CHAN KING CHEONG v. YAN CHIM KEE AND CO. LTD.

IN THE COURT OF APPEAL

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal from a judgment of His Honour Judge Scriven whereby he ordered that judgment be entered for a sum of money under a contract of employment.

2. The matter came before the judge after there had been proceedings in the Labour Tribunal. A decision in those proceedings was made on 5th July 1983 by the Presiding Officer, Mr. Lee, which is recorded in his notes as "Claim dismissed for want of jurisdiction". The matter had been heard in the Tribunal on three days and there had then been an adjournment for six days for the Presiding Officer to consider his decision. There had been no discussion on jurisdiction, but that is how he recorded his decision. In my view the words which he used are unambiguous and it is not possible, as has been suggested to us, that the Presiding Officer could have decided the case upon the merits. It is unfortunate that we do not have before us any other record of the decision or, more importantly, of the reasons for the decision. Under s.22(3) of the Labour Tribunal Ordinance a Presiding Officer is required, when he has made an award or order orally, to reduce it to writing as soon as possible and in any case not later than 14 days after the date of the award or order. That clearly was not done in the present case. If it had, we would have been able to see for ourselves what reasons the judge had for his decision, but that does not alter the fact that the nature of his decision is beyond question: having apparently heard the case for three days on the merits the Presiding Officer suddenly appreciated that he had no jurisdiction. I say "appreciated": he thought he had no jurisdiction. I for my part am by no means convinced that that was the right decision, as the claim was for liquidated damages, but we have not heard argument on the matter and I express no concluded view upon it.

3. The important thing is that the decision to dismiss for want of jurisdiction is not a decision on the merits but is in fact to decline jurisdiction. Therefore there was no decision which could operate as a res judicata. Under the provisions of the Ordinance for twelve months the Labour Tribunal has an exclusive jurisdiction, but after twelve months that exclusive jurisdiction comes to an end and thereafter the jurisdiction of the ordinary courts is not excluded. Therefore there was no reason at all why Judge Scriven should not proceed to decide the matter as he did. That being so, in my view this appeal must be dismissed.

Cons, J.A.:

4. I agree with all that my Lord has said and I too would dismiss he appeal.

Fuad, J. A.:

5. I agree that for the reasons given by my Lord the appeal should be dismissed.

1st November 1984