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Chua, Grace Gonzales v Sobrevilla, Rhennie Boy Fernandez

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date24 August 2017
Subject MatterCivil Action
Judgement NumberDCCJ3750/2015
CourtDistrict Court (Hong Kong)
DCCJ3750/2015 CHUA, GRACE GONZALES v. SOBREVILLA, RHENNIE BOY FERNANDEZ

DCCJ 3750/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3750 OF 2015

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BETWEEN
CHUA, GRACE GONZALES Plaintiff
and
SOBREVILLA, RHENNIE BOY FERNANDEZ Defendant

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Before: Her Honour Judge Winnie Tsui in Chambers (Open to Public)
Date of Hearing: 12 May 2017
Date of Written Submissions: 29 May and 12 June 2017
Date of Decision: 24th August 2017

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DECISION

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BACKGROUND

1. This dispute arises out of the plaintiff’s employment of the defendant as her domestic helper in 2014.

2. According to the plaintiff, she carries on a consultancy business. Amongst other things, she arranges for contracts and immigration visas for individuals who wish to come to work in Hong Kong as domestic helpers.

3. The defendant is from the Philippines.

4. He and the plaintiff entered into an employment contract dated 30 May 2013. The contract was in a standard form and under its terms, the defendant was employed as a domestic helper and he was to work at the plaintiff’s residence in Yuen Long.

5. The defendant arrived in Hong Kong on 13 February 2014. What happened shortly after his arrival, in particular in February and March, is a matter of heated dispute. The dispute has given rise to a string of legal proceedings between the parties during the ensuing years.

(a) On 24 March 2014, the defendant lodged a claim for statutory entitlements arising out of the employment at the Labour Department. The claim was referred to the Minor Employment Claims Adjudication Board (the “MECAB”). It proceeded under claim number MB0369/2014(E). In June 2014, the case was settled.

(b) Then, on 3 July 2014, the defendant filed a claim at the Labour Tribunal under action number LBTC 1987/2014. It was withdrawn shortly afterwards.

(c) He then filed a further claim at the Labour Tribunal under action number LBTC 2466/2014 on 15 August 2014. After a number of call-over hearings, the action proceeded to trial which lasted 15 days. In February 2015, the defendant’s claim was dismissed.

(d) The defendant then sought leave from the Court of First Instance to appeal from that decision. By a decision handed down on 7 June 2017, leave was refused.

6. In other words, the position as of today is that the defendant has lost his case for statutory entitlements in respect of his employment by the plaintiff.

7. As the parties have been involved in multiple proceedings, it would be more convenient to refer to them from now on by their last names – “Chua” for the plaintiff and “Sobrevilla” for the defendant.

8. Their cases, as pursued and disclosed in the series of litigation, are as follows.

9. Chua says that Sobrevilla refused to work after his arrival. Initially, he claimed that he was tired and wanted to relax and meet his mother before starting work. (His mother and sister both worked in Hong Kong.) Later, he told Chua that he wanted to get his Hong Kong Identity Card first before reporting for duty. On 1 March 2014, Chua spoke to him and gave him notice that his employment would be terminated by the end of the month.

10. Sobrevilla’s account of what had happened is starkly different.

11. His case is that a Mr Lalaan, a pastor of a church in Hong Kong, had arranged for his employment contract with Chua. He had received a sum of $18,000 from Sobrevilla’s mother and sister as fees for the arrangement. Sobrevilla says that he had all along been ready and prepared to work. However, upon arrival, he was taken to stay at a workers’ shelter. He waited there to be called upon by Chua to commence work. But it was only about ten days later, ie, 23 February, that he finally met her in a church. Still, it was not until 9 March that Chua took him to her home briefly.

12. On that occasion, she asked him to estimate how much it would cost to replace some balcony tiles. She paid him one month’s wage and food allowance. A few days later, in a restaurant, Chua confessed that she had been paid $9,000 by Lalaan to enter into the employment contract with Sobrevilla but in fact she had had no real intention to employ him. In other words, it was a sham arrangement.

13. Then, on 14 March, she asked Sobrevilla to sign certain documents acknowledging the receipt of some payments, namely, wages for February and wages in lieu of notice, travel and food allowance and cost of air ticket. Initially he refused to sign them as he had not in fact received the full amounts as shown in those receipts. But he eventually agreed to do so as Chua told him that the documents were really for his protection.

