LAW SHU FAT AND OTHERS v. 吳光銳經營吳祐記運輸公司

HCMP3128/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.3128 OF 2004

(On an intended appeal from HCLA NO.126 OF 2003)

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D E C I S I O N

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1. This is an application for leave to appeal under section 35A of the Labour Tribunal Ordinance, under which leave may be granted, “if the Court of Appeal considers that a question of law of general public importance is involved”. 

2. Here the question of law is said to be whether paragraph 5 of the First Schedule to the Employment Ordinance, Cap.57 could apply :

“Namely the continuity of a business, save and except corporations, in case of the death of the proprietor/partner occurs as in this proceedings.”

Paragraph 5 of the First Schedule to the Employment Ordinance provides as follows :

“5.   If a trade, business or undertaking is transferred from one person to another, the period of employment of an employee in the trade, business or undertaking at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period of employment.”

3. As I understand it, the claimants were originally employed by Ng Yau trading as Ng Yau Kee Transportation Company, a sole proprietorship (“old Ng Yau Kee”).  Ng Yau died on 23 November 1998. 

4. However, his son Ng Kwong Yui, (the applicant) admitted that he had started to work for his father in 1990 and he was responsible for paying the workers their salaries and he also signed all the documents of the business. 

5. He continued to run the business after the death of his father.  He became the administrator of his father’s estate and letters of administration was granted to him dated 21 January 2000, and according to the judge he had not disputed that since the death of Ng Yau, he continued to run old Ng Yau Kee himself until 15 March 1999, when he registered himself as the sole proprietor of Ng Yau Kee Transportation Company.  However, in this new registration, the commence date of business was given as 1 March 1999.  Even so, he continued to use the goodwill and assets of old Ng Yau Kee.

6. I have considered the judgment of Yam J given on 24 November 2004.  I do not propose to refer to it save to say that : the question whether on the death of a sole proprietor his business could be said to have been transferred to, say, his son is fact sensitive.  In other words, such decision would turn on the facts of the particular case.  That being the case, I do not believe that “a question of law of general public importance is involved”. 

7. The application for leave to appeal is refused.