DARBY KEITH HARRY v. BELGRAVIA PROPERTIES LTD

HCLA 44/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 44 OF 2015

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1260 OF 2014)

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REASONS FOR JUDGMENT

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1.  This is an appeal against the decision dated 1 September 2015 (“the Decision”) made by Ms Susan Wong, the presiding officer of the Labour Tribunal (“the Presiding Officer”), refusing the Claimant’s application for leave to be represented by one Mr David Runciman (“Mr Runciman”) in his claim against the Defendant (“the Claim”) for outstanding wages in the sum of HK$4,986,287.17, or alternatively for the Claim to be transferred to the Court of First Instance (“CFI”).

2.  In the hearing on 23 March 2016, I allowed the appeal in part and made an order to transfer the Claim to CFI.  I now give my reasons.

3.  The Claimant brought the Claim in the Labour Tribunal (“the Tribunal”) in 2014.  The Claimant’s case has been summarised by the Presiding Officer in §§15 to 23 of her Reasons for Decision dated 17 December 2015 (“the Reasons for Decision”).  The Presiding Officer has also helpfully summarised the Defendant’s case in §§24 and 27 of the Reasons for Decision.  In short, the Claimant claims that he had been employed by the Defendant to work on different projects in the Mainland.  Behind the Defendant, a lot of funds were providing finances for these projects with a view to obtain financial returns from these investments.  On the other hand, the Defendant disputes the genuineness of the written employment contract.  I do not propose to repeat the other details here.

4.  The Claimant claims that as the Defendant and the funds behind had failed to provide further finances to discharge some of the liabilities of these projects, the Mainland authority imposed a travel ban against the Claimant prohibiting him from leaving the Mainland (“the Travel Ban”).

5.  By reason of the Travel Ban, the Claimant did not appear in person in the first call-over hearing before the Presiding Officer on 23 May 2014.  Instead Mr Runciman, a friend of the Claimant, appeared on his behalf and asked for leave to represent the Claimant.  The Presiding Officer told Mr Runciman that he had no right of audience under s 23 of the Labour Tribunal Ordinance (Cap 25).   She then adjourned the case sine die with liberty to restore pending the uplifting of the Travel Ban.

6.  On 30 January 2015, the Claimant’s solicitors wrote to the Tribunal to restore the case for hearing.  In the second call-over hearing on 18 March 2015, Mr Runciman again appeared on behalf of the Claimant to seek for leave to represent the Claimant (“the Representation Application”), or alternatively for the case to be transferred to the CFI (“the Transfer Application”).

7.  According to the Reasons for Decision, the Presiding Officer refused the Transfer Application because: (i) the present case cannot be proceeded with in the absence of the Claimant; and (ii) this is not a complicated case.  However, it is not quite clear as to why the Presiding Officer refused the Representation Application.  Apparently, the Presiding Officer took the view that this case can be further adjourned to enable the Claimant to appear in person.  In the meantime, the Claimant’s concern, according to the Presiding Officer, is about the financial position of the Defendant, as there has been a winding up petition issued against the latter.  Without giving specific reasons as to why she refused the Representation Application, the Presiding Officer ordered the Defendant to pay a sum of HK$263,013.69 into the Tribunal as security for the Claim, the sum of which covers the Claimant’s claim for annual leave pay.  She also refused to exercise the discretion to allow Mr Runciman to represent the Claimant.

8.  By way of a letter dated 10 August 2015, the Claimant himself wrote to the Presiding Officer asking her to reconsider the Representation Application and the Transfer Application.  The Presiding Officer refused these applications on 1 September 2015 on the ground that there was no fresh argument put forward by the Claimant.

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 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 period of time. The fact that there is a part payment by the Defendant into the Tribunal as security is not an answer to the Claimant’s complaint about the denial of access to justice.

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.  By permitting Mr Runciman or the Claimant’s legal representatives to prosecute the Claim on the Claimant’s behalf, it would entitle the Claim to be adjudicated within a reasonable period of time.  It is also not right for the Presiding Officer to say that the Claim cannot be proceeded with in the absence of the Claimant.  The Claimant is only subject to the Travel Ban and not any form of detention, Mr Runciman or his legal representatives can always travel to the Mainland to obtain instructions or witness statements from him, and the Claimant can also give evidence via video link facilities.

12.  In this appeal hearing, Mr Brown, counsel for the Claimant, mainly seeks for an order for the Claim to be transferred to the CFI.  If the court were to make such order, it would not be necessary for the Claimant to seek for leave to be represented by Mr Runciman.

13.  Having considered all the circumstances in the present case, I agree with Mr Brown that the Claim should be transferred to the CFI.  As noted by the Presiding Officer in the Reasons for Decision, the Defendant has raised a number of serious allegations of fraud and conspiracy against the Claimant.  The Defendant also questions the authenticity of the employment contract relied on by the Claimant.  Further, as admitted by the Defendant, the adjudication of the Claim may involve extensive investigation of the company accounts as well as other company documents which may be voluminous. According to the Defendant, some of the parties allegedly associated with the Claimant were suspected to have been involved in commercial crime and were under investigation by the police.  During the investigation, a lot of documents including those of the Defendant had been seized by the police. These documents may be relevant in determining the merits of the Claim.

14.  The amount involved in the Claim is substantial.  Further, unlike the usual labour disputes, the relationship between the parties is more complicated.  According to the Defendant’s case, the Claimant was heavily involved in the management of the Defendant and the different projects in the Mainland.  With the possibility of discovery of further wrongful conducts on the part of the Claimant, it would actually be in the interests of both parties for the case to be conducted with the benefit of legal assistance.  The transfer of the Claim to the CFI would also enable the Claimant to prosecute the Claim without further delay.  In my judgment, the Presiding Officer had committed an error by refusing the Transfer Application, and I therefore set aside the Decision of the Presiding Officer and order the Claim to be transferred to the CFI.

15.  From the Reasons of Decision, it is unclear as to the Defendant’s stance on the Transfer Application.  Further, the Presiding Officer had not invited the Defendant to address her before making the Decision on 1 September 2015 refusing both the Representation and Transfer Applications.  Despite that, the Claimant has served all the appeal papers on the Defendant.  The Defendant was all along aware of the Transfer Application, and yet it chose not to appear in the appeal proceedings to contest the Transfer Application.  In such circumstances, I do not see any procedural unfairness by making a transfer order at this stage.  I therefore so ordered.

16.  I also made an order that the costs of this appeal be the Claimant’s costs in the cause of the Claim.