Yung Yuen Ching v. Hiu Kwong Nursing Co. Ltd.

HCLA000156/1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Labour Tribunal Appeal No.156 of 1995

(On Appeal from Claim No.E1878 of 1995)

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Coram : Hon Jerome Chan, J. in Court

Date of hearing : 30 April 1996

Date of delivery of judgment : 30 April 1996

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J U D G M E N T

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1. The learned presiding officer found against the Appellant on evidence and found the Respondent's evidence to be more credible.

2. The learned presiding officer erred in saying that the evidence relating to what was said by Madam Wong Pui Ha at the Labour Department's Labour Relations Office was hearsay; in that Madam Wong was the agent and servant of the Defendant, which is a company. He was wrong in that respect, it was not hearsay. The reason is that the Defendant is a limited company and, therefore, what was said by the agent and servant of a limited company cannot be hearsay. It should be treated as if the Defendant was talking personally to the Appellant at that time.

3. Therefore, the Appellant was entitled to give evidence in court as to what was said by the Respondent. But that mistake cannot affect the weight of the evidence against the Appellant. That mistake only relates to the allegation of the Appellant that she was only dismissed on 19 October 1994 during that meeting.

4. The main issue insofar as constructive dismissal was concerned, was, of course, whether the Respondent was acting lawfully and in accordance with the contract of employment when deducting the seven days' annual leave from the salary of the Appellant for the month of September 1994.

5. The learned presiding officer found against the Appellant on the alleged constructive dismissal. On the evidence before the learned presiding officer, he was fully entitled so to do. The learned presiding officer also made another careless error in referring to seven days' annual leave pay and 23 days' salary as the annual bonus entitlement. The annual bonus entitlement should, in accordance with the contract, be seven days' annual leave and 23 days' salary, not seven days' annual leave pay.

6. The learned presiding officer accepted the evidence of the defence case that the seven days' annual leave pay had been given to the Appellant already in August 1994, and that the Appellant was only allowed to take leave from 11 to 15 September 1994, but the Appellant only resumed work on 29 September 1994.

7. On that basis, he found against the Appellant, and in favour of the Respondent. I cannot see any ground for disturbing that conclusion.

8. The learned presiding officer, however, did admit making an error in failing to set off the sum of $1,166 from the award of $2,177.40. The correct amount, the learned presiding officer admitted, should be $1,011.40.

9. Now, Madam Lie, do you understand why that mistake arose?

Miss Lie : [Speaks in Chinese].

Court : Right. Do you agree that was a mistake?

Miss Lie : [Speaks in Chinese].

Court : All right.

10. So, the appeal is allowed to the extent of reducing the amount of the award from $2,177.40 to $1,011.40.

11. So, the Respondent is awarded $1,011.40.

Court : Now, are you asking for costs of the appeal, madam?

Miss Lie : [Speaks in Chinese].

Court : Now, usually that would be very little because you have not engaged any legal representative. Usually, it only involves travelling expenses.

12. So, there be no order as to costs of the appeal, including the application for leave.

(Jerome Chan)

Judge of the High Court

Representation:

Ms Yung Yuen Ching, Appellant, in person (absent)

Respondent in person represented by Ms Lie Tjen Kioe