Chok Kin Ming v. Equal Opportunities Commission

HCLA 27/2017

[2019] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 27 OF 2017

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 543 OF 2015)

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Before: Deputy High Court Judge Leung in Court

Date of Hearing: 21 November 2018

Date of Decision: 22 March 2019

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DECISION

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1.In 2014, the Equal Opportunity Commission (“the EOC”) decided not to grant the contract-end gratuity to Mr Chok Kin Ming (“Chok”) upon the end of his employment term as the Chief Equal Opportunities Officer. Chok successfully claimed against the EOC for the gratuity in the Labour Tribunal (“the Tribunal”) (LBTC 543/2015), but failed on appeal by the EOC (HCLA 42/2015). His claim was remitted to the Tribunal. After trial, another Presiding Officer dismissed Chok’s claim for the gratuity. With leave of the court, Chok now appeals.

2.It will be conducive to understanding the history and putting the parties’ arguments in this appeal in context by borrowing the account ofthe background set out in the judgment of Hon Godfrey Lam J handed down in HCLA 42/2015 on 17 March 2017 [1], which brought about the second trial of Chok’s claim.

The conditions of employment

3.Chok began his employment with the EOC in 1996.  The last renewal of his contract was for three years from 1 November 2011 to 31 October 2014.  The contract incorporated the terms contained in a document called “Memorandum on Conditions of Service in the Equal Opportunity Commission Office” (the “Conditions of Service”).

4.In the letter of offer to Chok of July 2011, it was stated, among other things:

“ Subject to the terms as set out in the attached [Conditions of Service], you will receive a gratuity for the period of service uponsatisfactory completion of the agreement in the opinion of the EOC. ‌… The gratuity payable for the agreement will be the sum which, when added to the EOC’s contribution to the said MPF Scheme, equals 25% of the total basic salary of substantive office drawn during the period. …” [underline added]

5.Clause 13 of the Conditions of Service reads:

“ 13. GRATUITY

13.1 On satisfactory completion of the agreement in the opinion of the employer, or if the agreement is terminated under Clause 11.3 of this Memorandum for reasons other than misconduct, the employee will receive a gratuity in respect of the actual period of service, including periods of vacation leave earned and taken. Such gratuity will be payable at a rate as specified in the letter of appointment.

13.2 The rate of gratuity referred to in paragraph 13.1 above may be reviewed and adjusted to take into account the contributions made by the employer in respect of the employee to a scheme registered under the Mandatory Provident Fund Schemes Ordinance.

13.3 Gratuity will not be payable to an employee who resigns and leave the office within the agreement period.

13.4 The employer may withhold the grant of gratuity while the employee is being subject to any disciplinary or criminal proceedings or investigation into any acts which may affect the grant of gratuity.

13.5 In circumstance where a gratuity is paid to the employee in the mistaken belief that he/she has:

(a) satisfactorily completed his/her agreement; or

(b) not been convicted of any of the following offences during and in respect of his/her employment—

(i) any offence under the Prevention of Bribery Ordinance (Cap 201), being an offence related to his/her previous service with the Commission; or

(ii) any other offence that if determined on its own fact, would have led to the employee’s dismissal from the service

the employer shall be entitled, without affecting its other rights, to recover from the employee the whole or part of the gratuity commensurate with all the circumstances of the case including the unsatisfactory nature of the employee’s service and the seriousness of the offence on his/her part. Such right of the employer shall survive any termination of the agreement between the employer and the employee.

13.6 In the event of the employee’s death during the agreementperiod, the amount of gratuity earned on the basis of Clause 13.1 above will be paid to his/her nominated beneficiar(ies) and in the absence of which to his/her estate.” [underline added]

6.The Human Resources Manual contained an employees’ code of conduct (“Code of Conduct”), which applied to Chok in relation to his employment.  Section D1.4 of the Code of Conduct concerning conflicts of interests provided that:

“ D1.4.1 All employees have an obligation to avoid financial, business or other relationships which might conflict with legitimate business interests of the EOC on the proper performance of its functions and powers. Employees must also avoid even a perceived conflict between their personal interests and those of the EOC.

D1.4.2 A conflict of interest situation arises when the personal interest of an employee competes or conflicts with the interest(s) of the EOC. Such a conflict will exist where an employee compromises his/her ability to act with total objectivity with regard to the Commission’s business interest or the proper performance of its functions and powers. Conflicts of interest may lead to divided loyalty and, in their most serious form, could result in corruption or fraud.

D1.4.3 Examples of conflicts of interest include, but are not limited to, the following:

…

• where an employee is involved in any activity outside the EOC which is in direct opposition to the work of the EOC (eg: anti‑gay/vilification of AIDS sufferers activist);

…

D1.4.4 It is the responsibility of every employee to report to his/her supervisor in situations where conflicts of interest may arise or have arisen, and make full disclosure of the interest of the employee (Form D1–D1.4.4refers). Failure to do so may give rise to criticism of favouritism, abuse of authority or even allegations of corruption.

D1.4.5 The supervisor should decide, in consultation with the relevant division/unit head or the Chairperson as applicable, whether the employee may deal with, or continue to deal with, the case on situation where the conflict of interest has arisen.”

Decision to end the employment

7.In a meeting on 22 July 2014, the Chairperson of the EOC, Dr York Chow (“Chow”), informed Chok of its decision not to extend the latter’s term of employment when it came to an end in October.  In a letter handed to Chok during that meeting, it was stated that his performance and behaviour did not closely match with the requirements of his senior position.  At the end of the meeting, Chok promised to continue to act professionally during the remainder of the term of his employment and in forthcoming discrimination law review mentioned below.

8.In a memorandum dated 13 August 2014, Chow further explained the decision of the EOC to Chok in terms that were critical of Chok’s leadership ability and his behaviour towards and working relationship with his colleagues[2].

The discrimination law review

9.Towards the end of Chok’s employment, the EOC was conducting a three‑month public consultation on discrimination law review (“DLR”), to be concluded on 7 October 2014.  The DLR was a major exercise intended to be a comprehensive review of all the existing discrimination laws to consider how they could be modernised to meet the society’s needs.  It started in late 2012 and consisted of five phases. Public consultation was the second phase, following an internal review by the EOC and to be followed by an assessment of all the submissions and views received during the public consultation, drafting submissions and recommendations to the Government, and advising the Government on how the recommendations could be implemented.  Chok, who had volunteered to join the team, was one of the key members of the EOC’s taskforce on the DLR.  As mentioned (§7 above), at the end of Chow’s meeting with him on 22 July 2014, Chok promised to continue to act professionally during the remainder of the term of his employment ending in October 2014 and the DLR.

10.A total of 77 questions were posed to the public in the consultation document.  There are 6 questions of particular relevance here because on Chok’s own case, they are questions to which he suggested the participants at the forum give a particular response in the consultation:

“ 6. Do you think that the protected characteristic of marital status should be amended to apply to ‘relationship status’ and expressly protect persons in de facto relationships? If so, how should de facto relationships be defined? Should it be defined to include protection for both heterosexual relationships and same‑sex relationships? Should this also be extended to protection from discrimination relating to former de facto relationships?

