HO LAN FONG v. LAM GOOK t/a LAM TAI HING RESTAURANT

HCLA 130/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 130 OF 2003

(On appeal from Labour Tribunal Claim No. 8217 of 2003)

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J U D G M E N T

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Issue

1. This appeal raises a point of some significance for proceedings in the Labour Tribunal, namely, whether a sole proprietor, who is a party to proceedings in the Tribunal, can authorize another (lay) person to represent him in the proceedings, either as a matter of right of his or as a matter of discretion of the Tribunal.

Facts

2. Mr Lam Gook was and is the sole proprietor of a restaurant business known as Lam Tai Hing Restaurant. He used to employ the Claimant as a kitchen assistant in his restaurant. On 20 July 2003, the employment relationship came to an end rather abruptly. As a result, the Claimant sued Mr Lam - "trading as Lam Tai Hing Restaurant", in the Labour Tribunal for wages in lieu of notice, annual leave pay, statutory holiday pay, rest day pay, and severance payment.

3. On 14 August 2003, the case was heard by a Presiding Officer. Mr Lam did not turn up. Instead by a letter, he appointed a Mr So to represent him at the hearing. However, the Presiding Officer refused to allow Mr So to do so, saying that Mr So had no right to represent Mr Lam at the hearing, who, according to the Presiding Officer, had to appear in person. Eventually, the proceedings were proceeded with on the basis that the Defendant was absent. Not surprisingly, the Presiding Officer found in favour of the Claimant, and awarded her a total of $95,247.66, together with interest.

4. The Defendant now appeals to this Court. A number of points have been raised on his behalf by counsel. Amongst them, counsel argued that Mr Lam, as a sole proprietor of his business, was entitled, as of right, to appoint Mr So to represent him in the proceedings, pursuant to section 23(1)(d) of the Labour Tribunal Ordinance (Cap. 25) ("the Ordinance"). Alternatively, counsel argued that the Tribunal had a discretion to allow Mr So to represent the Defendant at the hearing, as a matter of inherent jurisdiction of the Tribunal to regulate its own practice and procedure, and the Presiding Officer simply failed to exercise the discretion at all.

Labour Tribunal Ordinance

5. As is well known, the Labour Tribunal was established under the Ordinance with limited but exclusive civil jurisdiction in labour matters. It is a "court of record": section 3(1).

6. Section 23 of the Ordinance governs rights of audience before the Tribunal:

"23. Right of audience

(1) The following persons shall have a right of audience before the tribunal -

(a) a claimant or defendant;

(b) a tribunal officer;

(c) an authorized officer;

(d) an officer or servant of an unincorporated or incorporated company or a member of a partnership, if the company or partnership is a party; (Amended 14 of 2003 s. 11)

(e) with the leave of the tribunal, an office bearer of a registered trade union or of an association of employers who is authorized in writing by a claimant or defendant to appear as his representative; and (Amended 101 of 1997 s. 24; 135 of 1997 s. 14; 14 of 2003 s. 11)

(f) a public officer, not being a barrister or solicitor, who appears on behalf of the Secretary for Justice, if the Secretary for Justice is a claimant or a defendant. (Added 14 of 2003 s. 11)

(2) A barrister or solicitor shall have a right of audience before the tribunal only if he is -

(a) acting on his own behalf as a claimant or a defendant; or

(b) appearing before the tribunal on behalf of an offender for the purpose of section 42. (Replaced 25 of 1999 s. 8)"

7. Section 21 of the Ordinance contains provisions for the hearing of a claim in the absence of a defendant:

"21. Hearing of claim in absence of defendant

If a defendant who has been duly served with a copy of the claim and a notice of hearing fails to appear at the hearing, by himself or by a person authorized by the tribunal to appear on his behalf, the tribunal may, if it is of the opinion that the facts relating to the claim are sufficiently established, hear and determine the claim and make such award or order as it may think fit, notwithstanding the absence of the defendant."

