Oliva Fernandez Ibarra v. Tam So King
Read the full judgment text of DCCJ 18165/1999 on BabelCite. This District Court judgment was delivered on 18 October 2001.
1. In these consolidated actions, the Plaintiff sues the Defendant, her former employer, for monies which the Plaintiff says the Defendant owes her upon the early termination of the contract of employment by the Defendant, as well as damages for breach of an implied obligation of trust and confidence.
Cited by 1 case · Cites 3 cases
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DCCJ018165/1999 DCCJ 18165/1999 & IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 18165 OF 1999 & NO. 4788 OF 2000 (consolidated by the Order of Deputy Judge A Yuen dated 19th June 2000) --------------------
--------------------- Coram: H.H. Judge Andrew Cheung in Court Date of Hearing: 3, 5, 8, 9 and 10 October 2001 Date of Handing Down Judgment: 18 October 2001 _________________ J U D G M E N T _________________ 1.In these consolidated actions, the Plaintiff sues the Defendant, her former employer, for monies which the Plaintiff says the Defendant owes her upon the early termination of the contract of employment by the Defendant, as well as damages for breach of an implied obligation of trust and confidence. Plaintiff's evidence 2.It is common ground that the parties signed a written employment contract dated 28th July 1997 whereby the Defendant agreed to employ the Plaintiff, a Filipino, to work as her domestic helper for a term of two years, subject to the provisions that the same could be terminated by either party by 1 month's notice or payment in lieu of notice. The Plaintiff was to work and reside in the Defendant's residence at Flat D, 4th Floor, Green Court, 498 Un Chau Street, Shamshuipo, Kowloon. According to the Plaintiff, who was 20 years old in 1997, she used to work in a factory doing office type of work before she came to Hong Kong. This was the first time she came to Hong Kong to work as a domestic helper. She accepted that she thought that the main reason why she was hired was to look after the Defendant's infant girl. After her application for employment in Hong Kong was successfully processed, she arrived Hong Kong from the Philippines on 16th October 1997. She was met by the employment agency people in Hong Kong and on the following day she was introduced to the Defendant. According to the Plaintiff, the Defendant asked her to stay with her colleague or friend, a Mr. Chan, in Yuen Long and help Mr. Chan's maid whilst she stayed there, as she (i.e. the Defendant) had to clean up her premises first. So the Plaintiff stayed in Mr. Chan's premises for three days and helped out in the household chores. On 20th October 1997, the Defendant took the Plaintiff to her mother's place which was also situated in the Shamshuipo area and was just five-minutes' walk from the Defendant's flat. She was asked to do household work there until around 9 to 10 p.m. when she was taken by the Defendant to the Defendant's flat where she was told how to do the household work and take care of the Defendant's daughter. On the following day, she started work at around 6 a.m., doing the household work and taking care of the daughter who was about one year old. After noontime, the Defendant's husband took the Plaintiff to the Defendant's mother's place together with the toddler. At the mother's place, she was asked by the mother to do household work which she did. The mother resided together with her husband and two daughters. The Plaintiff returned to the Defendant's flat at night. 3.According to the Plaintiff, this became her routine duties on a daily basis. In other words, she started work at around 6, 7 or 8 a.m. depending on whether the toddler had woken up early, she would do the household work including cleaning, washing and ironing clothes, and mopping the floor, and taking care of the toddler. Depending on when she completed her work at the Defendant's flat, she would go over to the Defendant's mother's place at around 10 or 11 in the morning where she would do the general household work. Usually it was the Defendant's mother who would give her orders by hand gestures regarding what she should do, which would usually include cleaning, washing and ironing clothes, and mopping the floor. She would stay there until 9 to 10 p.m. when she would return to the Defendant's flat. She would finish whatever work that was left to be done there before resting for the day. She said she normally finished work at around 10 p.m. 4.She said one day she learned from a policeman on the street that it was wrong for her to work in two households. She returned home and told the Defendant and her husband who simply told her that it was all right for her to do so provided the Immigration Department did not find out about it. She said she had no choice but to carry on working in two households as required by her employer as before. 5.During cross-examination, the Plaintiff said she could not recall the exact address of the mother's premises but she could remember how to get there. She agreed that in fact it was situated at Room 1421, 14th Floor, Un Chau Estate, Block 6, Shamshuipo, a public housing estate. She said she went up to the flat by lift and there was no need to use any staircase. It was then pointed out to her that the 14th floor was not served by any lift and access to the floor had to be gained via a staircase from the 13th floor which was served by the lift. She then said she could recall that that was indeed the case. She agreed that she could no longer recall the physical layout of the mother's premises. The Plaintiff said in cross-examination that the two sisters of the Defendant who resided together with their parents there opened the door for her when she visited the premises on a daily basis. She also said the mother also opened the door for her, two to three times a week. When it was pointed out to her that the mother, her husband and one of the sisters left home for work early in the morning and there was no way any one of them could have opened the door for her on her alleged daily visit to their premises, the Plaintiff said that sometimes she arrived the premises at around 7 a.m. and the sister (Maggie) opened the door for her. She also said that the other sister (May) who worked as a nurse on shifts also opened the door for her. She said that she went to the premises at around 7 a.m. once a week. The Plaintiff further said that when the Defendant took her to the premises, the Defendant who had the keys would open the door for her. The Plaintiff said her hours of working in the two households varied depending on the workload. In re-examination, the Plaintiff further said that it was very difficult to describe her normal working hours and schedule because it all depended on her workload which changed. 6.The Plaintiff also said that she cooked dinner for the Defendant's mother's family three times a week, and had to do grocery shopping as well. The Plaintiff maintained in cross-examination that she went to the mother's premises almost everyday, and denied that she had been there only on 10 odd family gathering occasions or that on those occasions her job was simply to baby-sit the Defendant's infant daughter. 7.The Plaintiff said on 26th April 1998 she became sick and saw a doctor on 27th. She was given two days' sick leave. As she needed somebody to look after her, and with the permission of the Defendant and her husband, she stayed with some friends or relatives on the 27th and only returned to the Defendant's premises on the following day. As she did not get well she went to see another doctor on 28th who gave her a one-day sick leave. On 29th, she was still unwell, and accompanied by the Defendant's husband she went to Caritas Medical Centre for outpatient consultation. She said in cross-examination that she had a kind of ulcer but was unable to recall further details of her illness. She maintained that no receipts were given by the two private practitioners, whereas the consultation at Caritas was free. 8.Anyhow, a few days later, i.e. 2nd May, the Defendant and her husband suddenly asked her to write a resignation letter and leave. She refused and was frightened. She asked for time to consult her friends which the Defendant and her husband refused. She asked to speak to the sister of the Defendant (May) but the Defendant and her husband also refused. Eventually they went up to the office of the employment agency and met there a Miss Eva Chen, the staff member of the agency who had handled the Plaintiff's recruitment in the first place. Miss Chen prepared a letter to the Immigration Department as well as a receipt for the parties' signature, telling the Plaintiff that she could find a new employer for the Plaintiff within weeks. Miss Chen added that if she did not sign the documents she could not find her a new employer and she would have to return to the Philippines immediately. The Plaintiff said in evidence that since she owed a lot of money in the Philippines she needed to work in Hong Kong. Under those circumstances, the Plaintiff felt she had no choice but to sign the documents prepared. So she signed a letter to the Immigration Department to the effect that she and the Defendant had both agreed to cancel the employment contract as the Defendant's family had a "communication problem" with the Plaintiff. The letter went on to say that the Plaintiff was very trustworthy and helpful, she did household chores, her working performance was satisfactory, and the Defendant had no objection to the Plaintiff looking for a new employer in Hong Kong. 9.The Plaintiff also signed a receipt prepared by Miss Chen, thereby acknowledging receipt of her wages up to 2nd May 1998, payment in lieu of untaken annual leave, travelling allowance and payment in lieu of air-ticket, totalling $3,398.90. The receipt was countersigned by the Defendant as well as Miss Chen. The Plaintiff said that however when the money was handed over to her after the receipt was signed, she found that only $2,000 odd was given to her. She asked why and Miss Chen asked her not to worry and she would find her a new employer within several weeks and then she could stay. During cross-examination, the Plaintiff accepted that she understood the contents of the letter and receipt, but maintained that she signed the same under circumstances described above. She denied that she had been paid the full amount as set out in the receipt signed by her. 10.But the new employment promised by Miss Chen never materialised. The Plaintiff said she then met a gentleman in June who subsequently became her boyfriend. Upon his help, she made claims against the Defendant in the Labour Department, and subsequently in the Labour Tribunal as well as this Court. Eventually everything was transferred to this Court and consolidated for resolution. 