…

8. Do you think that the protected characteristic of family status should be redefined as ‘family responsibilities’ in order to clarify that it relates to persons who have responsibility for the care of immediate family members?

9. Do you think that the scope of family status discrimination should be expanded to include protection where persons in de facto relationships care for immediate family members? If so, how should de facto relationships be defined? Further, do you think the protection should be extended to situations where a person cares for an immediate family member from a former marriage or de facto relationship?

…

69. Do you think that the exception permitting sex discrimination in employment and qualification bodies for religious purposes should be extended to permit marital status discrimination?

…

71. Do you think that:

– the Human Reproductive Technology Ordinance should be amended to remove a requirement that a person is married to be provided with IVF treatment; and

– the exception in the SDO relating to reproductive technology should then be repealed?

72. Do you think that the exception relating to adoption and marital status is no longer necessary because of amendments to the Adoption Ordinance and should be repealed?”

11.The role of the EOC in canvassing the views of the public in the DLR consultation was to be impartial.  Chok was responsible for explaining the objectives and proposals of the DLR to the public in consultation forums, which were scheduled on 9, 16, 23 and 30 August 2014.  Chok attended the public consultation meetings on 9 August and in the afternoon of 16 August respectively as the Commission’s representative and speaker.  Between these two public consultation meetings, in the morning of 16 August 2014, Chok also attended a forum organised by a church, which was the forum in question.

The forum on 16 August 2014

12.On 16 August 2014, Chok attended and gave a talk at a forum organised by a church called Tsung Tsin Mission of Hong Kong (香港崇真會) (“the Church”) to introduce and explain the DLR consultation.  The forum was called “Briefing on DLR Consultation” (「歧視條例檢討」諮詢簡介會).  According to Chok, and as found by the Tribunal after the first trial, he was invited to the forum in his personal capacity and because of his Christian religion.

13.The forum was open to members of the branches of the Church and the schools run by it.  It appears that those who attended included headmasters, teachers, and parents of students of the schools.  Members of the media had not been invited.  During the first trial, there was dispute as to the number of attendees in the region of 50 or 200.  During the new trial, it was Chok’s own evidence that the number was about 100 to 200.  Chok gave some written materials to the participants at the forum.  Parts of the forum including Chok’s speeches were recorded by someone without his knowledge or the organisers’ authorisation.

14.The transcript of the audio recording revealed that Chok did the following:

(1)  He told the audience that in other countries, enforcement of equal opportunities laws had often targeted churches or schools.

(2)  He told the audience that he had tried very hard to insert Question 69 into the consultation document, but its scope was not wide enough.  He appealed to them to answer “Yes” to that question and to ask for an expansion of the exemption.

(3)  He urged the audience to answer “No” to certain other questionsposed in the consultation document.  The EOC said this applied to all the other questions but Chok said he did so only for five questions, namely, Questions 6, 8, 9, 71 and 72.

(4)  He suggested a strategy of giving a very large number of responses to the consultation (“人海戰術”).  He gave the participants advice on how to make their views look independently formed and thus attract more weight with the EOC.  He told them that the EOC had earlier received over 1,000 letters from “pro‑gay” groups expressing their views, but since their letters were produced by “cut and paste”, they were only counted as one voice.

(5)  He offered to help the participants present their views in a manner that would not be similarly discounted, suggesting that when they sent their views to the EOC, they could use the template drafted by him with suitable variations.

(6)  He told the audience that he had objected to the EOC’s proposal to include same‑sex relationship within the protection of de facto marriage, and encouraged them to oppose the proposal.

(7)  He suggested that the ultimate aim of such legislation was to protect “sexual minorities”, which might ultimately lead to the removal of prohibition against all kinds of sexual practices including incest and bestiality.

(8)  He characterised the actions of the EOC on sexual orientation discrimination as pointless (“阿茂整餅”).

(9)  He mentioned to the participants at the forum about a previous incident of alleged discrimination involving the International Christian School and said that the EOC had caused it nuisance; and

(10)  He described the EOC as autocratic (“一言堂”).

Public and media reaction

15.On 26 August 2014, the newspaper Apple Daily reported what Chok said at the forum with verbatim quotes, and criticised him for compromising the integrity of the EOC and the credibility of the DLR consultation.  On the same day and the days that followed, Chok and the EOC came under a great deal of criticism in the media along the same lines because of what he said at the forum.  There were even calls for the EOC to retract the entire DLR consultation.

16.In response, the EOC issued a media statement on 26 August 2014 acknowledging the incident might have caused potential misunderstanding and expressing regret and apology. It stated that Chok’s personal views on same‑sex marriage did not represent the position of the EOC and would not affect the DLR.  It was also announced that in order to alleviate public concerns, Chok would be discharged from his DLR duties with immediate effect.  The EOC also stated that it had reminded its employees that they could request to withdraw from a duty if there were conflicts between the EOC’s position and his or her personal position, which would help them avoid committing acts or delivering remarks that might undermine the credibility of the EOC.

17.Indeed, on the same day, Chow sent an email to all the staff of the EOC in the following terms:

“ … I wish to emphasize that the EOC respects freedom of belief ofour colleagues. Colleagues can participate in religious activities and share with friends and family members and have their own position on religion in their private capacity. However, if such views are expressed in a public forum and if the subject in question is related to EOC’s work, prior declaration to the EOC is necessary. If internal information is to be used, the EOC’s prior approval has to be sought.

Any real or perceived conflict of interest is not just related to the integrity and creditability of the officer concerned but may also affect EOC’s reputation.In the eyes of the public, the line between making a personal statement and a statement in EOC’s capacity may not be too clear and colleagues should always be discreet and if in doubt, they should seek advice from their functional head or the Chairperson.

All colleagues are reminded that the EOC Chairperson is the public face for the EOC and will normally be the spokesman for the Commission.  Unless authorized, colleagues should refrain from expressing their personal views on EOC matters in public.  Please note any lack of consistency can lead to public perception and doubt on a person’s creditability and integrity.  Division/‌Unit Heads are requested to remind all staff to observe this basic professional code.”

18.The matter also attracted the attention of certain members of the Legislative Council.  On 29 August 2014, Hon Cyd Ho wrote to the EOC questioning its impartiality in the DLR consultation and to request an extension of the consultation period.  On 3 September 2014, the Panel on Constitutional Affairs of the Legislative Council also asked the EOC for a written response to Cyd Ho’s letter, which the EOC duly provided on 15 September 2014.

Internal investigation

19.Following the Apple Daily report on 26 August 2014, Chow instructed Mr Joseph Li (“Li”), Director of Operations and the direct supervisor of Chok, to investigate into the matter[3].  By email, Li asked Chok for his views and comments on Apple Daily’s report, including whether there was misreport.

20.Chok responded by asking what the purpose and nature of this enquiry was and under what authority it was conducted.  He also suggested Li to ask Apple Daily for the original evidence.  Li replied that as a supervisor, he wished to advise Chok to protect himself and had the duty to make things clear in order not to let people infer what was reported was true, if it in fact was not.  Li made clear that it was Chow who instructed him to investigate.

