Yape Liezel Suelto v. Lee Alice Yu Ying

HCLA 7/2023

[2025] HKCFI 4736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 7 OF 2023

(ON APPEAL FROM LBTC NO 991 OF 2022)

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is the appeal by the Defendant against the award of Presiding Officer Catherine Cheng (“Presiding Officer)  of the Labour Tribunal.  By the award, the Presiding Officer ordered the Defendant to pay the Claimant (a)  wages in lieu of notice of HK$4,630 and (b)  annual-leave pay of HK$553.25.   

2.At trial, the Defendant maintained that she has summarily dismissed the Claimant as the Claimant has stolen her properties and therefore, the Claimant is not entitled to the items she claimed.  The Presiding Officer found that there was insufficient evidence to prove that the Claimant has committed theft. 

FACTUAL BACKGROUND

3.The Defendant employed the Claimant as domestic helper since 21 December 2020. 

4.Due to water seepage problems, the Defendant had to move out from her residential home to stay at a hotel temporarily for renovation of her apartment and as such, the Claimant helped pack up the Defendant’s properties for storage.  When the Defendant moved back to her apartment she discovered that her computers and hard disc were missing and there came to a stage when she suspected the Claimant had stolen them. 

5.On 28 June 2021, the Defendant reported to the police that the Claimant has stolen her properties. Police officers went to the Defendant’s premises to conduct a search on the Claimant’s sleeping area on the same day and found some of the Defendant’s properties there, including the computer and hard disc. 

6.The Claimant was then charged with the offence of theft but was acquitted after trial before a Magistrate in Kowloon City Magistracy[1] (“Criminal Case”). 

7.Following her acquittal, the Claimant commenced the present proceedings at the Labour Tribunal against the Defendant for (a)  wages in lieu of notice for HK$4,630, (b)  annual-leave pay for HK$553.25, (c)  air ticket for $5,358 and (d)  food and travelling allowance for going back to her home country for $100.  As (c)  and (d)  have been settled, the trial before the Presiding Officer was on (a)  and (b)  only. 

8.The single issue at trial was whether the Defendant has justifiably dismissed the Claimant summarily under Section 9 of the Employment Ordinance (Cap.57)or common law. 

THE PRESIDING OFFICER’S FINDINGS

9.At trial, the Claimant, Defendant and two police officers gave evidence before the Presiding Officer.  The two police officers are handling officers of the Criminal Case who were called by the Defendant by way of witness summons.  PC25234 is the police officer who searched the Claimant’s sleeping area.  DPC25385 is the investigating officer of the Criminal Case.  He was not present at the Defendant’s apartment on the date of the police search. 

10.In her Reasons for Decision, the Presiding Officer acknowledged that there were inconsistencies amongst the evidence of the Claimant, the Defendant and PC25234, as to the list of alleged stolen propertis in the Criminal Case. 

11.As the Defendant has provided two lists (1^st and 2^nd list)  of her properties allegedly being stolen by the Claimant, the Presiding Officer dealt with the two lists separately in her Reasons for Decision.  The 1^st list are properties which were subject matters of the Criminal Case according to the Defendant, and the 2^nd list are properties unrelated to the Criminal Case but were allegedly being stolen by the Claimant. 

12.For the sake of later discussion, it would be convenient to recite here the relevant parts of the Reasons for Decision to understand how the Presiding Officer arrived at her decision:

“Photos by the defendant

20. The photos adduced by the defendant are not evidence to prove stolen items. The purpose is to show to the tribunal what those alleged stolen items are like, i.e., for identification only. However, majority of the photos are generally of quite poor/very poor quality. They cannot provide much assistance to the tribunal.

Testimony of PC25234 and DPC25385

21. PC25234, the police officer conducting the search on 28 June 2021, was examined and cross-examined during the trial. He confirmed that all items found during the search, that is PC25234's List, were recorded in his notebook.

22. When PC25234 was asked whether there was any admission from the claimant of taking away the items without consent, he recalled the claimant's response was gifts from the defendant. Further, the claimant did not know why the hard disc was on her bed.

23. His oral testimony regarding the search has not been challenged as incomplete and unprofessional and PC25234's List in the notebook has not been questioned during the trial.

24. The two very important items of the defendant, Lenovo laptop and Apple MacBook, item (1)  (4)  of the defendant's List, are on the subject properties list in the Criminal Case, which were not found during the search by PC25234. According to the defendant, sometime after the date of search, she had unzipped the inside compartment of the claimant's big suitcase, where there is an inner layer, she found the said two items there and informed police officer DPC25385.

25. DPC25385 was also summoned to the trial. He was the investigation officer. He did not appear at the scene. He explained that he had other engagement at the time of search. He was not the officer taking photos and conducting search. He was responsible for taking statement with the claimant after her arrest. When he was asked whether the claimant had any admission in the cautioned statement, he recalled the claimant had not said anything. Similarly, his testimony has not been challenged.

