Wong Chi Yung v. Antech System Incorporated Ltd

[English Translation – 英譯本]

HCLA 108/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 108 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 9184 OF 2000)

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Before: Hon Cheung J in Court

Date of Hearing: 15 April 2003

Date of Judgment: 5 May 2003

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JUDGMENT

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1.The Claimant had been in the employ of the Defendant since 1995. She was summarily dismissed by the Defendant on 31 October 2000, following which she instituted proceedings in the Labour Tribunal against the Defendant, claiming payment in lieu of notice, annual leave pay, and severance payment or long service payment. The issue before the Tribunal was whether the Defendant was entitled under section 9 of the Employment Ordinance (Cap. 57 of the Laws of Hong Kong) to terminate the employment contract with the Claimant without notice or payment in lieu of notice.

2.Two main reasons were given by the Defendant in support of the summary dismissal. First, there had allegedly been misconduct or acts of dishonesty on the part of the Claimant in handling the Company’s accounts and petty cash. The misconduct or acts complained of included: making false reports on the number of coins used; unlawfully appropriating petty cash; altering lunch receipts of staff members; without approval, falsely claiming and taking exaggerated amounts of petty cash; filling out payment vouchers for lunch expenses which were not supported by receipts and then deducting such amounts directly from petty cash; failing to use the petty cash box; failing to immediately reimburse staff members for their meal expenses and miscellaneous expenses; over a long period of time, misappropriating the Company’s petty cash for personal use, thereby rendering the petty cash system perfunctory; deducting meal expenses in the absence of all receipts for such expenses; falsely claiming parking meter expenses; claiming and collecting interest on security money for government projects, etc. The second reason was that, upon discovery by the Company of the above acts, the Claimant became emotional at the office and performed acts of harassment and trouble-making from time to time, thereby seriously impacting the work environment at the Company. Despite repeated warnings being issued to the Claimant, the situation worsened rather then improved, and many of the Claimant’s co-workers joined forces in complaining to the person-in-charge about her. In the end, the Defendant was left with no alternative but to dismiss the Claimant summarily.

3.The Claimant denied having appropriated the Company’s money for her own use and claimed that any mistake in respect of the Company’s accounts and the actual amounts of money had been inadvertently committed, and that she had returned all shortfalls to the Company; furthermore, the petty cash box was no longer used pursuant to consent by the Company. The Claimant also denied having become emotional at the office and disrupted the normal operation of the Company by performing acts of harassment and trouble-making. The Claimant claimed that there was no reason whatsoever for summarily dismissing her as the Company did.

4.The Claimant’s action was heard by a Presiding Officer of the Labour Tribunal on 19 August 2002. In respect of the Defendant’s first complaint (see above), the Presiding Officer accepted the Claimant’s explanations. As regards the Defendant’s second complaint, the Presiding Officer took the view that the complaint was generalized and liable to be exaggerated and, whether viewed on its own or together with the Defendant’s other complaint, could not constitute a ground for summary dismissal. The Presiding Officer ruled in favour of the Claimant and allowed her claims for the various specified sums.

5.The Defendant applied to this Court for leave to appeal against the above ruling. Having considered the application, I granted leave to appeal on the following questions:

(1)     Whether the Presiding Officer thoroughly investigated and made findings of fact on the Defendant’s complaints against the Claimant in respect of the mixing up of the Company’s petty cash account with her personal account, the payment and receipt of her meal allowances and the alterations of receipts without authority;

(2)     Whether the Presiding Officer made a correct finding on the question of whether, viewed on its own or together with the complaint stated below (if genuine), the Defendant’s above complaint against the Complainant was, if established, sufficiently serious to constitute a ground for summarily dismissing the Complainant;

(3)     Whether the Presiding Officer thoroughly investigated and made findings of fact on the Defendant’s complaint that the Claimant behaved strangely at work;

(4)     Whether the Presiding Officer made a correct finding on the question of whether, viewed on its own or together with the above complaint (if genuine), the Defendant’s above complaint against the Complainant was, if established, sufficiently serious to constitute a ground for summarily dismissing the Complainant.

6.Having obtained leave to appeal and pursuant to the relevant order made by me, the Defendant obtained a transcript of the proceedings before the Labour Tribunal.

