Re Ching Yat Washing

HCB000211/1983

IN BANKRUPTCY

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Coram: The Honourable Mr. Justice Jones in Court.

Hearing date: 1st December 1983

Date of delivery of judgment: 1st December 1983

Mr. Lavington (Director of Legal Aid) for Petitioner.

Miss Chow for Official Receiver.

Mr. Chan Yuk Fang and Mr. Shu Po Dong, debtors, in person.

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JUDGMENT

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1. A bankruptcy petition was filed against Ching Yat Washing and Dyeing Factory on the 3rd October 1983 on behalf of an employee Leung Sik Lun in respect of arrears of wages, wages in lieu of notice, annual leave and pro-rata double pay. The total amount claimed is $10,810.00.

2. Mr. Leung gave evidence that he was employed by a verbal agreement in November 1982 as a launderer on a daily basis at a wage of $70.00 plus an allowance of $10.00. He said that Mr. Shu who was the partner who interviewed him agreed to pay double pay at Chinese flew Year. Mr. Shu denied the agreement for double pay, and said that the wages were $60.00 per day with $10,00 allowance and another $10.00 for night work. Mr. Leung claims that in June 1983 he was transferred to the permanent staff, on a monthly basis, but this was denied by Mr. Chan the other partner.

3. On the 12th August 1983 an account was received at the factory from the China Light & Power Company Ltd. claiming $5,171.50 for electricity charges. The account included a disconnection warning if payment was not made within 7 days. Whilst Mr. Leung said that nothing was discussed about the future of the firm on that day Mr. Chan testified that he told him and some other workers that work at the factory could not continue after the 1st September 1983. It is clear that the electricity supply was disconnected sometime in August when business operations ceased although the exact date is not known.

4. On the 19th September 1983 Mr. Chan prepared a document which was signed by Mr. Leung in which the debtor admits that wages for August and food for June, July and August have not been paid. The document also states that Mr. Leung had borrowed $1,500.00. I am satisfied that this means that the sum of $1,500.00 was paid on account of the wages for August. Mr. Leung has claimed $450.00 per month for the months of June, July and August and $300.00 for September as his lunch allowance. Mr. Chan disputed the amounts but conceded an inclusive sum of $160,00 for June and July and $200.00 for August, but did not agree that any sum was due for September. Mr. Chan also agreed that $900.00 was due in respect of wages for August.

5. Where the evidence conflicts I accent that given by the debtors. I found Mr. Leung's evidence unconvincing and was tailored to support his claims. I do not accept that he changed from a daily to a monthly basis in June. He was still employed on a daily basis when his employment ceased at the end of August 1983. I also reject his evidence that he continued working at the factory until the 19th September 1983. Quite clearly there was no work to be done in his capacity as a launderer, and the other reasons he gave for his continued employment were not credible. The figures claimed for lunch were obviously inflated. Mr. Shu was a credible witness and I accept his testimony that there was no agreement to pay double pay for Chinese New Year.

6. I find that verbal notice of termination was given on the 12th August 1983 of which Mr. Leung was fully aware. He ceased work at the end of August. The notice complied with the provisions of S. 6 of the Employment Ordinance Cap. 57 which requires 7 days notice. The sums due for the balance of wages unpaid for August and the allowance claimed for lunch do not amount to more than the statutory sum of $5,000.00 provided for by S. 6(1)(a) of the Bankruptcy Ordinance. Accordingly the application for a receiving order must be dismissed. Costs of the petitioner to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. Lavington (Director of Legal Aid) for Petitioner.

Miss Chow for Official Receiver.

Mr. Chan Yuk Fang and Mr. Shu Po Dong, debtors, in person.