YEUNG YICK KUEN v. VMG INTERNATIONAL LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL No. 35 of 1995

(On appeal from Claim No. E356 of 1995)

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JUDGMENT

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1. This is an appeal from the decision of Mr. James Lee, Presiding Officer at the Eastern Labour Tribunal, on 7 March 1995 whereby he dismissed the Appellant's claim for wages in lieu of notice, arrears of wages, double pay and reimbursement of expenses, and ordered the Appellant to pay costs of $1,000.

2. The gist of the dispute between the parties before the Tribunal was whether the Appellant was employed by the Respondent.

3. The Appellant's statement made on 26 January 1995 set out as the name of the Defendant "Ng Kwok Wah/VMG International Ltd." The Respondent's case is that the Appellant was not employed by them, but by a company called Hangzhou Pengcheng Electronic Co. Ltd.

4. The Presiding Officer heard the Appellant, who tendered (in addition to his statement) 2 pieces of evidence, a business card and a photocopy of a Re-entry Permit of the People's Republic of China.

5. The Presiding Officer also heard 2 witnesses called on behalf of the Respondent, who produced (in addition to a letter to the Labour Tribunal) 3 pieces of evidence.

6. In his Reasons for Decision, the Presiding Officer rejected the Appellant's evidence, stating that the Appellant was evasive under cross-examination and was not a credible witness. He also stated that having heard the witnesses and considered the various pieces of evidence, on the balance of probabilities, the Appellant had not proved his case that he was employed by the Respondent.

7. Section 35(2) Labour Tribunal Ordinance cap. 25 stipulates that on an appeal from the Labour Tribunal, the High Court may not (i) reverse or vary any determination made by the Tribunal on questions of fact, or (ii) receive further evidence.

8. In other words, an appeal can only be from an error of law.

9. The intention of the legislature in passing this provision was clearly to ensure a speedy and final resolution of disputes of fact arising in the employment context.

10. In the course of the Appeal before me, the Appellant (who appeared in person) has complained, in the main, of the following matters:-

11. I shall deal with these in turn. My conclusion, however, in relation to all these matters is that none points to an error of law on the part of the Presiding Officer within s.35(2) of the Labour Tribunal Ordinance.

12. Dealing first with the possibility of two employers, a failure on the part of the Presiding Officer to consider this possibility might have been an error of law had it been relevant to the case, but the Appellant has specifically disclaimed that that was his case.

13. The Appellant submitted before me that hypothetically, a person could be employed by 2 or 3 companies at the same time, but that he did not mean that he was working for 2 or 3 companies. It was not his case that he was working for another employer as well as the Respondent. That being so, his argument (1) is hypothetical only.

14. As to the second argument, the Appellant argues that because "D-2" was written in traditional Chinese characters and because the English name on the chop had a discrepancy from the English name on the letterhead, that document must have been forged. I cannot accept that conclusion. In any event, the document had been accepted by the Presiding Officer as being genuine, and this Court may not reverse or vary any determination made by the Tribunal on questions of fact.

15. As to the third argument, I agree with the Appellant that the typewritten transcript of the Presiding Officer's Note of Proceedings contained a number of errors. It would certainly have been more satisfactory if the Presiding Officer had checked the typewritten transcript against his own notes before providing the transcript to the parties.

16. Be that as it may, the errors are not such as to lead me to the conclusion that the Note of Proceedings are incomplete in any material respect, or that the Presiding Officer had erred in law in any respect.

17. As to the fourth argument, the Appellant argued that he wished to adduce a further piece of evidence, being banking documents that his father had obtained from his (the father's) bank. The Appellant said that he had not yet obtained this document at the date of the hearing. (This was despite the fact that the Appellant had been expressly informed by the Presiding Officer at an earlier hearing on 20 February 1995 that he should bring all his witnesses and documentary evidence to the Tribunal at the adjourned hearing on 7 March 1995).

18. It transpired in the course of the Appellant's submissions before me that he had indicated to the Presiding Officer that he might ask for an adjournment to get more evidence if it became necessary. He did not actually ask for an adjournment before the Presiding Officer gave his decision.

19. The Appellant submitted that by saying "if it became necessary", he meant if his claim was rejected.

20. The Appellant having chosen to rest his case without asking for an adjournment to produce the relevant document, he has to suffer the consequences. He cannot now complain that he did not seek the opportunity before the Tribunal for an adjournment to enable him to acquire the evidence.

21. Finally, the Appellant complained that the Presiding Officer should have believed him, and not the Respondent, in relation to a number of matters e.g. as to why no declarations for tax were made, why the Appellant did not inform his trustee in bankruptcy of his receipt of salary. Again, it is not within the jurisdiction of this Court to review factual matters afresh.

22. Accordingly I must dismiss this Appeal with costs to the Respondent.

Dated 27 July 1995