21.On 1 September 2014, Chok replied that Li’s instruction was not clear and specific, as it simply asked him to address the content of the Apple Daily report without specific questions raised.  He added that he put Apple Daily to strict proof by producing the full audio recording.  He invoked the protection of his “religious right to be free from discrimination”, and relied on his freedom of expression, freedom and privacy of communication and freedom of conscience and religion under Articles 27, 30 and 32 of the Basic Law.  He said that his sharing at the forum was a totally private religious sharing on his religious belief with a group of restricted number of Christians of or related to that denomination, during his own time and without remuneration.

22.On 3 September 2014, Li wrote to Chok, expressing his view that Chok did express his opinion on the EOC’s work to an external audience. Li asked Chok to address the specific acts that Apple Daily said he did at the forum.

23.On 12 September 2014, Chok replied, refuting the allegations in the Apple Daily report.  He stressed that he expressed his personal views at the forum, and there was no conflict of interest.  He criticized the EOC for harassment and infringing his privacy.  He also stated that Li should abstain from the investigation as the same should be carried out by external investigators.

24.After the EOC had received from an anonymous source an audio recording of segments of Chok’s speech at the forum mentioned above, Li further wrote a memorandum on 26 September 2014 to Chok, enclosing the audio recording and raising some additional questions for Chok[4]. Specifically, Chok was asked for response to the following questions:

(1)  Whether he considered that he, as one of the key members in the DLR working group, should play an impartial role in facilitating public responses instead of steering public views; and

(2)  Whether he considered that his attendance at the forum and the contents of his talk had constituted a conflict with his official role, any breach of the Code of Conduct and any breach of his duty of confidentiality.

25.On 7 October 2014, Chok gave what he called his “final reply”,complaining that he was being pestered for information and that Chow and Li were not impartial.  He refused to comment on the recording as it was supplied anonymously, incomplete and not authenticated, and he reserved his right against the EOC for infringing his personal data privacy.  He maintained that his speech at the forum was a private sharing and complained of encroachment on his privacy and freedom of religion and expression.

26.Li produced a report to Chow on 7 October 2014.  It stated that an audience of over 200 attended the forum, and while enrolment might be restricted, it was in substance an activity in public.  Chok would not have been invited, but for his employment with the EOC. His involvement in the DLR consultation was highlighted by the organiser when introducing him.  Chok did not state his private capacity clearly, but instead referred to his participation in the DLR working group and in the public consultation, including his arguments with colleagues on matters related to the DLR.  The recording showed that he was steering the participants and made condescending comments on gay and cross‑dressed groups.  The report then set out certain matters that Chok told the forum, before concluding thatthe occasion was an activity in public, and Chok held himself out as a person closely connected with the EOC and the DLR as well as that his criticism of the EOC conveyed a negative image which caused people to doubt the intention of the DLR exercise.  The report stated that Chok had:

“ i. Inappropriately and/or wrongly divulged office information takingadvantage of his position and participation in DLR Working Group;

ii. Misled participants on the objective of DLR and relevant proposals;

iii. Misled participants on EOC’s operation, complaint mechanism, legal assistance function and decision‑making process. All these tarnished the public image of the Commission;

iv. Not only failed to clarify and defended EOC’s operation publicly, but also created negative publicity intentionally on the organisation and people;

v. Acted in conflict with the Commission’s interest intentionally or unintentionally; and

vi. Breached the code of conduct expected from each and every EOC staff member.”

27.On 10 October 2014, as a disciplinary action, Chow issued a formal warning notice to Chok, which set out the details of the misconduct found and stated that the internal investigation had concluded that:

(1)  he had breached Sections D1.4.2 and D1.4.4 of the Code of Conduct in that he had, inter alia, placedhimself in a position of conflict by expressing his personal views rather than remaining impartial in the consultation process; and

(2)  he had breached his duty of fidelity and good faith in that he had, inter alia, misled the forumabout the EOC’s consultation methodology, operations and decision‑making process. 

28.According to Chow, the EOC took the view that Chok’s conduct warranted summary dismissal.  That course had actually been considered but was eventually not taken, considering that it was by then very close to the end of Chok’s contract (on 31 October 2014) and his long employment since 1996.  In the warning notice, Chok was advised to familiarise himself with the Code of Conduct to avoid similar situations in future.

29.In the warning notice, it was also stated that its contents would be taken into consideration by the EOC in deciding whether there had been “satisfactory completion” of his employment agreement which might have repercussions on Chok’s contract-end gratuity.  Chok was reminded that he could appeal against the issue of the warning notice within 14 days.[5]

30.On 13 October 2014, Chok counter‑signed the warning notice but stated that he denied and disagreed with the outcome of the internal investigation.

31.Chok did not lodge any appeal against the warning notice.  The 14‑day period for appeal expired on 27 October 2014.

32.Chok’s employment came to an end on 30 October 2014.

33.The EOC resolved not to grant the contract‑end gratuity to Chok pursuant to clause 13.1 of the Conditions of Service on the ground that in its opinion, he had not satisfactorily completed the employment agreement.  According to Chow[6], this was based on (i) Chok’s breach of the Code of Conduct; (ii) breach of his duty of fidelity and good faith; (iii) breach of his promise made at the meeting on 22 July 2014 to continue to act professionally during the remainder of the term of employment and particularly in the DLR as mentioned above; as well as (iv) that Chok had acted most unprofessionally at the forum, and had deliberately attempted to smear the credibility, integrity and public image of the EOC in the presence of a group of church leaders.

34.Nevertheless, according to the EOC, it decided to offer Chok a last chance.  Accordingly, it prepared a draft deed of release, whereby the contract-end gratuity would still be paid to Chok on a discretionary basisprovided he would accept the terms in that document including a requirement that he apologised in writing for his actions at the forum and a provision that whether before or after the termination of his employment, he should not make any negative statement concerning the EOC or say or do anything prejudicial to the management or policies of the EOC.  Chok refused to sign the deed of release. The EOC also did not pay him the gratuity.

Chok’s claim

35.Chok brought his claim in the Tribunal in February 2015.  It was tried in July and August 2015.  By then, the only claim that required adjudication was his claim for the contract-end gratuity in the sum of HK$867,021.25.

The Tribunal’s decision dated 2 November 2015

36.After trial, the Presiding Officer then found in favour of Chok on the following grounds:

(1)  As a matter of construction, the phrase “satisfactory completion”in clause 13.1 of the Conditions of Service refers to the temporal completion of the three-year term, and the EOC could not take into account Chok’s work performance in deciding whether or not to pay him the gratuity pursuant to that clause.

(2)  Alternatively, even assuming that her construction of clause 13.1 was wrong, the Presiding Officer did not find that Chok had failed to satisfactorily completed his employment contract.  Her reasons were mainly as follows:

(a) There were deficiencies and shortcomings in the investigation procedure and the report of Li, which infringed the rules of natural justice.  Therefore, no weight could be placed on the content of the report and its conclusions.

