Wong Wah and Others v. Leung Ming Yim
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CACV000013/1968 APPELLATE JURISDICTION CIVIL APPEAL NO. 13 OF 1968 (K.D.C. C.J.ACTION NO. 8875 OF 1967) -----------------
----------------- Coram: Hogan, C.J. and Rigby, S.P.J. Date of Judgment: 16 May 1968 ----------------- JUDGMENT ----------------- 1. This is an appeal against a decision of the judge in the District Court whereby he reversed an earlier decision and gave to the Respondents to the present appeal judgment in their favour on a claim for wages against the Appellant. The claim presented to the District Court was for wages alleged to be due to the Plaintiffs in respect of work which they had done for the Defendant as carpenters in March 1966, when the Plaintiffs were alleged to have worked on a day or shift basis at $18 per shift during the period from the 21st of March to the 29th of March. The judge, having heard the evidence of the Plaintiffs and the evidence of the Defendant, came to the conclusion, on the 9th of February 1968, that the claim had not been made out and he dismissed it. In reaching that conclusion, he was mainly influenced by the following factors; first the delay in filing proceedings against the defendant inasmuch as the wages were alleged to have accrued in March 1966 and the Writ was not taken out until November 1967; secondly, the 1st and 3rd Plaintiffs had admittedly taken further work from the Defendant for which they were paid during the intervening period and that at a time when, according to their story, he was still indebted to them for the earlier work which had remained unpaid; thirdly he was strongly influenced by the fact that the Plaintiffs were not in possession of the working passes which, according to the evidence of the Defendant, were normally issued to carpenters employed on work, such as that alleged, in a ship and which, on completion of the work, would have been surrendered by the worker or the carpenter in return for his wages. 2. In the light of these circumstances, the judge found that although the Plaintiffs had worked for substantially the period named in the Statement of Claim, subject to some minor modifications, they had, as the defendant alleged, been paid for that work and there was nothing still owing to them. However, he had anxieties about his judgment and shortly afterwards in pursuance of the powers conferred upon him by section 22 of the District Court Ordinance, he notified the parties that he was proposing to review it. As a result of that notification, the parties attended before him on the 17th of February. 3. From the record it is not altogether easy to make out precisely what occurred on that day but it appears that without further ado and without giving the parties any intimation of what he had in mind or any opportunity to argue the matter or make submissions to him, he delivered a judgment reversing his earlier decision and giving judgment for the Plaintiffs for the amount claimed subject to some minor modifications. He justified this course by saying that the Defendant, during his evidence, which had been given at a date subsequent to that of the Plaintiffs, introduced details as to the date and place of his alleged payments of the wages to the Plaintiffs, which had not been put to them in the course of cross-examination at the earlier hearing. On reflection, the judge thought that this was an indication of fabrication and invention and said that as a result he round the balance of probabilities was tilted in favour of the Plaintiffs' story that they had not been paid their wages. 4. Amongst the grounds on which the appeal is put to us is the allegation that the judge wrongly exercised his discretion in reversing his earlier judgment. In the view which we take of the matter, we do not find it necessary to give a concluded decision on this aspect of the matter and do not think it desirable to do so because we have not had the benefit of legal argument on both sides. We would merely say that we are very doubtful whether the action taken by the judge was justified by section 22 of the Ordinance quite apart from the question whether it would have been desirable, even on the view which the judge took of the position, to have given the parties an opportunity of making submissions to him on the material which he was going to take into account in reviewing his decision. It is, we think, open to question whether the power to alter or vary the earlier judgment is dependant on the reopening and retrial of the case. Putting that aspect of the matter on one side, however, we have given very anxious consideration to the grounds adduced by the judge for his change of mind. We have viewed te matter with particular anxiety because it is a claim for wages and one is naturally loathe to run the risk of taking a wrong decision on the rights of a labourer suing for ...(illegible). Nevertheless after such consideration we are satisfied that the reasons advanced by the judge for his change of view in the present case did not justify him in reversing his earlier judgment. On the balance of probabilities we think that the factors to which he adverted when giving his earlier judgment were substantially stronger and more cogent than the single factor on which he relied in deciding to reverse his judgment. 5. Delay is, of course, not fatal to a claim. It might well be explained by persuasion of some kind or by indulgence on the part of a plaintiff. A plaintiff might be led to delay by suggestions on the part of a defendant that the sums due will be paid at a later date if no action is taken at an earlier stage; a man might well be induced to take on further work in the same belief. But the stories advanced by the Plaintiffs in the present instance do not carry that explanation to the point of conviction. Their stories indicate a casual and indifferent attitude to their wages which seems almost beyond belief. If in fact they had earned the right to this money and were not paid, it seems highly unlikely that they would have let month after month go by without taking some more active steps to recover what they had earned, particularly when the defendant was not even, according to their story, holding out any inducement to them to hold their hands or any promise or suggestion that the money would be forthcoming in due course. So quite apart from the legal question to which I have drawn attention, I would, simply on the balance of probabilities, allow this appeal and restore the original judgment of the District Judge in the court below. RIGBY, J.: I agree with the judgment my Lord has delivered and there is nothing that I would wish to add. For the reasons which he has advanced, I also allow this appeal, set aside the judgment of the lower court and dismiss the Plaintiffs' claim. 16th May 1968. Representation: Henry Hu (Lo and Lo) for Appellant (Defendant) Respondents (Plaintiffs) in person. Judgment delivered on 16.5.68 |