MULAKH-RAJ v. BALAJI GROUP LTD t/a T/A TULSI INDIAN RESTAURANT

HCLA 8/2021

[2021] HKCFI 2334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 8 OF 2021

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 164 OF 2020)

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BETWEEN

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D E C I S I O N

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1.  This is an application made by the Claimant for leave to appeal against the judgment of the Deputy Presiding Officer of the Labour Tribunal (“Tribunal”) of 28 May 2021 (“Judgment”), with reasons handed down on 18 June 2021. The proceedings before the Tribunal related to the Claimant’s claims against his former employer for the total sum of $238,868.20, which represented arrears of wages, underpayment of wages, overtime pay, wages in lieu of notice, annual leave pay, statutory holiday pay, and the cost of an air ticket upon termination of the Defendant’s employment of the Claimant.

2.  By the Judgment, the Tribunal dismissed the Claimant’s claim for wages, holiday and other payments, and only made an award in favour of the Claimant for part of his statutory holiday pay and for the cost of the air ticket, in the total sum of $6,903.09.

3.  The Claimant seeks leave to appeal against the Judgment, on the ground that the Tribunal Officer had made errors of law, in that she had failed to discharge her statutory duty to investigate, misunderstood the terms and conditions under the Supplementary Labour Scheme, failed to properly evaluate the evidence and had excluded the Claimant’s evidence but had allowed the Defendant’s evidence including videos which had not been included before the trial.  The Claimant claimed that the Tribunal Officer wrongfully severed part of his claim, and also gave to the Defendant a list of the questions which the Claimant had wanted to cross-examine the Defendant on.

4.  Under section 32 of the Labour Tribunal Ordinance, a party dissatisfied with an award of the tribunal may apply to the Court of First Instance for leave to appeal, on the grounds that the award is erroneous in point of law, or outside the jurisdiction of the tribunal.  The Court must be satisfied that the intended grounds of appeal are genuine grounds based on errors of law, for which leave can be given.  As the Court pointed out in Karchoud, Leila Bent Mohamed v The Incorporated Trustees of the Islamic Community Fund of Hong Kong HCLA 61/2001, 30 January 2002, if a ground is dressed up as an error of law whilst in substance it was a challenge to a determination on questions of fact, leave to appeal should not be granted.

5.  At the hearing, the Claimant clarified that his reference to the Tribunal Officer “severing” part of the claim over which she had no jurisdiction and only hearing the parts of the claim over which she had jurisdiction, was only a reference to the Tribunal wrongfully excluding evidence of the Claimant submitted to the Tribunal, and only considering or including the evidence submitted by the Defendant.  The Claimant confirmed that the Tribunal had dealt with all the claims he had made by Form 2 filed in the proceedings before the Tribunal.

6.  The Claimant’s complaint, that the Tribunal Officer had excluded his evidence, and/or had failed properly to evaluate the evidence before the Tribunal, and/or should not have believed the Defendant’s case but should have believed the Claimant, cannot support his intended appeal on a question of law.

7.  In this case, the Tribunal Officer’s findings are that the Claimant had not been able to show that he had returned part of the wages to the Defendant, or had worked overtime, or that he had not taken the holidays for which he claimed holiday payments were payable to him.  The Tribunal Officer also found that the Defendant was entitled to terminate the employment because the Claimant had not returned to work on 25 October 2019 after taking leave, as agreed.  These are all findings of fact.

8.  As the Court explained in the many authorities on appeals against decisions on questions of fact, the Court on appeal can only disturb findings of primary facts if the judge’s conclusion is “plainly wrong”, in the sense that either there is no evidence to support the finding, or it is contrary to documentary or other incontrovertible evidence that the judge overlooked.  It is not enough to show that there is only little or insufficient evidence to support the judge’s finding, or that the finding was contrary to the weight of the evidence.  The Court on appeal will not disturb the judge’s findings of primary fact where they are based on the credibility of the witnesses, because the trial judge had enjoyed the advantages of receiving the evidence at first hand.  The judge is entitled to prefer the evidence of one witness over another, and even to prefer the evidence of the few witnesses to that of the many witnesses (per Woo JA in Progressive Foundation Limited v Ling Kai Fung CACV 323/2002, 28 November 2002).

