Suen Hung Shan v. Wong & Ouyang (HK) Ltd

HCA 1796/2020

[2023] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1796 OF 2020

(Transferred from Labour Tribunal Claim No. LBTC 1833/2020)

__________________

_________________

_________________

JUDGMENT

_________________

INTRODUCTION

1.This is the trial of the plaintiff’s claim against the defendant (his ex-employer) which had been transferred from the Labour Tribunal.

FACTUAL BACKGROUND

2.The following background is undisputed/indisputable.

3.By an employment agreement dated 21 December 2018 (“the 1^st Employment Agreement”), the defendant employed the plaintiff as Senior Resident Architect for the project known as “Galaxy Cotai, Mega Resort Lot 3, Macau” (“the Development”). This written agreement which was signed by both parties provided, inter alia, that:

“2. Effective date of employment shall be 28 January 2019 for a period of 18 months. The employment period may be extended if mutually agreed […]

[…]

10. There will be a probation period of three months. The contract may be terminated by either party by giving 7 days’ notice during the first three month’s (sic) service or one month’s notice after the probation period.”

4.By a letter dated 18 April 2019, the defendant informed the plaintiff that his employment with the defendant would not be continued beyond the aforesaid probation period, and shall be terminated on 18 April 2019.

5.The plaintiff then commenced a claim against the defendant at the Labour Tribunal under LBTC 2091/2019 (“the 1^st Labour Tribunal Case”).

6.The 1^st Labour Tribunal Case was then settled. The settlement agreement dated 27 August 2019 (“the Settlement Agreement”) which was printed on the defendant’s letterhead and signed by both parties provided that:

“Dear Bernard

We write to confirm that by agreement between the Company and your goodselves on the following terms, you have agreed that your claim on the termination of your appointment as Senior Resident Architect for the Galaxy Cotai, Mega Resort Lot 3 Macau shall deem to be fully and finally settled both in Hong Kong and Macau:

1. Your acceptance of appointment as Technical Manager in Hong Kong as per our letter of 27 August, 2019.

2. The Company to pay an allowance of HK$20,000.00 per month during the period from 19.4.2019 to 31.8.2019, with a deduction of the rental payable by the Company in accordance with item no.3 below mentioned.

3. The Company to take up your lease at […] Macau for the period from 19.4.2019 to 27.1.2020 at a monthly rental of HK$9,500.00.

4. The Company to compensate your mobile phone fee at HK$7,368.93.”

(emphasis added)

7.Pursuant to Clause 1 of the Settlement Agreement, the defendant, by letter also dated 27 August 2019 (“the 2^nd Employment Agreement”), confirmed the plaintiff’s employment as Technical Manager of the defendant.

8.The 2^nd Employment Agreement provided, inter alia, that:

“1. Contract Period

The period of this contract shall be deemed to have commenced on 19 April, 2019 and shall continue to 27 July, 2020. The employment period may be extended if mutually agreed.

2. Assignment

You will be working full time at our Hong Kong office in relation to Two Taikoo Place office development.

4. End-of-contract gratuity

(i) An end-of-contract gratuity of 15% of basic salary actually earned shall be payable only upon completion of the employment period with satisfactory performance.

(ii) In the event that the contract is terminated by the employer for reasons of your negligence, misconduct etc., no end-of-contract gratuity shall be payable.

(iii) In the event that the employee resigns for any reason before completion of the entire employment period，no end-of-contract gratuity shall be payable.

(iv) In the event that the contract is terminated by the Employer pursuant to Clause 6 of this contract and not for reasons as stated in Clause 4(ii)，a portion of the end-of-contract gratuity shall be payable on pro-rata basis.

(v) Save for the abovementioned, a deduction of HK$164,450.00 from the gratuity calculated in accordance with Section 4(i) or Section 4(iv) will be applied.

7. Termination

Employment can be terminated with 30 working days’ notice from either party.”

