Nora Viloria Renon v. Yat Sum Employment Agency Ltd t/a Sunlight Employment Agency

HCSA 45/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 45 OF 2012

(ON APPEAL FROM SCTC 47159 OF 2011)

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Before: Hon Au-Yeung J in Chambers

Date of Hearing: 4 January 2013

Date of Judgment: 16 January 2013

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J U D G M E N T

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1.On 18 October 2012 (1^st hearing) the applicant was absent. She had asked for an adjournment because her legal aid application was pending. In fact, by 18 October 2012, the automatic stay of proceedings under the Legal Aid Ordinance had expired. I had directed the hearing to proceed but the applicant failed to turn up. The application was thus dismissed.

2.The applicant had applied to restore her leave application.  Such restoration will not be entertained unless (i) she can provide a good explanation for not turning up at the 1^st hearing; or (ii) there are merits in her leave application.

Explanation for not turning up at the 1^st hearing

3.The applicant’s explanation was that she had written to the court to vacate the 1^st hearing.  In my view, that was not good enough. A litigant who applies to vacate a hearing cannot assume that the court will definitely grant an adjournment.  Unless and until he or she has written confirmation from the court that the hearing is vacated or adjourned, he or she must attend the hearing as set down.  Otherwise, he or she runs the risk that the application may be dismissed. 

4.Equally, even if a party has applied for legal aid, he or she cannot assume that there will be an automatic stay of proceedings beyond the 42 days granted under the Legal Aid Ordinance until the time he or she can find a lawyer.  As I have mentioned, the automatic stay had expired by the date of the 1^st hearing.  Accordingly, there was no good explanation offered by the applicant for her absence at the 1^st hearing. 

Merits of the leave application

5.The applicant claimed against the defendant (Sunlight) for the return of medical examination fees and excessive commission, less the amount that Sunlight could have legally charged.  The sum came to HK$5,398.50.  The tribunal dismissed her claim. 

6.In this application, the ground for seeking leave to appeal was that the award was erroneous in point of law in that the learned Deputy Adjudicator’s analyses and assessment of the weight to be given to the evidence was flawed. 

7.As regards medical fees, there was no dispute that Sunlight had received the money from the applicant for medical examination.  According to Sunlight, the applicant needed to obtain a medical report certifying that she was physically fit before a potential employer would consider employing her.  The $750 was for medical check-up, which had to be borne by the employee rather than the employer.  The learned Deputy Adjudicator simply had accepted the evidence of Sunlight’s witness.

8.However, as pointed out by the applicant the learned Deputy Adjudicator had failed to consider (i) the fact that, under the employment contract, it was the employer who should have paid for medical fees; (ii) the employment contract was prepared by Sunlight; (iii) the applicant undertook medical examination only after the employer agreed to employ her.  There was evidence from the applicant filed in the form of a letter from her employer that the employer had already paid Sunlight for the medical fees of a domestic helper who had not turned up for employment.  Attached to that letter was a receipt voucher issued by Sunlight for, amongst others, medical fees.  The query was whether those medical fees would have been used on the applicant instead.  There appears to be ground to argue that the findings were against the weight of evidence or there had been a failure to inquire pursuant to section 16(3) of the Small Claims Tribunal Ordinance, Cap 338.

9.As regards the two payments to Ascend International Services Inc in the Philippines (“Ascend”), it was the applicant’s case that she was asked to pay Ascend as instructed by Sunlight.  She had made two payments but despite her request, she had not been provided with receipts.  She would not have made such payment without the instructions of Sunlight.  She had not applied for a job through the agency in the Philippines.  She was only instructed by Sunlight to report to Ascend.  It was made clear to her that the two payments were part of the placement fee of US$1,000 charged by Sunlight.  The applicant was not aware that this was illegal until she sought advice from the Helpers for Domestic Helpers, an organisation in Hong Kong.  

10.Sunlight denied ever receiving such payments from the applicant or that it had ever appointed Ascend as its agent.  Sunlight only received service fees from the employer but would not charge the applicant any commission. 

11.The learned Deputy Adjudicator did not accept the applicant’s version that she had made the two payments, having regard to the fact that there were no receipts in support.  Because the two payments were not small sums and it was highly suspicious that the applicant would have paid them without receipts or without knowing the purpose of those payments.  Even assuming the applicant had made those payments, there was no evidence to prove that Ascend was receiving the two payments on behalf of Sunlight.  In my view, these were findings of facts open to the learned Deputy Adjudicator on the evidence laid before him. 

12.In her submission, the applicant stated that the learned Deputy Adjudicator should have taken judicial notice of the fact that prospective domestic helpers had to pay large placement fees before their applications for overseas visas can be secured, and media coverage of this issue could be found. She considered that the learned Deputy Adjudicator should have taken judicial notice of such illegal and excessive placement fees. 

13.With respect to the applicant, this is not a matter that the tribunal could have taken judicial notice of.  The learned Deputy Adjudicator properly considered the evidence and was not affected by extrinsic media materials.

14.There was no error of law in the way he dealt with the two payments to Ascend.  I find there to be no merits in the intended appeal as regards the two payments to Ascend. 

Conclusion

15.Notwithstanding that there was no good explanation for the absence at the 1^st hearing, there are arguable ground of appeal in relation to the medical fees.  I order as follows:

(i)  that there be leave to restore the hearing of the application for leave to appeal;

(ii)  that there be leave to appeal limited to the issue of whether or not the applicant should be entitled to refund of the medical fees; and

(iii)  that costs of this leave application be in the cause of the appeal.

The claimant (applicant) appeared in person