Sleeping Area of the Claimant

26. For the defendant's accusation that some properties were found at the area where the claimant stayed or inside the luggage(s)  which had been used by the claimant, it was noted from the defendant's photos (though of poor resolution)  that the area where the claimant stayed and slept was not an enclosed area or room. The claimant's sleeping area was covered by a piece of curtain only, which was confirmed by the defendant.

27. According to PC25234, the area that the claimant stayed at the premises was not a room. It was a rectangular area covered with blinds in the living room, within which the upper rack was a bed where the claimant was used to sleep and the lower part was her wardrobe and storage space.

28. The testimony of PC25234 regarding the layout of the sleeping area is consistent with that of the defendant and my observation to the defendant's photos, being the open area not to the exclusive use and control by the claimant. That means the claimant was not the only one gaining access to the rectangular area. Further, there is no evidence that her wardrobe and storage space were locked at the material time.

29. I find that no direct evidence has proved any of the items stolen by the claimant. Having said that, it was not safe to find that they were the properties stolen by the claimant in light of the absence of any independent evidence.

Certificate of Trial

30. The claimant relied on the fact that she was acquitted of the charge of theft after trial in the Criminal Case. This tribunal is entitled to adopt the certificate of trial as evidence with other finding of facts to consider the whole circumstances of the case.

Defendant 's 2^nd List

31. For the items in the defendant's 2^nd List in paragraph 18 above, I do not accept that they are stolen property as alleged. On 28 June, a thorough search was made by the police in the presence of the defendant, her son and the claimant, and not any one of such items in the 2^nd List were indicated and alleged as stolen during the search. They were only reported to the police after the date of search.

32. It is noted that since the date of search when the claimant was arrested, she has never returned to the premises because of the termination of employment while all her belongings and luggage were still left there without her own attendance.

33. It would not be safe to accept only the defendant's allegation of theft against the claimant based on this 2^nd List without any independent evidence or witness. I therefore attach no weight on this 2^nd List.

Testimony of both parties

34. Majority of the oral evidence given by the Defendant are irrelevant to the issue of the case, particularly relating to the origin and background of her items, together with their sentimental value to her. Further, she insisted that the claimant had made admission to the act of theft, which is indeed contradictory to the testimony of witness DPC25385 in paragraph 25 above.

35. There is not much to talk about the evidence of the claimant. Her testimony mainly focuses that some items were gifts from the defendant and some were her own purchases some time ago. There is not enough evidence before me to contradict the claimant's testimony.

Conclusion

36.  Pursuant to the above, I find that the defendant cannot discharge her duty to prove that the claimant was in breach of Section 9 of the Employment Ordinance.  The Defendant shall be liable to pay the claimant wages in lieu of notice and annual leave pay.”

GROUNDS OF APPEAL

13.The Defendant put forward four grounds of appeal, which can be simplified as follows:

(1)  The Presiding Officer erred in equating the acquittal of the Claimant in the Criminal Case, where a criminal standard of proof was applied, to insufficient evidence to prove the Claimant’s misconduct in these proceedings, where a civil standard of proof is to be applied;

(2)  The Presiding Officer erred in giving insufficient consideration to the objective evidence in support of the Defendant’s testimony;

(3)  The Presiding Officer failed to give sufficient consideration to the evidence and/or make sufficient findings in relation to whether the Claimant has stolen the Defendant’s properties; and

(4)  The learned Presiding Officer is biased against the Defendant and has prejudged the case on the issue of liability and dealt with it with a tinted mind. 

DISCUSSION

14.Concerning Ground (1), although not in the Reasons for Decision, the Presiding Officer did expressly state at the outset of the trial hearing that the standard of proof applied in this matter should be on balance of probability.  Having said that, however, I am of the view that the Presiding Officer had adopted a mistaken approach in the assessment of evidence. 

15.As can be seen from the relevant paragraphs in the Reasons for Decision recited above, the Presiding Officer did not perform a weighing exercise of the evidence between the two versions of facts put forward by the parties.  Instead, what the Presiding Officer has done was to identify the burden of proof of the alleged misconduct, which is on the Defendant, then proceed to consider if there is any objective or independent evidence to support the Defendant’s allegations.  Not being able to identify any in her view, the Presiding officer then concluded that there is insufficient evidence to prove misconduct and the Defendant has failed to discharge her burden of proof.  With respect, this should not be the correct approach for determination of the issue in this matter. 