8. Section 46 of the Ordinance provides as follows:

"46. Procedure generally

In any matter of procedure for which no provision is made by this Ordinance or by rules made pursuant to section 45 the procedure applicable shall be such as the presiding officer may determine."

Section 23(1)(d) and "unincorporated company"

9. As mentioned above, the first point taken by counsel was that section 23(1)(d) empowers a sole proprietor like Mr Lam in the present case to appoint "an officer or servant" to represent him before the Tribunal. Counsel argued that a sole proprietorship is an "unincorporated company" within the meaning of section 23(1)(d).

10. I reject this argument. Section 23(1)(d), on analysis, gives the following persons a right of audience before the Tribunal:

(1) An officer or servant of an incorporated company, if the company is a party;

(2) An officer or servant of an unincorporated company (that is not a partnership - see below), if the company is a party;

(3) A member (i.e. a partner) of a partnership, if the partnership is a party.

11. The meaning of an "incorporated company" is clear. It simply means a limited company having a separate legal entity. If such a company is a party, a duly authorized officer or servant of that company has a right of audience before the Tribunal.

12. As regards an "unincorporated company", it should be noted that neither the term itself nor the word "company" is defined in the Ordinance. Indeed, it has been said that "the word 'company' has no strictly technical meaning": Re Stanley [1906] 1 Ch 131, 134, per Buckley J. Gower & Davies' Principles of Modern Company Law (7th ed.) expounds the word "company" as follows (p. 3):

"The term "company" implies an association of a number of people for some common object or objects. The purposes for which men and women may wish to associate are multifarious, ranging from those as basic as marriage and mutual protection against the elements to those as sophisticated as the objects of the Confederation of British Industry or a political party. However, in common parlance the word "company" is normally reserved for those associated for economic purposes, i.e. to carry on a business for gain. However, to say that company law is concerned with those associations which people use to carry on business for gain would be wrong - for two reasons. First, the law provides vehicles in addition to the company in which people can associate for gainful business. Second, companies incorporated under the Companies Acts may be used for carrying on not-for-profit businesses or for purposes which can by only doubtfully characterised as businesses at all." (emphasis added)

13. The Companies Ordinance (Cap. 32) simply defines a "company" as a company formed and registered under the Ordinance or an "existing company": section 2(1).

14. One thing is clear in the context of section 23(1)(d): an unincorporated company does not include a partnership, which receives specific mention in the sub-section. According to section 3(1) of the Partnership Ordinance (Cap. 38), partnership is "the relation which subsists between persons carrying on a business in common with a view to profit".

15. Drawing the threads together, I am of the view that one necessary ingredient of an unincorporated company in the context of section 23(1)(d) is that it is an association of more than one person - by definition, it takes two or more to associate (with each other). Put another way, a sole proprietorship is not an unincorporated company.

16. This is supported by a consideration of the position of a partnership under section 23(1)(d). When a partnership is a party to proceedings before the Tribunal, according to the sub-section, only a member (i.e. a partner) of the partnership may, as of right, represent the partnership in the proceedings. No "officer or servant" of the partnership, who is not a partner, may do so as of right. There is thus, so it seems to me, no reason why a sole proprietorship should be afforded preferential treatment in this regard, when compared with a partnership - in terms of number, a partnership may simply comprise two partners, which is not much different from a sole proprietorship.

17. It is true that by a recent amendment to the Companies Ordinance (Ordinance No. 28 of 2003, section 4), a limited company may now be formed by one person. I do not think, however, the proper construction of section 23(1)(d), which has been there for a long time, can be substantively affected by a recent amendment to the Companies Ordinance. Furthermore, it must be remembered that a limited company, once formed, is a separate legal entity distinct from its subscriber(s) or member(s). It can only act through its officers and servants, regardless of how many members it may have. The fact that it may now be formed by one subscriber is therefore, in my view, quite irrelevant to whether an unincorporated company must consist of more than one person in the context of section 23(1)(d).

