LEUNG WING YIU v. TECH-FLO ELECTRONICS LTD.

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 1 OF 1992

(Claim No. ST - 917/91)

____________________

 ____________________



_______________

J U D G M E N T

_______________



Until mid-September 1991 the appellant Mr. Leung worked for the respondent company as a salesman. He was paid a monthly salary and was, in addition, entitled to commission for sales over a certain specified level. He started to work for the company in 1987. In 1990 the commission payable was modified whereby he received 1% commission in respect of such sales effected by him exceeding 50 times his monthly salary. In August 1991 he went to Canada. His evidence was that on his return he was dismissed. In any event, he stopped working for the company on 15th September 1991.

2. In late 1991, Mr. Leung instituted proceedings before the Labour Tribunal. He brought claims for double pay and for outstanding commission. He withdrew the claim for double pay. He gave evidence before the tribunal on 4th December and 16th December 1991. He produced a number of documents containing particulars of sales volumes for the months of February to July 1991 inclusive. He told the Tribunal that "the particulars of sales for August and September 1991 are in the possession of the defendant company". In the course of the hearing various documents were referred to by the claimant Mr. Leung. They were marked either with the letter 'C' or the letters 'PD' the latter denoting provisional production of the company's documents. But the company declined to give evidence, so that the 'PD' documents were not produced by the company in the course of any oral evidence.

3. On 16th January 1992, the presiding officer announced his decision. He accepted the evidence of the claimant, found that the contractual quota governing commissions was 50 times the claimant's basic monthly salary and that the rate was 1% on the sales volumes above that quota. He gave judgment for the claimant in the sum of $15,054 for the period February to July 1991. The claims for commission for the months of August and September 1991 were, however, dismissed. It is against that dismissal that this appeal lies.

4. The appellant immediately expressed his views about this to the tribunal. He pointed out that the particulars of sales were with the defendant company. The presiding officer said to him that the defendant company had elected not to give evidence, and that "there is no documentary evidence to support the particulars of commission for August and September, PD9 is not formally produced as evidence". PD9 is the company's record of the appellant's sales for the month of August 1991. No documents at all appear to have been produced by either party relating to September sales.

5. On 7th January 1991, Mr. Leung appeared again before the presiding officer. He sought a review of the decision relating to commission for August and September. He told the tribunal that he had documents to support his claim, that he had been in possession of them during the earlier hearing but that he had not produced them because he thought that they were not official records. There then followed a discussion between the presiding officer and Mr. Leung, during which the presiding officer suggested that Mr. Leung had "difficulty in your case because you should have produced the relevant documents for the commissions in August and September during the trial. But you did not. I may dismiss your application. But I don't know yet. You may wish to withdraw your application. But if you want to proceed with your application for review, I will now hear your application formally and put down your application into writing". Mr. Leung withdrew his application for review. But he came back the same morning asking to restore the application. He was told that he had withdrawn it. He then said he would appeal.

6. Mr. Leung now appeals. His grounds of appeal are that the presiding officer made his decision "before the respondent [company] was able to produce the complete information" and that the "presiding officer failed to exercise his valid/effective power to ask the respondent to produce the relevant information".

7. I have before me a judgment by the presiding officer dated 12th February 1992. He says that the appellant did not adduce any documentary evidence of the transactions for August and September, and had told the tribunal that the particulars of those sales were in the company's possession. "It is apparent that without such particulars he would not be able to calculate accurately the commissions payable to him. The claim for commissions for August and September 1991, in the approximate sum of $3,000 unsupported by any documentary evidence in respect of the sale transactions thereof, was therefore dismissed. The only document relating to the sales volumes in August 1991 is provisional exhibit D9. But this is a document which belonged to the Respondent. Since the Respondent did not give evidence, this provisional exhibit was not produced as the formal exhibit, and the tribunal is precluded from considering it as a piece of evidence".

8. In addressing the history of the application for a review, the presiding officer said:

"It would have been very difficulty for the Applicant to lay as the basis for review that the tribunal had failed to exercise its power to order the Respondent to produce relevant evidence relating to the said commissions, as asserted in the Grounds of Appeal, because it would be affront to common sense that the applicant accused the tribunal of failing to exercise such power when he had the relevant documents (which he had not produced as exhibits during trial) and which, if produced, would have rendered unnecessary for the tribunal from exercising the said power, if it did have such power in the circumstances of the case".

9. The presiding officer then addressed section 20 of the Labour tribunal Ordinance. That section provides as follow:

"(1) The hearing of the claim shall be conducted in an informal manner.

(2) The presiding officer may subpoena witnesses, order the production of the any document, record, book of account or other exhibit and put to a party or witness such questions as he may think fit.

(3) The presiding officer shall investigate any matters which he may consider relevant to the claim whether or not it has been raised by a party."