(b) The forum was a private event, the attendance at which was restricted.  Chok attended the forum in his personal capacity, which had nothing to do with his work performance.

(c) As a member of the public, Chok’s freedom of expression of opinion in his personal capacity about the DLR consultation at a private event was protected by the Basic Law.

(d) What Chok did at the forum did not constitute any conflict of interest with the EOC or impact on his work performance.

HCLA 42/2015

37.The EOC’s appeal against the above adjudication of the Presiding Officer was heard by G Lam J.  His Lordship allowed the EOC’s appeal on the following grounds:

(1) The Presiding Officer erred in her construction of the phrase “satisfactory completion of the agreement in the opinion of the employer” in clause 13.1.  This phrase plainly includes the manner in which the agreement has been completed by the employee.  The quality of the employee’s performance could be taken into account by the EOC in forming an opinion as to whether there has been satisfactory completion of the employment agreement in application of the clause.

(2) On the basis that work performance could be taken into account,the Presiding Officer also erred in her approach in deciding whether the EOC, taking into account Chok’s work performance,was entitled to refuse to pay his gratuity.  The approach shouldbe to ask whether the EOC’s formation of the opinion that Chokhas failed to satisfactorily completed his employment agreementwas irrational or perverse or, in other words, where no reasonable employer would have exercised the discretion in the same way.  The Presiding Officer failed to direct herself on this correct test,and erred by merely taking upon herself the finding of whether in her view Chok’s conduct at the forum was misconduct and whether that had any effect on his work performance.

38.Upon allowing the appeal and setting aside the Tribunal’s award, G Lam J directed that Chok’s claim be remitted to the Tribunal to be tried before another Presiding Officer.  It is important to note some of his Lordship’s reasons for so directing.

39.First, on behalf of Chok, it was argued that in any event, the freedom of expression of an employee could not be overridden by a contractual duty of fidelity, and therefore a conclusion should still be drawn in his favour, notwithstanding the Presiding Officer’s error.  G Lam J rejected that argument.

40.G Lam J explained that satisfactory completion of the agreement is not confined to work within the office premises but extends potentially to all the terms of the agreement (Section D1.4.2 and 1.4.3 of the Code of Conduct cited above).  That the attendance of the forum in question was limited does not mean that it could have no relation at all to his employment.  The nature of the occasion and number of participants are parameters that the EOC may take into account in forming its opinion under clause 13.1.  In the circumstances of this case, it is relevant to take into account the key role of Chok in a supposedly impartial public consultation exercise and who was introduced to the forum as an insider to denigrate the DLR in front of the seminar participants, be it 50 or 200, to urge them to respond to a number of questions in a particular way, and to offer assistance to make their response appear independent and attract weight.  G Lam J found that the Code of Conduct (Section D1.4.4 and 1.4.5 cited above) does not seek tosuppress an employee’s freedom of expression, but to avoid potential conflictsituations between the employee’s outside activities and his work in the EOC.  Therefore, it could not be said that the EOC could not form the opinion that Chok’s conduct at the forum has rendered his completion of his employment agreement unsatisfactory without acting irrationally or perversely.

41.Then reference was made to various aspects of the deficiencies and breach of the rules of natural justice in the investigation process and the Presiding Officer’s refusal to place any weight on the investigation report.  It was argued on behalf of Chok that as a result of such deficiencies and breach, there was in any event no proper basis for the EOC to support its opinion about Chok’s conduct and thus its conclusion to deny his gratuity.  Hence the drawing of a conclusion favourable to him in any event.  G Lam J also rejected the argument.

42.His Lordship explained that as apparent from Chow’s statement,the decision on the gratuity was not part of the disciplinary process.  It was a decision arrived at independently, having taken into account a number of matters.  The disciplinary warning, which was not appealed, was but one ofthose matters.  Chow stated that he himself also listened to the recording ofwhat Chok said during the forum.  With such evidence, his Lordship refused to conclude that the opinion and decision of the EOC must be perverse or irrational simply because of the deficiencies of the investigation and report. Nor did the Presiding Officer then so conclude.

43.However, Chow’s statement was admitted without calling him at the first trial.  That course was proposed by the Presiding Officer then and agreed to by the parties.  The Presiding Officer did so, as she came to the view that how Chow came to his conclusion was not relevant.  As mentioned, the Presiding Officer took upon herself the determination of whether what Chok did at the forum affected his work performance and whether or not he has satisfactorily completed the employment agreement.  That was erroneous.  G Lam J therefore took the view that without testing the evidence of Chow, it would be inappropriate to conclude that the decision not to pay the gratuity must be perverse or irrational because of thedeficiencies in the investigation and the report.  This was precisely why his Lordship also rejected the EOC’s argument that a conclusion in its favour in any event should be drawn on the basis of the uncontested evidence of Chow as per his statement.

44.The above very much shaped the issues that were expected to be resolved at the second trial.

The second trial

45.The second trial took place before another Presiding Officer of the Tribunal on 25 – 27 September 2017.  Indeed, in her reasons for judgment, the Presiding Officer, first and foremost, made reference to the judgment of G Lam J, which brought about the trial.  She then set out the two core issues that needed to be resolved:

「要點一：申索人束先生於2014年8月16日，在未向當時的僱主平機會預先申請的情況下，以講者的身份參與基督教會崇真堂舉辦的歧視條例諮詢、性傾向條例、同性婚姻合法化討論會 (下稱『討論會』) 及發表的言論是否與僱員正當及忠誠履行職責的要求不符？

要點二：平機會認為束先生沒有『滿意地完成』(satisfactory completion)僱傭合約而不支付約滿酬金的決定是否不合情理或不正當？」

46.Essentially, the two core issues above were (ii) whether the attendance by Chok at the forum without prior report or application to the EOC and the content of his talk at the forum conflict with the proper and loyal discharge of his duty at work for the EOC (which I shall refer to as “the Conflict Issue” in the discussion below); and (ii) whether the conclusion of the EOC that Chok has failed to satisfactorily completed his employment agreement, and thus the decision not to pay his contract-end gratuity, irrational or perverse (which I shall refer to as “the Gratuity Decision Issue” in the discussion below).

47.In terms of oral evidence, the major difference of the second trial from the first one is that Chow testified.  This is not surprising, in view of why G Lam J remitted the case to the Tribunal as mentioned above.  The witnesses adopted their respective statements as part of their evidence.  The transcript shows that Chok also cross examined Chow.

48.On the Conflict Issue, the Presiding Officer found that the evidence shows what Chok did clearly conflicted with his duty of loyal discharge of his duties at work for the EOC and the Code of Conduct.

49.On the Gratuity Decision Issue, the Presiding Officer accepted Chow’s evidence that he has considered various factors, before forming the opinion that Chok has failed to satisfactorily completed his employment agreement, and hence the decision not to pay Chok his contract-end gratuity. Those factors included Chok’s failure to report/disclose in accordance with the Code of Conduct, the undisputed fact that it was his voice that was recorded at the forum, the content of his talk at the forum so recorded as well as his attitude and approach throughout the internal investigation.

