CHUNG WO SANG FUTURE v. TAI LIN RADIO SERVICE LTD

HCMP 3042 of 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3042 OF 2003

(ON APPEAL FROM HCLA NO. 112 OF 2002)

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DECISION

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Hon Yuen JA (giving the decision of the Court):

1. On 31 October 2002, the Labour Tribunal (Presiding Officer Winston Leung) ordered the Defendant to pay the Claimant a total sum of $45,930 in respect of annual leave pay, holiday pay and sickness allowance. The Tribunal dismissed the Claimant's claim for year-end pay.

Issue before Labour Tribunal

2. At issue before the Tribunal was the question whether commission was part of the Claimant's "wages" within the meaning of the Employment Ordinance cap. 57 for the purpose of calculating his annual leave pay, holiday pay and sickness allowance.

3. The statutory definition of "wages" is

4. The issue whether the commission was or was not payable only at the discretion of the Defendant must depend on the terms of the contract. If the contract of employment was written, it would depend on the true construction of the written terms. If the contract was oral, it would depend on what the parties said when agreeing the terms. If the contract was partly written and partly oral, it would depend on the terms of the document and what the parties said.

5. The Tribunal found that the commission was not payable only at the discretion of the Defendant and that the commission was therefore part of the Claimant's wages for the purposes of calculating annual leave pay, holiday pay and sickness allowance.

6. From the Tribunal's written judgment, it would appear that it came to that decision on the construction of a "Letter of Employment" and a document entitled "Commission". It was either found or assumed by the Tribunal that (a) the contract of employment was a written contract only, (b) it comprised the Letter of Employment and the Commission document, and (c) that the Claimant had signed both documents. From the papers now before this court, it is not known whether any evidence was led by either party, or any investigation was made by the Tribunal itself under s.20(3) of the Labour Tribunal Ordinance cap. 25, on these matters.

Judgment of Court of First Instance

7. The Defendant sought leave to appeal to the Court of First Instance under s.32 LTO. Deputy Judge Andrew Cheung (as he then was) granted leave, and after hearing the substantive appeal at which the Claimant was not legally represented, gave judgment on 11 July 2003 allowing the Defendant's appeal. He set aside that part of the Labour Tribunal order appealed from, dismissed the Claimant's claims in respect of annual leave pay, holiday pay and sickness allowance, and ordered the Claimant to pay the Defendant's costs of the appeal.

8. It would appear from the judgment that the judge based his decision solely upon the construction of the Letter of Employment and the Commission document, which were taken to comprise the written contract between the parties.

Claimant's application for leave to appeal from Court of First Instance

9. The Claimant sought leave to appeal from the judge's order.

10. Section 35A LTO provides that if any party is dissatisfied with the decision of the Court of First Instance, such party may apply to the Court of Appeal for leave to appeal and if the Court of Appeal considers that "a question of law of general public importance is involved", it may grant leave.

11. Pursuant to Order 59 rule 14 of the Rules of the High Court, the Claimant's application was first made ex parte to a single judge. In the Claimant's application, he only wrote that the Letter of Employment referred to in court had not been read or signed by him. That cannot be a question of law of general public importance, and not surprisingly, on 22 July 2003, Cheung JA refused leave to appeal.

Renewed application

12. On 28 July 2003, the Claimant issued a summons for a renewed application for leave to appeal under Order 59 rule 14(2A) RHC.

13. In his renewed application, the Claimant submitted that his appeal involves a question of general public importance because it was common in many businesses for salesmen to be paid a low basic salary topped up by commission. It was therefore of importance to many employees for there to be a determination by the Court of Appeal whether the commission was part of their "wages", on which many benefits under the Employment Ordinance are based.

14. Presumably this submission is premised on the Claimant having signed the Letter of Employment and the Commission document, and that these made up the written contract between himself and the Defendant.

15. Be that as it may, the statute requires that there should be a "question of law" and that that question is one "of general public importance" before the Court of Appeal can grant leave to appeal. If the question is one of construction of documents only (which may be a question of law), the Claimant would still have to show why that question is one of general public importance, for instance, by showing that clauses identical or similar to those found in his case are commonplace.

16. The Claimant has indicated that he has obtained the Bar pro bono scheme's assistance to pursue his application for legal aid. We consider that it would be of assistance to the Claimant and to the Court to ascertain precisely what the Claimant suggests is the "question of law of general public importance" that his case involves.

17. Accordingly we would grant an adjournment for him to consult the Bar pro bono scheme and we direct that the matter be re-listed at the earliest available hearing date after 25 October 2003 when he would have obtained either legal aid or the assistance of the Bar pro bono scheme. The Claimant being unrepresented and the application being ex parte, we make no order as to costs.