麥 啟 榮 AND ANOTHER v. EXPRESS TOP INDUSTRIES LTD AND OTHERS

HCLA 93/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 93 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM

NOS. 6755/2003 and 9426/2003)

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D E C I S I O N

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1.  This is an application for leave to appeal by the 3^rd Defendant against the award of Mr Reuden Lai sitting as Presiding Office of the Labour Tribunal.  By the award, the Presiding Officer ordered the 3^rd Defendant to pay to the Claimants $13,381 and $19,953.60 respectively.

2.  The Claimants were drivers of public light bus providing scheduled services (commonly known as the green PLB) and they brought the claims on the basis that they were employees working for the 3^rd Defendant.  The 3^rd Defendant said they were self-employed persons.  The Presiding Officer held in favour of the Claimants.

3.  The grounds of appeal set out in the Application for Leave attacked this conclusion of the Presiding Officer from a number of angles.  Before I deal with the same, it is important to bear in mind the role of this court in entertaining an appeal from the Tribunal, particularly in the context of determination as to whether a claimant is an employee or a self-employed person.  In O’Kelly v Trusthouse Forte [1983] ICR 728, Sir John Donaldson MR said at p. 762C to E,

“The test to be applied in identifying whether a contract is one of employment or for services is a pure question of law and so is its application to the facts.  But it is for the tribunal of fact not only to find those facts but to assess them qualitatively and within limits, which are indefinable in the abstract, those findings and that assessment will dictate the correct legal answer.  In the familiar phrase “it is all a question of fact and degree.”

It is only if the weight given to a particular factor shows a self-misdirection in law that an appellate court with a limited jurisdiction can interfere.  It is difficult to demonstrate such a misdirection and, to the extent that it is not done, the issue is one of fact.” (my emphasis)

4.  To the same effect is the dicta of Clough JA in Chan Kwok Kin v Mok Kwan Hing [1990] 2 HKC 65,

“In accordance with well-settled principles this court must not interfere with the judge’s evaluation of the facts and impose a second opinion if the case is a borderline one where it would be reasonable for similarly instructed minds to come to different conclusions.  On the other hand, this court is obliged to interfere if it concludes that, as Lord Radcliffe observed in Edwards v Bairstow [1956] AC 14, 39 … ‘the only reasonable conclusion on the facts found is inconsistent with the determination come to’.”

5.  In the present case, the Presiding Officer apparently applied the test set out in 謝林与陳德偉 HCLA 150 of 1995 (although he cited that in the context of the submissions of the Claimants).  He referred to a number of relevant factors and weighed them in Paragraphs 213 to 219 of his Written Reasons for Decision.  There is no suggestion that the Presiding Officer adopted the wrong legal test in so doing.

6.  As to the weighing of the different factors, as pointed out by Sir John Donaldson, it is primarily an assessment by the Tribunal.  The appellate court should only intervene when an appellant can show a misdirection in law in the process or that the conclusion of the Tribunal is one which no reasonable tribunal could properly arrive at.  The first two grounds of appeal criticized the Presiding Officer for failing to give sufficient weight to some factors identified in those grounds.  From the Reasons for Decision, it is clear to me that the Presiding Officer had considered those factors but he considered them to be outweighed by other factors.

7.  In his oral submission, Mr Kwan emphasized the labels given to the Claimants in the contemporaneous documentations and the terms therein.  This was taken into account by the Presiding Officer in Paragraph 219 of his Reasons for Decision.  It is trite law that the label in the contemporaneous documentations, although relevant, is not conclusive.  The Presiding Officer is not bound in law to hold that the relationship between the Claimant and the 3^rd Defendant was as depicted in those documents.  It seems to me what the Presiding Officer did was to assess the substance of the relationship between the parties against the background of these documents.  At the end, he concluded that notwithstanding the terms in the document, the Claimants did not run their own businesses and were working as employees.  Although another judge may reach another conclusion on the same material, it is not a sufficient reason for holding that the Presiding Officer erred in law in coming to such conclusion.

