SARMIENTO EVANGELINE SARMIENTO v. LUK NGAI LING IRENE

HCLA 22/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 22 OF 2014

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1547 OF 2014)

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D E C I S I O N

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I. INTRODUCTION

1. The applicant was employed by the respondent as a domestic helper since 23 March 2014 with a monthly salary of $9,000.  On 16 April 2014, the respondent dismissed the applicant and terminated her employment with immediate effect.  The respondent paid the applicant $5,800 as her wages for the period from 1 to 16 April 2014 and $1,000 for the air-ticket fee.  There was dispute as to whether the respondent paid the applicant any wages in lieu of notice.

2. On 23 May 2014, the applicant commenced proceedings in the Labour Tribunal (“Tribunal”) to claim for (a) $9,000 being one-month wages in lieu of notice, (b) $800 being balance of the air-ticket fee, (c) $100 being food and travelling allowance for returning to her home country, and (d) $100 being her medical expenses incurred on 14 April 2014.

3. The respondent counterclaimed for the cost incurred for repair of vehicle in the sum of $300, but this was eventually not pursued.

4. On 16 June 2014, by consent the applicant agreed to accept payment of $100 by the respondent in full and final settlement of the claim for food and travel allowance for going back to her home country.

5. The trial took place in August 2014.  On 13 August 2014, Presiding Officer Mr Daniel Tang (“PO”) granted the following award/order (“Order”):

(a) judgment be entered for the applicant against the respondent for the balance of the air-ticket fee in the sum of $300 to be paid forthwith with interest thereon pursuant to section 39(3) of the Labour Tribunal Ordinance Cap 25 (“Ordinance”) from the date of the award until satisfaction;

(b) the claims by the applicant against the respondent for wages in lieu of notice and medical expenses be dismissed;

(c) the respondent’s counterclaim against the applicant for damages be dismissed;

(d) the settlement amount for food and travelling allowance for returning to the applicant’s home country in the sum of $100 already paid by the respondent into the Tribunal be immediately released to the applicant;

(e) the applicant shall forthwith pay costs in the sum of $7,308 to the respondent with interest pursuant to section 39(3) of the Ordinance from the date of the award until satisfaction.

6. On 14 August 2014, the applicant applied for a review against the Order.  She complained that the respondent’s evidence was irrelevant and the PO did not spend sufficient time to examine the photographs.  She urged the PO to carefully examine her evidence and that of the respondent.  The review took place on 4 September 2014.  On that day, the PO granted the following award/order (“Review Order”):

(a) the applicant’s application for review be dismissed and the Order shall stand;

(b) the applicant shall forthwith pay to the respondent costs of the review in the sum of $1,624, which shall be set off against the sum of $400 paid by the respondent into the Tribunal to the applicant, and after such set-off the applicant shall forthwith pay to the respondent the balance of the costs of the review in the sum of $1,224 with interest pursuant to section 39(3) of the Ordinance from the date of the award until satisfaction;

(c) the sum of $400 paid by the respondent into the Tribunal shall forthwith be released to her.

7. On 5 September 2014, the applicant lodged her application for leave to appeal against the Order and/or Review Order.  She claimed that the PO had erred in failing to grant an award as per her claims for (a) a sufficient sum for the balance of the air-ticket fee, (b) wages in lieu of notice, (c) food and travelling allowance, and (d) “medical and other damages”.  In respect of (d) above, she explained she had lost the receipt, but she had evidence as to daily food allowance produced during the trial.

8. On 3 October 2014, the PO handed down his Reasons for Decision (“Reasons”).  It appeared from the Reasons that the applicant and the respondent were the only witnesses who gave conflicting factual accounts, ie the applicant alleged the respondent failed to pay her wages in lieu of notice and the respondent maintained the opposite.  In resolving such factual dispute, the PO found the respondent’s case to be more reliable and reasonable, and he concluded that the applicant was not an honest and reliable witness.  He rejected the applicant’s case and granted the Order after the trial and the Review Order after the review.

