CHAN YEE MAN v. GOLD DRAGON LTD t/a CLUB PARIS

HCLA 120/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 120 OF 2003

(On Appeal from Labour Tribunal Claim No. 3586 OF 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 in respect of the award of Mr Poon Siu Tung sitting as the Presiding Officer in the Labour Tribunal. By an award dated 17 September 2003, the Presiding Officer gave judgment in favour of the Claimant in respect of her claims for wages in lieu of notice, arrears in salary, annual leave, long service payment and entitlement in gratuity in the total sum of $202,058. The Defendant now seeks leave to appeal against that award.

2. At the hearing on 2 December 2003, Mr Yeung, counsel for the Defendant, informed this court that the Defendant would substitute the intended grounds of appeal in the Form 14 with those set out in the Grounds of Appeal prepared by him. Three grounds were relied upon.

3. After due consideration of the submissions of Mr Yeung, I am of the view that only one of the arguments advanced merit leave being granted. That argument was that the Presiding Officer failed to consider the apparent gaps in the continuity of employment of the Claimant as shown in Exhibits C-13 and C-31. Mr Yeung contended that those documents showed that there were gaps in the employment of the Claimant by the Defendant or the other employers which the Presiding Officer held to be its associated company between November 1994 and March 1995 and between 1990 and 1993. This is narrower than Ground 2 as drafted by Mr Yeung but it was encompassed by him under that ground. On condition that the Defendant filed a Notice of Motion pursuant to Order 55 Rule 3 setting out the narrower ground as indicated above as its ground of appeal within 5 days from the date of handing down of this decision, I will grant leave to appeal on such a ground. If the Defendant does not file the Notice of Motion within the 5 days as directed, this court will treat the Defendant as not intending to pursue the appeal on such narrower ground and shall dismiss the application for leave to appeal accordingly.

4. I shall give some brief reasons as to why I consider the other grounds relied on by Mr Yeung as unmeritorious. In respect of Grounds (1) and (3), Mr Yeung primarily relied on the refusal of the Presiding Officer to grant an adjournment to the Defendant to facilitate the latter to call Ma Yuk Wan as a witness. Mr Yeung submitted that this had to be considered in the context of the duty to investigate on the part of the Presiding Officer under Section 20 of the Labour Tribunal Ordinance.

5. I have considered the extent of the duty to investigate and its relationship with the summoning or advising a party to call a particular witness in a number of recent cases: Tong Pun Chung v. Top Express Engineering Ltd HCLA 71 of 2002, 21 October 2002; 鄧偉國及安威工程有限公司 HCLA 78 of 2002, 23 September 2003; 恆峰花園業主立案法團對洪一波 HCSA 70 of 2002, 20 October 2003. It is clear to me that the duty to investigate should not be elevated to a duty to conduct the case for a party or a duty to summon a particular witness to fill in the gaps of the evidence of that party. A litigant in the Tribunal still bears the prime responsibility to prepare his own case and procure the necessary witnesses to give evidence to support his case. If there were insufficient evidence, it is open to the Tribunal to hold that a particular claim or a line of defence failed due to the failure of a litigant to discharge the burden of proof. The power to subpoena witnesses under Section 20(2) should not be confused with the duty to investigate under Section 20(3).

6. In the present context, it is quite plain to me that the Defendant made a deliberate choice as to the witnesses it would call. The Defendant deliberately refrained from listing Ma Yuk Wan as a witness despite the fact that she obviously could give material evidence. The Presiding Officer made an observation about the Defendant not calling her as a witness on 16 September 2003. Then a written statement was prepared by Ms Ma on 16 September 2003 which was submitted to the Presiding Officer on 17 September 2003. She claimed that she was feeling unwell and therefore could not come forward to give evidence on 17 September 2003. When the Presiding Officer pressed for the reasons of her indisposition, the Defendant's representative initially said Ma was feeling unwell for a long time. No medical certificate was produced before the Presiding Officer and when pressed further, the Defendant's representative claimed that Ma was having a flu for the whole week and she had a fever. It is quite obvious to me that the Presiding Officer felt he could not accept such a bare assertion and having regard to the history of the proceedings, he considered that the matter should not be delayed further. He therefore did not adjourn the case to enable the Defendant to call Ma as a witness.

7. In my judgment, the Presiding Officer was entitled to proceed with the case under such circumstances. It has to be borne in mind that proceedings in the Labour Tribunal should be dealt with expeditiously. That was one of the aims of the setting up of the Tribunal. The Presiding Officer had acted fairly in reminding the Defendant that Ma's evidence was relevant. Despite that, the Defendant still did not procure Ma to give evidence on 17 September 2003. The Presiding Officer was also entitled to be skeptical about the bare assertion of the Defendant's representative as to Ma's inability to attend the trial. I see no valid ground for this court to interfere with the Presiding Officer's exercise of his discretion in refusing to adjourn the case. I do not think Section 20(3) imposes a duty on the Presiding Officer to adjourn the case to enable the Defendant to call Ma as a witness in such circumstances. I therefore reject Mr Yeung's submissions in connection with this point.

8. As to the other points raised by Mr Yeung, they are basically attacks on the weighing of evidence and findings of facts by the Presiding Officer. I am not convinced that the Presiding Officer made any errors of law in those regards. Subject to the dispute on the gaps mentioned above, I am of the view that the Presiding Officer was entitled to come to the conclusion that the Claimant had been continuously employed by a group of associated companies on the evidence before him. He was not obliged to state all the names of such companies in his Reasons for Decision. As to the so-called discrepancies in the evidence of the Claimant as to the justification for half-day shift entitlement, this is basically part of the weighing of the evidence. The Presiding Officer explicitly accepted the evidence of the Claimant and her witnesses concerning the agreement made between the Defendant and the Claimant as to her salary. He was entitled to do so.

9. I also give the following directions for the preparation of the appeal (on the assumption that the Defendant will comply with the condition within 5 days set out in Paragraph 3 above),

(a)	the appeal shall be set down for hearing with an estimate of half a day;
(b)	the Defendant shall serve the Notice of Motion on the Claimant within 7 days of the issue thereof together with a Chinese translation for the same;
(c)	the appeal shall be heard in Chinese;
(d)	the Defendant shall file and serve the appeal bundle together with skeleton submissions at least 10 days before the hearing;
(e)	parties shall have leave to inspect the lower court files to ensure all the evidence placed before the Tribunal relevant to the issues raised in the Notice of Motion are included in the appeal bundle.

10. I specifically remind parties to comply with sub-paragraph (e) above. On far too many occasions, litigants involved in appeals from the Labour Tribunal fail to include in the appeal bundle all relevant material. As I said in Siu Koon Fung v. Shun Shing Construction Engineering Company Ltd HCLA 1 of 2002, 5 July 2002, Para. 97, this could be highly misleading and such a practice is unacceptable. Solicitors involved in the preparation of appeal bundle have a duty to take steps to ensure all relevant material is included. Failure to discharge such a duty may result in the appeal being adjourned with costs consequences.

11. I will reserve the costs of the application for leave to appeal. Since the leave to appeal is confined to a point which would only affect the outcome in respect of part of the long service payment, the balance of the money due to the Claimant should be released to her. I direct the Defendant to work out the figure to be deducted from the long service payment if it is successful in the appeal within 5 days. I also make an order that the balance of the money now deposited in the Tribunal be released to the Claimant. The court will notify the Claimant in respect of the same.

12. Since this Decision may be of some general interest, particularly in respect of what I said in relation to the duty to investigate and the preparation of appeal bundle, I shall hand down the same in open court.