XCHRX MAK CHIU MING AND OTHERS v. CHEUNG LAI WA t/a R & C CO. AND OTHERS

HCLA 50/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 50 OF 2000

(On appeal from Labour Tribunal Claim No. 292 of 2000)

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REASONS FOR DECISION

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1. The is an application for leave to appeal against the decision of the Presiding Officer Mr Jack Wong given on 9 May 2000 under Section 32 of the Labour Tribunal Ordinance, Cap. 25. I adjourned the hearing on 4 July 2000 because I was not provided with the transcript of the proceedings below by the Registrar of the Labour Tribunal or by the Applicants' solicitors, notwithstanding that counsel for the Applicants had made quite a number of references to the transcript in his skeleton submission provided to the Court the day before the hearing. Upon my request to counsel to be provided with the pages of the transcript referred to in his skeleton submission, only some of the relevant pages of the transcript were provided to the Court the day before the hearing. In the circumstances, I had no choice but to adjourn the hearing to 9 July so that I could have the opportunity of calling for and reading the transcript. I refused leave to appeal at the hearing on 9 July 2000 and these are my reasons.

2. The four Claimants claimed arrears of wages from 1 September 1999 to 31 October 1999. The 5th Defendant was their direct employer. Their claim against the 1st Defendant (which was the principal contractor) and the 2nd to 4th Defendants (they were the sub-contractors) was made under Part IXA of the Employment Ordinance, Cap. 57. Judgment was entered against the 4th and 5th Defendants by admission on 31 January 2000. As they did not satisfy the judgment debt, the Claimants pursued their claims against the 1st to 3rd Defendants. The 3rd Defendant did not appear at the trial. The 1st and 2nd Defendants, which are associated companies, were represented by the same representative and took part in the trial. The 1st and 2nd Defendants doubted the veracity as well as the accuracy of the work records produced by the 1st to 4th Claimants. Their representative had submitted that the Claimants just had no or no credible evidence to establish their allegation that they had worked at the construction site at the Chinese University of Hong Kong at the material time.

3. The Presiding Officer dismissed the claim of the 4th Defendant, after holding that she was not engaged in "work" under Part XIA of the Ordinance being "the supply of manual labour for the purpose of or in connection with building works", and that her place of employment is not "wholly on the site of the building works". As for the 1st to 3rd Claimants, the Presiding Officer upheld their claims. However, he awarded them only 70% of the amounts claimed after deducting their claims for wages on 16 September 1999 (the day when typhoon signal No. 10 was hoisted) and the period after 23 October 1999 (when possession of the site was recovered by the 1st Defendant from the sub-contractors). The reason for the Presiding Officer awarding the 1st to 3rd Claimants only 70% of the amount claimed after making the aforesaid deductions was because the Presiding Officer concluded on the evidence that the work records which showed the number of days on which these Claimants had worked should be about 70% accurate.

4. It is primarily this finding that the 1st and 2nd Defendants sought to challenge when they applied for leave to appeal on a point of law. In the application filed on their behalf on 24 May 2000, the grounds of appeal advanced by these Defendants were that the Presiding Officer had failed to make proper enquiries into the accuracy or otherwise of the work records produced by the Claimants and that he had failed to make proper enquiries as to why the work records were inaccurate before he made the ruling that the number of working days in the work records of the Claimants should be about 70% accurate.

5. I was referred by Mr Andy Cheng, who appeared for the 1st and 2nd Defendants in this application, to Chan Suk Bing Angie v. Harbour Phoenix Ltd & Anr [1992] 2 HKC 459 in which the Court considered the statutory duty upon Presiding Officers under Section 20(3) of the Labour Tribunal Ordinance, by which they had to investigate relevant matters irrespective of whether they were raised or relied upon by any party because of the inquisitorial nature of hearings in the Tribunal. The relevant part of the judgment reads as follows:

"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 fair 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 appellete court to conclude that it would have preferred to approach the matter differently or that there is a better way to investigate the claim. It is not open to the appellete court to prefer its own views to that of the Presiding Officer's as to the manner of investigation. To suffice, it must be a clear and obvious case that the inadequacy of the 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.

A complaint of a failure to discharge the statutory duty to investigate is not to be confused with an attack on a finding on the basis that it is contrary to the weight of evidence. The latter is not a ground for appeal for a labour dispute in the tribunal. The insufficiency of evidence to support a finding or the inconsistency of a finding with the evidence, are matters that the appellete court can properly take into account to determine whether there has been a failure to conduct any or any adequate investigation of material facts relevant to such a finding. But that is as far as the relevance of these matters go in relation to the failure to discharge the statutory duty. They do not per se prove a failure to discharge the statutory duty. They are only matters which may give rise to a need for further investigation before a determination should be made. If there has been a proper and adequate investigation of the claim, no complaint can be made against any such findings of fact." (at 462H-463F; emphasis supplied)

6. Having considered counsel's submissions both written and verbal, the parts of the transcript that he referred me to, and other parts of the transcript that he did not refer me to, I am not satisfied that the Applicants have made out a prima facie case for their complaint that the Presiding Officer had failed to carry out proper investigation into the accuracy of the work records produced by the Claimants. Indeed, I would go so far as to say that it would appear from a careful reading of the transcript that a proper investigation had been carried out by the Presiding Officer in this regard. I say this for the following reasons.