18. The position may be contrasted with that under the Small Claims Tribunal Ordinance (Cap. 338). Section 19 of that Ordinance governs the rights of audience before the Small Claims Tribunal:

"19. Right of audience

(1) The following persons shall have a right of audience before the tribunal -

(a) any party;

(b) an officer or servant of a corporation, if the corporation is a party;

(c) a member of a partnership, if the persons comprising the partnership are parties;

(d) with the leave of the tribunal, any person, other than counsel or solicitor, who is authorized in writing by a party to appear as his representative; (Amended 14 of 2003 s. 12)

(e) a public officer, not being a barrister or solicitor, who appears on behalf of the Secretary for Justice, if the Secretary for Justice is a party. (Added 14 of 2003 s. 12)

(2) Except for the purposes of proceedings under section 35A for insulting behaviour, no barrister or solicitor, including a barrister or solicitor who is a public officer whether or not qualified to practise in a court in Hong Kong, shall have a right of audience before the tribunal unless he is acting on his own behalf as a claimant or defendant. (Amended 28 of 1999 s. 9)"

19. It is patently clear from the above section that subject to section 19(1)(d), only an officer or servant of a "corporation" - i.e. an incorporated company, has a right of audience before the Small Claims Tribunal, if the corporation is a party, under that section: section 19(1)(b). The position of a partnership is governed by, again subject to section 19(1)(d), section 19(1)(c) - only members of the partnership may appear before the Tribunal on behalf of the partnership under that section. As for the rest - including what may be called an "unincorporated company" within the meaning of section 23(1)(d) of the Labour Tribunal Ordinance, their position is governed by section 19(1)(d): with the leave of the Small Claims Tribunal, any person, other than counsel or a solicitor, who is authorized in writing by a party to appear as his representative, may have a right of audience before the Tribunal.

20. Very similar (but not identical) provisions (vis-à-vis the Small Claims Tribunal) regarding rights of audience have been made in relation to appearance before the Minor Employment Claims Adjudication Board: see section 22 of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453).

21. I bear in mind the general principles of construction laid down in section 19 of the Interpretation and General Clauses Ordinance (Cap. 1), namely, that

"an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

22. However, having borne the above matter in mind, I am unable to accept counsel's submission that a large and liberal construction and interpretation of the term "unincorporated company" could include a sole proprietorship within its ambit.

23. I say this without forgetting that a sole proprietorship (or for that matter, a partnership) may in fact comprise a very substantial business involving various business activities and employing many employees. A very substantial business may simply be owned by one single person - its sole proprietor. Likewise, a very large business or practice may belong to a partnership comprising only 2 partners. In that type of situations, to require, every time the sole proprietorship or partnership is involved in litigation in the Labour Tribunal regarding labour matters, the sole proprietor or one of the partners to attend personally before the Tribunal to handle the proceedings - and there may be several hearings before the dispute can eventually be adjudicated upon by the Tribunal - may cause much unnecessary inconvenience, nuisance or even hardship to the sole proprietorship or partnership.

24. That consideration does not, however, drive me to the conclusion that upon a fair, large and liberal construction and interpretation of section 23(1)(d) of the Labour Tribunal Ordinance, an "unincorporated company" should include a sole proprietorship.

25. First, as a matter of logic, the difficulty pointed out just now is not limited to the case of a sole proprietorship, but applies likewise, depending on the facts, to any partnerships. And there is certainly no way, regardless of how liberal and generous the construction approach may be, to construe section 23(1)(d) as meaning that an authorised officer or servant of a partnership, who is not a partner, shall have a right of audience before the Tribunal.

26. Secondly, and this leads me conveniently to the second argument raised by the Defendant through counsel in this appeal, one must consider the question of a discretion on the part of the Tribunal, which if exists, would to a significant extent alleviate the perceived inconvenience, nuisance or even hardship identified above, not only in the case of a sole proprietorship, but also in the case of a partnership comprising a handful of partners only.

27. But before I move on to the second question posed by this appeal, I would first summarize my conclusion reached thus far by saying that as a matter of construction of section 23(1)(d), an unincorporated company does not include a sole proprietorship, so that a party like the Defendant in the present case is not, as of right under section 23(1)(d) (or indeed any other statutory provisions), entitled to appoint an officer or servant to represent him in the proceedings before the Tribunal. To that extent, the Presiding Officer was right.

