MALLORCA JOENALYN DOMINGO v. NG MEI SHUEN

HCLA 8/2017

[2018] HKCFI 1642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 8 OF 2017

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 3464 OF 2016)

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J U D G M E N T

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Introduction

1.  This is an appeal by the claimant (“C”) against the decision of the Presiding Officer David YF Chum of the Labour Tribunal (“Tribunal”) of 30 March 2017.  The Presiding Officer dismissed C’s applications to transfer the proceedings in the Tribunal to the Technology Court for her evidence to be given through video conferencing facilities (“VCF Application”) and to have an office bearer of a registered trade union to represent her in the proceedings (“Representation Application”).  The Presiding Officer also struck out C’s unsettled claims.  Reasons for decision were handed down by the Presiding Officer on 15 June 2017 (“Reasons”).

2.  There had been 3 hearings before the Presiding Officer, and transcripts of the 2^nd hearing on 1 February 2018 and the 3^rd hearing on 30 March 2018 have been placed before this Court (respectively “01.02 Transcript” and “30.03 Transcript”).

3.  Leave to appeal was granted by this Court on 12 September 2017. 

4.  At the present hearing, Ms Kareena Teh, Solicitor Advocate, appeared for C and the defendant (“D”) was absent, having sent a letter dated 19 June 2018 saying that she had pain in her legs and was not able to attend.  This Court had directed by letter dated 5 July 2018 that any written submissions from D could be lodged within 7 days.  No written submissions were received from D.

Background

5.  C is a Philippine national and was a foreign domestic worker working in Hong Kong and employed by D from 9 June 2016 to 22 September 2016.

6.  It was C’s allegation that she was physically assaulted and summarily dismissed without proper grounds and on the day of her dismissal, D had agreed, after police intervention, to provide C with a reference letter dated 22 September 2016 (“Letter of Reference”) and an agreement dated 22 September 2016 to pay C her entitlements which was signed by both C and D (“Settlement Agreement”).  

7.  C had contacted  the “Helpers for Domestic Helpers” of St John’s Cathedral, now called “HELP for Domestic Workers” (“HDW”)[1] for assistance.  On 25 September 2016 HDW sent a letter to D on behalf of C, indicating that C hoped that the matter could be settled quickly and amicably and set out her claim for a sum of HK$8,111.

8.  D did not respond to HDW’s letter, nor did D pay C any of the amounts set out in HDW’s letter, being approximately the total of items (A) to (E) as set out below. 

9.  C lodged a claim against D in the Tribunal on about 17 October 2016 and filed a statement on 20 October 2016 (“1^st Statement”), in which she set out briefly her claims totalling HK$12,230.33 + ongoing expenses, as follows:

(A)   one month’s wage of HK$4,210 being in lieu of notice;

(B)   arrears of wages for 13 days of HK$1,824;

(C)   pro rata annual leave pay of 2 days totalling HK$277;

(D)   Travel allowance of HK$100;

(E)   an air ticket HK-Manila of HK$1,300 and transport from Manila to Laguna of HK$400; and

(F)   damages for breach of trust being 28 days of her monthly wage of HK$3,929.33 and the visa fee of HK$190.

10.  C later filed a detailed “supplementary” statement dated 27 October 2016 (“2^nd Statement”), in which she had set out the events leading to her employment being terminated on 22 September 2016 and further set out the total amount of her adjusted claims inclusive of damages for breach of trust.

11.  D filed her defence statement on 31 October 2016 (“Defence”) setting out her complaints and allegations of C, and stating therein that she only agreed to pay item (B), namely HK$1,824 being arrears of C’s wages for 13 days from 10 September 2016 to 22 September 2016.

12.  At the first call over hearing on 16 November 2016 before the Tribunal, both C and D were present.  By consent, D agreed to pay C the sum of HK$1,824 in full and final settlement of C’s claim under item (B). The remaining of C’s claims were adjourned to a hearing on 1 February 2017 and directions were given for the filing of further statements and supporting documents[2]. C had filed a further statement dated 5 December 2016 in reply to D’s Defence denying D’s allegations against her (“3^rd Statement”).

13.  Thereafter, C left Hong Kong and returned to her hometown in the Philippines on 8 December 2016.

14.  C’s reasons for saying that she was not able to return to Hong Kong for the proceedings will be set out later in this judgment.  Suffice to say at this stage, C said it was impossible for her to fly back to Hong Kong to attend the hearing on 1 February 2017.  Through the assistance of two pro bono organisations, HDW and Justice Without Borders[3], she had signed a letter dated 25 January 2017 to request for one Mr Tang Kin Wa (“Mr Tang”), an officer of the Hong Kong Federation of Asian Domestic Workers Union (“FADWU”), to represent her at the Tribunal[4].

