MA NGAI CHEUNG v. COBOW CONTRACTING & ENGINEERING CO LTD

DCCJ 3925/2020

[2021] HKDC 264

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3925 OF 2020

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DECISION

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INTRODUCTION

1.  This is an application by the defendant to strike out the plaintiff’s claim.  The application is based on the ground that the Labour Tribunal has exclusive jurisdiction to determine the claim. 

2.  The plaintiff opposes the application.  He contends that the Labour Tribunal has no jurisdiction over his claim because the performance of the relevant employment contract took place outside Hong Kong, and therefore paragraph 1(a) of the Schedule of the Labour Tribunal Ordinance does not apply.  Furthermore, two items of his claim (namely, (i) the compensation of the leave pay for rest days, and (ii) the reimbursement of expenses) fall outside the ambit of paragraph 1(b) of the Schedule.

3.  The defendant does not dispute that the plaintiff’s performance for the contract took place outside Hong Kong.  It contends however that the entire claim of the plaintiff (including the aforementioned two items) falls within the ambit of paragraph 1(b).  Accordingly, the main dispute between the parties is whether the said two items fall within the ambit of paragraph 1(b).

4.  I heard the application on 22 February 2021.  At the hearing, the defendant was represented by Mr Jonathan Ah-weng and the plaintiff by Mr Vincent Kwong.  Mr Ah-weng lodged with the Court a total of three skeleton submissions on 11, 16, and 22 February 2021 (the last one just before the start of the hearing) respectively.  Mr Kwong lodged his skeleton submissions on 18 February 2021.

5.  At the conclusion of the hearing, I indicated that I would hand down a written decision in a later day.  This is my decision.

BACKGROUND

6.  The defendant is a company incorporated in Hong Kong carrying on business for manufacturing and installation of glass and furniture[1].  It operates a factory for manufacturing glass and furniture in Conghua, PRC[2].

7.  According to the plaintiff, he and the defendant, through a Mr Lai, one of the directors of the defendant, entered into an employment agreement in the middle of November 2009, whereby the plaintiff would work in Conghua factory and other cities, countries or locations as designated by the defendant.  The agreed wages were $22,000 per month, plus year-end payment and reimbursement of various expenses[3]. In the course of employment, the plaintiff mainly stationed in Conghua and travelled to other places for works in accordance with the instructions of the defendant[4].

8.  It is averred in the Statement of Claim that the employment agreement constitutes a contract of employment within the meaning of the Employment Ordinance and the provisions of the Ordinance apply[5].  Furthermore, two supplemental agreements were subsequently entered, whereby parts of the salary were paid in RMB and parts in Hong Kong dollars[6].

9.  According to the plaintiff, since about July 2015, the defendant had seriously delayed payment of wages to him[7]. The operation of the Conghua factory also came to halt in about October 2018[8]. 

10.  The plaintiff considered that his employment was deemed terminated on 31 March 2019 without notice.  In this action, he claims against the defendant for the following items:-

(a)  The said arrears of wages in the sum of $620,380[9];

(b)  Payment in lieu of notice in the sum of $22,000[10];

(c)  End-of-year payment in the sum of $44,000[11];

(d)  Annual leave payment in the sum of $55,828.65[12];

(e)  Compensation of leave pay for 14 rest-days in the sum of $11,846.15[13];

(f)  Long service payment of $137,464.84[14]; and

(g)  Reimbursement of various expenses which he incurred since January 2015 in a total sum of RMB292,732.42[15].

11.  As indicated in the beginning of this decision, the present dispute concerns items (e) and (g) only.  These two items will be referred to collectively as “the Two Subject Items” below.

THE STRIKING OUT APPLICATION

12.  Having considered the parties’ affidavit evidence, it appears that three main issues have been raised.  The first issue concerns the performance of the plaintiff’s employment contract.  In the affirmation in support, the defendant pointed out that the plaintiff had explicitly stated in the Statement of Claim that his claim was based on the breach of the Employment Ordinance[16].  The plaintiff responded that the Labour Tribunal has no jurisdiction because he performed the employment contract between him and the defendant out of Hong Kong[17]. In the annex attached to his affirmation, the plaintiff set out various Schedules of Work Location indicating that, throughout the period between November 2009 and December 2016, he had only spent a total of about 105 working days in Hong Kong[18].

13.  Secondly, in his affirmation in opposition, the plaintiff raised the point that a substantial part of his claim (namely the Two Subject Items) fell outside the exclusive jurisdiction of the Labour Tribunal[19].  As we will see, this point becomes the main dispute between the parties in this striking out application.

