LALCHANDANI, SUNIL NANIK v. EURO SEARCH (ASIA) LTD.

HCLA 34/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 34 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 1550 OF 2001)

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REASONS FOR DECISION

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1. In this application, the Claimant in LBTC 1550 of 2001 sought leave to appeal against the award of the Presiding Officer of the Labour Tribunal. By his award of 18 April 2002, the Presiding Officer dismissed all the claims of the Claimant. The Presiding Officer also ordered the Claimant to pay the Defendant the sum of $15,783 by way of costs.

2. In the Form 14 filed by the Claimant for this application, his intended grounds of appeal are as follows,

"(1) Judgment is perversed, bases of judgment is potentially biased;

(2) Presiding Officer has failed to properly assess or evaluate the evidence before the court;

(3) Presiding Officer failed to appreciate that the discretion if any, was applied irrationally and arbitrarily;

(4) The judgment written copy was received by me on 25 April 2002;

(5) It appears the Presiding Officer has ignored the weight of key points of my witnesses, and the facts they have presented in court;

(6) Hon. Presiding Officer states very wrong facts in his judgment;

(7) Hon. Presiding Officer failed to evaluate quality (and biasedness) of Defendant witnesses;

(8) Elaborate and detailed statement to support this will be submitted few days later;

(9) Order to pay HK$15,783, for time of the Defendant is not appropriate since I brought a justified case with merits for hearing."

3. In the case of Kiawchansaeng, Renu v Ho Kim Kay Canny, HCLA 78 of 2001, I said the following in Paras. 3 to 7 in my Reasons for Decision. They are also opposite in the present context,

"3. I found those grounds too vague and general to be of any assistance to me in considering whether leave to appeal should be granted. Section 32 of the Labour Tribunal Ordinance, Cap. 25 limits the cases where leave to appeal can be granted by the Court of First Instance. The permissible grounds are that the award is:

(a) erroneous in point of law; or

(b) outside the jurisdiction of the tribunal.

4. Section 35(2) of the Ordinance expressly provides that on an appeal, the Court of First Instance may not reverse or vary any determination made by the Tribunal on questions of fact.

5. If a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law (see Cheng Yuen v. Royal Hong Kong Golf Club [1997] 2 HKC 426; Andayani v. Chan Oi Ling [2000] 4 HKC 233).

6. However, it behoves an applicant for leave to appeal to set out clearly in his intended grounds of appeal how it is asserted that the award is erroneous in point of law. This is particularly important in the context of an alleged error of law in the sense as stated in Paragraph 5 above. To advance such a ground, an applicant should:

(a) identify clearly the finding of fact by the Tribunal which is said to have fallen into this kind of error;

(b) specify clearly whether it is asserted that there was no evidence for such finding;

(c) if it is asserted that the finding was inconsistent with the evidence, the general nature of such evidence should be identified;

(d) if the ground is that the finding is one which no reasonable Tribunal could reach, state clearly why it is so asserted;

(e) if the ground is that the finding is based on disregard or misunderstanding of the evidence, it should state clearly what is the evidence which has allegedly been disregarded or misunderstood.

7. These are essential particulars for consideration as to whether the intended grounds of appeal are genuine grounds based on errors of law for which leave could be given. Without such particulars, a court considering the application for leave could not tell whether a ground is dressed up as an error of law whilst in substance it was a challenge to a determination on questions of fact. If it is the latter, leave to appeal could not and should not be granted.

4. It is clear that the intended grounds set out in the Form 14 filed in the present case fail to condescend to the necessary particulars in order to satisfy me that the Presiding Officer made any errors in law.

5. At the hearing on 14 June 2002, the Claimant placed before me his written submissions dated 8 June 2002. He also supplemented the same by oral submissions.

6. Having considered those submissions carefully, I do not think the Claimant has any arguable case that the Presiding Officer made any mistake in law. In particular, the Claimant was unable to mount any argument that the finding of facts of the Presiding Officer were tainted by the kind of errors identified by me in Para. 5 of my Reasons for Decision in Ho Kin Kay Canny.

7. A substantial part of the Claimant's written submissions was regurgitation of his evidence. As I told him during the course of the hearing, it is not the function of this court in dealing with an appeal from the Labour Tribunal to hear further evidence. This is prohibited by Section 35(2)(ii) of the Labour Tribunal Ordinance Cap. 25.

8. The crucial point in the case is whether the Defendant promised the Claimant to pay him bonus/commission in the manner as alleged by the Claimant. After hearing evidence and carefully assessing the same, the Presiding Officer preferred the evidence of the Defendant to those of the Claimant and his witnesses. The Presiding Officer gave adequate reasons in his written Reasons for Decision of 18 April 2002. I am satisfied that he has taken all relevant matters and all the evidence into account in reaching his conclusions.

9. Regarding the order for costs, the Presiding Officer was empowered by Section 28 of the Labour Tribunal Ordinance to award costs against a losing party. Whilst the sum of $15,783 may appear to be a substantial sum, it has to be borne in mind that at the Tribunal the trial itself lasted 6 days during which many witnesses, including employees and ex-employees of the Defendant, were called to give evidence. It is the right of all litigants to adduce relevant evidence and summon witnesses to give such evidence in support of his case. However, a litigant should also bear in mind that if he loses, he could be required to pay costs to the other party and the more witnesses he calls, the longer the trial would be and consequently the costs he may be required to pay would be more substantial. In the present case, the Presiding Officer assessed the costs in accordance with the criteria set out in Section 28. There were altogether 11 hearings at the Labour Tribunal. I do not think his award is wrong in law.

10. For these reasons, the application for leave to appeal is dismissed.