LE THI BICH THUY KITTY v. SHERATON INTERNATIONAL (HK) LTD t/a SHERATON HONG KONG HOTEL & TOWERS

HCLA 34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 34 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. LBTC 8949/2003)

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R E A S O N S  F O R  D E C I S I O N

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1. The Defendant in Labour Tribunal Case No. LBTC 8949 of 2003 sought leave to appeal against an award of the Tribunal dated 27 February 2004. After hearing counsel for the Defendant on 27 May 2004, I refused leave in respect of all but one of the intended grounds of appeal. I granted leave for one ground only and that ground is only relevant to the award of Terminal Payment in the sum of $1,483.10. I therefore ordered that the Claimant be at liberty to collect the balance of the award from the Labour Tribunal. I now give reasons for my decision.

2. The original grounds put forward in Form 14 dated 24 March 2004 are wholly unarguable and did not set out any proper grounds of appeal in accordance with Section 32 of the Labour Tribunal Ordinance, see Kiawchansaeng, Renu v Ho Kim Kay Canny, HCLA 78 of 2001. The Defendant should count itself as fortunate to get an extension of time by lodging an application for leave with such flimsy grounds. I venture to suggest that in the future, the Registrar can be more stringent in rejecting applications for extension of time when the putative appellants could not even put forward any proper grounds of appeal. As in the case of an application for leave to appeal out of time, merit of the intended application should be a relevant consideration even at the stage of application for extension of time.

3. Counsel for the Defendant submitted a set of Substituted Grounds of Appeal on 25 May 2004. Bearing in mind that the hearing was on 27 May 2004, 26 May 2004 was a holiday, and that the Substituted Grounds of Appeal were essentially new grounds that have not been set out in the Form 14, and they were further elaborated in a 11-pages written submissions, I think these documents should have been submitted much earlier. The difficulty to this court is compounded by the fact that a number of cases were cited in the written submissions and the bundle of authorities consisted of 11 items. Given that the date of hearing was fixed as early as 25 March 2004, there is no good reason why preparation could not have been done earlier.

4. Given the proactive role played by the court in modern case management, the court should be given reasonable time to read the necessary material. Practitioners should not assume that the court have nothing else to do on the day before the hearing date. Papers filed or submitted at last minute inevitably cause difficulties to the court in the preparation for hearing. Speaking for my part, I urge practitioners to bear these comments in mind and to be more considerate in terms of filing or submitting documents, skeleton submissions or authorities in a timely manner. Practice Direction 5.5 only sets out the minimum standard and lawyers should be able to use their common sense to assess how much in advance should the papers be filed in order to enable the court to read the material properly. In such an assessment, practitioners should also bear in mind that nowadays, the court has a heavy caseload and there were sittings every day.

5. In the future, should this court find that there were insufficient time to prepare for the hearing properly due to the delay in terms of filing, the matter may have to be adjourned with costs being borne by the parties or lawyers responsible for the late filing or submission.

6. Coming back to the four substituted grounds of appeal put forward by counsel for the Defendant, the first ground referred to the Presiding Officer's alleged failure to discharge his inquisitorial duty properly under Section 20 of the Labour Tribunal Ordinance. The complaint is that the Presiding Officer failed to invite the Defendant to call a particular witness. On the facts of the present case, I do not think this is a valid ground of appeal.

7. There are many case in which appeal from the Tribunal were launched on the basis of allegations of failure to investigate. Based on the decided cases, my understanding of the duty is as follows.

8. It is important to bear in mind that the duty is not absolute, the law is not that every failure to investigate a relevant matter gives rise to a valid ground of appeal. The failure must be of such a nature that the lack of investigation gives rise to injustice in that a fair and proper determination cannot be attained. (Chan Suk Bing at p.462H to I; 王焯華 and Five Star Wine Ltd, HCLA 35 of 2001, Para.14; 沈慧玉v Ailec International (Hong Kong Ltd) HCLA 122 of 2002 Paras. 10 and 11; c.f. Order 55 Rule 7(7))

9. The manner of investigation is a matter of discretion to be exercised by the Presiding Officer in view of the facts of the case before him. Regard can be taken as to the issues in dispute, the incontrovertible evidence before the Tribunal, the material placed before the Tribunal by the parties after inquiry by the Tribunal Officer. The appellate court should not interfere with the exercise of such discretion simply because it would have exercised the discretion in a different manner. It would only interfere when the exercise of discretion was plainly wrong or wrong in principle and injustice is caused to a party. (see王焯華 and Five Star Wine Ltd, HCLA 35 of 2001, Para. 14; Tong Pun Chung v Top Express Engineering Ltd, HCLA 71 of 2002; Poon Ping Kwong v Wah Hip Engineering Co Ltd, HCLA 130 of 2002; Ng Ming v Cheung Wah Investment Co Ltd, HCLA 10 of 2003; Siu Koon Fung v Shun Shing Construction, HCLA 1 of 2002 Para. 27)

