MALLORCA JOENALYN DOMINGO v. NG MEI SHUEN

HCLA 17/2019

[2020] HKCFI 2766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 17 OF 2019

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 3464 OF 2016)

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BETWEEN

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J U D G M E N T

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Introduction

1.  On 16 April 2020, this Court handed down a decision (“Leave Decision”) granting  leave to the Claimant (“C”) to appeal against the decision of Ms Ho Wai Yan, the Acting Principal Presiding Officer (“Presiding Officer”) of the Labour Tribunal (“Tribunal”) of 23 September 2019, whereby the Presiding Officer dismissed C’s claim for wages in lieu of notice, annual leave pay and damages for breach of trust on the grounds that the defendant (“D”) had proved on a balance of probabilities that C’s conduct in hurting D’s daughter (“Hurting Allegation”) justified summary dismissal, awarding interest on the contractual entitlements payable to C from the date of award, and awarding no costs to C.  The Presiding Officer handed down the reasons for its decision on 30 October 2019 (“Reasons”).

2.  In this judgment, this Court will adopt the same abbreviations in the Leave Decision, unless otherwise stated.

3.  Ms Kareena Teh, Solicitor Advocate, represented C at this appeal.   Counsel Mr Christopher Chain appeared for D on instructions of the Director of Legal Aid.

Grounds of Appeal (“Grounds”)

4.  The Grounds can be grouped as follows:

(1) Grounds 1.1-1.5 (“Hurting Allegation”)

(2) Grounds 2.1-2.3 (“Waiver Alternative Case”)

(3) Grounds 3 & 4 (“Damages”)

(4) Ground 5 (“Costs”)

5.  As seen above, the two most substantive group of Grounds   concern the Hurting Allegation and the Waiver Alternative Case.

Error of fact or law

6.  Section 35 of the Labour Tribunal Ordinance, Cap 25 (“LTO”) provides that :

“(1) On an appeal for which it has granted leave under section 32, the Court of First Instance may—

(a) allow the appeal;

(b) dismiss the appeal; or

(c) remit the matter to the tribunal with such directions as it thinks fit, which may include a direction to the tribunal for a new hearing.

(2) On an appeal for which it has granted leave under section 32, the Court of First Instance may—

(a) draw any inference of fact; and

(b) make such order as to costs and expenses as it thinks fit,

but may not—

(i) reverse or vary any determination made by the tribunal on questions of fact; or

(ii) receive further evidence.

(3) Subject to section 35A, the decision of the Court of First Instance shall be final.”

7.  Mr Chain has argued that upon closer scrutiny and proper analysis, C’s appeal is actually an attempt to challenge primary findings of fact made by the Presiding Officer, which is clearly impermissible pursuant to the above provisions.

8.  As seen in Vermeerbergen Peter Alfred v Swisstribe Ltd, HCLA 36/2015 (unrep) 01.12.16,  it has been said that finding of facts by the Tribunal is generally immune from challenge as it involves no error of law, unless such is perverse or irrational, or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors[1]. 

9.  Further, in Vermeerbergen, DHCJ M Ng, as she then was, had also said in paragraph 12 of her judgment that :

“Likewise, in Monti Mary Pais v Shailesh Ramesh Kuwadekar[2], Lam J (as he then was) held that 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[3]. The fact that the Tribunal preferred the evidence of one witness to that of another by itself does not come within these categories.”

10.  The learned Judge then went on in paragraph 14 to refer to Kaifull Investments v Commissioner of Inland Revenue, where it is held that the fact other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/ tribunal acted unreasonably and had come to a conclusion that no court/ tribunal acting judicially could reasonably have made[4], saying that it is only where the lower court decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere[5].

11.  With the above principles in mind, I now turn to the Grounds.

Hurting Allegation 

12.  As seen in the Reasons, the Presiding Officer has found that C was dismissed summarily on 22 September 2016.  D’s reasons for summary dismissal were based on the following 4 allegations (“Allegations”):

(1) Shampoo Allegation

(2) Hurting Allegation

(3) C’s failure to wash D’s daughter’s clothes properly

(4) C’s failure to play with D’s daughter

13.  As for the Shampoo Allegation, the Presiding Officer found that D was not able to prove on a balance of probabilities that C had placed foreign substance in the shampoo and had caused pain and irritation to D’s scalp.  As for the Allegation in (3) above, the Presiding Offer failed to see how this complaint whether on its own or in conjunction with other complaints, would justify summary dismissal.  As for the Allegation in (4), the Presiding Officer said she did not accept either C’s or D’s evidence on this matter and since the burden of proof rested with D, she was not satisfied that D was able to prove this allegation.