50.In the course of her reasoning, the Presiding Officer also rejected Chok’s argument, advanced in reliance of Braganza v BP Shipping Ltd & Anor [2015] 1 WLR 1661, that the investigation process of EOC failed to comply with the requirements of fairness and reasonableness in the public law sense.

51.Accordingly, the Presiding Officer found that decision not to pay the gratuity was not made irrationally or perversely, and dismissed Chok’s claim with costs.

This appeal

52.Chok applied for leave to appeal on the grounds as attached to his application filed on 6 October 2017.  The grounds have since been revised, it was on those revised grounds that he was given leave to appeal on 27 March 2018.  They are as follows:

(1)  The Presiding Officer, in concluding that the EOC’s investigation process was lawful and reasonable in the public law sense, failed to take into account at all the errors and deficiencies made in the process as admitted by Li of the EOC during the first trial.

(2)  Had the errors and deficiencies been properly and sufficiently taken into account, the Presiding Officer ought to have held that there was overwhelming evidence that the investigation failed to follow the disciplinary procedures and was blatantly in breach of natural justice, thereby rendering the gratuity decision (insofar as it relies on the investigation in support of a finding of misconduct against Chok) irrational and/or perverse.

(3)  In considering whether Chow made his own independent decision not to pay the gratuity, the Presiding Officer failed to consider properly or at all the following principles:

(a)  The validity of a decision falls to be judged as of the date of that decision.  Challenge for unreasonableness will be determined by reference to the circumstances at that time and not thereafter.  The court should be cautious about accepting late reasons. Reasons put forward after the commencement of proceedings must be treated with caution.

(b)  The employer is under an obligation to treat his employee fairly in explaining to the employee the situation and this would involve making known to the employee the factors which have influenced the decision, by whom the decision was taken and the reasons for the decision taken.

(c)  The employee should be given a right to respond to the employer’s decision and also the factors which have been taken into account.

(4)  Without having regard to the above principles, the Presiding Officer, in accepting Chow’s evidence that he made an independent judgment on Chok’s conduct and the final decision not to pay the gratuity, erred as follows:

(a)  She failed to conduct any or any proper assessment on the relevance, weight and credibility of Chow’s evidence in that (i) she did not consider that reasons provided by him in his oral testimony were not set out in his statement; (ii) whether his independent judgment was tainted by the perversity or irrationality caused by the errors and deficiencies in the investigation process; (iii) whether Chow’s understanding and interpretation of the contents of the audio recording was reliable in the absence of further enquiry with the organizer, Apple Daily or Mr Roger Wong who attended the forum; (iv) whether his independent decision was itself perverse or irrational as Chok was never provided with any reasons for the decision and opportunity to respond to the same.

(b)  She gave unnecessary and/or undue weight to the alleged lack of co-operation on the part of Chok in the investigation process.  This factor is neither here nor there, given the errors and deficiencies in the investigation as well as the lack of obligation on the part of Chok to respond when EOC did not refer to any provision in the Code of Conduct or any particular charge to be laid against him.  The EOC also never communicated to Chok that its refusal to pay the gratuity was based on his failure to co-operate in the investigation process.

(5)  The Presiding Officer erred in accepting the Conflict Issue as acore issue, because this would be tantamount to her conducting her own investigation on whether Chok’s conduct amounted to breach of duty or misconduct.  She ought to have considered whether the decision making process was lawful and rational in the public law sense, and whether the decision was made in good faith and consistently with the contractual purpose, not whether the outcome for Chok was objectively reasonable.

(6)  In her consideration of Braganza (above), the Presiding Officer failed to pay any or any sufficient heed to the essential principles laiddown in the case, namely, the employer is expected to know howto approach making decisions that he is required or empowered to make under the terms of the employment contract, and that such decision making process should be subject to scrutiny which is no less intensive than that the court applies to the decision of a public authority which is charged with making a finding of fact.

(7)  Had she properly and sufficiently considered the principles, the Presiding Officer would not have committed the errors that form the preceding grounds of appeal.

53.I propose to discuss grounds (5), (6) and (7) before considering grounds (1) to (4) in the circumstances of this case.

54.Before that, I should also reiterate the trite principles governing an appeal like the present one.  The court is required to consider if the Tribunal’s decision made any error in law.  Insofar the challenge is one against the Tribunal’s finding of fact, an error exists only if the finding is plainly wrong in that it is clearly inconsistent with the evidence or is based on any disregard or misunderstanding of evidence or, in other words, where no reasonable tribunal would have made on the evidence: see for instance, Vermeerbergen Peter Alfred v Swisstribe Ltd HCLA 36/2015 (1 December 2016) at §§12 – 16.

Ground (5) — the Conflict Issue

55.By criticizing the Presiding Officer for “accepting” the ConflictIssue to be one of the core issues in the new trial, Mr Khaw SC, appearing for Chok, must realise that the core issues were so framed as a result of agreement between the parties, which the Presiding Officer accepted.  As noted by the Presiding Officer in her reasons, the core issues were agreed during the mention hearing on 19 June 2017.  Of course, that does not absolve the Presiding Officer, if it is indeed an error to do so, albeit agreed between the parties. However, for the following reasons, I do not think it is erroneous.

56.Mr Khaw might have a point, were the Conflict Issue identified by the Presiding Officer as an isolated issue that she proceeded to resolve by merely making her own findings and forming her own views on the evidence.  Such approach would have infringed the very principle explained by G Lam J in his judgment as mentioned above[7]. Insofar as the Conflict Issue is relevant to the consideration of whether Chok had satisfactorily completed his employment contract, and thus the decision not to pay the gratuity, is concerned, the Tribunal is supposed to consider whether the EOC’s conclusion on the Conflict Issue and its subsequent formation of the opinion that Chok had failed to complete his employment contract satisfactorily, and thus its decision on his gratuity, was perverse or irrationally made.  In my view, the Presiding Officer did exactly that.

57.Together with the Conflict Issue, the Presiding Officer identified the Gratuity Decision Issue as the other core issue.  This second issue was framed in line with the principle mentioned in the preceding paragraph.  The Presiding Officer was plainly aware of the correct approach, and never sought to consider the first core issue in isolation.

58.The two issues are intertwined.  The Conflict Issue featured as one of the factors taken into account by the EOC when forming the opinion that Chok had failed to satisfactorily completed his employment contract.  To answer the Gratuity Decision Issue, namely whether such opinion and conclusion of the EOC was formed irrationally or perversely, the basis on which the conflict was said to exist must be examined.  Whilst the test is partly subjective, as G Lam J explained in his judgment[8], it must be permissible, if not necessary, to test the basis objectively.  After all, the question to answer is whether no reasonable employer would have formed such opinion and made such decision on the evidence before him.  I therefore reject the argument that the Presiding Officer erred in considering whether the outcome of the EOC’s consideration was objectively reasonable.

