Choi Wai Wah and Another v. Scandinavia Arts Ltd.

HCLA000140/1996

No. 140 of 1996

(Labour Tribunal Appeal)

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(On Appeal from Claim No. LT2670/96 C/WLT 2681/96)

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Coram: The Hon. Mr. Justice Wong in Court

Date of hearing: 14 July 1997

Date of handing down of judgment: 18 July 1997

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J U D G M E N T

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1. This is an appeal from the Labour Tribunal. On 17th October, 1996 Mr. S.C. Poon, the Presiding Officer, made an award against the Defendant for wages in lieu of notice, arrears of wages, annual leave pay, statutory holiday pay and long service payment in favour of the two Claimants who are husband and wife. The 1st Claimant, the husband, was awarded a total sum of $201,272 while the 2nd Claimant, the wife, received a sum of $113,681.10

2. On 25th March 1997, Deputy Judge Wesley Wong granted leave to the Defendant to appeal on two grounds:-

1. The Presiding Officer erred in law when he relied on a letter dated 13th June from the Defendant to an overseas customer as evidence of a dismissal of the Claimants by the Defendant.

2. The Presiding Officer erred in law when he misinterpreted the evidence of the 1st Claimant (at page 23 of the Notes of Proceedings). The true and correct interpretation of the 1st Claimant is that he himself decided not to work for the Defendant. His evidence was thus contradictory to his own case that he was dismissed by the Defendant.

3. The sad part of the facts of this case is that the major shareholder of the Defendant Company, Mr. Tsai Yung Sung is the natural father of the 1st Claimant and father-in-law of the 2nd Claimant. Both Mr. Tsai and the 1st Claimant were 2 of the 3 directors of the company. The 1st Claimant gave evidence that he joined his father's company after his graduation from school in 1980 and became Marketing Manager a few months later. The 2nd Claimant said that she joined the company in 1988 as Sales Manager. In or about 1991, the father and other members of the family emigrated to Canada, leaving the management of the company effectively to the two Claimants. The 1st Claimant was authorised to order goods from various overseas suppliers of crystal products. The father returned to Hong Kong in March 1996 but left for Canada in the latter half of April. He returned again in or about the end of May or beginning of June 1996.

4. The passage complained of in the second Ground of Appeal appears at page 42 of the Bundle of Documents (page 23 of the Notes of Proceedings):

Court: What happened on 10/6/96?

(the 1st Claimant):

A: I asked him why company which made profit each year did not have money to pay. I asked for account for inspection. He refused. He said if I do not believe him, I should quit. I thought I had been working for 10 odd years. But we do not have authority to check account so I decided not to work for Company any more.

Court: Did he ask your wife to leave employment as well?

A: He said you (兩公婆) shall leave employment.

5. The case of the Defendant is that the Claimants left their employment without notice. The issue for the Tribunal to decide was whether the Defendant dismissed the Claimants or the Claimants left their employment without any notice. This is largely a question of fact. In addition to the evidence of the Claimants, the Presiding Officer also took into account a letter written by the Defendant to Orrefors Kosta Boda AB (Publ) in Sweden. This letter is to be found at page 121 in the Bundle of Documents. The relevant paragraph reads:-

"Please be informed that Mr. Partick W.W. Choi is no longer the Marketing Manager of our company and both he and Ms. Cassandra Suk Mui Sit will not, with immediate effect, have any authority to place any orders of the products. Neither will the said Mr. Patrick Choi nor Ms. Cassandra Sit be entitled to order the goods through any other firms or companies."

This letter was signed by Mr. Tsai yung Sung and dated 13th June 1996.

6. It is clear from this letter that the 1st Claimant ceased to be the Marketing Manager on the date of the letter. This is inconsistent with Mr. Tsai's evidence at page 69 when he was asked about this by the Presiding Officer and this is what transpired:-

Court: According to this letter, C1 ceased to be Marketing Manager on 15th June 1996?

(Tsai Yung Sung):

A: We did not cancel his Marketing Manager title. We just revoke his authority to place orders with factory.

Court: But according to this letter, C1 ceased to be Marketing Manager.

A: Yes. He's no longer Marketing Manager for the factory.

7. At page 88, the Presiding Officer made these findings:-

"And the conclusion I come to is that I accept Claimants' version of the events.
Defendant's version is not satisfactory in some material aspects. For example, I do not believe DW1's evidence on the daily sales report, invoices for April, May and June 96 had gone missing. Further, the letter of 13th June 1996 issued by Defendant to its suppliers clearly indicated that C1 had been dismissed from the post of manager and C2 did not have authority to place orders for Company. It is inconsistent with Defendant's allegation that it had never dismissed C1 or C2."

8. The Presiding Officer had seen the witnesses and observed their demeanour, it is for him to decide on credibility. He believed the Claimants and disbelieved the Defendant. In my view, the letter is more consistent with the Claimants' evidence that they were dismissed than the case of the Defendant that they left their employment without notice. The evidence, taken as a whole, points to dismissal.

9. There is no merit in either ground of appeal. I would add that leave should not have been granted in the first place as the issue is entirely one of the finding of facts by the Presiding Officer.

10. As the Claimants were not legally represented and having regard to the close relationship of the parties, I propose to make no order as to costs.

Representation:

Mr. Jason Pow instructed by M/s Charles Chiu & Co. for Appellant/Defendant