Alama Tamee v. Lee Yuet Ngor

HCLA000088/1995

Labour Tribunal Appeal No. 88 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Waung in Court

Date of Hearing: 8 February 1996

Date of Handing Down of Reasons: 13 February 1996

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R E A S O N S

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1. On the 8th of February 1996, I allowed the appeal from the Judgment of A.B. bin Wahab, Esq., the learned Presiding Officer of the Labour Tribunal ("Presiding Officer") and I said I will give my reasons later. I now hand down my Reasons.

2. The Appellant, Alama Tamee is a Thai lady of limited education, from a small village in Northern Thailand who only speaks the Liso dialect of that area and not fully conversant with the Thai language. The Appellant came to Hong Kong as a domestic maid and from January 1994 she worked for the Respondent, Madame Lee Yuet Ngor and her husband, Mr. Lai Kai-shui. For the sake of convenience I will call them respectively as Mrs. Lai and Mr. Lai. The case of the Appellant is that not long after she started working for the Lai family, Mr. Lai Kai-shui began his sexual advances towards her consisting of fondling her breasts, explicitly asking her to have sexual intercourse, exposing himself naked to her and forcing her to watch pornographic video with him. The Appellant repeatedly resisted the sexual harassment of Mr. Lai but her financial position was such that she could not leave the house or the employment. It is not clear what is the case of the Appellant as to the knowledge or suspicion of Mrs. Lai of what her husband was doing. What is clear is that matters came to a head on the 14th July 1994, as a result of the Appellant asking Mrs. Lai whether she knew what had happened to the missing Identity Card of the Appellant, whereupon there was a scene which led to either the Appellant being dismissed by Mrs. Lai according to the Appellant or the Appellant wanting to resign and leave the employment according to Mrs. Lai. Thereafter there was the signing of the all important Document in Chinese ("Chinese Document") by the Appellant. The Chinese Document was written in Chinese by Mrs. Lai and was in the form of a letter to the Immigration Department as well as being a receipt by the Appellant of monies received from Mrs. Lai. In so far as it was a letter to the Immigration Department, the letter was to the effect that the Appellant had resigned from the employment and that the employer and employee had agreed that the employment was terminated as on the 14th July 1994 and that the Appellant had found a new employer who was willing to employ the Appellant. In so far as the Chinese Document was a receipt, it purported to say that the Appellant had been paid a total of $4,087 being made up of:

(1) $2,667 for 25 days' wages for the period up to 14th July 1994;

(2) $120 for Sunday pay; and

(3) $1,300 as value of the return ticket to Thailand.

3. It is not and was not disputed that this Chinese Document was signed by both the Appellant and Mrs. Lai. Mrs. Lai said it was signed voluntarily whereas the Appellant said it was forced out of her. It was also disputed at the trial that the Appellant knew the true nature of the Chinese Document she signed and that any money was received by the Appellant as stated in that Chinese Document. After the Appellant signed, she was allowed to leave the house and she went to her friend, Miss Phairat, a fellow maid from Thailand whose employer, Mrs. Chan upon being shown the Chinese Document, told the Appellant that the Chinese Document was a receipt of money alleged to have been received by the Appellant and not a release letter as the Appellant was told by Mrs. Lai. Thereupon the Appellant accompanied by Mrs. Chan went to make a report to the police and complaint was made by the Appellant to the police that she had not received her proper pay and that she was sexually assaulted by Mr. Lai.

4. At the hearing before the Presiding Officer, the Appellant and her friend Miss Phairat both gave evidence and Mrs. Lai also gave evidence for herself. The claim made by the Appellant to the Labour Tribunal, which was disputed by Mrs. Lai, consisted of wages in lieu of notice, arrears of wages up to 14th July 1994, return air passage and one day's wage for working on a rest day. The Presiding Officer dismissed all the aforesaid claims of the Appellant and in his written Reasons for Decision dated 19th August 1995, he really did not deal with or consider the Chinese Document and its implication on the issue of non est factum which had been raised by the Appellant.

5. At the hearing of the appeal, Mr. Hui on behalf of the Appellant laid stress on the error made by the Presiding Officer in failing to properly consider the question of non est factum in relation to the Chinese Document. I accept that submission for the Appellant. Once it is appreciated that there was a termination of the employment contract but the Appellant was not given one month's pay in lieu of notice, for the defence of Mrs. Lai to succeed, reliance had to be placed by Mrs. Lai on the Chinese Document which was the alleged agreement whereby the parties agreed that the contract was terminated and that notice of termination was given one month earlier in the alleged form of the Appellant resigning on 14th June 1994 (as stated in the Chinese Document). In addition, reliance was also placed by Mrs. Lai on the part of the Chinese Document which stated that the arrears of last month's wage plus the return air ticket money had been paid to the Appellant. This vital Chinese Document was written in Chinese, a language which the Appellant could not read or understand. At the hearing, the Labour Tribunal did not explore in any way as it was bound to do, how it could be suggested that the Appellant could be said to understand the Chinese Document which she signed. This fundamental error in law in my view vitiated the proceedings and the result.

6. Mr. Hui on behalf of the Appellant also complained that the Presiding Officer erred in law in failing to provide and arrange an appropriate interpreter who spoke the Liso dialect so that the Appellant could be given a fair hearing. This aspect is significant because the Appellant complained that due to the lack of proper interpretation, she was not able to properly pursue and advance her case or to defend against the allegations made against her by Mrs. Lai and that what is more important, the learned Presiding Officer had misunderstood the evidence and was not given the right interpretation of what she had said. This is an error of law which renders the Judgment given by the Labour Tribunal incapable of being given effect to.

In my judgment, it is most unfortunate that , in his desire to come to a just result, the learned Presiding Officer had overlooked two very important aspects, namely the Chinese Document and the necessity for a proper interpreter to be provided for the hearing. There are also a number of other unsatisfactory aspects of the case but having regard to conclusion I have already reached on the errors of law, I will refrain from elaborating on the other errors of the proceedings. In the circumstances, justice can only be properly done, if I order this case be remitted to the Labour Tribunal with the direction that there shall be a new hearing of the Appellant's claim by a different Presiding Officer.

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Representation:

Mr. Sammy Hui instructed by Messrs Clarke & Liu for the Appellant

Madame Lee Yuet Ngor (Mrs. Lai), the Respondent in person accompanied by her husband, Mr. Lai Kai-shui

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