7. Firstly, the issue whether the Claimants had worked on the site on the dates as purportedly marked on the records produced by them was an issue that had loomed large at the trial. It was the most important issue that the Presiding Officer had to resolve. The work records produced by the Claimants were essentially the only evidence in writing. It was of crucial importance for the Presiding Officer to make a finding on the veracity and accuracy of the work records and he was keenly aware of that.

8. Secondly, the Presiding Officer had probed the issue with each of the Claimants in a thorough manner. It was the Presiding Officer who had brought up in his questioning of the Claimants matters which appeared to be suspicious to him, such as his observation that some of the Claimants had appeared to use the same pen to mark on their work records over a period of two months; and his queries of the 1st Claimant why he should mark the number of days he had worked as he was not paid on a daily basis but remunerated on a monthly basis. It was after skillful questioning of the Presiding Officer on the events that happened on 16 September 1999 (when typhoon signal No. 10 was hoisted) and after the Presiding Officer had caused inquiries to be made with the Hong Kong Observatory that the Claimants eventually admitted that their work records were not made immediately afterwards but only some time after the event.

9. Thirdly, the Presiding Officer had not merely concentrated on the matter how the Claimants had marked up their work records, he had also investigated other matters that would be of relevance in determining whether the Claimants had indeed worked on the site on the dates as claimed. For instance, he had questioned each of the Claimants at some length as to the nature of the work they had carried out on the site and they were asked to describe the conditions on the site. It should be noted that the evidence given by the Claimants on the manner in which they carried out their work and the conditions on the site was not challenged by the representative of the 1st and 2nd Defendants, who was apparently familiar with the site, although this representative had disputed and challenged the Claimants' evidence that they had worked on the site. The Presiding Officer had also made inquires with the witnesses called by the 1st and 2nd Defendants whether they recognised any of the Claimants. Although these witnesses did not recognise each and every one of them, there was evidence that two out of the four Claimants were recognised.

10. Reading the transcript as a whole, and having considered all the circumstances of the case as well as other findings made by the Presiding Officer on the recognition of the Claimants by the Defendants' witnesses and the description of work given by the Claimants, I am of the view that the Applicants' complaint that the Presiding Officer had failed to investigate the accuracy of the work records is plainly unjustified. It also seems to me that the attack mounted by counsel in this instance is really an attack on the Presiding Officer's finding that it is contrary to the weight of the evidence, and this is not something that a party is entitled to do in seeking to appeal against a decision of the Labour Tribunal.

11. I do not intend to deal with each and every point raised by Mr Cheng in his submissions. I would only deal with two of them as they are the more serious allegations made against the Presiding Officer.

12. The first point was an allegation that the Presiding Officer was biased and that he had presumed the Claimants must have worked on the site without investigating the issue. I am wholly unable to see how that allegation could have been substantiated even just by reading the parts of the transcript referred to by counsel. I am firmly of the view that anyone reading the transcript in the totality would not have formed the view that the Presiding Officer was biased. As a matter of fact, the Presiding Officer had emphasised at various times when he was questioning the witnesses that he was merely expressing a provisional view and that he had not made up his mind on the issue he had to decide.

13. The other matter was an allegation that the Presiding Officer had invited the Claimants to speculate as they liked on the extent that the work records were accurate and that he had accepted their estimation of 70% accuracy without investigating the issue properly. I do not think it is improper for the Presiding Officer to question each of the Claimants to ask them to give him an estimate of the number of days in which they had actually worked, when it had been demonstrated in the course of the questioning that the work records could not be entirely accurate as the 1st and 3rd Claimants' records had marked the day of the typhoon as a working day. If there was no other evidence to support the finding that the work records were 70% accurate, counsel may have a point in his submissions that the insufficiency of the evidence would go to show that the Presiding Officer had not discharged his statutory duty of making proper investigation on a relevant issue. However, that is not the case here. There was evidence from the 1st Claimant that at the relevant time, the workers had to finish the job within a required time and they had to expedite their work. Further, there was evidence from the 5th Defendant that when the 1st and 2nd Defendants took over the possession of the site, over 90% of the work that the 5th Defendant had undertaken to do had been formed by the 5th Defendant's workers. Whether the quality of the work carried out by the 5th Defendant was of a satisfactory standard was a matter in dispute and that is the subject of a pending action in the High Court.

14. As no or no sufficient grounds had been advanced by the 1st and 2nd Defendants to establish that the Presiding Officer had erred on a point of law, I refuse to give leave to appeal to these Defendants.