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HCMP004242/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 4242 OF 2000
(ON APPEAL FROM HCLA 5/2000)
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IP MING WAH TRADING AS WAH NGAN COMPANY |
Defendant
(Applicant) |
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AND
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LAI TO HEI transliteration of “黎灶喜” and others |
Claimants
(Respondents) |
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Coram: Hon Wong JA in Chambers
Date of Hearing: 6 September 2000
Date of Decision: 6 September 2000
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DECISION
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1. This is an application for leave to appeal against a decision of the Labour Tribunal pursuant to section 35A of the Labour Tribunal Ordinance (Chapter 25), an appeal to the Court of First Instance against the decision of the Presiding Officer having been dismissed by Yam J on 3 August 2000. Section 35A provides as follows:
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"(1) |
If any party is dissatisfied with a decision of the Court of First Instance on an appeal heard by leave given under section 32, such party may, within 7 days after the date of the decision, apply to the Court of Appeal for leave to appeal and, if the Court of Appeal considers that a question of law of general public importance is involved, it may grant leave." |
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2. The point of law of general public importance is said to be this:
"The correct duty and approach adopted by a Presiding Officer in the Labour Tribunal is clearly a question of law of general public importance considering the important role of the tribunal in handling employment cases and the large number of cases it handles each year."
3. Reliance is placed upon a decision of the late Jerome Chan J in Chan Suk Bing Angie v. Harbour Phoenix Ltd & Anor [1992] 2 HKC p.459 in that case, the learned judge held that:
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(1) |
Hearings at the tribunal are inquisitorial rather than adversary in nature; |
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(2) |
There is a duty for the Presiding Officer to investigate relevant matters irrespective of whether they are raised by any party; |
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(3) |
Presiding Officer should not allow themselves to derogate from the duty to investigate under any circumstances. |
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4. The learned judge was plainly correct in his interpretation of the purpose of the Ordinance. But the matter goes further than this. It is, of course, for the Presiding Officer trying the case to decide, in the exercise of his discretion, whether it is necessary to make further investigations into any issue that is not clear or any issue that is necessary to assist him to come to a proper decision. He must exercise his discretion judicially. Each case must depend on the facts and evidence that is before him. If the evidence is sufficient and clear, there is no need for him to make any investigation. He can make a decision on the material that is before him. This is clearly such a case. Moreover, the applicant has not even at this late stage raised any matters relevant to his case in his affirmation to indicate that there were matters calling for the Presiding Officer to investigate.
5. I agree with Yam J that there was no need for the Presiding Officer to intervene in this case and therefore the Presiding Officer had not failed to discharge or derogate from his duty to make further investigation into the case. In my judgment, no point of law of general public importance is involved and the application is accordingly dismissed.
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(Michael Wong) |
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Justice of Appeal |
Representation:
Mr Victor Dawes, instructed by Messrs Chan and Cheng, for the Defendant (Applicant)
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