CHEUNG KIN CHUNG v. ARUP

HCMP 1783/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1783 OF 2008

(ON AN INTENDED APPEAL FROM DCCJ NO. 1254 OF 2008)

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

1.  H H Judge Mimmie Chan struck out the plaintiff’s amended statement of claim and dismissed his claim against the defendant.

2.  Application for leave to appeal against the judgment was refused by Judge Mimmie Chan and Yuen JA sitting as a single judge of the Court of Appeal.  The plaintiff now renews his application for leave to appeal.

3.  The plaintiff was a former employee of the defendant in the position of a Technical Officer Trainee.  The parties entered into a contract of employment dated 2 October 2007 for a term of one year.

4.  The plaintiff claimed that his contract was terminated on 21 January 2008.  He also claimed that he was subjected to ‘a torrent of bullying both orally and by conduct’ by his direct supervisor and a trainer.  He claimed that the Project Director failed to take action on the bullying despite the plaintiff’s complaints.

5.  The amended statement of claim pleaded that the plaintiff’s claim was for ‘Breach of contract of employment in respect of the implied term of confidence and trust’.  The plaintiff sought damages and interest for the loss of income from the unfinished contract of employment.

6.  He had previously lodged a claim of $50,000 against the defendant in the Labour Tribunal (LBTC 764/2008) for ‘Employer’s breach of implied term of trust and confidence in the contract of employment’.  The claim was withdrawn by him on 26 March 2008.

7.  The present claim was lodged on 25 March 2008.

8.  Judge Mimmie Chan struck out the plaintiff’s claim on the grounds that

(i)    it discloses no reasonable cause of action;

(ii)    it is scandalous, frivolous and/or vexatious;

(iii)    it may prejudice, embarrass and/or delay the fair trial of the action; and/or

(iv)    it is otherwise an abuse of the process of the court.

9.  As the claim was based on the breach of an employment contract, it is clear that the Labour Tribunal has exclusive jurisdiction to adjudicate on the matter.  Section 7(1) of the Labour Tribunal Ordinance (Cap. 25) stated that the Labour Tribunal shall have jurisdiction to hear the claims specified in the Schedule which includes a claim for a sum of money which arises from the breach of a term, whether expressed or implied, of a contract of employment (Paragraph 1(a) of the Schedule).  The present case falls within Paragraph 7(1).  By reason of Section 7(2), the District Court has no jurisdiction to hear the claim.

10.  In so far as the claim was based on the harassment by his supervisors, the plaintiff has not stated whether he is relying on any statutory anti-discriminatory provisions or identified those provisions.

11.  In our view the claim was properly struck out on the grounds relied upon by Judge Mimmie Chan and refusal to grant leave to appeal was properly ordered.  The plaintiff also relied on other matters such as he was not given the opportunity to fully prepare his case and that he was not treated with politeness in the court below.  None of these has any bearing on the unsustainability of his claim.

12.  We will refuse the application.