SURYANI v. CHAN TUNG CHI

HCLA 3/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 3 OF 2012

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 1262 OF 2011)

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REASONS FOR DECISION

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1. This is an appeal against the decision of a Presiding Officer of the Labour Tribunal (“the Presiding Officer”) made on 6 February 2012, whereby the Presiding Officer refused the claimant’s application to have a representative, Mr Joshua Baker (“Mr Baker”), to appear on her behalf in the proceedings in the Labour Tribunal (“the Tribunal”). Mr Baker holds a law degree but he is not a qualified lawyer.

2. In the hearing on 8 October 2012, I dismissed the appeal and I now give my reasons.

Nature of the claim in the Tribunal

3. The claimant was employed by the defendant to work as a domestic helper pursuant to an employment contract dated 23 February 2010.  On or about 26 February 2011, the claimant terminated the employment contract on the ground that the defendant had abused her physically and verbally and failed to pay her wages.

4. On 28 April 2011, the claimant commenced proceedings in the Tribunal (LBTC 1262/2011) for recovery of a total sum of $49,540.63 being unpaid wages and payment in lieu of annual leave.  On 20 October 2011, the claimant amended the quantum of the claim to $85,751.47.

5. Various direction hearings were held in the Tribunal on 20 May, 29 June, 20 October and 23 November 2011.  The last direction hearing in November 2011 was heard by the Presiding Officer herself.

6. By a letter dated 3 February 2012, the claimant sought leave from the Tribunal for Mr Baker to appear as her representative in the proceedings before the Tribunal.

7. The application was heard by the Presiding Officer on 6 February 2012.  After hearing submission from Mr Baker, the Presiding Officer refused the application and fixed the trial date on 2 April 2012 with 4 days reserved.

8. The claimant lodged an appeal against the said decision. Leave to appeal against such decision was granted by myself on 31 May 2012. The trial has been adjourned pending the outcome of this appeal.

The right of audience in the Tribunal

9. The right of audience in respect of the proceedings in the Tribunal is specified in s 23 of the Labour Tribunal Ordinance, Cap 25 (“the LTO”) which reads as follows:

“(1) The following persons shall have a right of audience before the tribunal-

(a) a claimant or defendant;

(b) a tribunal officer;

(c) an authorized officer;

(d) an officer or servant of an unincorporated or incorporated company or a member of a partnership, if the company or partnership is a party;

(e) with the leave of the tribunal, an office bearer of a registered trade union or of an association of employers who is authorized in writing by a claimant or defendant to appear as his representative; and

(f) a public officer, not being a barrister or solicitor, who appears on behalf of the Secretary for Justice, if the Secretary for Justice is a claimant or a defendant.

(2) A barrister or solicitor shall have a right of audience before the tribunal only if he is-

(a) acting on his own behalf as a claimant or a defendant; or

(b)  appearing before the tribunal on behalf of an offender for the purpose of section 42.”

10. Ms Wong, counsel for the claimant, confirms that she is not challenging the constitutionality of s 23 which generally bans legal representation in the proceedings in the Tribunal.

11. There is no dispute that Mr Baker does not fall into any of the categories of persons specified in s 23(1), and so he enjoys no automatic right of audience before the Tribunal. 

12. Despite that, the Tribunal retains a discretion to allow a lay representative to represent and act as an advocate for a party at any proceedings before the Tribunal.  In Ho Lan Fong v Lam Gook [2004] 3 HKLRD 47, A Cheung J, as he then was, said the following:

“36. In this regard, I have already noted above that the Labour Tribunal, established under the Labour Tribunal Ordinance, is a ‘court of record’: s. 3(1), and exercises a ‘limited civil jurisdiction’ (preamble to the Ordinance). In my view, what has been said in relation to the inherent jurisdiction of a court to regulate its own practice and procedure, including the question of rights of audience, applies to an inferior court like the Tribunal, in as much as it applies to a superior court like the High Court, subject always to any contrary or inconsistent provisions in the relevant legislation.

