LEUNG CHUNG LAN LORRAINE v. MERCER (HONG KONG) LTD

HCLA 6/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 6 OF 2017

(ON APPEAL FROM LBTC 695 OF 2017)

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D EC I S I O N

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1.  The claimant is a former employee of Merrill Lynch (Asia Pacific) Ltd (“Merrill Lynch”). She resigned from her employment on about 23 March 2005 and her employment ended on 21 April 2005.

2.  Merrill Lynch claimed to have paid her the benefits under the Occupational Retirement Schemes Ordinance (“the ORSO benefits”) on about 19 May 2005 in the sum of HK$189,225.80.

3.  The claimant has lodged a claim in the Labour Tribunal on 2 February 2016 against the defendant for her ORSO benefits. Before this, there was a claim in the District Court for ORSO benefits lodged by a person of the same name as the claimant’s (DCCJ 5145/2013).  This claim was struck out on 13 February 2015 by Deputy Judge Lawrence Ng.  The claimant denies that she was the plaintiff in that District Court claim.

4.  The Labour Tribunal claim was dismissed by the presiding officer, Ms Ho Wai Yeung on 16 March 2017 on the ground of want of jurisdiction.  The presiding officer found that the claimant had not been employed by the defendant and the claim is not based on any employment contract.  The claim was brought against the defendant as the trustee of a trust deed for non-payment of ORSO benefits.  Such benefits have not been stipulated in the employment contract between the claimant and Merrill Lynch either expressly or impliedly.  Hence, the presiding officer dismissed the claim.

5.  At the hearing of this application, the claimant explained that the defendant had advised Merrill Lynch the amount of ORSO benefits to be paid to her.  Merrill Lynch would then pay the sum to the defendant and the defendant would pay that sum with its own cheque to the claimant.  The claimant also complained against the tribunal for mal-administration and provision of wrong information to her.  She also complained that there was somebody who tempered with her bank account from time to time. 

6.  The Labour Tribunal Ordinance; Cap. 25 provides in s 32 that in order for the claimant to have leave to appeal against the decision of the presiding officer, the claimant has to show that the decision of the presiding officer is erroneous in point of law and/or is outside the jurisdiction of the tribunal[1].

7.  In the light of the facts discussed above, I cannot see that the presiding officer has committed any error in point of law or decided anything outside the jurisdiction of the tribunal.  I find that the claimant has not made out any arguable ground of appeal.

8.  I therefore dismiss this application.