Salazar Alma F. v. Chan Chue Kai and Another

HCLA 21/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 21 OF 2012

(ON APPEAL FROM LABOUR TRIBUNALCLAIM NO.4198 OF 2010)

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Before: Hon Au-Yeung J in Chambers

Date of Hearing: 19 December 2012

Date of Judgment: 19 December 2012

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J U D G M E N T

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The application

1.There are 2 parts to these proceedings.  The first part deals with an application for stay of the trial before the Labour Tribunal.  That part has been dealt with on 7 November 2012.  The remaining part, the subject of today’s hearing, concerns 11 interlocutory orders of the Labour Tribunal:

(i) Refusal to allow the defendants to be represented by their son;

(ii) Judgment be entered against the defendants for the claimant;

(iii) Judgment award set aside and $500 costs payment to claimant;

(iv) Refusal to refund security to defendants;

(v) Order to pay $500.90 costs to the claimant for the second time;

(vi) Refusal to order costs of the defendants;

(vii) Refusal to order claimant to pay security for costs;

(viii) Refusal to stay trial hearing pending appeal;

(ix) Refusal to give reasons for judgment;

(x) Refusal to handle the ‘witness intimation’ case done by the claimant; and

(xi) Refusal to order claimant to disclose actual residential address.

Delay

2.Section 32 of the Labour Tribunal Ordinance (“the Ordinance”) requires an application for leave to appeal to be launched within 7 days of the service of an award/ order.  All of the 11 interlocutory orders were made between 2011 and 27 August 2012.  This application for leave to appeal filed on 30 October 2012 was way out of time and should be dismissed unless good reasons for the delay in making this application can be shown.  No explanation for the delay has ever been given.  On this ground alone the application should be dismissed.

3.However, extension of time may be granted on good cause shown, one being the merits in an intended appeal. 

Merits of the intended appeal

4.Under Section 32 of the Ordinance, leave to appeal can only be granted where there are errors of law or the claim is outside the jurisdiction of the Labour Tribunal.  The present leave application relies solely on the error of law ground.

5.In his detailed Reasons for Decision dated 6 December 2012 (‘the Decision”), the Deputy Presiding Officer has set out the full details for each of his interlocutory order appealed against.  In his application, Mr Chan has given written reasons in support.  At today’s hearing, he has not advanced further oral submission.  I now deal with each interlocutory order.

(i)  Refusal to allow the defendants to be represented by their son

6.The son was not one of those persons having right of audience before the Tribunal under section 23 of the Ordinance.  The Presiding Officer correctly directed himself and acknowledged that he had a discretion to allow the son to represent the defendants, having regard to the case of Ho Lan Fong v. Lam Gook [2004] 3 HKLRD 47.  

7.In paragraph 15 of the Decision, the Presiding Officer has taken into account the fact that the son was not a party to the proceedings, had already had a chance to represent his parents at a the call-over hearing and no prior approval for his representation had been given by the Tribunal despite the warning of another Presiding Officer at that call-over hearing.  Despite the fact that he had not referred to the case of Ho Lan Fong then,the Presiding Officer clearly knew that allowing the son to represent the defendants was a matter of discretion and not of right.  I cannot see why in the proper management of a case he could not enforce the prior warning of another Presiding Officer. 

8.In paragraphs 32-54, the Presiding Officer further considered various factors in exercising his discretion on whether to allow the son to represent the defendants.  Amongst them was the factor that the defendants were solicitors.  The Presiding Officer further considered, as a fact, whether or not the son was more familiar with the disputes of the case, the opportunities that the defendants would have to learn from the son all the necessary information required for their handling of the case as well as cross-examination of the claimant, the assistance that the son could render in the preparation of submissions on fact and on law,  and the fact that the son’s statements already contained discussion of law that could be used in submissions.  He then declined to accept that the defendants were not in a position to properly conduct their case.  The Presiding Officer also took into account the arrangements of hearing dates to minimize inconvenience to the business of the defendants.  Those were plainly matters within the discretion of the Presiding Officer.  He further considered the authority of Lok Ming Restaurant v. Lau Kwai Chong & anor, HCME7/1999and in the defendants’ renewed application to be represented by the son.

9.The defendants have not shown where the Presiding Officer erred in law.  A judge on appeal will not disturb the exercise of the discretion. There is no merit in this intended appeal.

(ii)   Judgment be entered against the defendants for the claimant

(iii)  Judgment award set aside and $500 costs payment to claimant

(iv)   Refusal to refund security to defendants

(v)  Order to pay $500.90 costs to the claimant for the second time

10.Mr Chan claims that these orders were the consequences arising from the refusal to allow the defendants to be represented by their son.  The Presiding Officer did not explain his rulings.

