SUN MIN v. HONG KONG MING WAH SHIPPING CO LTD

CACV 37/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 37 OF 2004

(ON APPEAL FROM HCLA NO. 9 OF 2003)

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REASONS  FOR  DECISION

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Hon Tang JA (giving the reasons for decision of the Court):

1.  The claimant, a Mainlander, who was in Hong Kong under a work visa, was employed under a continuous contract of employment by the defendant.  The contract of employment contained a term whereby the defendant was entitled to transfer the claimant back to the Mainland for employment with an associated company.

2.  By notices dated 17 and 18 December 2001 respectively, the defendant notified the claimant with effect from 18 January 2002 that she would be transfered to a related company in Shekou.  The claimant was pregnant at the time, although the defendant was not aware of it.  The claimant gave the defendant a written refusal on 27 December 2001.  The defendant insisted on her transfer.

3.  On her claim against the defendant in the Labour Tribunal (“the Tribunal”),  the issue was whether in such circumstances, the purported transfer amounted to a termination of her employment which was prohibited by section 15 of the Employment Ordinance, Cap. 57 (“the Ordinance”).  Section 15 of the Ordinance prohibited the termination of such employment except summary dismissal for cause under section 9.

4.  The Tribunal came to the conclusion that the transfer was not a termination of employment.

5.  On appeal, the judge took a different view. 

6.  We dismissed the appeal on 1 February 2005 and gave our reasons on 2 March 2005.

7.  Leave to appeal to this court earlier had been given by Yuen JA on the basis that a point of law of general public importance was involved.  The question being:

“Whether the Defendant’s purported transfer of the Claimant would amount to a termination of employment provided in section 15 of the Employment Ordinance (Cap 57) involves a question of law of general public importance in that it is a common personnel management policy and practice of international and cross-border/group/of companies to transfer their members of staff within companies of the same group in Hong Kong or to transfer their members of staff from Hong Kong to another company outside Hong Kong but within the same group.  The determination of the matter is of general public importance as it would affect the business efficacy as well as the proper protection of the employee’s rights and the employer’s entitlement in Hong Kong.

8.  However, at the hearing of the appeal, it transpired that the point depended on the admission of additional evidence.  We refused leave to adduce additional evidence and the point was not argued before us.

9.  The defendant then applied for leave to appeal to the Court of Final Appeal raising by a proposed Amended Notice of Motion, the following questions which were said to be of great general public importance:

“1.	Where the Labour Tribunal (“the Tribunal”) had found (as a matter of mixed law and fact) that a claimant’s employment had not terminated:
	(1)	whether a finding on appeal by the Court of First Instance that the said claimant’s employment had terminated (albeit stated to be based on counsel’s concession) involved a reversal or variation of a determination made by the Tribunal on questions of fact within the meaning of section 35(2)(i) of the Labour Tribunal Ordinance, Cap. 25 (“the Ordinance”); and
	(2)	whether the Court of First Instance had jurisdiction to come to the said finding.
2.	Where the Tribunal had determined following a full trial that there was no termination of a contract of employment on the sole basis that the employer was exercising a contractual right to transfer a claimant, whether the Court of First Instance on appeal, while disagreeing with such determination, ought nevertheless to have remitted the case back to the Tribunal instead of allowing the appeal when:
	(1)	it was apparent that the Tribunal had not directed its mind as to all the relevant factors or issues of fact in connection with the transfer of the said claimant and had therefore not investigated all such factors or issues, or made all relevant findings of primary fact from which an inference of termination or otherwise could properly be drawn;
	(2)	the parties were unrepresented at the hearing before the Tribunal;
	(3)	such hearing was inquisitorial in nature; and
	(4)	the Court of First Instance was expressly prohibited by section 35(2)(ii) from receiving further evidence on appeal.
3.	Whether, in the circumstances set out in the paragraphs 2(1) to(4) above, the employer’s right to a fair trial, guaranteed both at common law and under Article 10 of the Hong Kong Bill of Rights and Article 39 of the Basic Law, would be infringed if the Court of First Instance failed or refused to remit the case back to the Tribunal to deal with an issue of mixed fact and law on appeal.  Further, whether the Defendant’s right, to legal representation guaranteed by Article 35 of the Basic Law was infringed in all the circumstances of this case.
4.	Whether the Court of Appeal’s power to receive further evidence on appeal is overridden by reason of section 35(2) of the Ordinance or is restricted to evidence showing that, had proper investigation been done, the result of the further investigation would have made a difference to the outcome.
5.	Whether, in a case where a party had raised issue of fact (in this case, the question of whether the Applicant was the Respondent’s employer) before the Tribunal which, in the absence of legal representation, that party had failed to pursue or the Tribunal had expressed no interest, the remittance of the case back to the Tribunal for further investigation of such issue depends on whether its presiding officer had failed to perform his duty when he did not investigate issue in question.
6.	Whether an employer is precluded from claiming that there was no contract of employment with a claimant if it had previously treated her as an employee for tax and accounting purposes.
7.	Whether, in the event that there was no termination of a contract of employment upon the giving of a notice to transfer a claimant to work for the employer’s subsidiary, the giving of or failure to withdraw such notice would necessarily constitute constructive dismissal of the said claimant such as would trigger the employer’s liability under section 15(1) of the Employment Ordinance, Cap. 57.
8.	Whether section 15(1) of the Employment Ordinance requires the employer to maintain the employment of an employee who has given a pregnancy notice until the expiry of the maternity leave if the employee will, or is likely to, become “not lawfully employable” in the meantime.”