Ling Shing Hong

28. Before parting with this first point, I should mention that it seems that in some quarters, there is held the belief that the case of Ling Shing Hong trading as Video Compass v. Chan Chi Kin, Labour Tribunal Appeal No. 71/89, Hooper J (7 May 1990), is an authority for the proposition that a sole proprietor must appear in person before the Tribunal. A careful reading of the judgment shows that it does not support such a proposition at all. In that case, the defendant, Mr Ling, was the sole proprietor of a business known as Video Compass. He was also the director and shareholder of a limited company known as Video Compass Limited. Mr Ling "trading as Video Compass" was sued by 25 former employees in the Labour Tribunal. By a letter written not by Mr Ling or Video Compass, but by Video Compass Limited, the limited company authorized two employees to represent the limited company at the hearing. The authorization letter was signed by Mr Ling as the authorized signatory of Video Compass Limited. That letter was treated by the Tribunal as a proper authorization of the two employees to act as the representatives of Mr Ling "trading as Video Compass" in the proceedings. After hearing, the Tribunal made an award in favour of the employees. Not surprisingly, upon appeal, Mr Ling through counsel argued that the two "representatives" had no authority whatsoever to represent him personally or his sole proprietorship (Video Compass) in the proceedings. For plainly, the "authority" of the two representatives came from a letter of authorization written by Video Compass Limited, which was not a party to the proceedings. The fact that it was signed by Mr Ling himself - who was a party to the proceedings - as the authorized signatory of the limited company, was neither here nor there. The argument was accepted by the court, which allowed the appeal and set aside the award made below.

29. What is important for our present purpose is that the judgment did not turn on the proper construction of section 23(1)(d) at all. The case did not concern the question of whether a sole proprietor could appoint someone to represent him before the Tribunal. Quite to the contrary, the point raised by the sole proprietor on appeal was that he had not appointed anyone, including the two purported representatives, to represent him before the Tribunal. If anything, that judgment evidenced that at least the Presiding Officer of the Tribunal in that case thought that a sole proprietor could be represented by an authorized representative in proceedings before the Tribunal - his only mistake in that case was that no such authorization had been properly made by the sole proprietor.

30. The fact that the decision in Ling Shing Hong does not support the proposition that a sole proprietor cannot, as of right under section 23(1)(d) of the Ordinance, appoint an officer or servant to represent him before the Tribunal, does not mean that the proposition is incorrect. For reasons explained above, in my view, the proposition is correct, subject to what I am going to say in relation to the second issue raised by this appeal.

Discretion on rights of audience

31. That a sole proprietor is not, as of right, entitled to appoint an officer or servant to represent him before the Tribunal, does not, as a matter of logic or law, necessarily mean that the Tribunal does not have the power or discretion to allow the sole proprietor so to do.

32. In section 19(1)(d) of the Small Claims Tribunal Ordinance (see above), the Small Claims Tribunal is expressly empowered by the legislation to allow "any person, other than counsel or solicitor" to represent a litigant before the Tribunal.

33. No such express authorization can be found in either section 23 of the Labour Tribunal Ordinance, or, for that matter, section 22 of the Minor Employment Claims Adjudication Board. But speaking in relation to the latter section, To DJ opined in Lok Ming Restaurant v. Lau Kwai Chong HCME 7/1999 (25 February 2000) that the section is "neither exhaustive nor exclusive", and it does not purport to give an exhaustive list of who may or may not appear before the Board.

Inherent jurisdiction to regulate own procedure

34. In my judgment, the starting point is that rights of audience before a court is a matter of procedure of that court, and a court exercising judicial functions has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down by the enacted law, and it cannot adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or (possibly) adopted by ancient usage. Thus Halsbury's Laws of England (4th ed. re-issue) Vol. 10 para. 303 says as follows:

"303. Procedure. A court exercising judicial functions has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down by the enacted law, and it cannot adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or adopted by ancient usage. This inherent power may be used to prevent the court being used to achieve injustice. The procedure of the Supreme Court, county courts and most courts of record is now substantially regulated by statutory rules."

