CHIANG WEE TIONG v. LEE NGAI MING, JACKSON

DCCJ 4116/2007
DCCJ 2586/2008
(tried together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4116 OF 2007

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BETWEEN

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AND

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JUDGMENT

Background

1.  By Order of Master Mak made on 8 July 2010, DCCJ 4116 of 2007 and DCCJ 2586 of 2008 were ordered to be tried at the same time. Mr. Chiang Wee Tiong ("Mr. Chiang") is the plaintiff in DCCJ 4116, and claims that Mr. Lee Ngai Ming, Jackson ("Mr. Lee") is indebted to him in the total sum of $251,000, representing a loan Mr. Chiang had personally extended to Mr. Lee. This is denied by Mr. Lee, who claims that the sum of $251,000 represents the agreed salary paid to him for his services rendered respectively to a company known as Quest Telecom Ltd. ("QTL"), and a company known as Link Services Technology Ltd. ("LST").  

2.  In DCCJ 2586 (which was transferred to this Court from the Labour Tribunal), Mr. Lee as plaintiff claims from QTL and LST a total sum of $86,589.14, representing his salary in arrears for the months of August and September 2007, bonuses and other payments payable upon termination of his employment ("Termination Payments"), as well as reimbursement of expenses claimed to have been paid by him on the companies' behalf. QTL denies that Mr. Lee was its employee at any time. However, it counterclaims for Mr. Lee’s payment of mobile telephone charges of $1,075.21 due under a statement issued to Mr. Lee. On LST's part, it counterclaims for Mr. Lee's payment in lieu of one month’s notice (in the sum of $36,000) and seeks the return of the source code of a telecommunication system known as IP PBX which is the intellectual property of LST, but which LST claims was retained by Mr. Lee when he left LST's employment in September 2007.

3.  What is not disputed is that LST was set up in 2005 by Mr. Lee and his associates (Mr. Chow and Mr. Yip), Mr. Lee being at the material time a shareholder and director of LST. Mr. Lee, assisted by his associates, developed an IP PBX telecommunication system ("System") for a Voice over Internet Protocol ("VoIP") in the course of his employment by or otherwise for LST. It is not disputed by Mr. Lee that the intellectual property rights in the System, including the source code for the System ("Source Code"), at all material times vest in LST.

4.  QTL was set up in December 2005. Mr. Chiang is beneficially entitled to shares in a company known as Murchison Holdings Ltd., which in turn holds shares in Murchison International Limited ("MIL") and Quest Investments Limited ("QIL"). MIL holds shares in various other trading companies, and QIL holds shares in and controls QTL. Mr. Chiang has interests in most if not all of the companies within this Murchison Group of companies, which he controls as a director himself or through his brother Mr. Chiang Wee Jin ("Jin") or Mr. Brian Wong ("Mr. Wong") as directors.

5.  Mr. Chiang was interested in the System developed and made available by LST, and had plans for QTL to become a licensed telecommunication service provider in Hong Kong, utilizing the System of LST and relying on the technical know-how, expertise and support of LST employees including Mr. Lee in QTL's operations. In early 2006, an agreement was made in writing between LST and MIL ("MIL Agreement"), whereby MIL was to set up a credit line of $500,000 to facilitate LST'’s "day to day needs", as it was in need of funds. The MIL Agreement expressly provides that the loan was convertible into shares of LST, up to 51% of LST's shareholding. The first drawdown of $100,000 was agreed to be made immediately upon the signing of the undated MIL Agreement.

6.  It is not disputed that QIL subsequently (on a date so far unspecified by the parties) assumed and took over MIL's obligations and benefits under the MIL Agreement, with LST's consent. The loan of $500,000 was made available to LST in full by mid-2006, and by 11 August 2006, QIL became a 51% shareholder of LST. Jin was appointed a director of LST. A formal letter of employment was signed between LST and Mr. Lee on 3 April 2006, with Mr. Lee being paid a salary by LST. Mr. Lee claims that at that time, his salary was $45,000 a month, but such salary was later reduced to $36,000 per month from 1 July 2006.