15.  C submitted a further statement on 27 January 2017, setting out her reasons for not being able to return to attend the hearing on 1 February 2017 (“4^th Statement”) and to support her application for the trial to be in the Technology Court, so that she could be present at the trial and if required to give evidence through video link facilities provided to her  free of charge at the office of SC Law, which is the office of an attorney Robert S Cruz who is a member of the International Pro Bono Alliance. 

16.  At the hearing on 1 February 2017, Mr Tang appeared on behalf of C purporting to represent her.  It can be seen from the 01.02 Transcript that the Presiding Officer had explained to Mr Tang at the hearing that leave should have been applied by C first under section 23 of the Labour Tribunal Ordinance (“Ordinance”) for Mr Tang to represent her. Although there was no leave applied  by C prior to that hearing, the Presiding Officer pointed out that if he was not going to grant leave then the case could not be proceeded with as C’s case would be dismissed due to her absence and thus in the “very exceptional circumstances”, he granted   “temporary leave” for Mr Tang to appear for C for that hearing[5].  

17.  As for the application for leave to move the hearings to the Technology Court referred to in C’s 4^th statement, the Presiding Officer had asked Mr Tang whether he had given any assistance to C in relation to this application.  Mr Tang responded that he was awaiting instruction from the Presiding Officer, who then referred him to PD 29, in particular paragraph 6 thereof, which set out that before applying for use of the Technology Court the applicant should make some preliminary inquiries and also the applicant should consult all other parties involved in the proceedings.  As D was absent at the hearing on 1 February 2017, her views could not be ascertained.  The Presiding Officer then said if Mr Tang wanted to make the application that day and then to notify D later on it would be unfair to D since if he granted the application it would deprive D’s right to raise any objection and  the Presiding Officer pointed out that Mr Tang had a fall-back position in that he asked to adjourn the case[6].  The Presiding Officer said he had some difficulty in dealing with the application in the absence of the defendant. Eventually, Mr Tang applied for the VCF Application to be adjourned and to submit new evidence and “to provide legal grounds for the court’s ability to grant leave for one or both party to appear (?) the Technology Court” [7].

18.  The case was then adjourned to 30 March 2017 and the Presiding Officer directed, amongst other things, that any further application or submission be filed before 15 March 2017 and that D be informed accordingly[8].

19.  The Presiding Officer had said as follows:

“…since we have an application to transfer this case to Technology Court is pending, so therefore, I am not going to dismiss the claimant’s case even if the claimant is absent today. However, I make it very clear to the claimant, if she going to absent it again in next hearing, that I’m going to deal with the application to transfer this case to Technology Court in her absence. Then, if I grant the case to be transferred to the Technology Court, that will be another matter but, if I refuse the application, since the claimant is absent, so, therefore, I may dismiss the claimant’s case. So I very – I make it very clear to the claimant[9]. ” (“Reminder”)

20.  Thereafter, C submitted a witness statement from her husband Randy B Mallorca and a witness statement from her mother Cesaria Domingo of 13 March 2017.  On the same day, she signed a further letter to the Presiding Officer to request for Mr Tang to be permitted to represent her at the hearing on 30 March 2018[10]. C herself also filed a further supplemental statement dated 15 March 2017 (“5^th Statement”) to support her two applications.

21.  At the hearing on 30 March 2017, the Presiding Officer refused to allow Mr Tang to continue to represent C, and further refused to allow the VCF Application.  The Presiding Officer then struck out C’s claims under items (A), (C), (D), (E) and (F) with no order as to costs. 

C’s reasons for the VCF Application and the Representation Application

22.  C’s hometown is in Mamatid in Cabuyao, which is part of Laguna province and is about 50 km south of Manila.  C’s case was that since returning to the Philippines, she had  full-time care of her two young sons, and her elderly and  sick mother (who had lung cancer and was living with assisted breathing and who had moved to Laguna to live with C and her husband)[11].  After C’s return, her husband was the sole bread winner, and the family had to survive on a meagre average net amount of about HK$1,200 per month.  C was unable to return to Hong Kong to conduct her claim and to give evidence in person as there was no one else who could take over the full-time care of her children and her mother if she were to travel to Hong Kong to attend the various hearings and she was unable to afford the approximate HK$2,500 for each trip to Hong Kong. 

23.  C’s circumstances and reasons were summarised by the Presiding Officer in the Reasons as follows[12]:

(i)   C was living in the Philippines with her husband, two sons (aged 8 and 6 respectively) and her mother;

(ii)   C’s mother was diagnosed with lung cancer in January 2017 and required constant medical attention such as oxygen supply to assist her with breathing;

(iii)   C’s husband worked as a production operator in a factory with long working hours and could not assist in taking case of the sons and her mother;

(iv)   There were no other persons to assist to take care of C’s family;

(v)   C did not want to travel to HK to attend hearing;

(vi)   C was unable to pay for the cost of travelling to Hong Kong.