11.According to the Plaintiff, initially her relationship with the Defendant was good. It went bad in April 1998 and she yelled at her all the time. The Plaintiff suspected that this was because the Defendant felt that her husband had been paying too much attention to her. The Plaintiff explained in evidence that the husband had been treating her well throughout. In fact, during Christmas time in 1997, one day when she was having her day off and was about to go out, the husband asked her to stay behind to watch a movie together with him. He had her seated next to him on the sofa and told her that he wanted her to be his girlfriend. He then went into his bedroom and asked the Plaintiff to sit on the bed next to him. Again he said he wanted her to be his girlfriend. The Plaintiff was very frightened but refused the husband's suggestion. She insisted on leaving and the husband went with her downstairs. She said the Defendant was not aware of this incident. However she said that the Defendant's husband treated her exceedingly kindly in the presence of his wife, such as spoon-feeding her (literally) over the dining table in the presence of his wife. 12.During cross-examination, the Plaintiff was asked whether there was any other matters relating to the attitude of the husband towards her that she might want to inform the court, and she said "no". It was then pointed out to her that in fact in paragraph 14 of her signed witness statement she made a number of other allegations of "unwelcome sexual advances" against the husband. She said in her statement that on one occasion the husband put his arm around her while she was doing ironing, touching her hand and "grazing [her] right breast". On another occasion, the husband approached her from behind, with his body coming into contact with hers. He took her hand and squeezed it in a suggestive manner. Yet on another occasion, the husband came into the bathroom where she was working and squeezed her buttocks. And in relation to the occasion during Christmas time, the witness statement said that in fact the husband asked her to stay behind to watch pornographic movies together with him. When asked in cross-examination why none of these was mentioned by her until she was asked to read her own witness statement, the Plaintiff said she had forgotten to mention these matters. When it was suggested to her that none of these rather serious allegations appeared in any of the claims or documents filed by her in relation to her present claim (to which the husband was formerly named as a party), the Plaintiff said she had mentioned all these to her former lawyers and friends, but not to others. During re-examination, Mr. Yam, counsel for the Plaintiff, suggested (and I believe not deliberately) in a question he asked that the Plaintiff felt embarrassed and therefore did not mention these matters in Court. The question was immediately disallowed by me as being a leading question. When the question was re-phrased in a more neutral manner, the Plaintiff said she felt shy and that was why she did not mention any of these matters. (It is convenient to note here that in a statement made by the Plaintiff in October 1998 for the purpose of her claims in the Labour Tribunal, she did refer to all these alleged sexual advances, although not in as detailed a manner as she did in her signed witness statement made in March this year.) 13.The Plaintiff said in evidence that after her departure, she had rung the Defendant's place on several occasions and managed to speak to the Defendant's husband on one occasion which she tape-recorded. She said she called to find out the reason why she was asked to leave, and to see if she could settle her claim with the Defendant. She said on that occasion the husband admitted to her that she had indeed worked at both the Defendant's flat as well as her mother's premises. The Plaintiff denied in cross-examination that she deliberately called the Defendant and her husband so as to entrap them, or that she put words into the mouth of the Defendant's husband, taking advantage of his very average command of English. She denied that all that the husband intended to say during the telephone conversation was that whether the Plaintiff was working at the Defendant's premises or her mother's premises all that she was required to do was to baby-sit the couple's toddler. 14.The Plaintiff said in evidence that after leaving the Defendant's employment, she tried to look for another employment. She secured somebody who was willing to hire her but the Immigration Department did not approve the application, telling her that this could not be done pending the outcome of her litigation with the Defendant. She had to withdraw her claim against her former employer first. She said she was told that this would be the same even if she were to return to the Philippines first and make the application for a new employment from there. Therefore although she was (and is) allowed to stay in Hong Kong pending the final adjudication of her present litigation, she was and is not able to work in Hong Kong in the meantime, as to which she is claiming damages against the Defendant. The Plaintiff said in cross-examination that she had been staying in Hong Kong although she could not work here because she wanted to see justice done in the present claim against her employer. She denied that she had been using the court case as delaying tactics so that she could stay behind in Hong Kong together with her boyfriend. The Plaintiff said she was single, her family was in the Philippines, and she had tried to settle her claim with the Defendant but failed. 15.During cross-examination, the Plaintiff accepted that in a conciliation meeting held on 3rd August 1998, her boyfriend took away under protest two documents relating to her medical consultations on 27th and 28th April. The documents were shown to her boyfriend by the Labour Officer as evidence that the Defendant had paid for the medical fees in relation to the two consultations. Her boyfriend simply took away the two documents without the Defendant's consent and despite the protests of all those who were present (except the Plaintiff). The Plaintiff insisted that the documents taken away were the medical certificates issued by the two private doctors whom she had consulted, copy of which can be found on pages 75 and 76 of the trial bundle, and no receipts had been issued by the two doctors. But according to a written account prepared by the Labour Officer involved dated 20th August 1998, the admissibility of which is not in dispute, what the Plaintiff's boyfriend took away were two receipts issued by the doctors concerned. Defendant's evidence 16.The Defendant gave evidence at trial. She said at the material times she lived in a flat which was less than 300 square feet in usable area together with her husband and her infant girl. She hired the Plaintiff through the employment agency mainly to take care of her infant girl, as she and her husband had to go to work. They both worked with the MTR company and they both worked on shifts. She said she relied on the employment agency to pay for all necessary expenses for securing the Plaintiff's service as her domestic maid, and she had paid the agency a service fee. The Defendant said in evidence that the Plaintiff normally started working at 7 a.m. and finished work at around 9 p.m. She took care of the toddler who was almost one year old when the Plaintiff first arrived, and the usual household chores. During the time the Plaintiff was with the Defendant's family, the girl slept twice in the daytime, and when she was asleep, the Plaintiff could do the housework as well as take a rest. 17.The Defendant said she had been told by Miss Chen that it would take 4 months for the maid to arrive from the Philippines. So when she was informed by Miss Chen on 17th October that the Plaintiff had arrived, she was taken by surprise. The bedroom which the Plaintiff was to share with the small child was not ready and she had yet to buy a bed for the Plaintiff. So she arranged with her colleague Mr. Chan for the Plaintiff to stay with him at his place for a few days so that she could buy the bed, put away the toys, and tidy up the wardrobe and drawers, before she would take the Plaintiff home. She said she never asked the Plaintiff to work or undergo training at Mr. Chan's place. In cross-examination, the Defendant denied that it constituted a breach of contract to ask the Plaintiff to stay in Mr. Chan's place. She explained that as she had to work, and the Plaintiff was new to Hong Kong, she took a few days to prepare her own flat before asking the Plaintiff to live there, and she did not find it comfortable to