59.As far as her reasons reveal, it cannot be said that the Presiding Officer lost sight of the correct test to apply when considering the Conflict Issue.  She first referred to the context of her discussion, namely, the opinion formed by Chow on the Conflict Issue and his decision not to pay him the gratuity[9], before proceeding to consider the evidence.  She did not merely come to her view on the issue, but with immediate reference to the question of whether the response of the EOC, which held the same view, was reasonable in the circumstances as she found[10]. She also referred to Chow’s explanation of how he took the matters under the Conflict Issue into consideration in his decision making[11], which she accepted.  Following that, the Presiding Officer proceeded to consider the Gratuity Decision Issue, which led to her ultimate conclusion on the issue[12].

Grounds (6) and (7) — the principle in Braganza

60.The case of Braganza was relied on by Chok in his argument essentially to criticize the EOC for its conclusion on the Conflict Issue in the absence of any cogent evidence, a manner which is said to be contrary to the public law principle of (Wednesbury[13]) reasonableness and rationality.

61.Braganza was specifically discussed by the Presiding Officer in her reasons, and therefore there is no question about her awareness of the authority.  By criticizing the Presiding Officer for failing to pay any or any sufficient heed to the principle of that case under this ground of appeal, I take Chok to be arguing that her understanding of the principle involved in that case was wrong or insufficient so that her conclusion in respect of the rationality of the EOC’s decision is erroneous.

62.In Braganza, the chief engineer on board a vessel disappeared overnight, and was declared to be lost overboard and presumed drowned.  His contract of employment provided for a death in service benefit save where his death was the result of his own wilful act.  The employer set up its own investigation team, which discounted foul play.Considering certain evidence that suggested that he had been troubled by financial and other worries, and being of the opinion that he had no good reason to go on deck at night, albeit without ruling out the possibility of doing that for concern about the weather that might affect his work on deck, the investigation team reported that the most likely explanation was suicide instead of accident.  On the basis of the report, the employer decided that no benefit was payable pursuant to the employment contract.  The widow of the engineer claimed and succeeded in the first instance, but lost on appeal.  Hence her appeal to the Supreme Court.

63.The appeal was allowed by majority of the Court.  The principles cited under this ground of appeal in the present case indeed came from the following parts of the Supreme Court judgment:

Per Baroness Hale:

“ 32 … The particular context of this case is an employment contract, which, as Lord Hodge JSC explains, is of a different character from an ordinary commercial contract. Any decision- making function entrusted to the employer has to be exercised in accordance with the implied obligation of trust and confidence. This must be borne in mind in considering how the contractual decision-maker should approach the question of whether a person has committed suicide.

33 Teare J … directed himself, in relation to his own decision as to the cause of Mr Braganza’s disappearance, that ‘before a finding of suicide is made there must be evidence of sufficient cogency commensurate with or proportionate to the seriousness of the finding’. … He also directed himself … that, where two improbable causes are suggested, he was not bound to make a finding one way or another. I agree with Lord Neuberger PSC … that it is also perfectly proper for the employer to conclude that he or she is unable to form an opinion as to the cause of death. But the question is how he or she should go about making a positive finding of suicide.

34 … The only question is whether something is more likely than not to have happened. Lord Hoffmann put it thus in In re B (Children) … [2009] AC 11, para 15:

‘ There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities.’

35 Some things are inherently a great deal less likely than others. The more unlikely something is, the more cogent evidence must be the evidence required to persuade the decision-maker that it has indeed happened. … Hence it is not the seriousness of the consequences of a finding of suicide which demands that there be cogent evidence to support it, but its inherent improbability.

36  … The employer is entrusted with making a decision whichhas serious consequences for the family of a deceased employee. It deprives them of what would otherwise be a contractual right.  There is no reason why the employer should not approach that decision in the same way that any other decision-maker should do. On the contrary, in view of the special nature of the employment relationship, there is every reason why they should do so.  Employers can reasonably be expected to inform themselves of the principles which are relevant to the decisions which they have to make.  Employment law is complicated and demanding in many legal systems, but employers are expected to know it.  They can also reasonably be expected to know how they should approach making the important decisions which they are requiredor empowered to make under the terms of the employment contract. In my view, a decision that an employee has committed suicide is not a rational or reasonable decision, in the terms discussed above, unless the employer has had it clearly in mind that suicideis such an improbability that cogent evidence is required to form the positive opinion that it has taken place.”

Per Lord Hodge JSC (with whom Lord Kerr agreed):

“ 57 In cases such as Clark v Nomura International plc, Keen v Commerzbank AG and Horkulak v Cantor Fitzgerald International [2005] ICR 402 the courts have reviewed contractualdecisions on the grant of performance-related bonuses where therewere no specific criteria of performance or established formulae for calculating a bonus. In such cases, the employee is entitled to a bona fide and rational exercise by the employer of its discretion. The courts are charged with enforcing that entitlement but there islittle scope for intensive scrutiny of the decision-making process. The courts are in a much better position to review the good faith and rationality of the decision-making process where the issue iswhether or not a state of fact existed, such as whether an employee’swilful act caused his death. The decision of the employer is not a judicial determination and the court cannot expect judicial reasoning. But I see no reason why an employer’s decision-making should be subject to scrutiny that is any less intense than that which the court applies to the decision of a public authority which is charged with making a finding of fact. A large company ‌… is in a position to support its officials with legal and other advisory services and should be able to face such scrutiny.”

64.The Presiding Officer said in her reasons that the factual background of the Braganza differs from the present case[14]. I do not think she is incorrect in saying that.  Whilst the same principle of reasonableness applies, so that an employer charged with finding of a state of affairs that may have bearing on the entitlement of the employee to a particular benefit under the employment contract must discharge such obligation in accordance with the evidence as well as in good faith and rationally, the factual context of Braganza did cause the court there particular concern in terms of the evidence required in discharge of such obligation of the employer.  Such concern came about because of the inherent improbability (generally and in the circumstances of that case) of suicide, so that the employer must have cogent evidence before finding that the employee committed suicide.  The lack of cogent evidence in support of a finding of suicide rendered such finding irrational and unreasonable in the circumstances of that case.

65.Not to suggest that evidence of any sort or weight would suffice in any other case, the emphasis on the requirement of cogent evidence in stating the above principles must be understood in the light of the factual context and thus the concern of the Court in Boganza.

66.In the present dispute, G Lam J in his judgment in HCLA 42/2015 indeed cited Clark v Nomura International plc [2000] IRLR 766 and Keen v Commerzbank AG [2007] IRLR 132, which, as seen above, were also referred to by Lord Hodge in his judgment.  G Lam J accepted that the discretion of the employer under the employment agreement in relation to the payment of a bonus must not be exercised in a manner that is perverse or irrational or, in other words, where no reasonable employer would have exercised the discretion in the same way[15]. The same principle applies to the present case in the formation of the opinion by the EOC as to whether Chok had satisfactorily completed his employment contract[16]. In my view, there is no basis for suggesting that the Presiding Officer was not aware of that.

67.What Braganza adds to the explanation by G Lam J in his judgment is the importance of the sufficiency of evidence.  In particular, the more inherently improbable a state of affairs is,the more cogent evidence in establishing that would be required.  Reference was also made to Faieta v ICAP Management Services Ltd [2018] IRIR 227, but, with respect, it adds nothing in terms of principle, apart from adopting the principle in Braganza mentioned above[17].