10. There is a distinction between the duty to investigate and playing the role as advocate for one litigant. A Presiding Officer is obliged to remain neutral and impartial in carrying out his duty to investigate. (see 謝林与陳德偉, HCLA 150 of 1995; Chung Man Chiu v Ad-Link Communications Ltd, HCLA 58 of 2002; Wong Chi Yung v Antech System Incorporated Ltd, HCLA 108 of 2002)

11. Hence, the duty to investigate cannot replace a party's right to cross-examine witnesses called by others and to challenge the case of the others. See Siu Koon Fung v Shun Shing Construction, HCLA 1 of 2002 Paras. 21 to 27; Chan Siu Tsang v Craigengower Cricket Club, HCLA 8 of 2002; Lau Kin Chung v Dai Pai Dong Retail Shops Co Ltd, HCLA 93 of 2001; Chung Man Chiu v Ad-Link Communications Ltd, HCLA 58 of 2002; Wong Chi Yung v Antech System Incorporated Ltd, HCLA 108 of 2002.

12. The duty to investigate does not empower the Presiding Officer to compel a party to give evidence against his own wishes, thereby exposing him to cross-examination (as distinct from summoning a witness). However, the Presiding Officer does have a duty to invite a party to consider giving evidence on relevant matters when it is apparent that he could give relevant evidence on important issues in the case, see Karchoud, Leila Bent Mohamed v The Incorporated Trustees of The Islamic Community, HCLA 61 of 2001 Para. 10.

13. If the Presiding Officer discerns that there are relevant matters which the parties have not explored, he is obliged to look into it and should invite the parties to comment and guide (and if necessary, direct) them to produce further evidence or documents. Ng Ming v Cheung Wah Investment Co Ltd, HCLA 10 of 2003 Para. 11

14. There is nothing wrong for a Presiding Officer to lead a witness through his evidence in chief or to adopt his witness statement as evidence in chief. Ng Ming v Cheung Wah Investment Co Ltd, HCLA 10 of 2003 Para. 12

15. The duty to investigate should not be confused with the power to summon witnesses. A Presiding Officer can still decide a case by reference to burden of proof and there is no duty on the part of the Presiding Officer to summon witnesses to fill the gaps in the evidence of a litigant, particularly when a Presiding Officer had already reminded a party of the significance of the evidence of a particular witness. A litigant should bear the primary responsibility in the preparation and procurement of evidence in support of his case. 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.

16. However, if the Presiding Officer had not explained adequately the significance of the evidence of a witness, and a party had no reason to suspect that the other evidence adduced by him would be open to doubt if a witness is not called, the Presiding Officer should not solely rely on the failure to call such a witness to disbelieve the other evidence before the court. 潘家鴻 及 蔡美明, HCSA 23 of 2003, 31.10.2003.

17. In the present case, the Defendant knew that what actually happened at the restaurant was crucial to its case and it was hotly disputed by the Claimant. They chose to call a number of witnesses. Although the Presiding Officer did comment on the omission of the Defendant to call a witness called Timothy in his judgment, he did not rely on this as the sole or main reason for rejecting the other evidence of the defence witnesses. From his judgment, it can be seen that the Presiding Officer had given careful consideration to the evidence of each and every witness and weighed them properly. In fact, according to Paragraph 15 of the judgment, Timothy was only reporting to Candy Wan what he was told by Zosi. The Defendant had already called Zosi to give evidence at the trial and the Presiding Officer had given cogent reasons for doubting her evidence in Paragraph 24 of his judgment. In those circumstances, I fail to see how the Presiding Officer could be criticized for not taking any initiative in calling Timothy.

18. The third substituted ground of appeal is that the Presiding Officer should transfer the case to District Court. I fail to see why it is necessary to consider such a move. This is a simple case. It is well within the Presiding Officer's jurisdiction to adjudicate on the claim and the facts are not complicated. It is not suggested that the Defendant had made any application for transfer. As it is apparent from his judgment, the Presiding Officer was quite capable of dealing with the issues even without the assistance from lawyers. The discretion of having a case transferred belongs to the Presiding Officer and in the circumstances of the present case, I could not discern any error of law on his part in hearing the case instead of transferring it to the District Court.

19. The fourth substituted ground in effect sought to apply Section 32K to justify summary dismissal under Section 9 of the Employment Ordinance. In my judgment, that is a confusion of two different concepts. Section 32K deals with remedies under Part VI A and it sets out the valid reasons for dismissal that would not attract any relief under that part. The dismissal referred to in that part has a special meaning, see Section 32B of the ordinance. Section 32B(1)(a) shows that that part does not apply to a case of summary dismissal in accordance with Section 9 of the ordinance. It is quite plain that Section 32K has no bearing on the concept of summary dismissal. The Presiding Officer did not make any error of law in deciding that the Defendant were not justified in summarily dismissing the Claimant.

20. That leaves the second substituted ground. Counsel for the Defendant referred this court to a number of cases on the proper construction of Sections 32K and 32L. This is relevant because a modest Terminal Payment under Section 32O was awarded in favour of the Claimant. I think the ground is arguable and it is a point of law. I therefore granted leave to appeal on this ground (and this ground only).

21. I will hand down this judgment in open court as I believe what I said above may be of general interest.