35. More specifically, in relation to the courts' inherent jurisdiction over rights of audience before the courts, Halsbury's Laws of Hong Kong Vol. 8 para. [125.005] says:

"[125.005] Inherent jurisdiction of the courts A court exercising judicial functions has an inherent power to regulate its own practice and procedure, save insofar as its procedure has been laid down by the enacted law. The inherent jurisdiction of the court enables it to exercise (1) control over court process by regulating its proceedings, by preventing abuse of process and by compelling the observance of the process; (2) control over persons who appear before the court whether as litigants, lawyers or an amicus curiae; and (3) control over the powers of inferior courts and tribunals. A court cannot, however, adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or adopted by ancient usage. The procedure of courts of record is now substantially regulated by statutory rules.

The court also has inherent powers to enable the court to function effectively and to ensure the liberty of persons wrongly imprisoned."

36. In this regard, I have already noted above that the Labour Tribunal, established under the Labour Tribunal Ordinance, is a "court of record": section 3(1), and exercises a "limited civil jurisdiction" (preamble to the Ordinance). In my view, what has been said in relation to the inherent jurisdiction of a court to regulate its own practice and procedure, including the question of rights of audience, applies to an inferior court like the Tribunal, in as much as it applies to a superior court like the High Court, subject always to any contrary or inconsistent provisions in the relevant legislations.

37. In O'Toole v. Scott [1965] AC 939, a case concerning the power of magistrates in New South Wales to regulate the rights of audience in proceedings before them, the Privy Council, after reviewing the relevant authorities (including, amongst others, Collier v. Hicks (1831) 2 B & Ad 663; Ex parte Evans (1846) 9 QB 279 and some Australian cases), confirmed the existence of the general principle that:

"subject to usage or statutory provisions, courts or tribunals may exercise a discretion whether they will allow any, and what persons, to act as advocates before them" (at p. 952 F/G).

38. The Privy Council went on to explain the discretion, in response to a submission that the discretion must be exercised specially in a particular case and not by way of a general practice and that it is properly exercisable only when its exercise is necessary for the administration of justice, and not when it is merely desirable for convenience and expedition and efficiency in the administration of justice, thus:

"There is, however, no sound basis for either point. There is no statutory limitation of the discretion; the discretion is not conferred by statute, but is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court. There is no reason in principle for limiting the discretion as suggested. It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. Its exercise should not be confined to cases where there is a strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice." (at p. 959B to D)

Not concerned with "McKenzie friend"

39. Here, I should emphasize: the subject under discussion is not the position of a "McKenzie friend" (in its conventional sense). In Collier v. Hicks, supra, at page 669, the court opined that any person, whether a lawyer or not, may attend the trial as a friend of either party, may take note and may quietly make suggestions and offer advice. The view was approved in McKenzie v. McKenzie [1971] P 33 (CA) - thus a "McKenzie friend". The leave of the court is not required for assistance of this nature to be utilized: R v. Leicester City Justices, ex parte Barrow [1991] 2 QB 260. See generally Halsbury's Laws of Hong Kong Vol. 8 para. [125.015] and note 1 thereof.

40. In short, under normal circumstances, a McKenzie friend has no right of audience before the court. Yet occasionally, a so-called McKenzie friend is allowed to address the court. In Lobo v. Kripalani [1998] 2 HKLRD 325, Godfrey JA (as he then was) sounded a warning against giving a McKenzie friend a right of audience in the High Court save in exceptional circumstances:

"The reference made by the judge to a "McKenzie friend" (see McKenzie v McKenzie [1971] P 33) needs some explanation. A litigant in person is allowed to have sitting with him someone who can give him advice and help him with the presentation of his case; but it is still the litigant in person who has to present that case to the court. I do not suggest that the judge was wrong, in the special circumstances of the present case, to allow Mr Ashok "to address the court". A judge is entitled to exercise a reasonable degree of flexibility in the manner in which he allows proceedings to be conducted before him. But I must express my concern at what the judge did here in allowing Mr Ashok in effect to represent the appellant. Certainly, it is only in most exceptional cases that a High Court judge should permit that course to be taken. A "McKenzie" friend does not have a right of audience in our High Court.

