HKSAR v. Kamfaith Industrial Ltd

HCMA580/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.580 OF 2005

(ON APPEAL FROM ESS 34302 OF 2004)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 2 September 2005

Date of Judgment : 22 September 2005

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J U D G M E N T

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1.The appellant company was convicted by Mr Anthony Yuen, sitting in Eastern Magistrates’ Court of an offence under sections 25 and 63C of the Employment Ordinance, Cap.57.  They were fined $4,500 and ordered to pay $3,000 costs.  The appellant now appeals against both conviction and the order for the payment of costs.

2.The particulars of the charge are that the appellant company, being the employer of an employee, surnamed Wong, whose contract of employment was terminated on 10 May 2004 did wilfully and without reasonable excuse fail to pay to the employee the sum due to the employee, namely wages for the period 1 May 2004 to 10 May 2004 in the amount of $1,677.40, as soon as practicable and in any case not later than seven days after the day of termination.

3.At the trial, the prosecution only called the employee as its sole witness.  The defence called no evidence but produced in evidence certain documentary exhibits.  The employee gave evidence that on the morning of 10 May 2004, he was ordered by a senior officer of the company to pack his bags and leave, and he did leave the company on that day.  After he left the company, on three days, namely, on 12, 15 and 16 May he telephoned his company to see if his outstanding wages had been paid, and on each occasion he was told that his boss could not answer the telephone.  He checked his bank account but found that the outstanding arrears had not been paid into his bank account.  He went to the Labour Department to lodge a complaint on 17 May and not long after that, his outstanding wages for the month of April were paid, leaving still unpaid the outstanding wages for the 10 days of May.

4.The learned magistrate in his Statement of Findings said that after considering all the evidence, he found :

(1)	there was no evidence to contradict the testimony of the employee;
(2)	the defence documents had the effect of confirming in some respects the testimony of PW1; and
(3)	PW1 was an honest witness and did not conceal the fact that during the few months that he worked for the company, he was late on many occasions in attending at the company and he admitted that during the probation period his performance was unsatisfactory, and because of that, the company was dissatisfied and so extended his probation period.

5.The magistrate found that the company had wilfully and without reasonable excuse failed to pay the arrears of wages within the seven days specified by the law and therefore was guilty of the offence charged. 

Grounds of appeal

6.The first ground of appeal was that the magistrate erred to allow the prosecution to proceed when there was no consent to prosecute given by the Commissioner of Labour as required by section 64 of the Employment Ordinance.  There is no basis for this ground of appeal as the consent to prosecution signed by a labour officer was produced at the trial as Exhibit P1.  Mr Chung who also appeared at the trial then submits that the consent is invalid because under section 64(2), before the Commissioner gives his consent to prosecute, he shall hear the person against whom the allegation is made, or give him an opportunity of being heard.  Mr Chung complains that this was never done.

7.There is no substance to this submission either because it was an undisputed fact at the trial that there was a conference held on 4 June 2004 at the Labour Department when representatives of the company and the employee attended a conciliation meeting.  This meeting is confirmed by a defence exhibit, Exhibit D3 which was a letter sent by the Labour Department dated 20 May to the appellant, and it stated that the employee was seeking three types of payment from the company :

(1)	arrears of wages
(2)	payment in lieu of notice; and
(3)	payment in lieu of holidays.

The letter also stated that if the company disputed any of these items the company should attend at the meeting which was arranged for 4 June.

8.The second ground of appeal was : “The Learned Trial Magistrate made too frequent judicial intervention descending into the arena of dispute.”  Ms Ho, for the respondent, submitted that most of the questions asked by the magistrate were for the purpose of clarifying matters or directing the defence solicitor to the core issues.  She submitted that the magistrate did not descend into the arena of dispute.  She submitted that the defence lawyer had a tendency to ask convoluted, incomplete and confusing questions which caused difficulties to the court and therefore the interjections by the magistrate were necessary to make sense of what had been said in evidence.  A large number of the magistrate’s interjections related to the rephrasing of questions or answers and she submitted that the magistrate had to ask these questions to gain a proper understanding of the prosecution witness’s testimony and of the defence case.