8.  Those documents were relevant not only in terms of the label given to the capacity in which the Claimants were engaged, but also as to the conditions under which they were engaged.  There is a dispute as to whether those documents contained the terms of contract between the parties.  The Claimants said the terms therein were not contractual (see Paragraph 208 of the Reasons for Decision) whilst the 3^rd Defendant said otherwise (see Paragraph 210 of the Reasons for Decision).  Mr Kwan contended that the Presiding Officer did not resolve this dispute in his Reasons for Decision. Hence, he did not analyse whether each and every one of the terms in those documents, insofar as they governed the contractual relationship between the parties, was consistent with an employment relationship.  Mr Kwan pinpointed this as one of the complaint coming under the umbrella of Ground (2).

9.  At Para. 219 of his Reasons for Decision, the Presiding Officer found that the Claimants had signed the Notes (exhibits D2-7(1) and D3-30, see Paras. 31 and 51) and had read the notes at the bottom of the fares sharing register.  It seems to me the Presiding Officer very much had the terms set out in these documents in mind when he weighed the various factors.  As a matter of law, it is open to the Tribunal to hold that the terms, even if they constituted the contractual agreements between the parties, are not conclusive, see McGuire v AGW Holdings [2004] 2 HKLRD 869 and Leung Bing v Tanfory HCLA 129 of 2002, 15 May 2003.  I do not think the Presiding Officer misdirected himself in law in this regard.

10.  Ground (3) relates to the assessment of weight of evidence.  In my judgment, there is no rule of law preventing the Presiding Officer accepting part of the evidence of the Claimants and rejecting the other part.  In so doing, the Presiding Officer did not commit any error of law.

11.  Ground (4) is vague and general. It is no more than an assertion that the Presiding Officer erred in coming to the conclusion with insufficient evidence.  The ground is plainly unarguable given the evidence before the Tribunal. 

12.  As regards Ground (5), it is not clear to me what exactly did the 3^rd Defendant refer to by the expressions “the risk assumed by the 1^st and 2^nd Claimants” and “the flexibility in the parties’ relationship”.  Mr Kwan did not elaborate on the same at the hearing.  I think these matters have been duly considered by the Presiding Officer, see Paras. 211, 212, 213 and 215 of his Reasons for Decision.  Although the reasoning was somewhat brief, I am of the view that they are adequate and there is no error of law in the process of reasoning.  See my judgment in Kwan Ka Man Blance v Esprit Retail HCLA 160 of 2003, 15 July 2004 Paras. 17 to 19 as to the extent to which a Presiding Officer is obliged to elaborate on his reasons.

13.  Ground (6) does not take the matter further.  For the reasons given by the Presiding Officer at Paras. 215 and 216, it is wholly unrealistic to suggest in the context of the present case that the Presiding Officer was obliged to consider the possibility of partnership and/or agency between the 3^rd Defendant and the Claimants.

14.  Lastly, I wish to deal with a point raised by Mr Kwan at the hearing.  He submitted that there was a discrepancy in the oral judgment delivered by the Presiding Officer and his written Reasons for Decision.  He drew this court’s attention to Para. 23 in the transcript of oral reasons given by the Presiding Officer on 27 April 2004 which was not repeated in the written Reasons for Decision.  He also submitted that there was no evidence before the Tribunal to support the finding in Para. 23.

15.  In my judgment, Mr Kwan was incorrect when he said there was no evidence to support the finding.  The Tribunal actually had evidence from the mouth of a defence witness, see Para. 65 of the written reasons for decision. Similar evidence can be found in terms of the evidence of 1^st Claimant, see Para. 18.  Hence, the Presiding Officer did not commit any error of law in Para. 23 of his oral reasons.  As demonstrated, the same point was made in the Presiding Officer’s summary of evidence in his written reasons for decision.  There is nothing in this point which merits further consideration.

16.  On the whole, I do not think it can arguably be suggested that the Tribunal reached a conclusion that no reasonable tribunal could properly arrive.  I also do not discern any error of law in the reasoning of the Presiding Officer.  I therefore dismiss the application for leave to appeal.  I will hand down this decision in open court.