ask the Plaintiff to help her in preparing her flat. 18.The Defendant said her flat was situated near Caritas Medical Centre, whereas her parents lived near the MTR station. It took at least 15 minutes to walk from her flat to her mother's flat, on a door-to-door basis. She said the two premises were several blocks away and one had to cross several streets where the traffic was busy in order to reach one place from another. She denied that one could walk from her building, on street level, to her mother's block, also on street level, within five minutes. She also said that being located within an old style public housing estate, her mother's flat was not served by any lift and could only be reached by taking the lift to the 13th floor and walking up one floor via the staircase. The Defendant also said in evidence that her parents and her sister (Maggie) all worked full-time during daytime, leaving home early in the morning and returning home only in the evening. As for her other sister (May), she was a nurse working on shifts. In cross-examination, the Defendant admitted that although her mother had a full-time job, she had a very long lunch break which she spent by taking lunch at home. So from noontime until around 2 p.m., her mother and her sister (May) if she was not on duty, would be at home. The Defendant maintained that her mother prepared her own lunch at home. 19.According to the Defendant, she had taken the Plaintiff to her mother's place during holidays and family gatherings, for about 10 odd times. She had never asked the Plaintiff to go to her mother's place alone or to perform any domestic work there, and the Plaintiff did not have the key to her mother's premises. In cross-examination, it was pointed out to the Defendant that in her signed witness statement, she said at the material times she visited her mother's premises very frequently, almost twice a week, and she also said in her statement when she went she would usually go with her daughter and she would also ask the Plaintiff to go with her together to look after her daughter at her mother's premises. The Defendant explained at trial that depending on her shifts, she would have meals in her mother's place. It was very difficult for her to say on average how many times she visited her mother's premises every week, as it all depended on her shifts. She said sometimes the Plaintiff was on leave, so she would not go together with her and her child to her mother's premises. She said when the Plaintiff accompanied them to her mother's place, the Plaintiff was only asked to take care of the child. She was not asked to help in doing the household chores or cooking which was done by her mother alone. The Plaintiff just stayed there to look after the child even if she was sleeping at the mother's premises. The Defendant said in re-examination that on average she would visit her mother's premises by herself 20 odd times a month. As regards the affirmations made by her mother and her two sisters in these proceedings all to the effect that she had brought the Plaintiff to visit the mother's premises on "numerous" occasions, the Defendant said in her understanding, "numerous" simply meant 10 odd times in the present context. 20.The Defendant denied that the Plaintiff had ever related to her any incident in which she was told by a policeman on the street that it was against the law for her to work in two households, or that her husband had ever told the Plaintiff that it was all right for her to do so provided that this was not found out by the Immigration Department. 21.The Defendant said her relationship with the Plaintiff was ordinary employer-employee relationship. She never yelled at her and she was never angry with her. She considered herself a good employer. She said that she accepted the work performance of the Plaintiff, bearing in mind that this was the first time she came to work in Hong Kong. So far as she noticed, her husband behaved normally towards the Plaintiff. He never "spoon-fed" the Plaintiff in her presence. She did not feel jealous towards the Plaintiff. She said she never received any complaints from the Plaintiff during the time she worked for her, and she did not intend to ask the Plaintiff to leave. After the Plaintiff left, it took her several months to find a replacement maid from the Philippines. 22.The Defendant said in evidence that starting from 27th April 1998, the Plaintiff claimed that she was sick and consulted three doctors in succession. She did not stay at home for the first night, but returned after the Defendant asked her to do so on the 28th. She rested and did not carry out any work on those few days when she said she was ill. Then on 30th April, she was told by her husband that the Plaintiff had told him that day that she wanted to quit because of her illness and personal reasons. She accepted it and made arrangements to meet Miss Chen on 2nd May to attend to the formalities, as she had to attend a full-day training on 1st May. On 2nd May, she and her husband together with the Plaintiff attended the employment agency's office. There Miss Chen prepared for the parties' signature a letter to the Immigration Department as well as a receipt for the monies that were payable to the Plaintiff upon the determination of the contract. The Defendant said she agreed with the contents of the letter and so she signed it as part of the termination procedure. The Defendant accepted that the letter did not refer to the health reasons and personal reasons cited by the Plaintiff as her reasons to terminate the contract of employment, but instead explained it in terms of a "communication problem" between the Plaintiff and the Defendant's family. The Defendant repeated that the letter was drafted by Miss Chen and explained that there was indeed a communication problem although that was not the reason given by the Plaintiff for determining the employment contract. 23.As for the receipt prepared by Miss Chen on 2nd May, she said she paid the Plaintiff the total amount of money due in accordance with the receipt in cash. She explained in evidence that although it was the Plaintiff who said she wanted to terminate the employment contract immediately, as she herself agreed to it and knew that the Plaintiff would have no money to make any payment in lieu of notice to her, and she did not mind, therefore she did not ask the Plaintiff to make any payment in lieu of notice to her. She also said her husband then gave the Plaintiff $320 in cash as reimbursement of the medical fees for the Plaintiff's two consultations with the two private doctors costing $160 each. As for the consultation at Caritas Medical Centre, it only cost $30 odd and it had been reimbursed on the very day the consultation took place. The Defendant elaborated that on all three occasions, receipts were issued. In particular, the two private doctors issued receipts which were given to the Defendant and her husband by the Plaintiff. The Defendant kept the receipts for the purpose of claiming insurance reimbursement. The receipts were taken away by the Plaintiff's boyfriend subsequently on 3rd August as detailed in the written account prepared by the Labour Officer referred to above. 24.The Defendant said she had asked Miss Chen to write to the Labour Department to confirm the circumstances of the termination of the contract of employment between her and the Plaintiff and to confirm that all necessary payments due to the Plaintiff had been paid and all requisite documents completed, which she did. (A copy of this letter dated 25th July 1998 appears on page 100 of the agreed bundle.) The Defendant explained in Court that she intended to call Miss Chen to give evidence at trial. But when she tried to contact her by telephone at her office in October last year, she was informed by a staff member working there that Miss Chen had left the company and emigrated to Australia. She did not know her contacts in Australia. 25.The Defendant said in evidence that she had written several letters to the Immigration Department after the departure of the Plaintiff. In particular, the Defendant accepted that she had written a letter similar to the one appearing on page 139 of the bundle which is identical in contents to another copy letter appearing on page 137 of the bundle, both apparently written by the Defendant to the Immigration Department on 3rd May 1998. In the letters, the Defendant complained that the Plaintiff broke her contract "since 2 May 98", she did not stay at home on 27th and 28th April when she claimed she was sick, her reason given for feeling sick was unacceptable, she did not take any of the medicine prescribed by the three doctors she had consulted, and she asked for the termination of the contract. In the letters, the Defendant also wrote that the Plaintiff had committed a number of mistakes, namely, that she always told lies, that she did not stay at home without authorisation on 27th/28th April, that she returned at midnight on her rest day on four occasions, that she had been questioned by the police for half an hour on the street on one occasion because of the sexy clothing that she was wearing and the police suspected her of engaging in a certain "part time job", that she owed people money who called up the Defendant asking her to repay the loans for her, that she was impolite, dishonest and had misconducted herself. The Defendant also admitted that she had written a subsequent letter to the Immigration Department complaining that the Plaintiff had been calling her and her husband repeatedly relating to her false claim against them and querying whether the Plaintiff was staying in Hong Kong legally. 