Wong Wai Hung v. Eastform Industries Ltd

HCLA 17/2022

[2023] HKCFI 1573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 17 OF 2022

(ON APPEAL FROM LBTC NO 60 OF 2022)

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DECISION

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Introduction

1.This is the claimant’s application for leave to appeal against the decisions of Presiding Officer Susan Wong (the “Presiding Officer”) in the Labour Tribunal. By her decisions, the Presiding Officer dismissed the claimant’s claim against the defendant for outstanding wages.

Background

2.The defendant is a company held by Mr Lam Wai Mo (“Mr Lam”) and Ms Ng Yuk Ying (“Madam Ng”) in equal shares with the two of them as directors. Mr Lam and Madam Ng are husband and wife.

3.At the material time, Mr Lam and the claimant were in a relationship. The claimant has two sons. The elder son is Lee Kam Kin (“Kam Kin”) and the younger son is Lam Tsun Ho (“Tsun Ho”), Mr Lam is the father of Tsun Ho. The claimant, Mr Lam and the two sons lived together in the same apartment at Braemar Hill (“the Property”).

4.At trial, Kam Kin was a witness for the claimant and Tsun Ho was a witness for the defendant.

5.The main issue at trial is whether the claimant was an employee of the defendant, or as Mr Lam alleged and the Presiding Officer found, the defendant was merely used by Mr Lam to pay for the living allowances of the claimant and there was no employment relationship between the defendant and the claimant.

6.It is the claimant’s case that she had been employed by the defendant as the “personal assistant” of Mr Lam in the period between April 2014 and March 2017 with a monthly salary of HK$38,000. In her Form 2 filed at the Labour Tribunal, she claimed against the defendant for arrears of wages in the sum of HK$418,000, representing the unpaid monthly salaries from 1 February 2016 to 31 March 2017.

7.On the other hand, Mr Lam maintained that he had had an extra-marital relationship with the claimant since 1998. In 2001, he purchased a property at Braemar Hill under the name of the claimant for the claimant and Kam Kin to live in. In 2004, the claimant gave birth to Tsun Ho and he then arranged them to move in to the Property which is a larger unit. Although the claimant had on occasion helped out for some trivial tasks for the defendant, the claimant was not obliged to help and there was no fixed job duty or working hours of her. He arranged the defendant to pay the claimant $38,000 monthly since around April 2014.

Findings of The Presiding Officer

8.The Presiding Officer found that the claimant’s evidence regarding her job duties was very unclear. What the claimant described was more tantamount to taking care of the daily livings of Mr Lam than performing the work of a personal assistant to the director of a company. The Presiding Officer also found that the claimant could not explain clearly matters concerning her salaries, benefits, scope of work and leave arrangements in the alleged employment by the defendant.

9.The Presiding Officer was aware that the defendant had filed tax return regarding the amount paid to the claimant but she viewed that such arrangement was merely for the purpose of tax reduction.

10.The Presiding Officer accepted the evidence of Mr Lam and Tsun Ho and found that the amount paid by the defendant to the claimant was living allowances as oppose to salaries and that there was no employment relationship between the claimant and the defendant.

11.In her Reasons for Decision[1], the Presiding Officer remarked that “the claimant was definitely not an employee but a mistress”.

Grounds of Appeal

12.Ms Abigail Liu, counsel for the claimant, set out the grounds of appeal of the claimant in the following terms:

(1)  The PO had adopted a wrong approach in deciding the issue of the existence of an employment relationship between the Claimant and the Defendant in that she had first regarded an employment relationship to be mutually exclusive to an extramarital romantic relationship between the Claimant and Mr Lam and/or that the employment relationship is predicated on the non-existence of an extramarital romantic relationship, then upon finding that the Claimant had an extramarital romantic relationship with Mr Lam, the Presiding Officer concluded against the existence of an employment relationship. As a result of this wrong approach, the PO had failed to assess the evidence objectively (“Ground 1”).

(2)  The PO had further erred in identifying the date the Claimant moved out of Flat B, 12/F, Block 5, Grand Palisades (“the Property”), i.e. the cessation of the cohabitation relationship between the Claimant and Mr Lam, as an issue in the action and in effect equating the Claimant’s moving out of the Property with the termination of the employment relationship between the Claimant and the Defendant (“Ground 2”).

(3)  The fact finding of the PO that the Claimant had moved out of the Property in July 2016 is premised upon a number of errors in law (“Ground 3”).

(4)  The fact finding of the PO that the Defendant had paid the Claimant’s salary until 31 July 2016 by cash in the event that employment relationship was established is premised upon a number of errors in law (“Ground 4”).

(5)  In rejecting the Claimant’s review application on 25 November 2022, based on, inter alia, the ground that the PO failed to consider the Defendant’s statement dated 24/1/2022, the Presiding Officer erred in law in accepting Madam Ng’s account given in Court in the hearing on 25^th November 2022, which is not given under oath nor had it formed part of the evidence, resulting in grave injustice (“Ground 5”).

Discussion

13.It is the Presiding Officer’s findings that there existed an extra-marital relationship between the claimant and Mr Lam and there was no employment relationship between the claimant and the defendant. In fact, the existence of the extra-marital relationship between the claimant and Mr Lam was not a subject of dispute at trial. It is, therefore, difficult to suggest that the Presiding Officer had taken the view that the two kinds of relationship are mutually exclusive as in that case she would be able to decide on the matter without considering other evidence like the job duties and working hours of the claimant.

14.There were two versions of facts put before the Presiding Officer at trial. The claimant said that there was an agreement between the parties as to an employment and the money paid by the defendant to her was salary. On the other hand, Mr Lam maintained that there was no such agreement and the payments arranged to be paid by the defendant to the claimant were living expenses. The Presiding Officer considered the evidence and concluded that the evidence did not support an employment agreement and accepted Mr Lam’s evidence that the payments were living expenses.

15.It is understandable that the remark of the Presiding Officer as mentioned under paragraph 11 above might lead to an impression that the Presiding Officer had merely chosen between the two, and the remark was unnecessary. However, the Presiding Officer in deciding whether there was an employment had considered the relevant evidence and come to a conclusion. It is not right to suggest that she had adopted a wrong approach in coming to the finding that there was no employment relationship.

16.Ms Liu has highlighted some aspects of evidence that she submitted that the Presiding Officer had failed to consider sufficiently or investigate further. Concerning the evidence in relation to the filing of tax return and non-payment of MPF by the defendant, I am of the view that the Presiding Officer had committed no error of law in assessing those evidence and the Presiding Officer was not obliged to investigate further or call for further evidence.

17.However, regarding the admission by Madam Ng of the employment in her witness statement and the fact that a new employee had been employed in replacement of the claimant, I am of the view that it is arguable that the Presiding Officer had erred in law in the way she dealt with such evidence.

18.I also find it arguable that the Presiding Officer had erred in law in simply equating the date of the claimant moving out of the Property as the date of termination of employment.

19.However, as to the date of moving out of the Property, the Presiding Officer had properly considered the evidence and made a finding. I do not see any reason to disturb her finding of fact.

20.Accordingly, leave to appeal is granted for Ground 1 as limited in the light of this Decision and Grounds 2, 4 and 5.

21.The claimant is to file her re-amended Grounds of Appeal within 21 days from the date of this Decision.

22.Costs reserved.

Ms Abigail Liu instructed by Henry Wai & Co. , for the Claimant