Alvarez, Jo-anne C. v. Ng Ah Ying

HCSA000018/1999

HCSA 18 of 1999

HEADNOTE

Appeal - Grounds of Appeal - Small Claims Tribunal - Section 28, Small Claims Tribunal Ordinance, Cap. 338.

An applicant sought leave to appeal against the decision of the Small Claims Tribunal on the grounds: - "(1) Employers liability on their delayed payment and (2) Remedies for Employment Protection B and C."

HELD: (1) Since section 28 of the Small Claims Tribunal Ordinance, Cap. 338 permits appeal on question of law or jurisdiction, an appellant must pose specific questions for consideration by the appellate court;

(2) On the true interpretation of section 28(1), appeal does not lie as of right when specific questions of law are posed. The Court of First Instance grants leave to appeal only if it thinks fit. Leave may be refused if the questions of law posed are, for examples, invalid, frivolous, unreal or academic;

(3) In the circumstances of this case, the decision of the Small Claims Tribunal is premised uniquely on findings of facts, no precise question of law has been posed by the applicant, all known legal principles applicable to the case are well settled, therefore leave to appeal refused.

HCSA 18/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 18 OF 1999

(On Appeal from Small Claims Tribunal Claim No. SCTC 30880 of 1999)

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Coram : Deputy Judge Li in Chambers

Date of Hearing : 1 November 1999

Date of Handing Down Judgment : 4 November 1999

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J U D G M E N T

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The applicant is a domestic helper employed by the defendant. It is common ground that she was dismissed on 21st December 1998. On that day, the claimant admitted, the defendant offered $7,600.00 to settle all that were due to her under contract and statute but she refused. The claimant took her former employer to the Labour Tribunal ("the first claim"). On 15th July 1999, the Labour Tribunal awarded a total of $7,414.50 to the claimant for all her entitlements as at the date of dismissal. Needless to say, the claimant would have been better off to accept the defendant's offer in December 1998.

2.Having obtained the award of the Labour Tribunal on the first claim, the Claimant took her former employer to the Small Claims Tribunal. This time, her claim ("the second claim") is for living expenses incurred by her for the time after her dismissal to the time of the award by the Labour Tribunal, the ground being that she was forced to stay in Hong Kong to attend to the Labour Tribunal proceedings.

3.The learned Deputy Adjudicator rejected the second claim. She found that the living expenses incurred by the claimant for attending to the first claim was a result of the claimant refusing to accept the defendant's offer. The learned Deputy Adjudicator also found that the claimant deliberately refused to accept the offer because she wanted an excuse to prolong her stay in Hong Kong to look for employment. These are, of course, findings of facts which I have no reason or power to disturb.

4.It is well settled law that a party is not entitled to consequential losses such as legal costs incurred after adequate offer for settlement has been made by the party liable. Based on the same reasoning, the learned Deputy Adjudicator dismissed the second claim for living expenses. I cannot see any room for argument over the principle relied upon by the learned Deputy Adjudicator. In any event, the decision of the Small Claims Tribunal is premised uniquely on incontrovertible findings of facts.

5.The claimant's grounds for appeal are, and I quote verbatim: -

(1) employers liability on the delayed payment and

(2) remedies for employment protection B and C.

Some judges may find that such statements of grounds raise questions of law. Others may say they are too vague. I am inclined to the latter view. At the hearing of application for leave to appeal, the applicant said that she can call a policeman to prove that the former employer did not make the offer for settlement in December 1998. This is really trying to have a second bite at the cherry. The applicant has had two opportunities to introduce such evidence. There is no reason now to allow her to do so.

6.Section 28(1) of the Small Claims Tribunal Ordinance, Cap. 338 provides that: -

(1) Any party who is aggrieved by a decision of the tribunal -

(a) on the ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.

I should think not only the wording of this subsection requires an applicant for leave to appeal to formulate specific questions of law or jurisdiction for consideration by the appellate court, fairness mandates such requirement so that the opposing party may in due course be informed of the issues it has to contend in the appeal. Here the applicant has not met the requirement.

7.Parties some times think that an appeal under Section 28(1) lies as of right if a question on law or jurisdiction can be posed. Such view, I hold, is wrong. In every case, leave to appeal is granted only if the Court of First Instance thinks fit. The Court of First Instance would not think that a matter is fit for appeal if, for examples, the question of law or jurisdiction posed is invalid, frivolous or unreal. Even if a question does raise a serious point of law for debate, where the decision to be appealed against is premised on incontrovertible findings of facts which render the debate of academic interest only, leave to appeal may be refused. After all, appellate courts in common law jurisdictions do not as a rule consider hypothetical problems.

8.In the instant case, the claimant lost on findings of facts. There is no real arguable point of law suggested in the grounds of appeal. The only legal principles applicable to the case are well settled. This is not a case fit for appeal. Leave is refused.

Representation:

Applicant in person.