Re Pemas Co. Ltd.

HCMP001911/1994

1994, No. MP 1911

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of hearing: 18 November 1994

Date of delivery of judgment: 18 November 1994

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J U D G M E N T

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1. The Applicant seeks to judicially review the decision of Y.W. Yung, Esq., a Presiding Officer of the Labour Tribunal dated the 7th July 1994 dismissing an application to set aside an award made earlier against the Applicant.

2. Ms. Yeung, the Managing Director, sets out the relevant facts in an affidavit sworn on the 12th July 1994. In all important respects the facts are not disputed.

3. Two employees of the Applicant lodged claims against it in the Tribunal. The first employee's claim was for $35,133.18 and the second was for $75,743.53.

4. In accordance with the usual practice under s. 14, the employees' claims were submitted to the Applicant and it would appear that it did not respond in any way.

5. A hearing was fixed for the 25th May.

6. Ms. Yeung accepts that the Company's representative, Mr. Wan, arrived late for the hearing. According to the record of proceedings, Mr. Wan did not arrive until 1 hour 45 minutes after the time fixed for the commencement of the proceedings. The explanation he gave for being late was that he had only been informed of the hearing at 9:00 a.m. on the morning in question. Also he is recorded as advising the Tribunal that he had no background knowledge of the case.

7. Prior to the arrival of Mr. Wan, the employees had been put to formal proof of their claims. They opposed the application made by Mr. Wan for the whole matter to be adjourned.

8. Mr. Yung made a conditional award that the amounts claimed should be payable but that no payment out was to be made until the 2nd June. Two conditions were imposed upon the Applicant. The first was that the amount claimed should be paid into the Tribunal and the 2nd was that they must file a Defence by that date. If the conditions were complied with the award would in effect be set aside.

9. Neither condition was complied with.

10. On the 3rd June, Ms. Yeung wrote to the Tribunal in this form.

"Our ref : 5042/94/LT

3rd June 1994

To The Labour Tribunal of H.K. Eastern Law Courts Building 8th Floor, 29 Tai On Street Sai Wan Ho, Hong Kong

Dear Sir,

RE CLAIM NO. E1216	CI : CHOI NGAR ON
	CI : SIN SHEUNG CHING

With regards to the award of the above case we would like to state here below my situation :-

When we received the above claim, I already have a travelling schedule to U.S.A. & Canada so I have asked my secretary to contact the Labour Tribunal to rearrange the date of the hearing, when I come back from Canada I have to go to Shanghai for business too, so I have signed a letter and ask my staff to send to the court to extend the date of the hearing in some other dates.

Unfortunately, after our former - Accountant resigned, we could not get new personal to replace the vacant, so that is why I thought that I am the only one can handle the case.

When I first arrive on 1st June 1994 late afternoon I received your award at just next day when I come back to the office which stated that we have to pay into court the sum of HK$110,867.71 on or before 4:00 PM 2.6.1994.

On this case, I could not obtain the said amount to pay into the court, the only things 1 could do is to rush the Labour Tribunal to submit the Form 13 for review and appeal against the award.

For the 2 case I would like to insert my statement as follows :-

C1 -MR CHOI NGAR ON - should be encountered for amount HK$7,283 (see document attached) The reason that we did not pay i.e. the address he gave us is incorrect and also we have received the Inland Revenue of the notice for Recovery of Tax, then we need to find out as the name is differ with record, so we could not proceed any further to submit the cheque to him.

C2 -MR SIN SHEUNG CHING - please see attached the claim he asked is also not the true, we can submit here the outstanding payment, and the commission he should encountered, as we do not have accountant at the moment, everything was calculated by my assistant and needed to be approved by our part time accountant, so we promised that we will settle after approved. But we received his claim from Labour Tribunal at the same time. (Please see attached).

Picture about the case and we are writing to request that you can give us the chance that you can review the case, we hope that from the above, you can have a brief.

Yours sincerely,

PEMAS COMPANY LIMITED

Josephine Yeung

Managing Director

Encl."

11. Although this letter did not condescend to particularise the Defence which it was intended to advance to the claims being made Mr. Yung did agree to review the Decision. A hearing was fixed for the 27th June.

12. In her affidavit, Ms. Yeung stated that she had to go on another overseas business trip and could not personally attend this hearing. She gave instructions to her secretary, Mr. Mak, to attend to the matter. She said that contrary to complying with her directions, Ms. Mak had endeavoured to obtain an adjournment of the hearing. She wrote to the Tribunal seeking this and as no reply was forthcoming, she had attended before the Tribunal on the 27th.

13. It would appear from a perusal of the record that her application was refused and Mr. Yung ordered that the previous award should stand. It also appears that Ms. Mak was unable to give any explanation as to why the conditions imposed in the previous order had not been complied with.

