15. If the parties cannot reach an amicable settlement at the first hearing, how can I be prepared for the subsequent trial?
Please note that you are not allowed to appoint a lawyer to represent you at the Labour Tribunal. You normally have to attend the trial on your own. Subject to the approval of the t ribunal, an office bearer of a registered trade union or an association of employers (who has obtained your written authorization) can attend the trial as your representative. You may also seek legal advice before attending the trial .
Here are some general points that you should note:
A) Date, time and place of the trial
You can check the above information from the Judiciary webpage. You can also call the Labour Tribunal Registry at 26250020 to confirm the details.
The trial will not start before the time you have been given and you may have to wait. However, you are recommended to arrive earlier for preparation.
Chinese and English are the official languages in Hong Kong. If the situation requires, an interpreter will be provided by the tribunal. If you give evidence in a language other than English or Chinese (Cantonese), the tribunal will find a suitable interpreter for you. But you should inform the tribunal officer as early as possible for making the necessary arrangement.
C) Addressing the judge, the witnesses and your opponent
The trial at the Labour Tribunal will be heard by a "Presiding Officer". The party who brings up the claim to the tribunal is called the "Claimant", and the other party is called the "Defendant".
During the trial, it is perfectly acceptable for you to address the Presiding Officer as "Sir/Madam" or "Your Honour". You should address the witnesses and your opponent as "Mr.", "Mrs." or "Miss". Always remember not to use threatening or insulting words during the trial.
D) Dress Code
You should dress neatly when attending the trial. If possible, avoid wearing T-shirts and jeans.
A witness is a person having personal knowledge of facts relating to the matters in dispute in a case. You may try to find as many witnesses as possible to support your case but you should make sure that they are reliable. One good witness will often be more convincing than several unreliable witnesses.
If your intended witness is unwilling to attend the trial, you may request the tribunal to subpoena him/her (i.e. to order the witness to attend the trial and give evidence). You should check with the tribunal officers for the necessary arrangement.
There are occasions where the evidence involves technical opinions from the experts e.g. explaining medical reports. You may get the assistance from expert witnesses. But you have to apply for leave (permission) from the tribunal to call expert witnesses at the trial. Addition costs will inevitably be incurred for calling expert witnesses.
Before attending the trial, you must talk to your intended witnesses in order to assess their credibility, see what they have known about your case and what they will probably say at the trial. However, you must not try to make up the answers for them. Bad inference would be drawn by the tribunal if your witnesses are just reading out your "scripts" during the trial. If it is proved that a person has wilfully given false evidence, he/she will be liable to a fine and imprisonment.
You may briefly tell your witnesses what you are going to ask at the trial and the possibility of being questioned by your opponent and the Presiding Officer. This could help reduce your witnesses' anxiety and they could have better preparations before entering the courtroom.
You should also remind your witnesses not to turn to you for looks of approval when answering questions from the Presiding Officer or your opponent.
F) Submitting evidence
Besides the oral evidence given at the trial, you may also submit materials relating to the case (e.g. documents, photographs or audio visual recordings) to the tribunal as supporting evidence. Your witnesses (if any) may also prepare written statements before the commencement of the trial. You can download some general guidelines for preparing witness statement from the Resource Centre for Unrepresented Litigants
Whether or not the evidence is admissible (accepted by the tribunal) will be decided by the Presiding Officer. Remember to prepare extra copies for your opponent.
According to section 27(2) of the Labour Tribunal Ordinance, the rules of evidence shall not apply to proceedings in the tribunal and it may receive any evidence which it considers relevant . In other words, you need not worry about the strict rules and legal formalities (which must be observed by lawyers in other courts) when submitting evidence to the tribunal. The Presiding Officer will give you appropriate instructions. Nevertheless, you must not give false evidence to the tribunal.
G) Procedures for the trial
As you are not allowed to have legal representation, the Presiding Officer will introduce the procedures and the law relating to your case right at the beginning of the trial. If you feel unsecured before attending the trial, you may ask the tribunal officers to provide some preliminary information about the procedures.