In this court, it became apparent at the outset of the hearing that the appellant assumed that, as a matter of course, Mr Ashok, who had no right of audience, would nevertheless be entitled to present his appeal. It would be, in my opinion, wholly inappropriate to allow a friend of a litigant in person to present that litigant's appeal to this court. In fact, we refused Mr Ashok leave to do so." (at page 328 F/G to J)

Positions in England and Hong Kong

41. As I said, I am not concerned with a McKenzie friend (in the conventional sense) in the present appeal. I am concerned squarely with a lay representative appointed and authorized by a sole proprietor, who is a party to proceedings before the Labour Tribunal, to represent him before the Tribunal, in effect as his advocate, and - I should add - in his absence. Of course, because of the restriction laid down in section 23(2) of the Ordinance, the appointed representative cannot be counsel or a solicitor.

42. Whether one calls somebody like Mr Ashok in Lobo a McKenzie friend or a lay representative/advocate of the type that I am concerned with in this appeal is perhaps a matter of semantics.

43. What is important in the present case is that there is, according to authorities, indeed an inherent discretion on the part of courts and tribunals to allow a party to appoint a representative to act as his advocate in proceedings before the court or tribunal in question, which is quite apart from the courts' and tribunals' practice to allow a party to be assisted by a McKenzie friend (in its orthodox sense). As has been explained above, the Privy Council in O'Toole v. Scott confirmed the existence of such an inherent jurisdiction in courts and tribunals generally, subject to qualification by legislation. It should be remembered that in O'Toole v. Scott, the Privy Council was not concerned with a McKenzie friend; it was directly concerned with, like the position here, legal representation before the magistrates in New South Wales.

44. In England, subsequent cases all confirmed the existence of the inherent jurisdiction in question: see Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service [1979] 1 WLR 1113; Abse v. Smith [1986] 1 QB 536 and A.L.I. Finance Ltd v. Havelet Leasing Ltd [1992] 1 WLR 455, which contained discussions of the inherent jurisdiction that were pertinent to the facts pertaining to the respective cases. In particular, Abse v. Smith contained a review of the English authorities and set out various relevant considerations and public interest factors that should be borne in mind when considering the exercise of the inherent jurisdiction regarding rights of audience before the High Court and Court of Appeal (in England).

45. Likewise, our local courts have on quite a few occasions recognized the existence of and indeed exercised the jurisdiction to allow a party to appoint a layman (usually a close relative) to represent him or her in proceedings before the court. Thus, in Berry v Allan, HCMC 6/1995 (14 June 1996), P Chan J (as he then was) allowed the sister of the respondent to represent him in proceedings then pending before the court on medical grounds. The learned judge's decision was affirmed on appeal: Civil Appeal No. 170 of 1996 (26 February 1997). Bokhary JA (as he then was) said:

"And all that the judge did on that occasion was to exercise his discretion to permit the husband's sister to address him on her brother's behalf in support of his stay or dismissal application.

The judge's decision to permit that course was within the four corners of his discretion." (at p. 3)

Indeed, the Court of Appeal continued to allow the sister of the respondent to represent him in the hearing of the appeal.

46. Despite the warning sounded by Godfrey JA against allowing too easily a so-called McKenzie friend to step across the line and become, in effect, an advocate for a party, the courts - both at first instance and in the Court of Appeal - continued to allow lay persons to act as advocates for parties in deserving circumstances, whether the parties also turned up in person at the hearing or not. Indeed in Chan Kueng-un, Roy v. China Vest II - A, LP CACV 154/1999 (2 September 1999), the Court of Appeal (comprising, amongst others, Godfrey JA) allowed the sister of the appellant, who was absent at the hearing, to represent her brother to address the court on his behalf. Other recent Court of Appeal examples - leaving aside examples of first instance hearings - may be found in Law Siu-yin Ada v. Lo Hung Kwan CACV 1034/2000 (3 May 2001); Herminia Lao Jez v. Siu Wai-keung CACV 333/1998 (16 March 1999); ABN Amro Bank NV v. Mody CACV 434/2002 (22 December 2003).

