LEE HUNG CHIU, PHILIP v. BECTON DICKINSON ASIA LTD

HCA 2830/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2830 OF 2000

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J U D G M E N T

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Introduction

1.  The plaintiff commenced this action in May 2000 seeking liquidated sums payable upon his summary dismissal by the defendant on 21 July 1999.  The defendant denies liability to pay on the ground the dismissal was for cause.  Further, the defendant disputes the amounts payable even if it were liable.

Background

2.  The background set out below is undisputed.

3.  The defendant’s business has been in medical supplies and diagnostic products in many markets of the world.  The defendant’s Asia Pacific region office was situated in Singapore.

4.  The plaintiff joined the defendant in May 1987, and was gradually promoted until he became the country manager for the defendant’s China operation in January 1995.

5.  The plaintiff’s duties as country manager were in short to establish the defendant’s products in China.  A representative office was set up in the Mainland.  In the course of his employment, the plaintiff’s work performance has been praised by the senior management.  He was also given substantial stock options in the past.

6.  On 8 June 1999, the defendant suspended the plaintiff’s work.  About 1-1/2 months later, on 21 July 1999, the defendant summarily dismissed the plaintiff.

7.  In addition to the above, the defendant asks that the plaintiff’s dismissal be considered in the light of the following undisputed matters:-

(a) internal audits were conducted in March and November 1998, which raised concerns about the increasing receivables due from some of the defendant’s customers;

(b)    the implementation of the financial policy guide in March or April 1999 whereby “No shipment will be allowed if the customer has past due A/R balance …” (see para. 69 below);

(c) a meeting was held in Beijing between the defendant’s Asia Pacific team and its China team in February 1999 where the defendant expressed concern about the delay in payment by some of its customers;

(d)    Mr Banerji, the defendant’s vice-president, finance, Asia Pacific region, made an unscheduled trip to Beijing in late May 1999 to speak with the finance managers and importers.  He then discovered the practice of collecting renminbi in cash and its conversion into US dollars which were then physically carried from the Mainland to Hong Kong;

(e) Mr Camon Sin was employed in June 1999 to investigate into the Hong Kong and Mainland business operations.  Mr Banerji also engaged Messrs PricewaterhouseCoopers (“PWC”) to do so.

Reasons for Dismissal

8.  Various reasons have been given at different stages to justify the dismissal of the plaintiff.

9.  In the re-amended defence, it is alleged the plaintiff:-

(1) breached the “Business Conduct and Compliance Guide” (“the Conduct Guide”) in failing to comply with the laws and regulations of the Mainland;

(2) contravened various laws and regulations of the Mainland;

(3) wilfully disobeyed the lawful and reasonable orders of the defendant;

(4) negligently or dishonestly falsified written records of transaction and failed to report the true financial status of the defendant’s business in the Mainland.

10.  The dismissal letter dated 21 July 1999 stated that the defendant:-

“… believe[s] that [the plaintiff has] engaged in misconduct that is inconsistent with the due and faithful discharge of [his] duties] to [the defendant] under the [Letter of Understanding] and which may constitute fraud and dishonesty”.

For that reason, the defendant terminated the employment without notice or further payment.

11.  The reason given in the termination letter differs from those relied upon in the re-amended defence.  The plaintiff observes that the reasons set out in the defence for the summary dismissal also differed from those set out in the re-amended defence.

12.  On the other hand, it is (correctly) accepted that an employer can rely on reasons in support of the dismissal even if they were not disclosed at dismissal, provided there is adequate factual basis to substantiate such reasons: see, for example, Chitty on Contracts (1999) 28^th Ed., Vol. 2, para. 39-169.

(a)  Unlawful Business Conduct

13.  The alleged misconduct under this head was:-

(a) the plaintiff entered into an agreement with one of the defendant’s customers which referred to a “black market” exchange rate;

(b)    the plaintiff directly collected trade receipts from importers and customers in the Mainland;

(c) the plaintiff converted the renminbi collected in the Mainland into US dollars “privately” rather than through proper channels;

(d)    the plaintiff carried (or caused to be carried) US dollar cash from the Mainland to Hong Kong.

14.  The matters set out in para. 13(a) to (d) above are alleged to amount to the contravention of Mainland law.  In order to properly determine the validity of this allegation, it is necessary to examine the evidence relating to the plaintiff’s conduct in the light of the expert evidence adduced concerning the relevant aspects of Mainland law.

15.  Evidence relating to Mainland law comes from the testimony of the parties’ experts.

16.  Specific aspects of the expert evidence will be discussed below.  On a general level, I prefer the evidence of the plaintiff’s expert to that of the defence expert for the following reasons.