7.As part of the preparation for the appeal hearing, I read the relevant transcript of the proceedings, upon which I noticed that the proceedings might be tainted with a problem. At the appeal hearing, I explained to the parties the procedural problem that I noticed. The parties would of course not have noticed any such problem as neither of them had been legally represented ever since the proceedings commenced. After hearing the parties’ submissions, I exercised my power and amended the Grounds of Appeal by adding the following two grounds (see Order 55 Rule 6(3) of the Rules of the High Court (Cap. 4 of the Laws of Hong Kong)):

(5)     During the hearing, the Tribunal failed to provide neither party with adequate and appropriate opportunities to cross-examine witnesses for the other party.

(6)     During the hearing, the Tribunal erroneously obstructed each party from cross-examining witnesses for the other party on factual disputes unsupported by objective witness evidence or documentary evidence, and/or erroneously directed each party not to conduct cross-examination on such disputes.

8.I now deal in turn with the stated grounds of appeal.

9.In respect of the Defendant’s argument that the Presiding Officer failed to thoroughly investigate and make findings of fact on the first reason relied on by the Defendant in summarily dismissing the Claimant, I agree that a Presiding Officer in the course of hearing is under a duty to investigate. I also agree that, in determining the case, the Presiding Officer in the present case merely made findings on issues such as the mishandling by the Claimant of meal allowances and did not address the Defendant’s complaints in other relevant respects.

10.Nevertheless, it is clear from the transcript of proceedings that the Presiding Officer repeatedly asked the Defendant’s representatives whether the grounds they relied on were confined to issues over meal allowances and the Claimant’s behaviour at work, and they replied in the affirmative. Pages 22T to 23G of the transcript records the following exchanges between the Presiding Officer and the second representative of the Defendant (R2):

Judge:   That is, strictly speaking, you are only relying on two grounds, the first relating to the meal allowances and the second relating to [the Claimant’s] behaviour at the office after her conduct was discovered by Ms Yip.

R2:       Yes.

Judge:   Are these the two grounds?

R2:       That is, the petty cash and the staff members’ meals, and she took away the money for her own use. These two grounds. Sir, this was an act of dishonesty. The other one is disrespectful conduct, that is, she performed unnecessary acts of harassment at the office and harassed and endangered others. And she did these not only once but repeatedly. To put it in a harsh way, she seemed to be striving to be ‘sacked’, it’s like this, you did this and that, [we] ** you, but she didn’t listen …

Judge:   Mainly these two?

R2:       Yes.

Judge:   Because you stop after you talk about everything, and don’t add another thing afterwards.

R2:       I won’t, I won’t.

Judge:   It’s these two matters, right?

R2:       Yes, correct.

11.Judging from this particular ground of appeal alone, I see nothing improper in the Presiding Officer not investigating the Defendant’s other complaints concerning the handling of money. As regards the Presiding Officer’s ruling on the meal allowances, it was supported by evidence and, apart from the abovementioned newly added ground of appeal, did not involve any error of law. It was a finding of fact which I am not entitled to overturn when dealing with the present appeal: see section 35(2)(i) of the Labour Tribunal Ordinance (Cap. 25 of the Laws of Hong Kong). The ground of appeal in this respect cannot be sustained.

12.Turning to the Defendant’s appeal on the second reason for summarily dismissing the Claimant, the Presiding Officer had, as pointed out above, taken the view that the Defendant’s allegation was generalized and liable to be exaggerated and could not constitute a ground for summary dismissal. In my view, this ground of appeal has to be considered together with the two newly added grounds of appeal.

13.The two newly added grounds of appeal came into existence after the transcript of proceedings was read. The Presiding Officer had obviously adopted an unorthodox procedure at the hearing. The transcript of proceedings shows that, at the hearing, having discussed the facts with both parties and narrowed the extent of the dispute between them, the Presiding Officer directed the Claimant and the Defendant’s two representatives to take oaths and then reminded them to tell the truth because whatever they said at the hearing before the Tribunal would form part of the evidence. Page 7L-R of the transcript records the following explanation given by the Presiding Officer to the parties regarding the procedure that he was adopting:

Judge: Let me also explain the procedure first. As you know, witnesses usually go in the witness box and give evidence on oath and may be cross-examined. However, this being the Labour Tribunal, many matters are informal. Everything is to be done expeditiously rather than being dragged on for a long time. But as I work at this Tribunal and deal with the present case, my objective is to try whenever possible to give all of you an opportunity to say everything you want to say, and I have to ensure where possible that you are able to express all such matters that I am supposed to know.

