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Endozo Maylin Palomar v Lee Chi Ming

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date29 October 2013
Year2013
Judgement NumberHCA1176/2011
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA1176/2011 ENDOZO MAYLIN PALOMAR v. LEE CHI MING

HCA 1176/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1176 OF 2011

___________________

BETWEEN
ENDOZO MAYLIN PALOMAR Plaintiff

and
LEE CHI MING Defendant

___________________

Before: Deputy High Court Judge Mayo in Chambers
Date of Hearing: 17 October 2013
Date of Decision: 29 October 2013

_______________

DECISION

_______________

1. Two summons lie before me for determination. The first is an appeal against the order by Master de Souza of the 24th June 2013 and the second is an application by the Defendant to strike out the Plaintiff’s Statement of Claim.

2. The subject matter of the two applications essentially relate to similar considerations and they can conveniently be dealt with at the same time.

3. The Plaintiff at the relative time was engaged by the Defendant as a Domestic Helper.

4. She commenced her employment in July 2009.

5. According to her evidence, her relationship with the Defendant and his wife was not a happy one.

6. On 26 August 2009 the Defendant accused her of stealing money from his wallet. She denied his accusation but notwithstanding this the Defendant and his wife searched the room she was occupying and did not find any incriminating notes. She had permitted the Defendant to search her purse and she was able to account for the money in the purse.

7. She thought that this was the end of the matter. However the following day the Defendant served upon her a notice terminating her employment. This gave her one month’s notice of determination and required her to work out the notice.

8. It did not purport to dismiss her for cause.

9. On 9 September the Defendant again accused her of stealing a $100 bank note. This was late in the evening. A search was undertaken and nothing was found.

10. She went to bed and was awoken when Police Officers knocked on her door and asked to come in so that they could conduct a search of her room and possessions. She learnt that the Defendant had dialed 999 and requested the Police to come to the flat and search her room.

11. She agreed to the search being conducted. One of the Police Officers found a $100 note hidden under her mattress.

12. The Defendant then matched the number on the note with a list of numbers he had prepared and said that the number on the note corresponded with one of the numbers on his list.

13. The Police Officers then arrested her and she was taken to Kwun Tong Police Station. At the Police Station she made a statement in which she denied that she had committed the theft.

14. On 10 February 2010 she appeared at the Kwun Tong Magistracy. She pleaded not guilty but after a trial she was convicted of theft. She was sentenced to 9 weeks imprisonment. Her application for bail pending the determination of an appeal against conviction was refused. She served 49 days in prison which took into account a discount for her good conduct.

15. Her appeal was heard by Madam Justice C.M. Beeson.

16. The Judge quashed the conviction on the grounds that it was unsafe and unsatisfactory. In her Reasons for Judgment the Judge was critical both of Mr. Lee, the Defendant, in this case and of the Magistrate who convicted the Plaintiff. She considered that the sentence which had been imposed was harsh and that in all the circumstances she should have been granted bail pending appeal.

17. On 27 May 2010 the Plaintiff attended at a Labour Tribunal and lodged a claim against the Defendant.

18. It is important to consider in detail the claim which the Plaintiff was making in the Labour Tribunal.

19. This being the case I produce an extract from P.11 onwards of the claim she submitted:

“7. On 8 September 2009, at about mid-night, the Defendant accused me again of stealing HK$200. He asked me how much money I had. I told him that I had only HK$2,320. I had received my wages on 2 September 2009. The wages had been paid to me after deduction of HK$50 for a strainer I had allegedly damaged. After returning the money I had borrowed in the first month from my friends, I had with me HK$2,320. The Defendant once again searched all my belongings. The Defendant told me that he had the serial numbers of the notes I had allegedly stolen. When I asked to see the serial numbers he said he had lost it. He said if I did not return HK$200 to him he would call the police. I had not stolen the money. I was innocent. So I told him that he could call the police. On that day he did not call the police. I became worried about the Defendant’s constant accusation and telephone a friend in my church, Shyla Astelero, and she advised me to write down the serial numbers of my own money. I followed her advice and wrote the serials numbers of the money in my wallet on a piece of paper that night, a copy of the list of the serial numbers is attached and marked Annex 2.

