XCHRX TAWAGON PATRICIA JULIAN v. LEUNG MAN CHING

HCLA 101/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 101 OF 1999

(ON APPEAL FROM LBTC 6161/1999)

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REASONS FOR DECISION

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In this case, the applicant sought leave to appeal against the decision of the Labour Tribunal dismissing her claim for wages in lieu of notice of dismissal. The applicant had been employed by the defendant before the Tribunal as a domestic helper for less than one month. The applicant alleged that the defendant scolded and physically assaulted her. She went to the police to report the alleged assault and considered that she was constructively dismissed. The defendant admitted scolding the applicant but denied using violence on applicant. The learned presiding officer assessed the evidence and determined as a fact that the defendant did not physically assault the applicant. It follows that the applicant made a false report to the police. Since the case of constructive dismissal was not made out, the claim for wages in lieu of notice of dismissal was rejected.

2. The grounds on which the applicant relied upon for appeal were:-

"(a) That the Presiding Officer failed in his duty to investigate under section 20(3) of the Labour Tribunal Ordinance

(b) That the decision, which included an award to the Defendant of wages in lieu of notice, was made before I had received notice of any such claim by the Defendant; to this date I have still received no notice of such claim

(c) That the Tribunal failed to observe the distinction between on the one hand the standard of proof required in a criminal case (viz. the charge against the Defendant of assault upon my person) and on the other hand the standard of proof required in a civil case (viz. my claim for wages in lieu of notice, as it was then framed

(d) That the decision was made in error of law, and

(e) Such other grounds as may be revealed by the Notes of Proceedings to be supplied by the Tribunal"

3. In relation to ground (a), the applicant did not indicate where or what the learned presiding officer should have investigated. In relation to ground (b), clearly the record shows that the applicant had notice of the defendant's counter-claim. In relation to ground (c), the learned presiding officer never said that he applied the criminal standard of proof when considering the complaint by the applicant of assault. In relation to ground (d), there is no indication of what the error of law is.

4. Ground (e) was obviously a fishing expedition. Although I had misgivings, so as not to let the unrepresented applicant feel shut out from any chance, I asked the applicant to supplement her grounds of appeal as she could gather from the notes of proceedings. It turned out that the applicant had not had copy of the notes of proceedings by the time of the first hearing before me, although the notes of proceedings were already in the appeal file. Hence, the hearing was adjourned to enable the applicant to obtain copies. By the second hearing, the applicant said that she still had not received the notes of proceedings. After arranging and ensuring that the applicant would get a copy of the notes of proceedings that very day, I adjourned the hearing to 21 February 2000.

5. On 21 February 2000, the applicant handed up a further written submission based on the notes of proceedings. Essentially, the latest written submission says that no error of law could be found to base an appeal. However, a further point was raised. This is that the learned presiding officer failed to advise the applicant that hearsay evidence was admissible. The relevance of this is that, according to this submission, the applicant could have adduced evidence of complaints she made to any third party. Really, I did not see why the learned presiding officer ought to advise the applicant about admissibility of hearsay evidence so that the applicant could adduce self-serving evidence generated by herself.

6. In conclusion, the applicant tendered a number of trumped up grounds. There was no valid basis for appeal. Accordingly, leave to appeal was refused.