Lau Kwan Hang v. China Overseas Building Construction Ltd and Others

HCLA 48/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 48 OF 2005

(ON APPEAL FROM LABOUR TRIBUNAL CASE NO. 700 OF 2005)

BETWEEN

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Before: Hon A Cheung J in Chambers

Date of Hearing: 9 September 2005

Date of Judgment: 9 September 2005

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J U D G M E N T

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1.Mr Tam, representing the Claimant, has said everything that could possibly be said in relation to his client’s application for leave to appeal from a judgment given by the Labour Tribunal rejecting his claim for arrears of wages.

2.The crucial dispute between the parties in the Tribunal was whether the Claimant was in fact a secret partner of the business of the 3^rd Defendant or whether he was a mere employee.  That was a question of fact.

3.The Tribunal considered the evidence before it and came to the clear conclusion that what was actually agreed between the parties was that the Claimant was to be a secret partner of the business as he was an undischarged bankrupt and could not openly own any interest in a business without complications.

4.The dispute below was different from a normal case where the arrangement between the parties was known and the only unknown matter was whether the arrangement gave rise to a relationship of employment or some other legal relationship.  As I said, the crucial issue below was: what was the true arrangement between the parties.

5.In my judgment, once the Tribunal came to a factual finding on the true arrangement between the parties, the legal relationship flowing from that arrangement was not really controversial.  The Tribunal, in my view, was clearly correct in concluding from the true arrangement as found by it that the Claimant was not an employee of the 3^rd Defendant.  That was more than sufficient to reject the Claimant’s claim for arrears of so-called wages in the Labour Tribunal, which only exercises limited jurisdiction in employment matters.

6.Mr Tam’s reliance on the rather well established tests or indicia to determine whether a person is employed by another is quite beside the point.

7.On the facts of the present case as found by the Tribunal, Mr Tam’s further suggestion that the Tribunal had failed to consider the possibility of the Claimant being merely a salaried partner of the 3^rd Defendant is also, I am afraid, beside the point.  For there can be no doubt that under the true arrangement as found by the Tribunal, the Claimant was not a salaried partner; perhaps more importantly, under that arrangement, he was not an employee.

8.As regards the Tribunal’s finding on the true arrangement between the parties, Mr Tam referred the Court to a number of matters that he said the Tribunal had made erroneous findings on because, so Mr Tam argued, those findings were inconsistent with the evidence given by his client. 

9.I am afraid that is not good enough.  Leave can only be granted if there is an error of law.  So long as the findings of the Tribunal were supported by some evidence, one cannot challenge those findings on appeal to this Court.

10.For the findings in question, quite clearly the Tribunal had evidence before it, particularly evidence coming from the side of the 3^rd Defendant, which could justify the findings.  The Tribunal, in its fact-finding role, was quite entitled to reject the Claimant’s evidence and assertions, as it did.  Based on the Tribunal’s findings, the ultimate finding by the Tribunal that the true agreement and arrangement between the parties was that the Claimant was to be a partner in the business of the 3^rd Defendant is a finding that cannot be challenged on appeal.

11.Put another way, there was simply no error of law involved.  The possibility that a different tribunal may have come to a different conclusion on a particular dispute of fact is simply not sufficient to support an application for leave to appeal.

12.As I said, Mr Tam has done his best on behalf of his client, but I am afraid this is not a case that the Court should, in accordance with the provisions in the Labour Tribunal Ordinance (Cap. 25), give leave to appeal.  What were in dispute were clearly matters of facts and evidence.  The Tribunal has made findings.  They cannot be challenged on appeal, no matter how dissatisfied the Claimant is with those findings.

13.For all those reasons, this application for leave is dismissed with no order as to costs.

Mr Gary Tam of Messrs Gary K W Tam & Co., for the Claimant