26.The Defendant explained that the letter dated 2nd May 1998 to the Immigration Department prepared by Miss Eva Chen for the parties' signature was sent in order to help the Plaintiff get a new job. The Defendant said Miss Chen told her if she had any other things to say to the Immigration Department, she should write separately to the Immigration Department. That was why she signed the letter drafted by Miss Eva Chen and also wrote the other letters. 27.During cross-examination, the Defendant was vigorously questioned as to the apparent inconsistencies between the letter of 2nd May 1998 in which the Plaintiff was described as "very trustworthy and helpful" and a "communication problem" between the parties was given as the reason for the early termination of the contract, and the many allegations made in the two letters dated 3rd May 1998 relating to the character of the Plaintiff and the reason for the termination of the employment contract. The Defendant basically maintained that the letter of 2nd May 1998 was drafted by Miss Eva Chen, it was correct so far as its contents were concerned, but the letters of 3rd May 1998 also represented the true facts. The Defendant also maintained that the incident about the Plaintiff being questioned by the police on the street mentioned in her letters had nothing to do with the Plaintiff's story that she had been intercepted by the police on the street and warned by the police that she should not work in two households, which the Defendant said the Plaintiff had never told her or her husband about. The Defendant accepted in cross-examination that her allegation that the Plaintiff had not taken any of the medicine prescribed by the doctors was just a mere guess on her part as she did not know what quantities of medicine had been prescribed by the doctors in the first place. The Defendant denied in cross-examination that the letter of 2nd May 1998 was only written to induce the Plaintiff to accept the termination of the contract without making any complaint, or that the Defendant did not like the Plaintiff as evidenced in the letters of 3rd May 1998 and therefore asked her to go. Defendant's husband's evidence 28.The Defendant's husband also gave evidence at trial. Generally speaking, his evidence was along the same lines as that given by his wife. He said there was not any pre-arrangement to send the Plaintiff to Mr. Chan's premises for training. Rather the reason was that their flat was not ready when the Defendant was told the Plaintiff had arrived. He said his relationship with the Plaintiff was ordinary employer-employee relationship. He denied all allegations of sexual advances towards the Plaintiff. He denied that he had paid excessive attention to the Plaintiff. He denied the alleged "spoon-feeding" incident. He said the Plaintiff carried out her duties at his flat, taking care of the small child as well as doing the household chores. 29.The Defendant's husband said that the Plaintiff only went over to the premises of his mother-in-law on weekends, holidays and festivals. When she was there, she just took care of the small child but was not asked to do any household chores. According to his estimation, the Plaintiff had been to his mother-in-law's premises 10 odd times. He said to reach his mother-in-law's premises from his flat, it would take about 15 minutes, crossing two lights- controlled junctions which were busy. If one included the time spent on going up and down the buildings, the total time required would be 20 minutes. He denied he had taken the Plaintiff to the premises of his mother-in-law on a daily basis. In cross-examination, it was pointed out to the Defendant's husband that he said in his witness statement that he and his wife and their daughter paid "frequent" visits to his mother-in-law's premises during the material times and they took the Plaintiff with them in order to take care of their daughter. He maintained that they had gone with the Plaintiff to the premises of his mother-in-law on 10 odd occasions only. He also said in cross-examination that whenever his wife was working, she would go to her mother's premises to have meals as her mother's premises were nearer to the MTR station than their flat, and his wife's meal break was only 35 minutes. When his wife was off-duty and he had to work (because they worked on different shifts), his wife would also eat at her mother's place. He also said that whenever he and his family visited the premises of his mother-in-law they would usually stay behind for dinner. But he maintained that the Plaintiff would only take care of his daughter there but would not take part in doing the household chores even when the daughter was sleeping. 30.The Defendant's husband said both his and his wife's relationship with the Plaintiff was normal employer-employee relationship. He admitted that his wife had yelled at or raised her voice against the Plaintiff when she made the same mistake repeatedly. 31.The Defendant's husband admitted in cross-examination that the Plaintiff had mentioned to his wife (who then related to him) that there were two occasions when the Plaintiff was stopped by the police on the street. On one occasion this was because the Plaintiff was wearing sexy clothing. On the other occasion the Plaintiff was stopped by the police and asked where she was working, she told the police that she worked in two households, and the police warned her not to do so. He said in cross-examination that at the time when his wife related to him what the Plaintiff had told her, he did not believe the Plaintiff's story because he thought that the police would not for no good reason tell a Filipino on the street not to work for two households. He denied that on that occasion he told the Plaintiff not to worry as the Immigration Department was not aware of that. 32.His account of what took place on the 27th, 28th and 29th April when the Plaintiff claimed that she was sick and consulted doctors was basically the same as that given by his wife. He maintained that the Plaintiff stayed out at night on the 27th without first obtaining his wife's permission by telephone. He said in relation to the two private doctor consultations, the Plaintiff gave him and his wife two receipts. They were paid in cash ($320) to the Plaintiff on 2nd May at the office of the employment agency. For the consultation at Caritas Medical Centre, he said the cost was only about $37 and he had reimbursed the Plaintiff by cash on the 29th. The Defendant's husband said that in the morning of the 30th, the Plaintiff told him she wanted to terminate the employment contract immediately as she was feeling very unwell and she could work for his family no longer. She further asked him how much she would need to compensate them for the immediate termination of the employment contract. He replied that he would have to ask his wife and consult the employment agency. He then told his wife about the matter and left it to her to handle and decide. In the evening, his wife told him that she had consulted the employment agency and had decided to accept the termination. 33.The Defendant's husband said in evidence that he accompanied his wife and the Plaintiff to attend the office of the employment agency. He said he just sat behind and let his wife, the Plaintiff and Miss Eva Chen handle the termination procedure and documentation. He did not witness exactly how much money his wife gave the Plaintiff, but he heard no complaint from the Plaintiff, and he assumed that the Plaintiff must have received the amount of money stated in the receipt signed by her. He said he did not pay attention to what was said between his wife, the Plaintiff and Miss Eva Chen. He further said in cross-examination that he was not aware that the Plaintiff and his wife had signed a letter dated 2nd May 1998 to the Immigration Department. He agreed that there was some communication problem between the Plaintiff and he and his wife, and that was part of the reason for their accepting the Plaintiff's suggested early termination of the contract of employment. He said this was a minor or trivial matter and that was why it was not mentioned in his signed witness statement. 34.The Defendant's husband said he knew nothing about the two letters dated 3rd May 1998 apparently written by his wife to the Immigration Department. He said his wife had never mentioned the letters to him and he did not know why his wife wrote the letters. 35.As regards his telephone conversation with the Plaintiff after her departure which had been tape-recorded by the Plaintiff, he explained that his command of English was just very average. He said when the Plaintiff alleged over the telephone that she had been made to work in two households, he said or actually intended to say in reply that when the Plaintiff was at the premises of his mother-in-law she was only asked to do the same thing as she had to do in his flat, namely, looking after his daughter. That was what he meant when he was recorded as saying to the Plaintiff:
36.In cross-examination, he was asked why, during the telephone conversation when the Plaintiff told him the Immigration Department wanted to know why her contract of employment came to an end, he replied that this was because the Plaintiff broke the contract by not returning to sleep in his premises on the 27th contrary to his requirement that she must obtain his wife's permission by telephone first before she could stay out for the night. This contradicted with his evidence that it was the Plaintiff who asked to have an early termination of the contract for personal and health reasons on the 30th. He replied that this was due to the kindness and graciousness which he and his wife wanted to show to the Plaintiff. He said if the true reason was mentioned to the Immigration Department this would ruin her chance of getting a new employment in Hong Kong. Defendant's sister's evidence 37.The elder sister of the Defendant, May, gave evidence at trial. At the material times, she resided together with her parents and her youngest sister (Maggie) at the public housing estate. She was (and is) a registered nurse working at Queen Elizabeth Hospital. She worked on shifts. She said the Defendant had brought the Plaintiff together with her daughter to visit her and her parents during weekends and holidays when the family gathered. She said she had seen the Plaintiff on such occasions eight to ten times. She said it would take around 15 to 20 minutes to walk from her place to the Defendant's flat. She said she had never seen the Plaintiff visiting her flat during weekdays when she was at home and was off-duty. She disagreed that the Plaintiff had visited her place almost everyday. She said in weekdays, there would be nobody at home to open the door for the Plaintiff in the daytime, except perhaps her mother when she was at home during lunchtime. She said she herself had never opened the door for the Plaintiff during weekdays. She said on those occasions when the Plaintiff visited her flat, the Plaintiff only took care of the Defendant's daughter. She was not required to do any housework. When the small child was asleep, the Plaintiff would stay in the flat, reading books or watching TV. She said she had never asked the Plaintiff to do any housework for her. 38.She said that on 30th April, the Plaintiff had telephoned her about the termination of her contract with the Defendant. She said the Plaintiff asked her if she left whether she had to pay compensation to the Defendant. She said she thought the reason why the Plaintiff called her was that she could speak better English than her sister and brother-in-law. 39.She admitted that she had made an affirmation in these proceedings deposing that the Defendant had brought the Plaintiff to visit her, her parents and her youngest sister at their place "on numerous occasions". She said the word "numerous" meant to her "many", and that she considered eight to ten visits by the Plaintiff to her place during a period of six months as many, and she added that there could be other visits to her place when she was not there. Liability: Findings of fact 40.Insofar as liability is concerned, in my judgment, there are two main issues pleaded in the pleadings. First, whether the Plaintiff had worked in two households almost on a daily basis during the six months she was with the Defendant. Second, the circumstances of the termination of the employment contract. There are other factual issues between the parties as is apparent from the above summary of the evidence of the respective witnesses. Some have a more direct bearing on the two main issues, and some simply affect credibility. 41.Having carefully listened to the oral evidence of the witnesses and observed their demeanour in the witness box, and having considered the documentary evidence before me as well as the circumstantial evidence in the present case, I am not satisfied that the Plaintiff is a truthful or honest witness in the witness box. There are several areas of her evidence which she quite plainly did not tell the truth to the court. First, I am troubled by her failure to mention or recollect that in order to reach the premises of the mother she would have to use a staircase from the 13th floor, her inability to describe even in general terms the physical layout of the premises, her very confusing and contradictory answers regarding the time of the day when she would usually go over to the mother's premises to work there, and her evidence relating to who opened the door for her. She could not remember the address of the mother at all, and could not for example say on which floor she was living, bearing in mind that she claimed that for a period of six months she had been carrying out domestic work from the premises of the mother on a daily basis, allowance being given for the lapse of time. Her evidence relating to the time she would usually go over to the premises of the mother to carry out household work there clearly shifted during the course of her evidence, due allowance being given for her evidence that the schedule varied with her workload and the fact that the Defendant and her husband worked on shifts and indeed different shifts. She first said in evidence in chief that she usually went over to the mother's premises at between 9 and 10 a.m. and returned at around 10 p.m. Then when she was asked whether that meant that she spent very little time doing work in the Defendant's premises, she changed the time to 10 or 11 a.m. before she would go over to the mother's premises. She said it depended on the workload. In cross-examination, it was suggested to her that there would be nobody to open the door for her in the daytime, and she changed her story by saying that it was one of the sisters who opened the door for her in the early morning and she said she went over there at 7 a.m. once a week. She said she did not know the working hours of the mother but the mother opened the door for her two to three times a week, and could not remember at what hour(s) the mother would usually be at home to open the door for her. If she really worked at the premises of the mother on a daily basis, she must have at least some idea that everyday the mother, according to the unchallenged evidence, returned to have lunch in her flat as she had a very long lunch break and did not leave home to return to work until 2 p.m. She said she cooked lunch for herself and the daughter at the premises of the mother, and only cooked dinner for everybody in the evening. This is surprising given that the mother returned home to have lunch there everyday. This was never mentioned by the Plaintiff. 42.Second, as regards the two private doctor consultations, I do not believe her story that only sick leave certificates were obtained from the two doctors but not the receipts. Certainty the receipts were important to her as a maid for claiming reimbursement from her employer, just as the medical certificates were important to her for claiming sick leave. Furthermore, there is clear and unchallenged evidence in the form of a signed written account from the Labour Officer who clearly said in her account that the medical receipts were taken away by the Plaintiff's boyfriend without the consent of the Defendant or the Labour Officer during the conciliation meeting held on 3rd August 1998. Yet in the witness box, the Plaintiff adamantly maintained that no receipts had been issued, no receipts had been given by her to her employer or her husband, and what her boyfriend took away despite protest at the conciliation meeting were two medical certificates. It is plain to me that the Plaintiff lied. 43.Further, the Plaintiff also maintained in evidence that in relation to the consultation at Caritas Medical Centre, it was a free consultation and therefore there was no receipt. This again is totally wrong, as counsel on behalf of both parties respectively agreed during final submission, no doubt after confirming with Caritas Medical Centre, that in fact a consultation at the outpatient department cost $37 which accorded exactly with the evidence of the Defendant's husband. Counsel for the Plaintiff then attempted to salvage the Plaintiff's evidence by suggesting (presumably on instructions) that the Plaintiff had attended the Accident and Emergency Department of Caritas Medical Centre which was free of charge. This was a totally hopeless attempt because the Follow-up Card issued to the Plaintiff at the consultation by Caritas was a "General Practice Clinic" card of the Out-Patient Department (O.P.D.) of Caritas. Patently the Plaintiff lied. 44.Counsel for the Plaintiff sought to argue that the receipts were an unimportant matter because the Plaintiff's claim in relation to the outstanding medical fees allegedly not reimbursed was only in the sum of $100. This may be so, but the lies told in relation to the three receipts by the Plaintiff in the witness box, and more importantly the very unhesitant way and manner in which they were told by the Plaintiff on oath, destroyed, in my judgment, very materially, the credibility of the Plaintiff as a witness in the box as a whole. 45.Of course, a witness may have many reasons to lie. And lying in relation to one aspect of one's case may not necessarily mean that one is lying in relation to other aspects of one's case. But in the context of the present case, it is quite impossible for me to say, even on a balance of probabilities, why the Plaintiff gave the untruthful evidence that she gave, or to be able to tell with any degree of conviction (bearing of course in mind the civil standard of proof) whether the Plaintiff was telling the truth in relation to a particular material aspect of her case. At the end of the day, it is her credibility as a witness as well as her case in general which must suffer as a result. And of course the ever-shifting evidence the Plaintiff gave in relation to the hours she went to work at the mother's place and who opened the door for her went to the heart of the two-household allegation, and cannot be brushed aside as an unimportant matter by itself. 