XCHRX UDL KENWORTH ENGINEERING LTD. v. SO LAW AND OTHERS

H.C.L.A. 75 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 75 OF 1998

(On Appeal from Labour Tribunal Claim No. LBTC 5502 of 1998)

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REASONS FOR DECISION

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Introduction

1. At the end of the ex parte hearing, I dismissed the Applicant's application for further materials as well as its application for leave to appeal. I stated that reasons for the decision would be given on a date to be notified. These are the reasons.

Summary of the Proceedings in the Labour Tribunal

2. The Applicant was the main nominated sub-contractor of a construction site. It was sued together with a nominated sub-contractor by a number of claimants in the Labour Tribunal. The claimants claimed they were employees of the nominated sub-contractor and wages and overtime payments in arrears for March to May, 1998 were due to them. The claimants also claimed for other sums against the nominated sub-contractor but only the claim for wages and overtime payments related to the Applicant.

3. In the Labour Tribunal, in essence two lines of defence were adopted by the Applicant. First, 5 of the claimants were in fact sub-contractors and the other claimants were the employees of these sub-contractors (rather than the nominated sub-contractor). Secondly, the work records shown on the attendance book of the Applicant were untrue. Further, there were only very few workers who attended work during the relevant period.

4. After a hearing lasting for about 10 days, on 30 October, 1998, the Labour Tribunal decided in the claimants' favour over the said issues raised by the Applicant.

The "Application for Leave to Appeal on Point of Law"

5. Pursuant to s. 32 of the Labour Tribunal Ordinance, Cap. 25,

"(1) If any party is dissatisfied with an award ... on the grounds that the award ... is -

(a) erroneous in point of law; or

(b) outside the jurisdiction of the tribunal,

such party may ... apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave."

6. The Applicant was dissatisfied with the decision of the Labour Tribunal. It instructed Messrs. Norman M.K. Yeung & Co. to lodge an appeal against the decision. On 14 November, 1998, that firm filed a Notice to Act for the Applicant and filed an "Application for Leave to Appeal on Point of Law" on the same day stating therein the following grounds:-

"1. The learned Presiding Officer erred in law in holding that some of the Claimants, namely ... were direct employees instead of independent subcontractors;

2. By failing to consider the point raised in paragraph 1 above, the learned Principal Presiding Officer was wrong in awarding and determining in favour of the aforesaid 5 Respondents (Claimants) wages in arrears in the total sum of HK$110,800.00 and costs of HK$27,200.00;

3. Further or in the alternative, the learned Principal Presiding Officer erred in law in holding that all the wages claimed by all Respondents (Claimants) had yet been paid and the said Respondents (Claimants) are entitled to the wages claimed.

4. By failing to consider the point raised in paragraph 3 above, the learned Principal Presiding Officer was wrong in awarding and determining in favour of the aforesaid 65 Respondents (Claimants) wages in arrears and overtime payments in the total sum of HK$1,451,775.00 and costs of HK$146,400.00.".

Subsequent Proceedings in the High Court

7. On 16 November, 1998 (two days after the solicitors came on the record), the solicitors wrote to the Registrar of the Labour Tribunal pursuant to Rule 8A(1) of the Labour Tribunal (General) Rules asking for a certified copy of the entire record of the proceedings. The hearing of the application for leave was scheduled to be on 15 December, 1998. On 4 December, 1998, the solicitors wrote to the High Court requesting for the 15 December hearing to be adjourned. That application was granted on 8 December, 1998.

8. The hearing of the application for leave was refixed to 3 February, 1999. The Listing Officer noted that an early date was offered but was declined by the solicitors. In a letter dated 23 January, 1999, the solicitors wrote to the High Court requesting for the hearing to be adjourned again. The parts of this letter relevant to my decision are set out below:-

"We confirm that the Notes of Proceedings and Reasons for Decision were made available to us on 21 December, 1998 and 4 January, 1999 respectively.

As both documents altogether consist more than 250 pages and are in Chinese, translation of the same is necessary and considerable extra time is required. As a result, we have been left with no reasonably sufficient time to properly prepare the forthcoming hearing.

In the circumstances, we hereby apply for a final adjournment of the said hearing for 4 weeks." (underline supplied).