17.  The plaintiff’s expert served as a criminal judge in the early 1990’s.  His legal practice in the Mainland commenced in 1995.  The areas of practice included banking and finance, foreign direct investment, capital market, intellectual property and international litigation and arbitration.  The defence expert has about 7 years of legal practice.  His areas of practice included commercial arbitration and litigation, international trading, foreign direct investment, foreign exchange related matters and general corporate law.

18.  The plaintiff’s expert is more experienced, higher in seniority and has a wider area of practice than the defence expert.

19.  The plaintiff’s expert has personal knowledge and experience regarding the actual implementation of the laws and regulations around the period from 1998 to 1999.

20.  The defence criticizes the plaintiff’s expert for his lack of practical experience in relation to administrative law offences.  However, the same can be said about the defence expert.

21.  The English text of the Mainland statutory provisions set out below is not the official translation.  However, there is no major dispute as regards the translation.

Shantou Agreement

22.  This sub-sub-heading deals with para. 13(a) above.

23.  The defence complains that the plaintiff entered into an illegal contract which offended the foreign exchange laws of the Mainland.

24.  Shantou S.E.Z. Xiexin Economic Development Co. (“Shantou”) was one of the defendant’s customers.  Acting on the defendant’s behalf, the plaintiff executed an agreement dated 15 September 1998 with Shantou to provide for the implementation of a payment plan (“the Shantou Agreement”).  The relevant parts of the Shantou Agreement on which this complaint is based state:-

“… As at 11 September, [Shantou] owes [the defendant] US$3.06 million for payment of goods. …

… The amount and the time of payment in the Payment Plan shall be in accordance with the arrangement of [the defendant] in China.  After [Shantou’s] receivables have been transferred into [Shantou’s] account, [Shantou] shall pay [the defendant] according to the actual payment arrangement.

… The exchange rate between US dollar and Renminbi is based on the prevailing black market rate on the date of payment transfer.  The difference between the black market rate and bank rate shall be borne by [the defendant]” (emphasis supplied).

25.  The plaintiff’s explanation is (in simple terms) the reference to “black market” exchange rate did not mean the currencies would be exchanged in the black market.  It was only another way of saying that a price discount would be given to Shantou (the “black market rate” being more in Shantou’s favour than the “official” rate).

26.  The explanation is not contradicted by other evidence.  I find it to be credible and accept it as truthful and reliable evidence.

27.  The main contest between parties in this regard is whether the above reference in the Shantou Agreement amounted to a contravention of Art. 46, PRC Foreign Exchange Administration Regulations (Amended in 1997) (“1997 FX Reg”).  It is necessary to consider the expert evidence in order to resolve this issue.

28.  The reliance on Art. 46, 1997 FX Reg appears in the supplemental report of the defence expert.  However, there is no analysis therein as to why the defence expert reached the conclusion that Art. 46 has been breached.  Contrary to the supplemental report, the defence expert concluded in his original report that there was no illegality if the Shantou Agreement was merely a price discount arrangement.

29.  When he was cross-examined, the defence expert said that the illegality of the Shantou Agreement lies essentially in the incorporation of an illegal process (that is, the reference to foreign exchange rate(s) used in the black market).

30.  Art. 46, 1997 FX Reg stipulates:-

“Those who buy or sell foreign exchanges in private, in a disguised form, or scalps foreign exchanges shall be warned by the foreign exchange administrations, and be forced to sell their foreign exchanges, and have their illegal incomes confiscated and fined at above 30% and below 3 times their illegally traded foreign exchanges, or be affixed with legal responsibilities if they commit crimes” (emphasis supplied).

Because the provision is directed against acts of “buy” and “sell”, its natural and ordinary meaning does not appear to support the said conclusion.

31.  The plaintiff’s expert, on the other hand, disagrees with the said conclusion and opines that this does not offend any law in the Mainland.  He considers the reference in the Shantou Agreement to “black market rate”, which only operated to give Shantou a discount, to fall outside the ambit of Art. 46, 1997 FX Reg.

32.  In light of the matters set out above, I prefer the opinion of the plaintiff’s expert to the defence expert’s.  Accordingly, I do not consider the defendant to have made out its case relating to this aspect.

Direct Operation

33.  This sub-sub-heading concerns para. 13(b) above.

34.  The relevant Mainland law is set out below.

35.  Art. 3, Registration and Administration Measure for Resident Representative Office of Foreign Enterprise (“Rep Office Measure”) provides:-

“Resident representative offices of foreign enterprises shall be understood as those engaging in non-direct operational activities”.

