ORTIZ GINALYN KILAPKILAP v. BO LI

HCLA 101/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 101 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 3306 OF 2004)

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D E C I S I O N

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1.  The Claimant lodged a claim in the Labour Tribunal suing her former employer for wages in lieu of notice, annual leave pay, air ticket and damages.  The Defendant counterclaimed wages in lieu of notice, annual leave pay and air ticket.  After trial, the Presiding Officer gave judgment in favour of the Claimant for annual leave pay and air ticket and judgment in favour of the Defendant in respect of wages in lieu of notice.  The other claims and counterclaims were dismissed.  The Claimant applied for leave to appeal against that award.

2.  The main dispute between the parties was about the circumstances leading to the termination of the Claimant’s employment.  The Presiding Officer preferred the evidence of the Defendant’s witness and rejected the evidence of the Claimant.  The Tribunal concluded that the Claimant left the employment on her own without giving proper notice to the employer.  In his Reasons for Decision of 10 September 2004, the Presiding Officer explained why he considered the evidence of the Claimant to be unreliable.

3.  The power of the Court of First Instance to grant leave to appeal is limited by Section 32 of the Labour Tribunal Ordinance and only errors in point of law or excess of jurisdiction could be entertained as permissible grounds of appeal.  The Court of First Instance cannot reverse or vary any determination by the Tribunal on question of facts (see Section 35(2) of the Ordinance).

4.  Having considered the lengthy document filed by the Claimant in support of her application and read the remarks of the Claimant at various parts of the transcript, I could not discern any valid grounds of appeal satisfying the requirement of Section 32.

5.  A large part of the Claimant’s document complaint about the Presiding Officer’s conduct of the trial.  She alleged the Presiding Officer to have harassed and intimidated her.  She was of the view that she had been subject to unequal treatment in the Tribunal and the Presiding Officer was biased.

6.  She also felt aggrieved about the fact the Presiding Officer had directed her to produce her passport and her telephone records on the night in question.  He refused her request to ask for passport and telephone records of the Defendant’s witness.

7.  The Claimant was also unhappy about the Presiding Officer’s handling of the question whether her friend Mr Mullally should be called as a witness.  She also alleged that the Presiding Officer refused to allow her to be assisted by Mr Mullally.

8.  A presiding officer is obliged under Section 20 (3) of the Labour Tribunal Ordinance to investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party.  Further, by reason of the fact that there is no legal representation in the Tribunal, a presiding officer has the unenviable task of taking the witnesses through their evidence.  Very often, in performing these tasks, a presiding officer has to be proactive and probe the parties about relevant matters.

9.  Unfortunately, it is very tempting for a losing party to refer to the performance of such tasks on showing that the presiding officer trying his case had been acting unfairly towards him.  But it is simply impossible for a presiding officer to distance himself from the conduct of the case when he is required to investigate.  Be that as it may, a presiding officer has to maintain his impartiality.  Whether he has cross the line in any particular case is a matter that has to be judged on the facts and background of each case.

10.  In the present case, based on the transcript, I am of view that the Presiding Officer had not overstepped the limit.  The questions he had asked and the documents he directed the Claimant to produce are relevant and I do not accept for a single moment that there had been any threats or harassment by the Presiding Officer.  In my judgment, the Presiding Officer conducted the trial properly and the way in which he performed his duty of investigation does not show any bias on his part.  There were good and valid reasons why he asked for the telephone records and passport from the Claimant but not from the Defendant’s witness.

11.  The remarks by the Presiding Officer about Mr Mullally were pertinent in the context of the Claimant’s claim for damages and there was nothing inappropriate.

12.  It is also within the Presiding Officer’s discretion to decide to what extent he would permit someone to assist the Claimant.  The Claimant has not demonstrated by reference to the transcript as to how and why the exercise of that discretion can said to be wrong in law.  The transcript also showed that the Claimant had no difficulty in presenting her case in the Tribunal.

13.  On the whole, there is no merit in the intended appeal and the application for leave is refused.