MAN KING SING v. CHAN SHUN ON t/a FORTUNATE PRINTERS AND ANOTHER

HCLA1/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.1 OF 2011

(ON APPEAL FROM LBTC 713 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  The 8^th claimant (“C8”) seeks leave to appeal against the decision of Mr Presiding Officer Wong Wai-kuen made on 16 February 2009 (“the Decision”), in which it was held that D2 was solely liable as employer of C8 for the amounts claimed.

2.  D1 was a sole proprietorship.  C8 worked for him under a contract of employment since 1993.

3.  D2 is a limited company with D1 as the major shareholder and director.  It was formed sometime in 2006.

4.  On 17 November 2008, D1 and D2 suddenly closed down.  As of that date, D1 has not filed any notice of cessation of business.

5.  In early 2009, C8 and his colleagues commenced proceedings at the Labour Tribunal against both defendants for, amongst others, severance payments (from 1993 to 2008) and annual leave pay (for 2007 and 2008).

6.  In the absence of the defendants, after hearing evidence from the claimants, the Decision was pronounced.

7.  C8 took out an employee’s compensation claim against both defendants in respect of 2 accidents that happened on 19 May 2008 and 24 April 2008 in the factory.  At a hearing on 3 September 2010, Acting Chief District Judge Poon queried whether or not there was an issue estoppel as to who the employer was on the date of the accident.  The learned judge stayed the proceedings (“the order for stay”) pending C8’s appeal against the Decision.

8.  C8 seeks leave to appeal out of time on the grounds that in breach of his duty under section 20 of the Labour Tribunal Ordinance (Cap 25) (“LTO”), the Presiding Officer had failed to investigate in relation to who the employer was for the period from 2007 to 2008 and erred in finding that D1 was not the employer for the period from 2007 to 2008; that he failed in having sufficient regard to the fact that the 2 defendants were joint employers of C8; and that he erred in finding that there was a transfer of employment by D1 to D2.  

Reasonable Grounds of Appeal on Law

9.  The question of who the employer was was up on the Presiding Officer’s mind.  He was aware of the difference between D1 and D2, that the claimants’ contracts of employment and tax returns were signed by D1, that MPF and salary payments were made by D2.  He was also told at least twice by C1 (the accountant) that their employment had changed to D2 who took up the years of past service (年資).  No one contradicted him.

10.  To enable parties to adduce further evidence, the learned Presiding Officer stood down the matter for 2 hours.  They returned to say that there was no further document to produce, so the proceedings continued.  The Presiding Officer could not be blamed for not investigating.  C8 also could not show what and how further evidence could enhance his case.

11.  The learned Presiding Officer took into account the evidence before him and it was open to him to come to the Decision.  It was not shown that he had erred in law.  There are no arguable grounds of appeal.

Delay

12.  This leave application is lodged almost 2 years after the Decision and about 4 months after the order for stay.  Such delay was unjustifiable and was a result of C8’s deliberate decision not to appeal.  

13.  In early April 2010, after C8’s solicitors had got the transcript of proceedings of the Labour Tribunal, they took the view that the Decision might not affect the employee's compensation proceedings as it dealt with ex-gratia payment only.  That view was questionable.  The Decision was a judicial decision on the statutory entitlement of an employee against his employer whereas the ex-gratia payment was an administrative matter.

14.  The issue of res judicata was raised by the learned Acting Chief District Judge as early as May 2010.  Proceedings were adjourned for the solicitors to examine the issue.  After being advised by the solicitors that this issue might or might not be relevant, C8 agreed to it and decided not to appeal against the Decision.

15.  In September 2010, the learned judge raised the same issue again and warned C8 of being barred from suing D1.  C8 did not agree to the comments of the court but undertook to appeal against the Decision.  He then took time to seek legal aid.  Assigned counsel took the view that the finding on the real identity of the employer was crucial to the employee's compensation and common law proceedings.  Legal aid was granted on 2 December 2010 for appeal against the Decision.  Even so, the application for leave was only taken out on 12 January 2011.

16.  A litigant should not be permitted to use a decision to his advantage at one point in time and, when circumstances suit him, seek to overturn it long after expiry of the appeal period.  There must be finality to litigation.  On the ground of delay alone, leave should not be granted.

17.  More importantly, some time within these 2 years, C8 has already received payment under the Decision from the Protection of Wages on Insolvency Fund.  As affirmed to by him,

“As we were able to obtain the ex-gratia payment, we paid no further attention to the correctness of the decision or whether it would affect my employees’ compensation claim and/or Common Law claim.”

18.  Having received the benefit of the award, no damage was caused by error (if any) in the Decision.  The judge on appeal who will overturn the Decision and finds that D1 was the employer or one of the employers will have no award to make against him.  Likewise for the Presiding Officer if there is a re-trial.  Any appeal against the Decision would be academic.

“In the instant case neither party can have any interest at all in the outcome of the appeal. Their joint tenancy of property which was the subject matter of the dispute no longer exists. Thus, even if the House thought that the judge and the Court of Appeal had been wrong to decline jurisdiction, there would be no order which could now be made to give effect to that view. It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.” Ainsbury v. Millington [1987] 1 WLR 379, 381B (HL); followed by the Court of Appeal in Gay v. Yip Shut Yuen [2004] 1 HKC 615; Kuok Hong Neng v. Yuen Sik Wah & anor [2004] 1 HKC 618.

19.  It will be a different matter if there are still live issues between the parties of that particular case.  In Re Lee Ka Ming, CACV 163 of 1990, although the Director of Immigration decided that regardless of the outcome of the appeal, he would not order the removal of the minor, that decision did not mean that he had accepted that the boy had acquired a right of abode. In R v. Newcastle upon Tyne Licensing Justices and another [2006] 2 All ER 161, there were still questions of enforcement of an undertaking and costs.  In Regina v. Canons Park Mental Health Review Tribunal, Ex parte A [1995] QB 60 concerned interpretation of a statute and the issues on appeal might arise again in respect of the respondent.  There were still live issues and these 3 cases are all distinguishable from the present one. 

Conclusion

20.  No arguable grounds of appeal on law have been shown and C8 has been in serious delay in lodging this application. Any appeal is also academic as money had already been received by C8 under the Decision.  I therefore refuse to grant the application for leave to appeal out of time.