36.  Art. 4, Implementing Rules regarding Approval and Administration of Resident Representative Office of Foreign Enterprise in the PRC promulgated by the Ministry of Foreign Trade and Economic Cooperation (“Rep Office Implementing Rules”) stipulates:-

“The resident representative offices of the foreign enterprises may engage in non-direct operational activities and may, on behalf of their enterprises, conduct business liaison, product introduction, market survey and technique communication, which are within their business scopes” (emphasis supplied).

37.  Art. 15, Rep Office Measure states that resident representative offices which violate Art. 3 thereof shall be ordered to stop their operations and pay a fine.

38.  The defendant’s complaint here is essentially this.  The plaintiff, either acting by himself, or by procuring the defendant’s other staff to do so, collected trade receipts and receivables in renminbi cash from importers and distributors in the Mainland.  This amounts to direct operational activities because it was not “business liaison, product introduction, market survey [or] technique communication”.

39.  The plaintiff does not dispute that there has been the collection of trading debts.  But he alleges that the practice was already in place before he took charge of the Mainland office.  It is undisputed the sales from which the trade receipts/receivables arose were those of the defendant (and not those of the Mainland office).  The plaintiff’s case is the Mainland office was collecting payment only on the defendant’s behalf.

40.  Unlike the defence expert, the plaintiff’s expert opines that what is crucial is: in whose name the representative office’s activities were carried out as a matter of substance.  He considers Art. 4, Rep Office Implementing Rules do not cover the collection of trading debts which is carried out on the principal’s behalf.

41.  The defence expert disagrees.  He considers the above activities to fall within Art. 4, Rep Office Implementing Rules because:-

“invoicing, credit collection, and accounting do not belong to any of the foregoing four(4) kinds of non-direct operational activities, but belong to direct operational activities.  In particular, an activity such as credit collection is typically an indispensable part of the direct operational activities of an enterprise, and should under no circumstances be undertaken by a Rep Office” (emphasis supplied) (para. 22, Lingyun He’s report).

42.  Both experts’ opinions are probably too sweeping.  The phrase “business liaison” has been used in Art. 4, Rep Office Implementing Rules.  There is no proper reason to limit that phrase only to liaison activities prior to the conclusion of commercial dealings (such as a commercial contract).  That phrase is capable of including various kinds of liaison so long as they are concerned with the principal’s business.

43.  Based purely on the natural and ordinary meaning of Art. 4, Rep Office Implementing Rules, one cannot find fault with the opinion of the plaintiff’s expert; the 4 types of permissible business activities are not meant to be exhaustive of what a representative office can undertake.  Further, “business liaison” means liaison which is related to business.  Debt collection can well fall within that category.

44.  However, I am prepared to proceed on the assumption (in the defendant’s favour) the spirit of the statute prohibits a system whereby the representation office was given exclusively (or at least regularly) the work of debt collection.

45.  Even if this were the correct meaning of Art. 4, Rep Office Implementing Rules, there is no evidence such a system has been put in place by the plaintiff, nor that what he has in fact undertaken amounted to putting such a system in place.  The overall tenure of the plaintiff’s testimony is that only those of the defendant’s customers who have exhibited debt collection difficulties would be approached by the staff of the representative office (including the plaintiff).

46.  Accordingly, I do not find the plaintiff to have breached any Mainland law in this regard.

Currency Conversion

47.  This sub-sub-heading is about para. 13(c) above.

48.  The relevant Mainland law is as follows.

49.  Art. 40(2) and 46, 1997 FX Reg provide respectively:-

“Those who commit one of the following acts of illegal foreign exchange arbitrage shall be given a warning by foreign exchange administrations, forced to exchange the money, and asked to pay fines … or affixed with legal responsibilities if they commit crimes … payment in renminbi of the expenditures of a third party spent in China for repayment from this party in foreign exchanges … ”;

“Those who buy or sell foreign exchanges in private, in a disguised form, or scalps foreign exchanges shall be warned by foreign exchange administrations, forced to sell their foreign exchanges, have their illegal incomes confiscated and fined at above 30% and below 3 times their illegally traded foreign exchanges, or be affixed with legal responsibilities if they commit crimes” (emphasis supplied).

50.  Art. 3, Judicial Interpretation regarding Several Questions on Specific Application of Law on Trial of the Criminal Cases of Foreign Exchange Fraud and Illegally Purchasing/Selling Foreign Exchange Promulgated by the PRC Supreme People’s Court (“FX-related Judicial Interpretation”) states:-

“In case of buying and selling of foreign exchange other than in designated foreign exchange banks or in China foreign exchange transaction centre or its sub-centres to disrupt the order of financial market as anyone of the following circumstances, the doer shall be convicted and punished according to the provisions of Item 3 of Article 225 of Criminal Law: (1) the amount of illegal trading exchange exceeds USD200,000; (2) the amount of illegal income exceeds RMB50,000” (emphasis supplied).

