CENTURY CITY HOLDINGS LIMITED v. SIU, TAT YIN EDDIE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Labour Tribunal Appeal No.16/94)

(Claim No.E3474/93)
(By Counter Claim No.E3642/93)

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J U D G M E N T

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1. This is an appeal from the Labour Tribunal. On 22nd December 1993 the learned Presiding Officer decided that appellant employer company could not be represented by one Miss Sally Ty. Miss Ty is a qualified solicitor holding a practising certificate but she was not in private practice. She was employed by the appellant as an in-house counsel. The learned Presiding Officer relied on s.23(2) of the Labour Tribunal Ordinance Cap.25. Section 23(2) provided that :-

"No barrister or solicitor, unless acting on his own behalf as a claimant or defendant, shall have a right of audience before the Tribunal."

2. However Miss Ty in the court below submitted to the Presiding Officer that s.23(1) of the Ordinance expressly provided :-

"(1) The following person shall have a right of audience before the tribunal :-

'(d) An officer or servant of an unincorporated or incorporated company or a member of a partnership, if the company or partnership is a party.'"

The appellant is a limited company incorporated in Hong Kong. Miss Ty is a salaried employee of the appellant. The appellant is a party to the proceedings before the Tribunal : in E3474, the defendant, and in E3642, the claimant. These two cases were heard at the same time. The Presiding Officer took the view that s.23(1)(d) is subject to s.23(2). This sub-section (1) is not expressly provided to be subject to sub-section (2).

3. There are quite a number of sub-sections in the Labour Tribunal Ordinance which are expressly provided to be subject to another sub-section. Mr Horace Wong for the appellant has summarised them as follows :-

"(a) Section 4(2) which is subject to s.4(3);

(b) Section 9(1) which is subject to s.9(2);

(c) Section 11(2) which is subject to s.11(3);

(d) Section 11(4) which is subject to s.11(5);

(e) Section 25(1) which is subject to s.25(2);

(f) Section 28(1) which is subject to s.28(2)."

4. In other words, the legislature has been using consistent language or explicit expression where it is intended that an earlier provision is to be construed as subordinate or subject to a subsequent provision. I accept Mr Wong's submission that in the case of s.23, the very fact that sub-section (1) is not expressly said to be subject to sub-section (2), is clear indication that the legislature did not intend that to be the case. It has been said in Halsbury's Law of England, Vol.44 at para.873 :-

"Where in the same statute, and in relation to the same subject matter, different words are used, there is a presumption that the alteration has been made intentionally."

I accept Mr Wong's submission that the omission to use the words "subject to" in s.23(1)(d) must be intentional.

5. Section 23(2) is intended to prevent a barrister or solicitor from having a right of audience when he is acting for a lay client or client. The sub-section is enacted with a view to prevent professional legal representation from being engaged in Labour Tribunal proceedings. However, it is not the case when a person, who is not practising as a barrister or solicitor, is acting on his own behalf or for his own employer. In the present case, Miss Ty is qualified as a servant of the company. Similarly, it would be the case if a solicitor or barrister is an officer of an unincorporated or incorporated company, or a member of a partnership if the company or partnership is a party to the proceedings in the Labour Tribunal. In other words, if a solicitor or barrister is not practising as such but appearing as any of those persons as provided in s.23(1)(d), he would be entitled to the usual right of audience in the Tribunal. The question whether a person acts as a solicitor or barrister is a simple question of fact as decided in the recent case of City West Investment Ltd. v. The Hong Kong Bar Association, Civ. App.29 of 1994, 11th March 1994 per Litton, Bokhary, JJ.A. and Mayo, J. I do accept Miss Ty was not acting as a solicitor but an employee of the appellant.

6. From the notes of proceedings in the court below, I can see that the learned Presiding Officer was very concerned that should Miss Ty be entitled to represent her employer, it would be unfair to the claimant since the claimant himself is not a qualified lawyer. Apparently, the learned Presiding Officer was over zealous in making the ruling, as an endeavour to protect the employee. However, it should be remembered that the company has the same right as any other person when it saw fit to employ an in-house lawyer to protect its legal interests in all matters. Should the learned Presiding Officer consider that the matter involved some complications or the employee would be at a disadvantage in not being able to deal with the matter himself as against a qualified lawyer, he could always transfer the case to the District Court so that the employee could either (a) instruct his own solicitor; or (b) apply for Legal Aid. With the recently revised means test of the Legal Aid Ordinance, most employees would be entitled to ask for the assistance of legal aid should such a situation arise.

7. Accordingly this appeal is allowed. The 2 cases are remitted to the Labour Tribunal for trial with the direction that Miss Ty or any other officer or employee of the appellant shall have the right of audience to represent the appellant whether or not he or she is a solicitor or barrister. In the interest of justice the trial shall be conducted before another Presiding Officer. Mr Wong has fairly accepted that the ruling of the Presiding Officer was not made upon the application of the employee. He simply took no part in this matter. Mr Wong accepted that the proper costs order should be no order as to costs. Accordingly there shall be no order as to costs.