9.I have checked the transcript of the evidence of PW1 and I agree with Ms Ho’s submission.  As Beeson J said in HKSAR v. Tsang Ping Tak, HCMA980/1997 :

“… What the Magistrate or Judge should have in mind is whether the informed bystander would regard the interventions as necessary or justified, or whether the informed bystander would think that the Defendant was not receiving a fair trial.”

This ground fails.

10.The third ground of appeal stated : “The Learned Trial Magistrate unnecessarily questioned defence lawyer his years of practice undermining the confidence of the Defendant.”  Ms Ho submitted that the interventions did not impinge on the fairness of the trial, and no objective and impartial observer would have considered otherwise.  She quoted examples of the magistrate reminding the solicitor of his responsibility to put the defence case and another instance where the magistrate asked the solicitor about his years of practice.  He thereafter did not make any comments after being told that the solicitor had received proper legal training.  I agree with those submissions and I find that there is nothing in this ground of appeal.

11.The fourth ground of appeal was that the magistrate erred to conclude that PW1 was an honest witness in view of his inconsistent previous statement to the Labour Department and his “dubious character as an irresponsible employee”.  The finding by the magistrate that PW1 was an honest witness was a finding of fact which this court should not lightly interfere with.  There was in fact no inconsistency between what the witness said to the Labour Department and his evidence in court, the only difference being that in his evidence in court he gave more details than what was contained in the witness statement. 

12.The fifth ground of appeal was “The Learned Trial Magistrate failed to consider the requirement of PW1 as a witness be reliable.”  I regret that I do not understand this ground and therefore cannot seriously consider it.

13.The sixth ground of appeal was that the magistrate erred to make material amendments on his own motion under section 27 of the Magistrates Ordinance thereby causing injustice to the defendant.  The amendments which were made were the following :

(1)	the date of 11 May 2004 as the date of the termination of the employment was wrong and the magistrate was not only justified but bound to amend the date to accord with the evidence namely, 10 May 2004; and
(2)	the date of 25 July 2004 which was stated in the particulars of the offence as the date when the defendant should have paid the arrears to the employee was quite properly deleted by the magistrate as the date was otiose, bearing in mind that the offence created by section 25 of the Employment Ordinance was failing to pay any sum due to the employee as soon as is practicable and in any case not later than seven days after the day of termination.  Seven days after the 10 May would have been 17 May and not 25 July 2004.

It was submitted by Mr Chung that these amendments were material amendments, in that the defence needed to know what witnesses they should call to rebut the prosecution’s case.  He admitted that the defence were in possession of the statement that the employee made to the Labour Department which stated quite clearly that he was dismissed by the appellant on 10 May 2004.  That being the prosecution’s case, I fail to see how Mr Chung could have submitted that the date of 10 May and 25 July were material dates, and that by the magistrate amending the first date and deleting the second, the defence was somehow prejudiced in its conduct of the defence. 

14.The seventh ground of appeal was that the magistrate erred in not considering the defence case at all.  In support of this ground Mr Chung in his written submission stated as follows :

“The Learned Trial Magistrate had not considered the versions of events elicited from prosecution evidence and defence case put to PW1:-
(a)	PW1 was not dismissed on 10th May 2004;
(b)	PW1 came and went to the office and there was the admitted time record entry on 15th May 2004;
(c)	the defence was aware and accepted PW1’s termination of contract when attended a three parties meeting on 20th May 2005; [sic]
(d)	there was the dispute as to the Defendant’s right of set off one month payment in lieu of notice against PW1’s against the claim by PW1;
(e)	the agreement that PW1 and Defendant be bound by the outcome of MECAB and payment by whoever be made forthwith after the latter’s adjudication.”

15.I have to point out that there was no defence evidence called at the trial at all.  The defence contention was that PW1 was not dismissed but left of his own accord, but this was rejected by PW1.  Among the defence documentary exhibits were some attendance sheets of PW1, one of which showed that on 15 May 2004, there was the time of 1809 shown as the time when he clocked out.  I fail to see how that one entry could in any way have advanced the defence case insofar as they were saying that the employee was never dismissed but left of his own accord.

