MONTI MARY PAIS v. SHAILESH RAMESH KUWADEKAR

HCLA 65/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 65 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 403 OF 2004)

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D E C I S I O N

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1.  The Claimant had been employed by the Defendant as a domestic helper. The employment was terminated on 27 October 2003. The Defendant dismissed her with one month’s notice on the ground that she stole money from the Defendant. She lodged a claim in the Labour Tribunal for wages in lieu of notice, arrears of wages, annual leave pay and some other items.

2.  On 28 April 2004, the Presiding Officer dismissed the claim. The decision was upheld on review on 27 May 2004. The Claimant applied for leave to appeal on 1 June 2004.

3.  Section 32 of the Labour Tribunal Ordinance Cap.25 limits the cases where leave to appeal can be granted by the Court of First Instance. The permissible grounds are that the award is,

(a)	erroneous in point of law; or
(b)	outside the jurisdiction of the tribunal.

4.  Section 35(2) of the Ordinance expressly provides that on an appeal, the Court of First Instance may not reverse or vary any determination made by the Tribunal on questions of fact. In other words, the assessment as to the weight of the evidence and credibility of witnesses are matters for the Tribunal. The Court of First Instance cannot intervene.

5.  On the other hand, if a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law (see Cheng Yuen v. Royal Hong Kong Golf Club [1997] 2 HKC 426; Andayani v. Chan Oi Ling [2000] 4 HKC 233). However, the fact that the Tribunal preferred the evidence of one witness to that of another by itself does not come within these categories.

6.  In an application for leave to appeal, the court must ask itself whether the intended grounds of appeal are genuine grounds based on errors of law for which leave could be given. If a ground is dressed up as an error of law whilst in substance it was a challenge to a determination on questions of fact, leave to appeal could not and should not be granted.

7.  In the present case, the grounds put forward in the Application for leave to appeal filed by the Claimant were all directed towards question of weighing the evidence. In my judgment, they does not come within the exceptions set out in Paragraph 5 above and therefore do not constitute questions of law.

8.  For that reason, I was minded to dismiss the application on 11 October 2004. However, the Claimant advanced a further argument that a crucial witness Mr Fernandes was not called to give evidence despite her request. To enable her to advance that argument, I adjourned the matter to give her an opportunity to produce the relevant transcript to this court with directions for that purpose.

9.  She failed to comply with my directions. When the matter was brought up again on 13 December 2004, she explained that she had financial difficulties to get the transcript. Having considered her personal financial situation, I gave her another chance and directed that she be allowed to listen to the digital recording of the proceedings at the Tribunal free of charge to identify the relevant part of the proceedings. Upon her so doing, this court would obtain the necessary transcript. 

10.  Having listened to the digital recording, the Claimant wrote to this court on 3 January 2005 informing that she now accepted that she did not make the request. Hence, that ground is no longer sustainable.

11.  In that letter, the Claimant tried to advance other grounds. To a large extent, she set out her evidence in the letter. I must say that this is not appropriate. The purpose of an appeal, not to mention an application for leave to appeal, is not to rehear the case. The Ordinance expressly prohibits this court from receiving further evidence in dealing with an appeal from the Labour Tribunal. Hence, it is not the function of this court to go through the evidence again. Her evidence had been rejected by the Tribunal. Whilst I can understand why she hopes this court to reverse that decision, it is simply not open to this court to do so for reasons given above.

12.  Apart from that, the letter also made the point that the Claimant was unfamiliar with the English language and there was misunderstanding on her part at the review hearing that led to certain points not canvassed. On the English ability aspect, I noted that she was all along assisted by persons familiar with the English language in the proceedings at the Tribunal. I do not accept that there is sufficient reason to say that the Tribunal erred in law in this respect.

13.  As regards the other points which the Claimant said she had not canvassed during the review, judging from the grounds set out in her letter dated 25 May 2004 applying for review, I do not think those points would take her case further. The Defendant had already explained that he treated the Claimant leniently by not reporting to police and gave her one month’s notice instead of summary dismissal. That was accepted by the Presiding Officer.

14.  In relation to Mr Fernandes, the Presiding Officer did not take his statement into account due to the fact that he was not called as a witness. It was up to the Claimant, if she so wished, to call him as a witness. If she failed to do so, she could not blame the Tribunal. Even for proceedings in the Tribunal, a litigant should bear the primary responsibility in the preparation and procurement of evidence in support of her own case, see Tong Pun Chung v Top Express Engineering Ltd HCLA 71 of 2002, 21 October 2002; 鄧偉國 及 安威工程有限公司  HCLA 78 of 2002, 23 September 2003; 恆峰花園業主立案法團 對 洪一波  HCSA 70 of 2002, 20 October 2003; Chan Yee Man v Gold Dragon Limited trading as Club Paris HCLA 120 of 2003, 9 December 2003; 譚文江 對 Shek Ping Cheung Daniel HCLA 128 of 2003, 27 February 2004.  

15.  I therefore do not see any reasonably arguable grounds to support the appeal. The application is therefore dismissed.