XCHRX LEE TIM and Others v. CHOW SUK CHING t/a WANG CHONG CO.

1996 No. MP 2258

IN THE SUPREME COURT OF HONG KONG

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS

ON APPEAL FROM LABOUR TRIBUNAL APPEAL

NO. 5 OF 1996

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J U D G M E N T

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1. The application is out of time, but reasonable excuses have been given. The remaining issue is whether there are questions of general public importance to go to the Court of Appeal. Two questions are posed by the intended appellants. They are in these terms:

"1. The Learned Judge was wrong in law in reversing the determination made by the Presiding Officer that the 2nd Respondent had not been the employer of the Appellants, such determination being one of fact which the Learned Judge had no power to reverse by virtue of Section 35(2)(b)(i) of the Labour Tribunal Ordinance, Cap. 25 ("the Ordinance"). It is the 2nd Respondent's case that the question as to whether the determination that the 2nd Respondent had not been the employer of the Appellants is a question of law or of fact, and whether or not the High Court on appeal from the Tribunal may reverse such determination, and if so, under what circumstances, is a question of law of general public importance.

2. The Learned Judge was wrong in law in failing to exercise his discretion to remit the matter to the tribunal with such directions as he thought fit pursuant to Section 35(1)(c) of the Ordinance, in order to have a proper determination of the issue as to whether (assuming the 2nd Respondent was employer of the Appellants) there had in fact been dismissal of the Appellants. Such issue had been raised by the 2nd Respondent in her Supplemental Defence, but was not investigated by the Presiding Officer. It is the 2nd Respondent's case that the manner of the exercise of the discretion of the High Court on appeal from the Labour Tribunal, where there are issues which have not been properly investigated by the Tribunal, is a question of law of general public importance."

2. This is what the Judge said:

"CONCLUSION

The finding that the Claimants were the employees of Mr Pun was not supported by evidence. The only available conclusion from the evidence is that the (2nd respondent) had been the employer of the Claimants. This entitle (sic) me to intervene and reverse the finding."

3. As to (1), as it stands it does not seem to have raised any question of law of general public importance. It is clear that under section 35(2)(b)(i) Cap. 25, a High Court judge on appeal had no power to reverse or vary any factual determinations. The Tribunal Judicial Officer found as a fact that the 2nd respondent was not the employer. The judge had no power to disturb that factual decision as he did. It would appear that he was wrong. It is not uncommon that judges are criticized for having been wrong. That is not enough. The language of the paragraph (i) is clear. The court on appeal cannot reverse or vary a finding of fact. It is not suggested that the judge had misconstrued section 35(2)(b)(i). He was simply wrong. As it stands, there is no point of law, less a point of law of general public importance.

4. However, it would seem to be arguable that the judge should not have disregarded or refused to abide by section 35(2)(b)(i) Cap. 25 by reason of lack of evidence. That would appear to be a question of law of general public importance as to whether a court could, as did the judge in this case, vary or reverse the Tribunal's factual finding for the reason given. The question of law of general public importance for the proper determination of the Court of Appeal would therefore seem to be "whether Mr Justice Cheung could disregard or refuse to abide by section 35(2)(b)(i) Cap. 25 for lack of evidence".

5. The second question poses more difficulty as exercise of discretion is a matter hard to challenge. It is not specified in what circumstances the judge is said to have wrongly exercised his discretion. What is being complained of is "the manner of exercise of discretion". Section 35(2)(a) Cap. 25 would allow the judge to draw inferences of fact. It is not suggested that, even if as submitted, the question of dismissal had not been or had not been properly disposed of by the Tribunal, there were no inferences of fact which the judge was permitted to draw to found the exercise of his discretion. It is not submitted that question (2) is a complaint that the discretion was wrongly exercised against any particular setting. The core of the complaint lies in "the manner of the exercise of the discretion". No question of law has been sufficiently identified, let alone a question of law of general public importance.

6. I am indebted to Mr Pang for his succinct submissions but I am afraid that all I could allow the proposed appellants to go before the Court of Appeal is on the point of law of general public importance which I have earlier endeavoured to frame.

7. I order that leave be granted out of time for the proposed appellants to canvass that point of law before the Court of Appeal. I order that costs for the application today be costs in the cause of the appeal. There should be no order as to costs for the paper application which primarily involves a request for indulgence because the proposed appellants were themselves out of time.

(B. Liu)

Justice of Appeal