As regards formality, if you consider it necessary to cross-examine someone on what he says in order to bring out the truth, then you can tell me and I will let you do so. But it will be a sheer waste of time to conduct cross-examination which in effect means you are alleging something against him and he denies it. The court will in the end adjudge upon the parties’ allegations. In a moment, when you are making final submissions, you will have an opportunity to explain ‘This and that is impossible because of this and that.’ Those things you can tell me later. Understand? That is, if you have a request, you can tell me so that I can consider it. I have asked all your three main witnesses – the participants – to take oaths. In other words, all these documents and everything you tell me will have to be true and correct.

14.Having explained the above procedure, the Presiding Officer continued to hear the facts and evidence submitted by both parties. As the Presiding Officer was of the view that the Defendant bore the burden of proof, he began by putting a series of questions to the Defendant’s two representatives. After making inquiries of the Defendant’s two representatives, the Presiding Officer asked one of the witnesses for the Defendant to take an oath, after which the Presiding Officer made inquiries of that witness. It should be noted that, after making inquiries of the Defendant’s two representatives and the above witness, the Presiding Officer did not invite the Claimant to cross-examine them. Furthermore, the Presiding Officer’s inquiries were not merely directed at a particular representative or witness; rather, the Presiding Officer made inquiries of all those present from time to time in light of the subject-matter involved.

15.Having made inquiries of the Defendant’s representatives and witness, the Presiding Officer made inquiries of the Claimant. In the course of this, the Presiding Officer would, if necessary, ask questions of the Defendant’s representatives and then return to his inquiries of the Claimant.

16.However, it is equally worth noting that, after making inquiries of the Claimant, the Presiding Officer did not invite the Defendant to cross-examine her. He merely said the following to the Defendant’s representatives (page 41L of the transcript):

Judge:   OK, is there any other thing that Ms Wong [the Claimant] has said to which you would like to respond? Or is there something which you would like to explain? Please raise any such matter now as we are running out of time.

Upon hearing this question, one of the Defendant’s representatives responded by refuting certain evidence previously adduced by the Claimant, following which the Presiding Officer turned to make some further inquiries of the Claimant. After the whole process came to a conclusion, the Presiding Officer had this to say to the parties (page 44J-L of the transcript):

Judge:   Would both parties like to say anything further about the documents in the present case, what you have said today or the facts of the case? You need not put forward your arguments until you make final submissions, we are merely talking about the facts of the case. Ms Wong, have you finished saying everything you want to say?

17.Finally, having put certain additional questions to the Claimant, the Presiding Officer invited both parties to make final submissions. After the final submissions were made, the Presiding Officer retired to consider the case and subsequently delivered his ruling. Throughout, the Defendant had not cross-examined the Claimant at all.

18.Section 20 of the Labour Tribunal Ordinance provides as follows:

(1)     The hearing of a claim shall be conducted in an informal manner.

(2)     The presiding officer may subpoena witnesses, order the production of any document, record, book of account or other exhibit and put to a party or witness such questions as he may think fit.

(3)     The presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party.

19.It is also clear from case law that the Labour Tribunal is both empowered and obliged to investigate the matters in dispute between the parties; and plainly the Labour Tribunal was established with a view to providing a convenient and expeditious way to determine disputes between employers and employees. Accordingly, the informality of hearings before the Tribunal is beyond criticism and indeed entirely appropriate. Furthermore, given the heavy workload of the Tribunal and the large number of cases that it has to deal with, it is entirely proper, where a case so warrants, for a Presiding Officer to modify the procedure of hearing and take up a more active role than that of an ordinary court.

20.This, however, does not mean that the procedure of hearing before the Tribunal is not subject to any rule or regulation whatsoever. On the facts of the present case, there were factual disputes between the parties which could never be resolved without a hearing. Needless to say, the standard by which a presiding officer is to make his ruling will be the standard ordinarily used in civil proceedings. The cross-examination of witnesses is a crucial part of the hearing by which factual disputes are to be determined. The right to cross-examine witnesses is also a fundamental right of the parties which cannot easily be displaced. In particular, while a presiding officer plays the role of an active investigator, he is also the adjudicator of the disputes between the parties and, as such, must maintain his impartiality. In questioning witnesses of his own accord, the presiding officer is not acting as counsel or cross-examiner for the other party to the case. In other words, the questioning of witnesses by the presiding officer does not replace the cross-examination of witnesses. This is not to be looked at solely from the perspective of a presiding officer’s impartiality. Another important aspect is that the presiding officer is not the legal representative of either party and never receives instructions that parties to proceedings ordinarily give their legal representatives. The presiding officer cannot be fully conversant with the case of either party, particulars of facts and background to the case. This being the case, the parties cannot rely on questions raised by the presiding officer as a complete substitute for cross-examination, and the presiding officer cannot assume that he is able to fully understand the cases of both parties and conduct all such cross-examination as is necessary.