68.On the basis of the above principles, each case must turn on its own facts.  This is also in line with the submission[18] of Mr Lui, appearing for the EOC, which I accept.  The Presiding Officer indeed approached by applying the above principle to the facts of the present case[19].  Chok now argues that she did not “properly and sufficiently” considered the above principle and therefore she committedthe errors suggested under grounds of appeal (1) to (4).  I thereforecontinue to consider these grounds of appeal to see if the criticism is justified.

Grounds (1) and (2) – the investigation and result

69.In the first trial, the EOC was criticized for various errors and deficiencies in the investigation process, which were said to be admitted by Li. The Presiding Officer then shared the criticisms, and decided not to place any weight on the investigation report.  In the appeal before G Lam J, Mr Khaw also relied heavily on such criticism of the investigation process and report[20]. In this appeal, again the officer presiding the new trial is criticized for failing to take into account those errors and deficiencies in the investigation.  It is argued that such errors and deficiencies evidence that the EOC was in breach of natural justice.

70.In respect of those errors and deficiencies in the investigation and report that Li is said to have admitted, Mr Lui stresses that Li admitted in his evidence some of those matters as fact, but the categorization of them as errors and deficiencies is entirely that by Chok[21]. It is suggested that Li admitted there was no proper basis for him to make the statements or come to the conclusions in his report, but Mr Lui points out that this is not borne out by the transcript of his evidence during the first trial[22].

71.Mr Khaw also refers to Stevenson v United Road Transport Union [1976] 3 All ER 29 and Spink v Express Foods Group Ltd [1990] IRLR 320.  In Stevenson, the employee was not informed of the nature or seriousness of the accusations that he was faced with.  Nor was he explained to the purpose of the enquiry or the details of the accusations.  In Spink, it was held that mere vague intimation of the accusations to the employee would not be sufficient.  With reference to the correspondence between Li and Chok during the investigation mentioned above, as well as the audio recording of the content of the talk delivered by Chok at the forum that was not disputed and made available during the investigation, I agree with Mr Lui’s submission that the circumstances of the present case are far removed from these authorities on the fact.

72.Pausing here, and before one dwell further on the disagreement between the parties as to the integrity of the investigation process, I think a fundamental aspect of this case must be highlighted.

73.The investigation and report might be part of a disciplinary process which led to disciplinary consequence.  As mentioned, on the basis of the investigation result, the EOC has considered summary dismissal, but eventually decided instead to issue a warning noticeto Chok.  The investigation and the disciplinary process per se did not lead to termination of the employment or the employment benefits of Chok.  It was the subsequent exercise by EOC of its contractual discretion upon consideration of factors, including the investigation and result, that led to the decision not to grant Chok his gratuity at the end of the term of his employment.  It is such consideration and decision of the EOC which is subject to scrutiny.

74.As I read it, the judgment of G Lam J in HCLA 42/2015 also highlighted this fundamental aspect of the case.  When addressing the same criticism about errors and deficiencies in the investigation and report, G Lam J noted that the Presiding Officer in the first trial did not actually find that the decision on the gratuity was perverse or irrational because of such errors and deficiencies in the investigation report[23]. His Lordship further pointed out that the case of the EOC, according to Chow’s statement, is that the decision on the gratuity was not part of the disciplinary process, but a decision arrived at independently, having taken into account a number of factors, the disciplinary warning being one of them. On this basis, his Lordship considered that it could not be said that the errors and deficiencies in the investigation and report per se must render the decision on the gratuity must be irrational and perverse[24].

75.Now Mr Khaw argues that G Lam J considered that it was wrong for the Presiding Officer in the first trial not to have found whether or not the decision on the gratuity was perverse or irrational due to the errors and deficiencies in the investigation report, and that was (partly) why his Lordship remitted the matter to the Tribunal for making such finding.  This is not how I understand his Lordship’s observation.

76.Insofar as the decision on the gratuity is concerned, the relevant point of time for determining whether the EOC made such decision in breach of natural justice, as mentioned above, must be the time when it considered and eventually made the decision after the disciplinary investigation and report as well as the warning notice.

77.In the circumstances, Chok’s criticism about the suggested errors and deficiencies in the investigation serves ground (2) of this appeal only insofar as, and to the extent, the EOC relied on the investigation in support of a finding of misconduct against him in its consideration of the gratuity issue. This is indeed how this ground is worded.  In essence, the question is whether EOC was wrong to take into account or place such weight on the investigation and result in its decision on the gratuity.

78.Chok was aware of the investigation results, at the latest, upon the receipt of the warning notice.  More importantly, his attention was drawn to the relevance of the investigation results, as the warning notice advised him that they would be taken into consideration by the EOC when determining whether he had satisfactorily completed his employment contract, which might have repercussions on his gratuity.  He was reminded of his right to appeal against the findings and the warning notice within 14 days.  For all his criticism about the errors and deficiencies about the investigation, and thus the lack of legitimate basis for allowing the investigation result to become a factor in the consideration of his work performance and the gratuity issue, that would be the relevant time when he could have lodged such attack by exercising his right to appeal.  He did not do so.

79.In both trials, the EOC’s case is consistently that it took into account a number of factors, and insofar as whether Chok has misconducted himself was concerned, the relevant evidence available, including the investigation results that Chok had not appealed against.  The EOC then formed the opinion that Chok had not satisfactorily completed the employment contract.  This was the essence of Chow’s evidence in the first trial, which G Lam J considered to be relevant and should be tested at trial before one can conclude whether the decision was irrational or perverse.  Hence the second core issue of the new trial.  This has to do with grounds (3) and (4) of this appeal.

Grounds (3) and (4) – independent decision on the gratuity

80.These grounds contain the attack on the Presiding Officer’s findings of fact, upon her acceptance of the evidence of Chow.

81.According to Chow, the investigation commenced without a view to blame but to finding out whether what the evidence and media reportsuggested indeed happened, and why Chok did and said what he did and said. The Presiding Officer accepted Chow’s evidence that his concern was what Chok in fact did, as the evidence suggested, not whether what he did in fact affected the audience’s position in the consultation or what materials the media had in that regard.

82.The documentary evidence in respect of the exchange between the EOC and Chok in the course of the investigation are summarized above.  Further, despite his criticism about the reliability of the audio recording, Chok, as thePresiding Officer noted, never disputes that it was his voice that was recorded and the content of his talk as transcribed.  The content of the transcription was recited as well in the judgment of G Lam J mentioned above. The Presiding Officer considered and found that the evidence available before the EOC and the media reaction faced by it then as mentioned above afforded a reasonable basis for the legitimate concern of the EOC and its request to Chok for comment and explanation.

83.The Presiding Officer rejected Chok’s argument that the EOC was invading his privacy or right of religious freedom and expression, as there is a balance to be struck between his rights and his duty of loyal discharge of work duties owed to his employer.  This point, also argued by Mr Khaw in HCLA 42/2015, was already made clear by G Lam J in his judgment[25].