14.  Finally, according to the defendant, the present action is an abuse of process because the plaintiff had previously instituted a proceeding in the Labour Tribunal for substantially the same items of claim[20]. Voluminous documents are said to have been filed in the tribunal.  The plaintiff withdrew the claim after the Presiding Officer made certain comments about the claim.  The parties give a slightly different version with regard to the comments made by the Presiding Officer.  The plaintiff said that the Presiding Officer only asked him to obtain legal advice before proceeding with his claim[21], whereas the defendant deposed that the Presiding Officer had taken an adverse view in respect of the merits of his claim[22]. The defendant said it was an abuse of process by raising the present action in the District Court after he voluntarily decided to withdraw the claim just because he felt he might not get a favourable result in the Labour Tribunal[23].  At the hearing, Mr Ah-weng also complained about the plaintiff’s failure to produce the transcript of the proceedings to support his contention as regards what the Presiding Officer had actually said during the hearing.

15.  It should also be mentioned that, in the affirmation in reply, the defendant denied that there was an employment relationship between the parties[24].  It was asserted that the plaintiff was in fact an employee of the factories in the Mainland – he was employed by Guangzhou Cobow Manufacturing Ltd between 2009 and 2014 and later joined Shanghai Cobow Contracting Ltd[25].  In support of this assertion, the defendant also exhibited contracts signed by the plaintiff with the factories[26].

LEGAL PRINCIPLES

16.  The legal principles relating to the striking out a pleading is well-established.  It is not necessary to rehearse them in detail here. Suffice it to mention that the defendant relies on the ground that the plaintiff’s claim is frivolous or vexatious.

17.  Mr Kwong referred me to a passage from the Whitebook to support a proposition that it is only in plain and obvious cases that the Court should exercise its summary powers to strike out a pleading under the rule and that the applicant bears the burden to show that it is plain and obvious case to strike out.  Nor, as stated by the learned editors, should the Court decide difficult points of law in striking out proceedings[27].  Furthermore, Mr Kwong referred me to the Yifung Properties case[28], where Madam Justice Au-Yeung J stated that “Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process.” 

18.  Mr Ah-weng on the other hand argued that if the Court finds that the Labour Tribunal has jurisdiction over the action, then it has no option but to strike out the claim.  Mr Ah-weng relied on the cases of Weng Chi Cheong^[29] and Deutsche Bank^[30] to support this proposition. 

19.  The jurisdiction of the Labour Tribunal is set out in ss 7(1) & (2) of the Labour Tribunal Ordinance:-

“(1)  The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2)  Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.”

20.  Paragraph 1 of the Schedule provides that:-

“A claim for a sum of money, whether liquidated or unliquidated, which arises from—

(a)  the breach of a term, whether express or implied or (if relevant) arising by force of section 10(1) of the Minimum Wage Ordinance (Cap. 608), of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78) applies;

(aa) …

(b)  the failure of a person to comply with the provisions of the Employment Ordinance (Cap. 57), the Minimum Wage Ordinance (Cap. 608) or the Apprenticeship Ordinance (Cap. 47),

other than a claim specified in the Schedule to the Minor Employment Claims Adjudication Board Ordinance.” 

21.  Mr Ah-weng referred me to the Tsui Chung Fai case[31], where Madam Justice Chu J (as her Ladyship then was) held that arrears of wages, year-end bonus and annual leave pay were all statutory benefits, and that the Employment Ordinance applies to them regardless the performance was in or outside Hong Kong. Accordingly, paragraph 1(b) should apply, and the Labour Tribunal had jurisdiction over the claims.

22.  On the other hand, Mr Kwong relied on a Court of Appeal’s case Matheson^[32] and a District Court’s case Peter Ward[33].  In Matheson, the Court of Appeal held that the Labour Tribunal’s jurisdiction under paragraph 1(a) of the Schedule is limited in two specific types of employment: (i) a contract to be performed in Hong Kong, and (ii) an overseas contract that falls within the Contracts for Employment Outside Hong Kong Ordinance.  In other words, the paragraph excludes the claim arising from the breach of the employment contract to be performed outside Hong Kong.  In this respect, Mr Justice Liu JA specifically stated[34]:-

“Good sense requires a contract to be performed outside Hong Kong to be kept away from the Labour Tribunal unless the claims arising therefrom are well-defined and can be easily defined, such as arrears of wages and statutory benefits and protection under the Employment Ordinance.”

