Wong Shin Hang v. The Shui Hing Co

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

Action No. 14 of 1947

Coram: T. J. Gould, Additional Judge

Date of Judgment: 28 March 1947

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JUDGMENT

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1. The plaintiff claims that on the 2^nd day of the first Chinese lunar month of the year 1947, he was wrongfully dismissed without notice by the defendant and claims $180 as salary for that month together with $180 as one month’s salary in lieu of notice.  It is clear from the evidence that no specific arrangement either verbal or in writing was made concerning the rights of either party to determine the contract of employment but from the course of conduct of the parties, it is abundantly apparent that the plaintiff was employed on a lunar monthly basis.

2. This being so the plaintiff would normally be entitled to the usual notice if the defendant desired to dispense with his services, but the defendant relies upon a general trade usage which, he alleges, exists among all merchants in Hong Kong whose business it is to import foreign goods.  This usage is said to be that employees of such firms engaged on a lunar monthly basis may be dismissed without notice on the 2^nd day of the first Chinese lunar month in any year.  A corresponding right, it is alleged, exists in the employees to terminate their contracts on that day.

3. To establish this custom, the manager of the defendant firm gave evidence himself and called as a witness one Chan Chung Chee, the Chairman of an association of importers of foreign goods called Ho Yik Association.  As to the former, he alleged in broad terms that the custom had existed for many years but he was shown to have left school only in 1944 and had not ever since that date been manager of the firm for the whole period.  He cannot therefore be said to be of ripe experience though he may of course have become acquainted with the custom from others in the trade.  The defendant relies more strongly on the evidence of Mr Chan Chung Chee who states that the Ho Yik Association of Importers of foreign goods has a membership of eighty firms and has been in existence for forty-nine years.  He himself has been in Hong Kong for 38 years and has known of the usage during that period.  In his evidence in chief he stated that “I can say that most Chinese in Hong Kong knew this practice.  Everyone who is concerned in importing firms knows this practice – it has been going on for tens of years.”

4. In cross-examination however, Mr Chan said this:   “I do not say that every one of these firms follows the practice but most of them do.  Only some continue to observe the Chinese customs.  The large department stores observe the European style – they use a new style of book-keeping.  But I can’t say whether they observe (the European customs) fully or only in part”.  To the Court he said, “I think the same practice is still followed in Hong Kong by many firms.  I use it in my own firm.”

5. In order that a trade usage such as that alleged may be binding, it must be shown to be certain and reasonable and so universally or generally known throughout the particular trade that every person in that trade knows it, or could have known it if he had taken the pains to inquire.  Blaice v. Allcock & Foster & Finlaysen 1074.  The general practice has been that such a usage is proved by the evidence of a number of persons who have become aware of its existence by reasons of their occupation, trade or position.  The evidence must be clear, convincing and consistent.  10 Hailsham p.80.

6. Thus in the Matthews, Ex parte Howell (1875) 1 Ch.D. 501 C.A. the affidavits of three furniture dealers were relied upon.  In Murray v. Currie (1836) 1 C. & J. 584 “several land agents” were called as witnesses.  In Cohen v. Baget (1814) 4 Cambell 95, the usage was established by “a number of witnesses”; in Rainy v. Vernon (1040) 9 C. & J. 559 by three auctioneers;  in Blake v. Meyer 1813 3 Campbell 412 by “a great number of brokers and merchants.”   Where there was a conflict of evidence between the witnesses called, it was held that the conflict showed that the custom was not universally admitted by those engaged in or conversant with the trade.   Williams v. Ayers 3 A.C. 133 B.C. at p. 140.

7. In the present case, I have not been referred to any decided case in which the usage has been recognized and it is my view that the defendant has not sufficiently discharged the onus upon him to show that the usage was so generally known and acted upon that nobody need have remained ignorant of it.  I do not say that such a usage could never be proved by the evidence of one witness alone, but there I do not find the evidence of the only disinterested witness sufficiently definite and convincing to enable me to hold that the onus has been discharged.  It would seem that nothing would have been similar than to have called as witnesses representatives of some of the large departmental stores similar to that of the defendant.  It is admitted by Mr Chan Chung Chee that some of those large stores have, at least in part, departed from Chinese customs in favour of the more modern European style; this renders it probable that even if the alleged usage was once universal, it has now fallen partially into disuse and is no longer so. 

8. This being my view, it is not necessary to decide whether the usage is reasonable, though in view of its disproportionate value to the employer as compared with the employee, it may possibly fall within the principle enunciated by Brett J. in Robinson v. Mallett 1675 L.R. 7 H.L. 862 at p. 818.  A further point which appears on the evidence to be in favour of the plaintiff is that the departmental stores admittedly have other lines of business as well as that of foreign goods importers in respect of which trade alone the usage is allowed to exist.  Can it be said that the plaintiff, who was employed as a watch repairer and denying as he does, any knowledge of the usage, is sufficiently connected with the importing business to be bound by its usages even if established.  Finally, I should mention that on the evidence, I do not agree with the contention of the defendant that the plaintiff is estopped from making this claim by his conduct at the time of dismissal.  It is true that he made no protest at the time, but he may not have known what his rights were.  He consulted a solicitor four days later and the first letter of demand was sent at the expiration of a week after that time.  This in my view constitutes neither acquiescence nor laches.

9. No argument was addressed to me on either side on the subject of the measure of damages.  Undoubtedly the plaintiff is entitled to a month’s wages as damages in lieu of notice but it has not been shown to me that there exists any recognized custom that the month’s notice can only be given so as to expire at the end of a month.  In the case of domestic servants, there is authority to the contrary. Fayzu v. Hennsford 1918  2 K.B. 348 might be construed as authority that notice to determine a weekly hiring need not expire at the end of a week.  On a general view of the authorities, I find that the plaintiff is not entitled to more than wages for the first two days of the month in which he was dismissed, in addition to damages equal to a month’s wages.  This being my view I do not think it should be altered by reason of the fact that the defendant paid a more liberal amount to an employee previously dismissed.

10. I give judgment for the plaintiff for $180 plus two day’s wages amounting to $12 – in all, the sum of $192 and the costs of the action.