14.  The Hurting Allegation was the only allegation that was found to be proved by D which justified C’s summary dismissal by D.  As the Presiding Officer had said, this was a “serious allegation”.

15.  First of all, it was not disputed that C started working for D on 9 June 2016 and ended on 22 September 2016 (“Termination”), namely it lasted only about 3 ½ months. 

16.  Secondly, it was also not really disputed that on 9 July 2016, C received her 1^st month’s salary of  HKD 4,210 per month and for the 2^nd month, C received an increase to, according to C, HKD 4,500 per month, which D admitted during the trial before the Presiding Officer[6]. In fact, in D’s written submissions dated 18 September 2019 to the Tribunal (“18.09.19 Submissions”)[7], she had said she gave C an increase of HKD 400, which would be HKD 4,610 per month, and also a red packet laisee of HKD 500 for C on her birthday (which was on 10 September 2016)[8].

17.  Thirdly, it was D’s own evidence that she called the police on 22 September 2016, the date of the Termination, over the Shampoo Allegation.  According to D, there were two incidents involving the Shampoo Allegation, the 1^st took place maybe 10 odd days before 22^nd September 2016, and the 2^nd took place on 22  September 2016[9].  Thus, the 1^st incident would have taken place around 12 September 2016 or before, which was shortly after, or around the time, D gave C a red packet.

18.  Fourthly, D made two statements, the 1^st one a “Defence Statement” dated 31 October 2016 and one dated 4 November 2018, which will simply be referred to respectively as her 1^st Statement and her 2^nd Statement.  Notably, in her 1^st Statement, which was about a month after the Termination, D herself had said it was after 10 September 2016 that C was not working properly[10].  Further, in her 1^st Statement, D did not mention the Hurting Allegation at all and had only mentioned the other 3 Allegations.  Even in her 2^nd Statement filed in opposition to C’s application for union representation and for her evidence be given by way of VCF, D only mentioned that “the worker has done a lot that caused harm to others”[11].  There was no specific reference to the Hurting Allegation.  The Hurting Allegation was only made expressly by D herself in her 18.09.19 Submissions[12], which was over 3 years after the Termination, notwithstanding that  D did file a witness statement dated 30 October 2018 of her friend Mr Ho Wing Ki and further submitted a statement from her daughter (“Daughter”) dated 2 November 2018 regarding the Hurting Allegation.  

19.  So far as Mr Ho’s evidence was concerned, he had confirmed during the trial that he did not live with D and it was D who told him what happened inside D’s home.  His evidence was thus hearsay.  As for the Daughter’s statement, such was filed over two years after the alleged incidents.

20.  When asked during the trial about the Hurting Allegation, D had said that it happened “multiple times, two times, because she did that every day”[13]. Then, D had also said that the first time that C had hurt the Daughter when bathing her was around the 1^st or 2^nd of September 2016 and that D took the Daughter to see a doctor as there was inflammation.  D alleged that the Daughter told her that every day when C bathed her, C inserted her finger into her uterus and D said C was “quite a psychopath”[14].  According to D, the second time it happened was 10 odd days afterwards.

21.  D had admitted that after the first time, she had allowed C to continue to bathe the Daughter.  Further, when asked by the Presiding Officer if the matter was so serious, why D did not terminate C’s employment as soon as she found out after the first time it happened, D’s answer was she had to work and if she had fired C, there would be no one to take care of the Daughter.

22.  When D was asked why she did not fire C the second time it happened, D again said because she had to work and if she had fired C then there would be no one to care for the Daughter[15].  As the Presiding Officer had pointed out to D, yet D then fired C on 22 September 2016 over the Shampoo Allegation.  D said a police officer told her to let C go because it would not be safe for D’s home.  The Presiding Officer had asked D expressly why she would fire C over the Shampoo Allegation on 22 September 2016 and not because the Daughter was being subject to “sexual abuse”, D had answered “because there were so many incidents”[16].

