MAK CHAN KAN, STEWART FORMERLY TRADING AS CAMAY FASHION GARMENT MANUFACTURING CO. v. YEUNG SIU KWAN AND OTHERS

IN THE COURT OF APPEAL

M.P. No. 2714 of 1986

BETWEEN

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JUDGMENT

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Hunter, J. A.:

1. This is a hopeless application. The applicant Mr. Mak Chan Kan, Stewart formerly traded under the name Camay Fashion Garment Manufacturing Co. In 1985 he got into financial difficulties, and some time in September closed the factory. Six former employees then brought proceedings against him in the Labour Tribunal. They claimed various sums by way of arrears of wages and other relief. It is right to say, and this is a point much emphasised by the applicant, that they originally got legal aid, and the first claims advanced on their behalf by the Legal Aid Department very much exceeded the claims ultimately formulated and claimed before the Labour Tribunal.

2. The claimants gave evidence before the Tribunal in support of their claims. The applicant dubbed the claims as false. He said that he had a book containing all the claimants, names and signatures whenever he paid them their wages. But as he thought this book was of no further use he had thrown it away.

3. The issue for the Presiding Officer was essentially one of credibility. Did he believe the claimants or did he believe the applicant? He rejected one claim. He reduced two of the claims. He ultimately awarded something to five of the claimants. That hearing and adjudication took place in August 1986.

4. On 23rd September 1986 the Presiding Officer refused an application to review his decision. The matter then came before Liu J. on 8th December of that year. At the outset of that hearing an incident occurred of which the applicant now complains. He had a friend who is a legal executive or solicitor's clerk who wanted to give him informal assistance at the hearing. The refusal of this may or may not have been a proper exercise of discretion by that judge. But unquestionably it made no difference whatever to the applicant's position. The only right of appeal to the High Court from the Labour Tribunal arises on an issue of law. Liu J. correctly decided that this was a decision on veracity and that he could not interfere.

5. The applicant then sought leave to appeal to this court. This court's jurisdiction is even more circumscribed. Under Section 35(a) of the Labour Tribunal Ordinance the court can only grant leave to appeal if it considers that a question of law of general public importance is involved.

6. That application was heard by Clough, J.A. sitting as a single judge on 10th February of this year. He explained the problem to the applicant and allowed him to have the assistance of his friend, the solicitor's clerk. He refused leave upon the basis that, as the judge had held, the issue was one of credibility in a situation where the applicant had elected to destroy his own records.

7. That should have been the end of the matter. Had the situation arisen in England it would have been. But unfortunately as the Supreme Court Ordinance now stands where an application is refused by a single judge it can be renewed to the Court of Appeal itself. That is the effect of Section 35(4) of the Supreme Court Ordinance. Amendment seems to me to be overdue.

8. I started by saying that the application is quite hopeless. The only issue was credibility. The applicant has been told this in clear terms by two different judges. This court has no jurisdiction to interfere with a decision on fact by the Labour Tribunal. The application is accordingly refused.

Fuad, J.A.:

I agree that the application has no merit and should be dismissed.