XCHRX KARCHOUD, LEILA BENT MOHAMED v. THE INCORPORATED TRUSTEES OF THE ISLAMIC COMMUNITY FUND OF HONG KONG

HCLA 61/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 61 OF 2001

(On appeal from Labour Tribunal Claim No. LBTC 9412 of 2000)

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REASONS FOR DECISION

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1. This is an application for leave to appeal against an award of the Presiding Officer of the Labour Tribunal in LBTC 9412 of 2000. By the award of 15 August 2001, the Presiding Officer dismissed the claims of the Claimant.

2. The Claimant wished to appeal against that award. On 18 August 2001, the Claimant lodged a Form 14 seeking leave to appeal. The intended grounds of appeal set out in the Form 14 are as follows,

"...the award / order is erroneous in point of law in that -

1. I was dismissed wrongfully, unreasonably and unlawfully;

2. My evidence have importance;

3. I have no attitude problem and have not broken any rules;

4. Witnesses have lied or hidden the truth.

... the award ... is outside the jurisdiction of the Board in that -

1. My evidence were not taken into consideration;

2. The witnesses did not say the whole truth or lied;

3. There is politics and conspiracy behind the scene."

3. 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.

Although the Claimant grouped some of her intended grounds under (b), I do not think that they are proper grounds under that head. I will consider them under head (a) as well.

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). However, the fact that the Tribunal preferred the evidence of one witness to that of another by itself does not come within these categories.

6. In an application for leave to appeal, the court must ask itself whether the intended grounds of appeal are genuine grounds based on errors of law for which leave could be given. If a ground is dressed up as an error of law whilst in substance it was a challenge to a determination on questions of fact, leave to appeal could not and should not be granted.

7. When the matter came before the Presiding Officer, the outstanding disputes are,

(a) the alleged non-payment of part of the wages of the Claimant in respect of her service as replacement Assistant Secretary;

(b) the dismissal of the Claimant as Headmistress and Accountant of the Muslim Community Kindergarten by the Defendant.

8. In his Reasons for Decision dated 3 October 2001, the Presiding Officer summarized the evidence regarding the dispute as to unpaid wages and gave reasons for his findings in pages 3 and 4. I do not find it necessary for me to repeat those reasons. In essence, the Presiding Officer did not believe the Claimant's testimony and accepted the testimony of Mr Milton M. Arab, a representative of the Defendant. In my judgment, the Presiding Officer did not make any errors of law in coming to that conclusion. As far as this part of claim is concerned, the application for leave to appeal must be dismissed.

9. Regarding the dispute as to dismissal, in essence the Claimant is complaining about the truthfulness of the testimonies of the witnesses. Again, that is basically a finding of facts. However, there is one point which caused me to have some concern. In the part of his Reasons for Decision dealing with this dispute, the Presiding Officer did not refer to the evidence of the Claimant in this regard. Hence, he did not explain why he rejected her evidence regarding this dispute. I am told that the Claimant did give some material evidence in respect of the dismissal claim. Hence, there might be substance in her complaint that her evidence had been ignored.

10. I will grant leave to appeal in respect of the dismissal claim on the following ground,

"That the Presiding Officer failed to take into account of the evidence of the Claimant in reaching his decision."

Costs of today's application will be costs in the cause of the appeal. I also grant leave to the Claimant to obtain the transcript of the proceedings at the Labour Tribunal on the payment of the prescribed charges.