LEE CHUN KWAI v. WELBAR SEAFOOD RESTAURANT o/b KINING LTD. AND ANOTHER

HCLA16/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.16 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NOS.
8833, 2656 AND 2843 OF 2001)

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J U D G M E N T

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1. This is an appeal brought by the 2nd respondent in Labour Tribunal Case No.LTBC8833/2001 against the decision of Presiding Officer Mr Leung dismissing the claim against the 2nd respondent. The appellant claimed against the two respondents severance pay, annual leave pay and statutory holiday pay in the sum of $102,456.60.

2. The 1st respondent was absent before the Labour Tribunal as well as in the proceedings herein.

3. Briefly, the appellant claimed that the 1st respondent's (Kining Limited) business was taken over by the 2nd respondent (Goldsino Group Limited) and the 2nd respondent should be responsible for the accrued rights as claimed.

4. Colleagues of the appellant have previously brought claims of a similar nature against the two respondents in the Labour Tribunal in consolidated cases Nos.LBTC2625/2001 and 7669/2001. Those cases were heard before Presiding Officer Mr Leung whereby the claim against the 1st respondent was allowed but the claim against the 2nd respondent was dismissed.

5. When the appellant appeared before Mr Leung, he dismissed the claim summarily by giving the following judgment :

"All claimants were colleagues of the two claimants in LBTC No.4625 and 7669 of 2001. The facts are exactly the same. The present claimants produce no fresh and additional evidence. There was a full trial of the two previous cases with parties explaining fully their decisions. This court has given judgment in favour of Goldsino but against Kining. I have explained the facts to the present claimants and allowed them to make submissions. There is nothing new. I shall follow my previous decision and dismiss their claims against Goldsino.

Unlike the previous two cases, service could not be effected on Kining. Their claims against Kining be adjourned sine die with liberty to restore, only with leave of the court."

6. The appellant applied for leave to appeal before Deputy Judge Lam and leave was granted on the following substituted grounds :

(1) that the Presiding Officer has not heard any or any sufficient evidence and simply based his decision on his previous decisions in LBTC Nos.4625 and 7699/2001, as if they were binding on the appellant; and

(2) the appellant was not given an opportunity to lead evidence or deal with the evidence of the two defendants in LBTC Nos.4625 and 7699/2001.

7. There are also two further substituted grounds relating to the evidence, on the basis that had the learned Presiding Officer dealt with the evidence in the present case, he had erred in law in drawing an inference that was not reasonably open on the documentary evidence produced.

8. Costs of the leave application was made in the course of the appeal hearing.

9. After brief opening by counsel for the appellant, I invited counsel for the 2nd respondent to indicate his stance as no skeleton argument had been filed on behalf of the 2nd respondent. Counsel for the 2nd respondent indicated that he could not seriously argue against the appeal and would in effect concede the appeal.

10. I find that the learned Presiding Officer has erred in law in failing to investigate the claim of the appellant, and in simply basing his decision on his previous decision involving the two respondents only but not the appellant. The appellant was not a party to the previous proceedings and was in effect denied the chance to be heard on his claim.

11. As to the substituted grounds (3) and (4), as the learned Presiding Officer had not made any finding of facts in the claim herein, I shall not deal with those matters.

12. In the premises, the appeal shall be allowed and be remitted to the Labour Tribunal for trial de novo.

13. As the learned Presiding Officer has already indicated his views before hearing the claim, there is a real danger of bias and the matter should be dealt with by another Presiding Officer.

14. I shall make the following order :

(1) The appeal be allowed.

(2) The decision of the Presiding Officer Mr Winston Leung dated 22 February 2002 be set aside.

(3) The case is to be remitted back to the Labour Tribunal for re-trial before another Presiding Officer.

15. I shall make a ruling on the costs application.

16. The appellant made an application for costs to follow the event of the allowing of the appeal. Counsel for the 2nd respondent resisted the application on three grounds :

(1) The appeal was allowed on procedural points as opposed to on the merits.

(2) He has conceded the appeal and not wasted the court's time.

(3) He only received the bundle and skeleton argument on Tuesday and could not have given proper advice earlier.

17. The substituted grounds of appeal was dated 16 May 2002. It was served on the solicitors for the 2nd respondent on 23 May 2002. Counsel for the 2nd respondent agreed that based on those grounds of appeal alone he would have advised his clients to concede the appeal. Hence, there was no real substance on the late service of the bundle and skeleton, if there were any lateness at all.

18. It is true that counsel for the 2nd respondent has quite rightly not wasted the court's time, but it is not the same thing as not wasting the cost of appearance by the other party.

19. As to the procedural as opposed to the merits point, I do not see that it can be made an exception to the rule of costs to follow the event.

20. Hence, I shall make the order that :

(1) Costs of and occasioned by the appeal be paid by the 2nd respondent to the appellant; to be taxed if not agreed; and

(2) the appellant's own costs be taxed in accordance with the Legal Aid Regulations.