… … …

52. Returning to the Labour Tribunal and the Ordinance, the position of counsel and solicitors aside, like Deputy Judge To in Lok Ming Restaurant v Lau Kwai Chong (unrep., HCME No 7 of 1999)(in relation to s. 22 of the Minor Employment Claims Adjudication Board Ordinance), I do not view s. 23 of the Labour Tribunal Ordinance as being exhaustive or exclusive. In my judgment, it does not purport to give an exhaustive list of who may or may not appear the Tribunal. … … …

… … …

55. In other words, I conclude that the Labour Tribunal does have jurisdiction to allow, as a matter of discretion, a lay representative to represent and act as an advocate for a sole proprietor at any proceedings before the Tribunal … … …

56.   How that discretion should be exercised in any given case must depend on the whole of the circumstances that are pertinent to that case, bearing always in mind, firstly, what has been said by the Privy Council in O’Toole v Scott [1965] AC 939 about the nature of the discretion, and secondly, the general nature of proceedings before the Labour Tribunal.”

13. Since Mr Baker is not a qualified barrister or solicitor, the Tribunal has a discretion to allow him to represent the claimant in the proceedings below.

Exercise of the discretion by the Presiding Officer

14. The Presiding Officer exercised such discretion against the claimant.  In her Reasons for Decision dated 6 February 2012, the Presiding Officer said the following:

“8. The court [has] inherent discretion to allow a litigant to appoint a representative to act as his advocate in legal proceedings.

9. In Ho Lan Fong and Lam Gook trading as Lam Tai Hing Restaurant, HCLA 130/2003, A Cheung J referred to the Privy Council’s decision in O’Toole v Scott [1965] AC 939. The Privy Council explained the discretion whether they will allow any and what persons to act as advocate before them must be exercised specially in a particular case and not by way of a general practice. It is properly exercisable only when its exercise is necessary for the administration of justice, and not when it is merely desirable for convenience and expedition and efficiency in the administration of justice.

… … …

16. Privy Council’s decision in O’Toole v Scott (supra) provides that the discretion to allow a representative to appear for a party is properly exercisable only when its exercise is necessary for the administration of justice and not when it is merely desirable for convenience and expedition and efficiency in the administration of justice.

17.   Having considered the whole circumstances and what has been laid down in O’Toole v Scott, I would not exercise my discretion to allow Mr Baker to represent her in the hearing.”

15. Ms Wong argues that the learned Presiding Officer has applied the wrong legal principle in exercising the discretion.  I agree.

16. According to the Presiding Officer, O’Toole is the authority for the proposition that the discretion to allow representation by another person should only be exercised when it is necessary for the administration of justice, and not when it is merely desirable for convenience and expedition and efficiency in the administration of justice.  This is not correct.  If one reads the judgment carefully, this was only one of the submissions made by the party which was eventually rejected by the Privy Council.  After referring to this particular submission, the Law Lords actually said the following in the judgment:

“There is, however, no sound basis for either point. There is no statutory limitation of the discretion; the discretion is not conferred by statute, but is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court. There is no reason in principle for limiting the discretion as suggested. It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. Its exercise should not be confined to cases where there is a strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice.” (at p 959B-D)

17. The Presiding Officer was clearly wrong, and there is certainly no limitation in the exercise of the discretion in the way as suggested by the Presiding Officer in her Reasons.  The wrong application of legal principle is the main reason why I have granted the claimant leave to appeal in the first place.

Exercise of the discretion afresh by the appellate court

18. As the Presiding Officer has applied the wrong test in exercising the discretion, the appellate court is entitled to exercise the discretion afresh.  In this regard, Ms Wong submits that the court should allow Mr Baker to represent the claimant in the proceedings below because she is in a vulnerable and prejudiced position as compared with the defendant.   According to Ms Wong, the claimant suffers from emotional distress owing to the physical and verbal abuses by the defendant and anxieties in encountering the defendant in the Tribunal. In particular, the audio recordings of the proceedings below show that the claimant had failed to overcome her anxieties as she burst into tears after having a sudden panic attack in one of the hearings before the Tribunal.  Further, as the defendant is a policeman by profession, there is an advantage on his part in conducting cross-examination which is fatal to the fairness of a trial.  Finally, the claimant does not read or speak English or Chinese while the defendant is fluent in both languages, and this would prejudice the ability of the claimant in conducting the trial.