23.  In Peter Ward, the relevant contract required the plaintiff there to run a factory in Zhuhai, wherein he would be based.  He lived in factory quarters five days a week, but he would liaison with Hong Kong head office on Saturday mornings.  Based on the facts of the case, it was held that the contract was to be performed outside Hong Kong.  There was dispute as to the contractual term regarding the bonus.  Like the present case, the defendant there submitted that the plaintiff’s claim for bonus payment fell within the ambit of paragraph 1(b).  The plaintiff there replied that the real question was what contractual terms were agreed and that was one for trial.  In this respect, His Honour Judge Muttrie said the followings[35]:-

“… But it seems to me that the true questions before the trial court will be what were the terms of the plaintiff’s contract, and was it breached. Only if there was a breach of contract, be it to pay contractual bonus or to pay wages, could there be a breach of the [Employment] Ordinance. If the Tribunal does not have exclusive jurisdiction to decide whether there was a breach of contract, because the contract was not for performance in Hong Kong, it is difficult to see how it can have exclusive jurisdiction to decide whether there was a consequent breach of the Ordinance.”

DISCUSSION

(1)     The plaintiff’s performance outside Hong Kong is not disputed

24.  In the present application, the defendant does not seek to dispute that the plaintiff performed his employment contract outside Hong Kong.  As I have mentioned above, the main dispute between the parties in this application is whether the plaintiff’s claim (particularly the Two Subject Items) fall within the ambit of paragraph 1(b).  If the answer is in the affirmative, the Labour Tribunal has exclusive jurisdiction over the claim, and it should be struck out as a result.  On the other hand, if the answer is in the negative, the defendant’s application for striking out should fail.

25.  Even though the parties’ discussion focuses on paragraph 1(b), as I will explain later on, the territorial restriction in paragraph 1(a) may still chip in from a policy perspective.  But before I come to this, I would turn to the issue whether the plaintiff’s claim falls within the ambit of paragraph 1(b) first.

(2)     Whether the plaintiff’s claim falls within the ambit of paragraph 1(b)

26.  It is the defendant’s case that the plaintiff’s claim falls squarely within paragraph 1(b).  Mr Ah-weng submitted that the claims as framed in the Statement of Claim were all breaches of the Employment Ordinance[36], and hence fall squarely within paragraph 1(b).  If that is the case, the Labour Tribunal would have exclusive jurisdiction over the plaintiff’s claim, regardless whether the contract was to be performed in or outside Hong Kong. 

27.  On the other hand, Mr Kwong submitted that a substantial part of the claim (ie the Two Subject Items) fall outside the ambit of paragraph 1(b) of the Schedule.  The plaintiff’s claim is therefore a mixed claim[37].  Following the cases of Gain Hill^[38] and Uferahal Ltd^[39], the Labour Tribunal does not have jurisdiction over a claim where a part of it falls outside the jurisdiction. 

28.  It is the plaintiff’s main contention that, although the Employment Ordinance permits an employee to work for his employer on rest day, the ordinance does not require the employer to grant compensation leave or make compensation payment to the employee for working on his rest days.  The arrangement for compensation, according to Mr Kwong, was purely contractual. Accordingly, the provisions of the Employment Ordinance played no part in this item of the plaintiff’s claim.  Paragraph 1(b) was not engaged[40]. Similarly, in respect of the claim regarding the reimbursement of expenses, there was no provision in the Employment Ordinance that imposed an obligation upon an employer to do so[41]. In the present case, the arrangement in respect of the reimbursement of expenses was also purely contractual, and paragraph 1(b) did not apply. 

29.  At the hearing, Mr Kwong further contended that only statutory entitlements and benefits protected by the Employment Ordinance would fall within the ambit of paragraph 1(b).  In this respect, Mr Kwong relied on the passage in the Annotated Ordinance of Hong Kong: Labour Tribunal Ordinance that “In 2003, the tribunal handled disputes in relation to statutory entitlements including wages in arrear, wages in lieu of notice, severance payment, annual leave payment, terminal payment, statutory holiday payment, year-end payment, long service payment, overtime wages, wages deducted, compensation, maternity leave payment.”[42]  Mr Kwong appeared to suggest that this list was exhaustive.  Since the Two Subject Items do not fall with the list, paragraph 1(b) does not apply.