23.  When the Presiding Officer pointed to D on the day of the closing submissions before the Tribunal that she had not provided any medical evidence of the Daughter  or evidence of her being taken to see a doctor over any inflammation to her private parts, D’s response was that she took the Daughter to see the doctor downstairs who had unfortunately moved and that she could not find the doctor now.

24.  D’s evidence was clearly inconsistent with the Daughter’s. According to the Daughter, she had told her mother every time when C hurt her when bathing her, and that she had told her mother may be two or three times[17]. The Daughter’s answer would mean that the incidents of the Hurting Allegation, even if true, happened only two or three times.  Further, according to the Daughter, she was taken to see a Government doctor on two occasions and there was one time when she was taken to see a private doctor.

25.  The Presiding Officer had found that there were differences in the evidence of the Daughter and D but came to the view that the differences were due to D’s tendency to exaggerate her evidence.

26.  The inconsistencies between D’s evidence and the Daughter’s evidence were in relation to at least 4 aspects:

(i) the number of times it happened;

(ii) the extent of the alleged “insertion”

(iii) the extent of “injuries” 

(iv) the doctor the Daughter was taken to see.

27.  As said,  the Daughter’s evidence in relation to (i) was may be two or three times, whereas D’s evidence was multiple times; in relation to  (ii), the Daughter’s evidence was that  C had hurt her private parts with her finger nails and the hurting was the front of her private parts and not underneath and that only a bit of the inside[18], whereas D’s evidence was C was  inserting her fingers into the Daughter’s uterus.

28.  In relation to (iii), as said, the Daughter’s evidence was that C hurt a bit of the inside and when C did it, when the Daughter urinated, it hurt so bad that she could not urinate[19].   The Daughter had also said there was itchiness and the doctor said there might be bacteria because C’s fingernails were dirty and that was why the Daughter felt the itchiness[20].  Yet, D’s evidence about the Daughter’s “injuries” was that C had scratched the Daughter and there was bleeding and there was inflammation. 

29.  As to (iv), the Daughter had said she was taken to see a Government doctor on two occasions and only one visit to a private doctor, whereas D only mentioned taking the Daughter to the private doctor downstairs, and the doctor had moved and that was why D could not obtain medical reports to substantiate the Hurting Allegation.

30.  Mr Chain pointed out that the Presiding Officer considered C’s evidence and expressly found that she was not a reliable witness and that the Presiding Officer had found that the Hurting Allegation proven on a balance of probabilities based on her acceptance of the Daughter’s evidence and placing little (or no) weight on D’s evidence.  Mr Chain submitted that it is clear that the Presiding Officer’s finding on the Hurting Allegation was based on her weighing of oral evidence and assessment of credibility of witnesses.

31.  However, notwithstanding the Presiding Officer said she accepted the Daughter’s evidence and found D was exaggerating, yet she found that C had injured the Daughter’s pubic region on multiple occasions.  As seen earlier, this was not the Daughter’s evidence at all [21].  Thus, the Presiding Officer seemed to be accepting D’s evidence instead notwithstanding the Presiding Officer found D exaggerating.

32.  Further, the reason D gave for not being able to produce a medical report from the private doctor as the private doctor had moved could not have been a valid reason for failing to produce medical reports from the Government doctors.  This was not simply a matter of D exaggerating her evidence.

33.  In any event, there were clearly two issues, namely (1) whether C had intentionally hurt the Daughter while bathing her and if so, the frequency and extent of the Daughter’s injuries, and (2) whether the Hurting Allegation was the alleged reason for summary dismissal.

34.  As submitted by Ms Teh, the Hurting Allegation made by D was a serious one but it was made only over two years after the Termination, and that the Presiding Officer should have had regard to the need for strong cogent evidence.  The Daughter was about 7 years old when the incidents took place, and 9 years old when she gave her witness statement and about 10 years old when she gave evidence.  In particular, there was no independent supporting medical evidence to support the Daughter’s “injuries”, which according to the Daughter’s own evidence, it seemed that she only suffered pain when urinating.