7.  It is not in dispute that, despite further funding from QIL, the financial situation of LST did not improve and between February to April 2007, the shareholders of LST resolved not to inject further funds into LST. In Mr. Lee's words, LST was made dormant. Mr. Chiang's evidence was also clear that it was agreed that LST would have no further activity, as it was QIL's concern that LST should not be at risk of fraudulent trading when it was insolvent. Mr. Lee's case is that as from 1 March 2007, LST's employees, namely Mr. Yip and Mr. Lee himself, were transferred to QTL's employment. According to Mr. Lee, he was paid a further reduced monthly salary of $23,000 from March 2007 until July 2007. He left QTL's employment in September 2007 when he was not paid his salary for August 2007.

8.  Mr. Lee is not legally represented and the trial was conducted in Chinese, save for Mr. Chiang giving evidence in English. However, Mr. Lee can read and write English, and apart from some of the witness statements filed in the two sets of proceedings being in Chinese, most of the documentary evidence submitted in evidence is in English. As I will be referring to such documentary evidence, this Judgment will be in English. Mr. Lee may apply for a Chinese translation of this Judgment if he should have any difficulty in understanding it.

Issues

9.  From the arguments made and the evidence relied upon at trial, the issues for determination are:

(1)  Did Mr. Lee become an employee of QTL as from 1 March 2007?

(2)  Was the sum of $251,000 received by Mr. Lee a personal loan from Mr. Chiang to Mr. Lee, repayable on demand, or payment of salary for Mr. Lee's services?

(3)  Is Mr. Lee entitled to the Termination Payments and the reimbursement of expenses which he claims from QTL or LST?

(4)  Is Mr. Lee liable for payment in lieu of notice to QTL or LST, and for the telephone charges claimed by QTL?

(5)  Is Mr. Lee liable to deliver up the Source Code to LST?

Did Mr. Lee become an employee of QTL as from 1 March 2007?

10.  Mr. Lee claims that at a meeting of the shareholders of LST held in about April 2007, it was resolved that LST would be made dormant and that its employees would be transferred to QTL. The documents produced at trial show that draft notices of the meeting and draft financial statements of LST had been prepared by the end of March 2007 and had been circulated by Mr. Wong to Mr. Lee, Mr. Yip, Mr. Chiang and Jin in respect of the shareholders’ and directors’ meetings. The draft agenda for the shareholders’ meeting contained a proposal that LST should "remain dormant indefinitely". There is no other document produced at trial which evidences the shareholders' resolution to transfer LST's employees to QTL, but it is not disputed that Mr. Yip did sign an employment contract with QTL dated 1 March 2007. According to Mr. Chiang who attended the management meetings leading up to the shareholders’ meeting on 12 April 2007, there was no specific discussion on LST's employees, although he had emphasized that there should not be any form of trading or activity by LST, and his understanding was that there were no more employees of LST at the time of the meeting.

11.  Mr. Lee claims that after March 2007, he had throughout continued to work at the common shared office of LST and QTL. On the evidence, in fact, the 4000 sq. ft. office premises in Wanchai were shared by all companies in the Murchison Group, with LST and QTL jointly using one room on the premises, and all companies in the Group sharing some common facilities and office equipment. According to Mr. Lee, he worked on QTL's projects, contacted QTL's clients, had a QTL name card, and a QTL e-mail address.

12.  Mr. Wong and Mr. Chiang claim that Mr. Lee's QTL name card had been printed without authority. They claim that it was QIL's policy (as a listed company) that its paid employees should sign written contracts of employment with QIL, suggesting that QTL would follow the same policy. They argue that throughout, Mr. Lee had been providing technical support services to QTL as an employee of LST, but was never an employee of QTL.

13.  In a case such as this where there are serious disputes on the facts, I find it more useful to rely on such contemporaneous documents as do exist and to compare the witnesses' evidence with such contemporaneous documentation as an aid to test the reliability of the oral testimony of witnesses. This is because the parties' evidence by the time of trial is often affected not only by lapse of time but by their subjective interpretation of the issues in dispute and their perception of the parties' rights and wrongs. In this case in particular, where the parties have not been able to present all the relevant facts and documents in a coherent or consistent manner, I prefer to place more reliance on the contemporaneous documents which appear to me to be more reliable than the witnesses' accounts and recollection of the oral discussions held some years ago, their retrospective interpretation of the meaning and effect of their conduct and the payments made and their unilateral declaration of their intention in making the payments. The inherent probabilities of the parties’ assertions can also be tested against the contemporaneous documents and the undisputed facts.