46.The upshot of all these is that the credibility of the Plaintiff was so damaged by the untruthful evidence she gave that I am not confident at all that she has given truthful and reliable evidence that, on a balance of probabilities, she worked in two households as claimed, she was dismissed summarily without notice or payment in lieu thereof, she signed the joint letter dated 2nd May 1998 to the Immigration Department or the receipt under the circumstances alleged by her, she was not paid the amount of money stated on the receipt she signed, she had carried out work at Mr. Chan's premises for three days pursuant to the instructions of the Defendant, or she was sexually harassed by the Defendant's husband as claimed or at all. The Plaintiff bears the burden of proof, albeit on a balance of probabilities. The evidence of the Plaintiff is plainly very important to establishing her case. But given the damaged credibility of the Plaintiff as a witness generally, I cannot place any real trust or reliance on her evidence in relation to the issues at all. Whilst I do not find the evidence given by the Defendant and her witnesses to be entirely satisfactory or without doubt or discrepancy, I am unable to say that, on a balance of probabilities, what the Plaintiff asserted in the witness box relating to the issues represented the truth. I do not find the evidence coming from the Defendant's side to be so poor that notwithstanding the greatly damaged credibility of the Plaintiff as a witness, I should or can overlook it and conclude that on balance what the Plaintiff said represented the truth. In fact, of the four witnesses who have given evidence in this trial, I find the Defendant's sister to be the most straightforward and impressive witness by comparison, although I bear in mind that her evidence and the time she spent in the box were the shortest. Insofar as her evidence conflicted with that of the Plaintiff's (which it did on several important aspects), I prefer her evidence to that of the Plaintiff's. And as her evidence dealt directly with the two-household allegation and also lent indirect support to the Defendant's case on termination, my acceptance of her evidence is obviously detrimental to the Plaintiff's case. The Plaintiff, as I said, bears the burden of proof, and she has failed to satisfy me that her story is the true one. 47.In reaching my conclusion, I have borne in mind that the witness statements of the Defendant and her husband and the three affirmations made by the mother and the sisters all suggested that the Plaintiff visited the premises of the mother on quite many occasions. But I notice that the three affirmations were short and essentially of the same contents, and they were filed for a quite different purpose, i.e. in support of a strike-out application. And the word "numerous" used in the affirmations might mean different things to different people, depending on the context and depending on the subjective understanding and usage of the people concerned, particularly when the word was translated into Cantonese. As for the Defendant's witness statement, it is clear from the evidence that she visited her mother's premises for meal during work hours by herself very frequently, and on those occasions she of course did not take with her the Plaintiff and her daughter, so it would not be a fair reading of her witness statement to simply marry paragraphs 15 and 17 together and say that she took the Plaintiff and her daughter to visit her mother's premises (paragraph 17) "very frequently, almost twice a week." (paragraph 15). As regards the witness statement of the husband, he said he "paid frequent visits" to the premises of his mother-in-law, and the Plaintiff went with him and his wife to take care of the small child. Again the meaning of this would depend on the husband's understanding of the word "frequent" in the present context, particularly after the word was translated into Cantonese. And according to the evidence of the sister, the Plaintiff does not seem to have visited the premises of his mother-in-law that very often. 48.I have not forgotten the incident in which the Plaintiff was intercepted by the police on the street. That this incident was in fact mentioned to the Defendant was accepted by the Defendant's husband in cross-examination. That of course affected the credibility of the Defendant as a witness. This admitted incident to some extent also corroborated the story told by the Plaintiff. Under the husband's account, the Plaintiff told the police that she had been working in two households. But this could be consistent with the Defendant's case that when the Plaintiff visited the mother's premises she carried out baby-sitting duty there. It all depended on what the Plaintiff had in mind when she told the police that she had been working in two households. Moreover, one should also bear in mind the possibility that the Plaintiff may have exaggerated her work in the mother's premises so as to dispel any possible suspicion on the part of the police that she was engaged in any undesirable "part-time" activity, given her previous experience of being questioned on the street by the police because of the way she dressed as per the Defendant's letters of 3rd May. Likewise the advice given by the policeman to the Plaintiff that she must not work in two households would not necessarily mean that the Plaintiff had told the policeman that she had been doing general domestic work at the premises of the mother, still less that she had been doing so on a daily basis. Moreover it would have depended on that particular policeman's understanding of what generally a foreign domestic maid could or could not do at the premises of someone other than the employer's, particularly in relation to whether she could take care of her employer's daughter at someone else's premises and if yes up to what frequency only. The husband's rather strange reason given for not believing the incident which the Plaintiff had told the Defendant who then related it to him does not inspire confidence and rather tends to suggest that he agreed that the Plaintiff had been carrying out work at the premises of the mother, but again there is an uncertainty here relating to exactly what work or duty the Plaintiff had been carrying out at the mother's premises. I have taken this whole incident and the husband's response into account and given them their due weight in evaluating all available evidence before me in general and the evidence of the Defendant and her husband in particular, before reaching my conclusions on the facts of this case. 49.As for the telephone conversation which the Plaintiff subsequently had with the husband of the Defendant, I think it is clear from the evidence and particularly the tape recording itself that the husband's command of English was very average if not poor. In those circumstances, particularly when he was suddenly confronted with the situation in which he had to speak over the telephone in English to the Plaintiff with whom he and his wife were having a dispute developing, one must approach what he said or did not say during the telephone conversation, particularly in reply to the questions put to him by the Plaintiff, with particular care and suitable allowance. I bear in mind in particular that the husband might find it difficult to express himself clearly and adequately. He might well fail to answer a question in the most logical or the expected way, not because his story was untrue, but rather because he did not know how to express it in English and therefore chose to answer it in a way that was not most logical or even correct but a way that his limited ability of English could handle; and he might when seeking to answer a question fail to adequately express himself. On balance, I accept the evidence of the Defendant's husband that he actually intended to say during the telephone conversation that whenever the Plaintiff was at the place of his mother-in-law, she was simply carrying out the same duty of looking after his daughter, bearing also in mind the fact that the answer was given in reply to an accusation by the Plaintiff (who obviously made the telephone call as part of a premeditated plan to collect favourable evidence from the Defendant and her husband) that he was a liar. 50.His failure to give the Plaintiff's asking to leave as the immediate reason for the early termination of the contract of employment at the beginning of the telephone conversation simply reflected, in my judgment, his inadequacy in answering questions in English and perhaps generally. Moreover, I bear in mind that although it was the Plaintiff who asked to leave for personal and health reasons, the reason why the Defendant agreed to it was quite obviously different. The Defendant was obviously considering that the Plaintiff had misbehaved herself during the preceding several days when she claimed she was sick (which the Defendant doubted) and failed to sleep at home on the 27th. To the Defendant, rightly or wrongly, the Plaintiff had broken the contract and that was why, in my judgment on balance, the Defendant accepted the Plaintiff's request for early termination of the employment contract. So that was the reason the Defendant's husband gave to the Plaintiff when he was asked by the Plaintiff the real reason for the early termination of the contract at the beginning of the telephone conversation. 51.As for the letter to the Immigration Department dated 2nd May 1998 and the receipt both signed at the employment agency's office, they were indeed documentary evidence against the Plaintiff, which the Plaintiff would have to explain away. In particular, I find the story of an alleged shortfall in the money given to her as compared with the amount of money stated in the receipt to be rather strange. There was no obvious explanation for the shortfall. The alleged breakdown of the shortfall and the amount actually paid stated by the Plaintiff in her witness statement were not mentioned by the Plaintiff in evidence, and did not quite tally with the items and amounts set out in the receipt or that claimed in the pleadings. Moreover, the alleged short-payment, which would have been a quite outrageous thing to have happened, was not mentioned by the Plaintiff to the Defendant's husband during the telephone conversation at all. Whilst one must approach the husband's answers given during the telephone conversation with some care in all fairness to him as explained by me above, the same approach would not be appropriate to the Plaintiff who, as I said, obviously made the tape-recorded telephone call as part of her premeditated plan to collect favourable evidence from the Defendant and her husband. Her failure to even mention this alleged short-payment as part of her complaint against the couple in the telephone conversation was to me an important indicator of whether her allegation was true or false. 