NG MING AND OTHERS v. CHEUNG WAH INVESTMENT CO. LTD

HCLA 10/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 10 OF 2003

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 7184/2001)

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D E C I S I O N

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1. This is an application for leave to appeal against the award of the Labour Tribunal made on 1 November 2003. The Presiding Officer made an award in favour of the Claimants and the Defendant now seeks leave to appeal.

2. At the hearing on 2 June 2003, counsel for the Defendant invited this court to consider the application on the basis of the Amended Ground of Appeal dated 28 May 2003 in place of the original ground set out in the Form 14. In my judgment, the original ground failed to disclose any arguable ground.

3. In the Amended Ground, it is alleged that the learned Presiding Officer erred in law in failing to provide the Defendant any opportunity or adequate or sufficient opportunity to adduce evidence, to examine and test the evidence of DW4 Madam Wong Sai Mui in the trial.

4. DW4 was a witness for the defence and a copy of her witness statement was produced by the Defendant to the Tribunal. She was an accounting staff responsible for, inter alia, the preparation of the wage records of the Defendant produced as exhibit "D-18" at the trial.

5. I have read the transcript of the trial. The Presiding Officer had led evidence from DW4 about the preparation of D-18. He also investigated into how the figures set out in D-18 were worked out by DW4. In my judgment, the Presiding Officer had tried his best in obtaining relevant evidence from the witness based on the information before him. The Claimants were given opportunity to cross-examine the witness but according to the transcripts the Claimants did not ask many questions. There was no re-examination by the Defendant nor by the Presiding Officer.

6. The Presiding Officer dealt with the evidence of DW4 in Paragraphs 95, 96, 109 to 111 of his written reasons for decision. He rejected the evidence of DW4. He also found that the records in D-18 were not truthful records.

7. Assessment of evidence and finding of facts are basically the task of the Presiding Officer and by reason of section 35(2) of the Labour Tribunal Ordinance, this court does not have the power to entertain any appeal against finding of facts.

8. Mr Wong, counsel for the Defendant, argued that the omission of the Presiding Officer to invite the Defendant's representative to examine or re-examine DW4 constituted material irregularity. He cited Chung Man Chiu v Ad-Link Communications Ltd HCLA 58 of 2000 and Wong Chi Yung v Antech System Incorporated Ltd HCLA 108 of 2002.

9. Those cases are authorities for the proposition that a party should not be deprived of the opportunity to cross-examine the witnesses called by his opponent and to challenge the case of his opponent. However, in the present case, we are not dealing with cross-examination or challenge of the case of the opponent. DW4 was the witness of the defence and the Defendant should have ensured that she included whatever material evidence she could give in favour of the Defendant in her witness statement.

10. One should bear in mind that in the Labour Tribunal, before trial parties have gone through a process of preparation and investigation of their respective case. Section 14 of the Ordinance laid down a procedure of inquiry by a tribunal officer. Section 14(4) gives extensive power to the tribunal officer for the purpose of such inquiry, including the recording of statement from a witness and requiring the production of relevant documents.

11. Hence, by the time a case comes before a Presiding Officer, he is entitled to work on the basis that a party has included the substance of the evidence of his witness in his statement and relevant documents have been produced. Although a Presiding Officer should investigate on matters which he considers relevant under section 20(3) of the Ordinance, he should be able to conduct the trial on the aforesaid working assumption. Of course, if he discerns that there are relevant matters which the parties have not explored, he is obliged by section 20(3) to look into it and for that purpose, should also invite the parties to comment or even direct them to produce further evidence or documents. But aside from that, a Presiding Officer cannot be faulted for assuming that a witness' evidence were those set out in his witness statement.

12. Since the parties are legally unrepresented, a Presiding Officer always needs to take a witness through their evidence in chief. I see nothing wrong in that. I do not accept the submission that a party must be given a chance to conduct the evidence in chief of his own witness in the Labour Tribunal. In appropriate cases, a Presiding Officer may simply adopt the witness statement as evidence in chief although when there are serious dispute of facts, viva voce evidence might be more helpful.

13. Mr Wong suggested that the Defendant was deprived of the opportunity to adduce further evidence from DW4 to support the veracity of D-18. I find that submission unreal. As I said, all relevant documents should have been produced by the Defendant during the inquiry stage. Moreover, DW4 only gave evidence after all the Claimants had given evidence. If there were other documents, the Defendant should have put forward the same to the Claimants in cross-examining them. At no time during the trial did the Defendant representative suggest that there were some other documents which could support the veracity of D-18 and the case of the defence.

14. I have inquired with Mr Wong what were the documents or further evidence that DW4 might give to bolster the defence case and he was unable to give me any specific answers. He submitted that the Defendant had indeed produced to the Tribunal all relevant documents in their possession but there might be some documents kept by DW4 herself evidencing her calculations of the wages in line with D-18. Mr Wong could not confirm whether such documents existed.

15. This showed that even now the Defendant has no idea whether there were further documents and whether DW4 could have said more than what she had already testified. In those circumstances, even if the Presiding Officer had invited the Defendant's representative to examine or re-examine DW4 at the trial, he could not have led further evidence from her or obtained further document from her.

16. From the transcript, it can be seen that this is not a case where DW4 was discredited in the course of cross-examination and the Defendant was not given an opportunity to salvage her credibility by re-examination.

17. In the circumstances, I fail to see any merit in the intended appeal and the application for leave to appeal is therefore dismissed. I propose to grant leave for publication of this decision and if parties wish to make representations pursuant to Practice Direction 25.1, they should do so within 5 days from the handing down of this decision.