TONG PUN CHUNG AND OTHERS v. TOP EXPRESS ENGINEERING LTD

HCLA 71/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 71 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NOS.
LBTC 4383 OF 2001, 6411 OF 2001, 4417 OF 2001)

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D E C I S I O N

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1. This is an application for leave to appeal on point of law in respect of the decision of the Presiding Officer of the Labour Tribunal in LBTC 4383 of 2001, which was consolidated with LBTC 6411 of 2001 and 4417 of 2001. The application was made by the 1st Defendant who was sued in the capacity of a principal contractor in relation to certain building works. The case concerned 49 workers in the Labour Tribunal. However, this application only concerns 8 of them, viz C27 to C34. The claims of those eight Claimants were initially dismissed by the Presiding Officer on 21st February 2002. There was a review on the application of the Claimants in which further evidence were adduced. The Presiding Officer set aside his initial decision and made award in favour of these Claimants on 2nd May 2002. After that, the 1st Defendant applied for review and after hearing, the second review was dismissed on 25th July 2002.

2. On 1st August 2002, the 1st Defendant lodged the present application. On 17th September 2002, the 1st Defendant obtained a stay of execution from Master Ho pending this application.

3. The 1st Defendant was represented by Mr Dawes at the hearing before me on 10th October 2002. He placed before the court an amended version of the intended grounds of appeal. In view of my decision in Kiawchansaeng Renu v Ho Kim Kay Canny HCLA 78 of 2001, 21st January 2002, he quite rightly accepted that the original grounds set out in the Form 14 are not sustainable. I need to say no more about those grounds.

4. Three grounds were canvassed by Mr Dawes in his submissions. They are as follows:

(1) The Learned Presiding Officer erred in law in failing to make sufficient finding of facts so as to support a judgment against the 2nd Defendant. The relevant findings included, inter alia:

(i) Whether the Claimants were employees in respect of the work which the 2nd Defendant has contracted from the Appellant to perform;

(ii) The wages of the Claimants relate wholly to the work which the 2nd Defendant has contracted to perform and the place of employment is wholly on the site of the building works;

(iii) The date when the wages become due for the purpose of calculating the 2 months wages that the 2nd Defendant was alleged to be liable under Section 43(b) of the Employment Ordinance (Cap. 57) ("the Ordinance");

(iv) The work performed by the Claimants were within the meaning of Section 43A of the Ordinance; and

(v) The Claimants have complied with the Notice requirement under Section 43D of the Ordinance.

(2) The Learned Presiding Officer failed to investigate into a relevant matter, namely, authenticity of Exhibit C27-8 and C33-8.

(3) In holding that the status of C28 to 32 has been changed from independent contractors to employee, the presiding officer had in fact held that C27 had the authority to enter into employment contract for C28 to C32. The finding is clearly not supported by evidence.

5. On the first ground, liability was attached to the 1st Defendant by reason of Section 43C of the Ordinance. Mr Dawes was correct in pointing out that the Presiding Officer had to be satisfied with the matters set out in that ground before he could hold the 1st Defendant liable. However, I cannot agree with his criticism regarding the failure of the Presiding Officer in making the relevant finding of facts. In my judgment, reading the reasons for decision as a whole, it is quite clear that these matters were not controvertible. The 1st Defendant, as submitted by Mr Dawes, was simply not in a position to dispute the evidence of the Claimants. The Presiding Officer has actually alluded to these matters in reciting the background of the case and the respective stance of the parties in Paragraphs 2, 4, 5 and 6 of his Reasons for Decision. There was ample material before the Tribunal to justify this approach. Of course, the 1st Defendant is still entitled to require these matters to be proved. But as I said in my judgment in Siu Koon Fung v Shun Shing Construction & Engineering Co. Ltd., HCLA 1 of 2002, 5th July 2002, a Presiding Officer is quite entitled, in the exercise of his discretion in adopting a particular approach to resolve the disputes between the parties, to take into account of the stance of the parties and not to waste time on incontrovertible matters (see in particular Paragraphs 22 to 26 of my judgment). Looking the matter from this angle, I do not think the Presiding Officer could be criticized for focusing in his Reasons for Decision on the issue whether the Claimants were workers or independent contractors. I do not think he has overlooked the matters referred to by Mr Dawes although he did not find it necessary to go into great length in dealing with those matters.