51.  Art. 4, Decision regarding Penalizing the Crimes of the Foreign Exchange Fraud, the Foreign Exchange Evasion and the Illegal Purchase/Sale of the Foreign Exchange Promulgated by the Standing Committee of the National People’s Congress (“FX-related Decision”) stipulates:-

“Serious offences of illegal trading of foreign exchange outside of the state-designated trading venues and disruptions of the market order shall be condemned and punished in accordance with the stipulations of Article 225 of the Criminal Law”.

In short, Art. 225, Criminal Law provides for the penalty to be imposed in case of contravention.

52.  The plaintiff’s conduct which is undisputed was in short this.  After renminbi has been collected by the Mainland representative office, it was exchanged into US dollars using the money held by the representative office.

53.  Further, the plaintiff asserts that it was Mr Pan Lin who came up with the idea, and the practice was known to the plaintiff’s immediate superior, Mr Eugenio Naschold, and Mr Herman Kwan, the defendant’s former financial controller, Asia Pacific region.

54.  Based on the above facts, the plaintiff’s expert opines that the exchange of renminbi for US dollars was in the nature of an “internal accounting issue”.  This is because no change of ownership has been involved.

55.  The defence expert takes issue and opines that, even though the exchange took place “indoors”, it was still a form of arbitrage (Art. 40(2), 1997 FX Reg), or an act of “buy” and “sell” (Art. 46, FX Reg).  This is so even though the exchange involved currencies which both belonged to the defendants.  The expert also relies on an observation to similar effect in the draft report of PWC.

56.  I agree with the plaintiff that the opinion of the defence expert should be rejected because:-

(1) the express language in Art. 40(2) and 46 (above) does not support such conclusion;

(2) the part of PWC’s draft report relied upon was about the practice of some importers remitting US dollars to Hong Kong through other importers.  It has nothing to do with an “internal” currency swap.

Carriage of Money Across Border

57.  This sub-sub-heading deals with para. 13(d) above.

58.  The relevant Mainland law is set out below.

59.  Art. 14, 1997 FX Regulation provides:-

“Individuals carrying foreign exchanges with them when they come into or go out of China shall go declaration procedures with the Customs.  Those going out of China who carry more than prescribed amounts of foreign exchanges shall also produce valid documents to the Customs”.

Art. 5, Regulation regarding Entry and Exit of the Border of the PRC by Carrying the Foreign Exchange Jointly Constituted by the State Administration of Foreign Exchange and the China Customs (“FX Entry & Exit Reg”) states that non-residents with foreign exchange equivalent to not more than US$5,000 need not apply for “carrying certificate”.

60.  Art. 2, Provisional Regulation on Imposing Administration Penalties on Foreign Economic and Trade Enterprises Conducting Foreign Exchange Evasion and Arbitrage Promulgated by the Ministry of Foreign Trade and Economic Cooperation (“FX Evasion & Arbitrage-related Reg”) defines foreign and arbitrage acts as (among other things) carrying foreign exchange abroad in violation of the State stipulation.

61.  Both parties agree that, if the amount of US dollar did not exceed US$5,000 per person per trip, it was unnecessary to declare to the Mainland customs.

62.  The plaintiff’s testimony is that, since about mid-1996, he and other staff of the Mainland representative office has carried a total amount of US$10,000 to Hong Kong every month.  They made about 3 to 4 such trips on average.  The amount carried by the plaintiff each trip would not exceed US$5,000.  He also reminded his colleagues not to exceed that sum.

63.  The plaintiff also testified that he did not try to conceal the fact.  This claim is supported by the bound volume of payment vouchers in the trial bundle.  The cover is titled “BD Asia – Conversion of US Dollars”.  He also claimed the practice was known to Mr Naschold.

64.  The defendant has not been able to discredit the plaintiff about this.  His testimony is not inherently incredible.  There is no proper ground for disbelieving it and I do not do so.

65.  The defence refers to a factual difference between the plaintiff’s witness statement (carrying RMB6,000 with customs declaration) and his testimony (carrying RMB5,000 with customs declaration).  I consider the difference to have resulted from inadvertence than dishonesty.

66.  This complaint has not been established.  As regards the defendant’s complaint that, even though the conduct was not illegal, it was not the act of an honest and bona fide businessman, this complaint is irrelevant to the reasons for dismissal relied upon in its own pleadings.

Other Alleged Contraventions of the Mainland Law

67.  The defendant also mentions other alleged contraventions of the Mainland law in its closing submissions.  I agree with the plaintiff the defence should not be permitted to rely on these unpleaded allegations.

