CHEUNG CHAO CHAN MEI v. EVERLASTING HOLDINGS (HONG KONG) LTD.

HCLA 57/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 57 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. LBTC 2923/2002)

____________

____________

_______________

J U D G M E N T

_______________

1. This is an application for leave to appeal against an award made by the learned Presiding Officer on 13 June 2002 in favour of the Claimant in the Labour Tribunal against her former employer for monies owing to her following her summary dismissal.

2. The claim of the Claimant was contested below on the ground that the Claimant was justifiably dismissed by the employer. The grounds relied on by the employer related to alleged theft of two used computers, the failure to report a complaint by a customer to the company of which the Claimant was the manageress at all material times and the failure to report for duty on a number of days.

3. The Presiding Officer made findings of fact against the employer on all three grounds and as a result gave judgment in favour of the Claimant. In this application for leave to appeal, the Defendant says that the Presiding Officer ignored to or failed to give sufficient weight to the evidence adduced by the Defendant relating to the alleged theft and the failure to report for duty.

4. At today's hearing, Miss Wong, counsel appearing for the Defendant, only focuses on the alleged theft. She argues that the Presiding Officer failed to take into account or properly considered a number of factors which would suggest that the factual case of the Defendant was more credible than that put forward by the Claimant and her witness in the proceedings below.

5. Section 32 of the Labour Tribunal Ordinance (Cap. 25), which governs the application for and grant of leave to appeal, provides under sub-section (1) as follows:

"If any party is dissatisfied with an award, order or determination by the tribunal on the ground that the award, order or determination is -

(a) erroneous in point of law; or

(b) outside the jurisdiction of the tribunal,

such party may, within 7 days after the date on which the award, order or determination was served on him, or within such extended time as may be allowed by the Registrar of the High Court on good cause, apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave."

6. It is clear that in the present application we are not concerned with a situation of the Tribunal acting outside its jurisdiction. As regards the intended grounds of appeal put forward by the Defendant in this application, in my judgment, they do not relate to any errors or alleged errors of law; the attack is really on the factual findings made by the Presiding Officer. In my judgment, this does not fall within the requirement of the section in question.

7. Of course, a finding of fact might, depending on the circumstances, be challenged as an error of law, in that if the finding is one which no reasonable fact-finding tribunal on the evidence adduced before it would have made if properly directed on the evidence, then the finding of fact could be attacked as having involved an error of law. But on the facts of this case, bearing in mind the very able submission of counsel who obviously has a very difficult task in this application, I am clearly of the view that no such error of law was involved in the present case. In particular, it is very clear from the judgment of the Presiding Officer that he preferred the evidence of the Claimant and her witness to the evidence of Mr Chiu and his wife, Miss Tsui, the couple who beneficially owned and run the Defendant at all material times. As to the several facts or matters pointed out by Miss Wong during submission, first, I do not think this application for leave to appeal is a proper forum for going into these matters, nor do I think that an appeal proper would be a proper forum for going into all this. They were factual matters for the fact-finding tribunal to consider and an appeal court should not get involved in such sort of argument or submission.

8. Secondly, I think during submission, I have already pointed out to counsel that the factors or matters she relied on were not flawless and there were other matters available in evidence which would have the effect of neutralising these matters, and one simply could not say that the Presiding Officer had not applied his mind to these matters. And after all, the Presiding Officer accepted the evidence of the Claimant after "consider[ing] the case as a whole".

9. So for all these reasons, I do not consider that the present application falls within the requirement laid down under section 32 for grant of leave to appeal. I make an order dismissing the application; I make no order as to costs.