Akthter Tanjina v. Pushkarna Neena

HCLA 18/2018

[2018] HKCFI 2820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 18 OF 2018

(ON APPEAL FROM LABOUR TRIBUNAL

CLAIM NO 2123 OF 2017)

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DECISION

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1.Having read the papers (which include the 39-page written submissions filed on the claimant’s behalf), and having heard Mr Lam, solicitor appearing for the claimant, I decide to grant the claimant leave to appeal. That being my decision, and so as not to prejudice the appeal which will ensue, I shall only give brief reasons for my decision.

2.This is the claimant’s application for leave to appeal pursuant to section 32 of the Labour Tribunal Ordinance Cap 25 against the decision of the Deputy Presiding Officer made on 31 July 2018 dismissing the parts of the claimant’s claim for (1) underpayment of wages, (2) annual leave pay, (3) statutory holiday pay, (4) rest day pay, (5) cost of air-ticket to her place of origin, (6) food and travelling allowance for her return to her place or origin, and (7) transportation fare to her place of origin.

3.The claimant is a Bangladeshi national.  She was employed by the defendant between May 2011 and June 2017.  She claimed that during that employment period, she was not paid and remunerated in accordance with the provisions of the Employment Ordinance.  She lodged her Form 2 on 6 July 2017.  She claimed, apart from the 7 items set out in paragraph 2 above, long service payment.  Her case came before the Deputy Presiding Officer for trial on 27 to 29 of June and 3 July 2018. The claimant and the defendant gave evidence.  The defendant called in addition two witnesses.  On 31 July 2018, the Deputy Presiding Officer gave her decision dismissing the 7 items of claim set out in paragraph 2 above, but allowing the claimant’s claim for long service payment.  The Deputy Presiding Officer gave detailed reasons for her decision in the Reasons for Decision handed down on 16 October 2018 (the “Reasons”).  As can be seen therefrom, the case primarily turned on the Deputy Presiding Officer’s assessment of the credibility of the witnesses before her.

4.On 7 August 2018, the claimant lodged her Form 14 seeking leave to appeal.  That was superseded by an amended version lodged on 27 November 2018.  The proposed grounds set out therein are:

(a) Ground 1 – the Deputy Presiding Officer failed to take into account the claimant’s alleged vulnerable position as a victim of forced labour, thereby depriving her of a fair hearing;

(b) Ground 2 – the Deputy Presiding Officer failed to fully investigate the claims in accordance with section 20(3) of the Labour Tribunal Ordinance. Particulars of the alleged failures have been set out; and

(c) Ground 3 – the Deputy Presiding Officer erred in law by reaching decisions of fact that were perverse, irrational and not supported by evidence, and by making reference to irrelevant factors and without proper regard to the relevant factors.  Particulars of the alleged errors have been set out.

Discussion

5.For the purpose of her trial, the claimant has filed a number of witness statements.  One of them was dated 25 May 2018.  Paragraph 9 thereof was in the following terms:

“IOM Classification as a Victim of Human Trafficking

9. Pursuant to the principles of Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (otherwise known as the “Palermo Protocol” on Human Trafficking), I have been identified by the International Organization for Migration (“IOM”) as a victim of human trafficking. Attached at Annex 3 is the report from IOM.”

6.The International Organization for Migration is, as described by the claimant, a Related Organization to the United Nations that inter alia works to help ensure the orderly and humane management of migration.  The report from IOM referred to (the “IOM Report”) is, as produced, an 8‑page document.  Certain events relevant to the claimant’s background and her employment in Hong Kong with the defendant were set out.  At the top of page 6 of the IOM Report, it was said:

“From the information given above, in accordance with article 3 of the 2000 UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons (UN Palermo protocol on Human Trafficking), it is clear that [the claimant] can be identified as a victim of trafficking in person. Three intersrelated elements which constitute the crime of trafficking in persons are explained below.”

The IOM then proceeded to discuss the elements of “Act”, “Means” and “Exploitation”.    

7.Despite the IOM Report, and despite it having been placed before the Deputy Presiding Officer via the claimant’s statement of 25 May 2018, it was not referred to in her Reasons.  The suggestion that the claimant could be a victim of human trafficking, and the possibility that she might also be a victim of forced labour, have not been considered.

8.To be fair to the Deputy Presiding Officer, I should immediately mention that the decision of the Court of Appeal in Z N and Secretary for Justice [2018] 3 HKLRD 778 was handed down on 2 August 2018, which was 2 days after her Decisions.

9.Whilst issues relating to credibility of witnesses do not normally give rise to questions of law which justify the granting of leave to appeal, in the present case, given the IOM Report and the decision of the Court of Appeal in ZN, I am satisfied that arguable questions of law are involved.

Disposal

10.For the above reasons, I grant the claimant leave to appeal.

Mr Gerald Lam, of Messrs Kirkland & Ellis, for the claimant