9.  Having considered the Reasons for the Judgment, there is no basis for the Claimant’s complaint that the Tribunal Officer had either failed to discharge her duty to investigate the claims, or that she had erroneously included or excluded any evidence.  The Defendant’s video of which the Claimant complained, of its having been included and relied upon by the Tribunal, cannot be established.  The Tribunal Officer clearly pointed out in the Reasons for Judgment that the video clips produced by the Defendant, allegedly showing that the Claimant was working illegally, were irrelevant to the issues to be determined.  It is clear from the Reasons for Judgment that the Tribunal Officer relied instead on the evidence of the witnesses who gave evidence before the Tribunal, and assessed the credibility of the witnesses when deciding whether to accept or reject the parties’ respective claims.

10.  As the Claimant acknowledged in the Detailed Grounds of Appeal, whether the Tribunal Officer had misunderstood the terms and conditions for the grant of visas under the Supplementary Labour Scheme (“Scheme”) only affected the credibility of the Defendant’s evidence, in that (according to the Claimant) the Defendant was in breach of the law, and had failed to comply with the Scheme.

11.  As pointed out in paragraph 7 above, the Tribunal Officer’s assessment of the general credibility of the witnesses, and whether she preferred the evidence of the Claimant, or that of the witnesses of the Defendant, is entirely for the Tribunal’s assessment.  On appeal, the Court cannot interfere unless it can be shown that the Tribunal was plainly wrong in its factual findings, and if the Court on appeal is to reverse the decision of the trial judge on facts, the Court must not only entertain doubt whether the decision below is right, but must be convinced that it is wrong (Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 1 HKC 601, and Progressive Foundation Limited v Ling Kai Fung).

12.  As apparent from the Reasons for Judgment, the Tribunal Officer rejected the Claimant’s claim, that there were wages in arrears or wages which had been underpaid, and as to whether he had worked or taken days off, after she had heard the evidence of the witnesses and considered the documentary evidence adduced.  She found that the Claimant and his witness were not credible, and that the Claimant’s case was not proved on the balance of probabilities on the basis of the testimony and the documents available.  It cannot be established that there was any error of law in the decision of the Tribunal Officer, in that the findings were totally unsupported by the evidence, and were plainly wrong.  Nor is it apparent how the Tribunal Officer had allegedly erred, in excluding any relevant evidence of the Claimant.

13.  As for the Tribunal Officer’s duty to investigate, the Courts have also made it clear that such a duty is not absolute, and that the extent of the inquiry to be made by the Tribunal must depend on the individual circumstances of each case.  Due regard should be given to the issues in dispute in the case, the materials placed before the Tribunal by the parties themselves and any incontrovertible evidence before the Tribunal.

14.  The Claimant has not referred to any matter which the Tribunal Officer should have investigated, but had failed to do so, apart from the vague reference to the fact that she had wrongly excluded the Claimant’s evidence.  The Claimant also seeks to rely on the fact that he did not know how to cross-examine the Defendant’s witnesses and had therefore asked the Tribunal Officer to ask the Defendant’s witnesses a list of the questions which the Claimant had prepared.  The Claimant complains that the Presiding Officer had simply given the list of questions to the Defendant, for the Defendant to consider and then to answer them, when she should have discharged her statutory duty to investigate and to ask questions which were directly relevant to the Claimant’s case.

15.  Despite the statutory duty of the Tribunal to investigate, the Court has explained that a litigant bears the primary responsibility in the preparation and procurement of evidence in support of his case (Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Ltd trading as Sheraton Hong Kong Hotel & Towers HCLA 34/2004, 4 June 2004, citing Tong Pun Chung v Top Express Engineering Ltd HCLA 71/2002, 21 October 2002 and others).  Having regard to the issues in dispute in this case, and the manner in which the Tribunal had considered and dealt with the documentary and oral evidence at the hearing, there is no basis for the claim that the Tribunal Officer had failed to discharge her statutory duty to investigate, and the Claimant has failed to demonstrate how the Tribunal Officer had erred in law in making the findings and conclusions which she did on the face of the evidence adduced by the parties. 

16.  In the premises, I cannot see that the Claimant has any ground for appeal on any question of law or on jurisdiction.  There is no reasonable prospect of success on the intended appeal.  The application for leave is accordingly dismissed.