Allidem Mae G v. Kwong Si Lin
Read the full judgment text of HCMP 33/2006 on BabelCite. This High Court CFI judgment was delivered on 17 March 2006.
1. This is an application by Madam Kwong Si Lin (" the employer ") for leave to appeal to the Court of Appeal from a judgment of Deputy High Court Judge Carlson handed down on 29 December 2005 dismissing her appeal from a decision of the Labour Tribunal awarding Madam Mae G. Allidem (" the employee ") a sum of $24,518.30 as long-service payment. This is a renewed application for leave to appeal as the employer’s application on paper had been dismissed by Cheung JA on 17 January 2006.
Cited by 7 cases
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HCMP33 /2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 33 OF 2006 (ON INTENDED APPEAL FROM HCLA No.4 OF 2004 ) ______________________ BETWEEN:
Before : Hon. Yeung and Yuen JJA in Court Date of hearing : 15 March 2006 Date of Judgment : 17 March 2006 ---------------- JUDGMENT ---------------- Hon. Yuen JA (giving the judgment of the Court): 1.This is an application by Madam Kwong Si Lin ("the employer") for leave to appeal to the Court of Appeal from a judgment of Deputy High Court Judge Carlson handed down on 29 December 2005 dismissing her appeal from a decision of the Labour Tribunal awarding Madam Mae G. Allidem ("the employee") a sum of $24,518.30 as long-service payment. This is a renewed application for leave to appeal as the employer’s application on paper had been dismissed by Cheung JA on 17 January 2006. 2.Appeals from decisions of the Labour Tribunal are severely restricted by legislation. The restrictions are stricter as one goes up the appellate ladder. Appeals are circumscribed in the following ways relevant to this case:
3.In this case, the application for leave to appeal filed on 6 January 2006 sets out 2 grounds of appeal. They are as follows:
4.It is clear that neither of those grounds as so drafted can be "a question of law of general public importance". They only refer to an individual judge’s handling of a particular case. 5.However the employer has sought to show in written submissions that the intended appeal involves "a question of law of general public importance" by referring to a number of English and Hong Kong authorities. It was submitted in particular that the intended appeal involved the question of the limits and the applicability of Chak Chong-chi v Maxim’s Caterers Ltd LTA 25/1992 (unrep.). It was also suggested that there may have been confusion in the use of the term "summary dismissal" in some judgments as the term is not necessarily in conflict with termination by payment in lieu. 6.Chak was a decision of Deputy Judge Jerome Chan (later Jerome Chan J.) to the effect that if an employer considers that he has grounds for terminating an employee’s employment under s.9 Employment Ordinance ("EO") Cap. 57 but he nevertheless makes payment to the employee when terminating, the employer must expressly inform the employee at the time of termination that the payment was not payment in lieu under s.7 EO but was an ex gratia payment, if he is to avoid liability to pay long-service payment under s.31S(1) EO. I think it is fair to say that this decision has been regarded by some as controversial. 7.I also agree that it is safer not to use the term "summary dismissal" in judgments as shorthand for "termination under s.9 EO" to avoid any misunderstanding on the part of a reader. 8.However in the present case, those questions (even assuming that they are questions of law of general public importance) are not supported by the necessary findings of fact on which an appeal may be raised. If there had been a finding of fact by the Tribunal that the employee’s conduct did actually warrant termination under s.9 EO, but the employer had made payment at the time of termination without the express statement recommended in Chak, this court may have given leave to appeal so that it could consider whether the decision in Chak is correct. 9.But that is not this case. First, the Labour Tribunal found as a fact that the employer had failed to discharge her burden of proving that there were sufficient grounds for termination under s.9 (para. 26, transcript of Presiding Officer Poon’s judgment). Secondly, Deputy Judge Carlson (after reading the evidence before the Presiding Officer) also concluded that the Presiding Officer’s assessment of the evidence had not been shown to be perverse on the primary facts, nor had the Presiding Officer drawn inferences from those facts which were not reasonably open to him (para. 31, Deputy Judge Carlson’s judgment). 10.The end position is that the question of fact - whether the employee’s conduct provided sufficient grounds for termination under s.9 - had been conclusively determined against the employer. By reason of the restrictions in s.35A(1) LTO, it is not open to this court to see whether the Presiding Officer’s determination of fact was right or whether the deputy judge could have drawn some other inferences from the evidence. 11.Given those findings of fact, whether the approach in Chak is right as a question of law is purely academic. Where there is no foundation in fact for the intended appeal, the court cannot give leave as it cannot decide academic cases. This application for leave to appeal must accordingly be dismissed.
Defendant (Appellant) in person, present. |
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