NG SI LI t/a GALLIUM v. YEUNG TSZ SHAN

HCSA 9/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 9 OF 2012

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
NO. 26151 OF 2011)

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J U D G M E N T

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1. The appellant has made a claim of misappropriation of money against the respondent at the Small Claims Tribunal. The claim is for HK$18,000. The respondent’s defence is that the money was for payment of her wages. The respondent has also made a claim at the Labour Tribunal No. LBTC 1682/2011 against the appellant herein for arrears of wages, payment in lieu of notice of termination and severance payment. The total amount of the claim exceeds HK$60,000.

2. An adjudicator of the Small Claims Tribunal transferred the appellant’s claim to the Labour Tribunal on 19 December 2011 so that it could be dealt with together with the respondent’s claim at the Labour Tribunal.  The adjudicator’s reason for transfer was that the Labour Tribunal was a specialist tribunal dealing with labour disputes and the two claims in the two tribunals involved the same issue of whether the appellant and respondent were in an employment relationship.

3. The appellant appealed against the order of transfer.

4. I granted leave to appeal on 26 April 2012.  I considered that a tortuous claim was outside the jurisdiction of the Labour Tribunal and hence the appellant’s claim in the Small Claims Tribunal should not have been transferred to the Labour Tribunal. 

5. I also considered that the respondent’s claim in the Labour Tribunal should not be transferred to the Small Claims Tribunal to be dealt with together with the appellant’s claim there.  The reason being that the respondent’s claim in the Labour Tribunal exceeds HK$50,000 and is outside the jurisdiction of the Small Claims Tribunal.  All my reasons are in my decision for granting leave to appeal given on 26 April 2012 and I do not repeat them here.  I considered that both claims should be transferred to the District Court to be dealt with together.  It is better for the two claims to be dealt with by the same judge at one trial.  To allow the two claims to be decided by different tribunals can result in inconsistent judicial findings and that is most undesirable.

6. Counsel for the appellant shares my view.

7. I would therefore allow this appeal.  However, I would not order that the appellant’s claim be transferred back to the Small Claims Tribunal and then for the Small Claims Tribunal to transfer it to the District Court for it to be joined with the respondent’s claim to be transferred there from the Labour Tribunal.  That will incur too much trouble for the parties.  Instead, I will just leave the appellant’s claim to remain in the Labour Tribunal.  The Labour Tribunal can transfer it together with the respondent’s claim no. LBTC 1682/2011 to the District Court.  That will save an appearance by the parties at the Small Claims Tribunal.  The parties only need to appear once at the Labour Tribunal to procure the transfer of both claims to the District Court.

8. I also order that costs of the application for leave to appeal and of this appeal be in the course of the appellant’s claim originally lodged with the Small Claims Tribunal.