ALLIDEM MAE G v. KWONG SI LIN

HCLA 4/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 4 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 1513 /2002)

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DECISION

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1. This is an application for leave to appeal against an award of the Presiding Officer in Labour Tribunal Claim No. 1513 of 2002. The Presiding Officer determined the claim in favour of the Claimant on 12 January 2004 and awarded her $24,518.30 on account of long service payment. The Defendant sought leave to appeal against that award.

2. This is in fact the second time the case came to the Court of First Instance. The first award had been set aside by Deputy Judge A Cheung (as he then was) in HCLA 35 of 2002 on 9 June 2003. The background of the case had been adequately set out in that judgment. The case was remitted to the Tribunal for retrial and I am now dealing with the award in the retrial.

3. There have been two hearings before me in respect of this application. The first hearing took place on 5 March 2004. The Defendant requested the court to allow her husband Mr Lam Poon Shing to address the court on her behalf. Having considered the circumstances of this case, I acceded to her request. Based on the submissions of Mr Lam, this court granted leave to the Defendant to obtain transcripts of the trial to support her application. The matter was therefore adjourned. I also directed the Defendant to file concise grounds of appeal to facilitate an efficient and focused consideration of the application.

4. On 19 April 2004, the Defendant filed a document called Consolidated Grounds setting out what she claimed to be "40 errors in points of law" in three pages. At the resumed hearing on 28 May 2004, the Defendant again sought leave to allow Mr Lam to address the court on her behalf. Leave was granted. Mr Lam confirmed that the application would be based on the Consolidated Grounds.

5. As regards the legal requirement for proper grounds of appeal in an application of this nature, I have explained the same in my Reasons for Decision in Kiawchansaeng, Renu v Ho Kim Kay Canny, HCLA 78 of 2001 Paras. 3 to 7 and I shall not repeat what I said therein.

6. Despite my attempts to explain to the Defendant and Mr Lam the nature of this application and the distinction between a point of law and a point of fact, there was a tendency on the part of Mr Lam to tread beyond the proper scope of application for leave to appeal both in his written submissions and oral arguments. As evidenced by the 40 points in the Consolidated Grounds and the documents previously submitted by the Defendant in support of the application, Mr Lam appeared to have some difficulties in distinguishing between grounds of appeal and submissions in support of the grounds.

7. Since he is a layman, this court could not expect Mr Lam to be as precise and concise as a lawyer in drafting grounds of appeal. However, the Defendant and Mr Lam should not expect this court to deal with each and every point individually and separately in this Decision. When the points are in substance submissions in support of a broad ground, it is not the duty of this court to answer the same on a point-by- point basis. It is sufficient to deal with the broad ground in a decision on an application for leave to appeal (see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409; Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538).

8. Having examined the Consolidated Grounds in the light of the submissions of Mr Lam and reviewed the relevant material in the file and the judgment of the Presiding Officer, I am of the view that the 40 points could broadly be categorized into several heads. I shall consider the same below.

9. The first broad ground is that the Presiding Officer erred in law in following and applying Chan Chong Chi v Maxim's Carterer HCLA 25 of 1992. This encompasses points (b), (c), (d), (e), (f), (h), (j), (k), (l), first part of (n) in the Consolidated Grounds. Further, points (z), (aa), (bb), (ee), (ff), (ii), (mm), (nn) were the Defendant and Mr Lam's adverse comments about the decision to apply the approach of Chan Chong Chi instead of putting forward any independent points of law.

10. Properly formulated, the ground can be regarded as a point of law, viz. whether the approach of Chan Chong Chi is correct in law and what are the limits of that approach and its applicability to the facts of the present case. Mr Lam referred to a number of authorities including cases from Australia and England on the topic. I think the point is arguable and I will grant leave for this ground to be tested in an appeal proper.

11. The second broad ground is a challenge against the finding by the Presiding Officer that one month's salary was paid by the Defendant as a payment in lieu of notice (see Paragraphs 12 and 13 of the Reasons for Decision of the Presiding Officer). The main criticism of Mr Lam was that the Presiding Officer misunderstood the evidence or made a finding unsupported by any evidence when he said that Mr Lam insisted on the Claimant signing a receipt for this sum of money. Mr Lam said the evidence only showed that he insisted on the Claimant signing an acknowledgment for the termination letter (exhibit D-3) instead of a receipt for the sum. This broad ground encompasses points (i) and (t).

12. Generally, this court will not disturb any findings of fact by the Tribunal. However, as pointed out in Paragraph 5 of Kiawchansaeng, Renu v Ho Kim Kay Canny, under certain circumstances, a finding of fact can be challenged on the basis of errors of law in the process of fact finding.

13. I have examined D-3 and the evidence referred to by Mr Lam. D-3 ended with this sentence,

"This note and Hongkong Bank cheque No. 168183 for HKD 3,900 received by Mae G Allidem / 18 Dec 01".

The Claimant was required by Mr Lam to sign this.

14. On the material before the Tribunal, I think the Presiding Officer was entitled to take the view that the request for the Claimant to sign D-3 tantamount to the demand for a receipt for the payment. Whether such a factual finding was made is solely within the province of the Presiding Officer as it depends on the weighing of the evidence. I do not think in concluding as he did, the Presiding Officer made any one of the errors set out in Paragraph 5 of Kiawchansaeng, Renu v Ho Kim Kay Canny. There is no error of law. I therefore refuse leave for this ground to be canvassed.

15. The third broad ground is criticism leveled by Mr Lam against the Presiding Officer in respect of his holding that there were insufficient grounds to justify summary dismissal although he accepted the evidence of the Defendants as to the misconducts of the Claimant. This encompasses second part of (n), points (o), (p), (r), (s), (u), (v), (w), (x), (cc), (dd) and (jj).

16. The Presiding Officer was very brief in giving reasons for this particular holding and I cannot rule out these complaints as unarguable at this stage. I will grant leave to the Defendant to contend that the Presiding Officer erred in law in holding that there were insufficient grounds to justify summary dismissal on the facts of this case.

17. I have covered most of the points in the Consolidated Grounds. As regards the other points, I have considered them but I am of the view that some of them do not constitute points of law whilst the rest are plainly unarguable. By way of example and without being exhaustive, I do not think the Presiding Officer disregarded the guidance of Cheung J. Nor do I think that the Presiding Officer should be regarded as biased just because he applied the same principle of law derived from Chan Chong Chi as the other Presiding Officer did in the first trial. There is no question of double jeopardy. I cannot discern any arguable grounds from those other points.

18. To conclude, I grant leave to appeal on the basis of the grounds set out in Paragraphs 9 and 15 above. I refuse leave in respect of the other grounds and they would not be entertained in the appeal proper. Costs of the application for leave shall be costs in the cause of the appeal.

19. I further direct the Defendant to file and serve a Notice of Motion in accordance with Order 55 Rule 4 of the Rules of the High Court setting out those two grounds of appeal within 14 days from the handing down of this Decision. If there should be difficulties in respect of the service of the Notice of Motion (there had been suggestion that the Claimant had left Hong Kong in mid March this year), the Defendant should come back to court to apply for directions and if necessary, for leave to serve the Notice of Motion outside jurisdiction. The appeal shall not be set down for hearing until leave is granted by this court after the Defendant has filed an affirmation of service proving due service of the Notice of Motion. If this court shall deem fit, such leave could be granted on paper without any interlocutory hearing.

20. Lastly, at the request of Mr Lam, I will hand down this Decision in open court although I do not find it necessary nor appropriate to attach to this Decision the Reasons for Decision of the Presiding Officer and his Consolidated Grounds.