Generally speaking, the procedures may include:
Examination in chief
Usually, the Claimant will give evidence first and call witnesses to give evidence (they will be questioned by the Claimant). Alternatively, the Claimant may just call his/her witnesses to give evidence. This process is called "examination in chief" by the Claimant.
The Defendant may put questions to each of the Claimant's witnesses after he/she has given evidence. This process is called "cross-examination" by the Defendant.
After cross-examination by the Defendant, the Claimant may put questions to his/her witnesses to clarify the matters raised in the cross-examination. This process is called "re-examination" by the Claimant.
After all witnesses of the Claimant have given evidence, the Defendant may give evidence and call his/her witnesses to give evidence (examination in chief by the Defendant). Then the Claimant may question the Defendant's witnesses (cross-examination by the Claimant), followed by the re-examination of the witnesses by the Defendant.
After all witnesses have given evidence, the Defendant has the right to make final the submission (speech) to the tribunal. The Claimant will follow the Defendant and make the final submission.
The tribunal may adjourn the case (postpone the trial) to another date if further information and/or evidence are needed. If no further information is required, the tribunal may deliver oral judgment at the end of the trial or give judgment in written form at a later date.
Both parties do not call witness
In case of a hearing where no witness will be called to give evidence, the Claimant will make the speech and argue the case first, followed by the Defendant. The Claimant will have the right to make reply speech to the arguments put forward by the Defendant.
After hearing the submissions from both parties, the tribunal may adjourn the case (postpone the hearing) to another date if further information and/or evidence are needed. If no further information is required, the tribunal may deliver oral judgment at the end of the trial or give judgment in written form at a later date.
- The above mentioned are only the usual procedures for a trial. The Presiding Officer can always give other directions which you must follow.
- At any stage the Presiding Officer may also ask you (or the witnesses) questions.
- You can remain seated when talking to the Presiding Officer and the other parties.
H) Things to note when you question the witnesses and your opponent
- Before the commencement of the trial, prepare the questions and make relevant notes of all you want to say at the tribunal.
- If you have several witnesses to call, give a list of witnesses to the tribunal before the trial.
- Avoid using jargons or technical languages. If they must be used, explain them first.
- Ask short and specific question. Don't ask two things at a time, e.g. "When did you meet him and what did he tell you at the meeting?" Instead, you should ask two separate questions: "When did you meet him?" and "What did he tell you at the meeting?"
- When you question your own witnesses (examination in chief), avoid asking questions to which you do not know the answers. That is why you have to interview your witnesses before the trial and see what they have known about your case.
- Do not repeat the questions that have already been asked by your opponent (unless the previous answers were not clear).
- Do not quarrel with the witnesses and your opponent.
- Your questions should focus on seeking factual information instead of opinions (unless you are questioning an expert witness). Asking for opinions may lead to lengthy and unfavourable replies.
- If you do not question your opponent's witnesses (cross-examination), it may imply that you have no objection to their oral evidence. However, don't just trying to ask trivial or irrelevant questions to show that you "object" their evidence. This may irritate the Presiding Officer and cause adverse effect on your case. This principle also applies when you are cross examining your opponent.
- If your opponent's witness has given your desired answer, turn to the next question (or end your cross-examination) immediately. Do not allow the witness to explain more.
- If your questions are unclear, the Presiding Officer may interrupt and help you rephrase the questions. He/she may also stop you from asking questions which are totally irrelevant to the case.
- If you notice that the Presiding Officer is taking notes, slow down your speech a little bit.
I) Answering questions
All you need to do is to answer questions honestly and truthfully. You should try to avoid giving long answers, and should speak clearly at all times. Make a note of what you want to say so that you can refer to it.
If you do not understand or cannot hear a question, ask for it to be repeated. If you genuinely do not know the answer to a question you should say so. Do not attempt to make up an answer. If you deliberately lie in your evidence, you will commit the offence of perjury (wilfully giving false evidence) for which you may be prosecuted.