Wan Hung Shu and Another v. Wong Ning

HCLA000030/1995

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

LABOUR TRIBUNAL APPEAL NO. 30 OF 1995

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Coram: The Hon. Mr. Justice Leong in Court

Date of hearing:

Date of delivery of judgment:

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J U D G M E N T

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1. This is an appeal against the decision of the Presiding Officer of the Labour Tribunal awarding against the Appellants a sum of $30,323 being monthly allowance and costs $2,000.

2. There are two Appellants who are husband and wife and they together traded in the name of Paris Wan's Company. The Respondent was their employee. He was employed as a deputy supervisor in the sizing room of the Appellants' factory since March 1986. His salary was $9,000 per months with a monthly allowance of $800 and a daily meal allowance of $10.

3. The Respondent claimed before the learned Presiding Officer that Appellants promised to give an additional monthly allowance of $3,000 since 14.7.93 for his agreement to help taking charge of the sizing room. He did so and was paid such additional allowance but not regularly. He claimed that he was paid for the month of August 93, September, 93. For November, 93, he was paid only $1,000 instead of $3,000. His repeated demands for payment were only met with the Appellant's pleas of financial difficulty.

4. The Appellant's case is that there was no promise of such additional allowance. Though the Respondent was paid on 2 occasions in sums of $2,000-$3,000 these were extra gratia payments not of a regular nature and were for the Respondent's diligence at work.

5. The Claimant produced before the learned Presiding Officer several tapes of recorded conversations and their transcript, between the Appellants and a staff of the Appellants. There was no dispute as to the authenticity of the recordings and the transcript of the conversations being correct.

6. The learning Presiding Officer noted from such conversations that the 2nd Appellant did not deny the liability to pay the allowance and her answer to the Respondent's request for payment on 18.8.94 was they did not have the money. The learned Presiding officer noted that in another conversation, the 1st Appellant also did not dispute the liability to pay and his reply to demand for payment was also there was insufficient money to pay the Respondent. In a third conversation between the Respondent and the Appellants' staff Mr. To, the Respondent asked Mr. To to speak to the 2nd Appellant about payment of the allowance and Mr. To promised to do so for him.

7. The learned Presiding Officer found that the evidence of the 1st Appellant was inconsistent with that of his wife in that the former said the money which had been given to the Respondent was bonus whereas the latter said that it was given to him for overtime work. The learned Presiding Officer also found their testimonies inconsistent with what they said in their conversations with the Respondent.

8. His conclusion was that he accepted the evidence of the Respondent and found that the Appellants did promise to give extra allowance for the Respondent's additional work as advisor in the sizing room and the Respondent did perform such additional work. He found a promise to pay and there was consideration for such payment to be made. Accordingly, he made the award to the Respondent.

9. The 1st ground of appeal is that the learned Presiding Officer erred in finding the additional allowance was given to the Respondent in return to his agreeing to help taking charge of the sizing room when Respondent said in evidence it was for full devotion to work.

10. This complaint is not justified. The finding of the Presiding Officer in his judgment is that the allowance was given to the Respondent for his additional work as advisor in the sizing room which is clearly supported by the Respondent's evidence. The fact that the Respondent mentioned in the course of his evidence that it was for full devotion to work must not be read out of context.

11. Grounds 2 to 6 complain of the learning Presiding Officer failing in his duty to investigate. It is submitted that the learning Presiding Officer should enquire into the ambit of the Respondent's work to ascertain if there was an increase of work for the additional allowance and whether or not the Respondent had performed the increased work. It is also submitted that there was no investigation as to why the Appellants in November paid partly the allowance and made no payment at all in the months before and after and the learning Presiding Officer should have investigate why there was such irregularity in the payments.

12. On the duty to investigate two cases are cited:

13. In First Fit Co Ltd and Lam Yau and Lam Wing Kan (L.T. Appeal No. 4/1990), Deputy Judge Leonard, as he then was, found the notes of proceedings and the written reasons for the award led him to the conclusion that the Presiding Officer conducted the hearing as if it were a hearing before an ordinary court of law and failed to play an inquisitorial role. He said:

" A presiding officer must enter the arena, dispense with formality and make such enquiries as will enable him to define the legal and factual issues which he needs to decide in order to do justice between the parties. He is assisted in that task but not relieved from it by the statutory procedure for inquires by the tribunal officer.