16.As regards the alleged meeting on 20 May 2004, the magistrate found that there was no such meeting on that day and that the meeting must have been on 4 June which was the date appointed by the Labour Department in their letter to the appellant company dated 20 May 2004.  As regards the alleged right to set off one month’s wages in lieu of notice, that was put to the employee but rejected by him.  As regards the assertion in (e) above, I fail to understand the significance of that.  The reference to MECAB is a reference to the Minor Employment Claims Adjudication Board.  On 26 July 2004 an Adjudication Officer made the award/order that the appellant company should pay to the employee the sum of $3,642.40 on or before 5 August 2004.  This was said to be a settlement agreed to by both parties in settlement of all claims against each other by the two parties.  The sum mentioned above was made up of three items :

(1)	arrears of wages from 1 May to 10 May;
(2)	payment in lieu of notice (for seven days); and
(3)	payment of wages in lieu of holidays for the period 8 January 2004 to 10 May 2004.

It is quite clear to me that the magistrate did consider whatever defence case there was as shown by the defence documents produced and as elicited from the employee’s evidence.

17.The last ground of appeal was that the learned magistrate erred to make the material amendments on his own motion and proceeded with the amended charge without consent in writing from the Commissioner of Labour in contravention of section 64 of the Employment Ordinance.

18.I have found above that the amendments made by the magistrate were not material and the defence was not in any way prejudiced by the amendments.  The two cases relied upon by Mr Chung namely R. v. Do Bing Hung, HCMA707/1987 and R. v. Lee Kwok Tsun [1989] 1 HKC 581, are quite different from what we have in the instant appeal, in that in those two cases, after the amendments were made, the offences charged became new offences and were quite different from the original charges before the amendments.  It was in those circumstances that the court held that as the magistrate had no power to amend, the convictions were nullities.  This ground of appeal therefore also fails.

19.In the circumstances, the appeal against conviction is dismissed.

Appeal against costs order

20.Mr Chung relies on two cases, one of which was HKSAR v. Chan Kwong Hung [2000] 3 HKLRD 389 where the principles relating to costs enunciated by Yeung J (as he then was) are accepted by all concerned to be correct :

“… An award for costs should normally only be made when in the opinion of the court, the way in which the defendant approaches the investigation and/or the prosecution of the case constitutes an abuse resulting in the prosecution having to incur extra costs which, in the normal course of events, would not or need not be incurred.”

21.The second case is HKSAR v. Yuen Ming Sing, HCMA1157/1998 where Pang J stated the same principle and added :

“One must, however, recognize those instances in which a defendant, whether in person or through his legal representative, has unnecessarily prolonged the trial by requiring the prosecution to prove matters which could not otherwise be justifiably challenged.  It is in those type of cases that a cost order against an unsuccessful defendant would have been appropriate.”

22.Ms Ho, for the respondent submitted that during the trial many questions were put by the defence solicitor, and that because there was no defence to the case, by putting those questions, the defence unduly prolonged the hearing.

23.When the magistrate gave his reasons for his verdict, he said this :

“The court cannot see that in this case the company had any reasons for not following the law in discharging its obligation.  In actual fact, the company did not give any reason whatsoever to this court as regards why it did not obey this particular law.  The defence relied upon by the appellant was that they had a reasonable excuse not to make the payment to the employee.  This was a defence which was one which the defendant company had to show and therefore it was incumbent on them to have produced some evidence to support this defence.  In the event no evidence was called by the defence and the excuse was put to the employee, namely, that because the employee had left on his own accord, he was bound to pay the company wages in lieu of giving notice and therefore the company was entitled to claim those wages from him.”

This contention was, however, totally rejected by the employee.

24.Once that was rejected by the employee and the employee’s evidence was accepted by the court, in my view, it was necessary for the appellant company to try and discharge the evidential burden before it had any chance of successfully defending the charge.  In the event, no evidence was called.  The defence documents produced as part of the defence case did nothing to advance the defence.  I have gone through the transcript of the trial, especially the transcript of the evidence of PW1 and the cross-examination by the defence.  Without going into any details of what was asked of the witness and without levelling any criticisms at any person, I need only say that, in my view, the learned magistrate was amply justified in making the costs order against the appellant.

25.The appeal against the costs order is also dismissed.

Ms Lily Ho, SGC of Department of Justice, for HKSAR

Mr Raymond Chung of Messrs Chung, Fong & Co., for the Appellant