LI CHUN KEUNG v. LAU YIU BUN t/a LAU HO WEI SHIPYARD

[English Translation —英譯本]
HCMP 1299/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1299 OF 2010

(ON APPEAL FROM HCLA NO. 34 OF 2009)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Background

1.  On 19February 2008, the Claimant, Mr. Li Chun Keung, filed his claim with the Labour Tribunal (“Tribunal”) for recovery of wages in arrears of around $10,000 between 16 September and 19 October 2007 from the Defendant, Lau Yiu Bun trading as Lau Ho Wei Shipyard (“Mr. Lau”).

2. On 25 July 2008, Mr. Pang Ka Kwong, Deputy Presiding Officer of the Tribunal, held that Mr. Li’s claim failed and dismissed it. The Presiding Officer, Mr. Pang, ruled that the employment contract between Mr. Li and Mr. Lau ended on 15 August 2007; therefore, Mr. Lau was not liable to Mr. Li for paying him any of his salary thereafter.

3.  Mr. Li appealed against the above judgment to the Court of First Instance of the High Court.

4. On 15 April 2009, Poon J of the Court of First Instance of the High Court allowed Mr. Li’s appeal and ordered that the case be remitted to the Tribunal for retrial before another Presiding Officer.

5. Poon J was of the view that the Presiding Officer, Mr. Pang, failed to investigate thoroughly into whether Mr. Lau’s claim of leasing out the Shipyard concerned to Hebe Haven Ship Owners Association (literal translation) (“Ship Owners Association”) was consistent with the facts. Poon J pointed out that the contract between the Government and Mr. Lau for the leasing of the Shipyard prohibited him from subletting or transferring the lease to others. Therefore, his claim of leasing out the Shipyard was questionable. Furthermore, according to Mr. Lau, the contract he claimed to have signed with the Ship Owners Association required him to manage the shipyard for and provide reasonable services to the Ship Owners Association, so he might need to continue to retain Mr. Li as his employee. This is also inconsistent with Mr. Lau’s claim that Mr. Li was the employee of the Ship Owners Association instead of his.

6. The case was remitted to the Tribunal for retrial before another Presiding Officer, Mr. Brian Mak. The position of Mr. Lau remained that he had transferred the lease of the Shipyard to the Ship Owners Association on 15 August 2007; therefore, Mr. Li was not his employee between 16 September and 19 October 2007, and that he was not liable to pay him any wages in arrears.

7.The Presiding Officer, Mr. Mak, accepted what Mr. Lau said and held that Mr. Li’s claim failed again. Mr. Li appealed against the decision to the Court of First Instance again.

8. Mr. Li’s second appeal hearing was also heard before Poon J. Poon J said in his judgment given on 5 May 2010 that the Presiding Officer, Mr. Mak, did not make investigation into the issues he pointed out in the first appeal hearing that the Presiding Officer, Mr. Pang, had failed to investigate sufficiently, especially regarding whether the management contract signed between Mr. Lau and the Ship Owners Association was consistent with Mr. Lau’s claim. Moreover, Poon J listed out various pieces of evidence which were not consistent with Mr. Lau’s claim.

9. Eventually, POON J again allowed Mr. Lau’s (sic) appeal and ordered that the case be remitted to the Tribunal for another retrial before another Presiding Officer. As Mr. Li was claiming for employee’s compensation against Mr. Lau in the District Court (DCEC 759/2009), and the points in dispute were the same in both cases, POON J ordered that Mr. Li’s claim for wages in arrears be stayed till the conclusion of the trial (DCEC 759/2009).

10. At the same time, Poon J ordered Mr. Lau to pay the full costs of the appeal.

11. Dissatisfied, Mr. Lau applied to this Court on 9 July 2010 for leave be granted to him to appeal to the Court of Appeal.

12. Mr. Lau said Poon J did not say that he had to pay costs; he only said that the Claimant, Mr. Li, was awarded costs.

13. Mr. Lau emphasized that the Tribunal had twice given judgment for him, but were both overturned. Another retrial was unfair to him.

14.  Section 35A of the Labour Tribunal Ordinance sets out the procedures and basis for appeals in Labour Tribunal cases to be lodged with the Court of Appeal. The section provides:

“If any party is dissatisfied with a decision of the Court of First Instance on an appeal heard by leave given under section 32, such party may, within 7 days after the date of the decision, 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.”

15. Poon J gave the judgment on 5 May 2010 and handed it down on 10 May 2010. Mr. Lau only filed this application almost two months out of time on 9 July 2010. He, however, did not explain the reasons why it was made out of time.

16. Mr. Lau stated that Poon J did not order him to pay costs. As a matter of fact, awarding costs to the Claimant (Mr. Li) and ordering him to pay costs are of the same nature. In addition, the Court is merely exercising its discretion when making a costs order which does not involve a question of law of general public importance. There is no basis for this Court to grant Mr. Lau leave to appeal against the costs order.

17. We understand Mr. Lau’s dissatisfaction. Mr. Li only claimed for wages in arrears of around $10,000 from him and the Tribunal had twice given judgment for him after trial. However, the judgments were set aside both times on appeal and he has to face the third trial. Furthermore, the amount of costs Mr. Lau has to pay may be a few times more than the arrears in wages Mr. Li is claiming.

18. Both parties appeared in person at the Tribunal hearings, hence, the costs involved, if any, will amount to a few hundred to one thousand dollars only. However, the costs of an appeal heard in the Court of Instance of the High Court may amount to tens of thousands of dollars or even up to hundreds of thousands of dollars as it involves legal representation. This would cause substantial distress to the party who has to pay the costs.

19. Generally speaking, costs would be awarded to the winning party. To apply this general practice to Labour Tribunal appeals may be unfair to the losing party.

20.  We are of the view that when dealing with the question of costs in Labour Tribunal appeal cases, the Court of First Instance of the High Court should carefully analyze the background of the case, the financial circumstances of both parties, and the possible impacts caused by the costs order before making an appropriate order. The Court should make a costs order based on the background of individual cases. Sometimes, the fairer way to deal with it may be not to make an order for costs or simply order the losing party to pay part of the costs of the winning party.

21.  However, making a costs order is not anything that involves a question of law of general public importance. Mr. Lau has not identified what other questions of law were involved in the appeal he hopes to lodge, let alone a question of law of general public importance. This Court has no basis to grant him leave to appeal.

22. We dismiss Mr. Lau’s application. But in view of the background of the case and the contents of the affirmation/affidavit filed by Mr. Li’s legal representative in opposing the application, we make no order as to costs in this application for leave to appeal.

23. Pursuant to O. 59 r. 2A(5)(a) of the Rules of the High Court, the Court of Appeal may determine the application without a hearing on the basis of written submissions only.

24.  It is also stipulated in Section 14AA of the High Court Ordinance that leave to appeal shall not be granted unless the Court of Appeal hearing the application for leave is satisfied that, (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

25.Mr. Lau’s application does not satisfy the requirements in law. Other than dismissing his application, pursuant to O. 59 r. 2A(8) of the Rules of the High Court, we also order that Mr. Lau may not request the Court to reconsider his application at an oral hearing inter partes by applying (O. 59) r. 2A(7).

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.