19. Ms Wong submits that the Presiding Officer has not dealt with these issues in her Reasons.  This is not quite correct.  In her Reasons, the Presiding Officer said the following:

“12. Claimant is now 27 years old. There is no evidence before the court that she is under any disability to present the case in open court. In fact, when she appeared before me in the previous hearing on 23 November 2011, she could set out her case in a clear and logical manner. She did comply with the court’s direction to submit statements. I found that she could present and handle her case without any difficulties.

… … …

15. The Claimant is young with full mental capability. In my view, there is no exceptional circumstance to allow her to be represented by Mr. Baker, who has no personal knowledge and interest in the claims lodged in the Tribunal at all. He is neither a close friend nor relative of the Claimant.

… … …

21. In the witness statements (see C.7, C.10) furnished by the Claimant, there had been lots of legal submissions in relation to the damages that resulted from the wrongful dismissal. Authorities had been referred to in support of the arguments. They had been clearly put forward before the court.

22. If the Claimants wants somebody to assist her with any legal argument, she can always do so by written submission and put before the court. In this way, her interest can be looked after.

23. If the hearing concerns the factual disputes, Claimant is the best person to relate the facts to the court in her own words. Nobody will be as conversant as the Claimant herself.

24.   Though Claimant’s mother tongue is Indonesian, this can easily be resolved with the help of the court’s interpreter.  The language barrier does not pose any problem in the hearing.”

20. There is no reason for me to doubt these observations of the Presiding Officer.  Although the claimant might have burst into tears on one occasion in the hearing, it is far from saying that she is not able to conduct the hearings herself.  As observed by the Presiding Officer, the claimant was able to present her case in a clear and logical manner and to follow the Tribunal’s direction in filing the relevant witness statements.  These observations are, to a great extent, supported by the exchanges between the claimant and the Tribunal as contained in the transcripts of the various direction hearings and the contents of the witness statements filed by the claimant.  Hence in my judgment, Ms Wong has exaggerated the difficulties facing the claimant in conducting the trial herself.

21. In considering the claimant’s application, the Presiding Officer was minded to preserve a level playing field between the parties in the proceedings below.  In this regard, the Presiding Officer said the following in her Reasons:

“18. The establishment of the Tribunal by the government of Hong Kong is to provide a simple, inexpensive and expedient procedure to resolve labour disputes. The Tribunal has its specified jurisdiction. The procedure and practice adopted by the Tribunal are different from an ordinary court. In the Tribunal, neither party is entitled to be represented by lawyer. The hearing is to be conducted in an informal manner and generally the rules of evidence shall not apply.

19. Mr. Baker had studied a law degree. Though he is not legally qualified, to allow him with legal training to represent the Claimant is not consistent with the legislative intent of section 23.

20.   In my view, I do not consider it fair and just for Mr. Baker to appear for the Claimant.  It may put the Defendant to a disadvantageous position, putting both parties to different footings in the hearing.  The court is required to strike the appropriate balance between the fairness to the Defendant and the interest of the Claimant.”

22. This is certainly a legitimate consideration. Although Mr Baker is not a qualified lawyer, he has received legal training in various areas of the law.  Further, Mr Baker is now working in Vidler & Co which is the solicitors’ firm acting on behalf of the claimant in this appeal. Undoubtedly, Mr Baker’s legal training and his experience in working in a solicitors’ firm in Hong Kong would provide the claimant with an advantage over the defendant if Mr Baker is allowed to conduct the trial on behalf of the claimant.  On the other hand, although the defendant is a policeman by professional, there is no evidence or basis to support Ms Wong’s contention that the defendant has received training or has had experience in conducting trials, or at least civil trials, himself.  In such circumstances, there would be legitimate grievance on the part of the defendant if he has to face Mr Baker as an opponent.