6. Turning to the second ground, Mr Dawes relied on the duty of the Presiding Officer to investigate as explained by the court in Chan Suk Bing Angie v Harbour Phoenix Ltd. [1992] 2 HKC 459. The history of the proceedings and the transcript of the review hearings clearly showed that the Presiding Officer did investigate into the authenticity of Exhibit C27-8 and C33-8, including the recalling of a witness for that purpose. At the hearing before me, Mr Dawes accepted that but he argued that the investigation carried out by the Presiding Officer was inadequate. He submitted that given the importance of these documents, the Presiding Officer should have summonsed the maker of the same to give evidence.

7. One must not lose sight of the fact that although the law imposes a duty to investigate on the Presiding Officer, the manner in which the matter was to be investigated and the extent of investigation are left with the Presiding Officer. It is a matter of discretion and a Presiding Officer should exercise such discretion in the light of all relevant circumstances in the case before him or her. In the case of 謝林與陳德偉, HCLA 150 of 1995, Jerome Chan J gave some guidance as to how that discretion should be exercised. I have applied the same in my judgment in Siu Koon Fung (see Paragraph 23 of that judgment).

8. Coming back to the present case, whilst these exhibits are clearly of some importance, they were by no means the only evidence relied upon by the Claimants. C-33-8 was a time card for C33 in respect of his work and wage on 16 January 2001. It bears the initial of CW2 which has been confirmed by him (see transcript at Bundle p.148 H to L) in giving evidence at the second review. C27-8 was a note written on behalf of the 2nd Defendant proposing to employ C27 and his workers as workers of the 2nd Defendant from November 2000. CW2 confirmed at the second review that the person who signed the document was an employee of the 2nd Defendant (see p 151 of the Bundle). The Presiding Officer also made enquiry as to why these documents were not produced at the trial.

9. Since we are concerned with the exercise of discretion by the Presiding Officer, this court will not lightly interfere with the same. In the circumstances of the present case, I do not consider the fact that the Presiding Officer did not summon the maker of C27-8 to give evidence as a sufficient basis for holding that the exercise of discretion was wrong in principle, plainly wrong or otherwise justified intervention by this court. I think the observations of Jerome Chan J in sub-paragraph (5) in謝林與陳德偉 can be applied here. Given the matters set out in Paragraph 8 above, I do not agree that the investigations by the Presiding Officer were inadequate.

10. In respect of the third ground, as mentioned by me in the course of the hearing on 10th October 2002, it is not correct to say that there was a change of status from independent contractors to employees regarding C28 to C32. The evidence showed that prior to November 2000, they were workers of C27. After November, they became workers of the 2nd Defendant. Under Section 43C, they are protected in any event. Their entitlement did not depend upon whether C27 was an employee of the 2nd Defendant or an independent contractor. The Presiding Officer was wrong in dismissing their claims in the first place.

11. In the witness statements of C28 to C32, which were adopted as exhibits in the Tribunal, they said they were employees of the 2nd Defendant. Exhibit C27-8 showed that the 2nd Defendant had accepted them to be its employees. In my judgment, it is plain that there was sufficient evidence before the Presiding Officer to support his findings that they were the employees of the 2nd Defendant since November 2000. The third ground has no merit.

12. Hence, despite the submissions of Mr Dawes, I do not think there is any prospect of success in the intended appeal. I therefore dismiss the application. It also follows that the stay of execution ordered by Master Ho should be lifted. I also direct that C27 to C34 be notified that each of them is at liberty to seek payment out of the money paid into court pursuant to the order of Master Ho to the extent of his respective entitlement under the award of 2 May 2002.