II.  LEGAL PRINCIPLES

9. In seeking leave to appeal against an award/order of a presiding officer of the Tribunal, the onus is on an applicant to show that the intended appeal has arguable grounds.[1]  An appeal against a determination by the Tribunal is on point of law,[2] and findings of fact by the Tribunal are generally immune from challenge on appeal unless they involve error of law in the sense explained in Wai Mei Lai Stella v Viya Pramita[3] citing Kwong Miles Services Ltd v Commissioner of Inland Revenue.[4] Bokhary PJ in Kwong Miles Services Ltd said:[5]

“37. In any appeal on law only the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion. But if the appellate court regards the contrary conclusion is true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal. ……”

10. In Kaifull Investments Ltd v Commissioner of Inland Revenue, it was held the fact other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/tribunal acted unreasonably and had come to a conclusion that no court/tribunal acting judicially could reasonably have made.[6] It is only where the lower court decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere.[7]

11. Leave to appeal will be granted if the determination was made without regard to relevant factors, was made without evidence, or there was failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained.[8]

III.  DISCUSSION

12. The applicant disagreed with the Order, Review Order and/or the Reasons, which she considered unfair, because:

(a) the photograph (D15) submitted by the respondent merely showed the applicant held 11 pieces of $500 notes and 3 pieces of $100 notes that made up HK$5,800 in her hands;

(b) the respondent fabricated the handwritten note (D5) by adding “one month notice $9,000” after the applicant signed the same, and the applicant only became aware of that at the conciliation meeting at the Labour Department;

(c) the applicant said she had immediately asked for copy of the handwritten note after she signed (which the respondent could have provided since there was a copier at the premises), but the respondent did not provide her with any copy even though she made copies of the applicant’s passport, identity card and employment contract that evening (ie on 16 April 2014).

The applicant complained against the PO’s refusal to believe her case that she had never received wages in lieu of notice in the sum of $9,000 from the respondent.

13. The applicant also wished to claim for damages such as loss of work since termination of her employment with the respondent “since [she is] not allowed to work during the trial; [her] monthly salary, food allowance and [her] rental fees to the boarding house”.

14. Plainly, the applicant’s aforesaid complaints amount to challenge against the PO’s findings of fact, and I am not persuaded she has satisfied the threshold requirement for disturbing such findings.

15. It is clear from the Reasons that the PO correctly recognised that the burden of proof was on the applicant to establish her claim, and that this was a one-against-one case where the credibility and reliability of the applicant and respondent as witnesses would be critical.  However, the PO did not merely rely on the demeanour of the witnesses in resolving the factual issues; he also considered the inherent probabilities of the case and borne in mind the need to weigh the intrinsic value of the witnesses’ evidence against the available documentary evidence and inferences based on inherent probabilities, the history of events, and the applicant’s work experience and personality.

16. The PO carefully considered/analysed contemporaneous documentary and other evidence (eg the tape recording made by the applicant of the conversation on the evening of 16 April 2014, the handwritten note produced by the respondent, the termination letter sent by the respondent to the Immigration Department (D4), the applicant’s letter to the Immigration Department (C8), and photograph of the applicant (D15)) as against the witness evidence before coming to the view that the applicant was not an honest and truthful witness and that her case (ie she had not been paid wages in lieu of notice) ought to be rejected.  In respect of the photograph, the PO did not draw any adverse inference against the applicant, and concluded that it did not assist either party’s case because it could not be clearly discerned from the photograph how much money the applicant was holding.

17. As regards the applicant’s claim for the balance of the air‑ticket fee, the PO derived the quantum of $300 by taking an average after he gave an opportunity for both parties to produce quotations from airlines and agencies.  I am not satisfied that such approach can be criticised.

18. As regards the applicant’s claim for medical expenses in the sum of $100, she could not produce any receipt and the PO rejected her claim.  Since the PO found the applicant to be an unreliable witness, in the absence of any independent supporting evidence, he cannot be faulted for rejecting this head of claim.

19. As for the claim for food and travel allowance for going back to her home country, the settlement sum of $100 was agreed by both parties, and I cannot see how it can be disturbed now.

20. I see no merit for the applicant’s claim for damages.[9] Not only is it unsustainable in view of the above analysis, it is also outside the ambit of the applicant’s claim in the proceedings at the Tribunal from which the present appeal was lodged.

21. In all the circumstances, I am not persuaded that the applicant has shown any arguable grounds of appeal on point of law, and there is no basis for disturbing the PO’s findings of fact.  The applicant’s application for leave to appeal against the Order and/or Review Order is dismissed with no order as to costs.