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FAMV No. 55 of 2008
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 55 OF 2008 (Civil)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV No. 394 of 2007)
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| BETWEEN |
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LAM PIK SHAN |
15th Claimant
(Respondent) |
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and |
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HONG KONG WING ON TRAVEL SERVICE LIMITED |
Defendant
(Applicant) |
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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
Date of Hearing: 19 January 2009
Date of Determination: 19 January 2009
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D E T E R M I N A T I O N
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Mr Justice Ribeiro PJ:
1. The fundamental question is whether, on the facts as found below, the net tips earned by the tour guides come within the statutory definitions of “tips” and “wages” in the Employment Ordinance, Cap 57, and if they do, whether there is any inescapable contrary intention to take them out of those definitions.
2. The facts are set out and analysed in the judgment of Mrs Justice Le Pichon JA[1] with which we respectfully agree.
3. The Employment Ordinance[2] expressly provides that tips are to be treated as wages for the purposes of the benefits it confers. There can be no doubt that the net tips retained by the tour guides pursuant to the arrangements put in place by the employer involving the sharing out of the tips collected from customers with their employer and with local guides, drivers and baggage handlers, come within the statutory definition of “tips”. They were sums of money received directly or indirectly, by an employee in the course of and in connection with his employment which were paid or derived from payments made by persons other than the employer. And such sums were recognised by the employer as part of the employee’s wages, as the evidence plainly established.
4. It shows that there has never been any difficulty calculating the amount of such “tips” accruing in respect of each tour guide. This has been so both before and after the enactment of the Employment (Amendment) Ordinance 2007[3] which followed upon the Court’s decision in Lisbeth Enterprises Ltd v Mandy Luk.[4]
5. Accordingly, we do not consider either point sought to be raised on appeal to be reasonably arguable and leave to appeal must be refused with costs.
| (Kemal Bokhary) |
(Patrick Chan) |
(R A V Ribeiro) |
| Permanent Judge |
Permanent Judge |
Permanent Judge |
Mr Chan Chi Hung SC and Mr Jeremy SK Chan (instructed by Messrs Winnie Mak, Chan & Yeung) for the Applicant
Mr Ambrose Ho SC and Mr Erik Shum (instructed by Messrs KB Chau & Co and assigned by the Legal Aid Department) for the Respondent
[1] CACV 394/2007, Rogers VP, Le Pichon JA and Suffiad J; 9 May 2008.
[2] Cap 57, section 2(1).
[3] Ord No 7 of 2007, 10 May 2007.
[4] (2006) 9 HKCFAR 131.
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