TANG KWOK WAH DIXON v. LI WING SHING AND OTHERS

HCLA 8 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. HCLA 8 OF 1999

(On appeal from Labour Tribunal Claim No. LBTC 8805 of 1998)

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J U D G M E N T

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The brief background to this case is that the Appellant was one of three partners of a solicitors firm. At one point in time, he left the partnership. All the relevant notices were given to sever his relationship with the firm. The 16 Claimants who were support staff employed by the firm then went to the Labour Tribunal to claim against all three partners various statutory employee benefits on the ground that their employment had been terminated due to the dissolution of the partnership upon the departure of the Appellant.

2. In due course, the claim was heard by the Labour Tribunal in open court. Only one of the partners appeared for himself and another partner. The Appellant, who had notice of the hearing, did not appear. The learned Presiding Officer entered judgment against all three partners.

3. The amended grounds of appeal relied upon by the Appellant are: -

1. There was no evidence on which the Tribunal could have found that the partnership of the firm was generally dissolved as opposed to being technically dissolved which was brought about by the retirement of one of its partners and in the absence of a general dissolution it was wrong in law for the Tribunal to have held that the employment of the Claimants was terminated.

2. Further or in the alternative, the Tribunal erred in law in failing to consider whether there was or was not a general dissolution of the firm.

4. Mr. Denis Chang, S.C. for the Respondents (the Claimants) hit the nail on the head by pointing out that the real issue before the Tribunal was whether the Claimants had their contract of employment terminated. The nature of the dissolution of the firm partnership is a factor or the crucial factor for consideration as to whether the contract of employment of the Claimants had been terminated at the relevant date. But this factor becomes utterly irrelevant if there is direct evidence of termination.

5. The Notes of Proceedings show that the partner who attended the trial and the Claimants signed a document called the Agreed Facts. The Agreed Facts bears contents tantamount to a settlement agreement. By this document, liability and quantum were admitted. One would have thought that the settlement agreement signed by a member of the partnership binds all three partners especially if it is the Appellant's case that the partnership had not been generally dissolved. But the matter did not rest like that. The partner who signed the Agreed Facts then went into the witness box. As a witness, he produced the Agreed Facts as exhibit P2. Thus P2 serves dual purposes - (1) as a settlement agreement between the Claimants and the signatory partner who, at least arguably, may also bind the Appellant and (2) as a statement of facts verified on oath by the statement maker. This being so, contrary to the Amended Grounds of Appeal, there was evidence before the Tribunal.

6. It must be noted that the partner witness, when producing exhibit P2, stated that the contents therein are true and correct. See page 4 of the Notes of Proceedings. Now, P2 contains, inter alia, a table showing the respective commencement date and termination date of employment of each of the Claimants. Furthermore, P2 concludes with these two paragraphs: -

"5. All the Claimants were dismissed on 14-06-1998 with no advanced written notice of termination given by D1, D2 or D3.

6. At the time of dismissal, D1, D2 and D3 had not paid untaken annual leave and end of year payments."

Hence, there was not just evidence of any nature, but evidence directly relevant to the issue of whether the contract of employment of the Claimants had been terminated. There was termination by dismissal. A witness clearly stated under oath that the Claimants had been dismissed without advance notice. This witness was one of the employers.

7. Mr. Anthony Chan for the Appellant very gallantly contended that such evidence is not binding on the Appellant for he did not sign P2 and he was not present at the trial. This is the first time I have to consider whether evidence is binding on a particular party. With respect, I think evidence believed by the court is binding on a party even if that party did not agree with the contents of the evidence. Here, there was short and succinct testimony from a witness who must be deemed to have personal and immediate knowledge of the facts. The learned Presiding Officer believed him.

8. Mr. Chan contended that the Tribunal should not have taken the evidence of the witness on its face value because there are statements by the partners and other materials in a bundle that the learned Presiding Officer should have studied but did not. On the other hand, counsel throughout the appeal hearing enthusiastically demonstrated to the court that the bundle should not be treated as evidence. I am afraid the learned Presiding Officer would be criticized with equal rigour if he took into consideration materials which the Appellant argues are not proper evidence.

9. The trial was described in the Notes of Proceedings as ex parte. I have no doubt this is a misnomer. The trial was not ex parte in the conventional legal sense. The trial was conducted in the absence of the Appellant who chose to stay away. The Appellant cannot complain he was not given the opportunity to make representations. Of all people, he being a solicitor of considerable standing ought to have known that he could and should have informed the Tribunal that for whatever reason he could not attend the trial and requested either adjournment or representation by another person. He did not inform the Tribunal and he did nothing. He must be deemed to have entered no contest.

10. Moreover, after judgment was given by the Tribunal, the Appellant still had the opportunity to apply for review to present his evidence and arguments. If necessary, he could have sought leave to apply for review out of time. He did no such thing. Mr. Chan suggested that it was his right to appeal without first seeking a review. I agree. On the other hand, if the appeal is based on complaint that the Tribunal should have considered matters which the Appellant did not bring to the attention of the Tribunal, I am afraid the Appellant will not get a sympathetic hearing by the appellate court. Otherwise, one may get the absurd situation in which a claimant, with his arms folded, sitting in the Tribunal crying "I claim $1 million, you the Tribunal look into everything" and a defendant, not lifting a finger and not bothering to even go before Tribunal, comes to the appellate court crying "I deny liability, you do justice for me."

11. Both grounds of appeals have not been made good, the appeal must be dismissed with costs. I so order.