SUAPERO, GLORIA POTESTADES v. HON LAI PING, LISA

HCLA 24/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

LABOUR TRIBUNAL APPEAL NO. HCLA 24 OF 2001

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM
NO. LBTC 5669/2000)

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J U D G M E N T

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1. This is an appeal by the Appellant against the award of the Presiding Officer in Labour Tribunal Case No. LBTC5669 of 2000. By the award, the Presiding Officer dismissed the claim by the claimant in respect of wages in lieu of notice, arrears of wages, statutory holiday pay and rest days.

2. The Appellant was the employee of the Respondent who was a Filipino maid and she has been working for the Respondent during 1999. A main dispute at the hearing before the Tribunal was that whether the Appellant resigned on her own instead of being dismissed by the Respondent.

3. The Presiding Officer held that she resigned on her own. In coming to that conclusion, the Presiding Officer obviously placed reliance on a document which was produced as Exhibit D1 at the Tribunal. Exhibit D1 was a document in Chinese, it was supposed to be a letter of resignation by the Appellant. It was written in Chinese because it was written by the Respondent. However, on the face of it, there was apparently a signature by the Appellant. It was also said at the hearing before the Tribunal that after this document was produced by the Respondent, it was given to the Appellant to sign in the presence of a Police Officer. The Police Officer also gave evidence before the Tribunal.

4. According to the evidence of PC1061, he had explained this document to the Appellant before she signed. So there were evidence before the Tribunal which, if accepted by the Tribunal, could lead to the conclusion that it is a document signed by the Appellant. However, this appeal is not an appeal against the finding of facts of the Presiding Officer simpliciter.

5. The main ground of the appeal is that the Presiding Officer had failed to sufficiently exercised his duty to investigate the authenticity of this document. This is because under section 20 of the Labour Tribunal Ordinance, a Presiding Officer is required to investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party. The nature of that duty has been examined by the late Deputy Judge Jerome Chan in the case of Chan Suk Bing, Angie v Harbour Phoenix [1992] 2 HKC p. 459. At pages 462-463 of the Report, his Lordship examined the law in this respect. Deputy Judge Chan in that case emphasised that the duty of the Presiding Officer is an inquisitorial one rather than an adversarial one. In that respect, the proceedings before Labour Tribunal is different from usual court proceedings, the Presiding Officer in Labour Tribunal had to assume an active inquisitive role in the proceedings. If the Presiding Officer failed in that respect the aggrieved party is entitled to appeal.

6. However, there is a limit to that duty which Deputy Judge Chan set out at pages 462h-463c:

"It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The relevant matter forming the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a failure and proper determination of the claim cannot be attained. All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld. Further, not only is the total absence of investigation a ground for complaint, totally inadequate or useless investigation which amount to no investigation at all will also suffice. It is however never sufficient for the appellate court to conclude that it would prefer to approach the matter differently or that, there is a better way to investigate the claim. It is not open to the appellate court to prefer its own views to that of the Presiding Officer as to the manner of investigation. To suffice, it must be a clear and obvious case that the inadequacy of an investigation will render an ordinary reasonable man on the tram to Shaukiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained."

7. Applying these principles to the facts of the present case, I have to ask myself whether there are matters which should have been investigated but unfortunately had not been adequately investigated by the learned Presiding Officer to an extent that an ordinary reasonable man would conclude that injustice had resulted.

8. On the face of Exhibit D1, that is the alleged letter of resignation by the Appellant, there were matters which cried out for investigation. In respect of the purported signature of the Appellant, it was written in capital letters. Whilst by itself, it may not be very important, at the hearing before the Tribunal, the Appellant herself had denied that she signed the document and also placed before the Tribunal various other documents which were signed by the Appellant herself. So it was possible for the Presiding Officer to compare those signatures with the one on D1. If he had done so, he would immediately see that the signatures in the other documents were very different from the one in Exhibit D1. It is certainly a matter which should be investigated further.

9. Another problem with the document is that it was wrongly dated. It was dated 7th April 2000. However, the incident actually happened on 6 April 2000. Again this matter has not been investigated. Of course, it is open to the Presiding Officer to accept the evidence of the Police Officer. However, in the light of these matters which cried out for further investigation, it is my judgment that the learned Presiding Officer should probe further into the evidence of the Police Officer when he asked him to deal with this documents.

10. If one refers back to the transcript of the proceedings, I am afraid that the learned Presiding Officer did not go far enough in this respect. In fact, when giving evidence the police officer at first failed to give the correct evidence about the language of the document. The officer at first testified that the document was in English and it was only upon the Presiding Officer putting the document to the Police Officer that the Police Officer agreed that the document was in Chinese. And also it is under the leading question of the Presiding Officer that the Police Officer agreed that he had explained the document to the claimant, that is the Appellant.

11. There was also another curious aspect in the Police Officer's evidence. The Police Officer said in his evidence that if the Appellant wanted to resign, she would not have made a report to the Police for assistance. On that piece of evidence, it seemed to me that the Police Officer was under the impression that the Appellant did not wish to resign. Yet the Presiding Officer said in his Reasons for Decision that the Police Officer felt that the Appellant would like to resign. I cannot find anything from my reading of the transcript to justify that conclusion.

12. Also if the Police Officer had explained the document to the Appellant as he said in his evidence, he would have noticed the mistake about the date. This is another matter which the Presiding Officer should have investigated further with the Police Officer. Yet the Presiding Officer had not even asked the Police Officer as to how he explained the document to the Appellant. This is important because the document is in Chinese.

13. Further, the evidence of the Police Officer as a whole did not quite explain how suddenly the employer would prepare a letter of resignation for the Appellant to sign. According to his evidence, he was asked by the Respondent to tell the Appellant how to perform her work. The Police Officer duly did that and the Appellant said she understood, and then suddenly the Respondent produced a piece of paper which is Exhibit D1, this is quite mysterious to me. Indeed, this is also a matter which the Presiding Officer should have investigated more.

14. After taking all these matter into account, there are in fact quite a number of important matters which, in my view, the learned Presiding Officer should have investigated further. Because of the importance of this document to the case, the failure of the Presiding Officer in these respects would cause an ordinary man to conclude that injustice has resulted in that fair and proper determination of the claim cannot be obtained.

15. For these reasons, I have to allow the appeal and I will remit the matter back to the Labour Tribunal for a re-trial before another Presiding Officer. I have to emphasize that in so deciding, I do not say that the Appellant would necessarily succeed in her claim nor do I say that Exhibit D1 is not authentic. All I decide is that there are matters which require further investigation. As to how these matters are to be investigated and what is the result of those investigations, these are matters entirely within the jurisdiction of the Presiding Officer who deal with the re-trial. As to whether hand-writing expert should be engaged, again this is a matter entirely for the Presiding Officer.