CHAN YEE LING ELAINE v. M/s CHRISTINE M. KOO & IP, SOLICITORS & NOTARIES

CAMP 200/2018

[2019] HKCA 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 200 OF 2018

(ON AN INTENDED APPEAL FROM HCLA 6/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 14 December 2018, Deputy High Court Judge Keith Yeung SC refused to grant leave to the claimant to appeal against the decision of the Presiding Officer of the Labour Tribunal in Labour Tribunal Claim No 2759 of 2011. The claimant’s claim was dismissed by the Tribunal on 2 March 2018. She sought a review and the application for review was dismissed by the Tribunal on 17 May 2018.

2.  The claimant, who is a solicitor by profession, applied by a summons of 21 December 2018 to this Court to seek leave to appeal against the decision of the deputy judge of 14 December 2018.

3.  On 24 December 2018, the Registrar of Civil Appeals gave directions drawing attention to Section 32(3) of the Labour Tribunal Ordinance Cap 25.  By that statutory provision, the refusal of leave by the Court of First Instance is final.

4.  The Registrar invited the claimant to lodge written submissions by 11 January 2019 if she objected to the dismissal of the summons of 21 December 2018 on account of Section 32(3) of the Labour Tribunal Ordinance.

5.  By a letter of 27 December 2018, the claimant informed the Court that she had not served the summons on the defendant and she wrote on 24 December 2018 to withdraw the summons.

6.  It is not the practice of this Court to allow a summons to be withdrawn in these circumstances.  If a party does not wish to pursue a summons after filing the same, this Court will usually dismiss the same.

7.  The claimant lodged a set of submissions on 9 January 2019. In those submissions, she relied on the judgment in Lilik Andayani v Chan Oi Ling CACV 104/2000, 19 September 2000 and contended that this Court can exercise a discretion not to apply section 32(3) of the Labour Tribunal Ordinance.

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 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-opened: 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.