Lam Sik Cheung v. Kowloon-canton Railway Corporation

HCLA000014/1984

IN THE HIGH COURT OF JUSTICE

BETWEEN

________

Coram: Hon. Mantell J.

Date of Hearing: 4th July, 1984.

Date of Delivery of Decision: 4th July, 1984.

_________

DECISION

_________

1. Mr. Lam Sik Cheung seeks my leave to appeal against a decision of the Presiding Officer of the Labour Tribunal which was delivered on 5th June 1984 as a result of a hearing on 23rd May. Mr. Lam had claimed wages in lieu of notice having been dismissed from his employment with the Kowloon Canton Railway Corporation without notice on 25th November 1983. The ground upon which the defendant company claimed to be entitled to dismiss Mr. Lam without the notice to which he would otherwise have been entitled was that he had pretended to be injured during his employment as a result of which he had taken time off for treatment. Mr. Lam's case before the Tribunal was that he had indeed been injured when he twisted his ankle as he was inspecting a section of line as a result of which it was necessary for him to go to hospital. The Presiding Officer heard evidence from a fellow employee who was in Mr. Lam's company during the whole of the time covering that in which Mr. Lam says he received his injury and also from doctors who saw Mr. Lam subsequently. That evidence went to show in the estimation of the Presiding Officer that Mr. Lam was not speaking the truth. According to the fellow employee, there was no occasion when Mr. Lam suffered injury or showed the effect of it and there was medical evidence to show that in all probability he was faking or shamming when he complained of pain and injury afterwards. The claimant's evidence, of course, was to the contrary and he has given me an account today of what he says really happened. In the event, however, the Presiding Officer, having expressed himself as having had regard to all the evidence and the circumstances, found on the facts that no accident did take place in the manner described by Mr. Lam and concluded that he had invented the incident. Consequently, he held that the employer was entitled to dismiss without notice. As the Presiding Officer rightly said the question was essentially one of fact for the Tribunal. No point of law arose because it was never argued nor is it suggested before me that were it the case that Mr. Lam had invented the incident that the employer would not be entitled to dismiss for that reason.

2. As I was at pains to explain to Mr. Lam, unless the Tribunal has acted outside its jurisdiction or has erred in point of law, this court has no power to give leave to appeal. Section 32(1) of the Labour Tribunal Act reads:

"If any party is dissatisfied  with an award, order or determination by the tribunal on the grounds that the award, order or determination is -

(a) erroneous in point of law; or

(b) outside the jurisdiction of the tribunal,

......(he may) apply to the High Court for leave to appeal and the High Court may grant such leave."

Well, Mr. Lam told me that he feels very much aggrieved by the decision of the Labour Tribunal, so there is no doubt that he is dissatisfied with the award or determination, but not on the ground that the award or determination was erroneous in point of law. It is said that the Tribunal came to a wrong conclusion on the facts and that is riot sufficient for me to grant leave. The application is dismissed.

Representation:

Applicant - in person - present.