SUPARTI v. KUCH CHE LING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 24 OF 1997

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J U D G M E N T

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1. The Appellant (Claimant) appeared before a Presiding Officer claiming for payment in lieu of balance of annual leave and underpayment by the employer in respect of her wages from 23/11/94 to 23/11/96.

2. The wage as agreed in the contract of employment was $3,500.00 per month but the Claimant in her claim stated that for the first year of her contract she only received $1,700.00 per month and for the second year she received $2,000 per month.

3. The Presiding Officer in his reason for decision considered the evidence of the Respondent (Defendant) and had doubts. He found neither the Claimant nor the Defendant had told the whole truth and he dismissed the claim.

4. He cited a passage from the judgment of Findlay J. in Nestor Tano v. Tang Hin Ming Labour Appeal No. 95/95 which is as follows:-

"...If [the Presiding Officer] was unable to accept the evidence on either party, then of course he was entitled to say so, and dispose of the case accordingly. It is not the law, as I understand it, that a judge is bound to accept the evidence of one party or another. If he cannot do so, as here, then he cannot do so, and the onus will decide the case."

5. The Claimant appeals against this decision. Miss Lam for the Claimant had set out 5 grounds of appeal but in effect the main ground is that the Presiding Officer had failed to investigate matters relevant to the issue.

6. S. 20 of the Labour Tribunal Ordinance Cap. 25 states:-

"20. Hearing to be informal

(1) The hearing of a claim shall be conducted in an informal manner.

(2) The presiding officer may subpoena witnesses, order the production of any document, record, book of account or other exhibit and put to a party of witness such questions as he may think fit.

(3) The presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party."

7. To support her contention she cited the holding of Yam J. in Suen Lai Suet & others v. Ownfield Garment Manufacturing Co. Ltd. Labour Tribunal App. No. 29/96 which followed the decision of Deputy Judge J. Chan as he then was in Chan Suk Bin Angie v. Harbour Phoenix Ltd. & Anor. [1992] HKC 459 and is as follows:-

"Presiding officers had the duty to investigate relevant matters irrespective of whether they were raised or relied upon by any party. This statutory duty was not an absolute one in that a presiding officer had some discretion as to which matters he investigated, although this exercise of discretion was susceptible to review by an appellate court. Not every failure to investigate a relevant matter would give rise to an appeal. The relevant matter forming the subject matter of the complaint must not only be relevant, but of such a nature that the lack of investigation would give rise to an injustice, in that a fair and proper determination of the claim could not be sustained (Chan Suk Bing v Harbour Phoenix Ltd & Another [1992] 2 HKC 459 (see [1992] HKLY 449) followed). The presiding officer in the present case failed to discharge his statutory duty by not advising or inviting A to call the two additional witnesses, who could have corroborated its defence, to give evidence. As the parties were not legally represented and as his role in the tribunal was that of inquisitor, he should have investigated all relevant points and called potential witnesses if necessary pursuant to s. 20 of the Labour Tribunal Ordinance."

8. In Morris v. London Iron & Steel Co. Ltd. [1988] QB 493 CA per May LJ at 504

"Judges and tribunals of fact should make findings of fact in relation to matters before them if they can. In most cases, although in some cases it may be difficult, they can do just that. Having made them, the tribunal is entitled to draw inferences from the findings of primary fact where appropriate. In the exceptional case, however, a judge conscientiously seeking to decide the matter before him may be forced to say "I just do not know:" indeed to say anything else might be in breach of his judicial duty. In this connection, however, I would say this. Speaking from my own experience some people find it easier to make up their minds than others and it should not be thought that a swift reliance upon where the burden of proof lies and a failure to decide issues of fact in the case, ought in any way to be considered an easy or convenient refuge for anybody who does find it difficult to make up his mind in a particular case. Judges should, so far as is practicable and so far as it is in accordance with their conscientious duty, make findings of act. But it is in the exceptional case that they may be forced to reach the conclusion that they do not know on which side of the line the decision ought to be. In any event, where the ultimate decision can only be between two alternatives, for instance negligence or not, or , as in the instant appeal, dismissal or resignation, then when all the evidence in the case has been called the judge or the tribunal should ask himself or itself whether, on that totality of the evidence, on the balance of probabilities, drawing whatever inferences may be thought to be appropriate, the alternative which it is necessary for the plaintiff to establish in order to succeed is made out. If it is not, then the operation of the principle of the burden of proof comes into play and the plaintiff fails. But in those cases in which the ultimate decision could be between more than two possibilities, as for instance in the two running-down actions to which I have referred, again the judge should at the end of the day look at the whole of the evidence that has been called before him, drawing inferences where appropriate, and ask himself what has or has not been shown on the balance of probabilities, and then, bearing in mind where the onus of proof lies, decide whether the plaintiff or the defendant succeeds, or both succeed."