The VCF Application

The Presiding Officer’s reasons for refusing the VCF Application

24.  The  Presiding Officer’s refusal of the VCF Application was based on the following reasons[13]:

(i)   All the facts relied by C were relating to her family arrangement and her financial ability[14] and the Presiding Officer said it should be desirable for the witness to testify in courtroom rather than through video link, as expressed in the Daimler AG case;

(ii)   The Technology Court should be used where there was no issue as to credibility;

(iii)   There was nothing to show that C would refuse to testify in person, and that it was only inconvenient for C to testify due to her family problems and that he considered her family problems could be resolved subject to special arrangement, and that there was no valid reason given by C;

(iv)   Given that D had indicated that she would object to use of the Technology Court, if her views were ignored, fair disposal of the proceedings could not be promoted;

(v)   All in all, weighing and considering all the facts and arguments presented by C, there was no valid or sound reason for C to depart from the practice that proceedings should be conducted in court.

The legal principles

25.  First of all, paragraph 2 of PD 29 provides that, subject to the direction of the court or tribunal concerned, the Technology Court is available for use, where appropriate, upon the application of one or more of the parties in relation to proceedings or particular parts of proceedings, in different levels of courts as stated therein which include the Labour Tribunal and the Small Claims Tribunal.

26.  Thus, it is quite clear from paragraph 2 that the Technology Court is available for the use of the Tribunal subject to the direction of the Tribunal.  It is further stated in paragraph 4 of PD 29 that it is a case management question within the discretion of the court or tribunal concerned whether any proceedings or parts of any proceedings should be conducted in the Technology Court.

27.  Paragraph 5 of PD 29 further sets out that in making its decision, the court or tribunal will take into account :

(i)   the views of all the parties,

(ii)    the availability of the Technology Court,

(iii)   the subject-matter of the proceedings or the relevant part of the proceedings, and

(iv)   all other material circumstances, including in particular, whether the proposed use of the Technology Court is likely:

(a)   to promote the fair and efficient disposal of the proceedings;

(b)   to save costs; and/or

(c)   materially to delay disposal of the proceedings.

28.  As recognized by Chu J, as she then was, in Sun Legend Investments Limited v Ho Yuk Wah David and Others [2008] 4 HKLRD 239,  evidence given in court is often the best and usual way of giving oral evidence and that in view of technological developments evidence by VCF is an efficient and effective way of giving oral evidence[15].

29.  The Learned Judge had referred to Re Chow Kam Fai ex p Rambas Marketing Co LLC [2004] 2 HKLRD 260 and considered that what was held by Rogers VP in Re Chow Kam Fai, namely that VCF evidence was less than ideal, was reversed by the House of Lords in Polanski v Conde Nast Publications Ltd [2005] 1 WLR 637.

30.  In the Sun Legend case, the Learned Judge ultimately granted the applicant’s application to give evidence by VCF in the Technology Court even though it appeared that the credibility of the witness was in issue.  As she said:

“As to the suggestion that it is more desirable for witnesses whose evidence and credibility is heavily in issue to testify in court so that their demeanour can’t be observed, it is apt to note that it is nowadays not unusual for vulnerable witnesses in criminal proceedings to testify by means of VCF: in the majority of these cases, the evidence of the vulnerable witnesses and their credibility is critical to the prosecution case and is hotly disputed by the accused. Yet, the court has not recognized this as a compelling reason against the use of VCF. On the other hand, in the context of civil litigation, it is rare that the demeanour of a witness is determinative of the outcome…[16]”

31.  The Learned Judge had further distilled the following principles from the various authorities discussed in her judgment and set out as follows[17]:

(1)   Whether to permit the giving of evidence by means of VCF (video conferencing facilities) is a decision within the discretion of the court;

(2)   In general, the applicant should provide a valid reason for the use of VCF.  The threshold for valid reason is not a high one, however;

(3)   The court should have regard to all the circumstances of the case.  Relevant factors include the matters set out in paragraph 5 of PD 29, the reason why the witness is unable or unwilling to attend the trial in person, the importance of the witness to the applicant’s case and any prejudice to the other party;

(4)   The witness’s unwillingness to testify in person at the trial because he is a fugitive from justice may, depending on the circumstances of the case, be a good and sufficient reason for making a VCF order.

32.  The Polanski case was based on a libel action by Mr Polanski against the publishers of “Vanity Fair”. It was held by a majority of 3 to 2 Lord Justices that Mr Polanski was entitled to bring proceedings in England to protect his civil rights notwithstanding he was a fugitive from justice, by allowing him recourse to the procedural facility of video conference link.  Under the then relevant practice direction in the Civil Procedure Rules Pt 3 in England, when the use of video conferencing is being considered, a judgment must be made on cost saving and on whether use of video conferencing “will be likely to be beneficial to the efficient, fair and economic disposal of the litigation”[18].  Although the majority of the House reversed the decision of the Court of Appeal, all the members of the House acknowledged that, although evidence given in court is often the best and the normal way of giving oral evidence, in view of technological developments, evidence by VCF is an efficient and effective way of giving evidence.