14.  The documents produced by the parties around February to April 2007 do not show any reference to the transfer of employees from LST to QTL. However, according to an e-mail received by Mr. Wong from Mr. Lee and bearing date 20 April 2007, Mr. Lee stated that his contract for QTL was "not so appropriate" at that stage, but went on to suggest that they should have another company to sign for his contract, so that his salary for the coming month or months would not "be stuck around". Mr. Chiang and Mr. Wong had referred to this e-mail and Mr. Lee's reference to a personal loan from Mr. Chiang. In the same e-mail, however, Mr. Lee had also asked how arrangements would be made for his outstanding salary for February and March 2007, his salary for the coming months, as well as for his monthly expenses.

15.  Mr. Lee's explanation as to why an employment contract with QTL was not appropriate in April 2007 was that there was some litigation between QTL and a third party, in which QTL disputed Mr. Lee's authority to sign a contract on QTL's behalf. His evidence is that he was happy with signing a contract with another company in the Group, which would amount to the same thing.

16.  There is no doubt from the evidence produced in this case that even on the part of Mr. Chiang and Mr. Wong, no clear differentiation had been seriously made between the companies in the Murchison Group. The same individuals served the companies within the Group, with Mr. Chiang and (to some extent) Jin being regarded as the "boss". Mr. Wong managed the accounts and financial matters of all the companies, including QTL and LST after QIL became a shareholder. Wendy Cheung was an employee of Quest Stockbrokers (HK) Limited ("QSB") within the Group, but Mr. Wong's evidence suggests that she took care of the administrative and secretarial matters of not only LST, but all the companies in the Group. Another employee of QSB, Ah Kit, was involved in the process of procuring name cards to be printed in Shenzhen (by another company of the Group in Shenzhen) for companies within the Group. Tony Mong, an employee of Murchison Shenzhen Technology Ltd. (a company within the Group), was authorized after September 2007 to work on the System which is acknowledged to be the property of LST.

17.  I therefore do not find it surprising that Mr. Lee would be doing work for QTL, without there being a written contract of employment. The invoices issued in the name of QTL and dated June, July and August 2007 support Mr. Lee's evidence that he had been doing work after March 2007 on the RCG and other projects for the supply of services and products to clients of QTL. The invoices were all signed by Mr. Wong or by Jin on behalf of QTL, and although it is Mr. Wong's evidence that he did not understand what work Mr. Lee was doing on the projects to which the invoices relate, he did know there was an "RCG project", and that Mr. Lee was working on it. Jin was never called to give evidence on behalf of LST or QTL.

18.  Significantly, documents had been prepared in April 2007 by the Group's secretarial staff, Wendy Cheung, on behalf of LST and submitted to Mr. Lee for his signature. These refer to the cessation of Mr. Lee's employment by LST on 28 February 2007. The notice of cessation of employment was filed with the Inland Revenue Department on 2 May 2007 ("Notice"). According to Mr. Lee's evidence, the Notice was presented to him by Wendy Cheung after the shareholders' meeting of LST in April 2007, when it was resolved that LST would be dormant. The records of the Inland Revenue Department also confirm that Mr. Lee's employment by LST was for the period from 3 April 2006 to 28 February 2007 only. Bank documents also show that LST's MPF contributions for Mr. Lee in 2007 terminated on 28 February 2007. These clearly contradict the claim made by Mr. Chiang and Mr. Wong that Mr. Lee was providing his technical support and services as an employee of LST in and after March 2007. Even the documents emanating from LST do not support such a claim of LST’s employment of Mr. Lee after 28 February 2007.  Further, it is Mr. Chiang's emphatic claim that LST should not be trading or carrying on any activity after March 2007, and incurring debts in the form of salary to an employee of LST after 28 February 2007 would be contrary to such allegedly expressed intention on the part of Mr. Chiang for and on behalf of QIL at the meetings in March or April 2007 which he claims to have attended.

19.  There is sufficient evidence in this case that after March 2007, Mr. Lee was doing work for QTL on the RCG and other projects, as evidenced by the QTL invoices, in Hong Kong, China and Singapore. As highlighted by Mr. Lee, he was referred to as an addressee in Jin's emails as "QTL-Jackson". He continued to work in the office shared between QTL and LST, and had access to the common facilities and office equipment of the Murchison Group of companies in the Wanchai office. Whatever was Mr. Lee's role within QTL and LST, he can be said to be regarded as part of the loose structure or organization of the Murchison Group. Mr. Chiang and Mr. Wong claim that QTL did not provide insurance or MPF benefits to Mr. Lee, but Mr. Lee's case is that he had left these matters to the administrative or secretarial personnel of the Group to deal with.

