XCHRX KIAWCHANSAENG, RENU v. HO KIM KAY CANNY

HCLA 78/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 78 OF 2001

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. LBTC 4609/2001)

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REASONS FOR DECISION

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1. This is an application for leave to appeal against an award of the Presiding Officer of the Labour Tribunal in LBTC 4609 of 2001. The application first came before me on 27 November 2001. Mr Yeung appeared on behalf of the Applicant. His firm was first instructed by the Applicant on 26 November 2001. Previously, another solicitor firm acted for the Applicant. That firm ceased to act for the Applicant pursuant to an order dated 23 November 2001.

2. On 27 November 2001, Mr Yeung sought to rely on the intended grounds of appeal set out in the Form 14 prepared by his predecessor. Those grounds are as follows:

"...the award / order is erroneous in point of law in that -

1. the facts found were such that no person acting judicially and properly instructed as to the relevant law could have come to the award / order under appeal;

2. no evidence to support the award / order;

3. evidence was inconsistent with, and contradictory of, the award / order;

4. the true and only reasonable conclusion contradicted the award / order."

3. I found those grounds too vague and general to be of any assistance to me in considering whether leave to appeal should be granted. Section 32 of the Labour Tribunal Ordinance, Cap.25 limits the cases where leave to appeal can be granted by the Court of First Instance. The permissible grounds are that the award is:

(a) erroneous in point of law; or

(b) outside the jurisdiction of the tribunal.

4. Section 35(2) of the Ordinance expressly provides that on an appeal, the Court of First Instance may not reverse or vary any determination made by the Tribunal on questions of fact.

5. If a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law (see Cheng Yuen v. Royal Hong Kong Golf Club [1997] 2 HKC 426; Andayani v. Chan Oi Ling [2000] 4 HKC 233).

6. However, it behoves an applicant for leave to appeal to set out clearly in his intended grounds of appeal how it is asserted that the award is erroneous in point of law. This is particularly important in the context of an alleged error of law in the sense as stated in Paragraph 5 above. To advance such a ground, an applicant should:

(a) identify clearly the finding of fact by the Tribunal which is said to have fallen into this kind of error;

(b) specify clearly whether it is asserted that there was no evidence for such finding;

(c) if it is asserted that the finding was inconsistent with the evidence, the general nature of such evidence should be identified;

(d) if the ground is that the finding is one which no reasonable Tribunal could reach, state clearly why it is so asserted;

(e) if the ground is that the finding is based on disregard or misunderstanding of the evidence, it should state clearly what is the evidence which has allegedly been disregarded or misunderstood.

7. These are essential particulars for consideration as to whether the intended grounds of appeal are genuine grounds based on errors of law for which leave could be given. Without such particulars, a court considering the application for leave could not tell whether a ground is dressed up as an error of law whilst in substance it was a challenge to a determination on questions of fact. If it is the latter, leave to appeal could not and should not be granted.

8. Testing the intended grounds in the original Form 14 placed before me in this manner, it is obvious that those purported grounds are wholly lacking in essential particulars. At the hearing on 27 November 2001, Mr Yeung was unable to give me much assistance in terms of elaboration on those grounds. As I said, Mr Yeung was only instructed on 26 November 2001 and he told me that he had not yet read the Reasons for Award dated 15 November 2001. In those circumstances, I adjourned the application to enable him to make proper preparation for the matter. I also directed that a revised Form 14 setting out proper intended grounds be filed four days prior to the resumed hearing.

9. On 11 January 2002, the Applicant's solicitors lodged a revised Form 14. At the hearing on 15 January 2002, Mr Yeung further revised Ground 1. In its final form, the intended grounds of appeal were stated to be that the award is erroneous in point of law in that:

"1. having accepted the Claimant's evidence and affirming the correctness of the reimbursement of repairing fee of marble sill, the 2nd item of Counterclaim, the Presiding Officer erroneously decided that no salary was paid within the statutory limit of one month and concluded that there was deemed dismissal;

2. the Presiding Officer found that there was tendering of salary and there was refusal to accept, it cannot be said that the Defendant failed to pay but the Claimant refused to accept; and

3. the evidence before the presiding officer was inconsistent with, and contradictory of the award or order."

10. The dispute is about the non-payment of the salary of the Claimant by the Defendant. In her Reasons for Award, the Presiding Officer has summarized the evidence of the parties in paragraphs 8 and 9. The Claimant's evidence was that on 4 May 2001, the Defendant paid the Claimant a sum of $3,170.00 in cash as salary for March 2001. But in the receipt prepared by the Defendant, it purported to record that a sum of $3,670.00 had been paid. The Defendant said she made a deduction of $500.00 for damages to marble sill. The Claimant asked for a cheque of $3,170.00 instead in order to have evidence about the deduction. The Defendant refused and took back the cash. On 7 May 2001, the Claimant showed a letter to the Defendant demanding the arrears of two months' salary. The Defendant did not deal with it. These evidence were accepted by the Presiding Officer for reasons given by her in paragraphs 10 to 13 of the Reasons for Award. I do not find it necessary for me to repeat those reasons. In my judgment, the Presiding Officer did not make any errors of law in accepting the evidence of the Claimant and rejecting the evidence of the Defendant.

11. On such evidence, I cannot see how the Presiding Officer could be said to be in error when she found that there was deemed dismissal by the Defendant of the Claimant by reason of her failure to pay the Defendant's salary. Whilst it is correct that the Claimant accepted that cash had been tendered, as found by the Presiding Officer on her evidence, the Claimant also had a valid reason for insisting on proper evidence as to the deduction of the $500.00 by the Defendant. The purported deduction was in fact unlawful (see Section 32 (1) and (2)(b)(i) of the Employment Ordinance, Cap.57). The Claimant was therefore justified in not accepting the same. The Presiding Officer also found as a fact that the Defendant was aware of the illegality of such deduction. The Defendant took back the cash when she refused to provide evidence of the deduction. Hence, she did not pay the salary for March despite her tendering of a reduced amount by means of cash. In those circumstances, I cannot see the Defendant could say that the salary for March had been paid.

12. For these reasons, Grounds 1 and 2 of the Revised Form 14 are not arguable grounds. Ground 3 is too vague and general. As it stands, I cannot be satisfied that there is any real substance in that ground. Mr Yeung told me at the hearing of 15 January 2002 that in fact all three grounds were different ways of putting forward the same point. I have disposed of that point above.

13. I therefore refuse leave to appeal and dismiss the application.