33.  In the Reasons, the Presiding Officer had referred to Re James Henry Ting, HCB 7809/2012, an unreported decision of 24 September 2013 where Ng J had considered 3 decisions on interlocutory appeals from our Court of Appeal, namely Re Chow Kam Fai, Raj Kumar Mahajan v HCL Technologies (Hong Kong) Ltd [2010] 5 HKLRD 119, and Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822.

34.  It was also Rogers VP who gave the main judgment in the Raj Kumar Mahajan case.  He did not consider that his observations in the Re Chow Kam Fai case had been reversed by the House of Lords in the Polanski case and further stated as far as he was concerned, the question of the person concerned being a fugitive from justice would be a factor which would militate against making a VCF order.

35.  Rogers VP  reiterated that as far as he was concerned, as said in Re Chow Kam Fai, the solemnity of  a court is most important, and the solemnity of court proceedings and its atmosphere is something which plays an important role in the way justice is administered[19].  However, Rogers VP himself had recognised that the Technology Court is  frequently used for the VCF system and that the VCF system is a very useful tool but  which he said should be used with some care[20].

36.  Further,  as Rogers VP also said, the decision by the judge as to whether VCF is appropriate in the case, is one which is made with all matters having to be taken into consideration and, in particular, the evidence which is likely to be given and cross-examined[21].

37.  As has been by the Court of Appeal in the Daimler AG (2) case, the circumstances of each particular case are different[22]. 

38.  Of the 3 decisions, the most recent one was Daimler AG (2).  Apart from setting out what was stated by Ng J of this decision, the Presiding Officer did not  refer to the decision of the Court of Appeal, but instead referred to the lower court’s decision of 6 December 2012 in which it was held that it was desirable to have the witnesses to testify in court rather than via video link especially when credibility of key witnesses was concerned[23].

39.  In fact, the appeal by the defendants against the lower court’s decision was allowed by Court of Appeal (with Fok JA and Barma JA sitting) which held, amongst other things, that[24]:

“Further, and more fundamentally, it seems to me that the judge’s assessment of the balance of the prejudice as between the parties was flawed. Although he rightly had regard to the crucial nature of the 1^st defendant’s evidence, he appears to have focused only on the difficulties that the plaintiff would face if the order sought was granted, and to have lost sight of the fact that the refusal of the order would be likely to mean that the defendants would be wholly deprived of evidence which was crucial to their case, making it extremely difficult, if not impossible, for their application for an inquiry as to damages to succeed.”

The present case

40.  In considering the matters set out in paragraph 5 of PD 29, and from what was held in the Daimler AG (2) case, the court has to take into account all material circumstances, and the  question to be addressed is really what course is best calculated to achieve a just result for both parties and that this requires the court to consider the balance of prejudice as between the parties[25].

41.  As seen from the 30.03 Transcript, D said that she objected to C giving evidence in Philippines through video link[26].  D had said that she heard from the helper of her neighbour that C had been working for another household in Hong Kong for a few months but the employer of the helper did not allow the helper to come to give evidence[27].  

42.  What D said about hearing from her neighbour’s helper that C was working in Hong Kong was clearly hearsay.  In any event, C could be directed by the Presiding Officer to clarify this, and which she could do by producing a copy of her passport.  As for D’s objection, there was no evidence from her at all as to why she objected, nor was there any evidence from her as to what prejudice she would suffer.

43.  C’s mother had produced an X ray report dated 3 January 2017 provided by Karmelii Clinic Hospital which showed  suspicious opacities in the upper lobes of her lungs and atherosclerotic aorta (otherwise known as a hardening and narrowing of the arteries) and a report dated 18 January 2017 from Calamba Medical Center Inc which showed fibrohaze densities in her right upper lung[28]. She also underwent a cranial CT Scan on 3 January 2017.  Although the report revealed no evidence of major vascular territory acute infarct or haemorrahage, it showed, amongst other things, “lacunar infarct, left lentiform nucleus, white matter microvascular ischemia, age-related brain atrophy and atherosclerosis”[29].  She was aged 69 at the time.

44.  The mother said she was informed that she had lung cancer and that it was unlikely that her condition would significantly improve in the forseeable future.  The mother had said up to January 2017, she was living in Ilocos and that due to her severe health condition and her inability to take care of herself she decided to move in with C and her family so that they could take care of her.