(emphasis added)

9.By reason of the aforesaid full and final settlement between the parties, the plaintiff obtained leave from the Labour Tribunal on 28 August 2019 to withdraw all his claims made in the 1^st Labour Tribunal Case.

10.By letter dated 2 June 2020 (“the Termination Notice”), the defendant informed the plaintiff that his employment with the defendant would be terminated on 27 July 2020.

11.The plaintiff then started another claim at the Labour Tribunal (LBTC 1833/2020) against the defendant on 11 September 2020 and claimed for a total sum of $4,718,450 (“the 2^nd Labour Tribunal Case”). His claims were based on the following grounds:

(1)  Wrongful deduction of gratuity: $164,450

(2)  Failure to pay outstanding sum of money: $3,960,000 ($110,000 x 36)

(3)  3-year gratuity: $594,000 ($3,960,000 x 0.15)

12.The 2^nd Labour Tribunal Case has subsequently been transferred to the Court of First Instance, and the Claim Form filed in the Labour Tribunal has been ordered by Master S H Lee to be treated as the Writ of Summons herein.

THE PLAINTIFF’S PLEADED CASE

13.The plaintiff’s claims as pleaded in his Statement of Claim may be summarised as follows.

14.When the parties entered into the 1^st Employment Agreement, the construction of the Development was in Phase 3. The plaintiff had been promised by the defendant that the plaintiff would be employed to work for the defendant for Phase 4 of the construction of the Development (“the Oral Agreement”), and it was estimated that such work would take another three years to complete. It was only because of such a promise that the plaintiff agreed to sign the 1^st Employment Agreement.

15.However, in breach of its promise and its mutual trust with the plaintiff, the defendant terminated the plaintiff’s employment after three months, without giving any reason. He therefore commenced the 1^st Labour Tribunal Case against the defendant, and claimed for, among other things, his loss of wages which he would have earned.

16.The 1^st Labour Tribunal Case has subsequently been settled, and as a result he has withdrawn his claims at the Labour Tribunal. However, despite such settlement, he has not waived any of his claims made in the 1^st Labour Tribunal Case.

17.Under their settlement agreement, the defendant has agreed to re-employ the plaintiff for a total of 47 months. When the defendant entered into the Settlement Agreement, it knew or should have known that it was obliged to compensate the plaintiff for “prospective damage” (wages for a further period of 36 months after 27 July 2020).

18.There was an implied term in the 2^nd Employment Agreement that the defendant should give reason for termination of the plaintiff’s employment.

19.The defendant has breached Clause 1 of the Settlement Agreement, the aforesaid implied term and the mutual trust between the parties in that the defendant has terminated the plaintiff’s 2^nd Employment Agreement without giving any reason.

20.Clause 4(v) of the 2^nd Employment Agreement (which stipulated for a deduction of $164,450 from the gratuity payment calculated under Clause 4(i)/(iv) of the 2^nd Employment Agreement) has been added without the consent of the developer of the Development (GEG), and as a result, the 2^nd Employment Agreement is invalid.

21.When the plaintiff entered into the Settlement Agreement (including the 2^nd Employment Agreement), he believed that the defendant would renew his contract for at least another three years (making a total contractual period of 47 months).

22.It was stipulated in the 2^nd Employment Agreement that the defendant would renew his contract if it was satisfied with his performance. In the Termination Notice, the management of the defendant thanked him for his contribution to the defendant. The defendant’s payment of “end-of-contract gratuity” to him also demonstrated that the defendant was satisfied with his performance. In these circumstances, it was unreasonable for the defendant to dismiss him.

23.Further, if the defendant did not intend to extend his employment period, there was no reason why the defendant would include the provision that “The employment period may be extended if mutually agreed” in Clause 1 of the 2^nd Employment Agreement.

24.The plaintiff therefore, in his Statement of Claim filed on 22 January 2021 herein, sought an order that he be re-employed by the defendant. Alternatively, he claimed for his loss of wages for 36 months and “end-of-contract gratuity” in the total sum of $4,554,000. He further claimed for the return of the deducted “end-of-contract gratuity” in the sum of $164,450.

