SURYANI v. CHAN TUNG CHI

HCMP 2278/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2278OF 2012

(On an intended Appeal from Labour Tribunal Appeal No. 3 of 2012)

_______________

BETWEEN

_______________

_______________

DECISION

_______________

Hon Lam JA (giving the Decision of the Court):

1.  By an amended summons of 2 January 2013, the Applicant applied for leave to appeal against the order of Deputy High Court Judge Lok on 8 October 2012 dismissing her appeal in HCLA No 3 of 2012.

2.  As it is an intended appeal against the decision of the Court of First Instance in a Labour Tribunal appeal, the matter is governed by s 35A of the Labour Tribunal Ordinance Cap 25.  Under that section, leave to appeal to the Court of Appeal should only be granted in limited circumstances,

“(1) If any party is dissatisfied with a decision of the Court of First Instance on an appeal heard by leave given under section 32, such party may, within 7 days after the date of the decision, apply to the Court of Appeal for leave to appeal and, if the Court of Appeal considers that a question of law of general public importance is involved, it may grant leave.”

3.  Two points are to be noted,

(a)  The Court of Appeal may only grant leave in respect of a question of law of general public importance involved in the intended appeal [“the GPI requirement”] ;

(b)  The Court of Appeal has a discretion to grant or refuse leave even if it is satisfied that a point of law of general public importance is involved.

4.  It is quite clear to us that the Applicant’s case does not satisfy the GPI requirement.  It is also quite plain that even if she can somehow arguably satisfy that requirement, this is an appropriate instance where leave should be refused.

5.  First, the GPI requirement.  To satisfy that requirement, it is not enough to pinpoint a question of law.  It is even not enough to show that the point of law is of general public importance. It has to be shown that the point in question is involved in the appeal in the following sense: the determination of the point is material to the outcome of the appeal.

6.  The Applicant identified the point of law as follows in her summons,

“whether achieving a ‘level playing field’ should be a primary consideration when exercising the discretion vested in a Presiding Officer to permit representation in the Labour Tribunal or whether the only consideration should be whether, by granting representation to one party, and allowing the other party to apply for representation if they wish it, such representation of a party secures convenience and expedition and efficiency in the administration of justice.”

7.  The subject matter of the intended appeal, is the exercise of discretion as regards representation of the Applicant in the proceedings in the Labour Tribunal by a person called Joshua Baker who described himself as a paralegal employed in a solicitor firm, Vidler & Co. He holds a law degree though he is not a qualified lawyer.

8.  The nature of the claim in the Labour Tribunal was described by the Deputy Judge at paras 3 and 4 of his judgment,

“3.  The claimant was employed by the defendant to work as a domestic helper pursuant to an employment contract dated 23 February 2010.  On or about 26 February 2011, the claimant terminated the employment contract on the ground that the defendant had abused her physically and verbally and failed to pay her wages.

4.  On 28 April 2011, the claimant commenced proceedings in the Tribunal (LBTC 1262/2011) for recovery of a total sum of $49,540.63 being unpaid wages and payment in lieu of annual leave.  On 20 October 2011, the claimant amended the quantum of the claim to $85,751.47.”

9.  As regards the discretion in question, it stems from the inherent jurisdiction of a court to regulate its own practice and procedure, see Ho Lan Fong v Lam Gook [2004] 3 HKLRD 47.  That inherent jurisdiction, as held in that case, empowers the Tribunal to grant leave to a person not falling within the scope of s 23(1) of the Labour Tribunal Ordinance Cap 25, to represent a party before it.

10.  Both the Presiding Officer and the Deputy Judge decided that leave should not be granted.  The Deputy Judge considered the Presiding Officer to have erred in her reasons and exercised the discretion afresh.  At paragraphs 18 to 25, he explained the matters he took into account in the exercise of the discretion. 

11.  On a proper reading of those paragraphs, we do not think the Deputy Judge had regarded the maintenance of a level playing field as the primary consideration.  He only regarded this as a relevant consideration. Bearing in mind the statutory scheme under the Labour Tribunal Ordinance and the underlying purpose of setting up the Tribunal to dispose of labour disputes efficiently and fairly, we cannot see how it can be arguable that this should not be a relevant consideration. After all, it is a facet of fairness which should inform how judicial discretion should be exercised. Insofar as the question framed by the Applicant proceeded on the assumption that the Deputy Judge regarded this as the primary consideration, it is not supported on the face of the judgment.

12.  The Applicant’s argument in the second part of the question as formulated boils down to this: the only consideration in the exercise of such discretion should be whether, by granting representation to one party, and allowing the other party to apply for representation if they wish it, such representation of a party secures convenience and expedition and efficiency in the administration of justice.  The Applicant said this proposition is derived from the judgment of the Privy Council in O’Toole v Scott [1965] AC 939, at p.958G to 959D.

13.  Having read the passages cited, we do not think the Privy Council was laying down such a proposition. The case before the Privy Council was a criminal trial before a magistrate court.  We do not think it is reasonably arguable that the Privy Council was prescribing as a matter of law (as the Court of Appeal is only concerned with a question of law in the intended appeal) that any discretion on grant of representation can only be exercised by reference to convenience, expedition and efficiency in the administration of justice.

14.  Indeed, we find such proposition startling and it would constitute an unwarranted fetter on the exercise of such discretion. It is not a reasonably arguable proposition.

15.  Since part of the question framed (the first part) is not involved in the intended appeal and the other part of the question is not reasonably arguable, we would exercise our discretion to refuse leave.

16.  We are also of the view that the application is totally without merit and we make an order under Order 59 Rule 2A(8) that no party may request this determination be reconsidered at an oral hearing inter partes. Since the putative respondent did not put in any submissions, we make no order as to costs of the application except the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.