Lee Yih Jen v. Chung Newspapers Ltd

HCA002465/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Liu J.

Date: 19th October, 1983.

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RULING

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1. The plaintiff's claim arose from a contract of employment. In essence, the nature of the plaintiff's claim against the defendant may be divided broadly into four categories. First, a claim for loss of salary at $4,600 per month. Secondly, a claim for loss of accommodation in a location to be selected by the employer as stipulated for in clauses 6(b) of the said contract of employment. Thirdly, loss of a return passage from Hong Kong, to the United States of America, and fourthly, loss of an opportunity to liaise with and hopefully establish a reputation among the groups enumerated in paragraph 5 of the Statement of Claim.

2. It has been conceded that the first head and the third head of the plaintiff's claim fall, in each case, fairly and squarely within the definition of "a claim for a sum of money" as specified in the schedule to the Labour Tribunal Ordinance. Hence, those two items of claim are admittedly, in the words of section 7(2) of the Labour Tribunal Ordinance, not actionable in the High Court. What remains to be in dispute between the parties to this action is the rest of the plaintiff's claim, namely, the not so readily quantifiable loss of accommodation and loss of an opportunity to amass goodwill from the possible acquisition of a professional reputation.

3. At the inception of these proceedings, counsel for the defendant raised an objection to the court's jurisdiction to entertain these two remaining heads of claim against the defendant. Counsel referred to an article of Mr. Rear on the Labour Tribunal Ordinance. ⁽¹⁾   In particular, counsel craved in aid the passages appearing at pages 328 and 329 thereof. Mr. Rear expressed no concluded view on the subject but sought to derive support from some aspects of the Ordinance for his contention that fringe benefits such as "the value of accommodation, education, food, fuel, light, medical care or water" were truly proper issues for a Labour Tribunal.  If indeed the value of any of these fringe benefits can be predetermined, there seems to be no conceivable reason why any of these quantified amounts cannot be formulated as "a claim for a sum of money" for that tribunal. I do not find myself as impressed by author's rationale.

4. However, counsel for the defendant embraced Mr. Rear's analysis and submitted that the decision of the learned chief Justice in the National Ebauch Ltd. v. Rishi Kaumar Bhathagar, ⁽²⁾ was erroneous. There, it was held that a claim for unliquidated damages fell outside the ambit of "a claim for a sum of money" as envisaged by the schedule to the Labour Tribunal Ordinance.

5. It is well settled that no departure from a decision of a court of equal jurisdiction can be justified unless it is evident that the previous decision is clearly wrong. Good sense as well as sound practice dictate that re-ventilation of the same focal point should be left to a higher tribunal. There seems to be a need for reproducing paragraph 580 at page 301 of Volume 26 Halsbury's Laws of England 4th edition:

"580. Decisions of co-ordinate courts. There is no statute or common law rule by which one court is bound to abide by the decision of another court of co-ordinate jurisdiction. Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has, been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision; and the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. Where there are conflicting decisions of courts of co-ordinate jurisdiction the later decision is to be preferred if reached after full consideration of earlier decisions."

6. Not only am I unable to question the conclusion of the learned Chief Justice in the National Ebauch case as being clearly incorrect, but for the reasons I am about to give, I am driven to lend it my support.

7. It must not be overlooked that the Labour Tribunal was constituted, as in the words of its title, "to establish a tribunal having limited civil jurisdiction". It is reasonably obvious on perusing the provisions of the Labour Tribunal Ordinance that presiding officers are riot to be troubled by any intricate and subtle issues.

8. Section 7(1) of the Labour Tribunal Ordinance limits the tribunal's exclusive jurisdiction to the claims set out in its schedule. The word "claim" is itself defined in section 2 of the Ordinance as meaning "a proceeding before the tribunal between a claimant and a defendant". The schedule to the Labour Tribunal Ordinance by its paragraph 1 restricts the tribunal's jurisdiction to "a claim for a sum of money" which, in its ordinary and natural sense, means a proceeding before the tribunal for a particular fixed sum and not for money in any amount to be subsequently assessed. It refers to "a sum of money" - a known amount of debt.The claim for such a fixed sum may or may not be successfully or wholly substantiated for an award to be made. Paragraph 1, schedule 1 does not seem to include a claim for any amount of money, the precise quantum of which is to be determined in the future.

9. Confining myself to the conclusion of the learned Chief Justice in National Ebauch, as at present advised, I can find no justification for not following it. In the circumstances, I would feel constrained to and do reject Mr. Tang's submission on the remaining two heads of the plaintiff's claim.

10. The ruling of this court is, therefore, that the 1st and 3rd heads of the plaintiff's claim are not justiciable in the High Court whilst items 2 and 4 falling outside the confines of paragraph 1 of the schedule to the Labour Tribunal Ordinance are so actionable.

11. Apart from the legal aspect of the instant case, speaking entirely from the practical side, this ruling will not bring about any real duplication in the proceedings before the two different venues. In the adjudication of items 2 and 4 of the plaintiff's claim, this court must necessarily seize upon the allegation of wrongful dismissal, and a factual finding thereon will assist the parties here in their endeavours to resolve their disagreement, either out of court or ultimately before the Labour Tribunal.

(1) (1972) H.K.L.J. 325

(2) [1981] H.K.L.R. p.114

Representation:

Mr. Alfred Fang instructed by Messrs. C.Y. Kwan for the Plaintiff.

Mr. Ronald Tang instructed by Messrs. Clayton Wong & Co. for the Defendant.