52.In fact the same may be said in relation to the alleged sexual harassment by the Defendant's husband which was never mentioned by the Plaintiff to him during the tape-recorded telephone conversation. Given the damaged credibility of the Plaintiff as a witness, in so far as the issue is a relevant one (see below), I am not satisfied that the Plaintiff has proven her allegation in this regard on a balance of probabilities. I should add that I find the alleged "spoon-feeding" incident to be totally amazing and quite unbelievable, having closely observed the personalities and characters of the Defendant and her husband insofar as they were discernable at the trial. I find it most unlikely that the Defendant's husband would have been so daring or explicit in his show of interest towards the Plaintiff (if any) by spoon-feeding the Plaintiff over the dining table in the very presence of his wife. This alleged incident was not mentioned anywhere in the documents before me, and in any event I do not believe it. 53.It appears to me to be quite likely that the 2nd May letter to the Immigration Department composed by Miss Eva Chen for the parties' signature was a sort of standard form letter used by the employment agency for early termination of an employment contract by mutual consent of the employer and employee. It was written with an intention to enhance the chance of the employee of getting alternative employment with the permission of the Immigration Department following the early termination of her current contract. There was really not much point in arguing whether the reason stated in the letter represented the true, main or only reason for the early termination. What is of more importance is that the letter, signed by both the employer and employee, told the Immigration Department that the contract was terminated with mutual consent. As I said, it is for the Plaintiff to prove that despite what the letter said, the contract was not terminated by mutual consent. As for the two letters dated 3rd May written by the Defendant to the Immigration Department, I have not placed excessive weight on them in deciding the issues in question because on the one hand they identified a motive for the Defendant to summarily dismiss the Plaintiff, yet on the other hand they were contemporaneous documents evidencing that it was the Plaintiff who "asked for termination of the contract". Of course, I took them all into account in my deliberation. 54.As I said I have taken the whole of the evidence, whether documentary, oral or circumstantial, into account, in concluding that the Plaintiff has not proven her case on a balance of probabilities before me. I mentioned the above points and matters specifically as they were the more important points that had attracted much argument during final submission. 55.In conclusion, I find that the Plaintiff has not proven her case on any of the relevant aspects on a balance of probabilities. I cannot rule out the possibility that some of her allegations may have happened as alleged. But that is not the test nor is the mere existence of such a possibility sufficient for the Plaintiff's purpose. She has to prove that more probable than not, her allegations have happened. This, in my judgment, she has failed to do. Insofar as a positive finding is required in relation to the termination issue, and quite regardless of the burden of proof, I find on the evidence before me, and on a balance of probabilities, that the contract was terminated by mutual consent, the Plaintiff having first asked to leave of her own volition which was accepted by the Defendant, and that she has been fully paid all monies due to her upon such termination of contract. 56.Whilst I share the general sympathy towards foreign domestic helpers as a minority working class in our society generally with less than equal bargaining power vis-à-vis their employers and employment agencies and vulnerable to exploitation, abuses and unfair treatment by an unscrupulous few, each case must be considered and decided in accordance with its own facts. Whilst the general condition and difficulties faced by foreign domestic helpers in our society may be taken into account in a broad sense as part of the overall social background, general sympathy, or for that matter, prejudice or bias, for or against any party or class of parties, is quite irrelevant, and certainly cannot replace solid evidence and proof up to the requisite standard that are required in establishing all relevant allegations in any given case. Quantum and the applicable principles 57.As I have come to the conclusion that the Plaintiff fails on the facts, this is quite sufficient to dispose of the case. But since full argument was heard in relation to quantum, raising interesting if not important principles of law, I shall briefly mention my views in relation to quantum for the sake of completeness. The Plaintiff's claim that the Defendant summarily terminated her contract raised no difficult question relating to quantum. Her story, if accepted (which is not), would mean that the Defendant had to pay her one month's wages in lieu of notice, i.e.$3,860. The Plaintiff's claim in relation to the miscellaneous sums of money which she said were outstanding would have presented no difficulty, and I would have allowed a total of $6,210, had I been with the Plaintiff on the facts, deductions from the Plaintiff's claim having been made here and there due to the lack of or insufficient proof in relation to some of the items claimed. 58.The more difficult question in terms of quantum would be in relation to her claim that because of her having been forced to work in two households and the alleged sexual harassment by the husband for which the Defendant had to be a kind of vicarious liable, the Defendant had breached the implied duty of trust and confidence as per the House of Lords decision in Malik v Bank of Credit and Commercial International SA (in liquidation) [1998] AC 20 and the local Court of Appeal decision in Bachicha v Poon Shiu Man Henry [2000] 3 HKLRD 833 which followed and applied the House of Lords decision. It is a general implied term in every contract of employment that the employer shall not without reasonable and proper cause, conduct himself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The breach complained of must, however, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances. 59.According to the Court of Appeal (at p.844E/F-F/G and p.847H-J):
60.The Plaintiff by counsel argued that the breach of the implied duty of trust and confidence entitled the Plaintiff to claim damages for loss of a chance to work in Hong Kong pending the conclusion of the present litigation as per the policy of the Immigration Department that no application for approval of any new employment pending the conclusion of the present litigation would be entertained. 61.In my judgment, as pointed out by the Court of Appeal in Bachicha (at p.848F-G), following the wise words of Lord Hoffmann in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, 210,
62.In Bachicha, the domestic maid was subjected to an oppressive and exploitative work regime as a consequence of which she was forced to leave her employment. Her employer then wrongfully accused her of having walked out on her job. The court held that in the circumstances, she was constructively dismissed, the employer had breached the implied duty of trust and confidence, and the constructive dismissal and the wrongful allegations made against the maid deprived her of a significant and not merely speculative chance of securing alternative employment with the permission of the Immigration Department. It must be noted that in that case the employer wrongfully accused the maid of having walked out on her job, which therefore materially affected her chance of getting alternative employment with the blessing of the Immigration Department, and hence damages for the loss of a chance to get employment pending the conclusion of her litigation with her former employer were rewarded. For some unknown reason, in that case, the maid did not claim or was not awarded with damages for the actual labour she had expended in working in three premises other than the residence of her employer. 63.In our case, the situation is materially different even if one were to accept the story of the Plaintiff. For the allegation of working in two households, the immediate loss suffered by the Plaintiff must have been her labour expended in working in the premises of the mother for which she should be entitled to compensation. This would not involve her setting up an illegal contract of employment at the mother's premises or an illegal mode of performing her contract of employment with the Defendant. Rather this would be on the basis of a breach of the implied term of trust and confidence. An alternative basis would be quantum meruit: See De Nicholas v Lee Fung Lan Labour Tribunal Appeal No.15 of 1997 Deputy Judge Beeson (as she then was) (9/10/97) at p.12F/G. Yet another possible alternative basis would be the tort of procuring a breach of obligation or the tort of intimidation (depending on the facts): See generally Clerk & Lindsell on Torts (18th ed.) paras. 