30.  Accordingly, the plaintiff raises two main grounds in support of his contention that the Two Subject Items fall outside the ambit of paragraph 1(b).  First, they do not concern any breach of the provisions of the Employment Ordinance.  Secondly, paragraph 1(b) should be interpreted such that it is confined to those claims concerning statutory benefits and entitlements protected by the Employment Ordinance. 

31.  I propose to consider these grounds in reverse order.

(2a)   Whether paragraph 1(b) confines only to statutory entitlements and benefits protected by the Employment Ordinance

32.  First of all, I reject Mr Kwong’s submission that paragraph 1(b) only confined to the statutory entitlements and benefits protected by the Employment Ordinance.  In reply to my inquiry at the hearing, Mr Kwong agreed that this was only a bare assertion without any authorities in support.

33.  In my view, this submission is not only a bare assertion, but it is in fact inconsistent with decided cases.  The Estinah case^[43] provides a counterexample to the assertion.  There the claimant sued the defendant for claims of restitution based on economic duress and the fact that the parties were not in pari delicto, as well as breach of statutory duty.  One of the issues was whether the former two claims fell within the ambit of paragraph 1(b).  Madam Justice Kwan J (as the learned Vice President then was) found that the former two claims had reasonably close connection with s 57(a) of the Employment Ordinance (which concerns the prohibited acts of employment agencies) and hence fell within paragraph 1(b).  Her Ladyship held[44] that the claimant’s claim was within the jurisdiction of the Labour Tribunal.  Accordingly, it is clear that paragraph 1(b) is not confined only to the statutory benefits and entitlements protected by the Employment Ordinance.

(2b)   Whether the two items concern any “failure of a person to comply with the provisions of the Employment Ordinance”   

34.  As mentioned above, the main dispute in this application is whether the plaintiff’s claim for the Two Subject Items can be regarded as arising from “the failure of a person to comply with the provisions of the Employment Ordinance”.  Mr Ah-weng’s answer was in the positive.  He submitted that s 25 of the Employment Ordinance was wide enough to provide statutory foundations for the claims of the Two Subject Items.  He argued that the Matheson case was distinguishable in that the case dealt with paragraph 1(a), instead of paragraph 1(b).  Likewise, the Peter Ward case was also distinguishable, said Mr Ah-weng, because of its conflict of laws context. 

35.  Section 25 of the Employment Ordinance reads:-

“(1)  Subject to section 31O, where a contract of employment is terminated any sum due to the employee shall be paid to him as soon as is practicable and in any case not later 7 days after the day of termination.

(2)  The sum referred to in subsection (1) shall be -

(a)  the equivalent of the amount earned by the employee for work done over the period commencing on the expiry of his wage period next preceding the time of termination up to that time;

(b)  the sum (if any) payable under sections 7, 15(2) and 33(4BA);

(ba)  any long service payment due to the employee; and

(c)  any other sum due to the employee in respect of his contract of employment.”

36.  In this respect, Mr Ah-weng submitted that the phrase “any sum due” would cover the Two Subject Items.  According to him, these items are certainly claims for sums that were due to the plaintiff where his employment contract was terminated.

37.  Mr Kwong disagreed and raised four objections against this submission[45]. He firstly pointed out that the sums were not due because there was no deadline for payment as per the agreement between the parties.  Secondly, the Two Subject Items were not “well-defined and [can] be easily identified” under the Employment Ordinance.  Thirdly, applying the dictum made by His Honour Judge Muttrie in Peter Ward, Mr Kwong submitted that the essential question between the parties was what contractual terms were agreed (if any) and whether the defendant had breached any of those terms.  Finally, the defendant’s argument in respect of s 25 of the Employment Ordinance was contrary to the spirit enshrined in the Matheson case.  If a claim was for a sum due under the section and no matter where the employment was performed, then, Mr Kwong argued, the territorial restriction under paragraph 1(a) would become superfluous.

38.  I reject Mr Kwong’s first, second, and fourth objections.  In my view, the first objection is unarguable.  It is trite that, in interpreting the provisions in the Employment Ordinance, the Court will apply the natural and ordinary meaning of the word[46]. By its natural and ordinary meaning, the word “due” simply means “owing, payable, or enforceable immediately”.  In the present case, it must have been the plaintiff’s case that his claim is payable, otherwise there is no basis for the plaintiff to commence the action in the first place.  Accordingly, I reject Mr Kwong’s submission that the plaintiff’s claims for the Two Subject Items are not “sum due” to him.