16.I have read the transcripts of proceedings of the trial.  In her evidence, the Defendant explained in some details why she took the view that the Claimant has stolen her properties.  The Defendant was not able to find her computers and hard disk after moving back to her apartment from the hotel.  She asked the Claimant about this and the Claimant said she had seen them in the hotel and was sure that she had brought back all their things from the hotel.  The Defendant had checked with the moving company and the hotel and they confirmed that the items were not there.  The Claimant was the person responsible for packing and unpacking the carton boxes and the computers, the hard disc and other items were later found by the police in her suitcases and sleeping area. 

17.Although there is an issue as to whether some of the alleged stolen items were in fact found inside the Claimant’s suitcase, it is the Defendant’s evidence that sometime after the date of search the 2 computers were found inside the inner compartment of the Claimant’s suitcase.  Moreover, on the date of search, the hard disc was found in a black suitcase under the storage compartment of the Claimant’s bed. 

18.If the evidence of the Defendant is believed, it might well be that an inference can be drawn, on balance of probability, that the Claimant had indeed stolen the Defendant’s properties.  However, the Presiding Officer has made no findings on whether she accepted or rejected the Defendant’s evidence, in whole or in part, and the reasons thereof. 

19.On the other hand, the Claimant alleged that some of the items were gifts from the Defendant which the Defendant denied.  It is also incumbent upon the Presiding Officer to canvass on this issue and make findings on whether she accepts that those items were gifts from the Defendant and if not, why they were not stolen from the Defendant.  

20.In my judgment, with respect to the Presiding Officer, she has adopted an incorrect approach in assessing the evidence and failed to investigate sufficiently the issue concerning whether the Claimant has stolen from the Defendant. 

21.The Presiding Officer has therefore committed an error of law and the matter should be remitted back to the Labour Tribunal for a retrial. 

22.For Ground (2), Ms Linda Cho, counsel for the Defendant, set out in her submission the evidence relevant to various alleged stolen items and submitted that the Claimant’s oral testimony regarding those items is inherently improbable.  For example, the Claimant said that she bought the pair of sun-glasses from Saudi Arabia for 800 Riyal which is equivalent to over HK$1,600; the hard disc contains personal data of the Defendant’s patients and it would not be possible that the Defendant would make it a gift to the Claimant. 

23.There is some force in Ms Cho’s arguments but in the light of my ruling regarding Ground (1), I will refrain from making further comments and leave it for consideration by the Labour Tribunal at the retrial.  

24.In view of my ruling on Ground (1), it is also not necessary to deal with Ground (3)  as it is on the Presiding Officer’s failure to give sufficient consideration to the evidence in relation to the stolen items in the Defendant’s list, which is covered by my reasoning in allowing Ground (1). 

25.I would like to say a few words regarding Ground (4).  At the appeal hearing, I made it clear to Ms Cho that allegations against a judicial officer as bias should not be made lightly and the allegations under Ground (4)  against the Presiding Officer are totally unfounded and should not have been made. 

26.The Defendant accused the Presiding Officer of being bias because:

(a)  the Presiding Officer should have conducted the cross-examination herself and not let the Defendant, who is a layman without proper legal training to conduct the cross-examination of the witnesses; and

(b)  the Presiding Officer has assumed the Defendant has liability and dealt with the quantum first before liability issue is determined. 

27.As I read through the transcripts of the proceedings, I am of the view that the Presiding Officer has been conducting the trial with a lot of patience.  At the start of the trial, the Presiding Officer explained to the parties the relevant issues and burden of proof, she then enquired if parties can agree on quantum while making clear to them that liability is in issue.  This is a good practice adopted in tribunals for narrowing down disputes and is entirely proper.  There is no question of prejudging as submitted by Ms Cho in her written submission. 

28.Regarding cross-examination by the Defendant, although the procedure in Labour Tribunal is informal, the usual procedure for a civil trial should be adopted unless it is impracticable to do so.  The parties should have the right to cross-examine witnesses of the other side.  It is entirely proper for the Presiding Officer to allow the Defendant to cross-examine the Claimant in her evidence.  In the course of the Defendant’s cross-examination, the Presiding Officer has assisted her in framing and clarifying her questions.  I see no prejudice caused to the Defendant by the way the Presiding Officer conducted the proceedings. 

29.Ground (4)  is misconceived and inappropriate. 

CONCLUSION

30.The Defendant’s appeal is allowed and the award dated 16 February 2023 shall be set aside. 

31.This matter is to be remitted to the Labour Tribunal for retrial before another presiding officer.  

32.I make a costs order nisi that costs of the appeal be to the Defendant to be taxed if not agreed and costs in the Labour Tribunal be in the cause. 

33.The costs order nisi shall become absolute unless either party apply to vary within 14 days. 

Respondent (Claimant) act in person, absent

Ms CHO, Siu Man Linda instructed by Johnny K.K. Leung & Co. for the Appellant (the Defendant)