24-15 to 24-87. In this case, however, damages on such basis are not claimed in the pleadings, and counsel for the Plaintiff specifically disavowed any intention to make such a claim or to apply for leave to make any amendment to the pleadings to include such a claim during final submission. Rather a claim is made for the Plaintiff's alleged loss of a chance to earn wages from alternative employment pending the conclusion of the present litigation, which was subsequently shortened to a period of one year which both sides accepted during final submission as a reasonable period for the Plaintiff's prosecution of her claim. 64.However, as I see it, the difficulty of such an approach by the Plaintiff in the present case lies with this. Unlike Bachicha, the joint letter dated 2nd May 1998 to the Immigration Department stated that the contract came to an end by mutual consent and the Defendant had no objection to the Plaintiff's seeking new employment in Hong Kong. There was no allegation on the part of the Defendant made to the Immigration Department that the Plaintiff walked out on her job. On her own case, the Plaintiff said that despite she was forced to work in two households, she wanted to stay and work for the Defendant. She did not want to leave. The breach of the implied duty of trust and confidence due to her working in two households did not cause her to lose her job, nor did it cause her any or any additional difficulty in finding alternative employment after the early termination of her employment by the Defendant (as per the Plaintiff's case). Coupled with the lack of any wrongful allegation against her that she had walked out on her job, a crucial causal link between the alleged breach of the implied term of duty of trust and confidence and her claimed loss of a chance to earn wages from alternative employment with the blessing of the Immigration Department is missing in the present case. I say this because counsel for the Plaintiff specifically conceded during final submission that he was not relying on the letters dated 3rd May in arguing that the Defendant had made wrongful allegations against his client thereby affecting her chance of getting alternative employment with the permission of the Labor Department. This was because the letters were never disclosed and did not surface until during the middle of the cross-examination of the Defendant at trial. They were never referred to as part of the Plaintiff's case in respect of the alleged breach of the implied term of trust and confidence or the loss resulting therefrom in the pleadings. Counsel for the Plaintiff did not feel it right to rely on the letters during final submission or apply for leave to amend pleadings. 65.That there is such a distinction of whether there was a wrongful allegation made to the Immigration Department against the maid whose chance of getting alternative employment was thereby affected was recognised by the Court of Appeal in Bachicha at p.851G to 851B:
66.In my judgment, in the absence of any wrongful allegation by the employer against the maid made to the Immigration Department, it would not be easy for a maid to say that the employer's breach of implied obligation of trust and confidence (by, for instance, forcing her to work in two households) had caused her loss in terms of her chance of finding alternative employment with the permission of the Immigration Department. In theory, her working in two households, though against her own will, might have involved her in breaching the relevant immigration legislation as well as her conditions of stay, and her chances of obtaining alternative employment with the permission of the Immigration Department might thereby have been affected. However, such a theoretical loss would not suffice because one would also have to take into account that under normal circumstances the Immigration Department would not be aware of the breach (as ex hypothesi the employer was not making any wrongful allegation against her to the Immigration Department), and normally no ordinary prospective employer (even if aware of it) would care about this sort of thing happening as it did in relation to a former employer only, in the absence of evidence to the contrary. Moreover, by the nature of things, such breach would be denied by the former employer. If there was no claim made by the maid against her former employer, that would effectively be the end of the matter. If such a claim was made and denied, and if the Immigration Department was somehow made aware of the litigation between the maid and her employer relating to the breach of implied obligation of trust and confidence, this should not have affected the maid's chance of getting new employment with the blessing of the Immigration Department which must be presumed to be acting rationally in deciding whether to permit a maid to embark on a new employment ( if she was right in her allegation, she was forced to do work in two households against her wish, and her breach of the immigration legislation and conditions of stay would only have been technical; and if she was wrong and the employer right, it would mean that there was no breach at all on her part of the immigration legislation and conditions of stay. In either case, her chance of getting new employment with the blessing of the Immigration Department should not have been affected. 67.I do not think the Court of Appeal in Bachicha went so far as to say that every time a maid was embroiled in litigation with her employer for whatever reason which was eventually resolved in favour of the maid, the maid would be entitled to compensation for loss of a chance to get alternative employment with the permission of the Immigration Department pending the outcome of the litigation, in the absence of specific evidence from the Immigration Department relating to its policy regarding the particular type of litigation in question. Otherwise, a maid who was claiming against her former employer for, say, outstanding wages or miscellaneous items of money, which claim was eventually resolved against the employer, could also claim against her employer damages for loss of a chance to earn wages from alternative employment pending the outcome of her claim. This does not sound right to me, at least as a matter of common sense, and in the absence of very specific evidence relating to the Immigration Department's policy towards such sort of dispute. Further, questions like remoteness and foreseeability would likely be relevant in those circumstances. 68.In the present case, given that the Plaintiff only claims damages for loss of a chance to earn income from alternative employment with the permission of the Immigration Department as a result of the Defendant's alleged breach of the implied obligation of trust and confidence, but not damages for the actual labour expended in working in the second household, she would only have been entitled to nominal damages for the alleged breach even if I were to find in her favour on the facts. 69.For the sake of completeness, I should also mention that the alleged sexual harassment never formed part of the pleaded case of a breach of the implied term of trust and confidence, and evidence was only adduced at trial as being relevant to credibility only. Again during final submission counsel for the Plaintiff confirmed that there was no intention to claim damages for the alleged sexual harassment as such, or to rely on the same as part of the Plaintiff's case for breach of the implied obligation of trust and confidence or the alleged loss of earnings arising therefrom. No application for leave to amend the pleadings was made. 70.In the circumstances, in my view, even assuming that the Plaintiff was right in relation to the facts, her claim for substantial damages based on an alleged loss of a substantive chance to earn wages from alternative employment with the permission of the Immigration Department, based on her pleaded case and evidence adduced at trial, must fail. As no claim is made for the actual labour expended in working at the mother's place, no damages would be payable for the same. Likewise, no damages would be payable for the alleged sexual harassment. 71.As for the alleged working in the household of Mr. Chan for three days, even counsel for the Plaintiff accepted that on his client's case and evidence, this was done for training purpose, and in the present context, either it did not amount to any breach of the contract of employment at all (because there was nothing wrong to send a newly arrived domestic maid for training for a few days) or it at most caused a relatively minor breach of the contract of employment resulting in nothing more than nominal damages by itself which of course is not the object of the Plaintiff's present litigation. 72.Given the conclusions I have reached on the facts, I do not think it useful or indeed desirable for me to go any further into the question of quantum and the relevant principles of law involved than what I have already done. Conclusion 73.In conclusion, I dismiss the Plaintiff's claim. 74.I also make an order nisi that the Plaintiff pay the Defendant the costs of these consolidated actions, including all reserved costs, to be taxed if not agreed; that there be a certificate for counsel for the trial; and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations. Unless either party applies within 14 days from the date this judgment is handed down to vary this order nisi as to costs, the same shall become an absolute order upon the expiry of the 14-day period.
Representation: Mr. Stephen Yam, instructed by Messrs. S.Y. Chu & Co., for the Plaintiff. Mr. Hylas Chung, instructed by Messrs. Gary Lau & Partners, for the Defendant. |
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