SIU KIN PONG, STEVEN v. LIPWORTH INTERNATIONAL LTD. AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 180 OF 1995
(CLAIM NO. E4168 OF 1995)

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J U D G M E N T

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1. This is an appeal by the 2nd Appellant, Country Wealth Industrial Limited, pursuant to leave to appeal granted by Leong J. The 2nd Appellant's appeal is based on Ground No.1 of the Application for leave to appeal.

2. The ground of appeal is that the learned Presiding Officer is wrong to make an award against the 2nd Appellant in that there was no contractual relation between the Claimant and the 2nd Appellant: the contract of employment was between Lipworth International Limited ("Lipworth") and the Claimant.

3. It is clear from the evidence that Lipworth had appointed the 2nd Appellant as its agent. Lipworth is a British Virgin Island Company. Its registered address is that of the 2nd Appellant's address. Mr Li, the representative of Lipworth and the 2nd Appellant said that the contract was signed by the 2nd Appellant. The business was actually operated by the 2nd Appellant but it was an agent of Lipworth. He admitted that Lipworth is inactive in carrying business which was actually operated by the 2nd Appellant. The service provided by the 2nd Appellant for Lipworth included employing staff.

4. Section 2 of the Employment Ordinance states that the employer means any person who has entered into any contract of employment to employ any other person as an employee and the authorised agent, manager or factor of such first mentioned person.

5. As the 2nd Appellant was the authorised agent of Lipworth which had entered into contract of employment with the Claimant, it came within the definition of employer and the Presiding Officer was correct when he made the award against the 2nd Appellant as well.

6. Mr Yip referred to the letter of 1st January 1993 between Lipworth and the 2nd Appellant in which it was stated the 2nd Appellant shall not enter into any contract or incur any debt/obligation binding upon Lipworth. This may well the provision in the agreement but the evidence revealed that the 2nd Appellant was acting as agent in arranging the contract of employment. Lipworth certainly had not disowned the contract.

7. Mr Yip further argued that even if the 2nd Appellant was the employer, the contract of employment was between the Claimant and Lipworth and the 2nd Appellant was not liable. In my view, it is odd that, having included an authorised agent within the definition of employer, the employee could still not pursue against that employer. It could not be the intention of the legislation.

8. The appeal by the 2nd Appellant against the decison of the Presiding Officer is dismissed.

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