XCHRX LAU TSIM v. BRILLANT PLASTIC MANUFACTURING LTD.

HCLA 13/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 13 OF 1999

(On Appeal from Labour Tribunal Claim No. LBTC 5593/98)

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REASONS FOR JUDGMENT

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This is an application for leave to appeal against the decision of the Labour Tribunal made on 8th February 1999. The grounds on which the applicant desires to appeal are that the awards are erroneous in point of law in that: -

(1) The Claimant placed himself in a position incompatible with the faithful conduct of his duties in that he had during the employ of the Defendant and during the office hours of the Defendant been working for another company by the name of Sino Victory Industries Limited without the knowledge, consent or approval of the Defendant and accordingly, the Presiding Officer should as a matter of law have found that the Defendant was entitled to dismiss him summarily.

(2) In reaching her decision, the Presiding Officer has failed to give any or any sufficient regard to or give any or any sufficient weight to the evidence filed by the Defendant given by Wong Ho, who was engaged by Sino Victory Industries Limited, being a written statement in support of the Defendant's decision to summarily dismiss the Claimant notwithstanding the fact that the evidence had not been and had remained uncontradicted by the Claimant and that the claimant had not been cross-examined on the same.

(3) The Presiding Officer has failed to invoke her power under Section 10(2) of the Labour Tribunal Ordinance to decline jurisdiction and to transfer the claim to the High Court or the District Court for adjudication notwithstanding the request made by the Defendant by letters dated 29th January and 6th February 1999 and on the hearing on 8th February 1999 and that another Presiding Officer at much earlier hearings on 16th September 1998 and 29th October 1998 sitting at Court No. 9 had indicated that if the parties fail to reach a settlement, the case would be transferred to the High Court.

2. The first ground attacks the Tribunal's decision on whether an employee in given circumstances may be summarily dismissed. Such decision must involve findings of facts and interpretation of law. The applicant says that the decision is wrong because the fact is that when the employee was supposed to be working for the applicant he worked for another employer without the consent of the applicant. The crucial part of the Reasons for Decision given by the learned Presiding Officer is the penultimate paragraph. There, it is stated that the applicant as the defendant before the Tribunal failed to prove the allegations against the employee. According to the record, the only basis on which the applicant purported to dismiss the employee is this allegation of disloyalty. The Tribunal having found the allegation not proved, it was unnecessary to proceed to consider the law. In other words, this ground of appeal in reality relates to finding of fact only. Appeal does not lie against the Tribunal on question of fact. Leave to appeal on this ground must be refused.

3. The second ground is related to evidence. I cannot see any difference between failure "to give any or any sufficient regard to [a piece of evidence]" and failure "to give any weight or any sufficient weight to [a piece of evidence]". The penultimate paragraph of the Reasons for Decision by the Presiding Officer says that the witness Wong Ho whose written statement was placed before the Tribunal was not available for cross-examination and such evidence was found unreliable. The record shows that the applicant had been advised at a previous hearing to make this witness available for questioning at the trial. Trial was adjourned specifically to give the applicant the opportunity to produce the witness for cross-examination. At the adjourned trial, the applicant indicated that the witness would not be called. Had the learned Presiding Officer refused to admit the written statement as evidence, she would certainly have laid the Tribunal open to a challenge on rules of evidence. But she admitted it and considered it. It is unfair to charge the learned Presiding Officer with failing to give any regard to this piece of evidence. As to the question of how much regard or weight to give to a piece of evidence, it is inevitably a matter for the trial court. This ground of appeal does not raise any question of law. For this reason, leave must be refused. Moreover, since the witness was not available for questioning by the opposite side or by the Tribunal, I cannot see how any appellate court can fault the learned Presiding Officer for not placing any or more weight to the written statement of the witness.

4. The third ground is a complaint against the Tribunal for exercising its discretion against the applicant when another Presiding Officer had indicated at a call-over hearing that the case would be transferred to the District Court or the High Court if the parties would not come to a settlement. Now, in Bellenden v. Sattethwaite [1948] 1 All ER 3443 at 345, Asquith LJ said,

"It is of the essence of ... a [judicial] discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."

5. Lest it may be forgotten, in countless cases the courts have said that an exercise of discretion at first instance is inviolable in the absence of some error of principle. I, for myself at least, takes a dim view of parties who think that a superior court would flatter itself with being able to exercise a discretion better than a lower court who had first hand experience of and an overall view of all factors and circumstances affecting the matter in question. In this case, the applicant has not pointed to any principle, still less an error of that kind, for which an appellate court may be concerned. The indications of anther Presiding Officer are not even the sort of factor that the learned Presiding Officer who decided the case should have regard to. It is the trial Presiding Officer who was asked to exercise the discretion. She should exercise the discretion as she sees fit. Her colleague cannot and should not make the decision for her. Inevitably, leave to appeal on this ground must be denied too.

6. I should also add, in case it may be thought that the court turns a blind eye to an erroneous exercise of discretion, that the learned Presiding Officer has stated on record that she refused to transfer the case to the District Court or the High Court because it does not touch on complicated principles of law nor does it involve huge bundles of documents. The decision is in line with the decision in Hong Kong Jockey Club v. Tan Tak Yan [1984] HKC 187 cited by the applicant's representative for the Tribunal's consideration.

7. In summary, this application for leave to appeal is wholly unjustified. It is dismissed.