45.  C’s husband in his witness statement supported the evidence of C’s mother that she had moved to Laguna to live with them and she had severe health issues.  He had produced his payroll pay slip to prove his income and to show that the family was unable to afford to pay for C’s travels to and from Hong Kong, and that he had to work long hours during regular daytime.

46.  C herself had said that to attend the hearing in Hong Kong would take at least 3 days which was time she could not afford to spend away from home and that she did not have enough money to come to Hong Kong. C’s case was that she was unable to return to Hong Kong to attend the hearing.

47.  The Presiding Officer had said that there was no valid reason given by C in that there was nothing to show that C would refuse to testify in person, and it was a matter of convenience for C to testify through video link due to her family problems.  The Presiding officer had also said C’s family problems could be resolved subject to “special arrangement”[30].

48.  In fact, as early as 21 November 2016, C had written to the Tribunal to apply for an earlier hearing date than 1 February 2017 saying that she was unable to work to support herself and her family since the termination of her contract and while waiting for the hearing, she was incurring further expenses and visa extension fees and she wished to conclude her case as soon as possible so that she could go home to support her family. C’s application was refused by the Presiding Officer due to D’s objection.  D claimed that as she had to look after her daughter and it was difficult to schedule another hearing date. 

49.  D did not say how much time she would require to schedule another hearing date.  In any event, the Presiding Officer refused to fix an earlier hearing date without giving any reasons.

50.  Even though C had said that travelling to the office of SC Law in Quezon City would be far more convenient and time/cost effective for her compared to her air travel to and from Hong Kong[31], there was no sufficient evidence to contradict what C had also said, namely that she could not afford the HK$2,500 for each trip which would take at least 3 days out of Philippines. Further, it was also not clear what “special arrangement” the Presiding Officer was referring to.

51.  There was also no evidence to contradict the evidence of C, her mother or C’s husband.

52.  The Presiding Officer had said that if he ignored D’s views by allowing C to use the Technology Court, fair disposal of the proceedings could not be promoted.  There was however no evidence of any prejudice to D if C’s application were to be allowed.  In any event, D’s view is only one of the various matters to be taken into account of under paragraph 5 of PD 29.

53.  Under section 20(1) of the Ordinance, the hearing of a claim in the Tribunal is to be conducted in an informal manner and the presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party. 

54.  In light of the above provision, the Presiding Officer could have exercised his above powers to investigate further in relation to the VCF Application if he was not satisfied with the evidence from C, her mother or her husband, and he could also have investigated into the reasons of D’s objection or any prejudice to D.  He had failed to do so.

55.  The Presiding Officer had also said that the Technology Court should be used where there was no issue as to credibility[32].  This was however contrary to the approach of the Court of Appeal in Daimler AG (2).  Even though in Daimler AG (2), it appeared that the 1^st defendant’s evidence was highly controversial and his credibility would be a major issue at the trial, he was allowed by the Court of  Appeal to give evidence by way of video link.

56.  C’s evidence was that she called the police because she was slapped by D and that she wanted to go to the doctor for medical check up to prove that she had been slapped by D, and C was told by the police that D had expressed regret at what she did to C.  It was through the police intervention and after obtaining advice from her sister that C agreed to settle the matter with D, and C wrote out the Letter of Reference and the Settlement Agreement for D to sign. 

57.  Whether there were sufficient grounds for D to summarily dismiss C would, as pointed out by the Presiding Officer, depend on the credibility of both C and D.  However, as observed by Chu J in Sun Legend, in civil cases, it is rare that the demeanour of a witness is determinative of the outcome as the court will look at contemporaneous documents and objective circumstances.  In the present case, as the Letter of Reference and the Settlement Agreement were written by C and signed by D through police intervention, there could have been a police record.  There was also a short text message sent by C to a staff member of HDW on 22 September 2016 regarding the alleged assault.

58.  The Presiding Officer appeared to have focused only on the reasons given by C for not being able to attend the hearing and D’s indication of objection of the use of VCF. 

59.  He did not have regard to the fact that C was entitled to bring proceedings in this jurisdiction to protect her civil rights, and to the crucial nature of C’s evidence as to whether there were grounds for her summary dismissal, and further without being allowed to give evidence or be present through video link, it could mean that C would be deprived of a fair and public hearing, or the chance to proceed with her claim for what was her entitlement under her contract of employment. 

60.  Ms Teh had also referred to two cases in the Family Court.  In LCC and JPG, FCMP 4 and 244 of 2012, unreported judgment of 9 May 2013, the wife gave evidence by video link in United Kingdom.  In N, SV and P, U FCMC 12236 of 2014, unreported judgment of 24 February 2017, where the hearing took place in the Technology Court and the Family Judge had further observed that the trials and longer hearings could be conducted remotely if one party was not in Hong Kong.  There was no evidence that any one had raised any issue about a party or a witness giving evidence by video link in those cases, and the Family Judges appeared to have taken a more flexible approach.