14. Sobrevilla was then advised by a support group and was told that he was entitled to treat the contract as having been constructively terminated by Chua on 14 March. Then followed the series of litigation initiated by Sobrevilla as outlined above in which he sought various statutory entitlements under the labour legislation. The gist of his complaint has been that Chua and Lalaan had conspired to defraud him into entering into the sham employment and that he was a victim of exploitation.

15. That is of course a very serious allegation to be made against Chua. That is particularly so given that she is in the business of arranging contracts for domestic helpers from the Philippines.

16. Chua commenced the present action in August 2015, which was a few months after Sobrevilla’s labour claim was dismissed but before the application for leave to appeal was heard.

17. Her claim is for “Lost of Moral Damages” which she puts at $500,000 “as a ball-park figure”. The claim is apparently based on what happened between her and Sobrevilla over the past few years.

18. The application now before me is Sobrevilla’s application to strike out Chua’s statement of claim and her further and better particulars. Alternatively, Sobrevilla asks for a determination under Order 14A of the Rules of the District Court that his legal action at the MECAB and the Labour Tribunal was subject to absolute privilege and if so Chua’s claim be dismissed.

19. In these proceedings, Chua acts in person whereas Sobrevilla, who is legally aided, is represented by Vidler & Co. Ms Eugenie Chung of the firm appeared on his behalf at the hearing.

THE PLEADINGS

20. Chua issued the writ on 14 August 2015. Indorsed on the writ is a short handwritten paragraph entitled “Statement of Claim”. It is necessary to set it out in full:-

“I have employed this person as domestic helper. He refused to work when he arrived in Hong Kong. Instead he filed complaints against me at the Labour Department, MECAB (Minor Claims Adjudication Board), Labour Tribunal. Recently he lost his case against me. He destroyed the reputation of my company. My business was ruined because of the troubles he did.”

21. Further and better particulars were sought. Chua answered the request by a letter dated 18 January 2016. It comprised two pages (this time typewritten), together with 19 pages of attachments. In the letter, Chua set out, amongst other things, how Sobrevilla had refused to work for her which led to her decision to terminate the contract. She also gave a description of the types of works undertaken by her consultancy business. More relevantly for present purposes, she explained what she meant by “the troubles” as pleaded in her statement of claim.

22. Again, it is necessary to quote the relevant paragraphs in full:-

“… Went to the news paper which subsequently published an enormous article which was injurious to my reputation and my business (attached). He even persuaded a reporter from the newspaper to attend court. A separate action in being considered against the publisher’s of the newspaper.

He has used others to telephone me with threats and allegations. He has further taken every opportunity to tell fake accusations (proven false at the Labor Tribunal) to everyone he meets

Many of my friends and acquaintances have reported this to me and my income and reputations have suffered accordingly.

He complained at Hong Kong Immigration Department on 25 March 2015.

He has prolonged all legal issues in Hong Kong including 15 hearings in the labor court (where he lost the case). I believe that all of these actions are solely as a result of his desperation to stay in Hong Kong. I further believe he is supporting himself here by working illegally for a door to door delivery company.

These are the “troubles” I have referred to in my complaint.”

23. Amongst the attachments, I should highlight two documents.

24. First, a letter written by Sobrevilla to the Director of Immigration dated 25 March 2014.

(a) The title of the letter read “Application for extension of stay and Complaint of Exploitation by employer and unlicensed recruiter”.

(b) In the letter, Sobrevilla informed the Director that he was pursuing his claim for statutory entitlements following Chua’s dismissal and for that purpose, he would wish to apply for an extension of stay in Hong Kong.

(c) He gave a brief outline of what had happened after his arrival in Hong Kong. He made a number of serious allegations against Chua:-

“… When I met her, she asked me to sign two payment receipts both of which were falsely dated …

I initially refused to sign the documents as they were not true and I have not received the payments. She said it was not a problem and that it was for my protection. I therefore signed the documents even though I did not receive any payment.

…

I am a victim of exploitation by Mr Lalaan and the employer both of whom defrauded me of $18,000 with a promise of a legitimate job as a domestic...

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