HO LIT KEUNG v. GUARDIAN PROPERTY MANAGEMENT LTD

HCLA126/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LABOUR TRIBUNAL APPEAL NO. 126 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 5799 OF 2004)

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J U D G M E N T

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1.  This is a Labour Tribunal Appeal.  The claimant used to be employed by the respondent as a caretaker.  On 14 April 2004 he had a dispute with a fellow caretaker, Chan.  Chan was injured in the incident.  Chan accused the claimant of having struck him on the head with a clocking machine thereby causing Chan injury.  The claimant denied and said that Chan had injured himself by bumping his head against the wall or the door.  Chan then framed him up for an assault.

2.  Chan said that they had a dispute in the lobby of the building.  He then went into the management office.  He heard that the claimant was following him and was still mumbling about him.  He then turned his head and, at this time, the claimant used a clocking machine to strike Chan’s head.  The claimant had the clocking machine because he was about to inspect the building and he needed the machine to make records of the times of inspection at different places.

3.  The claimant was dismissed by the respondent for misconduct in this incident.  He was also prosecuted in Eastern Magistracy but was acquitted.  He then sued the respondent for wages in lieu of notice and long service payment.  His claim was, however, dismissed by the presiding officer who accepted Chan’s evidence. 

4.  He applied before Yam, J for leave to appeal.  He told the learned judge that there was a CCTV camera installed in the lobby of the building which could film the inside of the management office through a small window.  He also told the learned judge that the video as filmed by the CCTV camera had some 10-odd seconds of the material period blanked out.  He also said that he was acquitted in the magistracy because the video was shown to the magistrate.  The learned judge, on the basis these allegations, considered that the presiding officer should have investigated the matter by watching the video and granted leave to appeal on the ground that the presiding officer had failed to carry out this investigation pursuant to section 20(3) of the Labour Tribunal Ordinance.

5.  The respondent then applied on 10 January 2006 for leave to adduce fresh evidence on appeal.  The respondent wanted to show the video on appeal to demonstrate that the CCTV camera could not have filmed anything meaningful inside the management office and that there was no blanking out of any part of the videotape during the material period.

6.  I made an order on that occasion that the videotape be admitted de bene esse for the purpose of verifying the factual accuracy of the allegation which formed the basis of the ground of appeal.  I did not allow the videotape to be admitted as fresh evidence on the appeal.

7.  Section 35(2) of the said Ordinance provides:

“	(2)	On an appeal for which it has granted leave under section 32, the Court of First Instance may-
		(a)	draw any inference of fact; and
		(b)	make such order as to costs and expenses as it thinks fit,
		but may not-
		(i)	reverse or vary any determination made by the tribunal on questions of fact; or
		(ii)	receive further evidence.”

8.  Tang, JA said in Sun Min v. Hong Kong Ming Wah Shipping Co. Ltd. [2005] 1 HKC381 at 386F said:

“Secondly, s 35(2) of the Labour Tribunal Ordinance (Cap 25) provides that the Court of First Instance may not ‘receive further evidence’.  It may be that if an appeal is on the ground that the Presiding Officer ought to have investigated into a matter, it is possible for evidence to be admitted to show that had the proper investigation been done, the result of the further investigation would have made a difference to the outcome.  Outside this limited purpose, we do not believe further evidence can be received.”

9.  However, if there is any other way to deal with such ground of appeal without receiving fresh evidence on appeal, I would opt for such way.  In making the order aforesaid, I intended to watch the video before proceeding to hearing the appeal.  I wanted to ascertain if the allegations made by the claimant to Yam J were factually correct.  If so, I would proceed to hear the appeal and consider if this ground of appeal has merit and whether the claim should be remitted back to the Tribunal for retrial.  If the videotape should fail to show anything material and there is no blanking out of any part of the material period, then the ground of appeal would have no factual basis.  I would then proceed to hear the appeal but would pay no regard to the ground of appeal.  In either case, I would not watch the video for the purpose of deciding the appeal.  Such an approach may sound artificial, but technically, I would not offend section 35(2).

10.  This morning before I had watched the video, Mr Vaughan for the claimant confirmed to me that the video could show nothing that was discernible and there was no blanking out of the video during the material period. 

11.  Mr Vaughan, however, submitted that the video showed that it was the claimant, and not Chan, who had entered into the management office first and he was followed by Chan.  Chan’s evidence on this was thus incorrect and so was the presiding officer’s finding on this point.  He further submitted that this was a matter that affected Chan’s credibility and I should therefore hold that the ground of appeal was proper and I should proceed to hold in the appeal that the presiding officer should have investigated the matter by looking at the video.  I do not agree with him. 

12.  The order or sequence of entry into the management office was not a material fact for the presiding officer’s decision.  Even if the presiding officer had made an error on this and Chan’s evidence on this was incorrect, I do not think this had a material effect on the crucial finding that it was the claimant who had struck Chan on his head with the clocking machine.  Whoever might have gone into the management office first, the incident could have happened just in the same way.  I would not consider this matter material for the ultimate decision, nor would I hold that this mistake in Chan’s evidence would have a bearing on his credibility. 

13.  Since the videotape cannot show anything meaningful that had happened inside the management office and there was no blanking out during the material period, I hold that the allegations made by the claimant to Yam J, which operated as the factual basis for the ground appeal, are factually incorrect.  I therefore proceed to hear the appeal but will not consider this ground of appeal. 

14.  There being no other ground of appeal, I dismiss the appeal right away.  I order the claimant to pay the respondent the costs of this appeal.  I also dismiss the summons issued by the claimant on 13 January 2006 with costs against the claimant.  I also order that the claimant’s own costs be taxed in accordance with the Legal Aid Regulations.