61.  When PD 29 was first introduced, there was only one Technology Court in the High Court building, but with the increase in the use of technology, there are now two in the High Court building.  There are now also video conferencing facilities available in the District Court building, and I understand, also in the new West Kowloon Magistracy building.  This in a way reflects that the use of technology these days is more frequent and common.

62.  In the present case, there is no time difference between Hong Kong and Philippines.  D did not raise any issues over the proposed venue in Quezon City, nor had she expressed any wish to send a representative to be present at any hearing at the proposed venue.  As for the trial in Hong Kong, there was no evidence as to why D could not travel to a court with the VCF system, whether it be the Western Magistracy/District Court/High Court in the event that a VCF Application were to be granted.  As I have said earlier, no reason was given by D at all for her objection.

63.  In my view, there was no sufficient evidence for the Presiding Officer to say that if he ignored D’s views, fair and efficient disposal of the proceedings could not be promoted.  There was also no finding by the Presiding Officer whether the proposal would likely to save costs or whether it would materially delay disposal of the evidence. 

64.  More importantly, as said earlier, there was no sufficient evidence of any prejudice to D if the trial were to take place in a court in Hong Kong with VCF system with C giving her oral evidence or be present in the venue proposed by her in Quezon City.  By comparison, the prejudice to C would be serious, since the Presiding Officer then decided to dismiss the rest of her claims without a trial due to her absence.

65.  In my view, the Presiding Officer had erred in law by failing to have regard to the Court of Appeal’s decision in Daimler AG (No 2).  The Presiding Officer had failed to consider all those matters set out in paragraph 5 of PD 29 and all material circumstances, and further failed to assess properly the balancing of prejudice as between the parties.  I am of the view that the Presiding Officer was plainly wrong in the exercise of his discretion. 

Representation Application

66.  In dismissing the Representation Application, the Presiding Officer gave the following reasons:

(i)   C gave no or no clear reasons in support of the application[33];

(ii)   There were no exceptional circumstances to allow C to be represented as C was able to present and handle her case without any difficulties, and there was no evidence of C’s disability to attend the hearing other than her absence from Hong Kong[34];

(iii)   D had objected to the Representation Application[35];

(iv)   C’s proposed representative (Mr Tang) had paralegal training and a lot of experience in handling the employment dispute cases  and thus had an advantage over D[36];

(v)   The Tribunal’s duty to maintain a level playing field was an important consideration which should out-weigh all other factors relied on by C[37].

67.  The right of audience in respect of proceedings in the Tribunal has been stated in section 23 of the Ordinance.  Pursuant to s 23(1)(d) of the Ordinance, the Tribunal has the discretion to allow an office bearer of a registered trade union or of an association of employers who is authorised in writing by a claimant or defendant to appear as their representative before the Tribunal.

68.  Ms Teh had referred to the Privy Council decision in O’Toole v Scott [1965] AC 939.  This was a case in which the magistrate had allowed the case for the prosecution to be conducted by another police officer and not the officer who was the informant as provided under the statute.  The Privy Council held that the discretion to permit persons to act as advocates for other persons was not a discretion conferred by statute but was an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court.  It was held that the discretion could be exercised either on general grounds, common to many cases or on specific grounds arising in a particular case.  Its exercise should not be confined to cases where there was a strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice.

69.  Thus, quite apart from section 23 of the Ordinance, and as pointed out in the case of  Ho Lan Fong v Lam Gook trading as Lam Tai Hing Restaurant  [2004] 3 HKLRD 47 by A Cheung J, as he then was, the Tribunal in fact retains a discretion to allow a lay representative, not falling within section 23, to represent and act as advocate for a party at any proceedings before the Tribunal[38].

70.  This was also referred to by DHCJ Lok, as he then was, in Suryani v Chan Tung Chi [2012] HKEC 1558 in considering an appeal from the Tribunal refusing to allow the claimant’s application to have a representative with a law degree and who did not fall within section 23.

71.  As to how the discretion should be exercised in any given case, as seen from the quoted passages from Ho Lan Fong, this  must depend on “the whole of the circumstances that are pertinent to that case, bearing always in mind, firstly, what has been said by the  Privy Council in O’Toole v Scott [1965] AC 939 about the nature of the discretion, and secondly, the general nature of proceedings before the Labour Tribunal”[39].

72.  To summarise:

(i)   The exercise of discretion could be exercised either on general grounds common to many cases or on specific grounds arising in a particular case;

(ii)   The exercise of the discretion should not be confined to cases where there is a strict necessity;

(iii)   It should be regarded as proper when discretion is exercised in order to secure or promote convenience and expedition and efficiency in the administration of justice;

(iv)   Whether the discretion should be exercised must depend on the whole of the circumstances that are pertinent to that case, and to the general nature of the proceedings before the Tribunal.

