LAM PIK SHAN v. HONG KONG WING ON TRAVEL SERVICE LTD

CACV 394/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2007

(ON APPEAL FROM HCLA NO. 19 OF 2006)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court given on 9 May of this year.  The matter arises in relation to an appeal from the Employment Tribunal.  The application is put on three grounds.  First of all, it is put on the ground that under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, the defendant should be given leave to appeal.  Secondly, it is said that there are matters of great general or public importance under section 22(1)(b) and thirdly, it is said that leave should be given under the or otherwise ground.

2.  Turning to the first point, the basis upon which it is said that leave should be given as of right is that it is said that there are other claims and that this was a test case.

3.  This may have been the first case to go through the appeal process.  It also appears to have been the first case, or certainly one of the first cases, in relation to this point that was decided by the Tribunal, but that does not make it a test case.  Although for practical purposes the other claimants may abide by any decision which is given in this court or above or in the court below in respect of the 15th Claimant, that still does not make it a test case.  There has been, as I understand it, no agreement or order making the decision in this case binding on all the other claimants as of right.  In that case, the criterion for a test case does not exist.  To put it in practical terms, although the defendant may say the result of this case may for practical purposes mean that its liability when taking other applicants into accounts likely to exceed $1 million, as far as the 15th Claimant is concerned the amount at issue in this case certainly does not exceed $1 million and so, in my view, this is not a case under section 22(1)(a).

4.  Turning to the matters that are sought to be raised under section 22(1)(b), the question of whether matters are of great general or public importance such that leave should be given are primarily matters for the Court of Final Appeal, but in my view this was a straightforward matter of statutory interpretation, particularly following the amendment of the Ordinance and the clear wording of the Ordinance relating to commissions.

5.  Finally, I do not see any grounds for exercising discretion under the ‘or otherwise’ limb.  I would therefore dismiss this application.

Hon Le Pichon JA:

6.  I agree.

Hon Suffiad J:

7.  I agree.