10. The presiding officer in his judgment concluded that:

".... section 20 does not abrogate or abolish the right of a defendant to remain silent. It would require clear words in the statute to have such effect, and there is no such wording in section 20. Therefore the tribunal could not order the respondent to produce any document because to do so would have the effect of forcing the respondent to give evidence, in breach of their right. Similarly section 27 does not have the effect of abolishing the defendant's right to elect not to give evidence. That section provides: (1) The tribunal may at any time during the hearing of a claim allow a witness or a party to give evidence on oath or unsworn; (2) the rules of evidence shall not apply to proceedings in the tribunal, which may receive any evidence which it considers relevant."

In my judgment, the presiding officer has fallen into error. First, it was not accurate for him to conclude that there was no documentary support for sales in August and September 1991. There was none as to September but there was as to August. PD9 was referred to by the appellant in his evidence. The figures on it were examined by the appellant and the record shows that he said to the tribunal:

"I look at the sales volumes for June, July and August 1991. They are correct, save the followings".

He then qualified the calculation made in respect of the August figures. The fact that the document was not formally produced by the company seems to me to be neither here nor there. The proceedings are intended to be informal and the rules of evidence are expressed not to apply. The appellant gave evidence about the document, and the presiding officer should have acted on it, if he accepted that evidence.

Nor do I understand the reference to the right of silence in the context of production of relevant documents in proceedings before the Labour tribunal. There is reference in s.14 (5) of the Ordinance to the right of any person interviewed by a tribunal officer not to make a statement or answer a question, but that officer is entitled to "require any person to produce any records or other documents which should the tribunal officer may reasonably consider to be relevant to the claim" and by section 20 of the Ordinance, the presiding officer "may order the production of any document .... as he may think fit".

The fact that a party to a Labour tribunal hearing chooses not to call evidence does not in my judgment derogate from the power of the tribunal to call for all relevant documentation. The tribunal is expected to be proactive in this regard, especially since the Ordinance does not make provision for a system of discovery only upon application by the parties. When to order the production of documents, and what documents to call for will, of course, depend on the case. In a case such as the present where central documents are in the possession of one party their production should be ordered. The fact that the employee has his own personal record does not detract from the desirability of seeing the company's record of sales. The presiding officer's approach is that the tribunal is precluded from acting on a document not formally produced by one side (even though addressed in evidence by the other) and also from ordering production of documents by one party (for to do so would abrogate a right of silence). If that were a correct approach many a claimant's case could not get off the ground. In this particular case had not the claimant been in the possession of his own calculation, it would have followed that no commission could have been recovered. By the very nature of the relationship, employers are likely to have the relevant documents, employees not. In such circumstances, the employer should produce the documents. That is what s.20 is there for. I can readily understand an employee thinking that his own personal record will be regarded as no substitute for the company's record, and therefore not producing his own record. The appellant informed me that at some stage the respondent company was ordered to produce documents. If that included the records relating to September and these were produced, then the presiding officer was not precluded from acting on them. If their production was not ordered, then I think that there should have been such an order.

11. At today's hearing, the appellant appeared in person. The respondent did not appear and was not represented. My clerk, on my instructions, telephoned the respondent company this afternoon and was told that no one from the respondent company was to attend this hearing. Solicitors previously acting for the respondent have come off the record. They had asked for a copy of the notes of proceedings which were provided. Mr. Leung did not have the advantage of those notes today, but wished to press ahead with the hearing anyway. I have, of course, a copy of the notes of proceedings and of the judgment and have read these.

12. For the reasons I have given, this appeal is allowed. It is not open to this court in this appellate jurisdiction to receive further evidence either form Mr. Leung (who offered to show me his personal record of the August and September figures) or from the company. It might have been open to me to make a determination in relation to the commission due for August 1991 based on the company's figures and on the appellant's evidence before the tribunal about them. But there is no express finding in relation to the appellant's evidence qualifying his acceptance of the August figures and it is not entirely clear whether the comment by the presiding officer at p.21 of the notes of proceedings, namely, "I accept evidence of claimant" means that every bit of his evidence was accepted or whether that relates only to the evidence about the basis agreed for commission.  Be that as it may, there was no evidence at all adduced in relation to the September commission.

13. In the circumstances, I allow this appeal and set aside that part of the tribunal's determination by which the claims for commission for August and September 1991 were dismissed. I remit the case to the tribunal with directions:

(1) that the presiding officer reopen the proceedings for the purpose of determining the commission due, if any, from the respondent company, to the appellant for the months of August and September 1991;

(2) for that purpose, that the presiding officer order production by the company and the appellant of any documentation relevant to that determination, giving liberty to both parties to give evidence or further evidence in relation to the issue of commission due for August and September 1991; and

(3) that the presiding officer treat as admissible the evidence already given by the appellant concerning sales volumes for August 1991, and in particular concerning the document marked PD9.

14. I shall now hear what the appellant has to say, if anything, about the costs of this appeal.

[Submission]

15. The appellant asks for costs of this appeal. He asks for compensation for loss of salary for he says he is a part-time worker. It is not for me to determine what costs are allowable. However, in my judgment, the appellant should have his costs of this appeal. How much if anything is allowable is not for me to determine. The respondent is to pay the appellant's costs of this appeal, to be taxed if not agreed.





