POON LAI KING v. CHONG HOU YUE FORMERLY TRADING AS EVER RICH KNITTING FACTORY

IN THE SUPREME COURT OF HONG KONG

 (Appellate Jurisdiction)

 LABOUR TRIBUNAL APPEAL NO. 21 OF 1989

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J U D G M E N T

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1. The respondent/claimant sued the appellant/defendant and another against whom the claim was later dismissed for: (a) $1,008.00 being 7 days' wages in lieu of notice; (b) $288.00 for holiday pay; (c) $1,000.00 for annual leave pay and (d) $4,900.00 for maternity leave.

2. At the first appearance before the Presiding Officer on the 22nd March, 1989 the appellant and the 2nd defendant denied the claim; the appellant denied that he dismissed the claimant. The Presiding Officer said: -

"I'll give you a chance to defend this case by furnishing supplementary defence to the claim and also witness statement (if any) by attending the pre-trial enquiries. In view of defence raised I would order certain security to be paid in by both defendants jointly or severally."

3. The order he made was: -

"1. Both D1 and D2 to send duly authorised representative to stand (sic) Tribunal Officer for per-trial enquiries with full and better particulars of defence within 14 days from date hereof on a date mutually convenient and also witnesses to give statements (if any) and also documents re: Business Registration Office and Certificate of Incorporation and Directors Return;

2. Both defendants either jointly or severally to lodge in Court a sum of $3,000.00 as security within 14 days from date hereof and the said sum to remain in Court till further order or disposal of action;

3. In default of compliance with either order at (1) or (2) above both defendants debarred from defending the claim at the resumed hearing and same to proceed ex-parte;

4. Liberty to apply in case of default or settlement;

5. Costs of today reserved."

4. At the resumed hearing on the 26th April, 1989 the appellant appeared in person and was allowed to represent the other defendant. He was asked to show cause why no security had been lodged by either defendant. To that question, the appellant said: -

"The Company (D2) got all documents impounded by the Inland Revenue. No, no, my account and that of Company frozen by the Inland Revenue. Presently I've no money. My personal account closed by Government. I object to the lodgment of security."

5. Thereupon, the Presiding Officer said: -

"D1 and D2 failed to show valid cause as to why no security paid in. Both defendants debarred from defending the claim and the case to proceed ex-parte. D1 to sit at back of Court as excused from proceedings."

6. After hearing the claimant, the Presiding Officer entered judgment against the appellant in the various amounts of the claim, and dismissed the claim against the second defendant.

7. It is submitted for the appellant that although the Labour Tribunal has the power under s.30 of the Labour Tribunal Ordinance, Cap. 25 of imposing conditions of payment in or giving security if the tribunal finds it necessary, there is no power to penalise a defendant by debarring him from defending the claim.

8. The Labour Tribunal is a creature of statute and its jurisdiction and powers are set out in the Ordinance. Section 30 reads: -

"The tribunal may, if it is of the opinion that an adjournemnt of the hearing of a claim may result in prejudice to a party because of the disposal or loss of control of assets by a defendant, grant at adjournment only on payment into the tribunal of such sum of money, or the giving of such other security for the payment of the amount of any award, as the tribunal may think sufficient."

9. The provision is sufficiently clear in its terms as to when and how the tribunal may exercise the power of imposing conditions when granting an adjournment.

10. Neither side had asked for an adjournment in the first place. The Presiding Officer does not state in terms what it was that persuaded him to impose the condition that he did. The appellant's denial of dismissing the claimant was a defence to the claim and I doubt if by itself it can provide sufficient cause to order payment in.

11. However, it was submitted that the general provision in s.46 does not confer upon the tribunal the power to shut out a defendant from the proceedings. That section reads: -

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

12. The rules made under s.45 do not provide for the procedure for enforcing any order that might be made under section 30. Reliance is sought from the Queen v. Chu Kwan-hong and others, [1977] H.K.L.R. 371 for the meaning of the phrase "practice and procedure". That was a criminal matter concerning the power of the Court to award costs against the Crown, where the meaning of this phrase rose for consideration in the context of s.9 (3) of the Criminal Procedure Ordinance. Mr Commissioner O'Connor (as he then was) said at pp. 373, 374: -

" In my view the phrase 'practice and procedure' relates to the means by which a legal right or duty is enforced, or a legal rule applied as distinguished from the law which establishes or defines that right, duty or rule. I agree with the words of Kingsmill Moore J. in State (O'Flaherty) v. O'Flynn [1956] 90 I.L.T.R. 179, at p.184: 'What is meant by the words 'practice and procedure'? Broadly I would answer the manner in which, or the machinery whereby effect is given to a substantive power which is either conferred on a court by statute or inherent in its jurisdiction.' "

13. While the tribunal may not have inherent jurisdiction, the substantive power that it has for the purposes of the matter now in hand lies in section 30, which clearly, it was invoking. There being no provision in the rules as to non-compliance of the orders made thereunder the tribunal must clearly fall back upon the general provision, section 46. It is futile in my opinion to assert that s.46 does not apply for it cannot be argued that in the general scheme of the Ordinance the legislature, having conferred jurisdiction in one particular aspect, would not provide sufficiently for the enforcement of the order made in the exercise of that power.

14. The issue, as I see it, boils down to the propriety of the order in default of compliance of the payment in order. That was not in usual terms to which one is accustomed. What is more, at the resumed hearing the appellant gave an explanation which, for some inexplicable reasons, the Presiding Officer rejected and proceeded forthwith in the presence of the appellant to deal with the claim by way of an ex-parte hearing , thus effectively shutting out the appellant from defending the claim against him.

15. I have indicated already my doubts about whether the discretionary power under section 30 for ordering payment in was properly invoked. Coupled with that is the presiding officer's extreme action after rejecting summarily the appellant's protest at the order and his explanation for non-compliance, in barring him from defending the claim.

16. I am of the opinion that the manner and the circumstances in which the Presiding Officer chose to proceed to an ex-parte hearing was manifestly unfair and tantamount to a breach of the rules of natural justice.

17. This appeal is allowed, and the award set aside. I order that the matter be remitted to the Labour Tribunal for hearing de novo before a different presiding officer.