10.  We refused leave and dismissed the summons dated 29 April 2005 and the amended summons dated 13 September 2005 seeking leave to file and served an Amended Notice of Motion on 16 September 2005 with costs.  We now give our reasons. 

Question 1

11.  This does not involve a question of great general public importance.  The most which could be said of the point, is that the judge and this court were wrong in mistaking a finding of fact as a question of law.  Neither the judge nor this court had purported to extend the jurisdiction of the judge under section 35(2)(i) of the Labour Tribunal Ordinance, Cap. 25.  Nor did the point depend solely on counsel’s concession.

Question 2

12.  Whether the case ought to be remitted to the Labour Tribunal must depend on the circumstances of the case.  It is an exercise of judgment akin to an exercise of discretion.  This cannot possibly involve a question of great general public importance.

Question 3

13.  It is difficult to understand how this point can possibly arise.  Rightly, Mr Mok did not press this point.

Question 4

14.  Again this cannot arise.  Section 35(2) of Cap. 25 makes it quite clear that on an appeal from the Tribunal, the Court of First Instance might draw any inference of fact but that it may not reverse or vary any determination made by the Tribunal on a question of fact or to receive further evidence.  An appeal to the Court of Appeal required leave which should only be granted if this court considers that a question of law of general public importance is involved.  There was an application to this court for leave to adduce additional evidence which we refused.  The application did not satisfy the Ladd v Marshall requirements.  In any event, we refused leave in the exercise of our discretion, even if, which we did not accept, we had the power to admit further evidence.

Question 5

15.  Again, whether the case should be remitted would depend on the circumstances.  The judge found it was unnecessary to do so.  We agreed with the judge.  This cannot be a question of great general public importance.

Question 6

16.  This cannot possibly be a point of great general public importance.

17.  In the circumstance of this case, it is clear that it was open to the judge to find there was a contract of employment with the claimant.  Indeed, that was also the decision of the Tribunal.

Question 7

18.  This again cannot possibly be a question of great general public importance.

Question 8

19.  This question does not arise because there was no evidence that the claimant was, or was likely to, become “not lawfully employable” in the meantime. 

Additional question

20.  In the defendant’s skeleton submission, Mr Mok raised a further question namely whether section 23(2) of the Labour Tribunal Ordinance, which prohibited a barrister or solicitor to appear before the Tribunal for a party, infringed Article 35 of the Basic Law.  This point was not raised before the judge nor before us.  We do not believe that this is a point which ought to be permitted to be raised for the first time in the Court of Final Appeal.

21.  In any event, as Reyes J said in New World Development Company Limited v The Stock of Exchange of Hong Kong Limited [2005] 2 HKC 506, at paragraph 160:

“For the purposes of this case, it is unnecessary definitively to decide whether the Small Claims and Labour Tribunals are within the terms of Article 35.  Even if it is assumed that they are, if by no means follows that their procedures violate Article 35”

22.  Here, there is no evidence that the defendant wanted legal representation.  As Reyes J has pointed out and section 10 of the Labour Tribunal Ordinance, Cap. 25 made clear, the Tribunal may of its own motion or on application by one or more parties before it transfer cases to the District Court or the High Court.  So, had the defendant wanted legal representation it could have applied for a transfer.

Discretion

23.  In any event, as a matter of discretion, we would have refused leave.  Judgment has been entered against the defendant for the sum of $53,187.50.  Employment disputes involving small sums should be disposed of speedily and inexpensively.  There have already been 2 appeals.  The costs involved in a further appeal to the Court of Final Appeal would be totally disproportionate to the amount at stake.  There is great disparity in the resources of the parties.  The defendant is part of a state owned group.  The claimant’s monthly wage was $18,500.  It will be unfair to expose the claimant to the additional costs of an appeal, since, even if she should obtain an order for costs in her favour in the Court of Final Appeal, on taxation, she is unlikely to recover all her costs.