20.  On the question of whether Mr. Lee was doing work for QTL as an employee of QTL as from March 2007, or whether he can be said to be performing his services as a person in business on his own account, it has been argued by Counsel for QTL and LST that Mr. Lee was not subject to the control of QTL in the work which he was doing. As the key person responsible for developing the System, Mr. Lee was obviously more of a technical expert than Mr. Chiang, Mr. Wong or Jin and would naturally be expected to enjoy a large extent of freedom in his work on the System and in promoting the System and products relating to the System to clients. Nevertheless, it is Mr. Lee's evidence and that of Mr. Yip that Mr. Lee would report to and confer with Jin in relation to the projects on which he worked. The e-mails produced at trial also suggest that Jin and Mr. Chiang retained a good degree of control over Mr. Lee, as evidenced by Mr. Chiang's note of 29 August 2007, and Jin's e-mails of 16 June 2007.

21.  Adopting the test in Poon Chau Nam v. Yim Siu Cheung [2007] 1 HKLRD 901 and considering the relevant indicia of employment, I am of the view that, on the available evidence and as a matter of overall impression, the relationship between QTL and Mr. Lee after 1 March 2007 was one of employment.

22.  In any event, whether Mr. Lee was an employee of or consultant providing services to QTL, it is clear from the evidence that it was the common intention of Mr. Chiang and Mr. Lee that Mr. Lee should be paid for the work which he was doing after March 2007. On Mr. Lee's part, his e-mail of 20 April 2007 makes clear his insistence on his payment of salary for March 2007 and in the future. On Mr. Chiang's part, his testimony was forthright at least to the extent that he recognized that the Group's investment in LST would not make sense if Mr. Lee as the principal engineer should be financially compromised and not able to focus on his work, which was the reason why he had been prepared to procure funds to be injected into LST in order to pay the salary of Mr. Lee and his key associates. Mr. Chiang's evidence is that when LST's dire financial situation became clear in February 2007, he had agreed that Mr. Lee would be paid a reduced sum of $23,000 per month for him to support his family. According to Mr. Chiang, he was prepared to personally finance this, with the intention that the amount of $23,000 per month would be deposited into LST's bank account, and then for LST to issue a cheque to Mr. Lee. From the evidence, QTL had obtained the benefit of Mr. Lee's services between March and September 2007, and it does not appear that this is disputed by Mr. Chiang and Mr. Wong, although they dispute the capacity in which such services were rendered by Mr. Lee and how he was to be paid.

Was the sum of $251,000 received by Mr. Lee a personal loan from Mr. Chiang to Mr. Lee, repayable on demand, or payment of salary for Mr. Lee's services?

23.  It is Mr. Chiang's claim that, as evidenced by 9 cheques issued between 23 January 2006 and 1 August 2007, he had made payment of a total sum of $251,000 to Mr. Lee. Mr. Chiang claims that these were personal loans which he had made to Mr. Lee, as Mr. Lee was in financial difficulties, and Mr. Chiang extended these loans to Mr. Lee with the aim and hope that Mr. Lee would, as an employee of LST, unconditionally provide his technical advice, support and services to QTL in relation to the System (paragraph 8 of Mr. Chiang's witness statement in DCCJ 4116 dated 28 October 2010).

24.  On Mr. Lee's part, it is claimed that the payment of $251,000 represents payment of the salary to which he was entitled from LST before 1 March 2007, and from QTL as from 1 March 2007.

25.  The first cheque relied upon by Mr. Chiang is one issued by MIL to LST dated 23 January 2006. Bearing in mind the evidence from Mr. Chiang and Mr. Wong as to the MIL Agreement and the circumstances in which the loan of $500,000 was injected into LST by QIL, I fail to see on the available evidence how MIL's cheque to LST can be construed as part of Mr. Chiang's alleged personal loan to Mr. Lee. The claim that Mr. Chiang's personal loan of $100,000 to Mr. Lee is evidenced by MIL’s cheque of 23 January 2006 also contradicts Mr. Chiang's own pleading (in paragraph (3)(c) of his Reply filed on 25 January 2008) that such payment was a personal loan from QIL  to Mr. Lee.

