LEE KAM CHAN v. LONGWOOD INDUSTRIES LTD.

1996 L.T.A. No. 103

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. The history of this case is set out in the judgment which I delivered on 27th November 1996. Since then, the Defendant has applied for an extension of time for applying for leave to appeal. On 12th December, the Registrar granted the Defendant an extension of time for applying for leave to appeal.

2. For the reasons given in my judgment, I grant the Defendant leave to appeal against the award made by the Presiding Officer in favour of the Claimant, I allow the appeal, I set aside the award made by the Presiding Officer, and I direct that the Claimant's claim be remitted to the Labour Tribunal for determination of the question whether the Defendant was entitled to dismiss the Claimant without notice by reason of section 9 of the Employment Ordinance (Cap. 57).

3. I see no reason why the remitted hearing should not take place before Ms. Maggie Poon. The case can properly be described, I think, as part-heard, and there is nothing to suggest that Ms. Poon might unconsciously be tempted to decide the only outstanding issue in the case in such a way as leaves her original award intact. The remission of the case to another Presiding Officer would not necessarily have enabled the Defendant to relitigate the issues as to (a) the length of the notice to which the Claimant was contractually entitled, and (b) the length of the notice which the Claimant actually received. That is because I could have remitted the case with a direction which prevents the Defendant from relitigating them. However, although I give that direction, it is still simpler for the case to be remitted to Ms. Poon in the light of her previous knowledge of the case. Since I have been told that Ms. Poon is now sitting as a magistrate, and since it may therefore be difficult for a date for the hearing before her to be arranged quickly, I shall add the words "if practicable" to the order which I propose to make. But even if the hearing has to take place before a different Presiding Officer, the only issue which remains to be decided is the issue as to whether the Defendant was entitled to dismiss the Claimant without notice.