TSANG CHI SHING RAYMOND v. CHINA INTERNATIONAL FINANCE HOLDINGS LTD AND ANOTHER

CAMP 73/2025

[2025] HKCA 893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 73 OF 2025

(ON AN INTENDED APPEAL FROM LBTC NO. 1859 OF 2024)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  The application

1.  This is an application by the 2^nd defendant for an order to set aside the decision of Deputy High Court Judge Alan Kwong dated 28 March 2025 who refused to grant leave to appeal to the 2^nd defendant regarding a decision of the Labour Tribunal dated 30 October 2024 whereby the Claimant was awarded $700,000 against the 2^nd defendant as salary in arrears (‘LT Order’). The 2^nd defendant also asks this Court to direct the Judge to re - consider the leave to appeal application. Having considered the documents filed and lodged by the parties, we are of the view that it is appropriate to determine the present application on paper without an oral hearing.

II.  Procedural background

2.  On 9 April 2025, the 2^nd defendant applied to this Court by ex-parte summons for leave to appeal the judgment of the Judge. There was also an application for stay of the LT Order which was supported by an affirmation of the 2^nd defendant dated 9 April 2025. A set of written statement by the 2^nd defendant’s solicitors consisting of 17 pages was also lodged seeking for leave to appeal.

3.  On 14 May 2025, the Registrar of Civil Appeals informed the 2^nd defendant that since his application to the Court of Appeal was for leave to appeal against a Court of First Instance decision refusing leave to appeal on a Labour Tribunal decision, pursuant to section 32(3) of the Labour Tribunal Ordinance (Cap. 25), the refusal by the Judge in the first instance to grant leave to appeal was final. The ex-parte summons was liable to be dismissed. The Registrar directed the 2^nd defendant to lodge written submissions limited to three pages if he wished to object to the intended dismissal. Counsel for the 2^nd defendant provided a submission on 28 May 2025. A copy of an Amended Ex-Parte Summons was attached to the submission. The matter was then referred to this Court for consideration.

4.  On 2 June 2025, the Registrar of Civil Appeals informed the 2^nd defendant that the Amended Ex-Parte Summons that was attached as a draft to his counsel’s submissions was not filed. The Registrar directed the 2^nd defendant to confirm if the Amended Ex-Parte Summons was to be relied upon, and if so, to file the Amended Ex-Parte Summons accordingly. On the same day, the 2^nd defendant’s solicitors wrote to Court confirming the same, and filed the Amended Ex - Parte Summons. As can be seen from the Amended Ex-Parte Summons, the 2^nd defendant is no longer seeking leave to appeal or a stay of execution of the LT Order. The 2^nd defendant is asking this Court to set aside the Judge’s decision refusing leave to appeal, and to order the Judge to re - open the matter that has been refused leave.

5.  On 5 September 2025, this Court received a letter from the Claimant complaining that he was not informed of anything related to this application and has never been served with any document in this application. He had written an earlier letter to Court stating that he understood the 2^nd defendant had lodged an application for leave to appeal.

III.  The 2^nd defendant’s submission

6.  The salient points of the submission of the 2^nd defendant’s counsel are as follows :

1)  Counsel admitted that his ex-parte summons of 9 April 2025 seeking leave to appeal against the Judge’s decision in the Court of First Instance refusing leave to appeal against the Labour Tribunal’s decision was ‘mistaken’.

2)  Counsel stated that the correct approach was for the 2^nd defendant’s application to be made under this Court’s ‘inherent jurisdiction’ to ‘set aside’ the Judge’s order, and for this Court to direct the Judge to ‘re - consider’ the 2^nd defendant’s application for leave to appeal. The case of Lilik Andayani v Chan Oi Ling, CACV 104/2000, unreported, 19 September 2000 was relied upon by counsel.

3)  Counsel’s other points in his written submissions are submissions relating to the Judge’s assessment of evidence, which are complaints on finding of fact.

IV.  Applicable principles

7.  The events that transpired in this application are not much different from the case of Chan Yee Ling Elaine v Christine M. Koo & Ip, Solicitors & Notarties [2019] HKCA 160. Ms Chan, the applicant in this case, first applied to the Court of Appeal for leave to appeal against a decision of the Court of First Instance that refused to grant leave to appeal against a decision of the Labour Tribunal. The Registrar drew Ms Chan’s attention to section 32(3) of the Labour Tribunal Ordinance (Cap. 25), and invited Ms Chan to make submissions to object to dismissal. Ms Chan made submissions and relied on the case of Lilik to contend that the Court of Appeal can ‘exercise a discretion’ not to apply section 32(3) of the Labour Tribunal Ordinance (Cap. 25). This Court (Lam VP and Barma JA) made it clear that there is no such discretion to dis - apply section 32(3), as even Lilik at [6], [10] has made clear that there is no room to appeal from a Court of First Instance’s refusal of leave to appeal, i.e. such decision was final under section 32(3).

