DONG DEZHI v. CHINA MOBILE INTERNATIONAL LTD

HCLA 21/2026

[2026] HKCFI 4986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 21 OF 2026

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM

NO. 1562 OF 2026)

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DECISION

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BACKGROUND

1.  The claimant was a former employee of the defendant.  By his claim filed in the Labour Tribunal on 24 April 2026, he claims against the defendant for arrears of wages, year end bonus and certain other benefit.

2.  As a matter of standard procedure, a call-over hearing was held before Presiding Officer Ms. Jennifer Ng on 15 May 2026 (“the Call-Over Hearing”), at which the claimant’s claims were set down for trial commencing on 13 August 2026 before Deputy Presiding Officer Ms. Lilian Ip, with a pre-trial review hearing to be heard on 14 July 2026.  The learned Presiding Officer further ordered the claimant to make a payment of $10,000 into the Tribunal by 29 May 2026 as security.

3.  On 18 May 2026 and 21 May 2026, the claimant wrote to the Tribunal and applied for discovery against the defendant for certain documents.  In response, Deputy Presiding Officer Ip informed the claimant by letter dated 9 June 2026 that those applications for discovery would be dealt with at the pre-trial review hearing in open court.

4.  On 8 June 2026, the claimant wrote to the Tribunal and, inter alia, alleged that certain orders made at the Call-Over Hearing had been omitted from the sealed order therefor.  He therefore requested to have the said sealed order amended.  He further applied to issue a witness summons to a Ms Lai.  On 10 June 2026, Deputy Presiding Officer Ip directed on paper that these matters would be dealt with in open court.  Presumably she was referring to the pre-trial review hearing on 14 July 2026.

5.  On 11 June 2026, the claimant wrote to the Tribunal again and applied for the recusal of Presiding Officer Ng and Deputy Presiding Officer Ip on the grounds of apparent bias and procedural irregularities.

6.  On 15 June 2026, the claimant sent a document to “The Deputy Presiding Officer / The Presiding Officer / The Principal Presiding Officer” pursuant to section 31 of the Labour Tribunal Ordinance (Cap.25, Laws of Hong Kong) and made an “application for internal review”.  In the document, he included 3 grounds, namely, “procedural impropriety and apparent bias”, “severe prejudice via exclusion of core evidence” and “denial of a fair hearing regarding witness evidence”.  He asked the Tribunal to:

(1)  Review, set aside or vary the “impugned decisions/orders” dated 9 and 10 June 2026;

(2)  Allow his discovery applications dated 18 and 21 May 2026;

(3)  Allow his applications dated 18 May and 8 June 2026; and

(4)  Amend the order dated 15 May 2026.

(“The Internal Review Application”)[1]

7.  On 17 June 2026, the claimant sent an “urgent formal letter to the Principal Presiding Officer” for the purpose of making an “application for urgent directions” by which he asked for a number of orders which may be summarised as follows:

(1)  An independent Presiding Officer be assigned to decide on the recusal applications before the PTR;

(2)  The Internal Review Application be determined before the PTR;

(3)  Alternatively, if the above matters cannot reasonably be determined before the scheduled PTR hearing, the PTR be adjourned or proceeded with only for “limited administrative directions”.

8.  On 25 June 2026, the learned Principal Presiding Officer replied to the claimant’s letter dated 11 June 2026, and stated the followings:

“(a) One of the fundamental principles for administration of justice is that parties do not have the right to choose the Presiding Officer hearing their case.

(b) According to the Tribunal’s records, the call over hearing took place before Presiding Officer Ms. Jennifer Ng on 15 May 2026.

(c) The Presiding Officer set down the case for Pre-Trial Review Hearing on 14 July 2026, 9:15 am, Court No. 10 and Trial Hearing on 13 and 14 August 2026, 9:30 am, Court No. 10 before Deputy Presiding Officer Ms. Lilian Ip.

(d) On 9 June 2026, the Deputy Presiding Officer directed that the Claimant’s application for discovery to be dealt with in open court at the Pre-Trial Review Hearing.

(e) On 10 June 2026, the Deputy Presiding Officer directed that the Claimant’s application for amendment of order dated 15 May 2026 and application for witness summons to be dealt with in open court.

(f) The Claimant’s complaints of prejudgment, hostility and substantive conflict of interests are not made out.