14. On the 5th July, Ms. Yeung wrote a letter to the Tribunal as follows :

"The Labour Tribunal of Hongkong
Eastern Law Courts Building
8th floor, 29 Tai On Street Sai Wan Ho,
Hongkong	July 5,1994

Sir,

Re The Claim No. F1216 of 1994 The District Court of Hongkong D.C.M.P. No. 652 of 1994

As we are now applying to set aside the said Award/Order dated June 27th, 1994 in accordance with section of 21A for my absence at the hearing, we are writing a letter to request you can state the order for the Writ of Action No.DCM No. 652/94

Yours faithfully,

PEMAS COMPANY LIMITED

JOSEPHINE YEUNG

MANAGING DIRECTOR"

She wrote another letter on the 6th July.

"6th July 1994

The Labour Tribunal,
Eastern Law Courts,
8th Floor,
29 Tai On Street,
Sai Wan Ho,
Hong Kong.

Dear Sirs,

Re: Labour Tribunal No. E1216/94

We, the undersigned, being the Defendant in the above claim have taken out an application for leave to set aside the Award/Order made in the absence of our representative on 27th June 1994.

We write further to our letter dated 5th July 1994.

We crave leave of this Honourable Tribunal to refer to the Form 19 filed on 5th July 1994.

We verily believe that we have had reasonable explanations for the absence of our representative at the hearing for review held on 27th June 1994.

Further, we also verily believe that we have had plausible and strong defence to both Claimants' claims herein with cogent evidence. In this regard, may we refer this Honourable Tribunal to the letter of 3rd June 1994 and the accounts attached thereto.

In the premises, we humbly and respectfully pray that an Order on an urgent basis be made by this Honourable Tribunal that pending the determination of our application under form 19, execution on the Award/Order made on 27th June 1994 be stayed unconditionally or on such terms as this Honourable Tribunal may impose. We are prepared to pay into the Tribunal a sum of HK$6,054.00 for Choi Ngar On, the 1st Claimant, and HK$45,239.30 for Sin Sheung Ching, the 2nd Claimant.

Yours faithfully,

Pemas Company Limited

(Josephine Yeung)

Managing Director"

15. On the 7th July, the Registrar of the Tribunal wrote to the Applicant :

"LABOUR TRIBUNAL

8th Floor, Eastern Law Courts Building, 29 Tai On Street, Hong Kong. Enquiry Telephone : 8866789

Eastern Labour Tribunal Claim No. 1216/94 First Page

Dear Sirs,

Your Company applied on the 5th day of this month to the Labour Tribunal to set aside an award/order and to stay the execution of the writ of fieri facias. The documents had been immediately presented to Mr. Yung, the Presiding Officer of this case for his approval. Now, humbly pursuant to his indications, I reply as follows :

'Application, application for review is dismissed.'

16. It is this decision which is the subject of this Judicial Review.

17. The grounds upon which relief is sought are :

"1. The Applicant was not afforded an opportunity to be heard under s.21A, Labour Tribunal Ordinance, Cap. 25;

2. The learned Presiding Officer erred in law in treating the Applicant's application under s.21A to set aside order made in the absence of defendant, as an application for review under s.31, Labour Tribunal Ordinance, Cap. 25, and he dismissed the Applicant's application on a wrong basis;

3. The learned Presiding Officer failed to consider and/or to take into account relevant considerations as to whether the Labour Tribunal may exercise its discretion to allow extension of time for an application under s.21A; and

4. That the decision of the learned Presiding Officer was so unreasonable and in breach of the rule of natural justice that no reasonable tribunal in like circumstance could have come to."

18. In general terms, the complaint seems to suggest that the Applicant may have been prejudiced as a result of there being confusion over whether the Decision complained of was an application to set aside an order made or was a Review of a Decision.

19. S.21A of the Ordinance which deals with setting aside orders reads,

"21A. Setting aside award or order made in absence of defendant

(1) Any award or order made by the tribunal under section 21 in the absence of a defendant at a hearing may be set aside by the tribunal, on the application of the defendant, on such terms as it thinks just.

(2) An application under subsection (1) shall be made within 7 days after the hearing or such further period as the tribunal may allow."

20. S.31 which governs powers of Review is in this form.

"31. Review of awards and orders

(1) Except where a party has filed an application for leave to appeal and does not agree to withdraw the application, a presiding officer may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re- open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(2) The power conferred by subsection (1) may be exercised -

(a) by a presiding officer of his own motion, on notice in the prescribed form to all parties;

(b) on the application of a party within 7 days, on notice in the prescribed form to all other parties.

(3) The exercise of the power conferred by subsection (1) shall not operate as a bar to appeal by a party against the award or order or thereafter against the determination of the review.

