my view the Plaintiff had been working under great pressure. No doubt there was a good relationship between the Plaintiff and the Defendant before these events came about. Having regard to the entire picture from the time the Defendant unilaterally reduced the Plaintiff's salary to the date of the Plaintiff's dismissal, the Plaintiff had not been given fair treatment. I find on the whole of the evidence before me adduced in this case having regard to all the incidents relied on in totality, and the Plaintiff's subsequent letter to the Defendant dated 7th June 2000 seeking repayment of arrears of salary and other requests, I find no basis for the summary dismissal of the Plaintiff. The Defendant has failed to discharge the onus for summary dismissal. I find that the Plaintiff is entitled to payment of one months' wages in lieu of notice in the sum of $12,430 together with long service payment from 1st December 1968 to 30th November 1999 at $12,430 per month at 2/3 x 31 years = $256,886.66 and from 1st December 1999 to 16th June 2000 $12,430 x 2/3 x 199/365 = $4,517.93. This totals HK$261,404.59.

The 3rd Issue

Whether there is untaken annual leave due to the Plaintiff

71. It is undisputed that the Plaintiff is entitled to 14 days holidays for his annual leave. He gave evidence of his untaken annual leave for the year from 1st December 1998 to 30th November 1999. He said that after deduction of Chinese New Year holidays and the statutory holidays and rest day there were still 6 days annual leave untaken. He stated that he did not take annual leave except for the time during Chinese New Year holidays. He further gave evidence that he had never taken annual leave for the year 1st December 1999 to 16th June 2000. Based on this he should have a pro-rata of 7.6 days annual leave.

72. The Defendant stated that he did not have the Plaintiff's annual leave record. He did not oppose the computation of the untaken annual leave. DW2 Szeto Lai Chun stated that it was unreasonable for the plaintiff to claim the balance of annual leave since the Defendant had been generous in granting other leave such as sick leave to them.

73. Lo Chun Cheung stated the same as Szeto Lai Chun. There is no clear contrary evidence that the Plaintiff did not have the 6 days of annual leave remaining for the year from 1st December 1998 to 30th November 1999 or that he was not entitled to 7.6 days annual leave for the year from 1st December 1999 to 16th June 2000 as claimed namely annual leave for the period from 1st December 1998 to the date of dismissal on 16th June 2000. This is calculated at $12,430 x 12 x 6/365 = $2,451,94 and $12,430 x 12 x 7.6/365 = $3,105.79. This totals the sum of HK$5,557.73.

74. I find that the Plaintiff has established his claim in respect of all the items of claim and these total the sum of HK$79,029.17 + HK$7,133.33 + HK$47,300.00 + HK$43,011.20 + HK$12,430 + HK$261,404.59 + HK$5,557.73 = $455,866.02. The Plaintiff claims interest at judgment rate from the date when each of these sums falls due. For the allowances of $250, $1,500 and the deducted salary in the sum of $2,600 p.m. I take a medium date within the period wherein these payments fell into arrears as the starting date on which interest would run. In respect of the allowances of $250 totaling $7,133.33, I take the medium date of 1st January 2001. In respect of the allowances of $1,500 totaling $47,300.00, I take the medium date of 14th February 2001. In respect of the deducted salary of $2,600 per month, I take the medium date of 1st January 2001.

The Counterclaim

75. These relate to advances from the Plaintiff to the Defendant at various times which have been evidenced by loan notes. On the basis that the Plaintiff has fully recovered the allowances of $1,500 per month and year end payments, the Plaintiff pursuant to his Defence to Counterclaim could not dispute these items of Counterclaim and I grant the Defendant the amount of his counterclaim in the sum of $36,000.00 together with interest at judgment rate from 16th June 2000. As there was no stated date of repayment of such sums at the respective dates of the advances, I grant interest from the date of dismissal of the Plaintiff namely from 16th June 2000.

76. Judgment for the Plaintiff in the sum of $455,866.02 together with interest at judgment rate respectively from 1st January 2001 in respect of the sum of HK$7,133.33 and the sum of HK$79,029.17, interest from 14th February 2001 in respect of the sum of HK$47,300.00, interest from 16th June 2000 in respect of the sums of HK$12,430 and HK$5,557.73 and HK$261,404.59, interest from 24th January 1998 in respect of the sum of HK$12,430, interest from 12th February 1999 in respect of the sum of HK$12,430, interest from 31st January 2000 in respect of the sum of HK$12,430, and interest from 16th June 2000 in respect of the sum of HK$5,721.20. Interest to accrue until the date of judgment and thereafter until payment. I grant an order nisi for costs of the claim to the Plaintiff to be taxed if not agreed. The Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations. I grant judgment for the Defendant on the Counterclaim in the sum of HK$36,000.00 together with interest thereon at judgment rate from 16th June 2000 to the date of judgment and thereafter until payment. I grant an order nisi for costs of the counterclaim to the Defendant to be taxed if not agreed.