Benny Constantino (A Male) v. The Executive Club (HK) Ltd

HCA001444/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1444 OF 1968

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Coram: Briggs, J. in Court

Date of Judgment: 4 November 1969

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JUDGMENT

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1. The plaintiff is a Phillippino and a professional musician. The defendant is a club in Hong Kong which at the relevant time provided as one of the amenities for its members a restaurant. The defendant hired the plaintiff and his band consisting of himself and four other players to play nightly in the restaurant of the club where there was room for dancing.

2. On July 16th the plaintiff and one Noel E. Lee, on behalf of the club made a written contract. This provides that the club will employ the plaintiff and his band consisting of four musicians for a period of six months at a monthly salary of $6,500. The hours of work were to be from 8 p.m. to midnight every day except Sundays.

3. It is to be noted that though the contract mentions the plaintiff and "his four musicians", these musicians are not named. No contractual relationship is set up by the contract between them and the defendant. And they are not parties to this action.

4. The contract contains other terms and in particular states that if any member of the band proved unsatisfactory to the defendant, the defendant could terminate his work with the band upon giving 15 days notice.

5. The contract was not drafted by a lawyer. No mention is made of the instruments which were to be played nor of the type of music which was to be provided.

6. Mr. Lee, the managing director of the defendant club, said that the club had previously had the services of a band. He said he had had a discussion with the plaintiff a few days before hiring his band. And it was then agreed that the plaintiff should organise a band. Four persons were mentioned by the plaintiff, two Eurasians and two other young musicians. They were not known to Mr. Lee. It was the plaintiff who was to organise the band, choose its members and decide upon what instrumentalists should be employed. No audition was contemplated. And indeed no audition was held.

7. The plaintiff turned up for work under the contract on July 16th. He told Mr. Lee that he was unable to secure the services of the persons he had mentioned or referred to. Instead he brought with him four other persons with whose work he was familiar. With one exception, the pianist, these men were no longer young. One of them was over 60 and one was 50 years old: the plaintiff is 61.

8. The band began to play at 8 p.m. on the same day, July 16th, which was a Tuesday. They played on July 16th, 17th, 18th, 19th and the 20th July (1968). On July 20th the plaintiff was told that the services of his band were no longer required. The next day was a Sunday but the plaintiff turned up on the following day when he was told that he would be re-employed perhaps if he replaced two members of the band, and thoroughly practised the repertoire which the band intended to play. And he was asked to come for an audition on July 26th at 3 p.m. The plaintiff failed to keep that appointment. But turned up on the following day, July 27th. He had replaced two members of his band with two new members. Mr. Lee, the manager, was unwilling to let the plaintiff's band play without an audition so he was sent away.

9. The plaintiff claims damages for wrongful dismissal. He claims he is entitled to 6 months' salary under the contract.

10. The defendant's case is that the plaintiff was properly dismissed, that his band was incompetent. There is also a counterclaim for damages for having to hire another band in place of that of the plaintiff and for loss of profit.

11. If a person is engaged on the basis that he promised a particular skill he may be summarily dismissed without notice if he fails to display a reasonable competence in that skill. Undoubtedly the plaintiff was expected to produce reasonable sounding music of the usual sort provided in restaurants in Hong Kong. And I was told that the defendant club is an exclusive establishment, the only one of its type in Hong Kong, with a sophisticated membership.

12. The defendant's case is that the plaintiff's band was quite unsuited for what was wanted. From the very start according to Mr. Lee, it was obvious that the band was unrehearsed and he received many complaints from persons who heard it in the restaurant.

13. He complained that the band was out of tune, that many wrong notes were played, that the music that was played was stale and old-fashioned and that the instruments were old and battered. In particular on one occasion the trumpeter played a different number from that being played by the other members of the band. He also complained of the singing of the plaintiff. However the pianist proved satisfactory.

14. The plaintiff admitted that the trumpeter had played the wrong tune on one occasion. He freely admitted that the band had not played together as a band for five years save for two rehearsals immediately prior to July 16th. He seemed to be of the opinion that rehearsals were unnecessary and that the only qualification for a member of his band is an ability to sight read. In his evidence he repeatedly made this point and I have recorded him as saying that twenty-five minutes' practice is sufficient for a band to become sufficiently familiar with a new arrangement of a number to be able to play it competently in public.

15. This attitude of the plaintiff was made clear when he told the court that he had sought to replace two members of his band, the base player and the trumpeter with a new and younger guitarist and drummer cum vocalist.

16. The two new members of the band had not practised with the other musicians in the band at all. Yet the plaintiff considered that the band could play that very evening, the evening of his arrival at the club with them.

