LEE CHICK CHOI v. BEST SPIRITS CO LTD

HCLA 19/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 19 OF 2013

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 588 OF 2011)

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R U L I N G

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Introduction

1.  This is an application by the applicant for a stay of execution of the award/order made on 10 October 2011 by the Presiding Officer of the Labour Tribunal (“Tribunal”), Ms Susan Wong.

Background

2.  The applicant/claimant/plaintiff (“A”) was employed by the respondent/defendant (“R”) as a General Manager under a written contract dated 5 July 2006.  At some time during the employment, A was also appointed as a Director.

3.  The employment relationship between the parties was terminated on 4 November 2010 after an incident which happened at an internal meeting held at R’s office.  A also resigned as R’s Director.

4.  The termination was agreed to be by way of A submitting a letter of resignation, and the resignation was accepted by R.  On the date of termination, A received a cheque for HK$236,719 consisting of, inter alia, one month’s wage in lieu of notice, annual leave payment, basic salary for the first 4 days of November 2010.

5.  Subsequently, A filed a claim in the Labour Tribunal to claim the following:

(i) Item B – 13^th month payment shortfall of HK$8,005.60

(ii) Item C – Service Fee of HK$143,548

(iii) Long service payment of HK$66,904.10

6.  After a 5 day trial, the Presiding Officer found against A on all the above claims on 10 October 2011 (“Order”).  She was also satisfied that in view of P’s conduct at the meeting and R’s dissatisfaction of A’s performance for some time, R had a valid reason to dismiss A.  Further under the Order, the Presiding Officer ordered A to pay R costs totaling HK$130,353 forthwith.

7.  The Presiding Officer handed down her reasons on 28 October 2011 (“Reasons”).

8.  A applied for leave to appeal against the Order on 11 October 2011 and further on 24 October 2011, he applied to the Presiding Officer for a stay of execution of the Order.

9.  A’s application for stay was refused by the Presiding Officer on 28 October 2011.

10.  It appeared that A then made an application for stay of execution by way of a letter dated 31 October 2011 to M Chan J.  I understand that no order was made as the application should be by way of inter-partes summons.

11.  Subsequently, A’s application for leave to appeal was dismissed on 6 June 2013 by M Chan J by her decision on the same day (“Decision”).

12.  Thereafter on 9 August 2013, A applied to the Labour Tribunal for a review of the Order, namely to vary the costs part thereof.  This was refused on 16 August 2013 as it was out of time (“Review Refusal”).

13.  A then made an application on 28 August 2013 for leave to appeal out of time, against the costs order in the Order, and the Review Refusal.  Master Ho allowed an extension of time, but only for A to file his application for leave to appeal against the Review Refusal.  Master Ho had clearly stated that A’s intention to vary the costs order in the Order should have been raised in his appeal before M Chan J on 6 June 2013 and as it was not raised, A was thus barred from raising it by way of another appeal.

14.  What is thus clear is that A’s application for leave to appeal against the Order had been disposed of by M Chan J, and this had included A’s then ground of appeal in relation to the costs part of the Order[1].

15.  After obtaining the extension of time from Master Ho, A then duly filed his application for leave to appeal against the Review Refusal on 25 October 2013 (“Leave Application”).  The Leave Application should thus only be in respect of the Presiding Officer’s Review Refusal in respect of his application for review/variation of the costs order.  The Leave Application has been fixed for a hearing before this court on 11 November 2014.

16.  A issued a summons for stay on 15 January 2014. In his affirmation filed in support of the stay, he had raised 4 grounds to support the stay application, in that there are special circumstances which would render the enforcement of the Order inappropriate.  On the day of the hearing of this application, A had clarified that he was seeking a stay pending the result of the hearing of his Leave Application.

17.  On the day of the hearing of the present application, A had produced a letter dated 16 October 2014 addressed to the Presiding Officer, seeking a further review of the Order due to allegedly “new” evidence.  The alleged “new” evidence was a letter dated 20 November 2013 from the Office of the Privacy Commissioner addressed to A concerning a complaint by him (“20.11.13 Letter”).  The 20.11.13 Letter was received by A after the Review Refusal.  As at the date of the present hearing, there had not yet been a reply from the Presiding Officer.