26.  The financial statements for LST produced by LST, QTL and Mr. Chiang reflect the injection of capital of $500,000 into LST, and according to a document entitled "LST  loan position statement", after the said loan injection, $100,000 was paid in cash by LST to Mr. Lee. Mr. Chiang claims that the $100,000 represented by MIL's cheque to LST was "sourced from" him. It is also claimed that the sum of $100,000 eventually came into Mr. Lee's hands from LST. These proceedings do not relate to debts between LST and Mr. Lee. Nor do they relate to any debts which may exist between Mr. Chiang, MIL and QIL. I am not satisfied, on a balance of probabilities, that the payment of $100,000 in January 2006 represents Mr. Chiang's personal loan to Mr. Lee, as he now alleges. I have very little sympathy for the attempts of Mr. Chiang and Mr. Wong to draw demarcation lines between the individual companies and between the companies and the individuals (eg. in the case of the employment of Mr. Lee), and to hide behind corporate veils and Chinese walls when circumstances benefit them to do so, and yet lift such corporate veils and ignore the Chinese walls when it befits their case, the MIL cheque of 23 January 2006 being one example.

27.  As for the other cheques and payments made by Mr. Chiang to Mr. Lee, Mr. Lee has compiled a table to show that the second to sixth cheques in the series of 9 cheques relied upon by Mr. Chiang were issued for the salary of $36,000 payable to him by LST for February 2007, and the reduced salary of $23,000 payable to him by QIL for March 2007. The seventh cheque in the series, dated 5 June 2007 for $46,000, covers payment of his salary for April and May 2007 of $23,000 per month, whereas the eighth and ninth cheques, each for $23,000, were for payment of his salary of $23,000 per month for June and July 2007.

28.  Mr. Chiang relies on the fact that apart from the cheque for $100,000 from MIL to LST, all the other cheques were acknowledged by Mr. Lee's signature by way of receipt and that, in respect of the third cheque dated 3 May 2007, Mr. Lee had acknowledged that the sum was received as a loan from Mr. Chiang.

29.  Save for the receipt in respect of the cheque dated 3 May 2007 for $15,600, the other receipts signed by Mr. Lee only acknowledged receipt of the amounts from Mr. Chiang, with no mention of any "loan" from Mr. Chiang. They are not inconsistent with Mr. Lee's claim that the amounts had been received, but as payment of his outstanding salary.

30.  Having considered Mr. Chiang's evidence, that he had made the "loans" to Mr. Lee to maintain his and his family’s living expenses and in return for Mr. Lee continuing to work and to give the required technical support to QIL, I do not regard such loans to be repayable when Mr. Lee had indeed continued to work at the joint offices of QIL and LST and had provided his service on QIL's projects until he left in September 2007. I accept Mr. Lee's evidence, as being more inherently probable, that the 9 cheques issued were for payment of his agreed salary of $23,000 from March 2007 to July 2007, and of the outstanding salary of $36,000 for February 2007. Despite the label of "loan" which Mr. Chiang attached to the payments, I consider that on the entirety of the evidence, they were paid as salary or consideration for Mr. Lee’s services to QTL.

Is Mr. Lee entitled to the Termination Payments and the reimbursement of expenses which he claims from QTL or LST?

31.  I have found that I am satisfied that there was a contract of employment between QTL and Mr. Lee from March 2007. According to Mr. Lee, he left his employment in September 2007 as he was not paid his salary for August 2007, and he seeks to recover his accrued salary up to 5 September 2007.

32.  In the absence of any evidence as to the terms of employment specifically agreed between Mr. Lee and QIL, Mr. Lee's rights should be governed by Employment Ordinance, under which he is entitled to 7 days' annual leave and one month notice of termination or one month's salary in lieu of notice of termination. Where his wages are not paid, Mr. Lee may terminate his contract of employment without notice or payment in lieu of notice, and QIL as employer is liable to pay one month's salary in lieu of notice.

33.  Mr. Lee claims that he is entitled under his contract of employment to a commission based on 10% of QTL's gross profit. However, no evidence has been adduced as to how such gross profit is to be calculated, and I am not prepared on the limited evidence available to make any order in this regard on the basis of any alleged profit of QTL.

34.  Hence, I am only prepared to allow Mr. Lee's claim for the sum of $26,833.33 for the outstanding salary from 1 August 2007 to 5 September 2007, the sum of $23,000 as payment of one month's salary in lieu of notice, and the sum of $2,265.41 as annual leave pay. I am also satisfied that Mr. Lee incurred $9,203.53 in the course of his employment, and that he is entitled to reimbursement of the same. This brings the total award to $61,302.27.