73.  In the Reasons, the Presiding Officer had referred to the Suryani case in which the principle in the Ho Lan Fong case was adopted.  As seen from the 01.02 Transcript, the Presiding Officer allowed Mr Tang to temporarily represent C at the hearing “in very exceptional circumstances”.  Then in the Reasons, the Presiding Officer had said he found “no exceptional circumstances” to allow C to be represented by Mr Tang.

74.  Ms Teh submitted that the Presiding Officer erred in law by failing to take into account, as he is required to do, the whole of the circumstances that are relevant to the case in issue, the purpose of securing or promoting convenience and expedition and efficiency in the administration of justice, and the fact that the right to representation is not to be confined to cases of strict necessity. 

75.  I agree with her submission.  In my view, the Presiding Officer had adopted too narrow or restrictive approach by looking for “exceptional circumstances” in considering the Representation Application, and this was not the correct approach. 

76.  As a result, as pointed out by Ms Teh, the Presiding Officer failed to properly investigate the Representation Application was brought only because C was not in Hong Kong and not able to appear in person, and for the purpose of ensuring that her claim was not struck out while she pursued the VCF Application to enable her to conduct and give evidence in her claim by video link.  It was not for the purpose, of taking an unfair advantage of D by seeking to have a “legally trained”and “experienced” representative to represent C when she was capable of representing herself.

77.  As also pointed out by Ms Teh, in finding that allowing Mr Tang to represent C would give C an advantage over D, the Presiding Officer failed to have regard to the fact that s 23 of the Ordinance specifically allows (subject to the Tribunal’s discretion) representation by trade union officers, and as such, the legislature contemplated representation by persons with training provided by the trade union and experience in dealing with labour cases.

78.  As seen from the 30.03 Transcript, Mr Tang is not a lawyer and is an organizing secretary hired by the FADWU and he has a lot of experience to handle cases in the Tribunal and has received paralegal training from the FADWU.  Ms Teh said that these were the only qualifications and experience Mr Tang had[40].

79.  Ms Teh argued that it would be contrary to the legislative intent if one would have to find an office bearer in a trade union with no experience in handling labour disputes to act as representative each time one makes an application for representation under s 23(1)(e) of the Ordinance, and that it was misleading for the Presiding Officer to refer to Mr Tang’s “paralegal training” without addressing the context that he only received such training in his trade union.

80.  It would further appear from the 30.03 Transcript that upon hearing that Mr Tang had “paralegal training”, the Presiding Officer then immediately refused the Representation Application without allowing Mr Tang to say anything more and told him to “go out and leave the front bench”  and refused  to hear from him any more[41].

81.  Ms Teh had also referred to the 01.02 Transcript when Mr Tang had asked the Presiding Officer whether C being not able to attend would be a sufficient ground for the Representation Application, he was advised by the Presiding Officer to seek legal advice.  It would appear  from the Presiding Officer’s exchange with Mr Tang at the earlier hearing that Mr Tang’s knowledge of the legal procedure was in fact limited[42].  Compared to the proposed representative in the Suryani case, Mr Tang appeared to be only a lay person from the FADWU and had only received training from there[43]. 

82.  I accept what was submitted by Ms Teh.  In fact, as pointed out by Ms Teh, if the Presiding Officer indeed had concerns about Mr Tang’s over qualifications and the imbalance that it would create and/or disadvantage that it would present to D, he could have raised this issue  earlier or to give an opportunity to C to appoint another representative either from a trade union or from a pro bono organisation such as HDW or alternatively, the Presiding Officer could have granted Representation Application on the condition that C was to authorize another representative with no legal training at all to represent her. 

83.  Ms Teh had referred to Darby Keith Harry v Belgravia Properties Ltd[2016] HKEC 1384, where Lok J, when faced with an appeal against a Tribunal decision to dismiss an application to transfer the Tribunal proceedings to the Court of First Instance (where representation would be allowed) and an application for representation in the Tribunal proceedings held that:

“9. In my judgment, the existing state of affairs is very undesirable. It is the claimant’s case that the Travel Ban was imposed on him without any fault on his part. The Travel Ban has been imposed for a considerable period of time and it is uncertain when it will be uplifted in the future if at all. By refusing both the Representation Application and the Transfer Application, the claimant is in substance prohibited to prosecute the Claim in the court or the Labour Tribunal. In a way, the claimant has been denied access to the court system.

10. It is the right of the Claimant to have his claim be determined by a court or tribunal within a reasonable time…

11. As I see it, the only way to enable the Claimant to have access to justice is for the court to allow either the Representation Application or the Transfer Application…” [44]

84.  In the present case, there appeared to be a similar undesirable state of affairs in that by refusing both the VCF Application and the Representation Application, C ended up with not being able to pursue her claims which were then struck out and C was denied access to justice.

