Tam Ka v Lam Hung Kwong And Others

CourtCourt of Appeal (Hong Kong)
Judgment Date06 Jul 1999
Judgement NumberCACV75/1999
SubjectCivil Appeal
CACV000075/1999 TAM KA v. LAM HUNG KWONG AND OTHERS

CACV000075/1999

CACV 75/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 75 OF 1999

(ON APPEAL FROM HCA 4389 OF 1996)

BETWEEN
TAM KA Plaintiff
AND
LAM HUNG KWONG 1st Defendant
LAU PING 2nd Defendant
LAM KWOK CHEUNG 3rd Defendant

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Coram: Hon Mortimer V-P, Mayo and Leong JJA in Court

Date of Hearing: 6 July 1999

Date of Judgment: 6 July 1999

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J U D G M E N T

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Mortimer V-P:

1. This is a defendants' appeal against the order of Nguyen J on 4 February 1999 awarding the plaintiff $230,000 together with interest as a long service payment at the termination of his employment.

The background

2. The plaintiff was employed by the defendants for many years, from 15 March 1972 until 13 December 1995. The plaintiff was a cement worker. His final earnings were $660 per day. He claimed long service payment under the Employment Ordinance (Cap. 57).

3. There was a defendants' counterclaim below for overpaid wages but this was dismissed and there is no appeal.

4. The plaintiff's claim under the Ordinance turned upon one issue. This is accepted by both parties and was identified by the judge below. The issue is this: "Did the plaintiff resign from this employment, in which case no long service payment was due, or was he dismissed, in which case he was entitled on the judge's findings to his long service payment? There was no issue before us as to the amount.

5. The plaintiff was employed by the main decoration company. Originally that belonged to the 3rd defendant below. It was later handed over to the 2nd defendant, his wife, but was managed by the 1st defendant, his son. At the relevant time the plaintiff's duties were chiefly plastering and removing tiles. It appears that he was supervised and reported to the 1st defendant with whom he said he normally had a cordial relationship.

The evidence

6. The plaintiff's evidence below was summarised by the judge in these words:

"The 1st Defendant instructed him that in future he should charge time that he spent on purchasing materials to the account of Maxim's. He said that he refused. He explained to the 1st Defendant that he would not follow his instruction because he considered that he was employed by the Defendants and not Maxim's and it would be unreasonable to charge Maxim's. The 1st Defendant said three times 'Why not', so the Plaintiff took the cheque that he was given and left the office and resumed his duties. He did not resign. He went to the bank to cash the cheque. He said that to his mind what the 1st Defendant said amounted to cheating. He said that he then did two jobs on 11th December and one more job on 12th December and on 13th December, he was paged and informed to attend the office where he was given a letter by one of the secretaries. This is the letter which is at page 14 of the Agreed Bundle and which purported to say that the company had considered the resignation tendered by the Plaintiff on 11th December 1995 and accepted the resignation with effect from the day of the letter, 13th December 1995. Further on in his evidence, the Plaintiff clarified that what the 1st Defendant said on 11th December 1995 was that he said that if the Plaintiff bought materials for Maxim's, then the Plaintiff should charge Maxim's account"

That was the judge's summary of events which led to the plaintiff leaving the defendants' employment. He then summarised the defendants' evidence:

"The 1st Defendant gave evidence that on 11th December 1995, he asked the Plaintiff 'Where is the material you purchased on 1st December', he said that he told the Plaintiff that if the material he purchased was used in connection with a project at Maxim's, he should write it down, similarly Sun Tong Lok. The 1st Defendant said that the Plaintiff then said that the 1st Defendant was prejudiced against him, and he [the Plaintiff] had no explanation. D1 said he was persistent and asked the Plaintiff again. The Plaintiff replied in a loud voice 'Now I resign. You make calculation and give me my wages.' D1 said he should complete his work first and he [D1] then accepted the Plaintiff's resignation."

Having identified the evidence of the plaintiff and the 3rd defendant upon the issue whether the plaintiff resigned or was dismissed, the judge then set out the evidence of the two defence witnesses. Both gave evidence that they heard the exchange on 11 December between the plaintiff and the 3rd defendant; both testified that the plaintiff said that he would resign.

The finding below

7. The judge's finding on this issue is set out quite shortly. I repeat it because this is the focus of the appeal:

"The two witnesses called on behalf of the Defendants gave no evidence of...

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