23. Furthermore, if the claimant has difficulty in conducting the trial herself as alleged, I cannot quite understand why she cannot obtain assistance from some other lay persons who have not received legal training before.  An organisation known as “Christian Action” has all along been providing assistance to the claimant in the conduct of this case. In fact, it was through Christian Action that the claimant came to know Mr Baker.  If the claimant cannot handle the trial herself and she needs someone to take care of her during the trial, the claimant can ask her friend or other lay person from Christian Action to accompany her during the trial.  If necessary, the claimant can ask the Tribunal for permission to allow such lay person to represent her in the proceedings.  The claimant can also ask Mr Baker for advice on various matters relating to the preparation of the trial.  This is already an advantage that the defendant apparently does not have.  In such case, it would not disturb the level playing field in the proceedings below.

24. Ms Wong submits that, if the court is minded to preserve the level playing field between the parties, the court should allow Mr Baker to represent the claimant and then transfer the whole case to the District Court, which would then enable the defendant to engage lawyer to represent him.  I do not accept it to be the correct approach.  The claimant has not made an application for transfer in the Tribunal, and so it would be wrong for the appellate court to make an order for transfer in the absence of such application in the Tribunal.  If the claimant thinks that she should be represented by someone with proper legal training, she should first make an application in the Tribunal to transfer the case to the District Court.

25. In Ho Lan Fong, supra, A Cheung J agreed that the court or Tribunal can take into account “the general nature of the proceedings before the Labour Tribunal” in the exercise of the discretion. As s 23 prohibits legal representation in the Tribunal, the duty of the court or Tribunal to maintain a level playing field is an important consideration. Looking at all the circumstances of the present case, I agree that such consideration should out-weight all other factors put forward by Ms Wong in this appeal.  Hence, in exercising the discretion afresh, I come to the same conclusion that Mr Baker should not be allowed to represent the claimant in the proceedings in the Tribunal and the appeal should therefore be dismissed.

The claimant’s complaint relating to the alternation of reasons by the Presiding Officer

26. Ms Wong also complains that the Presiding Officer has wrongfully altered her original reasons for refusing the claimant’s application in the subsequent written Reasons for Decision.

27. After reading the transcripts of the hearing on 6 February 2012, I should perhaps make three criticisms against the manner in which the Presiding Officer has handled the application.  Firstly, the Presiding Officer asked Mr Baker in the hearing as to why she had to reduce her decision in writing.  By raising such query, it seems that the Presiding Officer was not aware of her duty to do so under s 22(3) of the LTO, which is quite surprising. Secondly, there is some force in the argument that, in the hearing on 6 February 2012, the Presiding Officer dismissed the claimant’s application simply on the ground that Mr Baker does not fall into any of the categories of persons stated in s 23(1) without considering the exercise of the discretion.  This is certainly the impression after reading the transcripts.  Thirdly, the documents of the Tribunal show that the written Reasons for Decision was supplied to the claimant on 2 April 2012.  In such circumstances, I have reason to believe that the Presiding Officer had prepared her written Reasons after the hearing on 6 February 2012.  In such case, she should have put down the actual date of the handing down of the Reasons in the document itself.

28. Despite such criticisms, the decision of the Presiding Officer should not be reversed.  Firstly, the Presiding Officer did reduce her decision in writing and produce a written Reasons for Decision for the purpose of this appeal.  Secondly, there is some ambiguity as to whether the Presiding Officer had given her full reasons orally in the hearing on 6 February 2012, and so she should be allowed to give her full reasons in writing after the hearing. There is also no unfairness to the claimant, as she has filed an affirmation to support her appeal after the hearing and she has had adequate opportunity to deal with the Reasons of the Presiding Officer in this appeal.  Thirdly and more importantly, as I have mentioned above, the Presiding Officer has adopted the wrong legal principle in exercising her discretion in disallowing the claimant’s application, and as a result this court has to exercise the discretion afresh.  After doing so, this court comes to the same conclusion.  This is, therefore, the exercise of the discretion by this court and not the Tribunal that the claimant’s application should be dismissed.  In such circumstances, the factors that were in the mind of the Presiding Officer when she made the decision on 6 February 2012 are not material for the purpose of this appeal.

29. Hence, despite the errors of the Presiding Officer, the appeal should be dismissed and I therefore so ordered in the hearing on 8 October 2012.