(g) The Principal Presiding Officer Mr. Timon Shum does not see any valid reason for recusing the Presiding Officer and the Deputy Presiding Officer in this case.

(h) The principle of judicial independence should be upheld.

(i) The Claimant’s application for recusal is refused.

(j) If in doubt, the Claimant should seek independent legal advice.”

(emphasis added)

9.  In answer to the claimant’s letter dated 17 June 2026, the learned Principal Presiding Officer replied to the claimant on 30 June 2026 that:

“1) The Claimant should refer to the Tribunal’s letter dated 25 June 2026.

2) The Pre-Trial Review hearing will take place before Deputy Presiding Officer Ms. Lilian Ip on 14 July 2026 at 9:15 a.m.

3) There will not be any hearing before the Pre-Trial Review hearing on 14 July 2026”[2]

10.  On 7 August 2026, the learned Principal Presiding Officer handed down his Reasons for Written Directions in the formal judgment/decision format.

THE APPEAL

11.  This appeal is brought by the claimant to challenge the decision of the learned Principal Presiding Officer dated 30 June 2026 “whereby the [claimant’s] Urgent Application for Case Management Directions dated 17 June 2026 was refused and the proceedings were directed to continue to a [PTR] on 14 July 2026”.

12.  It was stated by the claimant in the Notice of Appeal that this appeal concerns whether the Labour Tribunal had lawfully exercised its procedural and case management powers by requiring the proceedings to continue before determining outstanding procedural matters affecting the fairness, impartiality and procedural integrity of the proceedings.

13.  On the above basis, the claimant has put forward 4 grounds of appeal, which I will paraphrase as follows:

(1)  The Tribunal has failed to exercise its case management discretion judicially by refusing his urgent application and directing the proceedings to continue before determining the outstanding procedural matters.

(2)  It is unfair procedurally for the Tribunal to direct the proceedings to continue while the following matters remained unresolved:

(a)  The application for amendment of the sealed order for the Call-Over Hearing;

(b)  The applications for recusal of the Deputy Presiding Officer and the Presiding Officer;

(c)  The applications for transcripts;

(d)  The application for verification of the Tribunal’s outward despatch records;

(e)  The application for the recusal of the Tribunal Officer

(f)  The consequential internal review applications.

(3)  The Tribunal exercised its procedural jurisdiction on an erroneous legal basis by directing substantive case management before resolving certain outstanding procedural matters identified above.

(4)  The claimant’s interest has been prejudiced by being required to prepare for and participate in the PTR when material procedural applications remained unresolved.

THE PRINCIPLES FOR GRANTING LEAVE TO APPEAL

14.  Section 32(1) of the Labour Tribunal Ordinance (Cap.25, Laws of Hong Kong) provides that:

“If any party is dissatisfied with an award, order or determination by the tribunal on the grounds that the award, order or determination —

(a)  erroneous in point of law; or

(b)  outside the jurisdiction of the tribunal,

Such party may […] apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave.”

(emphasis added)

15.  It is trite that leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has a reasonable prospect of success.  A “reasonable prospect of success” means an appeal with prospects that are more than fanciful without having to be probable: SMSE v KL [2009] 4 HKLRD 125, at [17].

16.  Furthermore, in Order 55 rule 7(7) of the Rules of the High Court (Cap.4A, Laws of Hong Kong)[3], it is provided that:

“The Court shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned.”

17.  In Wong Yin Fong & Others v ISS Hong Kong Services Ltd[4] [2005] 2 HKLRD 648, Lam J (as he then was), in explaining the aforesaid rule, adopted the test formulated by Sir John Donaldson MR in Dobie v Burns International Security Services [1985] 1 WLR 43:

“Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate Tribunal to remit the case to the only Tribunal which is charged with making findings of fact. [The appellant] did not have to go to the length of saying that the Tribunal’s findings were perverse, and the majority [of the EAT] were wrong in thinking that they were prevented from sending the matter back on the basis that another Tribunal, to wit themselves, would have reached a different conclusion. All three of them were obliged, in my judgment, to remit the matter to the Tribunal notwithstanding that this is a very stale case …” (at [74])

(emphasis added)

18.  The combine effect of the above is that the claimant has to satisfy this Court that he has a reasonable prospect of success in persuading this Court on appeal that the learned Principal Presiding Officer’s decision has occasioned substantial wrong or miscarriage of justice.