21.Therefore, whether viewed from the perspective of a presiding officer’s impartiality, or viewed from the perspective of whether he is provided with sufficient information or instructions so that he can conduct such cross-examination as is appropriate, the questioning by the presiding officer cannot displace the cross-examination by the parties. In an ordinary case, in order to perform his investigative role correctly and properly, the presiding officer should, in respect of any matter which he considers relevant to the disputes between the parties, direct each party to testify and adduce evidence, and then allow the other party to cross-examine on and rebut or challenge such evidence, and finally make findings of fact on the basis of the available evidence. The presiding officer’s role is to direct the parties and investigate the relevant matters, not to conduct cross-examination.

22.The significance of the right of a party to cross-examine witnesses was explained by the court in a recent Labour Tribunal appeal case. In Chung Man Chiu v. Ad-link Communications Ltd (HCLA 58/2002), Deputy Judge Lam (as he then was) made the following observations in paragraph 22 of his judgment of 5 December 2002:

It is a trite law that cross-examination of the witnesses of the other party is fundamental to a fair trial.  This principle is applicable even in respect of trials in the Labour Tribunal (see Chan Siu Tsang and Craigengower Cricket Club, HCLA 8 of 2002, 17 July 2002; Lau Kin Chung v. Dai Pai Dong Retail Shops Co. Ltd, HCLA 93 of 2001, 7 September 2002).  Although a presiding officer is under a duty to investigate relevant matters, the performance of such a duty cannot normally replace the right of a party to challenge the evidence of the other party by cross-examination.  This is because in the exercise of his duty to investigate, a presiding officer is obliged to maintain an impartial stance and his investigation should not go to the extent of cross-examining a witness as if he were the lawyer for the other side (see Tse Lam v. Chan Tak Wai (謝林與陳德偉), HCLA 150 of 1995, 5 March 1997, p. 8).

23.In Siu Koon Fung v. Shun Shing Construction Co. Ltd. (蕭冠鋒對順成建築有限公司) (HCLA 1/2002), Deputy Judge Lam (as he then was) explained the relevant legal principles in paragraphs 22 to 26 of his judgment of 5 July 2002:

22.       Furthermore, I have to take into account that the Labour Tribunal has been established with the aim of enabling workers to seek recovery from their employers by means of a simple but fair and expeditious litigation mechanism. For this reason, section 16 of the Labour Tribunal Ordinance provides that a presiding officer shall ensure that there is no avoidable delay in the determination of a claim. Section 20(1) further provides that the hearing of a claim shall be conducted in an informal manner, and section 27(2) provides that the rules of evidence shall not apply to proceedings in the Tribunal, which may receive any evidence which it considers relevant. Section 22 requires a presiding officer to deliver his determination of a claim as soon as possible after the conclusion of the hearing of the claim.

23.       At the same time, a presiding officer has to investigate any matter relevant to the claim (section 20(3)). This has formed the basis of many Labour Tribunal appeals, and the present case is no exception. On a presiding officer’s duty to investigate, Chan J made a thorough analysis and guidelines in his judgment in Tse Lam v. Chan Tak Wai (謝林與陳德偉) (HCLA 150/1995), and I respectfully quote from the relevant parts of his judgment:

The ‘duty to investigate’ imposed on a presiding officer at a hearing is an indubitable duty which has been explained and illustrated in a number of decided cases. However, these cases have rarely laid down guidelines on the specific nature and operation of this ‘duty to investigate’. I do not entirely agree with the holding in the case of First Fit Co. Ltd. v. Lam Yau that a presiding officer is under a duty to cross-examine witnesses. First, I do not agree that this is an absolute duty with no room for choice. In my view, it will be a sheer waste of resources if a presiding officer conduct investigations when the evidence of a witness is already clear and unambiguous, plainly credible or beyond dispute. Counsel for the Appellant conceded that he has not read the guidelines that I provided on this legal issue in the case of Chan Suk Bing v. Harbour Phoenix Ltd. & Others. I pointed out in that case that only an error by a presiding officer which is so serious as to constitute unfairness may form a valid ground of appeal. In other words, the lack of investigation must have a significant bearing on the presiding officer’s ruling so that any reasonable person would be disturbed by the ruling.  As quite a lot of appellants in recent years do not have a firm grasp of the legal principles involved, I consider it necessary to issue the following detailed guidelines on a presiding officer’s duty to investigate under section 20(3) of the Labour Tribunal Ordinance, Cap. 25 of the Laws of Hong Kong:

(1)     The presiding officer’s duty to investigate is confined to ‘any matter relevant to the claim’.