39.  Mr Kwong submitted secondly that, using the words of the Court of Appeal in Matheson, the Two Subject Items are not “well-defined and [capable of being] easily defined”.  There are at least two problems regarding this objection.  First, Mr Kwong explained neither in his skeleton nor in his oral submission as to why the Two Subject Items were not “well-defined and [capable of being] easily defined”.  In my view, this statement is not self-evident.  Secondly, as Mr Ah-weng pointed out, the phrase is only a comment made by the Court of Appeal, and it should not be treated as a definitive statement of law.  Accordingly, I find that this passage cannot be of any assistance to the plaintiff’s case.

40.  Thirdly, Mr Kwong argued that, if Mr Ah-weng’s interpretation of s 25 is adopted, there would not be any territorial restriction in respect of claims due to the employee, render paragraph 1(a) superfluous.  I must say that, at first glance, I found this argument attractive.  During the hearing, I asked Mr Ah-weng if he could give an example where an employee may claim against his or her employer for a sum of money where the sum was not due to the employee.  Mr Ah-weng could not come up with one by just thinking on his feet.  However, upon further reflection, examples are in fact not lacking; and the claim for restitutionary damages for breach of employment contract appears to be one of them.  Indeed, it is conceivable that the plaintiff’s claim for reimbursement of expenses in the present case can be framed as a claim for resitutionary damages.  One may also add punitive damages as another example.  It appears to me that an employee can claim for a sum of money that is not due at the termination of the employment contract (hence paragraph 1(b) does not apply), yet the claim arises from breach of the term of the employment contract (paragraph 1(a) applies).  For this reason, I reject Mr Kwong’s argument that Mr Ah-weng’s interpretation of s 25 would render paragraph 1(a) superfluous.

41.  As mentioned above, the fundamental question is whether the claim under s 25 of the Employment Ordinance can be said to fall within the ambit of paragraph 1(b).  In my view, it can.  I come to this conclusion by the following reasons.  First, as Madam Justice Kwan J pointed out, the kind of claims set out in the Schedule was framed in a fairly board terms, see particularly paragraphs 4, 5, and 7 thereof[47]. In interpreting the phrase “arise from”, her Ladyship said that the phrase signifies a reasonably close connection between the claim and its factual and legal basis[48]. Hence, the question I need to ask myself is whether the claim based on the Two Subject Items can be said to have arisen from the defendant’s failure to comply with s 25 of the Employment Ordinance.  I am satisfied that it can.  I would therefore hold that the Two Subject Items come within the ambit of paragraph 1(b) and is within the exclusive jurisdiction of the Labour Tribunal.

(2c)    The Peter Ward case is to be followed

42.  But this is not the end of the matter.  At the hearing, Mr Kwong asked me to follow His Honour Judge Muttrie’s ruling in Peter Ward, and to distinguish Madam Justice Chu J’s decision in Tsui Chung Fai.  On the other hand, Mr Ah-weng asked me to do the exact opposite.  He submitted that Peter Ward is distinguishable in that that case involved a special feature of tax minimization and such a feature is absent in the present case.  With respect, I do not agree.  The tax minimization was only mentioned once in that case and was taken to be a reason why the contract there was to be performed outside Hong Kong. 

43.  In my view, Peter Ward is indistinguishable from the present case.  After studying the ruling carefully, I appreciate the force of the underlying logic in the learned Judge’s reasoning (as is quoted in [23] above).  In my view, the matter may be analyzed in two different levels.  At one level, there can be a question of breach of the Ordinance, or breach of the terms of the contract.  This is what I called “the first order question” at the hearing.  However, there is another, and more fundamental, level, which concerns, for instance, the existence of the contract or the actual meaning of the contractual terms.  I referred this as “the second order question”. Whereas the “first order question” may fall within the ambit of paragraph 1(b) and is within the jurisdiction of the Labour Tribunal regardless the place where the contract has been performed, it is arguable that the “second order question” may still fall within paragraph 1(a) and therefore subject to territorial restriction.

44.  If the present action is to go to trial, the real question, and as Mr Ah-weng may also agree[49], is whether there is an employment relationship between the plaintiff and the defendant.  Given it is agreed fact that the alleged contract is performed outside Hong Kong, it is not plain and obvious to me whether paragraph 1(a) will apply, and whether the issue will be subject to the territorial restriction as held by the Court of Appeal in Matheson.  If that is the case, the issue should not be tried before the Labour Tribunal.