17. This inclusion in the band would make it a completely new band. It would be a band with two drummers and no trumpet but with a guitar. The plaintiff expressed the view that this new band could play competently right away with no previous practice or rehearsal. As I have said this newly constituted band never did perform. Mr. Lee rightly in my view refused to allow it as there had been no previous audition.

18. It is obvious that a band must practise together if it is to be worth listening to, and the longer the better. This is particularly so when a new number or a new arrangement is to be played. The evidence of the plaintiff clearly bears out part of what Mr. Lee said. There had been no or insufficient rehearsal. Nor did he deny that the music played consisted of old or the older tunes, though he did say that his band could play any type of music.

19. Part of the evidence called by the defendant consisted of a taped recording of part of the performance of the plaintiff's band in the restaurant. This was made by Mr. Lee on July 18th or 19th, who played it back to the plaintiff when complaining of the quality of the band's performance. The plaintiff said that at least one number so recorded was played without the music it being a number requested by one of the staff of the restaurant. Taking this into consideration and making every allowance for any imperfection caused by the method of reproduction, the result was in my view lamentable. Pedestrian arrangements amateurishly played would adequately describe what I heard: there was clear evidence of lack of practice or rehearsal: and there was no cohesion in the playing. The performance was obviously far below what it would be reasonable to expect from a professional band hired to perform in a restaurant in Hong Kong: particularly of a high or first-class restaurant.

20. Various complaints or explanations were made by the plaintiff - about the piano and the microphone. But when examined it was clearly proved that both these matters were put right.

21. The defendant did not rely on the clause in the contract enabling them to terminate the engagement of an individual member of the band who proved to be unsatisfactory. For in Mr. Lee's words only two members of the band were satisfactory, the pianist and the drummer. The view was taken that the whole band was so incompetent that the whole band must go. This was decided after the performance on July 20th which ended at 2.00 a.m. on July 21st. Mr. Lee offered to pay the band for the five nights that they had played but the plaintiff refused the offer. The defendant has always been willing to pay this sum.

22. In my view there were ample grounds for Mr. Lee to act as he did. And I find as a fact that he properly exercised his undoubted right of dismissal on the grounds of the incompetence of the plaintiff's band.

23. I will now turn to the counterclaim. Because of the dismissal of the plaintiff's band a new band was hired for the restaurant. This band was composed of Hong Kong people and therefore was less expensive than the band of the plaintiff. By dismissing the plaintiff's band therefore the defendant was not actually out of pocket. However the defendant complains that there was a loss and it is put under two heads.

24. First, the club wanted to have a Phillippino band or an imported band or "group" but to begin with they had to put up with a local "group". Later they hired a Malaysian "group". This was at a sum considerably less than that mentioned in the contract made with the plaintiff. The leader of this band is Malaysian but he is of Hong Kong birth. Whether this means his Malaysian band is considered as a local "group" or not I was not told.

25. I was given no figure upon which to base any sum to compensate the club for not having a Phillippino band and I do not think that I can award any sum under this head for two reasons. Firstly because the hire of the new bands were both at a rate less than that fixed for the plaintiff's band and secondly because I think that this matter falls to be considered as an element in the second claim for damages in the counterclaim. This is as follows: the defendant states that as a result of the playing of the plaintiff's band that receipts at the club fell off. Many members stayed away from the club's restaurant or would not make use of it because the plaintiff was playing and they disliked his music. But that was only for 5 days, on one of which there was a full house. There was a full house again on July 27th when a local "group" was playing.

26. Mr. Lee told the court that the turnover in the restaurant decreased by $2,500 per week. How much of this sum represents a loss of profit and for how long it continued I am not in a position to say from the evidence. The club had only been in operation for a relatively short time and without a great deal more evidence I cannot be sure that the falling off in receipts was on account of the effect of having to employ a local "group" in place of the plaintiff's band for about 2 weeks. That the new Malaysian "group" was successful is undoubted since it was employed for a period of over 9 months. In addition there must be taken into consideration the fact that the new (Malaysian) band cost only $2,500 per month as opposed to $6,500 the price under the contract. I have not heard any evidence to allow me to come to the conclusion that the defendant has made out his claim under this head.

27. It is admitted that the plaintiff is entitled to judgment for $1,083. There will be judgment for that amount. The plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations. Payment out to plaintiff of money in court. The defendant is to have his costs of the claim on the Supreme Court scale. The counterclaim is dismissed with costs on the District Court scale.

Representation:

Ignatius Wong (Deacons) assigned for Plaintiff.

Arculli (Wilkinson & Grist) for Defendant.

Judgment read in Court.