(b)  Wilful Disobedience

68.  The defendant’s main complaint here is that the plaintiff agreed to ship goods to the defendant’s customers despite instructions not to do so in cases of overdue trade balances.

69.  This complaint arises from an interim credit control measure which the defendant set up in December 1998 to the effect goods should not be shipped to customers with overdue balances except on cash basis.  This was followed in March or April 1999 by a finance policy guide on credit approval.  A committee was set up to determine the credit to be given to a customer based on established criteria.  The draft guide which was sent by the plaintiff himself in March 1999 states:-

“Prior to written approval from Credit Approval Committee, No shipment will be allowed if the customer has past due A/R balance or if the sales order value plus outstanding A/R balance exceeds the credit limit”.

70.  The background leading to the directives is undisputed.  From the outset, the defendant experienced difficulties in collecting payment from its customers.  To deal with this problem, the directives were put in place to encourage or pressurize the customers to pay up.

71.  The plaintiff’s execution of an agreement with a customer, Guangdong Maoming City Xin Fu Hang Co. Ltd. (“Maoming”), on 12 January 1999 is undisputed.  It provides (among other things):-

“… there will be at least 20 cargoes per year.  If the value of imports per year is less than US$2 million, [the defendant] shall compensate [Maoming] for the difference in contract fees … ” (“the Maoming Agreement”).

72.  The defendant complains that, on the date of the Maoming Agreement, Maoming still owed it more than US$2.5 million.  The execution of the Maoming Agreement was therefore a breach of the interim credit control measure.  Further, it committed the defendant into guaranteeing minimum shipments to Maoming unconditionally.

73.  While not disputing the execution of the Maoming Agreement, the plaintiff contends that it was executed before the implementation of the finance policy guide (as opposed to the interim credit control measure) (see para. 69 above).  Also, the Maoming Agreement was merely an “intent of sale”; if and when Maoming sought the supply of goods, shipment would only be effected upon cash payment.  In any event, no shipment has in fact been made to Maoming pursuant to the Maoming Agreement, nor has Maoming made any claim thereunder.  Thus, no actual loss has been caused to the defendant.

74.  In response to the amount of debt outstanding from Maoming (of about US$2.5 million), the plaintiff drew attention to the gradual reduction in amount: US$2.6 million in September 1998, US$2.479 million in February 1999 and US$2.3 million by the end of February 1999.  There was also a verbally agreed monthly repayment schedule of US$250,000.

75.  I am not satisfied that the plaintiff’s act justified his summary dismissal.

76.  One, it is true the Maoming Agreement did not expressly require cash payment.  But, equally, its terms did not preclude the imposition of a term requiring cash payment before shipment if and when an order was placed by Maoming.

77.  Two, in any event, I do not consider the plaintiff to have acted other than in good faith.  There is no allegation he entered into the Maoming Agreement for personal gain.  It is possible he did so with a desire (perhaps over-zealous desire) to increase the sales volume of the representative office.

78.  Three, the fact that no claim has been lodged against the defendant by Maoming since January 1999 supports the plaintiff’s contention of an “intent of sale”.

79.  The defendant’s other complaint under this sub-sub-heading came from an e-mail sent to Mr Banerji from Mr Henry Ung in May 1999:-

“… we cut off all the shipment to HuiJu because of A/R problems. … we don’t have any other distributor in its territory … a couple of days ago, I asked [a sales representative] if she still had the same problem [of goods supply].  She said no more … I asked her where she got the product from.  She said from HuiJu.  She further explained that Beijing had arranged to have one Beijing distributor order goods from Suzhou, and turned around ship it back to Shanghai for HuiJu …

There were three new distributors added to Suzhou A/R account last month.  Suzhou has not been informed of their credit limits or credit terms as stated in the newly issued credit policy”.

80.  The plaintiff’s response was contained in his e-mail of May 1999.  This was criticized by Mr Banerji when he was cross-examined:-

(a) the plaintiff failed to directly answer the alleged diversion of goods from Beijing to HuiJu;

(b) the plaintiff failed to notify the credit limits of the 3 new distributors to Suzhou.

81.  The relevant parts of the plaintiff’s May 1999 e-mail are:-

“We checked with … the distributor in Shenyang Weidi.  He said that he never communicated such message to Suzhou, if Suzhou did communicate with his company, please indicate to him with whom they have talked. …

… we have just appointed E&Y to do the inventory check for importers/distributors including HuiJu, they do have carried forward inventory, which means, they can continue selling products. …

We did add new distributors last month but all followed our new credit policy and credit search done by D&B, score rating with RAM and reviewed by Credit Approval Committee … ”.

82.  In view of the above-quoted passages, I agree with the plaintiff that Mr Banerji’s criticisms reflect an exceedingly pedantic approach.

