CHIK WAI KIN MICHAEL v. BEST SKY LTD

HCLA48/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 48 OF 2007

(ON APPEAL FROM LBTC NO. 3656 OF 2007)

---------------------

---------------------

------------------------

J U D G M E N T

------------------------

1. This is an appeal from the Labour Tribunal refusing the appellant/defendant’s leave to transfer the Labour Tribunal claim to the District Court.  The claimant, Mr Michael Chik, was an employee of the defendant’s services company called Best Sky Limited (“Best Sky”). 

2. This services company serves a firm of solicitors in the name of Ms Julie Lo.  The claimant was a senior legal executive of the firm.  Apart from the salary paid by this services company to Mr Chik during the course of employment, the company also paid rental for a property occupied by Mr Chik.  In fact this property was owned by Bright Road Company Limited (“Bright Road”) of which Mr Chik and his wife were the sole shareholders and directors.  In other words, the rental $15,000 per month paid to Mr Chik’s company is part and parcel of the remuneration in the employment of Mr Chik. 

3. In November 2006, Mr Chik was unfortunately diagnosed with NPC (Nasopharyngeal Cancer).  Shortly afterwards the claimant was on long period of sick leave and the services company Best Sky paid him $200,000.  According to the defendant, this payment was by way of sickness allowance and rent payable by the defendant.

4. There were disputes between the claimant and Ms Lo and Mr Chik, in July 2007, claimed that there was arrear of rental in the sum of $75,000.  It was Best Sky Limited who had taken first action in the District Court on 6 July 2007, asking for a declaration that Best Sky did not owe Bright Road any rental as alleged by Mr Chik acting for and on behalf of Bright Road and that the $200,000 paid by Ms Lo as agent of Best Sky was rental for five months from 1 November to 31 March 2007.  Thereafter Mr Chik claimed in the Labour Tribunal on 17 July 2007 for arrears of salary, etc., to the total sum of $360,000. 

5. On the face of it, the Labour Tribunal claim and the District court action are so enmeshed together and Mr Wong, counsel for the defendant/appellant, submitted that the two cases should be tried together.  Therefore the Labour Tribunal claim should be transferred to the District Court. 

6. However on detailed analysis the matter could be resolved in the Labour Tribunal in that Best Sky would certainly in its defence raise the point that its $200,000 advance payment to Bright Road of Mr Chik was a payment for sick leave allowance and rental payable by the defendant to Bright Road under the tenancy agreement and this tenancy agreement is part and parcel of the whole emolument of Mr Chik.

7. The Labour Tribunal can, within its jurisdiction, decide everything within the employment of Mr Chik.  To my mind, action in the District Court action is superfluous and it should be stayed in the meantime.  The Labour Tribunal was established to provide expeditious disposal of labour dispute and in this claim the Tribunal can dispose of the dispute in total between Mr Chik and Best Sky.  This would involve Mr Chik’s company which holds the property.  In fact the tenancy agreement and the rental payable, as Mr Damian Wong, counsel for the defendant/appellant also accepted, are part and parcel of the employment.  For that reason I would not disturb the discretion exercised by the learned adjudicator that there should not be a transfer of the claim to the District Court and the labour dispute should be disposed of as quickly as possible in the Labour Tribunal.  For that reason, I dismiss the appeal. 

8. Since the claimant did not appear and has already written to this court that :

(1)  he would not appear; and

(2)  he is not going to argue against the appeal;

I make no order as to costs.