25.It should be mentioned here that the plaintiff has also made a number of “counterclaims” (“the plaintiff’s Counterclaim”) in his Reply, including payment in lieu of notice, damages compensating his loss of tax payment in relation to the gratuity payment of $164,450, and damages for defamation, etc. However, the plaintiff’s Counterclaim has been struck out by Master D Ho on 13 September 2022.

THE DEFENDANT’S PLEADED CASE

26.The defendant’s pleaded case is very straight-forward.

27.In a gist, it was asserted that:

(1)  Full and final settlement had been reached by the parties in relation to the 1^st Labour Tribunal Case, and as a result, they had entered into the Settlement Agreement and the 2^nd Employment Agreement.

(2)  The defendant has complied with all the terms of the Settlement Agreement.

(3)  The 2^nd Employment Agreement was a fixed term contract, which had been terminated by effluxion of time.

(4)  There was no implied term in the 2^nd Employment Agreement that the defendant had to give reason for termination of the plaintiff’s employment.

(5)  The 2^nd Employment Agreement only stipulated that “The employment period may be extended if mutually agreed”, and there was no obligation on the part of the defendant to renew or extend the plaintiff’s employment with the defendant.

(6)  The deduction of “end-of-contract gratuity” in the sum of $164,450 was expressly agreed between the parties under Clause 4(iv) of the 2^nd Employment Agreement as part of the Settlement Agreement.

DISCUSSION

28.I regret to say that, for reasons which I will further explain below, the plaintiff’s claims are totally misconceived, and this case should have been disposed of summarily by procedures under Order 14A and Order 18 rule 19 of the Rules of the High Court long time ago.

The 1^st Labour Tribunal Case and its settlement

29.It is indisputable (and indeed undisputed by the plaintiff himself in his pleadings[1], evidence[2] and submissions[3]) that a full and final settlement had been reached in relation to the 1^st Labour Tribunal Case by virtue of the Settlement Agreement.

30.It is trite that an unimpeached compromise represents the end of the dispute or disputes from which it arose. Any issues of fact or law that may have formed the subject matter of the original dispute are buried beneath the surface of the compromise. The court will not permit them to be raised afresh in a new action. The foundation of the principle lies in two aspects of public policy: the need for there to be an end to disputation and the desirability of parties being held to their bargains: see Foskett on Compromise, 9^th edition (2020), §§6-01 and 6-02.

31.Therefore, it is futile for the plaintiff to address/put forward arguments:

(1)  on whether the terms of the 1^st Employment Agreement were in contravention of the law of Macau;

(2)  on the alleged breach of the 1^st Employment Agreement on the part of the defendant;

(3)  in support of the claims made by him in the 1^st Labour Tribunal Case and maintained that he has not waived his claims therein despite the full and final settlement;

(4)  on what happened during the proceedings of the 1^st Labour Tribunal Case; and

(5)  the circumstances under which the Settlement Agreement had been reached.

32.Without disrespect to the plaintiff, I shall not deal with such arguments herein.

33.I should also mention that in the 127-page written final submissions and 79-page reply submissions, the plaintiff had also included many other totally irrelevant matters or even new factual matters which have never been admitted as evidence. With greatest respect, I do not think it is necessary to set them all out in this Judgment. It suffices for me to reiterate that I have considered all the matters raised before I came to the conclusion that they are either irrelevant or inadmissible.

34.The same approach is adopted in relation to the large number of authorities cited by the plaintiff which are mostly irrelevant.

The Settlement Agreement and the 2^nd Employment Agreement

35.For the reason explained above, the Court should focus on the interpretation of the terms of the Settlement Agreement (as well as the 2^nd Employment Agreement which had been entered into as part of the settlement agreement between the parties).