8. On 9 September, 2009, at about mid-night, the Defendant accused me once again of stealing HK$100. I showed him the serial numbers I had written of the money in my wallet. He then checked the money in my wallet and compared the serial numbers and they matched. He then continued to search in my room including the drawers where the clothes of one of his daughters were kept. He searched for about 30 minutes but did not find the alleged missing money. I then went to sleep. At about 2 a.m. I was awoken by the police in my room. They had been called by the Defendant. They told me that the Defendant’s wife would search my luggage. She did not find anything. Then the police searched only my bed and found a $100 bank-note between the mattress and the sheet on my bunk bed. I was surprised by this as I was not aware that it was there. The police crossed checked the serial number of the bank note with a list of serial numbers given by the Defendant to the police and it matched with one of the numbers. I was tried for the offence of theft in Kwun Tong Magistrate’s Court. I was convicted and was sentenced to 9 weeks imprisonment. I filed Appeal No. HCMA 213 of 2010 in the High Court of the Hong Kong SAR against the said conviction and applied for bail pending appeal but my application for bail was denied. Consequently my appeal was heard after I had completed my sentence which was reduced to 49 days for my good behavior.

9. In the said Appeal my conviction was quashed. However, as I had already served my sentence before the appeal was heard, grave injustice was done to me. In her Reasons for Judgment, Honourable Judge CM Beeson delivered a finding that there were “inherent improbabilities” in the case, which raised doubts and made my conviction unsafe and unsatisfactory. She considered that given the attitude adopted by the Defendant towards me, for example by his searches which showed little or no respect for my privacy, legal rights or convenience, “a frame-up could not be ruled out”. The Honourable Judge also stated in par.39 that “the evidence showed PW1 as somewhat obsessive in his insistence that thefts had occurred; that the Appellant was responsible for them and his remarkably feudal attitude to domestic staff raised the possibility at least that his personal animosity may have caused him to make false accusations”.

10. The Honourable Judge also questioned the Magistrate’s judge’s decision to deny my application for bail and commented that the sentence was too severe. The Honourable judge added that “the Appellant had been dealt with harshly and unfairly” because I had served my whole sentence before the appeal was heard. A copy of the “Reasons for Judgment” is attached and marked Annex 3.

11. Since my terminal dues had not been paid I filed a claim with the Labour Department. At the conciliation meeting on 22 April 2010 I was given a cheque for HK$1,935.30 by the Defendant towards my arrears of wages from 3rd to 9th September 2009, air-ticket and travelling allowance as partial settlement of my claims. However, I had not been able to cash the cheque because it is payable to account payee only and I do not have a bank account. I attempted to open an account but was unable to because I could not provide a proof of address as I am no longer employed and am staying in a shelter. Accordingly I am adding this to my claim and will return the cheque to the Defendant. A copy of the Partial settlement agreement and the cheque is attached and marked Annex 4 and 5 respectively.

12. In addition, in error I had not claimed for arrears of wages from 29 June 2009 to 1 July 2009 (3 days), which I now claim. I am also claiming for 17 days wages in lieu of notice, bus-fare to my place of origin, and damages for breach of trust and confidence by the Defendant for making false accusations against me.

13. My claim for damages for breach of trust is based on the principles of Bachicha v Poon (CACV 55 of 2000 court of Appeal, formerly DCCJ 1546 of 1999). Accordingly I am claiming for continuing financial losses calculated based on the wages I would have earned from the date I had been arrested for theft and continuing until this matter is settled.

14. I am advised that the High Court has recently held, finally resolving a previous conflict of authority, that the Labour Tribunal has jurisdiction to hear and determine all monetary claims falling within its jurisdiction, even if such claims should involve a claim for unliquidated damages (including general damages): see Samulde Ma Violeta Cabaya v Kwan So Han Sandy, HCLA 93/2003 (unreported), per Chung, J at paragraphs 35-37. A claim for a sum of money which arises from the breach of a term, whether express or implied, of a contract of employment falls within the exclusive jurisdiction conferred on the Labour Tribunal by paragraph 1(a) of the Schedule to the Labour Tribunal Ordinance, Cap 25.

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