35.  According to D, the first of those incidents took place on about 1^st or 2^nd September 2016, and that thereafter according to D, it happened every day or on multiple occasions.  This was not the Daughter’s evidence. What D had said had to be considered in the light that, as mentioned earlier, D gave C an increase for her salary for the month of September and also a red packet laisee on about 10 September.

36.  D then said that the second time she found out was about 10-odd days after the first incident, which would be around 11^th or 12^th September 2016.  As said earlier, when asked why she did not fire C as soon as she found out the second time, D said because she had to work and if she had fired C there would be no one to take care of the Daughter[22].   Anyway, according to the Daughter, the last time C hurt her was a few days before C left. 

37.  The Presiding Officer said she accepted the Daughter’s evidence that the “injury” was not caused accidentally, and the last incident occurred only a few days before the dismissal.

38.  It was  the Presiding Officer’s conclusion that C’s conduct in the Hurting Allegation was a serious misconduct and justified summary dismissal in itself[23]. However, even on D’s own case, she did not fire C immediately when she found out about the Hurting Allegation incidents, nor did she call the police and that the Termination was over the Shampoo Allegation.

39.  As seen in the transcript, during the trial, the Presiding Officer had told D that it was C’s case the Hurting Allegation could not be true as it was made two years after the termination of C’s employment and the Presiding Officer had asked D about this, and D’s response was that she had brought it up the first time when they were in court and denied that she had made it up recently.

40.  In paragraph 38 of the Reasons, the Presiding Officer then said she did not accept that there was recent fabrication of the Hurting Allegation as it could be seen in D’s 1^st Statement in 2016 and the Daughter’s statement of 2 November 2018.  However, as said earlier, D did not mention the Hurting Allegation at all in her 1^st Statement, and further the Daughter’s statement was made over 2 years after the alleged incidents and in fact, after this Court had ordered C’s claims in the Tribunal to be restored[24].  The Presiding Officer was clearly mistaken that D had mentioned the Hurting Allegation in her 1^st Statement and this would mean that the Presiding Officer’s reason for finding that there was no recent fabrication was flawed and plainly wrong.

41.  It was accepted by Mr Chain that the Presiding Officer made a mistake in paragraph 38 about when D first mentioned the Hurting Allegation, and the fact was that it was only expressly mentioned for the first time in D’s submission dated 18 September 2019.  

42.  Mr Chain submitted that as a matter of law it was not open to C to pursue allegations of fabrication, collusion and coaching against D and the Daughter (whether at trial or in this appeal) as these serious allegations were never put to D and the Daughter in cross-examination. However, as seen in section 27(2) of the LTO, the rules of evidence do not really apply to proceedings in the Tribunal, and the Presiding Officer may receive any evidence which she considered relevant.

43.  In any event, as pointed out by Ms Teh, in her Reply Submissions, that C had raised the fabrication allegation as early as in her 7^th witness statement, and that D and her witnesses were put on notice thereof[25]. In fact, the Union Representative (who is not a lawyer) for C had tried to ask the Daughter whether she loved her mother, which would go directly to the Daughter’s motivation for fabrication/collusion.  The question was not allowed by the Presiding Officer and thereafter, there was no further cross examination of the Daughter.

44.  Ms Teh submitted that the Presiding Officer should have considered the evidence on the Hurting Allegation with extra care and with a degree of suspicion due to its belated introduction to the case by D, namely over two years after the Termination, but failed to do so.

45.  In any event, even if the Daughter’s evidence was accepted in its entirety by the Presiding Officer, having considered all the evidence, in my view, the Presiding Officer’s finding that C had injured the Daughter’s pubic region on multiple occasions was not supported by the Daughter’s own evidence.  Further, when giving  evidence, all D said was that she only  told C to cut her finger nails  after the first incident[26], and it was only during her closing submissions, she then said she had asked C to pay more attention or be more careful after the first incident[27].  However, there was no evidence from D as to what steps were taken by her after the second incident and/or third incident, other than taking the Daughter to see a doctor.

46.  What was clear was that D did not ask C to stop bathing the Daughter.  She did not make any report to the police even though D’s evidence of C’s alleged misconduct would amount to “sexual abuse” of the Daughter, and yet D made a report to the police over the 2^nd incident in the Shampoo Allegation on 22 September 2016.  In fact, D also did not contact the social worker or the teachers at the Daughter’s school notwithstanding her allegations.