Legal principles on interpretation of contract

36.A useful summary of the general principles by which contractual documents are construed can be found in the judgment of Lord Hoffmann in Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896 as follows (at 912H-913F):

“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the ‘matrix of fact,’ but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd.[1977] A.C. 749.

(5) The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] 1 A.C. 191, 201:

‘if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.’ ”

When should the 2^nd Employment Agreement expire?

37.With the above principles in mind, I now to turn to consider one of the most important issues in the present case, namely, when should the 2^nd Employment Agreement expire?

38.To recap, Clause 1 of the 2^nd Employment Agreement provides that:

“The period of this contract shall be deemed to have commenced on 19 April, 2019 and shall continue to 27 July, 2020. The employment period may be extended if mutually agreed.” (emphasis added)

39.The plaintiff argued that the effect of the above clause was that, despite the inclusion of the date of “27 July 2020”, the employment between him and the defendant would not end there and then, but would be continued up to the conclusion of the construction of Two Taikoo Place. He further alleged that the 2^nd Employment Agreement could not be terminated on 27 July 2020 without his consent.

40.In support of his aforesaid assertions, he relied on, inter alia, the following matters:

(1)  The Oral Agreement, that is, the promise made by the defendant that the plaintiff would be employed to work for the defendant for Phase 4 of the construction of the Development;

(2)  When the defendant entered into the Settlement Agreement, it knew or should have known that it was obliged to compensate the plaintiff for “prospective damage” (wages for a further period of 36 months after 27 July 2020);

(3)  When the plaintiff entered into the Settlement Agreement and the 2^nd Employment Agreement, he believed that the defendant would renew his contract for at least another three years (making a total contractual period of 47 months);

(4)  If the defendant did not intend to extend his employment period, there was no reason why the defendant would include the provision that “The employment period may be extended if mutually agreed” in Clause 1 of the 2^nd Employment Agreement;

(5)  The 2^nd Employment Agreement was not a fixed term agreement as such because, as admitted by Mr Lam Ping Hong Robert (Senior Director of the defendant) (“Mr Lam”), the word “expiry” did not appear in such an agreement;

(6)  The inclusion of the provision that “The employment period may be extended if mutually agreed” also shows that the 2^nd Employment Agreement was not a fixed term agreement, because the end date of the agreement has not been specified/agreed;

(7)  The terms contained in an agreement which the plaintiff and the Galaxy Entertainment Group (“GEG”) (presumably the developer of the Development) entered into on 6 March 2019 (“the GEG Agreement”) had also been included as part of the terms of the Settlement Agreement, and the 2^nd Employment Agreement had been continued automatically by reason of the force of the GEG Agreement;

(8)  Clause 2 of the 2^nd Employment Agreement stipulated that the plaintiff would be “working full time at [the defendant’s] Hong Kong office in relation to Two Taikoo Place office development” as opposed to “partial development”;

(9)  The service of the Termination Notice by the defendant meant that the defendant itself knew that “27 July 2020” was not an expiry date as such as alleged because otherwise there was no need for the defendant to serve such a notice at all.

41.I am afraid I must say that the plaintiff’s assertions have no merit at all.

42.First, bearing in mind the matters which should be taken into account when assessing the credibility of a witness as set out in Hu Lan v David Golden [2023] HKCFI 873 at [36], I reject the plaintiff’s evidence that the defendant had ever promised him that the plaintiff would be employed to work for the defendant for Phase 4 of the construction of the Development, for the alleged Oral Agreement is contradictory to the provision of the 1^st Employment Agreement which provided for a period of employment of 18 months only[4]. If the parties had reached the Oral Agreement as alleged, they would have fixed the term of the employment not by reference to a date but by project.

43.Once the plaintiff’s allegation on the Oral Agreement is rejected, the whole basis of his case collapsed.

44.In any event, the Oral Agreement cannot assist the plaintiff because, as aforesaid, any dispute(s) in relation to the 1^st Employment Agreement have been fully and finally settled by virtue of the Settlement Agreement (and the 2^nd Employment Agreement).

