To Fo Choi v. Chu Chi Tao

HCA001041/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1041 OF 1973

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 28 September 1973

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DECISION

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1. This is an assessment of damages pursuant to an interlocutory judgment signed on the 18th day of July 1973. The judgment was given in default of appearance, the defendant to pay the plaintiff damages to be assessed and costs to be taxed.

2. The plaintiff was a tractor operator and mechanic and was employed on the 25th September 1969 by a Mr. Chu Chi Tao, the sole proprietor of the Far East Timber Investment Company. The plaintiff has told me that the negotiations for his employment conducted between himself and Mr. Chu. He entered into a contract (Exhibit A) which was approved by the Commissioner of Labour and was dated the 25th September 1969, and the plaintiff was to be employed for a period of 24 months, commencing 'from the day on which the worker embarks in Hong Kong', in Kalimantan, Indonesia.

3. The plaintiff was to work as tractor operator and mechanic and he left Hong Kong on the 4th February 1970 arriving in Indonesia on the 4th March 1970. It would therefore appear that the contract was to run for 24 months from the 4th February 1970. On the 9th December 1971 the plaintiff entered into a further contract in precisely the same terms as the first except that this would be for a period of 12 months. The 1st clause of this contract has in biro the words 'up to 25.9.72' it also has a chop reading "the previous contract expires" but whereas all other clauses where alterations had been made were initialled by the plaintiff and a representative of the employer, this clause was not so initialled.

4. In both contracts the rate of wages were said to be not less than HK$1,200 of which $500 was payable in Hong Kong and $700 payable in Indonesia both monthly. It appears quite clear however that the actual wage of the plaintiff as from September 1970 was $1,400 per month. Various accounts given to the plaintiff by employer's agent and produced show this. On the 22nd September 1972 the plaintiff left the employment of the defendant and returned to Hong Kong. This was during the currency of the second contract. He states in evidence that he left in September 1972 because he was told that he was no longer required. He was not particularly upset at this as he had been away from Hong Kong for some considerable time and wished to return. He stated that he hoped to get some payment because of the early notice.

5. The contract provides for one month's notice or one month's wages in lieu. The plaintiff now reduces head 4 in the Particulars of Special Damage to one month from three months therein claimed.

6. The plaintiff produced the series of accounts to which I have referred which he agrees are correct (marked as Exhibits C - R - certain of these documents had translations from Chinese which are marked with the appropriate exhibit number). On the basis of these the Plaintiff now says that he has in fact three heads of claim being wages at $7,698.26, overtime for holidays and Sundays at $17,067.68 and one month's compensation in lieu of notice $1,400.00 giving a total in all of $26,164.64. This is in fact less than the total in the statement of claim. I have no doubt that he is entitled to $1,400 in lieu of notice and having examined the figures I am satisfied that the balance due to him in respect of wages is $7,698.26. As to overtime: Plaintiff claimed to have worked on average, allowing four Sundays per month, 114 Sundays during his employment and for 14 paid holidays in both of these cases being required to work by the company. I raised the issue had he been in fact been capable of working on every single Sunday during the period in the light of possible wet weather. It transpired that this was so as there was a wet season and, after consultation with his client Mr. Fairbairn, who appeared for the plaintiff, suggested that I should adopt a formula as follows: the wet season was for a period of three months, March, April and May and two months changeover which will start at the end of the wet season, the dry season runs for five months with a further two month changeover peried. He suggested that I should not calculate working on any Sundays at all during the wet season but work on all Sundays during the dry season and possibly half working during the changeover seasons. The plaintiff confirmed this in evidence. I accept it. However as to the changeover seasons I think half to be a little high and I intend to take 1/3 of that period as being workable. I do not intend, there being no evidence, to disturb the 14 days holiday.

7. It is shown on the documents produced that the overtime rate of the plaintiff was at $10 per hour which is time and a half.

8. Clause 6(e) states that "when the Worker is required to work on a normal rest day or on any paid holiday he shall be entitled to be paid two times the normal rate." This would be $13.33 per hour. I treat the Sundays worked as "normal rest days".

9. In the period 4th March 1970 to 31st December 1970 there was a total of 43 Sundays. Of these (a) 13 occurred in March, April, May and are treated as non working; (b) 8 occurred in June/July and of (b) two thirds were non working. The total working Sundays were therefore 25 rounded out.

10. In the period 1st January 1971 to 31st December 1971 the total Sundays were 52 under (a): 13(b) 17: less 2/3 rd of (b) gives a total of 28 working Sundays.

11. In the period 1st January 1972 to 22nd September 1972 the Sundays were 38: under (a) 13: under (b) 17: less two thirds of (b) 12 gives a total of 14 working Sundays. This gives a total number of Sundays worked as 67.

12. The witness informed me that he usually worked a 10 hour day; accepting this he would earn $133.33 per day and this gives a Sunday total of $8,921.10. The holiday working at 14 days on the same basis would give $1,769.62.

13. The damages will therefore be assessed at $19,788.98. There will be interest at the rate of 8% from the date of issue of the writ until payment. The plaintiff will have his costs of this assessment. The plaintiff's costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations, Cap. 91.

14. Dated this the 28th day of September, 1973.

Representation: