XCHRX LADERA, DELIA C v. TSAI MENG CHEN

HCLA 80/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. HCLA 80 OF 1999

(ON APPEAL FROM LBTC 1923/1999)

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REASONS FOR DECISION

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The applicant claimed before the Labour Tribunal for, inter alia, wages in lieu of notice of dismissal and damages for constructive dismissal. All the other claims were adjudged successful on admission by the respondent employer of liability and quantum but the two said items were dismissed.

2. The applicant sought leave to appeal on the following grounds:-

1.	The tribunal erred in failing to apply section 10 of the Employment Ordinance in light of evidence before the tribunal.
2.	Such other grounds as may be disclosed by notes of proceedings when obtained.

At the hearing before me, the applicant put in two pages of written submissions suggesting points of law for appeal.

3. The issues before the tribunal and the decision of the learned presiding officer are encapsulated in this verbation extract from his Reasons for Decision:-

" The issue in this case was basically a question of credibility. After hearing the evidence, I found the Defendant and her witness to be truthful and reliable witnesses. I did not believe the Claimant and her witnesses. The Claimant's version of the Defendant's 10 years old daughter hit her with a golf stick and how the Claimant sustained her injuries were incredible. I have carefully examined the building Plan (D7), photos (D8), I also found incredible that CW3 could see what happened from her room at an angle through the toilet into Defendant's living room. I did not believe Defendant's called CW3 and told her she would dismissed the Claimant.

I did not doubt the evidence of the Defendant particularly that she was assaulted and struggled with the Claimant, which was corroborated by the medical finding (Exh. D6), on 2/1/99 one day after the incident. I believed the evidence of DW2, she is an independent witness, she did not know the Claimant or the Defendant before they both approached her agency. In respect of Claimant's claim for damages on constructive dismissal. I have considered the authorities submitted by the Claimant. De Ricolas, Nerita Ciertos v. Lee Fung Lau L.T.A. No. 15 of 97, Panalpina (H.K.) Ltd. v. Ulrich Haldernano (83) HKLR 275."

4. According to the applicant's written submissions, neither party at the time of the dispute was capable of forming binding legal intention to terminate the contract. Moreover, the learned presiding officer did not consider the question that the applicant was assaulted by the employer. And, the Tribunal should not have placed reliance on the evidence of DW2 who had no direct knowledge. Finally, it is said that the Tribunal wrongly rejected the claim for constructive dismissal.

5. As I understand it, the learned presiding officer believed the employer's evidence that the applicant assaulted the employer and the employer's daughter. He did not believe the applicant's evidence that it was the employer who assaulted the applicant. On such finding of fact which an appellate court has no cause to disturb, there is a clear case for summary dismissal. When summary dismissal is justified, of course the applicant is not entitled to wages in lieu of notice of dismissal or damages for constructive dismissal. There is absolutely no relevant question of law for appeal. The application was wholly misconceived. Leave to appeal was refused.