LEE CHICK CHOI v. BEST SPIRITS CO LTD

HCLA 19/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 19 OF 2013

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 588 OF 2011)

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D E C I S I O N

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1.  I refer to my Ruling dated 21 October 2014 refusing the application of the applicant/claimant (“A”) for a stay of execution of the Order made by the Presiding Officer of the Labour Tribunal Ms Susan Wong (“Ruling”).

2.  I shall adopt the abbreviations in the Ruling in the present Decision.

3.  As stated in the Ruling, the Presiding Officer found against A on his claims against R in the Tribunal.  The Order was made on 10 October 2011.  It was not until 9 August 2013 that A applied to the Tribunal for a review of the costs part of the Order, his leave to appeal against the Order having earlier been dismissed by M Chan J on 6 June 2013.

4.  By a letter dated 19 August 2013, A was informed by the Tribunal on 16 August 2013 that his application for review was refused by the Presiding Officer as it was out of time (“19.08.13 Letter”).  It is against this decision that A is now applying to this court for leave to appeal, extension of time having been given by Master Ho on 28 August 2013. 

5.  Section 31 (1) and (2) of the Labour Tribunal Ordinance Cap 25 state as follows:

“(1) Except where a party has filed an application for leave to appeal and does not agree to withdraw the application, a presiding officer may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(2) The power conferred by subsection (1) may be exercised-

(a)     by a presiding officer of his own motion, on notice in the prescribed form to all parties;

(b)     on the application of a party within 7 days, on notice in the prescribed form to all other parties.”

6.  A’s application for review of the costs part of the Order was thus almost 2 years out of time.  In his application, he had attached “Grounds For Review of the Costs Order Only” (“Grounds”).  It could be seen from the Tribunal’s 19.08.13 Letter that A’s application was also supported by two letters dated 9 August 2013 and 12 August 2013.

7.  There were no clear explanations from A in the Grounds or his above  letters as to the reasons for his delay in applying for the review, except there was a reference to A’s wife Ms Yuen Oi Yee Lisa having sent a witness statement to the Tribunal on 25 May 2011 on behalf of A, which was allegedly lost.  The alleged loss of the witness statement had caused an adjournment of the trial originally fixed from 7 to 10 June 2011 with costs thrown away of a sum of HK$36,122 ordered against A.

8.  Both A and his wife had written numerous letters to make enquiries and complaints about the allegedly lost witness statement as early as June 2011 and the Tribunal had replied on 14 July 2011 that no such document was found and no evidence to show that the parcel containing such document had ever been delivered to the Tribunal by post (“14.07.11 Letter”).  The trial before the Tribunal eventually took place 26-29 July, 3 and 22 August 2011 which resulted in the Order.  In the Reasons for Decision, the Presiding Officer had dealt with the allegations of the loss of the witness statement and also heard submissions on costs before making the Order.  She ordered A to pay costs thrown away by the adjournment of HK$36,122 and costs of the trial of HK$94,231, totalling HK$130,353.  Her reasons had been set out in detail.

9.  Notwithstanding the 14.07.11 Letter and the Order, A and his wife had continued to make complaints.  A had produced a copy of the letter dated 31 October 2014 from the Administrative Secretary to the Chief Justice as evidence that the Chief Justice was then investigating into the matter of his complaint about the allegedly lost witness statement.

10.  As can be seen above, the allegations by A in relation to the lost witness statement were in June 2011 before the trial.  I could see no reasonable explanation for the long delay, nor any reasonable grounds for A to apply for a review of the costs part of the Order almost two years after the Order.

11.  In any event, A had applied for leave to appeal against the Order which had been dismissed.  Although it appeared that A did not specifically raise his intention to vary/review the costs part of the Order made by the Tribunal, as stated by Master Ho in his letter of 2 October 2013, this should have been raised at the leave hearing before M Chan J.  As it had not been raised at the time, A should be barred from raising it by way of another appeal. 

12.  I would just add that whether to award costs against A was a matter of discretion for the Presiding Officer.  S 28 of the Labour Tribunal Ordinance Cap 25 states as follows:

“(1) Subject to subsection (2), the tribunal may award to a party costs and expenses, which may include-

(a) any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party; and

(b) any reasonable sum paid to a witness for the expenses necessarily incurred and any loss of salary or wages suffered by him,
in attending a hearing of the tribunal or in being interviewed by a tribunal officer.

(2) In making an award of costs under this section, the tribunal shall include a direction as to the amount to be paid by each party who is so liable to pay costs.

(3) An award of costs shall be enforceable in the same way as any other award made by the tribunal.”

13.  Two of R’s witnesses had to come from United States of America to attend the trial, but for fairness the two witnesses only claimed for the return air fares to and from Singapore and Thailand where they originated and hotel accommodation.  The Presiding Officer had considered the claims and A’s objections before making the costs part of the Order.

14.  Under s 32 of the Labour Tribunal Ordinance Cap 25, this court may grant leave only if the Order was erroneous in point of law or outside the jurisdiction of the Tribunal.  A’s application for review was against a costs order and was only made after about 2 years after the Order.  Having considered A’s submissions for leave to appeal, I do not see any error in point of law of the Presiding Officer, nor was this a matter outside the jurisdiction of the Tribunal in refusing his application for review.  I see no other reason why leave to appeal should be granted to A.

15.  A’s application for leave to appeal is hereby dismissed.