11.I have already stated that there is no merit in the intended appeal against order (i).  As for the Presiding Officer’s failure to explain his rulings, see under order (ix) below.

12.The Presiding Officer entered judgment against the defendants due to their absence at a hearing.  It was within his power to do so having regard to section 21 of the Ordinance.  When the defendants applied to set aside the judgment, the Presiding Officer was plainly right in granting the application to permit the defendants to defend in the interests of justice.  He correctly referred to his powers in that application where a defendant was absent without a good reason.  The conditions (including provision of security and payment of costs) were well within his discretion to impose.  Mr Chan has not shown what errors of law existed.  There is no merit in the intended appeal against these orders. 

(vi)   Refusal to order costs of the defendants

13.Mr Chan wanted the High Court to review the costs orders made by the Presiding Officer to see if he had been fair to both parties.  He submitted that if the Presiding Officer was right, he should also order the claimant to pay costs to the defendants and their son who had been present at court for an adjournment caused solely by the claimant’s failure to submit documents before the hearing.

14.There was an adjournment arising out of the defendants’ late filing of the counterclaim, which was served on the claimant only on the day of hearing.  It was within the powers of the Presiding Officer to grant costs to the claimant in those circumstances.  Mr Chan has not shown the Presiding Officer to have erred in law in making the order of costs.  The fact that the Presiding Officer had not granted costs to the defendants on other occasions could not constitute an error of law in making the costs order on this specific occasion.  There is no merit in this intended appeal.

(vii)  Refusal to order claimant to pay security for costs

15.Order 23 of the Rules of the High Court does not apply to the Labour Tribunal.  The Presiding Officer referred to the case of Ellen C Algahit v. Wong Fung Lan [1996] 2 HKLRD 233, 235, Le Pichon J (as she then was). He correctly relied on section 30 instead of section 46 of the Ordinance when considering the question of security against the claimant.  He had correctly directed himself on the law, namely, that apart from granting an adjournment, the Tribunal had to be of the opinion that the adjournment might result in prejudice to a party and the prejudice was due to the disposal or loss of control of assets by the claimant.  He considered the lack of evidence in that regard.  He even went a step further to consider the position if the Labour Tribunal did have an inherent jurisdiction to order security.   The defendants have not shown in what way he had erred in law.  There is no merit in this intended appeal.

(viii)   Refusal to stay trial hearing pending appeal

16.It is not clear which appeal Mr Chan was referring to.

(ix)   Refusal to give reasons for judgment

17.For at least some of the orders, the Presiding Officer had given reasons although the defendants claimed that it was done so quickly that their son could not remember all the details.  The sweeping statement that the Presiding Officer had not given reasons for judgment, if intended to apply to all the interlocutory orders in question, could not be right.

18.Section 22 of the Ordinance provides that when the Presiding Officer makes an award/order orally, it should be reduced to writing in not later than 14 days.  The Ordinance does not prohibit the presiding officer from giving oral reasons. 

19.Transcript of the oral reasons has not been given to me, so there is no way to see if the Presiding Officer has erred in law.  The detailed reasons have now been given in the Decision.  Mr Chan has not shown how the Presiding Officer has erred in law.  There is no merit in this intended ground of appeal.

(x)  Refusal to handle the ‘witness intimation’ case done by the claimant

20.The defendants complained to the Presiding Officer that the claimant punched and intimated their witness at the waiting area of the Labour Tribunal but the Presiding Officer refused to handle the incident.  They also complained about the claimant’s husband going to the workplace to scare the defendants’ witness.  That witness refused to come to court finally.  

21.Even accepting what the defendants said to be true, the complaints concerned criminal behaviour which was beyond the jurisdiction of the Presiding Officer. 

(xi)   Refusal to order claimant to disclose actual residential address

22.The defendants said that the claimant had lied about her residential address.  PO box and care of addresses were not acceptable.

23.The claimant has explained why she was not permitted to disclose her residential address, which was a shelter provided by the organization assisting her.  The sister from the organization had given evidence on the rules and policy of the organization.  The Presiding Officer has considered the explanations before coming to the view that the non-disclosure of the residential address was not with a view to deception or evasion of the consequences of the litigation.  His consideration of other factors and the balancing exercise were within his discretion.  Mr Chan has not shown how the Presiding Officer has erred in law.

Conclusion

24.There are no grounds for extending time to seek leave to appeal. None of the intended grounds of appeal are arguable.  I dismiss the application for leave to appeal.

The applicant appeared in person