83.  As regards Mr Banerji’s claim that he informed the plaintiff of his findings against the plaintiff, following an unscheduled visit to China in late May 1999, I do not accept the claim to be reliable in view of the absence of contemporaneous record in support, or any reference to such effect in his witness statement compiled in December 2000.

84.  In short, I am not satisfied the complaint has been made out.

(c)  Falsifying Written Records and Failing to Report

85.  The evidence in support of this aspect comes essentially from the testimony of Mr Camon Sin, the defendant’s financial controller since June 1999 (after the plaintiff’s suspension from duty).

86.  He was tasked to review the business process and account records of the defendant’s China and Hong Kong operations.  His findings which are related to this sub-sub-heading are:-

(1) a payment of US$199,980 was received from a Ki Tat Trading Ltd. (“Ki Tat”) in November 1998.  This was however credited as having been received from Shantou;

(2) two payments (RMB500,000 and 374,005.20) were made by Hung Hua International Trade (Tianjin) Co. Ltd. (“Hung Hua”) in May 1999 but were credited as payments made by Maoming.

87.  In relation to the Ki Tat payment, Mr Sin spoke to a Mr Au, the defendant’s former finance and administration manager.  Mr Au told Mr Sin he was instructed by the plaintiff to “window-dress” Shantou’s account.

88.  In relation to the Hung Hua payment, Mr Sin spoke to Hung Hua’s general manager.  He was told Hung Hua made payment to the defendant via a National Jianong Enterprise Co. Ltd. (“Jianong”), another of the defendant’s customers.  The records kept by the defendant included a memorandum from Jianong which claimed the payment was from Maoming.  Mr Sin believes that it was the plaintiff who procured Jianong to send the memorandum to confirm a false accounting entry.  The plaintiff’s motive was also believed to be for “window-dressing” Maoming’s account.

89.  The above allegations against the plaintiff has to be considered in the light of a telephone conversation between Mr Roman Santini, the defendant’s human resources manager, Asia Pacific region in July 1999 (after the plaintiff’s dismissal).  The conversation was in gist about Mr Santini offering to the plaintiff to “withdraw” the dismissal letter and allowing him to resign, together with an opportunity for the plaintiff to exercise his vested stock options.  During the conversation, Mr Santini admitted the defendant had no evidence to show the plaintiff was dishonest.

90.  The defendant objects to the admissibility of the transcript of the conversation, contending it was a “without prejudice” communication.  There are two hurdles to that contention.  One, as the plaintiff points out, there was no (and no reference to) contemplated litigation at the time.  Two, in any event, the transcript was disclosed in a witness statement of Mr Santini (dated 6 December 2000) for use in this action (the gist of the conversation was also narrated in the witness statement).

91.  The plaintiff explained that Ki Tat only became one of the defendant’s importers in November 1998.  Its goods were supplied by Shantou but the sum of US$200,000 was paid by Ki Tat to the defendant.  Hence, (leaving aside the niceties of accounting entries) the net result was that Shantou should be credited for that sum in the defendant’s records.  As to precisely how the defendant’s books and accounts were to be kept, that was not part of the plaintiff’s responsibilities.

92.  The defence highlights a matter in the plaintiff’s witness statement: the Ki Tat payment was said to have been made before Shantou actually delivered the goods.  I do not find this to affect my above assessment of his credibility.  Criticism is also levied against the plaintiff’s claim of no knowledge of the Ki Tat payment at the time.  Reliance is placed on a receipt countersigned by the plaintiff which was sent to Ki Tat on 28 May 1999.  I accept the plaintiff’s explanation that he did not pay attention to the document when he countersigned it at the time.

93.  There is no evidence to contradict the plaintiff’s explanation and I accept it to be truthful.  The finding set out in para. 83 above is repeated.

94.  As for the Hung Hua payment, there is simply no reliable evidence to connect the plaintiff to it.  There is also no evidential basis for connecting the plaintiff to how the accounting entries were made in the defendant’s records in relation to this payment.

95.  This complaint is not established either.

Conclusion on Liability

96.  Judgment is entered in the plaintiff’s favour.  The quantum of award will be discussed below.

Quantum

(1)  Stock Options

97.  As stated above, the plaintiff’s remuneration package included stock options, that is, the right to buy a fixed number of the defendant’s shares at a fixed price for a fixed period of time.