Position of the Labour Tribunal

47. All this shows that there is indeed an inherent jurisdiction of the High Court to allow a lay person to represent a party to proceedings before the court in appropriate circumstances. And as I have tried to demonstrate above, no distinction is to be drawn between a court and a tribunal, or between a superior court and an inferior court. Nor is there anything in the fact that the Labour Tribunal is created by legislation. As has been pointed out, the courts and tribunals in Hong Kong are now created by the authority of the State, that authority being exercised by legislation. Indeed, the Basic Law requires that the structure, powers and functions of the courts of the Hong Kong Special Administrative Region at all levels must be prescribed by law: Basic Law, art. 83. See generally Halsbury's Laws of Hong Kong Vol. 8 para. [125.004]. For the similar position in England, see Halsbury's Laws of England (4th ed. re-issue) Vol. 10 para. 304.

48. As a matter of common sense, given that proceedings in the Labour Tribunal are to be conducted in an informal manner (section 20(1)), there is all the more reason for the existence of a discretion on the part the Labour Tribunal to allow, in appropriate circumstances, a lay representative to act as an advocate of a party to proceedings before the Tribunal.

Statutory exclusions of inherent jurisdiction

49. Of course, I have already pointed out the general principle that the courts' and tribunals' inherent jurisdiction must always be subject to any contrary or inconsistent provisions in the relevant legislations.

50. The exclusion of counsel and solicitors from appearing before the Tribunal is a good example of the modification by legislation of the Tribunal's inherent jurisdiction to regulate representation before it. It should be noted that what has been said about the inherent jurisdiction of the courts and tribunals to allow, as a matter of discretion, a party to be represented by another as his advocate applies equally to those learned in law and those who are not. In fact, Collier v. Hicks, supra, was a case concerning the magistrates' inherent jurisdiction to allow an attorney to represent an accused in proceedings before the magistrates. In the present context, by virtue of section 23(2) of the Ordinance, the Tribunal's inherent jurisdiction is curtailed to the extent that no barrister or solicitor may be allowed to represent any party to proceedings before the Tribunal unless the counsel or solicitor happens to be an officer or servant of an unincorporated or incorporated company, which is a party to the proceedings: Century City Holdings Limited v. Siu Tat-yin Eddie [1995] 1 HKLR 297.

51. A High Court example of the court's inherent jurisdiction being abrogated by legislation may be found in the case of limited companies (Order 5 rule 6(2) to (6), Rules of the High Court, Cap. 4), which can only appear before the court either by lawyers or by a director with the leave of the Registrar (or a master): Kone Elevator (HK) Ltd v. Senfield Limited CACV 216/2002 (24 February 2003). Furthermore, it is doubtful whether the Registrar (or a master) has the power to grant leave to a director to represent a limited company in an appeal, as opposed to proceedings before the Court of First Instance: Hondon Development Limited v. Powerise Investments Limited CACV 296/2003 (11 December 2003).

52. Returning to the Labour Tribunal and the Ordinance, the position of counsel and solicitors aside, like To DJ in Lok Ming Restaurant, supra (in relation to section 22 of the Minor Employment Claims Adjudication Board Ordinance), I do not view section 23 of the Labour Tribunal Ordinance as being exhaustive or exclusive. In my judgment, it does not purport to give an exhaustive list of who may or may not appear before the Tribunal. Furthermore, section 21, already extracted above, of the Ordinance, would appear to proceed on the basis that the Tribunal may "authorize" a person to represent a defendant at a hearing before the Tribunal ("by himself or by a person authorised by the tribunal to appear on his behalf"). Grant section 21 itself cannot be an enabling provision regarding the Tribunal's authorization of a person to represent a party at the hearing, nonetheless it provides some support for the view that the legislature in enacting section 21 worked on the assumption that the Tribunal would, apart from section 21, have the jurisdiction to so authorize a person to represent a party at the hearing before the Tribunal.