Once the issues are defined, the presiding officer is under a duty to make such enquiries as will enable him to decide those issues.... What he must not do is to sit back as an observer and leave it to the parties deprived as they are of legal representation, to conduct the proceedings on their own without giving his guidance and taking a hand, where necessary. If justice is to be done, he must act in an inquisitorial role."

14. In Chan Suk Bing Angie and Harbour Phoenix Ltd. and Wilkinson Foods (HK) Ltd (L.T. Appeal No. 46 of 1991) Deputy Judge J. Chan as he then was, in discussing the duty to investigate under s. 20 of the Labour Tribunal Ordinance, accepted that such a statutory duty is not an absolute one in the sense that the presiding officers do have a discretion in the matter and are only bound to investigate matters they may consider relevant. He also decided that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. However, he said:

"It is, however, never sufficient for the appellate court to conclude that it would have preferred to approach the matter differently, or that there is a better way to investigate. It is not open to the appellate court to prefer its own views to that of the presiding officers as to the manner of investigation. To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary person on the tram to Sau Ki Wan to conclude injustice has resulted in that a fair and proper determination of the claim cannot be attained."

15. Counsel for the Respondent submits that the learned Presiding Officer had adequately enquired into all the relevant circumstances and the matters complained of inadequate investigation. It is submitted that the Presiding Officer was entitled to decide on what part of the evidence he accepted and he was entitled to decide which part of the conversations he accepted and what weight he should give to it, all these being within his realm of finding of facts.

16. In my judgement, the learned Presiding Officer's duty under s. 20 to investigate is to ensure that facts supporting each party's case are adequately brought out before him for the purpose of determining what are the issues between the parties and his subsequent determination on these issues. Where the issues are clear or have been adequately formed as a result of investigations by Tribunal Officers and the evidence in support is clear in itself or as a result of questions put by him, the learned Presiding Officer need ask questions no further. He has discharged his duty and should proceed to decide the issues on the evidence before him.

17. The notes of proceedings show that the learned Presiding Officer had indeed performed this duty adequately and satisfactorily. He had taken upon himself to ask the Respondent what extra work he had to perform to justify his receipt of the extra allowance and from his enquiry, there was evidence to show that the Respondent was advising on work procedure and manning the sizing room together with only one other person whereas formerly 6 persons were required to do the work. The learned Presiding Officer had enquired of the two Appellants separately about the reason for the 3 cheques given to the Respondent but he rejected, as he was entitled to, the explanations given by the Appellants. The Appellants were asked about the authenticity of tape recordings and they agreed they were parties to the conversations and did not challenge the contents. The issues were clear and the evidence in support of each party's case was also clear. The learned Presiding Officer's conclusion was based on the facts as he found them. There can be no complaint against him finding in favour of the Respondent.

18. The last ground of appeal is against the learned Presiding Officer's order on costs. Complaint is made that the learned Presiding Officer did not enquire if the Respondent had incurred any costs. Counsel for the Respondent submits that costs was a matter of the Presiding Officer's discretion and the amount awarded is not excessive.

19. S. 28 of the Labour Tribunal Ordinance deals with costs as follows:

"28(1) Subject to subsection (2), the tribunal may award to a party costs and expenses, which may include-

(a) any reasonable expenses necessarily incurred any loss of salary or wages suffered by that party; and

(b) any reasonable sum paid to a witness for the expenses necessarily incurred and any loss of salary or wages suffered by him, in attending a hearing of the tribunal or in being interview by a tribunal officer.

(2) ....."

20. The matter of costs is therefore at the discretion of the learned Presiding Officer. The parties are not allowed legal representation and the costs if any, to be awarded must be for the party's own personal involvement in preparing the case, attendance at the hearing, and conducting the case himself. He has to prepared the documents himself for the interview by the Tribunal Officer. He must have suffered loss of time and expenses in coming to the tribunal and his interview with the tribunal officer, such interview being necessary in the course of investigation by the tribunal officer. The Respondent had attended the tribunal on three occasions for the purpose of this case and it goes without saying and thus no need for further enquiry, that costs were incurred in so doing. The award of $2,000 costs cannot be said to be out of proportion. There is no reason for me to disturb his award.

21. The appeal is therefore dismissed with costs to the Respondent. The Respondent's own costs is to be taxed in accordance with Legal Aid Regulations.

Representation:

M/s. Lo, Wong & Tsui for Appellant

M/s. Siao, Wen & Leung for Respondent