EVER-BRILLIANT CONSTRUCTIONS CO. v. NG FUNG KWAN and Others

1996, No. 64

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL

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J U D G M E N T

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1. This is an appeal against the Award and Order dated 5 December 1995 of the Labour Tribunal in which the Appellant Company was ordered to pay a total of $114,000 to the Claimants as wages in lieu of notice and costs totalling $8,800. By this appeal the Appellant invites the court to exercise its powers under section 35(1)(c) of the Labour Tribunal Ordinance to set aside the order made by the learned Tribunal Officer and remit the case to the tribunal for a rehearing.

Background

2. The claim in this case was filed on 4 September 1995. No particulars of defence was filed by the Defendant. A Notice of Hearing was issued to the parties on 4 September 1995 for hearing on 26 September. On the date of the hearing the representative of the Defendant informed the Presiding Officer that the Defendant only received the Notice of Hearing one day before the scheduled court appearance. The Defendant was ordered to pay $120,000 as securities and hearing was set down for 14 November 1995. On representation by the Defendant that the company was not in a position to raise the requisite amount due to financial constraint, the sum was reduced to $60,000. The sum was never paid into court. The Defendant was absent at the hearing and the learned Presiding Officer proceeded to hear the case in the Defendant's absence and found for the Claimants. The Defendant applied to review the Tribunal's order and was informed that the Tribunal would only consider a review on condition that the Appellant paid into court the awarded sum which the Appellant had again failed to do so. The award and cost order made by the Presiding Officer is the subject matter of the present appeal.

Fresh Evidence

3. At the hearing before me the Appellant sought to rely on the affirmations by Madam Li Lai Fong and Mr Ma Wah Kin who were respectively the executive secretary and the sole proprietor of the Appellant. The affirmations contained evidence which was not before the Tribunal at the hearing. Under section 35(2)(b)(i) and (ii) it is clearly stated that an appellate court may not vary any determination made by the Tribunal on question of fact or receive further evidence in an appeal. Having the provisions of that section in mind I had therefore refused leave to the Appellant to rely on the affirmations.

The Grounds of Appeal

4. The grounds of appeal can be summarised as follows : first, the Presiding Officer wasultra vires in ordering security as a pre-condition for the Defendant to defend; second, no or no sufficient inquiries had been made by the Presiding Officer before he made the order; third, the hearing on 14 November was irregular in that the Tribunal Officer had failed to consider the particulars of defence filed by the Defendant; fourth, the Defendant had been wrongly deprived of its right to be heard.

Ultra Vires

5. On the first ground of ultra vires, the Presiding Officer does have a right to order security under section 30 of the Ordinance if the conditions set out in the section are met. Those conditions are: when the Presiding Officer grants an adjournment; he is of the opinion that the adjournment may result in prejudice to a party and the prejudice is due to the disposal or loss of assets by the Defendant.

6. The second ground of appeal is the natural development of the first ground : the Appellant contends that no inquires were made to ensure the conditions listed above were satisfied before the order for security was made and the reasons for imposing the order was not recorded in the notes of proceedings. On 26 September 1995 the representative of the Defendant Madam Li Lai Fong was recorded to have said :-

" We receive the Notice late. We are not the employer of the Claimant (Ng Fung Kwan was the employer Sub-contractor).

We would not pay a cent."

7. I have no doubt that in making the order as he did the Presiding Officer must have considered the reasons advanced before him by Madam Li and having done so he was satisfied that there was a risk of the Claimants being prejudiced by the adjournment sought. I note in particular that the Notice of Hearing was delivered by recorded delivery on 8 September 1995. What the Defendant said about not receiving the Notice until the day before the hearing could be construed by the Presiding Officer as an deliberate attempt to delay the proceedings and hence to avoid the legal consequences of the claim. The absence of any such reasons in the Notes of Proceedings in this particular case dose not entitle the Appellant to succeed in this appeal for the reasons for making the order are apparent in the records of the Tribunal. Having said that I think it must be right that should the Tribunal decide to invoke the power to order security under the section, not only is it good practice but the Tribunal is under a duty in law to state and record it reasons.

Was the hearing on 14 November irregular?

8. The Defendant company was not present at the hearing on 14 November. By virtue of section 21 of the Labour Tribunal Ordinance, the Presiding Officer proceeded to hear the case in the absence of the Defendant at the end of which she found the claim proved and made the Award and ordered cost against the Defendant. It is clear from the wording of the section that she could make the award if she was satisfied that the claim was proved. It is not a case where judgment was entered in default without a hearing on the merits of the claim. The position would be very different if the Award was made to penalise the Defendant for not able to put up the security as ordered. The case of Cheung For t/a Sheung Mei Knitting & Garment Factory v. Tsoi Lai hung & Ors. [1988] HKC 768 and Chong Hong Yue v. Poon Lai King [1989] 2 HKC 455 refers.

9. In her judgement the Tribunal Officer observed :-

" As the Defendant was absent at the trial there was no evidence to contradict the Claimants' evidence."

From the reasons stated above the Appellant argues that the Tribunal Officer had failed to consider the Appellant's case as pleaded in the particulars of defence and the witness statements. Suffice for me to say that there was neither oral nor documentary evidence coming from the Defendant to support its or to contradict the Claimants' case at the hearing the learned Tribunal Officer was entitled to come to the conclusion as stated in her reasons. I cannot see that this could be a valid ground for complaint.

10. For the reasons stated above I find that there are no merits in the grounds advanced by the Appellant and the appeal is dismissed with costs.