45.  This may be considered from a policy perspective.  It is clear from the general intention of the Labour Tribunal Ordinance that the purpose of the Labour Tribunal is to provide a simple and informal forum without lawyer to deal with relatively simple claims which can be easily quantified.  As Mr Justice Penlington JA said in the Matheson case:-

“The Labour Tribunal Ordinance was enacted to provide for the speedy resolution of contractual labour disputes, using inquisitorial means and without legal representation. There is a right of appeal only on an important point of law. There is no provision for discovery which, in the light of the defence filed in this action, will almost certainly be necessary. If any case involved difficult matters, especially of law, the Tribunal may decline jurisdiction and in all probability if this action had been originally brought in the Labour Tribunal it would have done so.”

46.  More recently, Deputy High Court Judge Saunders also said in Ho Chee Sing James that “It is abundantly plain that the purpose of the exclusive jurisdiction clause is to provide a quick, simple, cheap and informal means to resolve employment disputes between employers and employees”[50].

47.  It does not seem unreasonable that the Labour Tribunal would have jurisdiction over the “first order question” (which may be regarded as “well-defined”) regardless the place where the employment contract was performed.  However, where the performance was taken place outside Hong Kong, conflict-of-laws elements would likely kick in the context of the “second order question”. Difficult points of law would be arisen.  It therefore makes perfect policy sense that such issues should be kept away from the Labour Tribunal and be dealt with in the District Court, where both parties will have the benefits of legal representations.

48.  This appears to be what had happened in Peter Ward.  There the question was what the terms of the plaintiff’s contract were, and whether they were breached.  Similarly, in the present case, the real question before the Court is whether there was an employment relationship between the parties.  In order to determine this question, the Court will likely consider the plaintiff’s work arrangement and remuneration package, which likely involve conflict-of-laws elements. 

49.  In contrast, Tsui Chung Fai is clearly distinguishable.  The defendant there did not dispute the sum claimed by the plaintiff[51].  There was also no dispute about the making of the agreement or the contents of it. Accordingly, no “second order” question had been arisen in that case. 

50.  For these reasons, it does not appear to me to be plain and obvious that the Labour Tribunal has exclusive jurisdiction over the plaintiff’s claim in this case.  I would therefore decline to strike out the plaintiff’s claim.

(3)     There is no abuse of process

51.  Clearly, the defendant’s complaint about the abuse of process is based on the contention that the Labour Tribunal has exclusive jurisdiction over the plaintiff’s claim.  As I have explained, it is not plain and obvious to me that the plaintiff was wrong to institute the present action in the District Court. In light of this, the complaint about abuse of process must fail as well.

(4)     Conclusion

52.  In the present case, the parties have no dispute that the plaintiff’s performance of contract took place outside Hong Kong.  The main dispute between them is whether the plaintiff’s claim falls within the ambit of paragraph 1(b).  Having considered the parties’ submissions, I conclude that, on the face of the plaintiff’s claim, it does fall within paragraph 1(b).  However, I find that there is a more fundamental question (which I have called the “second order question”) between the parties, that is whether there is an employment relationship between them.  Because of the out-of-jurisdiction performance, the determination of this question likely involves conflict-of-laws elements, and the issue may arguably be subject to the territorial restriction stipulated under paragraph 1(a).  In such circumstances, I am not satisfied that the plaintiff’s claim is a plain and obvious one that can be struck out summarily. I would dismiss the defendant’s application accordingly.

COSTS

53.  At the conclusion of the hearing, both Mr Ah-weng and Mr Kwong agreed that the costs should follow the event.  Accordingly, I would order that the defendant should pay the plaintiff’s costs, to be summarily assessed if not agreed.

DEPOSITION

54.  For the reasons as aforesaid, I order that:-

(1)  The defendant’s summons filed herein on 8 September 2020 be dismissed; and

(2)  The plaintiff’s costs of the summons be paid by the defendant forthwith, to be summarily assessed if not agreed.

55.  To facilitate the summary assessment mentioned in the preceding paragraph, it is further directed that:-

(1)  The parties shall use their best endeavor to agree on the figure of the plaintiff’s costs of the summons within the next 14 days, failing which the plaintiff may lodge with the Court and serve on the defendant his statement of costs (not exceeding 3 pages) within 7 days thereafter;

(2)  The defendant may lodge with the Court and serve on the plaintiff its statement of objection (not exceeding 3 pages) within 7 days after the service of the plaintiff’s statement of costs; and

(3)  The Court will conduct the summary assessment on the papers without an oral hearing.

56.  Lastly, it remains for me to thank Mr Ah-weng and Mr Kwong for their assistance rendered to this Court.