MAHAGEDARA MALANI v. RADHAKRISHAN PURSWANI

HCLA 77/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 77 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 6161/2002)

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J U D G M E N T

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1. This is an application for leave to appeal against an award made by a Presiding Officer on 31 July 2002. Under the award, judgment was entered against the Defendant in favour of the Claimant (who is applying for leave to appeal), in respect of severance pay, air ticket, food and travelling allowance in the total sum of HK$17,166.70, together with interest.

2. There was also a claim for long service payment, but that was made in the alternative to the claim for severance pay. As the Claimant was successful with her severance pay claim, the Tribunal did not make any award in respect of her long service payment claim.

3. Having heard the parties relating to the mode and time of payment and in particular, the Defendant's financial difficulties, the Presiding Officer ordered that payment of the award be made by instalments. A lump sum of $5,000.00 was to be paid within one month of the award with the balance to be paid by seven equal monthly instalments of $1,738.10 each, starting from 30 September 2002 and ending on 30 March 2003. There was the usual default provision.

4. The Claimant is not happy with the instalment payment ordered by the Tribunal and now seeks leave to appeal to this Court.

5. It is not challenged that the Presiding Officer did have the power to order instalment payment of the award. Nor does the Applicant seek to challenge, at today's hearing, the difficulties or financial difficulties faced by her former employer in relation to meeting the award, based on which the Presiding Officer made his order. Rather the Applicant tells me her own financial difficulties and her own requirement for the award to be paid to her sooner than that which has been ordered by the Presiding Officer.

6. In my judgment, the Presiding Officer had material before him to enable him to make the order in the way he did. In particular, he had material before him relating to the Defendant's financial difficulties in meeting the award which were and are not challenged, in deciding the mode and time of instalment payment. The Presiding Officer must, of course, take into account the ability of the Defendant to pay. Likewise, he had to balance the difficulties of or hardship to the Claimant as well. It is clear from his reasons for decision that he has taken into account the situations of both parties. What he ordered clearly constituted an exercise of discretion on his part based on the material before him. I have no reason to doubt that he has taken into account all the relevant circumstances of the parties. Nor do I have any reason to think that he has taken into account any irrelevant consideration.

7. In those circumstances, in my judgment, there is practically no chance of success in the intended appeal of the Applicant, which seeks to disturb the exercise of discretion by the Presiding Officer.

8. So for all these reasons, notwithstanding my own sympathy for the Claimant's personal position, I do not see how I can give leave to appeal. I dismiss the application; I make no order as to costs.