ALLIDEM MAE G v. KWONG SI LIN

HCMP33 /2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2006

(ON INTENDED APPEAL FROM HCLA No.4 OF 2004 )

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the Court):

1.  This is an application by Madam Kwong Si Lin ("the employer") for leave to appeal to the Court of Appeal from a judgment of Deputy High Court Judge Carlson handed down on 29 December 2005 dismissing her appeal from a decision of the Labour Tribunal awarding Madam Mae G. Allidem ("the employee") a sum of $24,518.30 as long-service payment.  This is a renewed application for leave to appeal as the employer’s application on paper had been dismissed by Cheung JA on 17 January 2006.

2.   Appeals from decisions of the Labour Tribunal are severely restricted by legislation.  The restrictions are stricter as one goes up the appellate ladder.  Appeals are circumscribed in the following ways relevant to this case:

-	a party wishing to appeal from the Labour Tribunal to the Court of First Instance needs leave from the Court of First Instance: s.32(1) Labour Tribunal Ordinance ("LTO") Cap. 25;
-	the Court of First Instance can only give leave if it considers it arguable that the Tribunal’s determination was erroneous in point of law (not fact): s.32(1) LTO;
-	at the appeal to the Court of First Instance, although the court may draw any inference of fact, it cannot reverse or vary any determination of the Tribunal on questions of fact: s.35(2) LTO;
-	a party wishing to appeal from the Court of First Instance to the Court of Appeal needs leave from the Court of Appeal: s.35A(1) LTO;
-	the Court of Appeal can only give leave if it considers it arguable that "a question of law of general public importance is involved": s.35A(1) LTO;
-	the application for leave to appeal must set out the question of law:s.35A(2)(a) LTO;
-	the Court of Appeal’s refusal to grant leave to appeal is final: s.35A(3) LTO.

3.  In this case, the application for leave to appeal filed on 6 January 2006 sets out 2 grounds of appeal.  They are as follows:

"	1.	郭靄誠暫委法官對被告上訴人提出的理據事實，一慨充耳不聞，視若無睹，衹顧單方面不盡不實地套用片面的法律論據，加諸於案件中片面的事實，從而對本案件作出不公平和不誠實的判決. Injustum est, nisi tota lege inspecta, de una aligua ejus particula proposita judicare vel respondere.
	2.	郭靄誠暫委法官在作出12月29日判決前，已明顯地多次表達了其偏袒原訴人和針對被告上訴人的成見.  既有先入為主的成見，而且其判案書著實無充份理據亦欠持平，郭暫委的12月29日判決理應被推翻.  Jus et parti pris nunquam cohabitant".

4.  It is clear that neither of those grounds as so drafted can be "a question of law of general public importance".  They only refer to an individual judge’s handling of a particular case. 

5.  However the employer has sought to show in written submissions that the intended appeal involves "a question of law of general public importance" by referring to a number of English and Hong Kong authorities.  It was submitted in particular that the intended appeal involved the question of the limits and the applicability of Chak Chong-chi v Maxim’s Caterers Ltd LTA 25/1992 (unrep.).  It was also suggested that there may have been confusion in the use of the term "summary dismissal" in some judgments as the term is not necessarily in conflict with termination by payment in lieu. 

6.  Chak was a decision of Deputy Judge Jerome Chan (later Jerome Chan J.) to the effect that if an employer considers that he has grounds for terminating an employee’s employment under s.9 Employment Ordinance ("EO") Cap. 57 but he nevertheless makes payment to the employee when terminating, the employer must expressly inform the employee at the time of termination that the payment was not payment in lieu under s.7 EO but was an ex gratia payment, if he is to avoid liability to pay long-service payment under s.31S(1) EO.  I think it is fair to say that this decision has been regarded by some as controversial.  

7.  I also agree that it is safer not to use the term "summary dismissal" in judgments as shorthand for "termination under s.9 EO" to avoid any misunderstanding on the part of a reader.

8.  However in the present case, those questions (even assuming that they are questions of law of general public importance) are not supported by the necessary findings of fact on which an appeal may be raised.  If there had been a finding of fact by the Tribunal that the employee’s conduct did actually warrant termination under s.9 EO, but the employer had made payment at the time of termination without the express statement recommended in Chak, this court may have given leave to appeal so that it could consider whether the decision in Chak is correct.

9.  But that is not this case.  First, the Labour Tribunal found as a fact that the employer had failed to discharge her burden of proving that there were sufficient grounds for termination under s.9 (para. 26, transcript of Presiding Officer Poon’s judgment).  Secondly, Deputy Judge Carlson (after reading the evidence before the Presiding Officer) also concluded that the Presiding Officer’s assessment of the evidence had not been shown to be perverse on the primary facts, nor had the Presiding Officer drawn inferences from those facts which were not reasonably open to him (para. 31, Deputy Judge Carlson’s judgment). 

10.  The end position is that the question of fact - whether the employee’s conduct provided sufficient grounds for termination under s.9 - had been conclusively determined against the employer.  By reason of the restrictions in s.35A(1) LTO, it is not open to this court to see whether the Presiding Officer’s determination of fact was right or whether the deputy judge could have drawn some other inferences from the evidence.  

11.  Given those findings of fact, whether the approach in Chak is right as a question of law is purely academic.  Where there is no foundation in fact for the intended appeal, the court cannot give leave as it cannot decide academic cases.  This application for leave to appeal must accordingly be dismissed.