Is Mr. Lee liable for payment in lieu of notice to QTL or LST, and for the telephone charges claimed by QTL?

35.  According to the Defence filed in DCCJ 2586, LST and QTL claim that after the shareholders of LST resolved not to inject further capital into LST, Mr. Lee without notice to LST notified the Inland Revenue Department that he had resigned from his employment by LST, and left LST's employment without any notice. It is claimed that he is liable to pay to LST one month's salary in lieu of notice.

36.  The above claim by LST is totally inconsistent with the evidence adduced. It is clear from the documents and the witnesses' testimony that the shareholders of LST adopted the proposal made in the draft agenda prepared by QIL or Mr. Wong to make LST "dormant indefinitely". Mr. Chiang claims that he had made it clear that LST should have no further activities or dealings. After the meeting of the shareholders, Wendy Cheung normally in charge of administrative and secretarial matters of the Murchison Group prepared the Notice of cessation of employment of Mr. Lee, gave it to Mr. Lee for his signature and then filed it with the Inland Revenue Department. She obviously did this with the approval (or even under the instructions) of Mr. Wong, Jin or Mr. Chiang. Mr. Lee's evidence is that he was only presented with the completed document for signature. Any notice of termination of Mr. Lee's employment as may be required must have been waived by LST and Mr. Lee.

37.  I accept Mr. Lee's evidence that notwithstanding his requests for payment made to Mr. Wong, he did not receive his salary for August 2007.  As set out in paragraph 32 above, Mr. Lee is entitled to terminate his employment without further notice. QTL is not entitled to notice or to payment in lieu of notice.

38.  As for the Statement dated 31 October 2008 which was presented by QTL to Mr. Lee in respect of various telephone charges, Mr. Lee does not dispute that he was given the use of a telephone by QTL during his employment by LST and QTL, and that he had used such telephone services, at least until July 2007. Mr. Lee could not recall if he had used the telephone services thereafter.

39.  QTL's statement covers services after September 2007, until January 2008, and they cannot in any way be related to Mr. Lee's work for QTL. Having considered the evidence, I allow QTL's claim for the sum of $1,075 .21.

Is Mr. Lee liable to deliver up the Source Code to LST?

40.  Mr. Lee does not dispute that the Source Code is the property of LST. He claims however that before September 2007, he had not been prepared to deliver up the Source Code to Mr. Chiang or other parties not related to or authorized by LST, since other companies were not entitled to use the Source Code belonging to LST.  According to Mr. Wong, Jin had at various management meetings demanded for the delivery up of the Source Code from Mr. Lee, and Jin was at the material time a director of LST.

41.  Mr. Lee and Mr. Yip claim that the Source Code was at all material times kept at the offices of LST /QIL, but Mr. Wong and Mr. Chiang claim that it has not been located after Mr. Lee left his employment.

42.  There is no clear evidence adduced that Mr. Lee retained or is now in possession or control of the Source Code. Since Mr. Lee never disputes the ownership of the Source Code, I am prepared to make a declaration that LST is the owner of the Source Code, and is entitled to possession of the Source Code by its director or duly authorized representative.

43.  If LST requires the assistance of Mr. Lee to locate the Source Code at LST's premises, then Mr. Lee is entitled to seek reasonable remuneration to render his assistance.

Conclusion

44.  In respect of DCCJ 2586, I allow Mr. Lee's claim against QTL to the extent of $61,302.27, and also allow QTL's counterclaim for the sum of $1,075.21. QTL is to pay to Mr. Lee the net amount of $60,227.06, with interest at judgment rate from the date of the Writ until payment. I also make a declaration in the terms set out in paragraph 42 above. LST’s counterclaim against Mr. Lee for payment in lieu of notice is dismissed.

45.  Bearing in mind the orders made, I consider that a fair order for costs in DCCJ 2586 would be for QTL to pay to Mr. Lee the costs of the action, to be taxed if not agreed, and Mr. Lee and LST are to bear their own costs in the action.

46.  In respect of DCCJ 4116, Mr. Chiang's claims are dismissed, with costs to be taxed if not agreed.

47.  I will make the above costs orders nisi, to be made absolute after 21 days in the absence of any application for variation of the orders on costs.