47.  Having considered all the above, I am of the view that there was no evidence to support Presiding Officer’s conclusion that C’s conduct in the Hurting Allegation was a serious misconduct which justified summary dismissal.  Such conclusion was based on the Presiding Officer’s misunderstanding of the evidence, and/or finding of facts, or inference from the facts, which were perverse or irrational.  In my view, such conclusion was an error of law. 

48.  I am thus of the view that the Presiding Officer had erred as set out in Grounds 1.1-1.5 and I am prepared to allow the appeal on Ground 1.  For completeness, I will continue to consider the other Grounds.

Waiver Alternative Case

49.  There was no dispute that D signed two documents on 22 September 2016, the date of the Termination, namely a Settlement Agreement[28] and a Letter of Reference for C [29].  Both documents were written in English and handwritten by C in the presence of police officers.

50.  As to how the police was involved, C’s version was that it was D who suddenly accused her of putting something inside the shampoo and slapped her on 22 September 2016, as a result of which she left a message informing a Ms Wagner of the “Helpers for Domestic Helpers” of which a screen shot was produced by C[30], and later she rang her sister while D then called her husband who spoke to C on the phone and that D’s husband advised her not to call the police.  C said she was very scared and so she dialled 999 but D snatched her phone away, and that it was the Daughter who called the police.  Further, it was C’s evidence that before the police arrived, she heard D telling the Daughter not to say anything.

51.  D’s evidence was that it was she who called the police.  In her statement, the Daughter said it was her mother who called the police.  When asked by the Presiding Officer during the trial as to whether she was at home on the day the police was called, the Daughter had said she was and that she witnessed some of the things which happened but midway, she was so scared and she went into her room.  The Daughter was not asked by the Presiding Officer as to what she had witnessed and when she went into her room.

52.  In fact, in D’s 1^st Statement, all she said was that she did not know what C had put in the shampoo, as a result of which when she washed her hair, strands of her hair were entangled, and that when she asked C, C said sorry[31]. D did not mention pain or any report to the police in her 1^st Statement.

53.  The Presiding Officer had in paragraph 27 of the Reasons set out that D gave inconsistent version of events regarding the second shampoo incident on 22 September 2016, that D’s first version was after she washed her hair with the problematic shampoo, she experienced pain to her scalp and she therefore decided to make a report to the police to have C arrested, but D’s second version was that before she washed her hair, she had already detected a strange smell in the shampoo and she  did not wash her hair with the problematic shampoo but used her new shampoo which did not cause irritation.  Although D was asked which of her versions was correct, D failed to give any proper answer[32]. Notwithstanding D’s conflicting evidence, there was no finding by the Presiding Officer as to which version was correct, nor was there any finding by the Presiding Officer as to C’s version of events, or why the police was called.

54.  What is clear is that there was no testing of the shampoo by any Government chemist.  It is interesting to note that when D was asked about this by the Presiding Officer,  D’s explanation was that the police had said since the two of them had come to an agreement and they could settle then there was no need for any further action[33].

55.  In paragraph 22, the Presiding Officer rejected that the Settlement Agreement could amount to a “waiver” on D’s part and her reason was that  a waiver must be unequivocal and she did not find D to have unequivocally waived her right to summarily dismiss C[34].

56.  As for the reasons why the Presiding Officer found that the Settlement Agreement was unequivocal, these were set out in paragraphs 12 to 22 of the Reasons, namely :

(1) the Settlement Agreement was in English, written by C with the terms suggested by the policemen present;

(2) C knew that D could not write English and the policeman present could not write English well;

(3) C assumed that the Settlement Agreement had been translated to D;

(4) D maintained that she had no knowledge of the English language and did not know what was written in the document;

(5) Ultimately, there was doubt as to whether the contents of the Settlement Agreement were properly translated to D, given the poor standard of English of D and the policeman;

57.  In the Reasons, the Presiding Officer merely set out what she “noted” in C’s written evidence and that from what she “noted”, she then came to the view that there was no enforceable agreement.