19.  Moreover, it has been held by the Court of Appeal in Mimi Kar Kee Wong Hung v Severn Villa Ltd & Others [2012] 1 HKLRD 887 at [30] that:

“Even if the threshold test of reasonable prospect of success is satisfied, the court still retains discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of procedural economy and proportionality.”

20.  The appellate court’s retention of discretion as to whether to grant leave has also been emphasised in CWG v MH & Others [2014] 1 HKLRD 838.  In this Judgment, having quoted the paragraph above, the Court of Appeal continued to stress that:

“We wish also to point out that the court may refuse leave to appeal in the interests of procedural economy and proportionality (Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, [30]). Under Order 1A rule 2 of the Rules of the High Court, the court shall seek to give effect to the underlying objectives in Order 1A rule 1 in the exercise of its powers under the Rules or its inherent jurisdiction.  Among the underlying objectives are: ‘to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings’ (rule 1(c)), and ‘to ensure that the resources of the Court are distributed fairly’ (rule 1(f)).”

21.  Although Mimi Kar Kee Wong Hung (supra) and CWG (supra) did not concern appeal from the Labour Tribunal, I am of the view that the views expressed by the Court of Appeal therein are equally applicable in the present case, when it is obvious from the use of the word “may” in section 32(1) of the Labour Tribunal Ordinance that the Court of First Instance is given a discretion whether to grant leave to appeal.

DISCUSSION

22.  As the subject orders which are under challenge herein are the learned Principal Presiding Officer’s directions dated 30 June 2026, it is important to properly understand what he had ruled and what he did not rule by virtue of those directions.

23.  To answer these questions, one also has to make reference to the Tribunal’s letter dated 25 June 2026 which was expressly referred to in the Tribunal’s letter dated 30 June 2026 (by which the learned Principal Presiding Officer’s directions dated 30 June 2026 were conveyed to the claimant).

24.  In my view, the learned Principal Presiding Officer had by virtue of those letters:

(1)  Recapped briefly the main procedural events so far;

(2)  Explained that because of the principle of judicial independence, he would not interfere with the case management decisions of the learned Presiding Officer and the learned Deputy Presiding Officer.  He further reminded the claimant of the date of the PTR;

(3)  Dismissed the claimant’s applications of recusal.

25.  Insofar as it is the claimant’s argument that the learned Principal Presiding Officer was wrong in failing to order that his applications for discovery, witness summons and amendment of court orders be dealt with before the PTR, I am of the view that such a complaint is totally misconceived, because the learned Principal Presiding Officer’s only “decision” in that regard is that he should not (and cannot) intervene with the decisions of the other presiding officers because of the principle of judicial independence.  Properly understood, he did not make any ruling as such, but only reminded the claimant that, according to the decisions of the learned Presiding Officer and the learned Deputy Presiding Officer, those applications would be dealt with in the PTR.  In other words, the learned Principal Presiding Officer did not make any ruling which is appealable in that regard.

26.  Even if I am wrong above, it is clear that the decision to determine the claimant’s various applications at the PTR is a case management decision.  In respect of a case management decision, it is trite that the appellate court would only interfere if the decision concerned is clearly wrong and if the judge/judicial officer has made orders which will clearly involve an injustice or an inability for the trial court to carry out its task, or if the judge/judicial officer erred in principle or the order is irrational having regard to the issues that have to be resolved.  Generally speaking, an appellate court will not interfere with a judge/judicial officer’s exercise of discretion unless the judge/judicial officer has misunderstood the law or the evidence or the exercise of his discretion is plainly wrong such that it is outside the generous ambit within which a reasonable disagreement is possible: Mimi Kar Kee Wong Hung (supra) at [31].  In the present case, the decision to determine the applications raised by the claimant at the PTR can certainly not be said to be plainly wrong, but a sensible case management approach.  Indeed, it seems to me that the claimant has got a misconception that there can only be 1 hearing before the trial (i.e. the PTR originally scheduled for 14 July 2026), and failed to appreciate that the learned Deputy Presiding Officer is at liberty to fix a 2^nd PTR before the trial if the circumstances warrant it (which is, again, a case management decision which may be made at the PTR).