(2)     This duty is not an absolute one. The presiding officer is only obliged to conduct appropriate and reasonable investigation on any matter which has a significant bearing on the ruling or finding of fact.

(3)     This means that the presiding officer is not bound to blindly conduct unnecessary investigation on any matter relevant to the claim regardless of its significance or of whether it rests upon a reasonable basis.

(4)     Whether a matter is ‘relevant to the claim’ is a question of degree and nature which does not allow for generalization. A matter that falls within the description is one which ‘has a significant bearing’ on the ruling or finding of fact, which means that, although the matter may not be decisive on the ruling or finding of fact, it must have such a significant bearing as to cause a reasonable presiding officer to cast valid doubts about his ruling or finding of fact or to consider it necessary to revisit his ruling or finding of fact. However, the duty to investigate does not extend to matters which are relatively trivial or which fall short of the above standard.

(5)     ‘Conduct appropriate and reasonable investigation’: similarly, the investigation needed may differ in depth and form. The investigation must be appropriate and reasonable and free from any bias or prejudication. The form and extent of investigation must depend on the reasonable requirements in the particular case. The only absolute standard is that the presiding officer must maintain his impartiality and must not set out to act as a lawyer for either party. The presiding officer’s task is to ascertain the truth, not to destroy the credibility of witnesses. It is only when there are reasonable doubts that the presiding officer may carry out in-depth cross-examination and inquiries of witnesses in order to ascertain the truth. In the absence of any reasonable doubt, he must not conduct unreasonable and unnecessary cross-examination of witnesses. It is extremely important for the presiding officer to remain a neutral and impartial stance and not to take other functions upon himself.

24.       It is true that the presiding officer should not compromise over the fairness of the hearing for the sake of time and efficiency. At the same time, however, if the presiding officer is of the view that the calling of a certain witness would serve no purpose other than unnecessarily lengthening the hearing, then, as long as no unfairness would be caused to either party, the presiding officer may, in light of the actual circumstances, consider admitting the written evidence of that witness so as to avoid unnecessary delay of the hearing. The procrastination of a case is in itself a form of unfairness.

…

26.       Section 46 of the Labour Tribunal Ordinance provides that, in any matter of procedure for which no provision is made by the Ordinance or the rules, the presiding officer may determine the applicable procedure. In this respect, the presiding officer has a discretion to determine how to deal with the evidence in light of the circumstances of the case. Provided that the approach that he takes has not caused any unfairness to either party, the appellate court should not interfere. This does not mean that I entirely agree with what the presiding officer did. As a matter of fact, I do not encourage presiding officers to conduct hearings solely by taking upon themselves the task of making inquiries and asking questions. In general circumstances, the presiding officer should allow the parties to cross-examine witnesses. I do appreciate that, in most of the cases before the Tribunal, the parties who are not legally represented may not know how to cross-examine witnesses. Presiding officers very often have to spend time understanding the case of a party and then directing that party on his questions and inquiries. This is perfectly understandable and acceptable. Nevertheless, as Chan J pointed out in the case of Tse Lam, the presiding officer must maintain an impartial stance and hence cannot set out to act as a lawyer for either party. This is of paramount importance. Therefore, generally speaking, the right of a party to cross-examine witnesses is not displaced by questions raised by the presiding officer.

24.I entirely agree with the above analysis.

