LAM PING WAI v. LEE YUET LAU AND ANOTHER

HCLA92/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.92 OF 2003

(ON APPEAL FROM LBTC 9692/2002)

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J U D G M E N T

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1. The appellants were the employers and the respondent was the employee, the claimant in the tribunal below.  After a dispute between the parties on 5 August 2003, the appellants dismissed the employee.

2. In the tribunal below, the presiding officer accepted the evidence of the respondent and his witness Mr Chan Chit Kuen and rejected the evidence of the 1^st defendant and his witness Ms Sin, being his daughter and the sister of the 2^nd defendant.  In this appeal, the appellants relied on several grounds and I shall consider each one of them in the sequence of the submissions of counsel for the appellants. 

Ground 6

3. The appellants submitted that when an employee (a claimant) claimed against his employer that he was wrongly dismissed by the employer, whilst the employer claimed that he was justified in dismissing the employee summarily, the burden of proof is first on the claimant. 

4. Mr Stanley C.K. Siu, counsel for the appellants, relied on the case of So Ching t/a South Sea Co. v. Kwan Hang Ching [1987] 2 HKC 297.   Mr Siu submitted that the tribunal erred in the burden of proof and the approach in making the findings of the case.  He also submitted that the tribunal disposed the matter by stating that the allegation of the appellants’ witness Ms Sin that the respondent had assaulted her and damaged the company’s property was without believable reasons in support.

5. However, I accept the submissions of the respondent’s counsel, Mr Simon S.M. Yip.  The learned presiding officer actually had adopted the correct approach in dealing with the burden of proof.  He had no difficulty in deciding which party is more credible.  After he considered all the evidence given by both parties, he found the evidence of the respondent and his witness Mr Chan to be believable and reliable.  He disbelieved the evidence of the 1^st appellant and Ms Sin and, accordingly, he came to the conclusion that there was no sufficient ground to dismiss the respondent summarily.  In this respect, I do not consider that the learned presiding officer erred in the burden of proof of the case.

Ground 1

6. This is the original ground of appeal in the original Notice of Appeal.  The appellants submitted that the award is erroneous in point of law in that there was no or no sufficient evidence upon which the tribunal could reasonably make certain findings of fact upon which his finding that the dismissal was wrongful or without a valid reason.  In the written submission of counsel for the appellants, this was in respect of the “push” alleged by the appellants’ witness Ms Sin which is the complaint of assault of the employee on her.  Basically the complaint is that the presiding officer had failed to rule on whether there was any assault by the respondent on Ms Sin.  

7. However, the learned presiding officer had already stated that he had accepted the evidence of the claimant and that of Mr Chan.  He rejected the evidence of the 1^st defendant and Ms Sin.  In the end, the presiding officer had in effect found that there was no assault at all.  Further I accept the submission of counsel for the respondent that whether there was a “push” by the respondent or not had no relevance for the determination of the issue of “summary dismissal” because the evidence of Mr Chan was that the “concerned event” occurred after the respondent was dismissed.  This was found by the presiding officer to be the fact.  Thus, it could not be relied on by the appellants as a ground for the summary dismissal.

Ground 4

8. This complaint is that the presiding offer erred in law in holding that “warning” was a prerequisite for summary dismissal. 

9. However the presiding officer, after accepting the evidence of the respondent and Mr Chan and rejected the evidence of the appellants and Ms Sin, found that in the circumstances of this case, even if the respondent had not followed the instructions of Ms Sin, it would not be grave enough to amount to any summary dismissal.  The presiding officer then added that in the circumstances this is particularly so when there was never any prior warning. 

10. Accordingly, it is not correct to say that the presiding officer held that “warning” was a prerequisite for summary dismissal.

Grounds 2 and 3

11. The appellants complained that the parties had actually fully and finally settled the respondent’s labour claim and therefore the presiding officer should not have entertained the claim of the respondent.  However, the relevant part of the transcripts clearly disclosed that the presiding officer when mentioning “settlement” meant only “settlement to the allegation of assault in the context of police investigation” but not “settlement of the labour dispute” (see transcript pp.53U to 54F).  The respondent just acted on the advice of the police and “settled” the matter by leaving the scene whilst reserving his right to commence his claim in the Labour Tribunal.

Ground 5

12. The appellants complained that the presiding officer had failed to make sufficient findings of fact to support his decision and had failed to find what had happened at the material time.  I do not consider there is any basis for making this ground of appeal.  The learned presiding officer had made clear findings of fact by accepting the evidence of the respondent and his witness Mr Chan.  This ground must also fail. 

Conclusion

13. By reason of the aforesaid matters, the appellants’ appeal is dismissed with costs to the respondent.