27.  For the sake of completeness, I should also mention that, even if the case management decisions of the learned Presiding Officer and the learned Deputy Presiding Officer were indeed plainly wrong (which I do not agree at all), the appropriate procedural step for the claimant to take is to appeal against those decisions to this Court, rather than to the Principal Presiding Officer, nor to ask the latter to review the decisions.

28.  I would now deal with the claimant’s complaint in respect of his recusal applications.

29.  In this regard, the learned Principal Presiding Officer had indeed dismissed those recusal applications by his directions dated 25 June 2026 which were repeated on 30 June 2026, for the reasons that “the claimant’s complaints of prejudgment, hostility and substantive conflict of interests are not made out” and that he did not “see any valid reason for recusing the Presiding Officer and the Deputy Presiding Officer in this case”.

30.  With greatest respect, the learned Principal Presiding Officer should not have dealt with the claimant’s recusal applications, as it is trite that those applications should be heard by the judge or judicial officer against whom impartiality or bias is alleged.  In other words, the recusal applications should have been dealt with by Presiding Officer Ng and Deputy Presiding Officer Ip respectively.

31.  Be that as it may, it does not necessarily mean that leave to appeal should be granted.  I will explain why below.

32.  I will consider the claimant’s application to recuse Presiding Officer Ng first.  With respect, I cannot see why this recusal application is necessary, as the learned Presiding Officer has not been assigned to hear the trial nor the PTR (or any other hearing) of the claimant’s claim. 

33.  In any event, the claimant’s allegations against the learned Presiding Officer are totally groundless.  His allegations that the learned Presiding Officer have pre-judged his various applications, endorsed letters from the Tribunal without her own signature, refused to amend the sealed order forthwith, and delayed the consideration of his various applications are completely misconceived.  His allegation of “hostility” is also unsubstantiated. 

34.  That leaves the application to recuse Deputy Presiding Officer Ip (who is going to be the trial presiding officer).  

35.  In this regard, the only grounds raised by the claimant are that the learned Deputy Presiding Officer had failed to “timeously dispose of [his] disclosure and witness applications”[5] and had “adopted a predetermined and dismissive approach to the claimant’s evidentiary applications”[6].

36.  As explained above, in my view, it is sensible for the learned Deputy Presiding Officer to direct that the claimant’s various applications be determined at the PTR.  No reasonable, fair-minded and well-informed observer would ever conclude, simply because she decided to hear the parties at the PTR rather than earlier as suggested by the claimant, that there is a real possibility that the learned Deputy Presiding Officer would be biased. 

37.  Hence, with respect to the claimant, his applications for Presiding Officer Ng and Deputy Presiding Officer Ip to recuse are hopeless.  It is plainly and unarguably right for these applications to be dismissed.  There is simply no reasonable prospect of success for the claimant to persuade this Court on appeal that the learned Principal Presiding Officer’s decision has occasioned substantial wrong or miscarriage of justice.  Indeed, even if the claimant’s applications are remitted to the relevant judicial officers for consideration again, I cannot see any possibility that the claimant’s applications (or either of them) would succeed.  It would therefore be a waste of time to do so.  Viewed in that light, I consider that it would be against the underlying objectives set out in Order 1A rule 1 of the Rules of the High Court if leave to appeal is granted, for it would not be promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, nor to ensure that the resources of the Court are distributed fairly.

CONCLUSION

38.  By reasons of the aforesaid, I dismiss the claimant’s application for leave to appeal.

COSTS

39.  I make no order as to costs. 

[1]  As an alternative to the above proposed orders, he asked to “stay all consequential directions flowing from the 9 and 10 June decisions pending final determination of the concurrent application for joint recusal by a senior or alternative Presiding Officer”

[2]  The PTR hearing scheduled for 14 July 2026 has subsequently been vacated because of this appeal

[3]  The rule is applicable to an appeal from the Labour Tribunal: Ip Wah v Cheung Chun Chiu formerly trading as Hang Tat Motor Company (HCMP 251/2007, unreported, 22 June 2007) at [13] – [21]

[4]  In this case, the ground of appeal was that the Presiding Officer of the Labour Tribunal withheld certain documents from inspection by the claimants therein on the ground that such documents contained sensitive information

[5]  The claimant’s letter dated 11 June 2026

[6]  The claimant’s letter dated 15 June 2026