98.  The stock options claimed in this action are:-

Stock OptionNo.	Date	Options Granted	Option Price(US$)	Loss (US$)
1	24 January 1994	1,190 x 4= 4,760	$8.64	$(28.72 – 8.64)x 4,760= $95,580
2	23 January 1995	1,400 x 4= 5,600	$12.55	$(28.72 – 12.55)x 5,600= $90,552
3	22 January 1996	1,247 x 4= 4,988	$20.03	$(28.72 – 20.03)x 4,988= $43,345.72
4	22 January 1996	553 x 4= 2,212	$20.03	$(28.72 – 20.03)x 2,212= $19,222.28
5	22 July 1996	15,000 x 2= 30,000	$18.83	$(28.72 – 18.83)x (30,000 x 50%)= $148,350
6	27 January 1997	4,000 x 2= 8,000	$24.81	$(28.72 – 24.81)x (8,000 x 50%)= $15,640
7	26 January 1998	1,297 x 2= 2,594	$29.34	No claim
8	26 January 1998	1,703 x 2= 3,406	$29.34	No claim
Total				$412,690

99.  The defendant’s shares were split into two in August 1996 and each share was further so split in August 1998.  Hence, stock options granted between August 1996 and August 1998 (options No. 5 and 6) have to be multiplied by 2 whereas those granted before August 1996 (options 1 to 4) have to be multiplied by 4.

100.  The issues which need to be resolved are set out below.

Fair Market Value of the Shares

101.  The plaintiff contends that the fair market value of the shares should be:-

(a) that on 9 June 1999 (US$37.83), the date of his suspension from duty by the defendant; or

(b)    that on 21 July 1999 (US$28.72), the date of summary dismissal.

102.  The table set out above is taken from the annexure to the plaintiff’s written closing submissions.  The plaintiff fairly uses the share price on 21 July 1999 (US$28.72) (instead of that on 9 June 1999) as the basis for calculation.

103.  On the other hand, the defendant contends the share price on 22 July 1999 (US$27.375) should be used as the basis for calculation.  Alternatively, the average share price for the period from 22 July to 21 October 1999 (US$27.34) should be used instead.

104.  In brief, I consider the most appropriate share price for calculating the amount of award under this head of claim to be that on 21 July 1999 (that is, the date of summary dismissal) (US$28.72).

Were the Shares in Option No. 5 Vested ?

105.  There is no dispute the options have to be vested before they can be exercised.  The terms concerning the vesting of stock options state:-

“50% of the option vests at the end of the second year after the date of the grant.

The remaining 50% vests at the end of the third year”

(“the vesting rule”).

106.  The defendant argues that, despite the “vesting rule”, option No. 5 was a special grant which was not to vest at all until 3 years after it was granted.  This argument arises from the following matters.

107.  In a memorandum dated 14 August 1996, the defendant informed the plaintiff of the award of a special stock option.  The memorandum says:-

“You will be allocated 15,000 shares at an exercise price of US$37.66 … These share can be vested in one instalment after three years … ” (emphasis supplied).

108.  In a notice of stock option grant dated 27 August 1996, the defendant notified the plaintiff of a grant of stock options under the 1990 stock option plan.  The terms and conditions of option were attached to the memorandum.  Those terms and conditions include:-

“… you may purchase up to 100% of the total number of shares subject to the option after three years from the Grant Date”.

109.  In reply, the plaintiff asserts that, despite the memoranda referred to above, the “vesting rule” set out in para. 105 above still applies to option No. 5.

110.  I am unable to agree with the plaintiff.  Option No. 5 was expressly stated to be a special stock option.  A period of 3 years was stated in both memoranda.  In these circumstances, the specified period must prevail over the usual “vesting rule”.

111.  For this reason, option No. 5 was not yet vested at the time of the summary dismissal and irrecoverable by the plaintiff.

Have the Stock Options Lapsed ?

112.  Clause 7 of the Prospectus attached to the defendant’s stock option plan provides:-

“options granted … expire immediately if an employee is terminated for cause.  They expire three months after a voluntary or involuntary termination without cause … ”.

113.  It is undisputed, after his dismissal, the plaintiff has not notified the defendant he wishes to exercise the stock options (apart from making a related monetary claim in this action).  The defendant claims that the time for exercising the stock options has expired by reason of clause 7.  This head of claim should be dismissed for that reason.

114.  I agree with the plaintiff there is no merit in the defendant’s claim.  The dismissal letter says:-

“[the plaintiff] shall not be entitled to any cash or non-cash consideration or other benefits of any kind except as specifically provided herein.  Without limiting the generality of the foregoing … [all] outstanding and unexercised rights under [the defendant’s] executive incentive compensation plans, whether vested or unvested, are hereby forfeited for cause” (emphasis supplied).

In fact, a similar stance was adopted in the defendant’s letter dated 9 June 1999 suspending the plaintiff’s work.

