RUTH PREVENSLIK v. AMERICAN INTERNATIONAL SCHOOL [AIS] LTD.

HCLA 95/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 95 OF 1999

(ON APPEAL FROM LBTC 2579/1999)

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REASONS FOR DECISION

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This is an application for leave to appeal against an interlocutory order of the Labour Tribunal made on 3 November 1999 refusing to issue three witness summonses applied for by the Applicant. At the request of the Applicant, the application was heard in open court.

2. Briefly, the Applicant was a teacher in the employ of the Defendant. She was dismissed. The Applicant alleges that she was dismissed for union activities. She filed complaint with the authorities but, apparently, at some stage the Prosecution Division of the Labour Department decided that no prosecution will be initiated against the Defendant. On account of this, the Applicant wanted to issue witness summonses against the Secretary for Justice, an official of the Labour Relations Service of the Labour Department and an official of the Labour Department Prosecution Division. The Labour Tribunal refused to issue the summonses. According to the learned Presiding Officer, the question of whether the Defendant should be prosecuted is irrelevant and in any event the Tribunal has no jurisdiction to inquire into the matter.

3. Subsequently, the Applicant further asked the Labour Tribunal to:-

"(1) cancel the 8 November trial which was then defunct and order the Defendant to pay her damages based on the evidence presented in the Labour Tribunal before the 5 August decision made by the Labour Department Prosecutions Division;

(2) order an ICAC investigation of the obvious collusion among the Defendant, the Labour Department and the Department of Justice to fix the outcome of her case in the Labour Tribunal by ruling in favour of the Defendant before the 17 August trial; and

(3) order the office of the Ombudsman to investigate the subversion of the Tribunal Court jurisdiction by the Labour Department and the Department of Justice that was necessary to prejudice her case."

The Tribunal did vacate the trial date pending determination of the Applicant's appeal against the interlocutory order of the Tribunal but refused to make the orders sought.

4. In my view, clearly the learned Presiding Officer must be right. Not only does the Labour Tribunal have no jurisdiction to inquire into the matter of whether prosecution should be taken, a judge sitting as appellate judge hearing an appeal against the decision of the Tribunal has no jurisdiction or power to inquire into the matter of prosecution decision. I am not even sure if the matter is justiciable. Suppose it is justiciable, it must be decided by a court exercising jurisdiction for judicial review. The only proper course for the Applicant, if she wants to pursue the matter, is to apply for judicial review of the prosecution decision (not the Tribunal decision) urgently. But I would strongly advise the Applicant to obtain independent expert legal advice on the subject before charging on with an application for judicial review.

5. The other orders relating to the ICAC and the Ombudsman being sought are clearly inappropriate. Conventional common law courts do not have power to make such orders. There is nothing to stop the Applicant from approaching the ICAC and the Ombudsman. If both the ICAC and the Ombudsman refuse to act, that is a different matter but not for me at this stage to intervene.

6. In the premises, there is no ground for appeal and leave to do so is refused. I suggest the Labour Tribunal re-list trial for a date allowing the Applicant at least a month to take steps towards an application for judicial review unless the Applicant clearly indicates that she does not wish to seek judicial review.