(4) On the application of a party for a review of an award or order, the presiding officer, having regard to the possibility of assets which may be available to satisfy an award being disposed of to the prejudice of any part, may make such order regarding payment into the tribunal, giving of security or otherwise as he may think fit.

(5) A presiding officer may transfer the hearing and consideration of a review to another presiding officer who shall have all the powers and functions which he would have if he had originally heard the claim and had prepared the record of proceedings."

21. What needs to be borne in mind is the essentially informal nature of proceedings before the Labour Tribunal. It is inappropriate for a Presiding Officer to concern himself or herself with nice procedural points. What is required is for the Presiding Officer to take an overall view of the proceedings which are before him and while ensuring that the provisions of the legislation and the Rules of natural justice are adhered to adjudicate on the issues in a common sense manner.

22. Macpherson J. had this to say on p. 367 of R. v. Monopolies Commission [1987] 1 All ER 463.

" Counsel for Matthew Brown says that his clients did not have 'a fair crack of the whip', adopting Lord Russell's phrase used in Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 2 All ER 865 at 874, [1976] 1 WLR 1255 at 1266.

I have considered and taken into account all the points that have emerged from those cases. But it is important when considering the principles there set out to mark the submission of counsel for the commission that the concept of fairness is flexible and should never force the court to lay down over-rigid rules or steps which have to be followed as a matter of course, particularly in an investigation of this kind. As Lord Reid said in Wiseman v. Borneman [1969] 3 All ER 275 at 277-278, [1971] AC 297 at 308 :

'Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules ... Even where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him.'

Lord Morris, in the same case, said ([1969] 3 All ER 275 at 278, [1971] AC 297 at 308-309) :

'We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them ... The principles and procedures are to be applied which, in any particular set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action".'

23. The question, as Lord Morris posed it later, is -

'whether in the particular circumstances of a case, a tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded?'

Counsel for Scottish and Newcastle, in his turn, referred me to Hoffman-La Roche & Co. AG v. Secretary of State for Trade and Industry [1974] 2 All ER 1128, [1975] AC 295. Lord Diplock stressed, as does counsel for Scottish and Newcastle, that the Monopolies Commission does not adjudicate on a lis between contending parties. Lord Diplock went on to say ([1974] 2 All ER 1128 at 1156, [1975] AC 295 at 368) :

'The adversary procedure followed in a court of law is not appropriate to its [the commission's] investigations. It has a wide discretion as to how they should be conducted. Nevertheless I would accept that it is the duty of the commissioners to observe the rules of natural justice in the course of their investigation - which means no more than that they must act fairly by giving to the person whose activities are being investigated a reasonable opportunity to put forward facts and arguments in justification of his conduct of these activities before they reach a conclusion which may affect him adversely.'

Similar principles are set out in Re Perrgamon Press Ltd. [1970] 3 All ER 535, [1971] Ch 388 where both Lord Denning MR and Sachs LJ stressed that 'fair play in action' must be applied with real flexibility. Sachs LJ said ([1970] 3 All ER 535 at 542, [1971] Ch 388 at 403) :

'In each case careful regard must be had to the scope of the proceeding, the source of its jurisdiction ... the way in which it normally falls to be conducted and its objective.'"

24. I have attempted to set out the facts of this case in a non-controversial manner. What is very clear is that the Applicant has had "a fair crack at the whip". At no time has the Applicant formulated a coherent Defence to the claims being made by the former employees.

25. The representatives who did appear before the Tribunal were not sufficiently briefed to enable them to present meaningful submissions to the Tribunal so that the relevant issues could be adequately ventilated.

26. Also no attempt was made by the Applicant to comply with the conditions which were imposed in the Initial Award made on the 25th May or to explain why it was not feasible to do so. It could fairly be said that execution could have been levied against the Applicant as a result of this non-compliance at any time after the 2nd June.

27. Having regard to the informal nature of the proceedings it is unrealistic to attempt to draw any sharp distinctions between the matters considered by a Presiding Officer when they hear applications to set aside an award and when they are hearing a Review. In each case they give consideration to the question as to whether an Award can be permitted to stand.

28. It was right for Mr. Yung to have regard to all of the material which was before him when he made the decision he did. I do not think that he could be fairly criticised for reaching the conclusion that the Applicant had had an ample opportunity to put forward their case and that no satisfactory explanation had been forthcoming to excuse what in fact had amounted to a non-appearance at the initial hearing and an inability of Ms. Mak to present some reason for the non-compliance with the conditions imposed in the initial award.

29. Certainly there is no justification to enable me to conclude that Mr. Yung's decision was Wednesbury unreasonable.

30. For the reasons I have given I dismiss this application. I will hear the parties on costs.

Representation:

Mr. Edward Chow (Chow, Griffiths & Chan) for the Applicant.

Mr. Peter Davies, S.C.C. (Attorney General's Chambers) for the Presiding Officer.