115.  By the above letters, the defendant has in effect deprived the plaintiff of the stock options which have already vested as at 21 July 1999.  It is disingenuous for the defendant to argue that, because the deprivation has now been found to be wrongful, somehow the plaintiff still ought to have “exercised” the options at some time during the period of wrongful deprivation.

(2)  Wages in lieu of Notice

116.  There was no contractual term regarding the period of notice for terminating the plaintiff’s employment.

117.  Various provisions in the Employment Ordinance (Cap. 57) stipulate the length of notice to be given, and for the amount of damages payable if the notice period provisions are not complied with.  S. 6(2)(a) provides:-

“The length of notice required to terminate a contract of employment shall be … in the case of a contract which … does not make provision for the length of notice required to terminate the contract, not less than 1 month”.

118.  Further, s. 8A(1) states:-

“… where a contract of employment is terminated otherwise than in accordance with section 6 or 7, a sum equal to the amount of wages that would have been payable had the contract been terminated in accordance with section 7 shall be payable by the party terminating the contract to the other party”.

119.  The plaintiff contends that the reasonable period for terminating his employment by prior notice should be 3 months, being the reasonable period for the position he occupied when employed by the defendant.  He argues that s. 6(2)(a), Cap. 57 does not preclude such conclusion, the language used there being “not less than 1 month”.

120.  I disagree.  In effect, s. 6(2)(a) confers a statutory right on the party wishing to terminate the contract to do so lawfully upon giving the minimum notice period prescribed.  In that sense, the minimum prescribed period is deemed to be a reasonable period.

121.  The parties do not dispute the amount of “wages” in their written closing submissions, namely, S$19,421 per month.

122.  Accordingly, judgment for S$19,421 should be entered under this head of claim.

(3)  Long Service Payment

123.  S. 31R(1)(a)(i), Cap. 57 stipulates:-

“Where an employee who has been employed under a continuous  contract … for not less than 5 years of service at the relevant date ... is dismissed ... the employer shall ... pay to the employee a long service payment calculated in accordance with section 31V(1)”.

And s. 31V(1)(a) provides:-

“… the amount of a long service payment payable under section 31R(1) … shall be calculated by allowing … in the case of  monthly rated employee, two-thirds of his last full month’s wages, or two-thirds of $22,500, whichever is less”.

124.  It is common ground the plaintiff has worked for the defendant for about 12 years (see also the deeming provision in ss. 31T(2) and 31ZA, Cap. 57).

125.  In the written closing submissions, the plaintiff seeks long service payment in the sum of HK$180,000 (HK$15,000 x 12).

126.  The defendant opposes this head of claim on the ground that it has never been raised in the plaintiff’s pleadings.

127.  Reliance is also placed on s. 4(1)(d), Limitation Ordinance (Cap. 347).  It is said that the claim is only raised more than 6 years after the accrual of the cause of action.

128.  Apart from the technical objections, the defendant submits that it has suffered real prejudice in not having been alerted to this head of claim.

129.  The defendant outlines in its closing submissions a potential defence on the merits which it could have established if afforded a proper opportunity to do so.

130.  S. 31Y, Employment Ordinance (Cap. 57) provides:-

“If an employee becomes entitled to payment of a long service payment under this Part and-

(a) because of the operation of the employee's contract of employment, one or more gratuities based on length of service or one or more relevant occupational retirement scheme benefits have been paid to the employee; or

(b) a relevant mandatory provident fund scheme benefit is being held in a mandatory provident fund scheme in respect of the employee, or has been paid to or in respect of the employee,

the long service payment is to be reduced by the total amount of all of the gratuities and benefits to or in respect of the employee to the extent that they relate to the employee's years of service for which the long service payment is payable” (emphasis supplied).

131.  The defendant claims that the plaintiff was entitled to benefits under the Singaporean CPF scheme (similar to Hong Kong’s mandatory provident fund).  The period of entitlement ran between July 1989 and July 1999.  The total amount of entitlement (about S$242,038) is likely to be more than the amount of long service payment (the maximum sum of HK$180,000).

132.  In view of the matters set out above, I agree with the defendant this head of claim should not be allowed.

Conclusion

133.  Judgment is therefore entered against the defendant in the following sums:-

(1) US$264,340 (US$412,690 – 148,350) (stock options);

(2) S$19,421 (wages in lieu of notice).

Other Matters

134.  It should also be noted I have already taken into account the matters raised in the defendant’s closing submissions (under the heading “What the Plaintiff should have Done”) when assessing the plaintiff’s credibility.

135.  The plaintiff accepts the judgment sums should not carry interest for the period from 8 December 2000 to 5 July 2007.

Costs Order Nisi

136.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this action (including any reserved costs) be paid by the defendant to the plaintiff to be taxed if not agreed.