Cantojos Ricardo Hipol v. Jaffar Hussain

HCLA000137/1996

LTA 137/96

_______________

H E A D N O T E

_______________

Appeal by an employee to the High Court against the dismissal by the Labour Tribunal of his claim for wages in lieu of notice etc.

Contract was for employment as a domestic worker. But the employee did not work as a domestic worker at all. Instead he worked as a goods vehicle driver in the employer's business.

The Courts may assist a plaintiff claiming under a contract even though the performance of that contract is tainted with illegality. For even in such a case there may be genuine wrongs to the plaintiff which the court can right without promoting or countenancing illegality which it is bound to condemn. An example would be a case in which the loss to the plaintiff if the court were to refuse its assistance would be wholly disproportionate to his share of the blame for the illegality.

The Presiding Officer compared the employee's blameworthiness with that of the employer. Doing that, he found as a fact that the conduct of each was equally reprehensible since right from the start neither had any intention that the terms of the Domestic Helper Contract which they had entered into should be observed or that there should be compliance with the immigration laws of Hong Kong.

That view of the facts was open to the Presiding Officer.

Appeal dismissed.

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 137 OF 1996

CLAIM NO. LT2163/96

______________

______________

Coram: The Hon. Mrs. Justice V. Bokhary in Court

Date of hearing: 27 March 1997

Date of delivery of judgment: 4 April 1997

_______________

J U D G M E N T

_______________

1. This is an appeal by a former employee against the dismissal by the Labour Tribunal on the 10th September 1996 of the claim which he brought against his former employer in respect of: wages in lieu of notice; arrears of wages; annual leave pay; air passage from Hong Kong to Manila for the purpose of repatriating him to the Philippines; inland passage from Manila to his place of origin in the Philippines; and reimbursement of traffic penalty paid by him.

2. The Presiding Officer dismissed the claim because: (i) the contract of employment was undoubtedly illegal as performed; and (ii) he found as a fact that the employee's conduct in relation to such illegality was as reprehensible as that of the employer.

3. As to why the contract of employment was illegal as performed, the facts are these. That contract was for the employee to work for the employer as a domestic worker. His working for the employer in that capacity was a condition of the permission to stay in Hong Kong which the employee received from the immigration authorities here. But, in breach of that condition of stay, the employee worked for the employer not as a domestic worker at all but instead as a goods vehicle driver in the employer's business of delivering goods which had been flown in from the Phillipines and collecting goods to be flown out to the Philippines. So the contract was illegal as performed.

4. The law is clear. The courts may assist a plaintiff claiming under a contract even though the performance of that contract is tainted with illegality. For even in such a case there may be genuine wrongs to the plaintiff which the court can right without promoting or countenancing illegality which it is bound to condemn. An example would be a case in which the loss to the plaintiff if the court were to refuse its assistance would be wholly disproportionate to his share of the blame for the illegality.

5. That is the thinking behind the decision of the Court of Appeal in England cited by Leong J. in Vilma Joy B. Ciano v. Cheuk Kam-wan, Labour Tribunal No. 78 of 1995, 31st October.1995, cited in turn by the Presiding Officer in the present case.

6. The case before Leong J. was one in which a domestic helper, at the direction of the employer with whom she had entered into a contract of employment, went to work for another person. On the facts of that case, Leong J. observed (at p.8) that the employee's will had been "overborne" and that her conduct was so far less reprehensible than that of the employer that it would not be right to deprive her of a remedy.

7. So the Presiding Officer was following authority binding upon him when he compared the employee's blameworthiness with that of the employer. Doing that, he found as a fact that the conduct of each was equally reprehensible since right from the start neither had any intention that the terms of the Domestic Helper Contract which they had entered into should be observed or that there should be compliance with the immigration laws of Hong Kong.

8. It was open to the Presiding Officer to take that view of the facts. And there can of course be no appeal on facts from the Labour Tribunal.

9. On the facts which the Presiding Officer found and cannot be disturbed, his dismissal of the claim was correct in law. For on such facts, lending assistance to the employee would have been countenancing illegality which he was bound to condemn.

10. Accordingly, I dismiss this appeal.

Representation:

Cantojos Ricardo Hipol, Appellant in person.

Jaffar Hussain, Respondent, absent.