8.  The following passages in Chan Yee Ling Elaine are pertinent for the purpose of the present application :

‘ 8. With respect, such submissions are based on a misreading of the judgment in Lilik Andayani v Chan Oi Ling CACV 104/2000. At para 6 of that judgment, Keith JA made it clear that a claimant cannot appeal to the Court of Appeal against the refusal of a judge of the Court of First Instance to grant leave to appeal. This was reiterated again at para 10 of the judgment.

9. Thus, it is clear from that judgment that this Court does not have any discretion to dis-apply Section 32(3).

10. What happened in that case (i.e. Lilik) was that after the refusal of leave by the Court of First Instance, the claimant engaged the service of a pro bono lawyer who applied to that court again for re - opening the case to review the application for leave in that court. As that application was made before the perfection of the order refusing leave, the Court of Appeal held that the judge erred in rejecting the application on the basis that the Court of First Instance had no jurisdiction to re - open the matter. In other words, the appeal that was entertained by the Court of Appeal was the appeal against the decision of the judge in refusing to re - opening the matter for review before the perfection of the order. Such appeal was not precluded by section 32(3).

11. At the same time, as emphasized by Keith JA at para 10 of that judgment, whether leave to appeal was to be granted was a matter entirely for the judge in the Court of First Instance. Thus, the result of that appeal was that the re - opening of the leave application was to be heard by the Court of First Instance, not the Court of Appeal.

12. We hasten to add that even in cases of application for review before the perfection of the order in Court of First Instance, it is a matter of discretion of the judge below to consider whether the matter should be re - openined: see Stewart v Engel [2000] 1 WLR 2268; Re L&B (Children) [2013] 1 WLR 634; Wong Kam Hung v Triangle Motors [1998] 2 HKLRD 330. The Court of Appeal would not take it upon itself to exercise that discretion when the matter had not been considered by the court below.

13. In the present case, there is no suggestion that the claimant had applied to Deputy High Court Judge Keith Yeung SC to re - open her application for leave below before perfection of the order. According to court records, the order refusing leave had been perfected on 15 January 2019. The application before us is to appeal against the order of 14 December 2018 refusing leave.

14. The effect of Section 32(3) is that this Court does not have any jurisdiction to entertain any application for leave in respect of the refusal of leave by the deputy judge.

15. For these reasons, the summons of 21 December 2018 is dismissed. It is not clear if costs have been incurred by the defendant in this application. If the defendant seeks costs, they should lodge and serve submission (not more than 3 pages) with statement of costs within 7 days. The claimant may then lodge and serve submission in reply within 7 days thereafter.’ (emphasis added)

V.  Our view

9.  We will dismiss the 2^nd defendant’s Amended Ex - Parte Summons :

1)  The 2^nd defendant by the Amended Ex-Parte Summons is effectively asking this Court to set aside the Judge’s decision of 28 March 2025, when there is no evidence that the 2^nd defendant has applied to the Court of First Instance to re - open the matter for review. Although the written submission of the 2^nd defendant stated that the order of the Judge had not been drawn up, Chan Yee Ling Elaine at [12] has already made clear that the Court of Appeal would not take it upon itself to re - open the matter when such has not been considered by the Court of First Instance. Whether the matter will eventually be re - opened is a matter for the Court below and it is an exercise of discretion.

2)  Chan Yee Ling Elaine at [10] has made clear that in Lilik, the legal error that was corrected by the Court of Appeal was that the first instance judge was erroneous in his belief that he had no jurisdiction to re - open/re - consider his decision in refusing leave to appeal against a decision of the Labour Tribunal before the order was perfected. These facts are completely different from the present case if there is no evidence that the 2^nd defendant has even applied to the Court of First Instance to re- open the matter.

VI.  Conclusion

10.  The 2^nd defendant’s Amended Ex-Parte Summons filed on 2 June 2025 is dismissed.

VII.  Costs

11.  As the Claimant had not been served with the paper in this application, we will make no order as to costs.