58.  The fact was there was no supporting evidence as to D’s level of English or her education level, nor was there evidence of the police officer’s standard of English.  What C said was that the police officer claimed he could not write English well and he asked C to write out the Reference Letter.  C in fact had said in her 2^nd statement that it was the police officer who dictated to her to what to write for the Reference Letter, and further it was the police officer who started a draft and stopped the draft midway to show the Reference Letter to D and that the police officer had orally translated to D the Reference Letter and the Settlement Agreement.  The Presiding Officer did not refer to any of this part of C’s evidence.

59.  There was no mention by the Presiding Officer of D’s own evidence as to what she had understood to be in the Settlement Agreement or in the Reference Letter, as there was no dispute that D had signed those two documents.   In particular, D had herself admitted that she had brought funds to the agency the following day, namely 23 September 2016, to pay C.

60.  Further, as mentioned earlier, when asked why there was no testing of the shampoo by any Government chemist, D’s explanation was that the police had said since the two of them had come to an agreement and they could settle then there was no need for any further action[35].  Thus, on D’s own evidence, she was aware of the nature of the documents she signed.  There was no reference to this part of D’s evidence by the Presiding Officer.  There was also no clear finding by the Presiding Officer as to whether she accepted D’s evidence that she did not know what was written in the two documents.

61.  The Presiding Officer had found that “taken at its highest, the purported settlement agreement is only a letter setting out what the defendant intends to do”[36]. As pointed by Ms Teh, the Presiding Officer failed to consider or make any finding as to whether an expression of intention to compensate could constitute waiver of D’s right to summarily dismiss. 

62.  Having considered the above, I would also allow the appeal on Grounds 2.1 to 2.3.

Damages and Costs– Grounds 3, 4 and 5

63.  Grounds 3 and 5 are dependent upon C being successful on Grounds 1 and 2.  

64.  In relation to Ground 4, Mr Chain submitted that the Presiding Officer did not separately deal with C’s claim for damages for breach of trust and confidence as it was bad at law and that it added nothing to C’s claim for wrongful dismissal and claim for 1 month’s pay in lieu of notice.

65.  As pointed out by Ribeiro JA , as he then was, in Semana Bachicha and Poon Shiu Man CACV 55/2000, 18 July 2000, before the decision in Malik v Bank of Credit and Commerce International SA (in liquidation) [1998] AC 20, discussion of the remedy at common law for breach of an employment contract tended to focus almost exclusively on damages for wrongful dismissal and such relief was generally modest in nature and extent[37].

66.  His Lordship then went on to set out that what the Malik decision stresses is that the remedy in damages for breach of a contract of employment is not restricted to damages for wrongful dismissal, and that the general measure of damages rules in the law of contract are applicable to other types of breaches giving rise to other types of pecuniary loss[38]. In the Malik case, the plaintiffs’ entitlement to notice, money and statutory redundancy pay was not in issue, and that the nature of their claim as summarised by Lord Steyn in the Malik case was for damages for pecuniary loss allegedly caused by the bank’s breach of an implied contractual obligation of mutual trust and confidence, and that the House of Lords upheld the existence of the implied obligation relied on[39].  Thus, it is necessary in the employment context first to identify the specific obligation breached and the extent of loss caused by that breach before considering what damages are recoverable under the measure of damages.

67.  In the present case, Mr Chain argued that even if (which is denied) the acts relied on C to establish the “breach of trust and confidence claim” are established[40], those alleged acts had not caused premature termination in this case and that the claim was bad at law.  However, in the present case, the Presiding Officer did not separately deal with C’s claim for damages based on the alleged breach of trust and confidence at all.  There was no determination by the Presiding Officer as to (i) whether there had been any breach of any implied term or obligation of trust and confidence in the employment contract, (ii) whether C suffered any additional pecuniary loss which was not too remote as a result of the breach, if any, and (iii) whether the quantum of damages claimed by C was established.

68.  Having considered the above, I am prepared to allow the appeal also on Ground 4.

Conclusion

69.  C’s appeal is allowed.  I am of the view that in accordance with section 35 (1)(c) of the LTO, the matter should be remitted to the Tribunal for a retrial before another presiding officer, with costs in the cause of the retrial. 

70.  As D is under legal aid, her own costs should be taxed in accordance with the Legal Aid Regulations, Cap 91A, with certificate for counsel.