85.  Having considered all the above, in my view, the Presiding Officer’s exercise of discretion was plainly wrong in that it had not achieved a just result and did not secure or promote convenience and expedition and efficiency in the administration of justice.

Whether C’s claim should be struck out

86.  In striking out C’s claim, the Presiding Officer focused on C’s absence at the hearing on 30 March 2017, and the Reminder it gave at the hearing on 1 February 2017 that it had the power to dismiss C’s claim for non-appearance under s 20A of the Ordinance if she failed to appear at the hearing on 30 March 2017.  The Reminder was only in the event if C’s VCF Application was refused. C’s Representation Application was made on about 15 March 2017 in her 5^th Statement, about two weeks prior to the hearing on 30 March 2017. There was no prior warning to her that if her application was refused, her claim would be struck out.

87.  The power of dismissal under s 20A of the Ordinance is discretionary and has to be exercised according to legal principles and all the circumstances of the case.  D did not in the Defence disputed the calculations, and the only issue was whether D was entitled to summarily dismiss C.  Under 29A of the Ordinance, the Presiding Officer had the power to adjourn the hearing of a claim on such terms as it thinks fit and in my view, the Presiding Officer could have considered whether to adjourn the case to a further hearing.  Notwithstanding C was given a Reminder at the hearing on 1 February 2017, in my view, C should be given a further opportunity to consider upon dismissal of both her applications.

88.  It was not really disputed by D that she had signed the Letter of Reference and the Settlement Agreement through police intervention, although it would appear she could not communicate well in English and that D had asked for a Putonghua interpreter for the hearing on 30 March.  Having said this, D had also signed an employment contract in English with C[45]. Under clause 7(a) of C’s employment contract, D had to provide C with free return passage to her place of origin upon termination of the contract.  This appeared to be irrespective of whether there were grounds for summary dismissal.  D however had objected to provide the same.

89.  In light of the then evidence before the Presiding Officer, C’s claim did not appear to be entirely without merits.

90.  Having considered all the above, I find that the Presiding Officer was plainly wrong in exercising its discretion to strike out C’s claim immediately without considering its merits and/or without considering any other options, after dismissing both C’s VCF Application and Representation Application.

Conclusion

91.  In light of what was said above, I will allow C’s appeal and set aside the order made on 30 March 2017.  C’s claims in the Labour Tribunal Proceedings Claim No LBTC 3464 of 2016 are to be restored.  I am however not prepared to grant the other orders sought as I am of the view that they should be dealt with by the Tribunal.

92.  In relation to the VCF Application, C has by now returned to the Philippines for almost 18 months.  There has been no updating information about her mother, her husband or her family situation and whether C is now able to come to Hong Kong to give evidence in person. There was also no proper investigation by the Presiding Officer into the matters set out in paragraph 5 of PD 29 and no sufficient evidence for this Court to assess the balance of prejudice between the parties or to exercise the discretion afresh.

93.  There are also practicalities to be considered. Generally, for an application for evidence to be given through VCF, the suitability of the proposed venue may need to be considered.  There should also be safeguards in place to ensure there will be no interference during the giving of the evidence by the witness.  It will usually be the responsibility of the party concerned to arrange and to pay for preparation of paginated bundles of all documents and exhibits and for the paginated bundles to be sent to all other parties.  Any additional costs or material delay would need to be considered. 

94.  As provided in paragraph 15 of PD 29, if the application to give evidence through VCF is allowed, the court or tribunal in question will, in the usual course, give such directions as it deems necessary in relation to the conduct of the hearing.  As stated in the PD, it will generally be the responsibility of the party concerned to make all arrangements necessary for or incidental to ensuring that use of the Technology Court (or the court with the VCF system) proceeds smoothly and effectively.  For example, a party calling a witness who is to be examined on VCF will be responsible for ensuring that such witness will be at the remote site in good time for such examination to take place, having duly been supplied with copies of any documents or exhibits relevant to such examination and for the witness to be provided with an interpreter, if necessary, and so forth.

95.  There may be also other case management directions such as those set out by DHCJ Marlene Ng in her unreported Reasons for Decision dated 19 June 2017 in Skyrun Light Industry (Hong Kong) Company Limited and anor v Swift Resources Limited and others, HCA 1278 of 2014[46].

96.  As for the Representation Application, this will very much depend on whether the VCF Application will be allowed, and also whether Mr Tang is the appropriate person to represent C or whether there should be another representative with no paralegal training in any form. 

97.  Having regard to the above, I am of the view that both the VCF Application and the Representation Application should be remitted to the Tribunal to be heard before another presiding officer in the restored proceedings.

98.  Lastly, costs of this appeal and the leave application be costs in the cause of C’s claim in LBTC 3464 of 2016.