18.  R had relied on s 32(3) of the Labour Tribunal Ordinance (“Ordinance”) and submitted that the Decision was “non-appeallable”.

Discussion

19.  First of all, dealing with the alleged “new” evidence based on which A was seeking a further review, one can see from the 20.11.13 Letter and as stated therein, A’s complaint was of the same subject matter as his wife’s complaint of 24 May 2011 to which the Office of the Privacy Commissioner had already responded.  As a result of A’s wife’s complaint, and after investigation by the Privacy Commissioner, R was found to have contravened the requirements of Data Protection Principle 5 (“DPP5”), and a letter had already been sent to R on 15 May 2013 in respect of this matter.  In the 20.11.13 Letter, the Privacy Commissioner had clearly stated that there was no contravention of Data Protection Principles 1, 2, 3, 4, and 6 by R.  In respect of DPP 5, it was stated clearly in the 20.11.13 Letter that A’s complaint did not get to the heart of DPP 5 at all, and in any event investigation had been carried out and R had already been found to have contravened DPP 5 and that remedial action had been taken out by R.

20.  In my view, the allegedly “new” evidence was not really any “new” evidence. 

21.  Normally, for stay applications pending appeal brought under O59 r 13, the principles have been set out in the well known case of Star Play Development Ltd v Bess Fashion Management Co Ltd [2].

22.  As stated by Ma J (as he then was) in Star Play, the existence of an arguable appeal (ie an appeal with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay, and conversely, the existence of a strong appeal or a strong likelihood that the appeal would succeed, would usually by itself enable a stay to be granted because this would constitute a good reason for a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted[3].

23.  It has also been said in Star Pay that it is impractical and undesirable for this court in dealing with a stay application to go deeply into the merits and strengths of any appeal, but this court must however form a preliminary view of these aspects[4].

24.  Even if one were to apply those general principles set out in Star Play, as pointed out by Mr Lam, under s 32 of the Ordinance, A will only be granted leave to appeal if the Order was erroneous in point of law, or the matter was outside the jurisdiction of the Tribunal.  Further, a refusal by the Court of First Instance to grant leave to appeal shall be final.

25.  S 28 of the Ordinance states that the Tribunal may award to a party costs and expenses in attending a hearing of the Tribunal and such may include:

(a) Any reasonable expenses necessarily incurred and any loss of salary or wages suffered by that party;

(b) Any reasonable sum paid to a witness for the expenses sum paid to a witness for the expenses necessarily incurred and any loss of salary or wages suffered by him.

26.  The Presiding Officer had considered the submissions on costs from both parties in detail in paragraphs 82-113 of the Reasons before R was awarded total costs or HK$130,353.

27.  The matter of costs was in the discretion of the Presiding Officer.  Upon reading all the documents filed by A, I am of the preliminary view that there exists no error in the law on the part of the Presiding Officer in relation to the Review Refusal, nor was she plainly wrong in exercising her discretion in making the costs part of the Order.  In my preliminary view, the Leave Application does not appear to be arguable.

28.  Having considered A’s affidavit and documents produced by him, and bearing in mind that, as said in Star Play, the starting point is that a successful party should not be deprived of the fruits of its success,  I do not find that there were any grounds or any other “special circumstances” as submitted by A to justify a stay.  

29.  I therefore dismiss A’s summons filed on 15 January 2014 with costs to be paid to R, to be summarily assessed and paid forthwith.  R shall file his statement of costs within 7 days and A to file his list of objections within 7 days thereafter.  The summary assessment will be by paper disposal. 

30.  I had granted an interim stay pending the handing down of this ruling.  For any avoidance of doubt, the interim stay ceased as of the date of this ruling.

[1] Para 9, B1:65

[2] [2007] 5 HKC 84

[3] Para 9(1)-(9), Star Play, supra

[4] Para 9 (5), Star Play, supra