Law Kai Cheong v. Hong Kong Security Ltd

BETWEEN

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Coram: Roberts, C.J., Kempster, J.A. and Hunter J.

Date of hearing: 20th March, 1985

Date of judgment: 20th March, 1985

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JUDGMENT

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Kempster; J.A.:

1. On 2nd October 1983 the plaintiff, being the respondent to this appeal, resigned from his position as the defendants' assistant general manager; such resignation to take effect on 2nd January of the following year. Although given the option to leave before that date he elected to continue to attend at his place of work because he thought that his entitlement to bonus might adversely be affected should he do otherwise. The defendants, we should explain, claim to be Hong Kong's largest security company.

2. On 4th November 1983 the defendants summarily dismissed the plaintiff who, on 23rd December, commenced proceedings in the Labour Tribunal claiming damages for wrongful dismissal. Those proceedings were transferred to the Kowloon District Court on 30th January 1984 and the defendants filed a Defence and Counterclaim. The Counterclaim was abandoned when the claim itself came on for hearing on 24th December.

3. At the hearing the defendants sought to justify the plaintiff's summary dismissal on the three grounds set out in their amended Defence. The first of those grounds was that -

"The Plaintiff, contrary to the express oral instructions of the General Manager of the Defendant's Security Guard Services Division, on the 15th October, 1984, continued to attend clients of the Defendant by himself."

The plaintiff in his evidence denied such instructions and, although they were put to him, no witness was called by the defendants to make out this averment. The trial judge's finding in the plaintiff's favour on this issue is not the subject matter of appeal. The second and substantial ground relied upon as warranting the plaintiff's summary dismissal arose from a telephone conversation which took place on 2nd November 1983 when an employee of the defendants posing as a customer or, to adopt the felicitous explanation of their witness Mr. Hill "It was agreed that a believeable cover should be presented," rang the competing concern Centurion Facility Co. Ltd. A man who represented himself to be the plaintiff answered the telephone and proceeded to discuss on behalf of the competitor a proposed security contract stating that he no longer worked for the defendants and quoting charges. This man went on to confirm that he managed Centurion Facility Co. Ltd. and had formed it with unspecified friends. The plaintiff denied that he had participated in any such conversation on that date.

4. Thirdly, the defendants relied on the fact that on the following day the plaintiff had handed to one of their clients a business-card bearing the name and logo of Centurion Facility Co. Ltd. and represented himself as the Deputy Managing Director. That was not a real issue at trial once the circumstances had been explained by the plaintiff and to some extent accepted by the defendants' witnesses namely that the card had been handed over in the context of a discussion about a publicity film. Indeed, it is not urged before us that this incident can be relied upon otherwise than as a factor in assessing the truth of the plaintiff's evidence in relation to the telephone conversation.

5. At trial His Honour Judge Saied found as a fact that while such a telephone conversation, as we have summarised, did take place on 2nd November 1983 the plaintiff was not a party to it; this despite the advocacy of Mr. Barlow who appeared for the defendants below as he does before us. That is the critical finding of fact which is challenged on this appeal.

6. First, it is contended that the learned judge required a criminal standard of proof from the defendants on whom, it was common ground, the burden lay. This submission we cannot accept. The learned judge expressly accepted that his decision had to follow his view as to the balance of probabilities and he found that the evidence of Mr. Lee did not on balance establish that the man who purported to be Law Kai Cheong was in fact the plaintiff. He so found after considering all the factors urged upon him as affecting the probabilities including the plaintiff's move from the Kowloon to the Hong Kong offices of the defendants.

7. Secondly, it is contended that the learned judge's finding as to the probabilities were plainly wrong and, as the reliability and truthfulness of witnesses were not relied upon, we are in as good a position as the trial judge to form our own view. But the reliability and truthfulness of the witnesses was keenly in issue and we find ourselves in the classic position of permanent disadvantage in relation to the trial judge in attempting to assess their relative credibility. The submission that we should form our own view is necessarily an invitation to find that the plaintiff committed perjury in relation to the telephone conversation.

8. Mr. Barlow's long exordium citing a number of well known cases in support of well known propositions of law bearing on the provisions of R.S.C. Order 59 rule 3(1) and 10(3) gave us early warning of the difficulty of his task. This is an appeal which, in our view, was bound to fail. There are no grounds which entitle us to interfere with the trial judge's acceptance of the truthfulness of the three witnesses called upon which acceptance the outcome of the trial turned.

9. The appeal is dismissed.

Representation:

Mr. B.G.J. Barlow (Lovell White & King) for defendants.

Mr. Law Kai Cheong, respondent in person.