45.Second, it is crystal clear that the 2^nd Employment Agreement is a fixed term contract, which provided expressly an “end date”, namely, 27 July 2020. Even if the parties had reached the Oral Agreement as alleged (which has been rejected above), the Oral Agreement must have been superseded by the 2^nd Employment Agreement.

46.Further, risking to state the obvious, the absence of the word “expiry” in the clause does not necessarily mean that the agreement has not expired on 27 July 2020.

47.Third, in the light of the clear wordings and effect of the 2^nd Employment Agreement, I reject the plaintiff’s suggestion that the defendant knew or should have known that it was obliged to compensate the plaintiff for “prospective damage” as alleged. I have no hesitation in accepting Mr Lam’s evidence (which denied this allegation) as truthful in this regard.

48.Fourth, the plaintiff’s alleged subjective belief that the defendant would renew the 2^nd Employment Agreement for at least another three years is irrelevant for the purpose of interpreting the effect and meaning of the said agreement. In fact, this allegation on subjective belief is contradictory to his own case that the employment has not expired on 27 July 2020: If the employment had not come to an end at all, the question of “renewal” simply does not arise.

49.Fifth, the insertion of the sentence “The employment period may be extended if mutually agreed” into Clause 1 cannot assist the plaintiff at all. Apparently the extension must be subject to the agreement of both parties.

50.Sixth, there is absolutely no hint in either the Settlement Agreement or the 2^nd Employment Agreement that the GEG Agreement had been included as part of the terms of the settlement between the plaintiff and the defendant. This allegation is simply hopeless.

51.Seventh, the plaintiff’s reliance on Clause 2 of the 2^nd Employment Agreement which (he said) did not provide that he was going to work full time in the Two Taikoo Place office “partial development” but “development” is totally misplaced. On any objective view, Clause 2 cannot be interpreted to give the meaning as intended by the plaintiff.

52.Eighth, the service of the Termination Notice by the defendant cannot assist the plaintiff. The Termination Notice reads:

“As per the employment contract signed between the Company and your goodselves on 27 August, 2019, your contract with the Company will expire on 27 July, 2020.

Your employment with the Company will be terminated on 28 July，2020 and pursuant to clause 4 of the said employment contract, an end-of-contract gratuity calculated at 15% of basic salary actually earned during the employment period will be paid to you on 27 July, 2020.

The Management would like to sincerely thank you for the contribution you have made to the Company and wish you every success in your future endeavor.”

53.I do not agree with the plaintiff that the service of the above notice could be taken to mean that the defendant also knew that the 2^nd Employment Agreement would not expire on 27 July 2020. Quite the opposite.

54.To conclude, it is my finding that the 2^nd Employment Agreement is a fixed term contract, which has expressly provided “27 July 2020” as the date of expiry of the agreement.

55.It follows that the 2^nd Employment Agreement has been terminated by effluxion of time.

The defendant’s obligation to give reason for termination

56.The plaintiff then alleged that there was an implied term in the 2^nd Employment Agreement that the defendant should give reason for termination of the plaintiff’s employment.

57.He also argued that the failure on the part of the defendant to give reason was in breach of their mutual trust.

58.These arguments are misconceived. As the 2^nd Employment Agreement is a fixed term contract, the employer is plainly entitled to let the contract expire by effluxion of time.

59.I suspect that the plaintiff has been confused by the receipt of the Termination Notice on 2 June 2020. In fact, even though it was described as a “termination notice”, it did not seek to terminate the 2^nd Employment Agreement earlier than 27 July 2020. Therefore, the said notice should not be mixed up with the type of notice issued under section 6 of the Employment Ordinance.

60.Even if the Termination Notice did terminate the 2^nd Employment Agreement earlier than scheduled, the defendant was not obliged to provide reason as to why the defendant has chosen to terminate the agreement earlier, because the defendant did not summarily dismiss the plaintiff.