25.It is clear from the transcript of the Tribunal hearing that the Presiding Officer conducted the hearing mainly on the basis of the inquiries that he made of the witnesses for both parties. The relevant part of the transcript (quoted in paragraph 13 above) shows that, in the early stage of the hearing, the Presiding Officer explained to the parties that, after he finished making inquiries of a witness, either party could raise with him any question that the party wished to ask the witness and he would allow cross-examination to be made in order to find out the truth. In my view, however, such an explanation was inadequate because the transcript also indicates that, after he made inquiries of the witnesses – in particular the Claimant – the Presiding Officer neither asked the other party whether he had any question for the witnesses nor invited the parties to cross-examine the witnesses. As shown by the transcript quoted above, in respect of the Claimant’s evidence, the Presiding Officer merely asked the Defendant whether it wished to respond to or add anything to the evidence. The Defendant was neither asked whether it had any question for the Claimant nor invited to cross-examine her. And the Defendant merely made some additions or responses to the inquiries, and the Presiding Officer received those additions and responses by way of acceptance of evidence. This was completely different from the Claimant being cross-examined by the Defendant on her evidence.

26.This was a serious problem. The dispute in the present case was essentially one of fact, and in this respect cross-examination played a pivotal role. In my view, on this basis alone, the Presiding Officer’s ruling on the factual dispute can be considered unsafe.

27.That said, I refrain from expressing any definitive comment on this point and do not consider it necessary to do so, because the problem did not end here. The relevant transcript of the hearing (quoted in paragraph 13 above) shows that, having explained the procedure he intended to adopt and, in particular, having explained that it was open to the parties to raise with the Presiding Officer any question they might have after the Presiding Officer had made the inquiries, the Presiding Officer went on to say that, regarding matters on which the parties took issue but in respect of which there was no witness and evidence in support or rebuttal, as each party was holding on to what it said, cross-examination would be nothing but a sheer waste of time, and ultimately it was for the Presiding Officer to make a ruling after hearing the parties’ submissions. I am unable to accept what the Presiding Officer said.

28.Whether it is a hearing before a tribunal or a trial before the court, a situation which often arises is that the parties are in dispute over facts and, apart from oral evidence, there is no documentary evidence or independent witness to support what each party says. In such a case, the tribunal or court will, as a general rule, first hear the evidence of witnesses for both parties (as emerge from examination-in-chief, cross-examination and re-examination) followed by the parties’ submissions, and then consider the demeanour of the witnesses when giving evidence, the contents of the evidence, all other relevant testimonies and evidence, the objective circumstances and the probability or otherwise of the parties’ cases, and finally make findings of fact in light of the appropriate burden and standard of proof. There is nothing improper or unusual about such a procedure, which is commonly adopted in proceedings before the tribunal or the court. What the Presiding Officer in the present case said, as referred to above, might cause both parties to think that, in respect of those factual disputes on which there was no objective testimony, evidence or document, cross-examination of witnesses would be neither necessary nor useful. This would not only infringe upon the fundamental right of both parties to cross-examine witnesses on their evidence, but would also prevent the Presiding Officer from making the correct findings on the factual disputes between the parties. The practical experience of the common law over the years tells us that the cross-examination of witnesses in accordance with the general law of evidence (including, of course, the appropriate burden and standard of proof) is of invaluable assistance in ascertaining the truth.

29.For these reasons, I conclude that the Presiding Officer’s findings of fact are unsafe and the appeal must accordingly be allowed.

30.The Defendant also appeals against the Presiding Officer’s approach in dealing with the Defendant’s second ground for summarily dismissing the Claimant, namely her behaviour at the office. As stated above, the Presiding Officer rejected the Defendant’s argument for the reason that it was generalized and liable to be exaggerated. In my judgment, in view of the abovementioned procedure adopted by the Presiding Officer at the hearing and his approach to factual disputes over which there was no independent witness and evidence, his conclusion on the Defendant’s complaint is unsafe. In fact, the Presiding Officer had never made any finding of fact on that complaint. In other words, he had never made any ruling on or answered questions such as: were the Defendant’s allegations true despite being generalized? Although those allegations were liable to be exaggerated, had there in fact been any exaggeration? Was the evidence given by witnesses for the Defendant true? Was the Claimant’s denial of those allegations genuine? This, in my judgment, is another reason for allowing the appeal.

31.I order that the appeal be allowed, the Presiding Officer’s ruling be set aside, and that the case be remitted to another presiding officer of the Labour Tribunal for re-hearing.

32.On the question of costs, the grounds for allowing the appeal are in my view unfortunate and have nothing to do with either party. Bearing in mind various assumptions on the outcome of the appeal, I have heard the parties’ submissions on costs. I now make what I consider to be the fairest order in the circumstances, namely that each party should bear its own costs of the appeal.

The Claimant in person.

The Defendant in person and represented by its director Mr Yip Siu Cheong.

Translated by Mr. Edmund Cham, Solicitor.