84.The Presiding Officer accepted Chow’s evidence in respect of the disappointment and frustration because of the hostile and un-cooperative attitude that Chok demonstrated throughout the investigation.  Due to that, the EOC, according to Chow, had to come to its view on the basis of the evidence in hands at the end of the investigation.  It was then the EOC proceeded to consider whether there was breach of the Code of Conduct on the part of Chok and, if yes, what sanction should follow.

85.The court in Braganza emphasized the importance of sufficiency of evidence in support of a finding that would have bearing on an employee’s entitlement to benefit under his employment contract.  The Presiding Officer indeed subjected the evidence in the hands of the EOC at the end of the investigation to an objective test, before concluding that the EOC was entitled to its conclusion without infringement of the principle in Braganza.  The Presiding Officer found that such conclusion could not be criticized as irrational or perverse.  In my view, the Presiding Officer was entitled to so find.

86.The investigation and report did not per se entail the decision not to pay Chok his contract-end gratuity.  Nor was misconduct or breach of the Code of Conduct that warrants summary dismissal a pre-requisite to denying his such entitlement[26]. According to Chow, the decision not to grant the gratuity was not purely based on the investigation report.  He has himself listened to audio recording of what Chok said in his talk at the forum.  He considered that Chok did not honour his promise during the meeting on 22 July 2014 to continue to act professionally during the remainder of the term of his employment and in the DLR.  Chow has consulted the other committee members of the EOC, including a member who is a practicing solicitor.  He also took into account Chok’s attitude and approach throughout the investigation.

87.The Presiding Officer rejected Chok’s suggestion that Chow’s evidence was incredible and unreliable.  She found that the circumstances considered by Chow were consistent with her objective view of the matter, and it was after such consideration that Chow formed the opinion that Chok had not satisfactorily completed his employment contract.  The Presiding Officer’s objective view of the matter is also in line with the observation of G Lam J in his judgment in respect of what matters are within the parameters that the EOC may take into account in forming its opinion whether there was satisfactory completion of the employment contract in the circumstances of this case[27].

88.As to whether Chow formed the opinion for the purpose of the gratuity decision and made the decision independently, Chok does not suggest that the Presiding Officer’s findings in this respect are not supported by the evidence or are contradicted by the evidence.  He argues that she failed to conduct any or proper assessment on the relevance, weight and credibility of Chow’s evidence.

89.First, the Presiding Officer was criticized for neglecting that what Chow said in his oral testimony was not covered by his statement.  Counsel have referred in their written and oral submissions in detail to Chow’s elaboration when he gave evidence[28], which, except for the salient part referred to above and below, I would not repeat.  However, I would reject that criticism.

90.As mentioned, a major reason why the case was remitted for a new trial was precisely the undesirability of reliance on Chow’s evidence simply as per his statement without subjecting the same to test.  There is nothing wrong in principle about allowing Chow to elaborate and clarify his evidence at the trial.  Nor is it wrong for the Presiding Officer to seek clarification or elaboration from a witness who has adopted his statement as part of his evidence at the trial.  Section 20 of the Labour Tribunal Ordinance, Cap 25 reads:

“(1) The hearing of a claim shall be conducted in an informal manner.

(2) The presiding officer may… put to a party or witness such questions as he may think fit.

(3) The presiding officer shall investigate any manners which he may consider relevant to the claim, whether or not it has been raised by a party.”

91.It is not argued that Chok was taken by surprise so that he had less than fair opportunity to challenge Chow’s evidence, including his clarification and elaboration, by way of cross examination.  Chok did cross examine Chow and make his submission that Chow was incredible and unreliable.  Only that the Presiding Officer rejected his submission after consideration.

92.Second, the Presiding Officer is criticized for failing to assess whether Chow’s independent judgment was tainted by the perversity or irrationality caused by the errors and deficiencies in the investigation process. The independent judgment is said to be tainted because in any event, Chow referred to the investigation in his consultation with the other committee members.  In my view, this is a tactful criticism, but fails in reality in view of the above discussion in respect of the matters besides the investigation report that the EOC claimed to have taken into account before the decision on the gratuity refer.  There is absent precise and certain basis for deducing the so-called tainting of the consideration on the part of the EOC.  Insofar as this is after all a matter of credibility, the Presiding Officer had this considered and her conclusion in this respect is within what the evidence permits.

93.Third, it is argued that the Presiding Officer should have questioned Chow’s understanding and interpretation of the contents of the audio recording, in the absence of further enquiry with the organizer, the media and the attendees of the forum.  I too reject this argument.  The transcribed relevant part of the content of the audio recording mentioned above refers.  Subjecting Chow’s subjective understanding and interpretation of the audio recording to an objective test, one would conclude, in my view, that the Presiding Officer’s consideration and conclusion in this respect are within what the evidence permits, and it cannot be said that any reasonable tribunal would have understood and interpreted the content of the recording materially differently from that of Chow’s.

94.Fourth, the Presiding Officer is criticized for failing to find that the failure of the EOC to provide any reasons for the decision not to grant the gratuity and an opportunity to Chok to respond to the same rendered the decision perverse and irrational.  Insofar as it was what Chok did and say at the forum that entered into the consideration,I refer to the discussion above in respect of the relevant time at which Chok was provided with an opportunity to respond after issuance of the warning notice, which specifically advised him of the potential relevance of the investigation result and warning as well as their repercussion on his entitlement to his gratuity when the term of his employment ended.  As mentioned, Chok did not appeal the warning.

95.Fifth, as to the EOC’s taking into account his attitude and approach during the investigation, Chok criticizes the Presiding Officer for placing undue weight on this factor, in view of his stance that he was under no obligation to respond in the absence of the EOC first laying specific charge against him for breach of the Code of Conduct.  I refer to the discussion above in respect of the Presiding Officer’s consideration of the circumstances and evidence available to the EOC at the relevant time.  The Presiding Officer was entitled to accept that as one of the factors within the parameters of considerations that the EOC was entitled to take into account in the course of deciding whether Chok had satisfactorily completed his employment.

96.Last, Chok criticized the Presiding Officer for failing to consider the EOC’s failure to communicate to him that his failure to co-operate in the investigation would cost him the loss of the gratuity.  This is a strange criticism.  Chok cannot be suggesting that had he been informed of the relevance of his co-operation in the investigation to the decision on his gratuity, he would have behaved differently that would have affected his entitlement to his gratuity.

Conclusion and order

97.All considered, including those specifically discussed above, I see that none of the grounds succeeds in establishing that the Presiding Officer can be said to have committed an error in law or that no reasonable tribunal would have concluded in respect of the EOC’s decision on Chok’s gratuity the way she did.

98.Accordingly, the appeal is dismissed with costs to the EOC.  In the absence of application within 14 days to vary, the costs order shall become absolute without further order.

Mr Richard Khaw SC, instructed by Chiu, Szeto & Cheng, for the claimant (appellant)

Mr Mike Lui, instructed by Lo & Lo, for the defendant (respondent)