9. The request for an adjournment was granted by the High Court on 26 January, 1999 and a new date was to be fixed (not earlier than 1 March, 1999). The new hearing was scheduled to be on 30 March, 1999, that is, the hearing at which the Applicant's two applications were dismissed.

10. Shortly before the hearing on 30 March, 1999, the solicitors wrote to the High Court on 18 March, 1999 asking for a copy set of the exhibits produced in the Labour Tribunal to be provided. In a letter dated 26 March, 1999 from the High Court to the solicitors, my queries were set out:-

"1. Please explain why the exhibits were not requested for or obtained earlier despite request for notes of proceedings, etc. was made as early as 16.11.98;

2. Please do [sic] [should be "also"] explain why the request for the exhibits is only made now when the notes of proceedings, etc. were already available on 21/12/98 and 4/1/99 (a lapse of some two and a half months) (see solicitors' letter dd. 23/1/99 asking for adjournment);

3. Why the application for exhibits was not made pursuant to R. 8A(1) of the Labour Tribunal (Gen.) Rules earlier?".

11. No written reply was given by the solicitors. Instead, the Court was given copies of two other letters dated 15 March and 18 March respectively. In the 15 March letter, the solicitors wrote to the Labour Tribunal to ask for the certified copy of the entire record of the proceedings as well as the exhibits; in the 18 March letter, they in essence repeated that request.

The Application for Further Materials

12. At the hearing on 30 March, 1999, I raised the same queries with Mr. Chan who appeared for the Applicant. I also asked him to explain why there was an apparent delay in the solicitors' request for copies of the exhibits. To put it shortly, Mr. Chan could not give any explanation as to why there was the delay (from at least 4 January, 1999).

13. Mr. Chan then drew my attention to the 15 March letter and 18 March letter and requested for a certified copy of the entire record of the proceedings to be provided. When I asked him why such a request was made, Mr. Chan informed me he was recently instructed in this matter and his lay client had instructed him the Principal Presiding Officer had "tailored" the Notes of Proceedings provided to his solicitors earlier by taking out the parts of the proceedings which were unfavourable to the Claimants. I reminded Mr. Chan that this was a very serious allegation. He said he was aware of its seriousness but nevertheless would maintain this complaint. He submitted it would therefore be necessary to ask for copies of the certified record.

14. This latest complaint had never been included in the grounds for applying for leave to appeal and was only made by Mr. Chan orally at the hearing. Further, there was no explanation as to why it was only raised at such a late stage. Mr. Chan was not able to offer one when I asked him for an explanation.

15. I also asked Mr. Chan why it was considered necessary to ask for copies of the exhibits when the hearing was only to ask for leave to appeal, and was not the appeal hearing proper. By way of example, Mr. Chan drew my attention to p. 22 of the Reasons for Decision of the learned Principal Presiding Officer. An exhibit "C8" was referred to there. The learned Principal Presiding Officer described it to be an attendance record of the Applicant which had all along been kept by the Applicant. Mr. Chan denied that this document was either the Applicant's or that it was kept by his client. He submitted that this document may show that the Labour Tribunal's finding on credibility was perverse.

16. Having considered (a) the history of the proceedings, in particular the proceedings in the High Court, and (b) the nature and the timing of the various requests made by the Applicant recently, I find that the Applicant does not have a valid reason for making these requests. They were either attempts to fish for materials without proper foundation, or were mere attempts to delay the matter. For these reasons, I have no hesitation that they should be refused.

The Application for Leave to Appeal

17. Having refused the Applicant's application for further materials, I then invited Mr. Chan to address me on the application for leave to appeal.

18. To my surprise, Mr. Chan invited me to dismiss the application. I then reminded Mr. Chan that a refusal of leave to appeal is final: see s. 35(3) of Cap. 25. Despite this reminder, Mr. Chan repeated his said invitation.

19. I have earlier perused the materials supplied by the Registrar of the Labour Tribunal. I find that there is no valid ground for applying for leave to appeal. I therefore have no hesitation in acceding to Mr. Chan's invitation and dismiss the Applicant's application for leave. After I have done so, Mr. Chan again requested me to order the supply of further materials to his client. He said this was to enable the Applicant to consider whether there are new grounds for an application. I do not consider I have the power to do so after having dismissed the application for leave. In any event, even if I do, I do not find it appropriate to do so because I already found the request in effect to be an abuse of process.