61.In this regard, I respectfully agree with Anthony Chan J who held in Lam Siu Wai v Equal Opportunities Commission [2021] 5 HKLRD 30 that:

“27. As the law stands (and stood at the time of the Decision), the [common law implied duty of mutual trust and confidence] cannot be applied to water down an employer’s right to terminate the employment of a worker without cause by invoking the notice provisions (contractual and/or statutory).

30.  […] it is reasonably well-established that a contractual right to terminate an employment (on the part of either employer or employee) can be exercised unreasonably or capriciously so long as the right is exercised in accordance with the contract, and the court is not concerned with the rightness or wrongness of a dismissal: Malloch v Aberdeen Corp [1971] 1 WLR 1578 at 1581G; Johnson v Unisys Ltd [2003] 1 AC 518 at §§38-41; Cheung Chi Keung v Hospital Authority [2006] 2 HKLRD 46 at §19.”

62.I should also add that, in the case where an employment agreement is a fixed term contract, even if it (like the 2^nd Employment Agreement) provides that it may be extended by mutual agreement, the employer has no obligation to renew/extend the employment upon its expiry, even if the employee has performed well during the employment period. There is simply no room for the plaintiff to argue that the defendant owes him a duty of good faith when deciding whether to renew his employment upon the expiry of the 2^nd Employment Agreement: See Ko Hon Yue v Liu Ching Leung & Others (HCA 3494/2003, unreported, 4 August 2008), at [171] – [173].

Deduction of $164,450

63.The plaintiff argued that although Clause 4(v) of the 2^nd Employment Agreement did provide for deduction of the sum of $164,450, he was no longer bound by it because of the breach of the Settlement Agreement on the part of the defendant in failing to pay certain sums claimed in the 1^st Labour Tribunal Case.

64.As the defendant has not been in breach of the Settlement Agreement (or the 2^nd Employment Agreement) at all, this argument is rejected.

65.The plaintiff further alleged that the provision on deduction was included without the consent on the part of GEG and therefore it was invalid.

66.This argument is not accepted as there is no reason why the inclusion of the said provision into the 2^nd Employment Agreement had to be subject to the consent of GEG.

Other “claims”

67.In his opening and closing submissions, the plaintiff has referred to many other claims which include, among others, claims for damages for defamation and claims made pursuant to Part VIA and section 72B of the Employment Ordinance. As I explained to the plaintiff time and again at the trial, he is bound by his pleadings and this Court would not allow him to put forward claims which have not been pleaded or which have been struck out (as far as the plaintiff’s Counterclaim is concerned).

The defendant’s failure to call Mr So Wing Kei Wayne as witness

68.For the sake of completeness, I should also mention that while the defendant has served two witness statements (of Mr Lam and Mr So Wing Kei Wayne respectively), at the end of the day, the defendant decided to call Mr Lam only as its witness at the trial.

69.In his closing submissions, the plaintiff complained that this Court had “[allowed] the withdrawal of Mr So from giving his oral statement and be exempted from cross examination by the plaintiff”[5]. He then went on to make submission on the credibility of Mr So.

70.With greatest respect, this line of argument is totally misconceived, for the defendant has the right to decide whether to call a particular witness to give evidence in court, even though a witness statement of such a witness has previously been served.

71.In the circumstances where the defendant has failed to call an important witness (assuming for the time being that Mr So is such a witness, which I do not agree), the plaintiff at most may argue that adverse inference may be drawn against the defendant. However, in the circumstances of the present case, I do not accept that such inference can be drawn.

ORDER

72.By reasons of the aforesaid, the plaintiff’s claims are hereby dismissed.

COSTS

73.I make a costs order nisi that the plaintiff shall bear the defendant’s costs of the action (including all costs reserved), to be taxed if not agreed.

74.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

The plaintiff was not represented

Mr But Sun Wai, instructed by Withers, for the defendant