53. Section 46 of the Ordinance, already extracted above, says that in any matter of procedure, which must include the question of rights of audience, for which no provision is made by the Ordinance or by rules made pursuant to section 45 of the Ordinance (no relevant rules have been made), the procedure applicable shall be such as the Presiding Officer may determine. Once one concludes, as I have done, that section 23 is not exhaustive or exclusive, section 46 of the Ordinance would seem to apply to give, in my judgment, the Presiding Officer, in addition to his inherent jurisdiction, an express statutory power to regulate the procedure of proceedings before him, including the question of rights of audience.

54. More importantly, in my view, in the present context of the Tribunal's inherent jurisdiction, the Ordinance does not provide anything contrary to or inconsistent with the existence of the inherent jurisdiction of the Labour Tribunal to regulate its own practice and procedure, including the question of rights of audience before the Tribunal. (I understand that the position of limited companies might be different - it does not concern this appeal and I wish to express no view on it.)

Labour Tribunal has inherent jurisdiction

55. In other words, I conclude that the Labour Tribunal does have jurisdiction to allow, as a matter of discretion, a lay representative to represent and act as an advocate for a sole proprietor at any proceedings before the Tribunal, whether that sole proprietor attends the particular hearing in person or not.

56. How that discretion should be exercised in any given case must depend on the whole of the circumstances that are pertinent to that case, bearing always in mind, firstly, what has been said by the Privy Council in O'Toole v. Scott about the nature of the discretion, and secondly, the general nature of proceedings before the Labour Tribunal.

Present case

57. Having reached that conclusion, I am further of the view that in the present case, while the Presiding Officer was correct in concluding that the Defendant did not have a right as such to appoint an officer or servant of his to represent him at the hearing before the Tribunal, the Presiding Officer erred in not recognizing the existence of, and thus failing to exercise, one way or the other, his discretion in allowing Mr So to represent the Defendant at the hearing.

58. Plainly there is quite insufficient material before this Court to enable this Court to decide how the discretion ought to have been exercised, as the Tribunal did not investigate or investigate sufficiently into the circumstances under which the Defendant wished to appoint Mr So to represent him before the Tribunal. What is however clear is that the failure to recognize the existence of the discretion and to exercise it fundamentally tainted the lawfulness of the proceedings before the Presiding Officer and the award he made in favour of the Claimant.

Order

59. In all the circumstances, the only right order to make is to allow the appeal, set aside the award made by the Tribunal in favour of the Claimant, and order a re-trial before another Presiding Officer. I so order. At the re-trial, if the Defendant should still wish to be represented by a lay representative, he should make his application to the Presiding Officer at the beginning of the hearing, and the matter could be dealt with accordingly.

60. Given my conclusion on the question of representation, I need not deal with the other grounds of appeal raised on behalf of the Defendant in this appeal. I do not propose to do so, particularly when some of the grounds and matters raised are "fact-sensitive", on which it would be most undesirable to make any comment given that there is going to be a re-trial.

61. As regards the costs of this appeal, the appeal stemmed from what in substance an application by the Defendant to invoke the discretion and indulgence of the Tribunal to allow Mr So to act as his representative and advocate at the hearing before the Tribunal. It had nothing to do with the Claimant, who took no part in the Tribunal's reaching its decision against allowing Mr So to represent the Defendant at the hearing below. The Claimant took no active part in resisting the present appeal on the ground of representation. She simply left it to the decision of the Court. In any event, regardless of the presence or absence of opposition from the Claimant, it was still incumbent upon the Defendant to persuade this Court that the Tribunal had made an error of law which necessitated the setting aside of the award, for which costs would have to be incurred in any event.

62. In my view, regardless of the result of the re-trial, the Claimant should not be saddled with the costs of this appeal. In those circumstances, I make no order as to the costs of this appeal.