9. In a memo to the Registrar of the Labour Tribunal the Presiding Officer asked the Registrar to refer the case file to Labour Department to consider follow up action if necessary because he found the Defendant was not a reliable witness and he believed there had been underpayment.

10. At the first date of trial on 10/2/97 the Claimant when asked if she had any witness, she replied "I had a friend living at 36/F. She could be my witness". The Tribunal then directed the Claimant to submit witness statement to Tribunal Office within 3 weeks and the hearing was adjourned to 16/4/97. She asked the Presiding Officer what to do if her friend's employer did not permit her to attend court and the Presiding Officer explained to her about witness summons.

11. On 23/3/97 the Claimant wrote to the Registrar to enquire about the service of subpoena which she applied for but to her knowledge the witness had received no communication about the witness summons. The Presiding Officer endorsed on that letter asking the Tribunal Officer about the result of service of the witness summons. Surely by that time the Presiding Officer was aware that the Claimant intended to call a witness to support her claim.

12. In her further written submission to the Tribunal she explained that she received a postcard from the Tribunal dated 27/3/97 asking her to attend the Tribunal on the 9/4/97. She attended on the 9th and was told by the Tribunal Officer that the Tribunal had failed to effect personal service and it was too late to try again. She asked for adjournment so that the subpoena could be served.

13. In any event the witness statement of the intended witness Ariningsih was filed and was Claimant exh. C6.

14. At the adjourned hearing on 16/4/97 she produced 7 exhs. including the statement of Ariningsih which was Exh. C6 and gave evidence.

15. On the notes of proceedings after the Presiding Officer's questions at p. 9 it was recorded at p. 10 "No cross-examination" and then Defendant gave evidence in Punti. The Presiding Officer did not enquire from the Claimant whether she intended to call any witnesses. The Claimant was deprived of the right to call witnesses to support her claim by the Tribunal. This is a material irregularity. The Presiding Officer was aware of the statement of Ariningsih and the availability of that witness. If he could not decide then all the more it would be his duty to make enquires and call that witness. The failure to do so meant the Presiding Officer had failed to make sufficient enquiries before coming to his decision.

16. On top of that no where in his reasons did he refer to the statement of Ariningsih. He had failed to consider all relevant materials available to him before coming to his conclusion.

17. In the circumstances the conclusion I reached is that the Presiding Officer had not made sufficient enquiries before coming to his conclusion. The case should therefore be remitted back to the Labour Tribunal for him to make further and necessary enquiries.

18. As to the complaint that the interpreter had failed to faithfully and accurately interpreted the evidence, the proper procedure is to file an affidavit to state her reasons and belief why the interpreter had not accurately interpreted the evidence and the relevant parts which had not been properly interpreted so that the interpreter has a chance to reply before the court can come to a decision. That procedure had not been complied with. I cannot and do not propose to deal with this point.

19. In the premises the appeal is allowed and the case be remitted back to the Labour Tribunal for the Presiding Officer to make further and necessary enquiries. Costs to the Claimant (Appellant). Claimant's own costs to be taxed in accordance with the Legal Aid Regulations.

(Wesley Wong)

Deputy Judge of the High Court