NG KAR LEE v. EASTERN GLOBAL PROPERTY MANAGEMENT LTD

HCLA78/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 78 OF 2005

(ON APPEAL FROM LBTC NO. 8230 OF 2004)

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J U D G M E N T

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1. This appeal raises the question whether, in the proceedings before the Labour Tribunal, a limited company may be represented by a person who is neither its officer nor servant but has been authorised to do so.  As will be seen later, this question no longer calls for my determination.

2. The background facts leading to this appeal may be summarised as follows :

The parties

3. Mr  Ng  Yee  Keung and Mr  Ng  Hung are brothers.  Mr Ng Yee Keung resides in Australia and only comes back to Hong Kong occasionally.  Miss Ng Kar Lee is the daughter of Mr Ng Hung.  The Ng brothers are equal shareholders and directors of the defendant, Eastern Global Property Management Limited.  Disputes between the Ng brothers arose in about 2000.  Since then, the defendant has been in a deadlock.

The January hearing

4. On or about 18 November 2004, Miss Ng commenced DCCJ5971/2004 in the District Court against the defendant for arrears of wages and year-end bonus.  That action was later discontinued as the claims fell within the exclusive jurisdiction of the Labour Tribunal.

5. On 28 December 2004, Miss Ng lodged her present claim against the defendant in the Labour Tribunal.  It is her case that she was employed by the defendant as an administrative manager between 1 July 1998 and 31 July 2004 but the defendant failed to pay her wages for the period between 1 February 1999 and 30 June 2004 and year-end bonus for the years 2000 to 2002.

6. At the hearing before the Labour Tribunal on 21 January 2005, the defendant was absent.  The presiding officer heard Miss Ng’s case and then made an award against the defendant in the total sum of HK$612,664.10.

The setting-aside application

7. When the award was made, Mr Ng Yee Keung was not in Hong Kong.  Having learned about it, he took steps to have it set aside in March 2005.  By letter dated 14 March 2005, the tribunal officer, directed by the presiding officer, wrote to the defendant advising that the defendant “has to appoint a duly authorised person to appear in court for the hearing of the setting-aside application and provide minutes of meeting of the directors in the company for the representative person who appears in court”.

8. The formal notice for the setting-aside application was filed on or about 16 March 2005.  The grounds stated there in support is that Mr Ng Yee Keung was unable to attend the January hearing because of business commitment in Australia.  Responding to the tribunal officer’s letter of 14 March 2005, Mr Ng Yee Keung’s solicitors wrote to the Labour Tribunal on 18 March 2005 explaining, among other things, that because of the deadlock in the defendant, its representative was unable to get the requisite authority.

9. By letter dated 22 March 2005, Mr Ng Yee Keung wrote in the capacity of the defendant’s director to the Labour Tribunal, setting out in greater details the grounds for the setting-aside application.

10. The setting-aside application came before the presiding officer on 24 March 2005.  Mr Ng Yee Keung did not appear.  Neither did the defendant send any officer or servant.  But a Mr Ng Kwok Wing, a former employee of the defendant appeared and purported to appear for the defendant.  The presiding officer then explained to him that he could not do so.  After hearing Miss Ng, the presiding officer adjourned her application sine die with liberty to restore.

11. On 27 July 2005, the defendant, through its solicitors, applied to restore the setting-aside application.  The presiding officer then directed it to be heard on 30 August 2005.  By letter dated 18 August 2005, the tribunal officer again reminded the defendant of the presiding officer’s direction that the defendant should be represented by a director or staff member duly appointed and that the defendant had to state the reason why no representative appeared at the last hearing.

12. By a further letter dated 26 August 2005, the tribunal officer related to the defendant the presiding officer’s direction that it “has to be represented by a duly appointed person after passing a company meeting with sufficient corum [sic] (a formal procedure)”.

The August hearing

13. At the hearing on 30 August 2005, Mr Ng Yee Keung did not appear.  He had gone back to Australia because of business commitments.  He authorized Mr Ng Kwok Wing to attend.  The presiding officer took the view that Mr Ng Kwok Wing did not qualify under section 21(1)(d) of the Labour Tribunal Ordinance to represent the defendant.  He treated the defendant as being absent and dismissed the application for setting-aside.

Grounds of appeal

14. In this appeal, the defendant relies on the following grounds of appeal.  The presiding officer erred in a point of law in :

(1)     holding that the company was absent when, in fact, the company was properly represented by Mr Ng Kwok Wing at the said hearing;

(2)     failing to properly investigate, or at all, the authority of Mr Ng Kwok Wing to represent the company;

(3)     failing to exercise its discretion to give Mr Ng Kwok Wing audience as the representative of the company, notwithstanding non-compliance with the presiding officer’s direction that the company has to be represented by a person duly appointed by a formal resolution of the company in view of the fact that the company is a deadlock company and hence unable to comply with the said direction.

15. In my view these grounds of appeal are premised on the proposition that Mr Ng Kwok Wing was neither an officer nor servant of the defendant or should be granted by the presiding officer a right of audience to appear on behalf of the defendant at the August hearing.

Abandonment and amendment

16. In the course of the hearing today, Mr Ernest Cheung, counsel appearing for the defendant, abandoned Grounds 1 and 2.  He submitted that he could not maintain the argument that the authorization letter issued by Mr Ng Yee Keung was sufficient to enable Mr Ng Kwok Wing to appear on behalf of the defendant at the August hearing.  He sought to amend Ground 3 but it has been refused by me earlier.

Dismissing the appeal

17. What is outstanding is therefore Ground 3 in its original form.

18. The Labour Tribunal no doubt has inherent jurisdiction to regulate its procedure, including right of audience.  Mr Kam Cheung relies on two recent cases, namely, Tsui Chung Fai v. Kwok’s Fashions Co. Ltd, HCLA154/2003 and Ho Lan Fong v. Lam Gook, trading as Lam Tai Hing Restaurant, HCLA130/2003.  These cases seem to have suggested that the inherent jurisdiction regarding right of audience of the Labour Tribunal has been curtailed by section 23 of the Labour Tribunal Ordinance.  In disposing of this appeal, it is not necessary for me to decide whether or not that is the correct position.

19. I will proceed on the assumption, but without deciding, that the presiding officer has inherent jurisdiction to grant a right of audience to a person appearing before him, who purports to appear on behalf of a limited company although he does not fall within section 23(1)(d) of the Labour Tribunal Ordinance.  On the evidence before me, I am not satisfied that the presiding officer had erred in law in refusing to give Mr Ng Kwok Wing the right of audience to represent the defendant when it is now conceded that even pursuant to the authorization by Mr Ng Yee Keung, he did not have the authority to represent the defendant at the August hearing.

20. This appeal must therefore fail and I dismiss it accordingly.

[Submission on costs]

21. Costs should follow the event.  Costs will be to the claimant, to be taxed if not agreed.  The claimant’s own costs are to be taxed in accordance with the Legal Aid Regulations.